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Adlem v Arlow

22 November 2012

Neutral citation: Adlem v Arlow (782/11) [2012] ZASCA (19 November 2012)
Coram: Cloete, Cachalia, Shongwe and Theron JJA and Erasmus AJA
Heard: 6 November 2012
Delivered: 19 November 2012

Summary

[1] This appeal concerns the correct interpretation of the Subdivision of Agricultural Land Act 70 of 1970, and in particular s 3(d) thereof. The commencement of the Subdivision of Agricultural Land Repeal Act 64 of 1998, that repeals the whole of Act 70 of 1970, has not yet been promulgated.

[6] The question for decision was formulated before the appeal was heard, as follows:
‘Whether on the assumption that (as alleged by the defendants) the written lease signed by the parties on 14 August 2008 (Annexure “B” to the particulars of claim) constituted a lease by the plaintiff to the defendants of the whole of the property owned by the plaintiff comprising Remaining Extent of Portion 16 (a portion of portion 3) and Remaining Extent of Portion 3, both of the farm Koppieskraal 73, registration division JP, North West Province, and held by the plaintiff in terms of title deed T24269 04, such lease was in contravention of s 3(d) of the Subdivision of Agricultural Land Act and therefore void in as much as the property was agricultural land, and only Remaining Extent of Portion 16 and Remaining Extent of Portion 3 were leased; the lease was for an initial period of nine years and 11 months and conferred a right on the defendants to renew the lease for two further successive periods of nine years and 11 months each; and the consent of the Minister of Agriculture to the conclusion of the lease, was not obtained.’

The essence of the question is therefore whether the Act rendered the lease void.

[8] Section 3 of the Act provides that (subject to the provisions of s 2, which are not applicable to the present appeal):

‘(a) agricultural land shall not be subdivided;

(b) no undivided share in agricultural land not already held by any person, shall vest in any person;

. . . (d) no lease in respect of a portion of agricultural land of which the period is 10 years or longer, or is the natural life of the lessee or any other person mentioned in the lease, or which is renewable from time to time at the will of the lessee, either by the continuation of the original lease or by entering into a new lease, indefinitely or for periods which together with the first period of the lease amount in all to not less than 10 years, shall be entered into;

(e) (i) no portion of agricultural land, whether surveyed or not, and whether there is any building thereon or not, shall be sold or advertised for sale, except for the purposes of a mine as defined in section 1 of the Mines and Works Act, 1956 (Act No 27 of 1956); and

(ii) no right to such portion shall be sold or granted for a period of more than 10 years or for the natural life of any person or to the same person for periods aggregating more than 10 years, or advertised for sale or with a view to any such granting, except for the purposes of a mine as defined in section 1 of the Mines and Works Act, 1956;

. . . unless the Minister has consented in writing.’

After surveying the purpose behind the Act as dealt with in a number of decisions, of which the broadening of the 'target zone' by the amendment of its terms in Tuckers Land and Development Corporation (Pty) Ltd v Truter 1984 (2) SA 150 (SWA) where the court held at 153G-H and 154B-C:

‘The basic object and purpose of the Act was obviously to prevent the subdivision of agricultural land into uneconomic portions. The long title of the Act, prior to its amendment by s 9 of Act 55 of 1972, was “To control the subdivision of agricultural land”, and this was changed by the amending section referred to, the long title after the amendment reading “To control the subdivision and, in connection therewith, the use of agricultural land”.

. . . Apart from prohibiting the subdivision of agricultural land without the written consent of the Minister, the Act inter alia also provides that no undivided share in agricultural land shall vest in any person without the Minister’s consent (s 3(b)) and that no lease in respect of a portion of agricultural land for a period of 10 years or longer, or for other long terms, shall be entered into without the Minister’s written consent (s 3(d)). The clear impression one gets from reading the Act as a whole is that the object and purpose thereof is to prevent subdivision of agricultural land into uneconomic units, and furthermore to prevent the use of uneconomic portions of agricultural land for any length of time’

(to which I would add) ‘and furthermore to prevent encroachment on the use of agricultural land so as to threaten its viability as such’.

[10] The respondent’s argument, upheld, as I understand the judgment, by the court a quo, is succinctly stated in the heads of argument as follows:
‘Section 3(d) relates to “a portion of agricultural land” being any portion whether such portion is a registered portion of agricultural land or an unregistered (a surveyed or non-surveyed) portion of agricultural land. It is submitted that the wording “a portion” should be interpreted widely and given its general dictionary meaning.’
The consequence of this argument is that a piece of land that has already been subdivided and registered in the Deeds Registry could not be sold or let in terms of a long lease without the consent of the Minister.

The submission by counsel was therefore that the statute is aimed at controlling the use of agricultural land as much as the subdivision thereof.

The court however did not agree with this interpretation, finding that [at 12] what is sought to be controlled is not both the subdivision and also the use of agricultural land, but the subdivision and, in connection therewith, the use of such land.

[13] The correct interpretation in my view is that advanced on behalf of the appellants, namely that the word ‘portion’ in s 3(d) and in s 3(e)(i) and (ii) means a piece of land that forms part of a property registered in the Deeds Registry; and, on the authorities I have quoted, the prohibition is aimed at preventing physical fragmentation of the property, and the use of part of the property under a long lease - as well as (I would add) the granting of a right for an extended period in respect of the property. In other words, the word ‘portion’ in inter alia s 3(d) must be interpreted as meaning a part of property (as opposed to the whole property) registered in the Deeds Registry, and not as having the meaning used in the Deeds Registry to describe the whole property.

Full judgment

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