Section 67 of Local Government Ordinance 17 of 1939 governs the closure of streets in Gauteng.
Section 67 reads in this regard as follows:
"Permanent closing or diversion of street
Notwithstanding anything to the contrary in this Ordinance contained the council may permanently close or divert any street or portion of a street if and when the following conditions have been complied with: -
(1) A proposal that steps can be taken for the closing or diversion of a street or portion of a street shall be dealt with at a meeting of the council.
(2) If the said proposal be agreed to, the council shall cause a plan to be prepared showing the position of the boundaries of the street or portion of the street proposed to be closed or diverted.
(3) (a) On completion of the said plan the council shall publish a notice in the Provincial Gazette and in at least one English and one Afrikaans newspaper circulating in the council's area of jurisdiction setting out briefly the council's proposals, stating that the said plan is open for inspection at a place and during the hours specified in such notice and calling upon any person who has any objection to the proposed closing or diversion or who will claim for compensation if such closing or diversion is carried out to lodge his objection or claim, as the case may be, with the council, in writing, not later than a specified date which shall be at least thirty days from the date of publication of the Provincial Gazette or newspaper in which the notice will be published at last.
(b) The council shall, at least thirty days before the time for the lodging of objections and claims will expire:-
(i) cause copies of the said notice to be posted in a conspicuous manner on or near the street or portion of the street which it is desired to close or divert and shall cause such copies to remain posted as aforesaid until the time for lodging objections and claims has expired;
(ii) cause a copy of the said notice to be served on the owners or reputed owners, lessees or reputed lessees and the occupiers of all properties abutting upon the street or portion of the street which it is proposed to close or divert; provided that if the name and address of any such owner, reputed owner, lessee, reputed lessee or occupier cannot after reasonable enquiry be ascertained a copy of the notice need not be served on him: Provided further that if any such property has more than one lessee, reputed lessee or occupier a copy of the said notice may be posted on the principal door of the main building or in another conspicuous place on such property and need not to be served on every such lessee, reputed lessee or occupier, except where such property is a sectional title property, in which case the notice shall also be served on the owners of the units or body corporate.
(4) (a) Any person who considers that his interests will be adversely affected by the proposed closing or diversion may at any time before the time for the lodging of objections and claims has expired, lodge with the council a claim, in writing, for any loss or damage which will be sustained by him if the proposed closing or diversion is carried out. If such closing or diversion is carried out the council shall pay compensation for the damage or loss sustained by such person, the amount of compensation in default of mutual agreement to be determined by arbitration. In assessing the amount of compensation the benefit or advantage derived or to be derived by the claimant by reason for the closing or diversion shall be taken into account. If such person, however, fails to lodge his claim with the council during the period during which objections and claims may in terms of paragraph (3) of this section be lodged he shall not be entitled to any compensation for any damage or loss sustained by him.
(b) If the council finds that the payment of compensation will be too costly, it may resolve not to proceed with the proposed closing or diversion.
(5) Deleted
(6) After the specified date contemplated in paragraph (3) -
(a) the council shall, if it is a council referred to in Part I or II of the Sixth Schedule to this Ordinance, consider every objection lodged in terms of paragraph (3) and thereafter such council may carry out the proposed closing or diversion;
(b) the council may, if it is a council referred to in Part II or III of the Sixth Schedule to this Ordinance and no objection has been lodged in terms of paragraph (3), carry out the proposed closing or diversion; or
(c) the council shall -
(i) if it is a council referred to in Part III of the Sixth Schedule to this Ordinance and any objection has been lodged in terms of paragraph (3); or
(ii) if it is a council other than a council referred to in the Sixth Schedule of this Ordinance,
submit the following to the Administrator -
(aa) full particulars of the proposed closing or diversion;
(bb) a copy of the plan contemplated in paragraph (2);
(cc) a certified copy of every objection lodged in terms of paragraph (3); and
(dd) a certificate to the effect that the provisions of the preceding paragraphs have been complied with.
(7) On receipt of the documents referred to in 2 [paragraph (6)(c)] of this section, the Administrator may in his discretion appoint a commission consisting of one or more persons to inquire into the propriety of the proposed closing or diversion and the objections thereto and to report to him on the matter.
(8) The Administrator may disallow the proposed closing or diversion or authorize it with such modification and on such conditions as he may deem fit, provided that if a commission has been appointed under paragraph (7) of this section the Administrator shall not arrive at a decision before the report of the commission has been considered by him.
(9) After the proposed closing or diversion has been carried out, the council shall forthwith -
(a) if such closing or diversion has been carried out in terms of paragraph (6)(a) or (b), notify the Surveyor-General and the Registrar of Deeds or other registration officer concerned in writing that the closing or diversion has been effected properly in accordance with the provisions of this Ordinance; or
(b) if such closing or diversion has been authorized by the Administrator in terms of paragraph (8), notify the Administrator in writing, and the Administrator, shall thereupon if he is satisfied that the closing or diversion has been effected properly in accordance with the provisions of this Ordinance, notify the Surveyor-General and the Registrar of Deeds or other registration officer concerned accordingly in writing.
