NGL Attorneys | Commercial, Business and Property Law

The Spatial planning and Land Use Management Act (SPLUMA) came into effect on 1 July 2015.

The purpose of the act is to develop a more unified framework when it comes to Spatial Planning in South Africa. For many years, South Africa has suffered from a fragmented system of Spatial Planning, a holdover from the days of Apartheid.

SPLUMA is a “Framework” Act. That is to say, SPLUMA does not in itself create new laws concerning spatial planning. What it does do is give local municipalities the power to create their own rules and by-laws concerning spatial planning, within the scope of the Act.

the SPLUMA Certificate

In recent times you may have heard that it is a requirement to have a “SPLUMA Certificate” to transfer your property. This is only half true.

A SPLUMA certificate is a certificate issued by the relevant Local Municipality to certify that all by-laws and spatial planning requirements have been complied with. In this way, the municipality can prevent subdivisions, consolidations and building of sectional title schemes that are not in compliance with these by-laws.

In its truest form, a SPLUMA Certificate should only be necessary when a “Development Application” is undertaken. That is to say, the land in question is being “Developed”. This would include subdivision, consolidation and opening a new Sectional Title scheme (apartment building) on the land. A SPLUMA certificate is not a requirement to transfer a property, unless of course such a development application is being done simultaneously to the Transfer.

Accordingly, many home owners may never need to procure a SPLUMA certificate in order to sell their property.

The position in Mpumalanga and Court Proceedings

There is one important caveat to this: Properties in Mpumalanga. Around the time that SPLUMA was promulgated, the three major local municipalities in Mpumalanga (Govan Mbeki, Steve Tshwete & Emalahleni) made it a requirement that a SPLUMA certificate had to be applied for in every single transfer of any property, regardless of whether a development application was being made or not. This had the effect that a normal person who wanted to sell their existing property had to go through extra administrative hurdles to procure such a certificate. The Municipalities would also not issue said certificate unless all building plans for the Property were correct up to date.

The Deeds Office in Mpumalanga abided by the Municipalities’ by-laws and currently insists that a SPLUMA certificate is provided in every transfer.

The issue came to the forefront in the case of Govan Mbeki Local Municipality and Another v Glencore Operations South Africa (Pty) Ltd and Others, an appeal judgment. The Supreme Court ruled that a Local Municipality is not permitted to require a SPLUMA certificate in every single transfer of Property where there is no development application. Such an action is in violation of the Municipality’s Powers in passing by-laws. If a municipality was to pass a law stating that a SPLUMA certificate is a requirement in every transfer, they would be making laws at a national level (as the Deeds Office is a National body of Government) a position which is patently untenable.

Following this ruling, the Municipalities of Mpumalanga have decided to appeal the judgment further to the Constitutional Court. At time of writing, said proceedings are yet to begin. The Mpumalanga Deeds Office has in the interim decided to continue to enforce the requirement of a SPLUMA certificate in every single transfer. It may be some time before said judgment is heard and decided and final clarity is given to the Property industry as a whole, especially the industry in Mpumalanga.

Written by Sean Wynne

An unfortunate side-effect of this requirement is that a common myth around property transfers has developed: that correct building plans are a requirement for transfer. This is not the case, and the Deeds Registry will not request that building plans are lodged with the transfer application. Nevertheless, building plans may be made a requirement either by the Bank granting a Mortgage Bond to the Buyer or in the Contract of Sale itself. It is highly recommended for all home owners to ensure that their building plans are correct and reflect the true state of affairs on their property.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE) 

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