Terence Corrigan, in his latest article for the Free Market Foundation, argues that the Constitution does not help the historically disadvantaged, including small business owners, to overcome obstacles to obtaining secure title to land. Permanent security of tenure to holders of informal land rights, including the right to hold, use and enjoy, sell, let, and mortgage the rights is vital if businesses are to expand. It should hardly be necessary, in the light of the worldâs experience, to present the case for permanent security of rights, and particularly land rights. Small business people need to acquire and enjoy secure title, he says. – Sandra Laurence
Land
Laws Affecting Small Business: Land was launched by analyst Terence Corrigan on 11 October 2022.
Synopsis
Problems
Many black South Africans have suffered dispossession of their land, denial of adequate access to land, inadequate tribal or apartheid forms of title to accessible land, and restrictions on their use of accessible land. These historical disadvantages have severely handicapped small business development, small-scale agriculture, and the provision of housing. Various other factors, including unrealistically high building, surveying, and registration standards, continue to impede rapid land reform and economic growth.
The gradualist approaches thus far adopted to address the huge need for land and housing have hardly made a dent in the problem. The longing for property and shelter cries out for a swifter and more purposeful approach. Many of the measures recommended in this report involve the simple suspension or abolition of obstructive laws and regulations. They can be implemented at the stroke of a pen and will have a dramatic and virtually immediate effect.
Recommendations
PROPERTY AND RIGHTS IN LAND
Amend the Constitution to prevent future legislation from placing obstacles in the way of obtaining secure title.
Grant security of tenure to holders of informal land rights.
Give people the right to deal with or dispose of their land without undue restriction.
Withdraw the 2019 State Land Leasing Policy.
Ensure free transferability of tribal land rights subject to possibly confining transfer to members of the tribe.
Respect tenant/owner agreements relating to land.
SUPERFLUOUS GOVERNMENT LAND
Transfer superfluous government land to the homeless free of charge.
DEMOCRATISED ADMINISTRATION AND DISPOSAL OF TRIBAL LAND
Empower tribal chiefs to dispose of land into secure and tradeable forms of title.
CHALLENGE OF SECURE TITLE
Allocate new land by a simple form of registration.
Suspend the Land Survey Act for conversions to ownership and transfers to existing occupiers.
Make the Deeds Office registration requirement optional.
Suspend the requirement to use a conveyancer for routine property transactions.
Convert all apartheid title to full ownership.
CHALLENGE OF FINANCING
Repeal credit law ceilings on interest rates.
SUBDIVISION OF AGRICULTURAL LAND
Repeal the Subdivision of Agricultural Land Act.
REMOVAL OF RESTRICTIONS ON LAND USE
Scrap prescriptive land-use controls.
Simplify requirements for the establishment of formal settlements.
Create Special Housing Zones exempt from building codes, interest-rate ceilings, and costly formalities for mortgage or non-mortgage finance.
Reduce minimum housing standards to realistic levels.
Amend land-use schemes and municipal by-laws, replacing zoning laws with nuisance and neighbourhood law.
HOUSING CONSUMERS PROTECTION MEASURES ACT, 1998
Repeal the Housing Consumers Protection Measures Act.
REMOVAL OF TRANSFER DUTIES
Abolish duties and taxes on transfer or supply of land.
EXPROPRIATION
Withdraw the Bill to amend the Constitution that would authorise expropriation of land without compensation and state custodianship of land.
Considerations
Relaxed standards and formalities will probably result in slightly increased uncertainty. There is a trade-off between reduced costs, speed of delivery and more land reform, on the one hand, and administrative imperfections, objections from vested interests, and less orderly development on the other.
The question is whether net benefits exceed net disadvantages.
PROPERTY AND RIGHTS IN LAND
RECOMMENDATION 1
Amend the property clause in the Constitution to include a requirement to prevent future legislation from placing any unjustifiable obstacle in the way of a personâs obtaining secure title to state land which he or she holds under inferior statutory tenure.
The Constitutionâs Bill of Rights, and the property clause it contains, protects those who already hold secure property rights from being deprived of those rights. It charges the state to foster conditions that will enable citizens to gain access to land. It recognises that those with legally insecure land tenure are entitled to legally secure tenure or to comparable redress.
What the Constitution does not do is help the historically disadvantaged, including small business owners, to overcome obstacles to obtaining secure title. Governmentâs commitment to help is needed, and it is important to avoid creating further obstacles in future. Amending the Constitution would be desirable to extend the property clause to include a requirement to prevent future legislation from placing any unjustifiable obstacle in the way of a personâs obtaining secure title to state land which he or she occupies under apartheid tenure.
RECOMMENDATION 2
Grant permanent security of tenure to holders of informal land rights, including the right to hold, use and enjoy, sell, let, and mortgage the rights.
It should hardly be necessary, in the light of the worldâs experience, to present the case for permanent security of rights, and particularly land rights. Small business people need to acquire and enjoy secure title. That is, they need the right to hold, use and enjoy, sell, let, and mortgage land and rights in land. Secure land rights promote optimal land use, provide access to finance, and encourage investment. People who feel secure are more likely to look after what they hold, to optimise its short-term use, to enhance its long-term value, and to seek the ideal balance between long-term and short-term use. They will be less inclined, for instance, to cause long-term damage such as soil erosion for short-term gain if this will be detrimental to their ultimate interests, or those of their heirs.
At present, the Interim Protection of Informal Land Rights Act, 1996 provides temporary protection for the use or occupation by a person of an urban or rural erf as if he or she is the holder of a âblackâ tenure right in respect of that erf such as a so-called âdeed of grant rightâ, leasehold, quitrent or âpermission to occupyâ, despite not being formally recorded as the holder in a land-rights register.
The Act also provides temporary protection for the use or occupation of land under a right of occupation granted by indigenous tribal custom.
And it provides similar protection for the continuous occupation of land by a person for at least five years before the end of 1997 as if he were the owner, without force and openly, but without the registered ownerâs permission.
To cure the legal insecurity attaching to all these informal forms of tenure, the Act stipulates that no person may be deprived of any such informal right to land without his or her consent (subject to the expropriation laws).
This 1996 Act states that it would lapse at the end of 1997, but that the Minister of Land Reform may in the Gazette provide notice from time to time extend the Actâs operation for up to 12 months at a time. The Minister has extended its operation by a year 24 times to date.
This impermanent situation should be rectified as soon as possible by the substitution of the Act with a permanent measure, so that all land rights which black South Africans hold now or will acquire in future are secured unambiguously and include the power to hold, use and enjoy, sell, let, and mortgage the rights.
Considerations (regarding recommendation 1 and 2)
Greater security of tenure will meet with resistance from some traditional leaders, politicians and officials who do not want to relinquish the power they exercise over disadvantaged people in historically black areas.
RECOMMENDATION 3
Give people the right to deal with or dispose of their land without undue restriction.
Whites in general have been, and remain, free to dispose of their land as they wish, whether by sale freely contracted between a âwilling buyer, willing sellerâ, inheritance, or donation. Under apartheid, with rare exceptions, blacks had no such freedom, either in âblackâ area homelands or in âwhiteâ area townships.
RECOMMENDATION 4
Withdraw the 2019 State Land Leasing Policy
In recent years, redistributive programmes have not included the transfer of ownership of the land to the purported beneficiaries of the programmes. As preceding policies did, the 2019 State Land Lease and Disposal Policy envisages land under state control being leased to users at a fee.
The policy creates tenants who farm according to the dictates of officials. Small-scale farmers are excluded from acquiring ownership.
Small farming businesses need access to capital. If they own the land, they would be able to mortgage it as security for a loan to finance a harvest. If they merely rent the land, they will have no access to loans, because they will have no property to put up as security for a loan. This is probably the main reason for the current high failure rate among new small-scale black farmers.
Considerations (regarding recommendation 3 and 4)
The right to sell is often curtailed where land is acquired with state assistance. The reason is the fear that people will sell the land and squander the cash. The evidence to date does not support this fear.
