Presently, much confusion prevails as to the application of the provisions of section 3 and 6A of the Sub-Division of Agricultural Land Act 70 of 1970 ("the Act"), which reads as follows:
SECTION 3 - PROHIBITION OF CERTAIN SECTIONS REGARDING AGRICULTURAL LAND
Subject to the provisions of section 2 -
agricultural land shall not be subdivided;
no undivided share in agricultural land not already held by any person, shall vest in any person;
no part of any undivided share in agricultural land shall vest in any person, if such part is not already held by any person;
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;
(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 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 provisions of a mine as defined in section 1 of the Mines and Works Act, 1956;
no area of jurisdiction, local area, development area, peri-urban area or other area referred to in paragraph (a) or (b) of the definition of 'agricultural land' in section 1, shall be established on, or enlarged so as to include, any land which is agricultural land;
- no public notice to the effect that a scheme relating to agricultural land or any portion thereof has been prepared or submitted under the ordinance in question, shall be given, unless the Minister has consented in writing.
SECTION 6A - REGISTRATION OF SERVITUDES
(1) Subject to the provisions of the Water Act, 1956 (Act 54 of 1956), a servitude in respect of agricultural land, except -
(a) a right of way, aqueduct, pipe line or conducting of electricity with a width not exceeding 15 metres;
(aA) a servitude which is supplementary to a servitude referred to in paragraph (a), and which has a servitude area not exceeding 225 square metres which adjoins the area of the last-mentioned servitude;
(b) a usufruct over the whole of agricultural land in favour of one person or in favour of such person and his spouse or the survivor of them if they are married in community of property,
Shall not be registered by the Registrar of Deeds without the written consent of the Minister.
Although the Act has been repealed by the Subdivision of Agricultural Land Repeal Act 64 of 1998, the date of coming into operation of the latter Act has not as yet been proclaimed.
The aforesaid sections 3 and 6A or the Act require the consent from the Minister of Agriculture for inter alia the subdivision of agricultural land; the increase in shareholders or agricultural land and the registration of certain rights over agricultural land. "Agricultural land" is defined in section 1 of the Act and includes any land with the exception of "land situated in the area of jurisdiction … of certain local authorities". It is evident from this definition that only land falling outside the area of jurisdiction of the local authorities referred to in section 1 of the Act is regarded as agricultural land and the consent of the Minister will be necessary for the transactions previously alluded to in respect of such land.
Furthermore, the Local Government Transition Act 209 of 1993 changed the situation with regard to the area of jurisdiction of local authorities by extending their areas of jurisdiction. This resulted in agricultural land, which prior to the commencement of the 1993 Act fell outside the jurisdiction of a local authority, as referred to in section 1 of the Act, now falling within the area of jurisdiction of the "extended" local authorities.
The 1993 Act made the identification of agricultural land almost an impossibility for purposes of determining when the consent of the Minister will be necessary for the registration of certain transactions in respect of agricultural land.
Proclamation No R100 of 1995 promulgated in Government Gazette No 16785 of 31 October 1985 also amended the definition of agricultural land in section 1 of the Act by the addition of a provision to the definition of "agricultural land" to declare land situated in the extended area of jurisdiction, as provided for in the 1993 Act, or the said local authorities as agricultural land.
The said proclamation still did not shed much light on the question as to which land must be regarded as "agricultural land" for the purposes of applying the provisions of sections 3 and 6A of the Act.
This resulted in certain transactions being registered in deeds registries without the necessary consent or on the basis of a consent granted by local authorities, who did not have the authority to provide the necessary consent.
The Department of Agriculture also raised its concerns that the transactions registered without consents or with consent by local authorities have serious economic implications, especially when prime agricultural land is involved.
Practitioners and deeds office staff alike were uncertain of how to apply the provisions of the Act. The Chief Registrar of Deeds came to the rescue and laid down the following uniform practice:
In respect of farm land (i.e. land in which the property description refers to a farm) being subdivided, transferred in undivided shares, or certain real rights being registered over such land (with the exception of those referred to in section 6A of the Act), the following must be lodged with the registrar of deeds concerned:
- A consent by the Minister of Agriculture; or
- A letter from the Department of Agriculture to the effect that the farm land in question is not agricultural land as defined in section 1 of the Act (CRC 6 of 2002).
Where land is being subdivided and the Department of Agriculture has alleged that the land is not agricultural land, the relevant Provincial Ordinances will govern such subdivision.
A word of warning to practitioners who draft contracts for the sale of an unregistered portion of agricultural land is that no portion of agricultural land may be sold or advertised for sale without the Minister's consent (section 3(e)(i) of the Act). The effect hereof is that a contract for such a sale is void ab initio if the consent of the Minister is not obtained prior to the conclusion of the contract (see in this regard Geue and another v Van der Lith and another 2004 (3) SA 333(SCA) on page 38). The registrar of deeds will compare the date of the consent with the date of sale and reject the deed if the consent was obtained subsequent to the sale of the land.
Readers are advised to read Chief Registrars Circular 6 of 2002 for a full exposition of the above.
Republished with permission