Gert is a specialist Conveyancer based at our Illovo office. He worked at the Pretoria Deeds Office from 1985 until 1989 and after becoming a Senior Examiner left to qualify as an Attorney and Conveyancer in 1992. As manager of our Gauteng Development Law Unit Gert focuses on the establishment of townships and all the conveyancing work required to initiate and complete developments, whether it may be an upmarket sectional title, cluster or housing development. He enjoys finding practical solutions to complicated conveyancing problems. Gert serves on the committee of the South African Affordable Residential Developers Association (SAARDA), a body representing the interests of developers and other stakeholders in the affordable housing development sector which necessitates regular collaboration with government and municipal officials.

The importance of a conveyancer’s certificate in the township establishment process

The process to establish a township is in essence the conversion of raw land into a proclaimed township with streets, stands and parks as depicted on a General Plan, with conditions of establishment in the proclamation notice controlling the use of the stands in the township.

There is a myriad of Acts, Ordinances and By-laws which affect and regulate the use of land in South Africa and even more so the establishment of a township. This makes the township establishment process a difficult and time-consuming process which is best left to the bravest of the brave developers, who have the required resilience and endurance for the engagement with the long drawn-out process which governs the implementation and execution of the applicable legislation.

The good news is that the Spatial Planning and Land Use Management Act 16 of 2013 (or, SPLUMA) commenced on 1 July 2015 with one of its objects to establish a uniform, recognisable, and comprehensive system of spatial planning and land use management throughout the Republic to maintain economic unity, equal opportunity, and equal access to government services.

The layout plan

Whatever the legislation applicable, the design of the proposed township is determined by the information supplied by the various professionals like environmental consultants, engineers, land surveyors and conveyancers to the township and urban development planners.

The contributions of all these professionals are essential, but the input of two specific professionals at the start of the project is especially intertwined. The conveyancer checks the records of the Deeds Office to produce a conveyancer’s certificate dealing with all the title conditions and servitudes recorded against the title deed for the raw land. The land surveyor checks the records of the Surveyor-General to produce a servitude certificate dealing with the cadastral information and boundaries of the registered and unregistered servitudes.

The information from these two certificates gets integrated into a base plan prepared by the land surveyor, which reflects the cadastral boundaries, servitudes, a grid, and road proclamations for the raw land. This base plan, together with information received from the other professionals incorporated into it too, is then used by the town planner to design the layout of the new township.

The servitude certificate by the land surveyor

This certificate identifies the following two categories of servitudes:

  • servitudes already registered and noted against the title deed for the raw land as title conditions.
  • servitude diagrams approved by the Surveyor-General, but the servitudes for these diagrams have not been registered yet in the Deeds Office.

The land surveyor will also compare the information in the conveyancer’s certificate to the cadastral information and where discrepancies are found this will be addressed to determine the correct factual situation.

The conveyancer’s certificate

The conveyancer’s certificate is prepared by a qualified conveyancer, an attorney who also passed the conveyancing exam, and deals in principle with the following seven issues relating to the raw land:

  • the description of the land on which the proposed township establishment will take place.
  • the various title conditions contained in the title deed relating to the land on which this township will be established.
  • the way in which these title conditions must be disposed of for township establishment purposes.
  • the particulars of the registered owner of the land.
  • the particulars of the township applicant.
  • the particulars of the local authority.
  • conveyancing steps to be followed before or simultaneously with the opening of the township register.

The identification of the applicable title conditions in respect of the raw land and advice on how these title conditions must be disposed of for township establishment purposes are probably the most important aspects of this certificate.

The title conditions applicable in respect of the raw land

The title conditions noted against the title deed for the raw land can be divided into two categories:

  • title conditions reflected in the title deed as numbered paragraphs in the text of the title deed.
  • title conditions reflected as endorsements in chronological order made by the officials in the Deeds Office on the blank pages of the title deed.

44A The person signing the preparation certificates prescribed by regulations 43 and 44 (1) of the Regulations accepts, in terms of section 15A (1) and (2) of [SPLUMA], to the extent provided for in this regulation, responsibility for the correctness of the undermentioned facts stated in the deeds or documents concerned or which are relevant in connection with the registration or filing thereof, namely:

(a) That all copies of the deeds or documents intended for execution and/or registration are identical at the date of lodgment;
(b) that, in the case of a deed of transfer or certificate of title to land, all the applicable conditions of title contained in or endorsed upon the owner’s copy of the title deed, together with any applicable proclaimed township conditions have been correctly brought forward in that deed of transfer or certificate of title to land;

Although conveyancers assume responsibility for the correctness of the title conditions in the title deeds in terms of Regulation 44A(b) of the Deeds Registries Act, 1937 (No 47 of 1937) and the examiners at the Deeds Office are obliged in terms of section 3(1)(b) of the same Act to examine the title deeds for correctness before allowing the registration thereof, it happens occasionally that the following mistakes slip through:

  • the incorrect title conditions are carried forward to a title deed.
  • title conditions which are supposed to be carried forward to a title deed, are omitted.
  • servitudes are missing on the small-scale diagram for the raw land and are subsequently not carried forward to the title deeds, which will require the cadastral information to be updated first before the land records can be updated.

The disposal of the title conditions for township establishment purposes

The identification of all the relevant and valid title conditions which impact on the raw land is crucial because each of these title conditions must be addressed and dealt with for the purpose of designing the new township.

There are two main categories of title conditions that must be disposed of:

  • servitudes and title conditions which affect the land because of its situation.
  • servitudes and title conditions which do not affect the land because of its situation.

The servitudes which affect the township through its situation may affect the whole of the township, certain stands in the township only, or stands and streets in the township. The Registrar of Deeds in Pretoria issued a circular, Registrar’s Circular 2 of 2019 to provide clarity and guidelines for the procedure to be followed for the establishment of townships, with paragraph 5.3.6 setting out how the title conditions must be disposed of for township establishment purposes.

The conditions of establishment for the new township have a section which deals specifically with the disposal of title conditions, and when the General Plan and small-scale diagrams for the township are approved by the Surveyor-General the information in here must correlate with the title conditions in the township title and the servitude notes on the General Plan and small-scale diagrams. Any discrepancies here will result in the rejection of the deeds for the opening of the township register until the mistakes have been rectified.

Conclusion

If any mistakes regarding the correct title conditions or disposal of these title conditions are discovered only at the late stage where the township register must be opened it may have catastrophic consequences if the layout of the township was based on the wrong information collected from the Deeds Office records, or if this information was not verified by the conveyancer when issuing the conveyancer’s certificate.

The layout of the township will have to reconsidered and the records at the Deeds Office, and the Surveyor-General where applicable, must be updated to reflect the correct servitudes and title conditions applicable to the title deed for the raw land.

This means that a mere examination of the current title deed is not adequate to determine the correct title conditions applicable in respect of the raw land on which the township will be established. An appropriate investigation into the cadastral and land records for the raw land is indispensable to avoid nasty surprises with the opening of the township register, where the value which the developer added to this land by getting the township approved by the municipality, is unlocked.