In any case, it is patronising to restrict peopleâs right to dispose of their own land. It also reveals an unwarranted lack of confidence in the common sense of ordinary people. Government policy in an emancipated society should assume that individuals are capable of looking after themselves â that they are ârational profit-maximisersâ.
RECOMMENDATION 5
Ensure free transferability of tribal land rights, confined to the members of the tribe if that is the tribeâs preference.
Tribal land rights appear to be more complex. But whatever the rights are, including familial rights, there seems to be no good reason why they should not be freely transferable, though confined to members of the tribe if that is the tribeâs preference.
In July 2017, the Minister of Land Reform gazetted for public comment a draft Communal Land Tenure Bill. The Bill contemplates the transfer of state land to traditional communities who have shared rules which determine access to land held in common.
In terms of the Bill, the Minister would have a survey general plan of the land framed outlining, among other things, subdivided portions of communal land designated for industrial and commercial purposes. The Bill stipulates that it must be a condition of registration that portion designated for industrial and commercial purposes cannot be disposed of to a person who is not a member of the community without first giving the ownerâs family, other community members or the state, the first option to acquire the land.
This is a useful proposal and should be adopted, except for giving the state an option.
Considerations (regarding recommendation 5)
The same resistance from a few reactionary chiefs mentioned in respect of security of tenure might arise.
RECOMMENDATION 6
Base arrangements such as labour tenancy solely on agreements between owner and tenant.
An effective way for low-income earners, most of whom are black, to gain access to land is through lease agreements such as labour tenancy.
People who cannot afford to buy, or who prefer not to do so, should have the option to rent. Even if they have no money, the law should permit them to gain access to land by offering their services in exchange. The Land Reform (Labour Tenants) Act, 1996 entitles persons who were labour tenants on 2 June 1995 to occupy and use land owned by farmers. Concern that this could be amended to cover persons who were labour tenants on dates later than 2 June 1995 continues to discourage farmers from taking on or keeping labour tenants. Instead, the law should uphold whatever agreement a farmer and tenant choose to make.
Holders of rights should be able to use them as they see fit, not confined to personal use or outright sale.
Considerations (regarding recommendation 6)
The Land Reform (Labour Tenants) Act, 1996 was intended to grant benefits to labour tenants by providing them with greater security of tenure and the opportunity to purchase land, and ensuring that they could not be summarily evicted. Although existing labour tenants may have secured benefits under the Act, landowners are discouraged from allowing workers to occupy houses or keep their own cattle on the farm whilst the Act remains in place in case it is extended to labour tenants on later dates. Because of the failure to adopt a dynamic labour tenancy policy, many disadvantaged people will remain or become landless.
SUPERFLUOUS GOVERNMENT LAND
Government owns vast tracts of South Africaâs land, which is controlled by the departments of Public Works and Infrastructure; Agriculture, and Reform and Rural Development; Defence; Human Settlements, Water and Sanitation; and Transport, and by provincial and local governments. Much of this land is superfluous to government requirements and readily disposable.
RECOMMENDATION 7
Transfer superfluous government land to the homeless free of charge.
Some of this superfluous state land could be used dramatically and immediately to empower every homeless and landless household with a free plot of land. A âone-household-one-plotâ approach could proceed without financing or housing construction. Land could be transferred into full and immediate ownership under secure and unambiguous title that can be freely sold, mortgaged, or let.
Currently, land is made available only after infrastructure or basic housing can be provided. So most landless people are destined to stay that way indefinitely. A national site-without-service approach would establish people with undeveloped, securely-held land which they can develop. Site-without-service is a proven approach, as it has always been the basis of traditional land allocation.
A short-term benefit of this approach would be an end to land invasions and sprawling, uncontrolled squatter settlements. Large numbers of plots could be provided at very low cost. The approach can dovetail easily with existing housing subsidies, and there would be no need to wait for housing subsidies to be processed.
There are more than 25 million hectares of state land, including âunaccounted forâ (unregistered) state land. Of South Africaâs 17,100,000 households with an average household size of four, it may be that up to one-third or 5,700,000 are homeless or landless and can be provided with land.
This estimate may be too high, as many of the nominally homeless are tenants or traditional-community residents, or occupy accommodation supplied by employers. But even on this estimate, the state could supply land easily to all landless South Africans using just eight per cent of its land. Probably one-third of these 5,700,000 households (i.e., 1,900,000) would prefer rural land. They could receive one rural hectare each (i.e., 1,900,000 hectares), while the remaining 3,800,000 households might receive urban plots of 200 square metres each (76,000 hectares). This would all require less than two million hectares (i.e., 1,976,000 hectares). The government could thus provide all homeless households with unencumbered title to land and still retain at least 23 million hectares.
Alternatively, the 1,900,000 rural households who would prefer rural land could be given two hectares each (i.e., 3,800,000 hectares), with one million hectares going to the 3,800,000 urban households (i.e., 4,800,000 hectares in all). This would still leave the state with over 20 million hectares â over 16 percent of South Africaâs total land area (121,924,881 hectares).
All South Africans would then at least have a place of their own, and be able to build a house, even if the initial structures were very rudimentary. This is better than nothing and would launch a dynamic and dramatic process of empowerment and housing improvement.
What is envisaged is not a repeat of homeland âdumping groundsâ far from employment opportunities or of poor farming potential. State land is of great variety, and common sense should be used to allocate appropriate land to meet the needs of each target homeless population.
Considerations (regarding recommendation 7)
Even though most government land is idle, and the economy is currently denied any benefit from it, there is a reluctance on the part of governments to part with government land.
On purely economic grounds and without regard to historical realities and the need for redress, it might be considered more âefficientâ to sell superfluous government land to the highest bidder. There is, however, good economic evidence that if the land is distributed as suggested, the distribution will result in efficient outcomes, provided that initial recipients are not prevented from dealing freely with the land. In addition, it could be argued that the symbolic benefit of a massive land redistribution from the state to the historically disadvantaged would be so enormous as to far outweigh any concerns about economic optimality.
DEMOCRATISED ADMINISTRATION AND DISPOSAL OF COMMUNAL LAND
Communal land issues include whether there should be compliance with existing âwhiteâ land survey and registration formalities, what the attitude of the traditional leaders might be, and whether financial institutions will lend against privately owned community land.
RECOMMENDATION 8
Enable traditional leaders to allocate or dispose of land as they or their people choose, with the proceeds going into the community trust account.
There is a widespread belief that most traditional leaders are reactionary and will resist the introduction of land ownership and mortgage. This view is mistaken, as most traditional leaders wish to promote development in their areas. Communities also want the income they can derive from selling or leasing land. However, there is no need to settle that debate in advance. Traditional leaders should simply be given the right to allocate or dispose of land however they or their people choose. The proceeds could go into the community bank account.
Where businesspeople hold land from the past, but without title because of apartheid laws, some traditional leaders might prefer not to confirm title. But those leaders already lack effective control of land which is already gone. It would be an abuse of their power to deny again to apartheid victims the full title which apartheid denied to them.
Land reform in traditional community areas is hampered by misconceptions, created by mainly white commentators over many years, about traditional tenure. Much more land was held under secure title, and traded, than is commonly believed, though this varied from community to community. Upgraded title can exist within a traditional system without undermining it in any way. Far from undermining the traditional leadersâ powers, these rights would be enhanced in the shorter term by enabling them to upgrade existing plots and allotments and sell and let land into full ownership or long registered lease.
Democratic methods such as community referenda should be widely used and encouraged to establish whether all non-residential land in traditional community areas should remain âcommunally heldâ or whether and how some or all of it should be converted to ownership. Communities might be empowered to sell or let farms, or to convert pasturage grazing rights into cooperative farms.
The draft Communal Land Tenure Bill that was gazetted for public comment in July 2017 should fully accommodate these proposals and be enacted as soon as possible.
Considerations (regarding recommendation 8)
There is a danger that some reactionary traditional leaders who believe that they will lose power by granting security of tenure will resist reform. Fortunately, traditional land is held under a considerable degree of security and land removals are almost unknown. The assumption that traditional leaders can remove land from their subjects with impunity tends to be more of a legal fiction than a practical reality.
CHALLENGE OF SECURE TITLE
The challenge is to transfer government land into private hands with secure title, and to convert inadequate private or communal title to secure title, without costly and unnecessary survey and deeds registration.
The legal requirements of land survey and deeds registration have impeded rapid large-scale provision of cheap land and housing. Systems of registration and survey historically used for âwhiteâ land have been far too costly and slow, for too little gain, to use in the short term, if our aim is to facilitate the swift creation of secure title.
RECOMMENDATION 9
Allocate new land under a simple low-cost form of registration, defining land boundaries by description.
Frequently, survey and transfer costs exceed the value of the land in rural areas. If there were a market (and some informal markets do exist), an undeveloped plot in a rural area might be worth around R1,700. A cadastral survey of this plot could cost the landowner (the state) anything from R2,480 to R40,520 in land surveyorâs fees, depending on whether the number of plots surveyed was 100, say, or just one, and assuming the size of plots surveyed to be one hectare or less.
The surveyorâs office would prepare a diagram of the surveyed areaâs outer boundary and a general plan showing all the plots if more than one was surveyed. The land surveyor would sign the diagram and plan and submit them to the Surveyor-General for approval.
Before transferring ownership of any plot to a farmer, the state would have to obtain from the Registrar of Deeds a certificate of the stateâs agricultural-settlement title to the whole area shown on the diagram, and lodge the general plan with the Registrar to enable him to open a register in which transactions affecting each plot shown on the plan will be registered.
Conveyancerâs fees for obtaining registration of a deed of grant or transfer by the state of ownership to a farmer of such a newly subdivided plot in the Deeds Office would approximate R5,400. (The same applies to town lots: residential, industrial, commercial.)
(Conveyancers in the State Attorneyâs office might not charge the fees to the state for such grants or transfers but, because conveyancing fees are usually paid by the transferee, fees might be levied and passed on to the farmers or other small-business transferees to pay.)
Thus, existing lesser forms of tenure (âapartheidâ titles) should be upgraded to full ownership under simpler forms of registration and demarcation. New land should be defined and allocated under a simpler form of registration, like vehicle ownership registration, with land boundaries defined inexpensively by description.
People who oppose the suspension of cadastral survey and Deeds Office registration requirements argue that banks need title to be secured by survey and registration before granting mortgages. In fact, the banks need to comply with the law. The law currently requires that they lend only against title secured in this way, but the law can and should be changed.
Land survey is not necessary.
RECOMMENDATION 10
Suspend the Land Survey Act wherever it applies to conversion to ownership and transfer to existing occupiers.
âWhiteâ boundaries to portions of land in South Africa are defined by costly land survey. In the 1960s South Africa adopted an even more accurate, and therefore even more costly and inappropriate, system of cadastral land surveying, potentially the most accurate in the world.
The Deeds Registries Act requires a Surveyor-General (SG) diagram to be attached to a deed of grant or transfer or that the plot or lot concerned be represented on an SG general plan. The Land Survey Act requires an SG diagram or general plan to be prepared in a land surveyorâs office after the land surveyor has surveyed the land, and to comply with cadastral standards for a detailed survey showing extent and position. (An SG diagram or general planâs unique positional (X, Y) coordinates relate to the countryâs network of trigonometrical beacons and hence to planetary latitude and longitude.)
But there can be secure title with boundaries defined by means other than surveys. Title in older countries such as the United States and the United Kingdom commonly exists without survey. Deeds of transfer existed in Holland since the 12th century containing descriptions but no diagrams. In the past, our courts have also said that a survey diagram is not absolutely necessary to transfer land. In the Transvaal, title deeds of farms were issued to burghers with a written description of the boundaries and without a survey. Our judges have said that the boundaries of a piece of land can be fixed monuments or natural objects. There is no magic in a diagram. Clear boundary descriptions in title deeds take precedence over a diagram.
The Land Survey Act states that if a surveyor surveys land for which a title deed has been issued without a diagram, he must ensure that neighbouring landowners agree to the boundaries that he is adopting in the survey. In other words, the factual position accepted by the neighbours is more important than the survey.
The Act also says that an arbitrator deciding a boundary dispute where a diagram exists must be guided by the principle that the original boundary markers (beacons) of a piece of land define the true boundaries even if they do not correspond to the diagram.
It would therefore not violate legal principles and tradition in this country to once again permit ownership to be acquired before a survey.
Nevertheless, as stated above, the law presently requires a survey, done to the highest standards, before transfer of ownership. This imposes huge costs and delays. It has been estimated that all existing South African land surveyors would need ten to 15 years to survey only existing unsurveyed properties (there may be as many as five million of these). Black South Africans cannot wait this long to acquire secure title to their properties, especially when the cause of the delay, the survey of existing boundaries, is of negligible legal value. Furthermore, a cadastral standard survey of every such property could cost a few billion rand and such money is clearly not available. For converting existing black plots and allotments to freehold and transferring them to lawful occupiers, therefore, the Act should be suspended. Survey would then be optional for owners and mortgagees, and conversion and transfer could proceed immediately.
(The flood of ownership disputes two decades ago could not be blamed on a lack of surveyed, registered title deeds. The disputes arose because a number of farmers sold land unlawfully to blacks more than once in the same landâs history without transferring, and later acknowledging, real ownership. The proposals in this document will not result in such disputes.)
To mass-produce new properties, where survey is appropriate, the government might choose to adopt less accurate forms of survey than cadastral land survey.
Whether or not banks will give mortgages is no reason to withhold security of title from the victims of apartheid. If blacks get unencumbered land, without diagrams, there is no fear that they would be unable to use it as security for borrowing. Where the property is of high value, it would be within the interest and means of the owner or potential purchaser to have it surveyed by choice. If, say, an expensive casino or shopping centre is to be built in a rural area, it would be up to the developer concerned to have the property accurately surveyed and registered.
The Land Survey Act regulations provide some small flexibility, by stating that it is not necessary prior to the Surveyor-Generalâs approval of a township general plan for the surveyor to place internal beacons on the plan showing erf boundaries, provided the Surveyor-General informs the Registrar of Deeds which erven are not beaconed, and those erven may not be transferred in ownership until their beacons have been placed. This exception to the general rule should be made much broader.
Considerations (regarding recommendations 9 and 10)
There is a danger, though it has been somewhat exaggerated, of an increased number of boundary disputes if the procedures relating to land survey are changed. It must be borne in mind, however, that this recommendation does not suggest that existing boundary definitions should be degraded. It merely suggests that high-standard and costly land surveys should not be a precondition for the granting of more secure ownership rights to the millions of people whose rights are currently insecure.
The interests of the people who presently suffer as a consequence of insecure title should take precedence over vested-interest arguments against the introduction of a more rapid and less costly means of identifying properties and their boundaries.
Deed registration is not necessary.
Conveyancing is the branch of law dealing with the transfer of ownership of property, after the document (conveyance) which transfers legal title. It is in the interest of conveyancers and deeds registrars that upgraded apartheid titles should have to be registered in the existing deeds registry system or some slightly amended form of it. Although this faith in deeds registries is without practical substance, nearly 30 years into post-apartheid South Africa it still denies black South Africans the enjoyment of immediate, secure land title.
RECOMMENDATION 11
Make the Deeds Office registration requirement optional.
Formal registration under the existing deeds registry system should not be allowed to delay upgrading titles and normalising the position for millions of South African blacks. It is not possible without huge delay and cost to bring all upgradeable titles into the deeds registry system.
Deed registration does not guarantee title in law. It is evidence at first glance in favour of ownership, but registered title is subject to fraud and error or to servitudes that arise from long-term usage.
RECOMMENDATION 12
Suspend the requirement to use a conveyancer for routine property transactions involving simple transfer of ownership or the registration or cancellation of a mortgage bond.
There is no reason why title of land should not be established in the same way that other forms of title are. There is also no reason why there should be only one form of registration of title in a country. For land that is already surveyed and registered, the existing âwhiteâ system can be maintained, and co-exist with a parallel system or systems. Transfers and mortgages should take place in much the same way as vehicles and shares are transferred or pledged, or as land registers already operate in most areas of the world.
All forms of indigenous âland titleâ have worked well for centuries without being registered in a deeds office. Traditional communal law provides mechanisms to allot and later transfer land. Title disputes are extremely rare and, when they arise, they are usually readily resolved by courts or communities. Land title in black areas is recorded in various ways, from formal sealed contracts to a handshake or even tacit non-verbal agreement like a mere nod to secure a binding legal contract of sale. A voetstoots sale was secured, for instance, by the action, before witnesses, of placing the object being sold on the ground and pushing it by foot across to the buyer. Such visual memories in the minds of witnesses and community elders are a proven centuries-old method of recording title. Title might be secured similarly by ceremonially breaking off a branch to hand it to the new holder, imprinting this visual record indelibly on peopleâs minds. By the time they die, title is so adequately secured as to need no further evidence of this kind.
The great historical episodes of prosperity in the first world occurred when there was no land registration. In some of the worldâs richest countries, land registration is not compulsory to this day, and some of the most valuable properties in Europeâs greatest cities are unregistered.
In the United States, title may be secured, if the owner chooses, by insurance rather than registration. Insurance costs are lower and delays briefer than those incurred by our existing registry system.
All existing unregistered titles could become the lawful property of the existing lawful holder âat the stroke of a (statutory) penâ. Where registration already exists, it can be used and upgraded.
Land reform must not be held up by requiring conveyancers to process all acquired land at huge cost. Almost everything that conveyancers do has become an anachronism. No routine property transactions involving simple transfer of ownership or registration or cancellation of a mortgage bond should require a conveyancer; costly property (for example, jewellery, boats, cars, and machinery) is transferred daily throughout the country without them. Conveyancers should be consulted only where unusual transactions take place â for example, where a servitude, usufruct, subdivision, or consolidation is concerned.
Registration in a deeds office is costly and cumbersome. It is not needed to establish adequate legal ownership of land, just as it is not needed to establish vehicle or machinery ownership (where the value often far exceeds that of plots of land). Local and international history shows that land titles and land boundaries will be secure under most methods of tribal land allocation and demarcation. The costs and delays of Deeds Office registration should not be allowed to impede the immediate upgrading of title, in tribal areas and elsewhere.
Considerations (regarding recommendations 11 and 12)
The conveyancing and deeds registry communities are likely to resist these proposals, which argue that increased security should be extended to historically disadvantaged people without having to wait for the âRolls Royce modelâ of property registration. Government will have to choose whose interests should have precedence.
It is simply impossible to survey or register all the land presently held by black South Africans, and land which will be acquired by them, for many years. We really have no choice. Either we permit ownership under systems other than those that exist at present, or the deprived majority of South Africans will continue to be deprived for many decades.
If these proposals are implemented, there would continue to be two systems of land ownership and land registration. This recommendation proposes that the second and less costly system be used to record ownership as well as historical forms of tenure.
RECOMMENDATION 13
Convert all forms of apartheid title (such as permissions to occupy) and all forms of lease to freehold title and ownership by the existing lawful occupant, after suitable local advertising of property-holder lists where these exist.
It should prove simple to convert all existing tenancies (formerly residential permits) in established townships such as Soweto to secure title automatically by operation of law. Initial local advertising of lists of tenants will reveal if there are competing claimants. The tenancies should thereafter be summarily converted to ownership without depending on prior deeds registration.
It should also prove simple to convert all informal titles to rural parcels of land held under some form of individual or non-âcommunalâ arrangement, whether residential or non-residential, into secure title automatically by operation of law, bypassing the costly and cumbersome âperfect systemâ of both cadastral survey and deeds office registration.
All this summarily converted urban land and non-âcommunalâ rural land held under some form of individual title should automatically become the property of the existing lawful holder. Legal provisions for rectification of title can handle any boundary problems which may emerge later.
Considerations (regarding recommendation 13)
Existing records in many parts of the country are notoriously inaccurate or derelict. Predictably there will be disputes regarding the rightful beneficiaries. In traditional areas, the rights of relatives will be problematic. Additional complaints may come from people who purchased neighbouring properties at great personal cost and who may feel that they have been treated unfairly.
Government has the unenviable choice of being accused of non-delivery, on the one hand, or of dealing with myriad problems relating to rapid property-rights recognition, on the other. Clearly the potential benefits far outweigh the risks.
CHALLENGE OF FINANCING
RECOMMENDATION 14
Repeal credit-law ceilings on effective interest rates to enable banks to lend against low-value property to those perceived as high-risk borrowers.
Banks would be more willing to lend, against the security of low-value property such as small plots of land, to those perceived as high-risk borrowers if there were no credit law to limit interest rates and related charges. Moreover, they would not necessarily need to raise interest rates if they were allowed to adjust their administration fees to compensate for risk and transaction size.
Housing finance comes mainly from government subsidies and private financial institutions. Credit laws and other laws relating to financing prevent poor people, who are perceived as high-risk borrowers without either security or a credit record, from borrowing lawfully for housing. Even when they have title that can be mortgaged, formal-sector lenders usually will not provide finance because the permissible return is too low and the perceived risk too high.
The National Credit Act does not apply to mortgage loans to partnerships or companies. And it allows higher interest rates for unsecured loans and loans to develop a small business, but these are maximum rates. The Actâs lower interest rates apply to mortgage loans to individuals. A possible solution to this problem would be to establish Special Housing Zones which would be exempted from interest-rate ceilings and costly formalities for mortgage or non-mortgage finance. Low-income people in these areas would then be able to obtain housing finance formally and lawfully. Though the bonds would be at higher interest rates than those available to lower-risk borrowers, they would nevertheless be at more favourable rates and have less-onerous repayment terms than those offered by âloan sharksâ and other informal and underground lenders to whom the poor must currently go.
A further issue needs to be addressed, and that is the likelihood of payment. Even if banks are satisfied that Deeds Office registration is not needed for security, and they are allowed to charge higher interest rates to high-risk borrowers, they will still reject applications for bonds unless they are reasonably certain that they will be repaid. Lenders need the likelihood of payment even more than security, and it is admittedly not clear whether rural borrowers will pay dependably. As soon as legal barriers are removed, banks can move into historically closed areas and this market issue can be addressed. As with the traditional leaders, this may not pose a serious problem for progressive and innovative banking. One possible solution may be for a loan applicantâs stokvel to pledge collective security for repayment.
As far as government financing of land and housing is concerned, it is important not to repeat the error of soft loans to farmers through the Land Bank or some equivalent. Anyone who doubts the unsuitability and counter-productivity of soft loans should read Symond Fiskeâs excellent book Damage by Debt (FMF Books, 1995) in which he explains why debt subsidies waste capital and hurt the people who use them.
If the government has some millions of rands to help aspirant land holders, it can maximise the benefit of the money, not by lending it to a few borrowers at unjustifiably low rates, but by using it to underwrite numerous loans at market rates of interest. For example, it could enter into a contract with commercial bankers to underwrite, say, a fifth of their loans to historically disadvantaged people.
Considerations (regarding recommendation 14)
Unsophisticated people may possibly over-extend themselves but this problem has to be seen in the context of overall policies during the transition. Government has tough choices: it can strive for a perfect risk-free world for its citizens, or it can have a dynamic prosperous economy. Unfortunately, it cannot have both.
SUBDIVISION OF AGRICULTURAL LAND
RECOMMENDATION 15
Repeal the Subdivision of Agricultural Land Act.
To make land available in affordable chunks, and to more people, and to promote small-scale farming, restrictions on the subdivision of agricultural land should be scrapped.
The main reason for the Subdivision of Agricultural Land Act was to prevent farmers from subdividing their land among their male descendants to the point where the units could not be viably farmed. The obvious fallacy in this argument is that if a piece of land is too small to be viable, it will be sold or let to the user of a bigger unit. The self-interest of ordinary people is sufficient to ensure that this will happen, so no law is necessary.
For historically disadvantaged people, a large supply of land in small and affordable units is urgently needed. The repeal of the Subdivision of Agricultural Land Act would be a practical and cost-free way of making vast quantities of land rapidly accessible.
Labour tenants (bywoners) have been forced into their present situation by the prohibition of subdivision. If subdivision is permitted, existing landowners will be able to endow their tenant farmers with land by mutual agreement. It is the law that victimises labour tenants, not the farmers.
As long as the Act remains on the statute book, the state will continue to decide what sizes of farms are âviableâ. The proper place for that decision is the marketplace, and there is no need for concern that subdivision will go too far. Owners will be better off letting their land to tenant farmers who farm bigger units (this is common in any case) or selling it to small-scale farmers who can farm viably. Commercial properties already âmoveâ from those who use them uneconomically to those who use them more profitably, and land will also âmoveâ into the hands of optimal users and into optimal sizes. Bureaucratic intervention is unnecessary; indeed, officials are less likely to make correct decisions than those whose livelihoods and assets are at risk.
The Subdivision of Agricultural Land Act Repeal Act of 1998 will repeal the Subdivision of Agricultural Land Act with effect from a date to be fixed by the President. This Repeal Act has, however, never been put into operation. The President is urged to proclaim the repeal as soon as possible. The proposed replacement of the Subdivision of Agricultural Land Act, the Preservation and Development of Agricultural Land Bill, which is in many ways worse than the Act, should similarly be withdrawn.
Considerations (regarding recommendation 15)
We now know that under unregulated conditions the number of farmers tends to diminish and the size of farms to increase as portions are purchased and consolidated by successful farmers.
Subdivision of agricultural land will obviously facilitate acquisition of land by black farmers and as subdivision will not be economically harmful the government should expedite the repeal of the Act.
REMOVAL OF RESTRICTIONS ON LAND USE
Until the 1960s, as in many other countries, it took about four months from start to finish to develop new land into âtownshipsâ. The conditions of establishment were seldom onerous; often the only requirement was for graded roads. Residents provided their own boreholes, septic tanks, and other infrastructure.
Thereafter, township development procedures became ever more cumbersome and costly, and today only wealthy developers can afford them. Under township development laws, the provincial government, through municipal planning tribunals, requires costly infrastructure including long-life tarred roads, storm-water drains, water-borne sewerage, water, and electricity. Formal approval from countless government departments and organisations can take a few years.
If laws for establishing âformalâ settlements reverted to the 1960s versions, this would lead, as it did then, to empowerment of lower-income developers and an explosion of property development and rapid delivery of affordable land and housing to large numbers of people.
RECOMMENDATION 16
Scrap prescriptive land-use controls.
The right to hold and the right to use tend to be confused. It is possible to render the right to hold property meaningless by curtailing the right to use or enjoy it. If an inner-city office block were rezoned as a wilderness area, for example, the ownersâ or tenantsâ rights would be rendered valueless. In extreme cases, the courts in some countries have considered the curtailment of the right to use and enjoy to be tantamount to confiscation or expropriation. Normally, however, the curtailment of use rights is less obviously confiscatory and holders suffer losses without compensation or the right to due process. As a matter of principle, therefore, land policy should regard any new restriction on usage as a usurpation of property rights for which there should be just compensation.
In practical terms, land rights should include the reasonable right of use and enjoyment. Many existing restrictions, especially conditions of title and zoning, are excessively restrictive and should be reviewed critically.
Considerations (regarding recommendation 16)
This recommendation is controversial because of South Africaâs tenacious planning mentality, which is a legacy of our authoritarian past. It is very difficult for most South Africans to imagine a voluntary spontaneous order. Their immediate assumption is that the absence of coercive central planning will lead to chaos or anarchy. Experience around the world proves that this is not so, but often perceptions are more important than realities. There will accordingly be considerable resistance from vested planning interests in the private and government sectors to increased land use freedom.
These fears are not entirely unfounded. It is true that a controlled society is often more orderly. But it is also more stifling, and inhibits the cultivation of a national enterprise culture. If this recommendation is implemented, there will be undesirable neighbourhood effects, but again, the question is whether benefits outweigh advantages, and whether alternative methods of nuisance control would be more effective.
RECOMMENDATION 17
Drop most approval requirements for the establishment of formal settlements and make costly infrastructure (roads, drains, electricity, etc.) optional.
Formalities and compliance costs when developing property for residential purposes are huge obstacles to housing delivery, as is the need for approval of building plans for housing. The urgent plight of the homeless cries out for a radical interim solution.
RECOMMENDATION 18
Establish new Special Housing Zones in low-income areas, in which township-development laws and building-standard laws are suspended. Exempt these zones from building codes, interest-rate ceilings, and costly formalities for mortgage or non-mortgage finance.
A low-income housing option would be to suspend or relax housing, township development, and building-standard laws within new Special Housing Zones. There, homeless people would settle on land in which they have security and mortgageable wealth and where they can build immediately, confident that their buildings will not be condemned. This would rapidly improve the present plight of squatter settlements and obviate the need for land invasions. Special Housing Zones should be located with regard to neighbourhood effects and other externalities. In due course, social and physical infrastructure and housing subsidies would lead to further improvements.
Housing of a low standard is preferable to no housing, and lawful housing is better than unlawful housing. To address the urgent needs of the homeless, with or without Special Housing Zones, low-cost housing needs a blanket exemption from expensive legal requirements.
RECOMMENDATION 19
Reduce minimum housing standards to realistic levels.
South Africaâs housing backlog cannot be alleviated for decades at current rates of delivery or within the existing policy framework. Housing delivery is far below RDP targets. Adjusted housing policy might accelerate housing provision. Housing standards should be drastically reduced, then raised by increments later if necessary. Only after most people are housed does it make sense to impose high minimum standards.
For example, fuses and innovative earthing systems could be permitted in place of circuit breakers and earth leakage protection. The latter provide a desirable safety net to cover other electrical shortcomings, accidents and abuse, but are hardly used elsewhere in Africa.
RECOMMENDATION 20
Amend land-use schemes and municipal bylaws, and replace zoning laws with nuisance and neighbourhood law (common law). Enable the courts, especially small claims courts, to enforce these and to issue interdicts.
Zoning laws should be relaxed or replaced with âneighbourhood lawâ. Instead of trying to dictate to people how they should use their property, the state should let the market decide, while protecting the rights of neighbours against land uses that cause a nuisance. Nuisance and neighbourhood law is common law that has evolved over the centuries as a perfectly adequate method of protecting people against socially harmful land use.
What is lacking is not law, but access to redress. The courts should be able to enforce neighbourhood law, and the small claims courts should be able to issue interdicts. This would require an amendment to land-use schemes and zoning laws, as well as extension of the powers of the small claims courts.
Around the world the poor typically live on the most valuable inner-city land and drive the rich out to the periphery of cities. They out-compete the rich by living either in apartment blocks or in high-density housing developments. In South Africa, Group Areas Act zoning created an anomalous situation, in which the poor lived in peripheral âtownshipsâ while the rich lived in suburbs close to city centres such as Houghton in Johannesburg.
Zoning laws place a density restriction on land use; their effect is to make valuable land available at artificially low prices to high-income people. The laws and practices should be liberalised to allow market-driven land use and development. This will densify land use close to the CBD, making more land available for industrial and commercial purposes and (in optimal localities) for lower-income people and emerging entrepreneurs. These suggested reforms should apply to all existing zoning laws, and not just to the Spatial Planning and Land Use Management Act, 2013 and other zoning laws enacted after 1994.
Considerations (regarding recommendations 17 to 20)
As with all reforms, there will predictably be enormous resistance from those who benefit from the status quo. They will raise all the stale arguments about âregressiveâ reforms âlowering standardsâ. But the economic consequence of pandering to the elite is an inefficient use of land and other resources. Inefficiencies are pervasive, and the economic, environmental, and human impact is hard to quantify. The fact that most people still live far from places of employment and from commercial and entertainment centres not only increases travelling costs, but also unduly burdens infrastructure. An enormous amount of potentially productive time is wasted and millions of rands have been invested in transport and other facilities which otherwise would not be necessary.
