What is the role of the Town Planner in this regard?

The Town Planner should be briefed to co-ordinate the tasks, collection of certificates and any other SPLUMA Approval/Consents that, when all are in place, the Municipality is able to issue the Section 53 Proclamation Certificate. The assumption is made that a SPLUMA Approval/Consent has been obtained.

The SPLUMA Approval/Consents includes a set of Conditions that must be fully satisfied and in some instances require various relevant authorities to confirm compliance with one or more conditions by way of an official letter and/or certificate.

What must be done?

Generally every condition will require the Applicant to undertake a set of tasks that once completed must be adjudicated by the relevant authority responsible therefore before that authority is able to certify full compliance with that condition

What generally are the main conditions and who is the authority?

• Bulk Sanitation System installed – the Municipality Waste Department and in some instances where a Waster Works must be installed by the Applicant, Certificate from the Provincial Environmental Authority.

• Bulk Water System installed (including reservoirs) – the Municipality Water Department. There may also be a necessity for certain licenses to be obtained and/or amended/renewed.

• Major Access Roads installed – the Municipality Roads Department, the Provincial Roads Authority and SANRAL (if required).

The Town Planner's Brief?

The above will essentially make up the Town Planner’s Brief. NB This will include making amended SPLUMA application(s).

The Brief should include a period related project plan in which critical milestones and/or tasks are recorded.

The critical milestones and/or tasks, by implication, will move the entire process ‘out’ if not met within the date or period specified.

Early intervention must be initiated by the Town Planner if a Critical Milestone and/or Task is likely not to be met.

What are the headings that will guide the briefs?

Land and Development Rights Audit – (the ‘Audit’).

• Whilst it is very likely that the Land Surveyor and Conveyancer were involved and/or was/were the authors of the Audit, this may not be the case, and accordingly the outcome of the Audit will essentially form the basis of their briefs.

• The briefs should be a single ‘brief’ where both the Land Surveyor and the Conveyancer will extract their respective tasks that they must perform or have attended to.

Interventions Required and By Whom?

• The Land Surveyor and Conveyancer must establish as to whether there are tasks/actions that require specific interventions/resolutions to be taken by the Municipality and/or other organs of the State.

• They must prepare a detailed memorandum in this regard so that the relevant official is then able to ‘take through’ the procedural steps within the Municipality and/or organ of the State to obtain the necessary intervention.

Correlation by Land Surveyor and Conveyancer with regards to all Diagrams, General Plans and other Registrable Documents.

• This is to ensure that there is absolute alignment between what diagrams and general plans the Land Surveyor has framed and what the Conveyancer will require to effect the Land Assembly, to open the Township Register(s) and to effect transfer of erven and other rights.

Detailed Scope of Work.

• Assistance from the Land Surveyor and Conveyancer may be prudent in defining the full scope of for both of them to ensure no omission is made that may ‘block’ the eventual transfer of ownership with regards to individual even in the Township(s) developed.

• It is extremely important that the Sales Administration documentation also includes a valid ‘will’ of the approved housing subsidy beneficiaries in order that the Conveyancer may effect ‘succession transaction(s)’ should this be necessary.

Cancellation of other Competing Land Rights.

• The Audit may identify other land rights as outlined in Step 1 that cannot be accommodated in the Township Development.

• These must be adequately dealt with which must include a formal process via the Council to confirm these land rights (formal and informal) have been effectively cancelled.

Effect the Expropriation of Land Rights.

• The Audit outcome will have identified land rights (formal and informal) that must be expropriated.

• Having regard to the expropriation procedure that follows in this tool kit, the Land Surveyor and Conveyancer must give effect to the expropriation via the relevant authority(s).

• The Land Surveyor to prepare the necessary expropriation plans that define ‘what’ is being expropriated.

Fees and Other Costs

• It is important that all aspects that must be given effect to, by the Land Surveyor and Conveyancer are costed and budgets made available.

