The Advertising on Roads and Ribbon Development Act 21 of 1940 (1940 Act) impose certain title conditions that are sometimes encountered in the title deeds for land or abutting on or close to a provincial road, on which a township applicant wants to establish a township:
“The property hereby transferred is subject to the following conditions imposed by the Controlling Authority under Act No 21 of 1940:
Except with the written approval of the Administrator as Controlling Authority as defined in Act 21 of 1940:
The land shall be used for residential and agricultural purpose. The number of buildings on the land, or on any duly approved subdivision thereof, shall not exceed one residence together with such outbuildings as are ordinarily required to be used in connection therewith and such further buildings and structures as may be required for purpose of agriculture.
No store or place of business or industry whatsoever may be opened of conducted on the land.
No building or any structure whatsoever may be erected within a distance of 94.46 metres from the centre line of a public road.”
The nature of these title conditions
The title conditions imposed by the Act severely restrict the use of such land. It stipulates that the land shall be used for residential and agricultural purposes only, it limits the number of dwellings that can be built on the land, it prohibits any store or place of business being operated on the land and set the distance from a public road for the purpose of erecting a building or structure.
These restrictions are evidently incompatible with the intended development of the land as a township. As such, it will require the township applicant to obtain the written consent of the Controlling Authority as defined in section 11(8)(a) of the in order to remove these title conditions from the title deed for the land.
Disposal of the title conditions imposed in terms of Act 21 of 1940
The conveyancer tasked with issuing the conveyancer’s certificate for the land in order to establish the township is obliged to indicate that these title conditions limit the use of the affected land, are incompatible with the intended development of the land into a township, and must be cancelled at the same time as the township register for the proposed township is opened.
As part of the pre-proclamation conditions of establishment, the proposed townships’ conditions of establishment shall then specify that the township applicant shall cause the restrictive conditions and/or servitudes to be cancelled or the township area to be freed therefrom at its own expence.
As part of this process, the Deeds Office will verify that the pre-proclamation condition of establishment has been fulfilled before permitting the township register to be opened.
Section 11(8)(a) of Act 21 of 1940
The title conditions can only be cancelled once a request or application to the Controlling Authority has been made to approve the cancellation of these title conditions. The Controlling Authority will consider this application and if successful, will issue a letter to the Registrar of Deeds confirming the approval of the cancellations of the title conditions as well as the effective date from which date the township will be declared an approved township in the applicable Provincial Gazette.
The Controlling Authority’s written consent in terms of section 11(8)(a) of the 1940 Act, together with owner of the land’s written application in terms of section 11(9) of the Act are then submitted to the Deeds Office as part of the batch of documents to be submitted for the opening of the township register. These documents should furthermore comply with the specific pre-proclamation condition of establishment.
The Deeds Office subsequently endorses the township title concerning the cancellation of these title conditions whereafter the township will be free from the title conditions.
The Controlling Authority
The definition in the 1940 Act states that the ‘Controlling Authority’ in respect of a road means the Administrator concerned. Consequently, in the Gauteng Province, the Controlling Authority was the Administrator and later the Premier from 1994 until 1 July 2015.
The applications to cancel the title conditions were duly submitted to the Gauteng Provincial Government’s Department of Economic Development (Gauteng DED). This department is tasked with considering the applications and if successful, to issue a letter to the Registrar of Deeds confirming the cancellation of the title conditions.
This is how this process worked until the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) came into operation on 1 July 2015.
Spluma, the Deeds Office and the Controlling Authority
When SPLUMA was introduced, the Registrar of Deeds argued that section 33(2) of this Act stipulated that where an application or authorisation is required in terms of any other legislation for related land use, such an application must also be made or authorisation requested in terms of that legislation.
| (2) Despite subsection (1), where an application or authorisation is required in terms of any other legislation for a related land use, such application must also be made or such authorisation must also be requested in terms of that legislation |
Paragraph 11.1 in Registrar’s Circular No 3 of 2016 of the Pretoria Deeds Office declares that, aside from the relevant municipality’s consent, the consent of the Controlling Authority as defined in the 1940 Act must be obtained too and submitted in order to cancel the title conditions imposed in terms of the Act.
This worked well until the Gauteng DED stopped processing applications to cancel title conditions imposed in terms of the 1940 Act. The Department determined that it could no longer fulfil the functions of the Controlling Authority, as these functions passed on in terms of section 45(6) of SPLUMAto the municipality in whose jurisdiction area the specific land was situated.
| (6) Section 45(6) of SPLUMA determines that where a condition of title, a condition of establishment of a township or an existing scheme provides for a purpose with the consent or approval of the administrator, a Premier, the township board or any controlling authority, such consent may be granted by the municipality and such reference to the administrator, A Premier, the townships board or controlling authority is deemed to be a reference to the municipality.” |
Between a rock and a hard place
Despite the Gauteng DED terminating the processing of applications for the cancellation of title conditions imposed in terms of the 1940 Act, the Deeds Office still insisted that municipal consent or authorisation on its own was insufficient, and that the Gauteng DED’s consent or authorisation was also required before noting the cancellation of these title conditions against the title deed for the land.
This complicated matters for both the township applicants and the conveyancers sinceit was now impossible to obtain consent or authorisation from the Gauteng DED to cancel the title conditions. This delayed the opening of township registers and the subsequent unlocking of value in land with the transfer of the stands and other properties in such township.
The solution
The professional and courteous relationship between the Deeds Office officials and the conveyancers is held in high esteem by all parties. Since much at stake for the private sector, vigorous engagements in pursuit of clarity on issues are bound to occur from time to time. Eventually, when the matter is resolved, the parties can be satisfied with the outcome and the fact that the issue is no longer shrouded in uncertainty.
In this case, the solution to the problem was found when a township applicant approached the court to rule on who the Controlling Officer, authorised to consent to the cancellation of title conditions imposed in terms of the 1940 Act, is.
In Riversands Developments Pty Ltd v Registrar of Deeds Pretoria case number 55768/2020 the Gauteng Division of the High Court found on 3 November 2020 that the powers and functions of the ‘Controlling Authority’ in terms of section 11(8)(a) of the 1940 Act have devolved upon and have been designated to the municipality. Municpal consent to cancel these title conditions was consequently sufficient and no further consent was required from the Gauteng Provincial Government.
Conclusion
Satisfied that the court dispelled the ambiguity concerning the identity of the Controlling Authority, the Registrar of Deeds in Pretoria issued Registrar’s Circular 3 of 2020 on 12 November 2020, confirming that municipal consent is enough to note the cancellation of title conditions imposed in terms of the 1940 Act.
