On 19 November 2024 the Constitutional Court declared Section 86 of the By-Law on Spatial Planning and Land Use Management 2016 (“the Spluma By-laws”) of the eMalahleni Local Municipality (“ELM”) invalid and unconstitutional.

The aforementioned Section 86 provided much needed automatic protection for prospective purchasers ensuring that the property they purchase is fully compliant with the applicable legislation. Purchasers have now lost this protection.

Prior to the Constitutional Court ruling, Section 86 of the Spluma By-Laws prohibited the transfer of a property into the name of a purchaser unless the ELM issued a certificate (commonly referred to as “the Spluma – certificate”) certifying that the property complies with all the relevant legislation, and municipal by-laws.

The Constitutional Court ruling did in no way affect the obligation of property owners to comply with the relevant legislation. Property owners must still comply with-

• the remainder of the provisions of the Spluma By-Laws; and
• the National Building Regulations And Building Standards Act, Act 103 of 1977
• (as amended) and the National Building Regulations; and
• the eMalahleni Land Use Management Scheme (“the LUMS”); and
• other relevant legislation, municipal bylaws, and conditions in terms of
• previous planning legislation; and
• the conditions contained in every property’s title deed.

The applicable legislation and by-laws give the ELM a wide range of enforcement powers which inter alia includes criminal prosecution of transgressors, the issuing of fines, obtaining of orders to demolish unauthorized structures, etc.

Purchasers need to ensure that the property they purchase complies with the applicable legislation. We therefore highly recommended that a clause is inserted into their agreements whereby –

1) the seller is obliged to deliver copies of the zoning certificate and the approved building plans to the purchaser;

2) the seller warrants that: -

• all improvements on the property are strictly done in accordance with approved building plans.
• none of the structures on their property transgresses the approved building lines of the property and;
• the use of their property is strictly accordance of the approved land use of the property.

If a property does not comply with the applicable legislation and by-laws, we recommend that:

• the purchaser insists that the agreement be made subject to a suspensive condition that all the necessary authorizations and approvals are obtained in order to make the property fully compliant to the applicable legislation before the transfer can be registered; or
• if the purchaser is fully aware that the property is not fully compliant, and still wish to continue with the transaction, a suitable indemnity clause in favour of the seller should be included in the agreement.

Should you need any assistance or advice in regard to any of the aforesaid issues, please do not hesitate to contact us.