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Whose Common is it anyway?

Written by  Melanie Coetzee
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Whose Common is it anyway?  Whose Common is it anyway?

Whose Common is it anyway?  

 We are often approached by members of the public wanting information on common open spaces in specific residential or commercial areas. Questions mostly relate to ownership, maintenance and safety and although we see these areas all around us in our cities, we are not often aware of the legislative rules and regulations attached thereto. More often we receive calls from prospective developers or land scouts with ambition to obtain title to the whole or certain parts of such common space, which of course poses the question: How do these pieces of land fall within the general land use and planning structure and is there any possibility of all such land being developed one way or another in the future?

By way of example specific mention will be made to the Rondebosch Common in Cape Town, as this is a relatively prominent piece of open municipal space attracting huge amounts of interest due to its location and proximity. 

 The Rondebosch Common was demarcated as lot 17 on the map of Church lands prepared by Surveyor HM Shaw in 1909 and which demarcation was entrenched in the Rondebosch Church lands Act No 27 of 1909 (“the Act”). The land was allocated to the Municipality of Rondebosch under Deed of Transfer 1912 for use by the minister of the Rondebosch St Paul’s Church, but subject to the conditions of the Act mentioned above.

The preamble of the Act provides specifically that this open space “shall at all times remain open to the public as a place of exercise and recreation.” The Act further made provision in s16 for the management and control function to vest with the Municipal Council of Rondebosch and Mowbray for the “purpose of public parks and recreation grounds for thoroughfares…” It will be seen from s14 of the Act that prohibition was placed on alienation in any manner or form, but that the Council had entitlement in terms of s18 to use any portion of the land made inalienable by the Act for increasing the width of or for extending any road shown on the General Plan related or adjacent to this municipal area. This Act was repealed and replaced by Ordinance 19 of 1967 but which ordinance secured the provisions of the Act under title.

On 29th September 1961 the Rondebosch Common was proclaimed a Natural and Historical Monument by the then Minster of Education, Arts and Science at the time, B J Vorster, on application by the Commission for the Preservation of Natural and Historical Monuments, Relics and Antiques. This means that not only is this land subject to the provisions of the Act mentioned above, but also to the provisions of the Natural and Historical Monuments Act 4 of 1934. This would obviate the degree of care with which the Council reached management and control decisions and would further protect the public’s rights to enjoy the free open space. 

 Bridget O’Donogue, the principle Environmental Planner at the City of Cape Town’s Plumstead Office, confirms that ownership in all such landnow vests with local municipalities and as such, the Rondebosch Common is zoned as a Provincial Heritage Open Space Site. This level of zoning dictates that application for subdivisions on such land, for either municipal purposes or development purposes, is dealt with and assessed by all departments within the City of Cape Town Municipality, including Heritage Western Cape. factors which are taken into account could include but are not limited to heritage and public value, traffic provisions, water and sewerage provisions. 

 Should the Municipality therefore wish to sell off sections or the whole of the Rondebosch Common, application would need to be tendered to all sections of Council for consideration. The normal transfer procedure would then apply and the Title Deed would be adjusted in respect of removal or insertion of restrictions and further conditions. The Property Management Department of the City of Cape would act representatively should land be sold off for public development or private use. 

 A concern that certain adjacent homeowners often raise is the one of possibility of future low-cost or government housing on such common open spaces. The Town Planning Department however confirms that these types of applications by government would be viewed through the same process as public applications, which means that the same principles would apply when assessing the validity or viability of such applications.

 With reference once again to the Rondebosch Common, it is important to note how previous applications for development were dealt with. In the early 1990s the Council’s Town Planning Branch in conjunction with Council’s Surveys and land Information Branch identified the Rondebosch Common as a “possible site for redevelopment”, with special reference to “low cost redevelopment”, and submitted their Memorandum to the following municipal departments for comment: - City Electrical Engineer, Traffic Manager, City Drainage and Sewerage Engineer, Director of Parks and forestry, City Water Engineer, Director of Building Survey and the Director of Metropolitan Transport Planning. All departments lodged their consent with only one department disagreeing with the suggestion. The Director of Parks and forests rightly pointed out in his reply letter dated 26 January 1995 that “it must be remembered that the Rondebosch Common is a National Monument” and as such the Director confirmed that his department will not consent to any “development of any nature… to be considered…” The Common therefore survived to live another day. Although this answer would not put all property owning neighbours at ease, it does at least reassure that some processes exist for any rezoning on these types of land and proves that these applications are not taken lightly. By the same token, The Heritage Department confirms that, should unlawful occupation occur on open heritage spaces, officials would deal with the eviction procedure under normal legislative provisions.

The Rondebosch Common has however for years been utilised by organisations such as The Rotary Club of Rondebosch and the Ratepayers Association of Rondebosch to stage fundraising and community projects. Should such an event be planned by an organisation, application should be brought to the Town Clerk of the Cape Town City Council who in turn will submit the proposal to all the divisions for approval. Such approvals are readily granted as it would further the object of the Common, as originally envisaged in 1909.

Members of the public cannot as readily obtain copies of title deeds to this land at the Deeds Office as one could for privately owned property, and it would take a considerable amount of investigation to locate the relevant title at the different Council divisions. One needs to apply through the Property Management Department for copies, should inspection or enquiry be necessary. 

 With regards to the practical management of the Common, it is of interest to know that the Rondebosch Common is maintained by the City Parks department of the municipality and the maintenance relates to grass cutting, refuse removal, tree felling and the general appearance of the site. For any member of the public concerned about the level or standard of upkeep relating to the Rondebosch Common, reference can be made to the list of maintenance regulations which was published in the Province of Cape of Good Hope Provincial Gazette dated 14 August 1919 and which makes specific mention of all Council’s maintenance obligations. Once again, the Property Management Department can be contacted should one require a copy of such list of obligations.

The overall impression which is created by the Planning and Heritage Departments is that these common sites are becoming increasingly valuable for Council, although the value might not always be determined in financial terms but rather more holistically. With big metropolis such as Cape Town and Johannesburg developing at a rapid rate, it is a comfort to believe that our children and their children might still have well-managed, accessible green patches in which to play, something we might have taken for granted in years gone by and well worth preserving.

Melanie Coetzee

Melanie Coetzee

Melanie is a practising attorney, conveyancer and notary based at the Cape Town branch of STBB. Melanie opened and managed the firm's Hout Bay branch before relocating to STBB's Cape Town branch where she currently practises as a conveyancer whilst offering expert advice on particularly non-resident related issues.