• The above must make provisions for costs associated with interventions by the Municipality and/or Organs of the State, including the obtaining of a Court Order if required.

Why is such an intervention necessary?

The underlying land to the POF may comprise of land parcel(s) owned by a ‘deceased estate’ and which estate has not been reported, accordingly there is no ‘seller’.

The above means that for such parcels of land to be acquired by the state/organ of state, the property would need to be expropriated which is a lengthy process.

Notwithstanding the provisions of the Law of Succession there may be other competing rights to such parcels of land.

The occurrence of the above will cause a major delay to concluding the Land Assembly Process and ultimately the Township Establishment Process

What is the Purpose?

The purpose is to regulate the allocation of certain land in respect of which one or more person’s claim ownership, but who do not have registered title deed(s) in respect thereof.

• The Act inter alia contemplates a deceased estate and where the heirs and other claimants do not have title to that land.

• The Act provided for the appointment of a Commissioner who, on appointment becomes the ‘Seller’ of the land.

• The State and/or Organ of the State is then immediately in a position to deal with the land and to acquire same without having to expropriate the land.

What are the ‘Pitfalls’?

• The Act is a National Act.

• The Act is administered by the Minister of Agriculture, Land Reform and Rural Development.

• The process to date of the appointment of a Commissioner(s) has been a protracted one and accordingly the objectives of the Act have generally not been met.

What is the solution to effectively utilise this Act?

• The Constitution of the RSA requires that all spheres of Government co-operate with one another in order to achieve the objectives of the State as a whole.

• The above constitutional obligation was codified by the promulgation of the Intergovernmental Relations Framework Act, Act 13 of 2005. This Act provides, at Section 35, for spheres of Government and/or State Departments to enter into an Implementation Protocol (IP) to define such co-operation and bind each other to collectively achieving the set out objectives.

• The Municipality should conclude such an IP with the Department of Agriculture, Land Reform and Rural Development and to prepare ‘Work Plans’ as defined and contemplated by Act 13 of 2005.

Expropriation process

(by Municipalities for Housing Development in terms of Section 9(3a) and 9 (3b) of the Housing Act (Act 107 of 1997) read together with the Expropriation Act 63 of 1975)

• Identify and inspect properties for expropriation (failed negotiations; unable to contact landowner/s; landowner not willing to sell and property is a critical requirement for the Priority Housing Project area)

• Submit an application to the strategic management committee for permission to expropriate.

• Submit an application to exco for permission to expropriate.

• Submit an application to full council for a resolution to expropriate.

• Have an Intention to Expropriate Notice published in two Local Newspapers: one Zulu and one English Newspaper ***

• Objection period of 30 days is to be entertained while waiting for objections from landowners ***

• Co-ordinate an objectors meeting with the facilitators and the Municipality.

  • Negotiate where possible (sale agreement can be signed if appropriate)

  • Request heirs to attend on the masters office and report estates.

• Submit application to the MEC Housing for approval to expropriate. all objections and outcomes are to be attached to the application.

• Designate properties to be expropriated to LTAC’s (d\Department of Rural Development & Land Reform) [must be attended to with enough time to still publish the notice of expropriation (para 9) within 6 months of permission granted by the MEC : Section 9 (3a) (iii) of the Housing act 107 of 1997] ***

• Once properties have been designated to the Land Titles Adjustment Commissioners, Notice of Expropriation is to be published in two Local Newspapers: one Zulu and one English Newspaper [this must be done within 6 months of permission granted by the MEC : Section 9 (3a) (iii) of the Housing Act 107 of 1997].

• Provide the Deeds Office with a schedule of properties expropriated showing information as per 31(6)(a) of the Deeds Registries Act, No. 47 of 1937; together with two SG diagrams (Expro Diagrams) of each property and a certified copy of the Expropriation Notice. This must be on a Municipal Letterhead.

• Appoint a Conveyancer to attend to the Expropriation Transfers.

There are four sub-steps in the Registration of Underlying Land and Township Establishment phase: