Business Rule 001/10-03/17.
It is important that the policies and business rules of municipalities reflect the correct legal position as prescribed in legislation. If not, it introduces procedures that are not constitutional and can be challenged in a court of law.
On 13 March 2017, the Building Control Department of the City of Johannesburg Metropolitan Municipality implemented a business rule, which stated that no applications for the approval of buildings plans will be considered for unregistered erven with the Registrar of Deeds. Business Rule 001/10-03/17 was eventually revoked after engagements between SAARDA and the municipality, but not before developers were forced to register Certificates of Registered Title for all the erven in a new township which are held by a township title, prior to the submission of building plans for the houses to be erected on these erven.
When is an erf a registered erf?
In the court case of EM and EM Engineering (Pty) Ltd and the Kwadukuza Municipality, the Registrar of Deeds and ASK Y Development Professionals CC, which was delivered on 26 June 2015 in the KwaZulu-Natal Local Division of the High Court, the following points were raised while determining what constitutes a registered erf:
- In paragraph 20 on pages 10 to 11 of this judgment the court found that it must follow that the owner of land as defined in section 102 of the Deeds Registries Act, 1937, (No 47 of 1937) in respect of which a general plan has been registered in terms of section 46(1) of the Deeds Registries Act, 1937, (No47 of 1937), must also at the time of such registration continue to be the owner of each subdivision or erf, therefore registered. After all, there is no suggestion that erven, which occurs by the registration of a general plan, would be ownerless.
- In paragraph 22 on page 11 of this judgment, the court also confirmed the principle that when section 46(1) of the Deeds Registries Act, 1937, (No47 of 1937) is read with the provisions of section 46(7) and 43(5)(a), any erf, if alienated as a whole, may be registered into the name of its new owner without the need to first obtain a certificate of registered title in respect of that erf.
You can read more about what is regarded as a registered erf in this article: