In South Africa, we all have the right to own property. However, there are some restrictions on this right. For example, we might have to follow rules about how we can use our land, especially in cities, or when there are important infrastructure projects happening. These rules are there to make sure that everyone benefits.
In the words of Nelson Mandela, father of our nation: “For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.” Nelson Mandela, Along walk to freedom, 1994.
It's important to understand that no right is absolute, meaning there are limits even to our individual rights. This is because we need to balance our personal rights with the well-being of our community. While it's crucial to protect our individual rights to maintain our freedom, encourage diversity, and be fair, we can't use our rights in a way that might harm others.
Sometimes our individual rights can clash with what's good for society as a whole. To prevent this, we have laws to make sure we don't harm others or the greater good (society as a whole). For example, there are rules about how we can use our property to support community development or other infrastructure projects that benefit society.
The principle of balancing individual rights with social needs is vital for maintaining social order and harmony. Absolute rights could lead to chaos and anarchy, as people would be free to act solely in their self-interest, disregarding the needs and well-being of others.
In South Africa, the right to property is protected by the Constitution, but it is not an absolute right. Property rights are safe guarded by legislation that balances the rights of property owners with the broader interests of society.
In this article, we examine some of the legislation that limits property rights in South Africa, with a special focus on the Spatial Planning and Land Use Management Act, Act 16 of 2013 (SPLUMA). We hope to provide an objective understanding of this legal limitation on property rights, and the implications thereof, for property owners in South Africa regarding transferring their properties once a sale has been successfully concluded.
SPLUMA is a crucial piece of legislation in South Africa, aimed at promoting sustainable development, efficient land use, and spatial planning. It provides a framework for the coordination of land use management across the country, and, some would argue, more so in the province of Mpumalanga, than in other provinces throughout South Africa.
The Spatial Planning and Land Use Management by-laws in Mpumalanga play a crucial role in governing land development and use in the province. These laws establish guidelines for responsible land use that consider community needs, environmental impact, and necessary infrastructure. Observing these regulations, along with the Deeds Office rules, ensures that property transfers occur legally and transparently, protecting the rights of all involved parties. However, the current by-laws in Mpumalanga have shortcomings that often result in approval delays, transfer delays, and potential financial risk if a Spatial Planning and Land Use Management Act (SPLUMA) certificate is unreasonably rejected.
The main objective of the SPLUMA is to allow municipalities the authority to oversee land use within their areas of responsibility. This is to ensure that properties comply with designated zoning regulations and authorized construction plans. The main aim of a land use scheme is to stimulate economic growth, promote social inclusivity, encourage effective land development, and ensure minimal negative effects on public health, the environment, and natural resources.
In terms of Section 24(1) of SPLUMA, every municipality had to, after public consultation, adopt and approve a single land use scheme for its entire area by 1 July 2020. In Mbombela, Mpumalanga, for example, the City of Mbombela Land Use Management Scheme was adopted in 2019. According to the user guideline available on the City of Mbombela’s website, https://www.mbombela.gov.za, the purpose of the City of Mbombela Land Use Management Scheme is: “ to ensure that non-conforming land uses are prevented, and that development takes place in accordance with the land use management controls stipulated per land use zone in the zoning scheme regulations.”
Another of the outcome of SPLUMA, the newly adopted Land Use Management Schemes, and the amended by-laws in Mpumalanga, is that a certificate from the local authority must be granted before a property transfer is considered legally valid, confirming that the property adheres to the land use and development regulations, and complies with the municipality’s land use and development scheme, in whose area the property is situated.
To date, only the 17 municipalities in Mpumalanga have amended their by-laws as per the summary of all newly adopted SPLUMA by-laws on the Geospace website at http://gis6.mhpgeospace.co.za/spluma/bylaws/.
To ensure that the transfer process is aligned with the by-laws adopted by municipalities throughout Mpumalanga, the Deeds Registrar's office mandated on 4 March 2016 that a SPLUMA certificate must be obtained before any transfer can occur.
In the case of Govan Mbeki Local Municipality and Another v Glencore Operations South Africa, (Pty) Ltd and Others SA 106, the Supreme Court of Appeal on the 17th of June 2023made a radical ruling, by declaring the by-laws enforced under SPLUMA as invalid. These by-laws include provisions that allow local authorities to issue certificates of compliance with spatial planning regulations and require attorneys to obtain these certificates, before the transfer of a property can be registered. The requirement for these certificates has been causing delays in property transfers.
The Supreme Court of Appeal determined that the restriction on land transfers is not an essential power related to land use management, as there are already mechanisms in place for enforcing land-use regulations. The registration of property transfers is already regulated by the Deeds Registries Act and Section 118 of the Municipal Systems Act, Act 32 of 2000. Therefore, municipalities do not have the implied power to regulate the registrar's authority to register property transfers. The Supreme Court of Appeal concluded that these invalid by-laws go beyond the legislative competence of the municipalities and violate the principle of legality.
The appeal by the Govan Mbeki Local Municipality and Emahlahleni Local Municipality was dismissed with costs. While this judgement specifically applies to these two municipalities, similar applications may arise if other municipalities do not adhere to the ruling. The wording of the by-laws in other jurisdictions is very similar, and the same principle is at stake; if municipalities do not follow the SCA's decision, they may face legal action to compel compliance.
The High Court of South Africa Mpumalanga Division, in the case of Glencore & Others vs Steve Tshwete Local Municipality & Others, also declared a section of the Steve Tshwete Local Municipality's spatial planning and land use management by-laws as inconsistent with the Constitution and invalid. This section required applicants to provide various certificates for property transfers, conflicting with the Local Government: Municipal Systems Act. The Supreme Court of Appeal ruled to set aside the suspension of the High Court's decision, making it effective from June 17, 2022.
The attorneys for the Respondents appealed the SCA's judgement to the Constitutional Court, which suspended the Supreme Court of Appeal's judgement, as an application for leave to appeal has been filed.
As matters stand, only the Emalahleni Local Municipality and Govan Mbeki Local Municipality have noted applications for leave to appeal the Supreme Court of Appeal’s judgement. This means that SPLUMA certificates still need to be lodged, on transfer, for all Mpumalanga properties, except for properties falling under the jurisdiction of the Steve Tshwete Local Municipality.
In conclusion, the Spatial Planning and Land Use Management by-laws in Mpumalanga are instrumental in regulating the development and use of land in the province. These by-laws provide a framework for responsible land use and development, ensuring that it takes into account factors such as community needs, environmental impact, and infrastructure requirements. Compliance with these by-laws, along with the regulations of the Deeds Office, ensures that the transfer of property in Mpumalanga is done legally and transparently which protects the rights of all parties involved.
However, keeping in mind the inadequate by-laws currently in place in the Mpumalanga province, property owners and conveyancers often face negative consequences such as approval delays, delays in transfers, and possible financial risk should a SPLUMA certificate be unjustifiably rejected.
Written by Marike Ehlers
Moderated and approved by Clive Smith