This article provides a brief discussion of the Communal Land Rights Act 11 of 2004 and of a few resolutions of the Registrars' Conference, 2004. The full record of the resolutions can be downloaded at the end of the article.
The Communal Land Rights Act
This Act will come into operation on a date to be determined by the President by proclamation in the Gazette. The regulations to the Act are in the process of being drafted, and the Act will therefore impact on the deeds office at some future date. As a Chief Registrar's Circular will be issued in due course, only a general discussion is provided here.
The Act is designed to obtain tenure security for the benefit of persons and communities that occupy or would occupy communal land in the areas to which the Act applies. Thus, communal land will vest in the name of a community and a 'communal land right' will vest in a person or persons. In order to accomplish its objectives, the Act makes provision for the endorsement of existing title deeds to vest ownership of communal land in a community and the registration of what is referred to in the Act as a 'deed of communal land right' to vest a communal land right in the name of a person or persons. As regards communal land rights, the Act makes provision for the opening of a communal land rights register. The communal land rights, subject to the approval of the community, may be converted into full ownership. A 'suitably qualified official of the Department of Land Affairs' may prepare the deeds that convey communal land rights.
It is worth mentioning that the Act will effect certain amendments to the Deeds Registries Act 47 of 1937, with one such amendment concerning the definition of 'Person'.
Finally, it is important to note that the main intention of discussing the Act is to make the reader aware of the presence of the Act.
Registrars' Conference, 2004
The Registrars' Conference was held from 17 to 18 November 2004. The 2004 conference resolutions are all straightforward. I will discuss a few of them to highlight certain practical aspects of the topics dealt with by such resolutions. I will first quote the relevant resolution in full and then discuss its practical aspects.
RCR 1 of 2004, RCR 8 of 1969: Expropriations/Rates certificates: (Bloemfontein and Legal Support)
In view of section 118 of the Local Government Municipal Systems Act 32 of 2000 as amended, it appears that the abovementioned resolution can be withdrawn. Expropriation transfers are no longer exempt from the lodgement of a clearance certificate.
In terms of section 118 of Act No. 32 of 2000 read in conjunction with section 20 of the Expropriation Act 63 of 1975, a clearance is required for the registration of an expropriation transfer. RCR 8 of 1969 is hereby withdrawn.
In order to discuss this resolution it is necessary to describe the circumstances that lead to it.
Certain parastatals have expropriated certain properties and attempted to register such properties in their name without lodging rates clearance certificates, relying on RCR 8/1969. Therefore, the Conference was requested to review RCR 8/1969.
It must be noted that RCR 8/1969 was handled prior to the Expropriation Act coming into operation and the Conference thus resolved that such a resolution cannot stand in the face of the clear and unambiguous provisions of section 118 of the Local Government: Municipal Systems Act 32 of 2000 and section 20 of the Expropriation Act 63 of 1975.
RCR 18 of 2004: Servitude over agricultural land (Justice College)
Where a servitude over agricultural land is not depicted on a diagram, but is described in general terms i.e. the route will be determined at a later stage, must the consent of the Minister, as contemplated in terms of section 6A of the Subdivision of Agricultural Land Act 70 of 1970 be insisted upon?
The consent must be insisted upon or proof must be provided that the provisions of the Subdivision of Agricultural Land Act are not being contravened.
It has transpired that in some deeds offices, the consent of the Minister of Agriculture is not insisted upon for the registration of a servitude in general terms over agricultural land. This is not sound practice and should, in view of this resolution, be discontinued. It is worth mentioning that the mere fact that a route for the relevant servitude is to be determined at a later stage is no justification for non-compliance with the provisions of Act 70 of 1970. It must be noted, however, that with the advent of wall-to-wall municipalities, it is easy to identify agricultural land.
In this regard, the Chief Registrar's Circular No. 6 of 2002 must be borne in mind. In other words, a letter from the Department of Agriculture confirming that the particular land is not agricultural land will also suffice, where a servitude is to be registered over agricultural land.
RCR 19 of 2004: Cancellation of personal or praedial servitude (Justice College)
Where a personal or praedial servitude is cancelled, either in terms of section 68(1), section 68(2), or section 75(3) of the Deeds Registries Act 47 of 1937, must the registrar of deeds insist on a transfer duty receipt or an exemption certificate?
Yes, a transfer duty receipt or an exemption certificate must be lodged.
A spurious argument that in cases of this nature, a minimal transfer duty of ten rand is usually payable and that this does not justify the trouble of obtaining a transfer duty receipt, has introduced the practice of not calling for the lodgement of a transfer duty receipt in some deeds offices. This practice constitutes a flagrant contravention of the provisions of the Transfer Duty Act 40 of 1949 and ought to be discontinued. It is not within the power of the deeds office to disregard the law for flimsy reasons of expediency.
RCR 21 of 2004: Divorce orders (Justice College)
Should the divorce court order be insisted upon, where an owner who was formerly married out of community of property, or whose marriage was governed by the laws of another country, and who is now in possession of the land, is described as divorced or unmarried?
Yes, a divorce court order must be lodged to determine whether the rights of third parties are affected and whether the terms of the divorce court order, where applicable, are adhered to.
Paragraph 184.108.40.206.1.3 of chapter 3 of the Deeds Registration Law Manual states as follows: "If the person was married out of community of property at the time the land was registered in his/her name, or if he/she was a bachelor/spinster at the time that the land was registered in his/her name and thereafter he/she married out of community of property and is still married out of community of property at the time of divorce, the registrar of deeds accepts that the land registered in his/her name is retained by him/her unless the contrary is proved."
Although the above paragraph is silent about a divorce order, one can legitimately draw the reasonable conclusion that it conveys the message that a divorce order does not need to be lodged. This resolution has been included in this discussion solely for information purposes.
Download the 2004 Registrar's Conference Resolutions