The Minister of Rural Development and Land Reform, Gugile Nkwinti, on Tuesday provided an update on several controversial land matters.
These include: the Regulation of Agricultural Land Holdings Bill; the electronic Deeds Amendment Bill; the Extension of Security of Tenure Amendment Bill; the Communal Land Tenure Bill; the Communal Property Association Amendment Bill; the Land Valuation Regulations under the Property Valuation Act of 2014; the appointment of the Chief Directorate Labour Tenants and Farm Dwellers; and the Common Property Associations Amendment Bill.
Read the Minister’s full statement below:
Regulation of Agricultural Land Holdings Bill
Currently, whenever the State expresses a land need to facilitate access to agricultural land in terms of section 25 (4) (a) of our South African Constitution, it is often reminded that it has a large property portfolio that it should start with.
The true extent of this portfolio and its development potential remains debatable. Land audits by the Department have not been able to reveal Who Owns and Uses the Agricultural Land of South Africa.
There is therefore a need for an accurate record of all public agricultural land, constant research and analysis on the development potential of the public property portfolio so that assets that are in danger of degradation and total destruction can be timeously identified for corrective action.
The aim of the Regulation of Agricultural Land Holdings Bill is to reverse the legacy of colonialism and apartheid; and, to ensure a “just and equitable” distribution of agricultural land to Africans.
The core intervention being introduced by the Bill is the creation of a Land Commission which shall serve as the primary structure to oversee the collection, maintenance and dissemination of all information regarding public agricultural land (agricultural land vested in the national and provincial governments, in a public entity, in a municipality and in a municipal entity), and private agricultural land (land owned by South Africans, and that is held by foreign persons).
Key instruments of the Land Commission shall include the following: a) a register of agricultural land holdings; b) disclosures in respect of the present ownership of private agricultural landholdings, including the race, gender and nationality of the owner, the use and size of the agricultural land holding and any real right registered against and licence allocated to the agricultural land holding; c) prohibition on the acquisition of agricultural land holding by a foreign person; d) lease of agricultural land holding by a foreign person; e) disposal of agricultural land holding by a foreign person; f) determination of categories of ceilings of agricultural land holdings for each district, by the Minister by notice in the Gazette, after consultation with the Commission and having regard to such criteria and factors as may be prescribed; g) redistribution of agricultural land which is all agricultural land holdings that fall between or exceeds any category of agricultural land holding, and; h) first right of refusal by the state in respect of redistribution agricultural land.
A five-year long process of extensive consultations on the policy and subsequent draft legislation commenced in 2012 with key stakeholders.
Extension of Security of Tenure Amendment Bill
Despite the existing legislation on evictions, land rights protection and land access programmes, a significant proportion of the population, including occupiers, still face insecure tenure and other forms of land rights violations including evictions from their homes.
The Extension of Security of Tenure Act, 1997 (Act No. 62 of 1997) (ESTA), in its current form has a number of limitations that make it easier for farm dwellers to be evicted by landowners. Firstly, the concept of ‘‘occupier’’ which is used in law is too broadly defined and interpreted. For instance, by categorising some farm dwellers as the main or primary occupiers while others (for example wives and children) are considered secondary occupiers, the law wrongly exposes large populations of vulnerable occupiers’ families to undue eviction processes. This vulnerability arises especially upon the death of ‘‘primary occupiers’’.
In addition, ESTA fails to provide clarity around the general concept of residence. Many farm dwellers have established home bases in commercial farming areas while working in other places of the country including in mines and urban areas. There is also no clear and adequate obligation on providing alternative accommodation for those that have been evicted.
It has furthermore been found that the existing institutional arrangements and capacities have also not been sufficient to address the quality and scale of land rights conflicts and tenure securities found in commercial farming areas.
In order to address this shortcoming the Land Rights Management Board (LRMB) shall be established as a stakeholder forum to institutionalise land rights management and land dispute resolution, in order to promote the effective realisation of land tenure security among all actors within freehold land tenure areas.
In order to assist the LRMB in the execution of its functions it is proposed that Land Rights Management Committees be established at the district level to strengthen participation in land reform and rural development processes. The LRMC’s will also explore and attempt to resolve local land rights conflicts.
Common Property Associations Amendment Bill
The Department has monitored the implementation of the Act since its enactment and has identified specific areas in respect of which it needs to be improved.
One such area relates ownership and disposal of community property by CPAs where there have been disputes between communities and their CPAs. The other area relates to the application of the Act and it has been deemed necessary to provide more detail in this regard. The administration of the Act has also proven to be challenging as far as the Department’s responsibilities are concerned. It was therefore decided to make provision for dedicated capacity in the form of a CPA Office, headed by a Registrar of CPAs.
Another area of concern is the apparent insufficient protection of the rights and interests of a community in respect of the movable and immovable property owned by communities.
The Bill is intended to strengthen such protection significantly. It further seeks to enable the formation of CPAs in respect of land awarded to labour tenants. The Bill is further intended to provide clarity on the content of the annual report required by the Act, while it is proposed to delete the provisions of the Act that make provision for provisional associations. Certain transitional arrangements also have to be put in place.
For these reasons, the Communal Property Associations Amendment Bill proposes certain amendments to the Act, to address the shortcomings mentioned and to improve the application and implementation of the Act.
The objects of the Bill are to a) clarify the objective of CPAs; b) establish the CPAs Office; c) empower the Minister to appoint the Registrar of CPAs; d) provide for the functions of such Registrar; e) provide further on the protection of rights and interests in respect of movable and immovable property administered by CPAs; f) provide for the formation of CPAs in respect of land restituted to labour tenants; and g) further regulate on the management of CPAs placed under administration.
e-Deeds Amendment Bill
Security of title in South Africa is not explicitly guaranteed by statute. It flows from the unique deeds registration system which is based on specific responsibilities assigned by the Deeds Registries Act, 1937 (Act No. 47 of 1937) to both the conveyancer (who prepares and lodges deeds and documents) and the Registrar of Deeds.
A computer system known as the Deeds Registration System is in place for the purpose of maintaining the electronic land register.
Apart from this electronic process, the preparation and lodgement by the conveyancer, as well as the processing of deeds and documents by the Registrar of Deeds, take place manually.
There has been an increased need for electronic service delivery and a number of new challenges are now facing the Deeds Registries, for example, the inability of the present registration infrastructure and resources to accommodate the increase in volume associated with an anticipated 20 million land parcels that will result from Government's land reform measures; the need to link with the electronic Cadastral Information System in order to improve efficiency and accuracy of South Africa's land information management; the demand for decentralisation of services in order to effect delivery at point of need; and the need to provide registration capability for other forms of land tenure that Government may introduce in future.
To meet the above-mentioned challenges, it is necessary for the implementation of e Commerce principles in order to facilitate an electronic deeds registration system (“e-DRS”).
The e-DRS will provide for, amongst other things, the registration of large volumes of deeds effectively; improved turn-around times for providing registered deeds and documents to clients; provide country wide access to deeds registration services; and enhanced accuracy of examination and registration.
The aim of the Bill is to provide for electronic deeds registration that conforms with legislation regulating electronic communication and transactions; and to provide for matters incidental thereto.
Property Valuation Regulations
The Minister of Rural Development and Land Reform has issued and invite in the Government Gazette to interested persons or bodies to provide written comments on the Regulations made in terms of the Property Valuation Act, 2014 (Act No. 17 of 2014), as set out in the Schedule hereto.
The closing date for comments on the Regulations is 30 calendar days from the date of publication of this notice in the Gazette.
These regulations shall be called the Property Valuation Regulations, 2016 and comes into operation on the date of publication in the Gazette.
The net effect of these Regulations is to finally do away with the willing seller willing buyer principle so that principles of section 25 (e) in the Constitution are applied.
