The dreaded Department of Agriculture letter for the opening of a township register

2021-06-25T10:32:05+00:00June 25th, 2021|Legal Matters|

By Gert Minnaar

One of the final hurdles a township developer in the Gauteng and North-West Provinces must negotiate before the stands in a township become registrable, is the opening of the township register at the Deeds Office in Pretoria in terms of Section 46 of the Deeds Registries Act, 1937 (No 47 of 1937).

GertMinaar(Illovo)

GertMinaar(Illovo)

At this stage of the township establishment process the land on which the township is laid out gets converted into a township, with stands and streets as represented on the General Plan for this township. These stands can then be disposed of in terms of the provisions of the proclamation notice which will afterwards be published in the Provincial Gazette, stating that this township is now an approved township.

The title deed for the land affected by this township establishment, the General Plan and small scale diagrams for the township and proof of compliance with the pre-proclamation conditions of establishment are the chief documents which must be submitted to the Deeds Office when a township register gets opened. However, on 7 May 2002 the Chief Registrar of Deeds announced an extra obligation requiring a letter issued by the Department of Agriculture declaring that the land on which the township is established, is not agricultural land, to be submitted to the Deeds Office too.

 The Department of Agriculture, Land Reform and Rural Development

The Department of Agriculture, Land Reform and Rural Development administers the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970) which controls the subdivision, and in connection therewith, the use of agricultural land. This Act was enacted to prevent the fragmentation of agricultural land into small uneconomic units.

The aim of the Directorate: Land Use and Soil Management in the Department of Agriculture, Land Reform and Rural Development is to promote, regulate and co-ordinate the sustainable use of natural resources (land and soil).

This department approached the Chief Registrar of Deeds way back in 2002 with concerns that certain subdivisions of agriculture land have been registered in the Deeds Office only on the basis of consents granted by municipalities, and without the permission of the Minister as required. The department was of the view that this non-compliance could have serious economic implications, especially when prime agricultural land is involved.

What is ‘agricultural land’?

The legislation

The definition of ‘agricultural land’ in Sections 1(a) to (f) in the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970) is set out in terms of exceptions. This means that ‘agricultural land’ is any land, except for the land which are specifically excluded from the operation of this Act.

Section 1(a) in the Act is quite straightforward, in the sense that it refers to all the land falling outside the boundaries of the municipalities. Section 1(b)(i) refers to agricultural holdings while Section 1(b)(ii) refers to a township as described in Section 102 of the Deeds Registries Act, 1937
(No 47 of 1937).

Section 1(c) in the Act refers to land of which the State is the owner or which is held in trust by the State or a Minister for any person. This is land registered in the name of a municipality, provincial government or the national government. In Section 1(d) in the Act reference is made to land which the Minister excluded by notice in the Government Gazette.

On 31 October 1995 Proclamation No R100 of 1995 added to these definitions by declaring that all land in the jurisdiction area of a transitional council, classified as agricultural land before the election of the members of such transitional council, will retain this classification as agricultural land. These elections took place on 1 November 1995 in most of the country, but were delayed to 29 May 1996 in the Western Cape and 26 June 1996 in KwaZulu-Natal due to boundary demarcation disputes.

 The courts

In Kotze en ‘n Ander v Minister van Landbou 2003 (1) SA 445 (T) Van der Westhuizen J held that Section 1 of the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970) must be interpreted to mean what it did at the time when it was promulgated. Thus, any land classified as agricultural land before the election of the first transitional councils retain that classification.

Kroon J in the Constitutional Court found in Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Others 2008 11 BCLR 1123 (CC) that the Kotze judgment correctly represented the law. The majority decision was that the land situated in the jurisdiction area of the transitional council which was classified as agricultural land before the election of the first transitional council would remain classified as agricultural land.

Chief Registrar’s Circular No 6 of 2002

In light of the concerns raised by the Directorate: Land Use and Soil Management in the Department of Agriculture, Land Reform and Rural Development, and the State Law Advisors’ opinions 553/2000 and 408/2001, the Chief Registrar of Deeds issued Chief Registrar’s Circular 6 of 2002 declaring that where the word ‘farm’ is included in the property description, such land must be regarded as agricultural land until proof to the contrary is furnished.

Paragraph 5.2 of Chief Registrar’s Circular 6 of 2002 indicates which documents have to be submitted to the Registrar of Deeds with the opening of township registers:

  1. The following documents must be lodged with all deeds in which subdivision of farm land is being given effect to:

 5.1 A consent by the Minister of Agriculture in terms of Act No. 70 of 1970; or

 5.2 A letter by the Department of Agriculture to the effect that the land in question is not agricultural land as defined in Act No. 70 of 1970 and a consent by the local authority in whose area of jurisdiction the land situated, as required by the relevant Provincial legislation, if any.