(10) The council shall supply the Surveyor-General with a diagram framed by an admitted Land Surveyor showing all the details of the closing or diversion. The Surveyor-General shall thereupon cause such amendments to be made in the general plan of the township as are necessary to show such closing or diversion and the Registrar of Deeds or other registration officer concerned shall thereupon make corresponding entries in his registers.
Whenever a street or portion of a street is closed or diverted under the provisions of the Local Authorities Roads Ordinance, 1904 (Ordinance 44 of 1904), the provisions of this section shall not apply.
For the purposes of this section the word "street" shall include a road, thoroughfare, footpath, sidewalk or lane vested in the council under section sixty-three of this Ordinance."
Once the general plan of an approved township is altered or amended as envisaged by section 37 of the Land Survey Act 8 of 1997, the ownership of such street which vested in the local authority, vests ipso facto in the township owner. Section 91(1) of the Townplanning and Townships Ordinance 15 of 1986 reads in this regard as follows:
"91 Effect of alteration, amendment or cancellation of general plan
(1) Where the general plan of an approved township is, in terms of section 30(2) of the Land Survey Act, 1927 -
(a) altered or amended which necessitated the closing of any public place or street in terms of section 67 or 68 of the Local Government Ordinance, 1939, ownership in such place or street or any portion thereof which vests in the local authority in terms of section 63 of that Ordinance, shall ipso facto revest in the township owner;
(b) cancelled in whole -
(i) the township shall cease to exist as a township;
(ii) the ownership of -
(aa) any public place or street in the township vesting in a local authority in terms of section 63 of the local Government Ordinance, 1939, or vesting in the State President in trust for a future local authority;
(bb) any land in the township which has been transferred in the State or a local authority in terms of section 81, shall, subject to the provisions of subsection (2), ipso facto revest in the township owner;
(c) cancelled in part -
(i) that portion of the township to which the cancellation of the general plan relates shall cease to exist as a portion of the township;
(ii) the ownership of any public place or street or land in the township to which the cancellation of the general plan relates-
(aa) vesting in a local authority or the State President;
(bb) which has been transferred to the State or a local authority, as contemplated in paragraph (b)(ii), shall, subject to the provisions of subsection (2), ipso facto revest in the township owner."
Before transfer of the erf (formerly the street) can be effected the following must be adhered to:
- The Registrar of Deeds must already have been notified by the local authority or Premier concerned with regard to the street closure (see section 67(9) and (10) of Ordinance 17 of 1939 referred to above). This notification will be filed on the township file.
- The Registrar of Deeds must already have been notified by the Surveyor- General to the effect that the General Plan has been altered or amended (see section 37(4) of Act 8 of 1997). This notification will be noted as an interdict against the remainder of the township.
- The Surveyor-General must already have endorsed the General Plan regarding the street closure and disclose the new property description afforded the former street portion (see section 67(10) of Ordinance 17 of 1939) referred to above.
- A diagram for the closed street must have been drawn and approved for the closed street.
- The title deed of the township must have been endorsed to indicate the closure. The endorsement will read as follows:
Endorsement in terms of section 37(4) of Act 8 of 1997
A portion of ............................... (name of street) has been closed and is now known as
Erf ...................... Township name ......................................
See endorsement on general plan of Township .....................................................
.............................................
Registrar of Deeds
Cognizance must, however, be taken of the fact that the procedure set out above can occur simultaneously or prior to the transfer of the former street to the new owner by the Township Developer.
Where any street or portion thereof is closed and the closing thereof does not necessitate the alteration or amendment of the general plan, the ownership of the land comprising such street shall vest in the local authority, and the township owner shall, without compensation, be divested of rights to ownership therein. Section 91(4) of the Town planning and Townships Ordinance 15 of 1986 reads in this regard as follows:
"(4) Where any public place or street or any portion thereof is closed in terms of section 67 or 68 of the Local Government Ordinance, 1939, and the closing was not necessary to effect an alteration, amendment or total or partial cancellation of the general plan of an approved township as contemplated in subsection (1), the township owner shall, without any claim to compensation, be divested of all rights of ownership in the land comprising such public place, street or portion and such rights shall, notwithstanding anything to the contrary contained in this Ordinance or any other law, vest in the local authority: Provided that the provisions of this subsection shall not affect any right to minerals or other real right held by the township owner in respect of such land."
The land so vested in the local authority must be transferred to the local authority concerned at the expense of such local authority. Section 114(3) of Ordinance 15 of 1986 in this regard reads as follows:
"(3) Where the ownership of any land revests in a local authority in terms of subsection (1), such land shall be transferred to it at its expense."
Republished with permission from SA Deeds Journal
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