Removal of restrictions - I

Removal of restrictions relates to the process of amendment, suspension or removal of obsolete conditions, obligations, servitudes or reservations and related matters from the registered title deeds of a particular property. There is a plethora of reasons that orchestrate the process of removal of restrictions.

The restrictive conditions relate to the following spectrum of land use matters:

• A restrictive condition or servitude registered against the title deed of a particular land parcel;
• A provision of a law relating to the establishment of townships or town planning;
• A provision of a by-law or regulation relating to a town planning scheme, etc.;
• A provision of a town planning scheme and a restrictive condition or servitude registered against the title deed of a particular land parcel; and
• A provision of a town planning scheme and a provision of a law relating to the establishment of a townships or town planning.

Conditions of title are those contained in deeds of transfer, deeds of grant, certificates of ownership, quitrent grants, permission to occupy certificates and other forms of ownership registered in the Deeds Office. The purpose of title restrictions is mainly to protect the amenity and character of a particular land development area.

In Van Rensburg No and another v Naidoo No and others, Naidoo No and others v Van Rensburg No and others (155/09,455/09) [2010] ZASCA 65, [2010] 4 all SA 398(SCA); 2011 (4) SA 149 (SCA) (26 May 2010) the court confirmed the view of the Appeals Court in Ardcornnel Investments (Pty) Ltd that restrictive conditions are imposed for the benefit of all the other erven in a township and are inserted in the respective title deeds for the public benefit as well as to preserve the essential character of a township. It follows that when an owner removes such a condition, the rights of other owners in the township are diminished or extinguished.

Title deed restrictions are for the reciprocal benefit of the owners in a township; thus, each erf is simultaneously burdened or encumbered thereby.

The removal process solely focuses on restrictive conditions and not benefit conditions. The former are basically characterised by distinctive phrases such as “Subject to...”, “Onderhewig aan...”, “The owner of the lot shall...”, “Except...” or “No...”. while the latter are distinguished by the expressions such as “With the benefit of...”, “Met die voordeel van...” or “With the use of...”

The process basically involves an approval phase and publication of the approval in the Provincial Gazette as well as a registration phase to be complete. In short, an application must be lodged by the land owner or by the controlling authority, e.g. a municipality, in terms of the relevant legislation and after approval by the relevant administrator, tribunal or controlling authority the owner or municipality, must lodge an application for endorsement of the relevant title deeds with the Registrar of Deeds regarding such removal.

The application may relate to any of the following acts of registration:

• Amendment of a condition;
• Suspension of a condition;
• Relaxation of a condition; and
• Permanent removal of a condition.

Presently the removal of restrictions remains one of the most abstract and perplexing areas of planning law due to the changes ushered on the one hand by the advent of the constitutional epoch on 27 April 1994, more especially the assignment of the Removal of Restrictions Act 84 of 1967 to the respective provincial governments in terms of Section 235(8) of the Interim Constitution of the Republic of South Africa No 200 of 1993 (Proclamation R160 Government Gazette 16049, 31 October 1994); its subsequent amendment and repeal in different provinces; the advent of Section 47 of the Spatial Planning and Land Use Management Act 16 of 2013 and its relative Municipal Planning By-Laws on the other.

Some Provinces still apply the Removal of Restrictions Act 84 of 1967 and others have enacted their unique legislation in lieu thereof.

The quandary of transitional measures in the midst of these nuances remains a menacing challenge to the proper conception and application of the process.

Consequently there are divergent procedures relating to removal of restrictions nationwide. It is therefore at the backdrop of the foregoing dynamics that the aspect of removal of restrictions must be conceived.

There are three distinct methods for removal of restrictions, namely:

• Removal in terms of a Court Order in which case a rule nisi is issued by the High Court for the expungement of title restrictions;
• Removal in terms of legislation; and
• Removal in terms of a notarial agreement between the administrator, council or tribunal and the affected land owner.