In many lower- and, to a lesser extent, middle-income areas, there are either no zoning provisions or the law is ignored. Areas in which strict zoning cannot be enforced in practice should be formally exempted so that the law coincides with reality and common sense.
Land use should be neighbourhood-focused and governmentâs concern should shift from grand town-planning schemes to what communities want for themselves. In particular, zoning laws that are hostile to business should be amended to promote an enterprise culture and international competitiveness. Presently, the law restricts the use of land for business purposes, rather than preventing the disturbance of neighbours by the manner in which the land is used.
If someone makes furniture for themselves in their garage, it is lawful under zoning laws. However, if the same person makes the same furniture, but for sale, it would be unlawful. There is clearly no logic in this position.
Relaxed zoning laws are not problem-free. Yet methods can be found of allowing people to make optimum use of their land without being a nuisance to their neighbours.
HOUSING CONSUMERS PROTECTION MEASURES ACT, 1998
RECOMMENDATION 21
Repeal the Housing Consumers Protection Measures Act.
Current laws impose entry barriers into the building industry and minimum standards for building materials and labour, thus raising costs and curtailing the supply of low-cost housing. The Housing Consumers Protection Measures Act, 1998 imposes further costs and entry barriers. It also creates an unnecessary, undesirable, and harmful bureaucracy.
The Act established the National Home Builders Registration Council (NHBRC) to regulate the home building industry.
The Act prohibits a person from carrying on business as a home builder or from receiving consideration under an agreement with a housing consumer for the sale or construction of a home, unless that person is registered as a home builder with the NHBRC. The Act also prohibits mortgage lenders from lending money to home buyers to enable them to buy a newly built home from a builder, unless the lender is satisfied that the builder is registered with the NHBRC and that the home is or will be âenrolledâ with the NHBRC and the builder has paid or will pay the prescribed home-enrolment fee. This means that mortgage finance is not available at all for homes built by builders not registered with the NHBRC, or for homes that will not be enrolled, or if home-enrolment fees are not paid.
Some of the criticisms of the NHBRC from members of the building industry are:
The NHBRC is more concerned with collecting builder-registration fees and annual registration-renewal fees, and home-enrolment fees, than with inspecting homes constructed by home builders. The prescribed registration-application fee plus initial registration fee payable currently add up to R1,350, and the current annual registration-renewal fee payable is R600.
The home-enrolment fee payable is currently 1.3% of a homeâs selling price up to R500,000, i.e., R6,500 for a home priced at R500,000. (At higher selling prices, the fee increases at successively lower percentages per price increment).
Enrolment fees are reduced or increased depending on the âgradingâ of builder (calculated by reference to the number of legitimate consumer claims against him in the previous year, the number of his home enrolments which were late in the previous three years, the recorded number of his failures to comply with national building regulations the previous year, and the build quality of houses he built the previous year).
Land values and municipal infrastructure are included in the selling price upon which the home-enrolment fee is calculated, although the Actâs indemnity applies only to the building.
If a home builder fails to meet his obligations to rectify major structural defects caused by noncompliance with prescribed technical requirements occurring in the home within five years from the occupation date (or to repair roof leaks occurring within 12 months from the occupation date), the NHBRC will expend an amount to rectify the defect, up to (whichever is less) the homeâs selling price or (currently) R500,000 (which may include professional fees incurred by the NHBRC in investigating a cost-effective method of rectification) or a much smaller amount in the case of a subsidised provincial housing-development project.
Much better and more flexible warranty schemes would probably be offered by the countryâs highly competitive insurance companies.
Homes are subject to inspection by local authorities and mortgage lenders as well. A third inspection agency in the form of the NHBRC is unlikely to detect additional examples of defective workmanship that escaped the notice of these agencies.
The Housing Consumers Protection Measures Act does not improve building quality. There are and always will be building failures, because of inherent, irreducible risk.
The Act states that all contracts for building homes must be in writing, with plans, specifications, price and payment terms. This section is presumably intended to protect home-buyers, but has the consequence of disempowering illiterate and monolingual builders. The Act deems home-building agreements to include a warranty that the home builder shall rectify, at his cost, any major structural defect in the home occurring during a period set out in the building agreement, which must not be less than five years from the occupation date, and caused by failure to comply with the prescribed technical requirements. It is fair to say that these ambitious attempts to obtain perfection in home-building are, in practice, passed on by builders to purchasers in the form of higher prices.
Inspectors are employed, presumably to cover the whole country including the loneliest rural areas. A small builder in a village, who is unaware of the existence of the NHBRC, and builds a house which falls within its ambit, is guilty of an offence and liable to a fine or imprisonment. If the government wishes to promote small business, it cannot adopt Acts that have these implications. Honest, hard-working people should not have to worry constantly that they may be committing an offence that carries a harsh penalty.
Withholding information is an offence, and courts are given interdict powers to stop a construction project. Penalties of R25,000 or one year of imprisonment are set for not registering as a home builder or not enrolling homes, for lending money to a housing consumer against security of a mortgage bond over a home to enable the consumer to purchase the home from a non-registered builder or to purchase a ânon-enrolledâ home, or for attending as conveyancer to registration of such a mortgage bond where the builder is not registered or the home not enrolled, or for withholding information from an inspector, as if house-building were like some heinous crime, to be prevented at all costs.
The Act should be repealed. There is no justification for the registration of builders, let alone the âenrolmentâ of houses. The Act is calculated to ensure that less housing is built, not more.
Despite all this, in May 2021 a Housing Consumer Protection Bill was introduced in Parliament that would replace the Act and bring in even more stringent enforcement measures. This bill ought to be withdrawn.
REMOVAL OF TRANSFER DUTIES
RECOMMENDATION 22
Abolish duties and taxes on transfer or supply of land.
In a country where land redistribution is a priority, it is anomalous that the state intervenes to make it difficult and costly. Land transactions should not be a source of general revenue, so transfer duties or value-added taxes attached to land transactions should be scrapped.
Transfer duty is levied at rates based on the value of the property transferred. Duty is currently payable at the rate of 3% of that portion of the value of the property which exceeds R1,000,000, 6% of the portion of the value which exceeds R1,375 million, and so on with duty being payable at higher rates for higher thresholds of value.) Transfer duty is payable by the transferee.
Value-added tax (VAT) is levied on the supply by a vendor of fixed property (or other âgoodsâ, or services) in the course or furtherance of an enterprise carried on by the vendor, at a rate based on the value of the supply, commonly the consideration paid. VAT is currently levied at the rate of 15% of the value of the supply. The price charged by the vendor is deemed to include VAT.
A property acquisition is exempt from transfer duty where the transferor certifies to the tax authorities that the transferee paid VAT which has been or will be accounted for by the transferor to the authorities. Transfer duties originated in the medieval notion that the land belongs to the Lord of the Manor. Value-added taxes are a 20th century development.
In the modern world there should be no such transfer or supply cost, and duties and taxes on land transfer and supply should be abolished forthwith. The state should stop prohibiting and inhibiting voluntary land redistribution, and facilitate it instead.
Considerations (regarding recommendation 22)
The obvious consequence of this recommendation would be a loss of revenue to government. This will be offset by the economic benefits of removing a restriction on market-driven land redistribution, as well as the benefit of removing an obstacle in the path of landless people.
EXPROPRIATION
RECOMMENDATION 23
Withdraw the intended amending of the Constitution that would authorise expropriation of land without compensation and state custodianship of land.
In February 2018, the National Assembly passed a motion to have the Constitutionâs property clause amended in order to intensify involuntary land redistribution though the introduction of expropriation of land without payment of compensation to the owners. This proposal was revised in 2021 to additionally empower government to declare âcertain landâ under state custodianship â effectively nationalisation.
In December 2019, the parliamentary ad hoc committee concerned gazetted an invitation to comment on a draft constitutional amendment to alter the property clause in the Bill of Rights to provide that, where land is expropriated for land-reform purposes, a court may determine that the amount of compensation is ânilâ, and that national legislation must set out specific circumstances where a court may do so.