This directive compelled township applicants to approach the Directorate: Land Use and Soil Management of the Department of Agriculture, Land Reform and Rural Development with a request to issue a letter addressed to the Registrar of Deeds affirming that the land on which that township is established, is not agricultural land, as defined in the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970).

 The procedure to request a letter from the Directorate: Land Use and Soil Management

The township applicant must submit a formal application to the Directorate: Land Use and Soil Management of the Department of Agriculture, Land Reform and Rural Development with a request to confirm if the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970) is applicable in respect of the property on which the township was established.

The directorate follows an 8-phase process to issue this letter. The timeline for this process is impossible to predict and township applicants have learnt to submit this application right at the start of the township establishment process to avoid delays, disappointments and financial losses. The processing of this request or application does not always meet the practical and reasonable expectations of the township applicants, to put it mildly, and this causes unnecessary and unanticipated delays with the opening of township registers and the following development of housing opportunities.

The reasons why the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970) may not be applicable in respect of the township land

The Directorate: Land Use and Soil Management gives the following reasons in the letters to the Registrar of Deeds why the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970) may not be applicable to a property on which a township was established:

The above-mentioned property is an agricultural holding in terms of the Agricultural Holdings (Transvaal) Registration Act, 1919 (No 22 of 1919) and as such is not agricultural land in terms of the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970). Section 1(b)(i) of Act 70of 1970 exempts it from the provisions of this Act. Registrations of transactions on the above property will therefore no longer require a letter from this Department.

The above-mentioned property is situated within the municipal boundary of the Municipality prior to 1994 and the provisions of the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970) is therefore no longer applicable. Registrations of transactions on the above property will therefore no longer require a letter from this Department.

The above-mentioned property is not subject to the provisions of the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970) as it is registered in the name of the State. Section 1(c) of Act 70 of 1970 specifies that:

“1.          Definitions…

…agricultural land means any land, except-

land which the State is the owner of which is held in trust by the State or a Minister for any person.”

This means that these letters issued by the Directorate: Land Use and Soil Management in respect of these three categories merely confirm in writing what is already transparent from reading the definition of ‘agricultural land’ in Section 1 of the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970). What makes it perplexing is that this letter then states at the end that the registration of transactions on the affected property will therefore no longer require a letter from this Department.

Registrar’s Circular 2 0f 2019 and Registrar’s Circular 5 of 2019 issued by the Registrar of Deeds in Pretoria

These circulars in paragraph 2 thereof dismissed the requirement for a township applicant to obtain and submit a letter from the Department of Agriculture to the Registrar of Deeds if the township is established on an agricultural holding, or if any Act excludes compliance.  However, it still stated that a municipality as registered owner will also be subject to the requirements of the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970), despite the fact that a municipality is specifically excluded in terms of Section 1(c) of the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970) from the operation of this Act.

Conclusion

It is difficult to understand why the Registrar of Deeds still insists on the submission of a letter issued by the Directorate: Land Use and Soil Management, merely confirming the definitions in the Subdivision of Agriculture Land Act, 1970 (No 70 of 1970) with regard to the fact that State land and land situated within the municipal boundary of a municipality prior to 1994 are exempt from the provisions of this Act, before allowing the opening of a township register.

The information regarding the ownership of the land is, in the case of State land, confirmable by the Deeds Office from reference to its own records. There is thus not one coherent reason why a letter confirming that this letter is not required must be obtained from the Directorate: Land Use and Soil Management to open a township register on State land.The details of the land situated within the municipal boundary of a municipality prior to 1994 is available at the Directorate: Land Use and Soil Management. If this directorate makes this information available to the Registrar of Deeds it can be noted against the affected properties and the need for this letter will be eliminated too.

The abovementioned procedures will allow the Directorate: Land Use and Soil Management to focus on its aim to promote, regulate and co-ordinate the sustainable use of natural resources (land and soil). Most of all it will allow for one less hurdle to be negotiated by township developers with the opening of township registers and the delivery of housing.

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STBB offers a variety of legal services where our expertise and friendly approach allows us to deal with every legal matter in an effective and efficient manner ensuring a pleasant experience for our clients.

In the property sector we cover:

Property law: We offer benchmark services for both retail and development property transactions. We are reputed for our teams of seasoned property law practitioners who share an extensive set of skills to smoothly address every aspect of property law and land development transactions.

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For more information related to the information published, please contact Gert Minnaar at gertm@stbb.co.za or visit our website www.stbb.co.za to view contact information for your nearest

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