Registering Agricultural land - II

I agree with Mandi Hamman, in Registering agricultural land that a partnership is regarded as a separate entity from the individual partners, for the purposes of registration of land. However, in my opinion, nothing contained in the Deeds Registries Act, 1937 (Act No. 47 of 1937), as amended ("the DRA") or the Regulations made thereunder ("the Regulations") amends the substantive law on the vesting of ownership of the so-called partnership property. It is significant, for example, that a partnership has been omitted from the definition of person is section 102 of the Act, according to which definition "person", for the purpose of the registration of immovable property only, includes a trust. I submit with respect that, even the latter definition of "person", is not intended to be in conflict with the Trust Property Control Act, 1968 (Act No. 57 of 1968), as amended, ("the TPCA"), in terms of which, for example, that trust property is held by a trustee in his/her capacity as trustee, albeit not in shares - refer to sections 11 (1) (a) and 12 of the TPCA and Chief Registrar's Circular No. 9/2004.

The object of the Act and the Regulations is mainly to provide for, and regulate, the registration of deeds. Property, registered in the name of a partnership, is "held by the partners as co-owners, that is, the partners jointly own the partnership property in undivided shares" - refer to paragraph 294 of the 1997 First Issue of Volume 19 of The Law of South Africa and the decided cases referred to therein. Therefore, I fully support the practice, which considers a registration of transfer of agricultural land in the name of a partnership, without the required Ministerial consent, to be in contravention of section 3 (b) of the Subdivision of Agricultural Land Act, 1970 (Act. No. 70 of 1970), as amended, ("the SALA").

Further, I do not agree that, a spouse, married in community of property, formally takes transfer of his or her undivided share in a property, which forms an asset in the joint estate, in terms of section 45 of the DRA. Actually, section 45 (1) of the DRA provides for a transfer by endorsement of the share of a deceased spouse in the property to the surviving spouse, if the surviving spouse has acquired such share. "One of the ordinary consequences of a marriage in community of property is that the property of the spouses is brought together in a joint estate that is owned by them in equal undivided shares" - see Du Plessis v Pienaar NO and Others 2003 (1) SA 671 (SCA). Where immovable property is transferred to spouses married in community of property to each other, their ownership of such property in undivided shares takes effect upon registration of such transfer and not subsequently.

Further, I now refer to Mandi Hamman's question why a transfer of agricultural land, to two persons married in community of property to each other, without the aforementioned Ministerial consent, is not in contravention of section 3 (b) of the SALA. In terms of section 17 (5) (a) of the DRA, a transfer, cession or registration of property, in the name of a husband and wife, married in community of property to each other, is not deemed, in a case where agricultural land referred to in section 3 the SALA is concerned, to constitute an act to which a provision of the said section 3 is applicable.

Finally, I refer to Mandi Hamman's query why the registration of agricultural land, in the name of a club, a voluntary association or even a church, is not viewed as a contravention of section 3 (b) of the Act, although shareholders hold shares in the said club and voluntary association. I have no knowledge of such registration. However, I do not think that it would take place if it would result in ownership vesting in the members of such club, voluntary association or church.

Thabo Nqhome
06 April 2009

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