In October 2020, the Minister of Public Works introduced in the National Assembly an Expropriation Bill that would replace the 1975 Expropriation Act, extend the purpose for expropriation to include the public interest, and specify circumstances when it may be just and equitable to pay ânilâ compensation when expropriating land in the public interest.
In September 2021, the parliamentary ad hoc committee concerned introduced in the National Assembly a Constitution Eighteenth Amendment Bill to alter the property clause in the Bill of Rights to provide that, where land is expropriated for land-reform purposes, the amount of compensation may be nil, and that national legislation must set out specific circumstances where the amount of compensation is nil. These two measures together expressly authorise expropriation without compensation.
Apart from any other criticisms which might be levelled against such measures, it seems unlikely that expropriation of land without compensation will benefit any small-scale farmers who might be allocated a portion of the land concerned.
Even if the expropriated farms are transferred in ownership to new prospective farmers, thus enabling them to mortgage the land as security for necessary loan funding to finance farming operations, the prospect of any farmland being expropriated without compensation materially increases the risks associated with agriculture and would be a major disincentive for banks who lend to farmers.
Commercial agriculture cannot operate without access to funding sources, for capital expenditure and operational expenditure. The prospect of borrowersâ farms being seized would deter banks from continued lending to the agricultural sector large or small.
The Banking Association of South Africa warned in 2017 that if expropriation of land without compensation were to be implemented, it was highly likely that banks would no longer finance the sector.
Considerations (regarding recommendation 23)
Some may think that a policy of expropriation without compensation and state custodianship is necessary for the land distribution policy because payment of compensation is consuming scarce state funds.
However, the Motlanthe High Level Panel on the assessment of key legislation and fundamental change reported in 2017 that the land-reform budget was at an all-time low of less than 0.4% of the national budget, with less than 0.1% set aside for land redistribution.
The Panel reported that having to pay compensation was not the most serious constraint on land reform. Other constraints, including increasing evidence of corruption by officials, the diversion of the land reform budget to elites, lack of political will, and lack of training and capacity, have proved more serious stumbling blocks to land reform.
The Panel was of the view that government has not used powers it already has to expropriate land for land reform purposes effectively. Rather than recommend that the Constitution be changed, the Panel recommended that government should use the provisions in the Constitution that allow compensation to be below market value in particular circumstances, particularly in relation to unutilised or underutilised land.
SELECT SOURCES
Constitution (including proposed amendments)
Constitution of Republic, 1996â
Chap 2 (Bill of Rights) s 25 (property)â
(2) (property may be expropriated only i.t.o. law of general applicationâ
(a) (for a public purpose or in the public interest; and
(b) (for compensation, in amount agreed by those affected or approved by court);
(3) (compensation amount must be just, and equitably balance public interest and interests of those affected, having regard to all circumstances includingâ
(a) (the propertyâs current use,
(b) (the history of the propertyâs acquisition and use,
(c) (the propertyâs market value,
(e) (the expropriationâs purpose),
(4)(a) (public interest includes national commitment to land reform);
(5) (State must take reasonable legislative and other measures, within its available resources, to foster conditions enabling citizens to gain access to land equitably),
(6) (person or community whose tenure is legally insecure as result of past racially-discriminatory laws is entitled, to extent provided by Act of Parliament, to legally secure tenure or comparable redress),
(7) (person or community dispossessed of property after June 1913 as result of past racially-discriminatory laws is entitled, to extent provided by Act of Parliament, to restitution of the property or equitable redress),
(8) (this section may not impede the State from taking legislative and other measures to achieve land reform to redress results of past racial discrimination);
Chap 4 (Parliament) s 76(3) (ordinary Bills affecting provinces),
Chap 12 (traditional leaders) s 211 (recognition)â
ss (1) (role of traditional leadership according to customary law is recognised),
ss (2) (traditional authority that observes system of customary law may function subject to any applicable legislation and customs),
ss (3) (the courts must apply customary law when applicable, subject to Constitution and any legislation specifically dealing with customary law);
Sched 4 (areas of concurrent national and provincial legislative competenceâ
(Pt Aâhousing, trade, traditional leadership, urban and rural development,
(Pt B (local government mattersâbuilding regs, municipal planning, trading regs);
Sched 5 (areas of exclusive provincial legislative competence)â
(Pt Aâprovincial planning;
(Pt B (local government mattersâcontrol of undertakings selling food to public);Gen N 652 of 2019 (Gazette 42902 of 13 Dec), Parliament: ad hoc committee on amendment of Bill of Rights s 25 (property): draft Constitution Eighteenth Amendment Bill;
Constitution Eighteenth Amendment Bill 18 of 2021 (as introduced in the National Assembly) (to amend Bill of Rights s 25 (property)
Statutes, Bills, draft Bills and explanatory summaries thereof, and regulations
Geomatics Profession Act 19 of 2013 s 13(2)(b)(i) read with section 8(1)(b)(iii)(bb) (persons whose names are not entered in register for professional land surveyors may not practise in or perform any survey for purposes of preparing a diagram or general plan to be filed or registered in terms of any law governing registration of any land or rights in land);
Upgrading of Land Tenure Rights Act 112 of 1991 (as amended in 1992, 1993, 1995, 1996, 1998, 2007 and 2011); Land Reform: Provision of Land and Assistance Act 126 of 1993 (designation of State land for small-scale farming, residential, public, community, business or similar purposes; subdivision thereof into pieces; and settlement and transfer of ownership of pieces);
Interim Protection of Informal Land Rights 31 of 1996â
Long title (temporary protection of certain rights to and interests in land which are not otherwise adequately protected by law);
s 2 (deprivation of use of, occupation of, or access to land i.t.o. tribal, customary or indigenous law or practice);
s 3 (sales and other dispositions are subject to such informal rights);
s 5(2) (Act lapses on 31 Dec 1997, but Minister may by Gazette notice extend its application for 12 months at a time);
Govt Notice 1008 of 25 Jul 1997 et al to Govt Notice 1323 of 11 Dec 2020 inclusive (extensions of application of Act for successive periods of 12 months);
Deeds Registries Act 47 of 1937â
s 1A (discontinuance of homeland deeds registries, and transfer of their functions to deeds registries) inserted by Proc R9 of 1997 i.t.o. 1993 Constitution s 237(1) and (3) read with s 236(1);
s 3(1)(c) and (d) (registrar must register grants of land issued by the government, and attest and register deeds of transfer of land),
s 10(1)(b) (deeds registries regulations board may make regulations prescribing fees of office to be charged for anything to be done in a deeds registry),
s 14(1)(a) (transfers of land must follow the sequence of successive transactions pursuant to which they are made, as a rule),
s 15 (no deed of transfer or certificate of title shall be attested or registered by a registrar unless prepared by a conveyancer, as a rule),
s 16 (land ownership may be conveyed from one person to another only by deed of transfer attested by registrar, as a rule),
s 18 (manner of dealing with State land)â
ss (1) (ownership of unalienated State land may, only be transferred from the State by deed of grant issued under proper authority and, as a rule, with a diagram of the land annexed, unless the land is represented on a general plan);
ss (3) (if a piece of unalienated State land is surveyed and shown on a diagram, the registrar must, on application by the responsible Minister or an official authorised by him accompanied by the diagram, execute i.a.w. the diagram a certificate of registered State title thereof prepared by a conveyancer),
ss (4) (transfer of ownership of land held by the State under certificate of registered State title must be by deed of grant issued under proper authority; it shall not be necessary to annex a diagram of the land to it, but the grant must refer to the certificate and to the diagram annexed to the certificate),
s 20 (deeds of transfer must be executed in the registrarâs presence by the owner or a conveyancer authorised by her by power of attorney, and be attested by the registrar),
s 43(1) (if portion of a piece of land is surveyed and the surveyor-general approves a diagram of the portion, the registrar may on the ownerâs application issue a certificate of registered title of the portion),
s 46 (subdivision of land into township or agricultural settlement)â
