A fair amount of confusion exists among town planners, conveyancers and deeds office examiners as to the requirement for the lodgement of a consent by Council for the registration of a certificate of consolidated title. Guidance was sought from both the officials from the City of Tshwane and the Deeds Registry, and the following practice was confirmed:
Consolidations approved in terms of SPLUMA
In terms of Registrars Circular 7 of 2016 a registrar of deeds will require a consent from the council, in terms of section 16 (12) (e) (ii) of the By-law, albeit that section 16 (12) (d) of the By-law provides inter alia that should Council fail to approve or refuse an application within a period of 60 days, it shall be deemed that the Municipality has approved the application.
Cognisance must, however, be taken that the By-law does not govern the consolidation of agricultural land and thus no consent will be required for the consolidation of farm land.
Consolidations approved in terms of Ordinance 15 of 1986
With the enactment of SPLUMA, the Ordinances were kept alive in terms of section 2 (2), but only in so far as it is consistent with SPLUMA. Thus, in terms of section 53 of SPLUMA, the necessary consent by Council must be obtained and lodged for the registration of a certificate of consolidated title, even though the Ordinance was applied for the consolidation of urban properties. The Ordinance, however, also contains a similar provision to that of section 16 (12) (d) relating to the deemed approval (see section 92 (2) (c) of the Ordinance). However, notwithstanding this deemed approval, a consent from Council will still be a necessity.
In conclusion, irrespective under what legislation a consolidation of urban property was approved, and irrespective of whether it was “deemed” to have been approved, the necessary consent from Council will be a prerequisite for the registration of such consolidation.
It is trusted that the above has now eradicated all confusion that previously existed among practitioners in respect of the “deemed” approvals.
Property Law Consultant
Tonkin Clacey Pretoria
Every municipality will potentially have its own peculiar set of bylaws dealing with the process of approval of consolidations. In the Cape Province, Ord 15/1985 did not require any approval of a consolidation, whether urban or rural land. Act 70/1970 also does not apply to "agricultural" consolidations.