This article focuses on the second method, namely removal in terms of legislation. It must be highlighted here that in the current planning dispensation the legislation refers to National Legislation, Provincial Legislation and Municipal Legislation(By-Laws). As far as removal of restrictions by means of legislation is concerned the following authoritative framework provides a basis for application:

1. Section 2 and 3(1) the Removal of Restrictions Act 84 of 1967;
2. Section 6 of the Gauteng Removal of Restrictions Act 3 of 1996;
3. Section 59(1) of the Northern Cape Planning and Development Act
4. Section 60 of the KwaZulu-Natal Planning and Development Act;
5. Section 3(2) of the Less Formal Townships Establishment Act 113 of 991;
6. Section 34 of the Development Facilitation Act 67 of 1995;
7. Section 7(1) of the Upgrading of Land Tenure Rights Act 112 of 1991;
8. Section 49(6) of the South African National Roads Agency Limited and National Roads Act 7 of 1998;
9. Section 11(9) Advertising of Roads and Ribbons Development Act by-law;
10. Section 31(7) of the National Heritage Resources Act 25 of 1999;
11. Section 47(1) of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA); and
12. Various Municipal Planning By-Laws and Ordinances.

In Camps Bay, Ratepayers and Residents Association and Others v Minister of Planning, Culture and Administration, Western Cape 2001(4) SA294 (C), the judge pointed out that one or more of the following central factors must underpin any feasibility study of removal of a restriction:

1. It must be desirable to remove the restriction in the interests of the public;
2. It must be desirable to remove the restriction in the interests of an establishment;
3. It must be desirable to remove the restriction in the interests of a development;
4. It must be desirable to remove the restriction in the interests of any area.

Any removal, amendment or suspension of a restrictive title deed condition must be in accordance with section 25 of the Constitution of the Republic of South Africa, 108 of 1996 in so far as it implies a deprivation of land rights.

Over and above the aforementioned factors Act 84 of 1967 further states that other factors include the fact that the land must be required for ecclesiastical purposes, public purposes by the State or Local Authority, erection of any building by the State of Local Authority and any other incidental purpose relating to the above.

In the current dispensation removal of restrictions must be understood within the purview of Section 47 of SPLUMA which reads as follows:

1.  A restrictive condition may, with the approval of a Municipal Planning Tribunal and in the prescribed manner, be removed, amended or suspended.
2.  A removal, amendment or suspension of a restrictive condition contemplated in subsection (1) must, in the absence of the contemplated written consent, be effected—
   1. in accordance with section 25 of the Constitution and this Act;
   2. with due regard to the respective rights of all those affected, and to the public interest; and
   3. in the prescribed manner, if such removal, amendment or suspension will deprive any person of property as contemplated in section 25 of the Constitution.

Section 47(5) further states that "an applicant at whose instance a restrictive condition is removed, amended or suspended in terms of this Act, must, within the prescribed period and in the prescribed manner, apply to the Registrar of Deeds concerned for the appropriate recording of such removal, amendment or suspension, and the Registrar of Deeds must in the prescribed manner record such removal, amendment or suspension...”

Before a further exploration of the cardinal dynamics that influence removal of restrictions, it is extremely crucial to take cognisance of various existing mechanisms or processes that govern the process within the purview of South African Law.

This background is of utmost importance if one aims to unravel the rigmarole of removal of restrictions in the SPLUMA and Municipal By-Law dispensation.

The process focuses on the following key aspects: The removal of any restriction, obligation, servitude or reservation which relates to the subdivision of the land or the purpose for which the land may be used in connection with the erection of structures or buildings on or the use of the land, which is binding on the owner of the land arising out of-

1. any restrictive condition or servitude which is registered against the title deed or leasehold title of such land; or
2. a provision of a by-law or of a town-planning scheme; or
3. the provisions of a title condition contained in the schedule to the proclamation of a township; or
4. the provisions of a law relating to the establishment of townships or town planning.

Wiseman Bhuqa, Law Lecturer
Legal Support & Deeds Training

Note - for Provincial examples see:
Removal of restrictions - II (KwaZulu-Natal)
Removal of restrictions - III (Gauteng)
Removal of restrictions - IV (Mpumalanga)
Removal of restrictions - V (Free State, Eastern Cape and Limpopo)
Removal of restrictions - VI (Western Cape)
Removal of restrictions - VII (Northern Cape and North West)