- (if land is subdivided into agricultural lots or township erven which are shown on a general plan, the owner of the subdivided land must furnish the general plan to the registrar, who must register the plan and open a register in which registrable transactions affecting any lot or erf shown on the plan must be registered),
- (if the land subdivided as shown on the general plan forms a portion only of a registered piece of land held by the title deed, the registrar must, on application by the owner of the land, issue a certificate of township or settlement title in her favour in respect of that portion in accordance with a diagram thereof),
s 102(1)â
(âsettlementâ means a group of subdivisions of a piece of land which are used or intended for use mainly for farming or horticulture),
(âtownshipâ means a group of subdivisions of a piece of land which are combined with public places and are used or intended for use mainly for residential, industrial or similar purposes),
Govt Notice R474 of 29 Mar 1963 (deeds registries regs) reg 84 read with schedule (fees of office) amended by Govt Notice R153 of 1 Mar 2021 (Gazette 44202)â
item 1(a)(i) (for registering transfer of property of which purchase price or fair value, whichever is greater, does not exceed R100000âR41),
item 1(d) (any other registration or annotation in registers or records, including certificates of title and all other registrations which are not exempted by law or where no purchase price is involvedâR371);
National Building Regulation and Building Standards Act 103 of 1977â
s 1 svv âthis Actâ (Act includes national building regulations made under it);
s 2(2)(a) (Minister may, on conditions he thinks fit, and after consulting the South African Bureau of Standards Board and provincial Premier concerned, of his own accord or at request of a local authority or any other person, exempt the area of jurisdiction or part thereof of any local authority, from application of the Act or any provision thereof);
s 4 (approval by local authorities of applications in respect of erection of buildings)â
- (no person shall without prior approval of the local authority erect any building i.r.o. which plans and specifications are to be drawn and submitted i.t.o. the Act);
- (a person erecting a building in contravention is guilty of an offence);
s 6(1) (the municipal building-control officer mustâ
- (make recommendations to the local authority regarding such plans and specifications submitted to the local authority);
- inspect the erection of a building i.r.o. which such approval was granted;
- report to the local authority regarding non-compliance with any condition on which approval was granted);
s 7(1) If a local authority, having considered such a recommendationâ
- (is satisfied that the application complies with the Act and any other applicable law, it must grant its approval in respect thereof;
- (i) (is not so satisfied; or
(ii) (is satisfied that the building willâ
(aa) (be of such nature or appearance that it will probablyâ
(aaa) (disfigure the area;
(bbb) (be unsightly or objectionable;
(ccc) (derogate from the value of neighbouring properties; or
(bb) (be dangerous to life or property,
(the local authority must refuse to grant its approval);
s 10 (erection of buildings in certain circumstances subject to prohibition)â
(1)(a) (if a building in the opinion of the local authority is being or is to be erected in such manner that itâ
(i) (will not be in the interest of good health or hygiene;
(ii) will be unsightly or objectionable;
(iii) (will probably be a nuisance to occupiers of neighbouring properties;
(iv) (will probably derogate from the value of neighbouring properties;
the local authority may prohibit the person erecting it from proceeding or commencing with erection except on conditions determined by the local authority);
(2) (anyone failing to comply with such prohibition or condition commits an offence);
s 14 (certificates of occupancy)â
(1)(a) (a local authority must issue a certificate of occupancy i.r.o. a building if it is of opinion that the building has been erected i.a.w. the provisions of the Act);
(4)(a) (a buildingâs owner who occupies or uses it or permits its occupation or useâ
(i) (unless a certificate of occupancy has been issued for the building;
(ii) (except in so far as is essential for erection of the building; or
(iv) (otherwise than in circumstances prescribed by national building regulation,
shall be guilty of an offence);
s 17 (national building regulations)â
- (the Minister may, after consulting the SABS Board, make regulationsâ
- (regarding preparation and approval of plans and specifications of buildings;
- (regarding strength and stability of buildings;
- (to provide for requirements with which buildings must comply as precautionary measures against fires or other emergencies, including resistance against outbreak and spreading of fires, protection of occupants or users of buildings or other persons against fires, aids or installations to be in buildings for combating or prevention of fires and for vacating of such buildings in cases of fires or other emergencies;
(f) (regarding resistance of buildings against floods, moisture, transmission of heat, sound or other injurious factors, and infestation by insects, vermin or other pests;
(g) (regarding durability and other desirable properties of buildings;
(h) (regarding provision of water and of sewerage and drainage services i.r.o. buildings, including connection with municipal supply or sewage disposal works;
(i) (regarding ventilation and provision for daylight i.r.o. buildings, including provision of open spaces;
(j) (regarding heating and artificial lighting of buildings;
(k) (regarding supply and installing in buildings of gas or electrical equipment or service, including the manner of installing equipment for cooking or heating, or for preventing or restricting emission of smoke or other offensive fumes;
(l) (restrict or prohibiting the use of a building or category thereof;
(r) (regarding demolition of buildings, subject to housing laws;
(s) (regarding local authoritiesâ powers if buildings are being erected or used in contravention of the Act or of approval granted thereunder or if no approval was granted for erection of such buildings;
(u) (regarding safety, health and convenience of occupiers or users of, or persons present in or having access to, buildings and compulsory installing of equipment or services);
(2) (different national building regulations may be made i.r.o. different categories of buildings or uses of buildings, areas or categories of areas, local authorities or categories of local authorities, or portions or categories of portions of areas of jurisdiction of local authorities);
s 25 (if in a prosecution for an offence i.t.o. the Act it is necessary, to establish the charge against the accused, to prove that he failed to comply with its requirements relating to standard or quality of materials, design or workmanship, an allegation in the charge sheet that he so failed shall be sufficient proof thereof unless the contrary is proved);
Govt N R2378 of 12 Oct 1990 (national building regulations);
Housing Consumers Protection Measures Act 95 of 1998â
s 2 (establishment of National Home Builders Registration Council),
s 7(1) (Council rules regulating conduct of builders, home-enrolment fees),
s 7(2) (ministerâs regulations prescribing buildersâ registration and registration-renewal fees, and technical requirements for design and construction of prescribed homes),
s 10(2) (no home builder shall construct a home unless that home builder is a registered home builder),
s 14 (home enrolment)â
- (a home builder shall not commence construction of a home falling in any category of home prescribed by the Minister, unless the home builder has submitted the prescribed documents, information and fee to the Council, and the Council has enrolled that home in its records and issued a certificate of enrolment of that home),
(2)(c) (a home builder shall not commence construction of a home the acquisition of which will be financed solely by a state housing subsidy, unless the Council has enrolled the project),
18 (obligations of mortgagees, conveyancers, MEC)â
(1) (no financial institution shall lend money to a housing consumer against security of a mortgage bond to be registered, to enable the consumer to purchase a home from a home builder, unless the institution is satisfied that the home builder is registered, that the home is or will be enrolled, and that prescribed fees have been or will be paid);
(2) (a conveyancer attending to registration of a mortgage bond i.f.o. the institution must ensure that the home builder is registered, has enrolled the home and has paid the prescribed fees i.r.o. that enrolment),
(3) (the MEC for housing in a province shall not, unless the home builder is registered and has enrolled the project concernedâ
(a) (approve a housing-development project i.r.o. which a housing consumer is eligible for a state housing subsidy for a dwelling in the project,
(b) (grant a state housing subsidy to a consumer for construction or sale of a home by a home builder, or
(c) (pay a home builder any housing-subsidy funds i.r.o. a housing-development project approved by it); Govt Notice R1406 of 1 Dec 1999 (technical requirements, maximum payable by NHBRC for buildersâ failure to meet obligations),
Govt Notice R1407 of 1 Dec 1999 (calculation of home-enrolment fees),
Govt Notice R1410 of 1 Dec 1999 (fees for registration of home builders),
Govt Notice 354 of 22 Mar 2002 (maximum payable by NHRBC for buildersâ failure to meet obligations in provincially-subsidised development projects), and
Govt Notice R192 of 22 Feb 2008 (builder grading for weighting home-enrolment fees);
Housing Consumer Protection Bill 10 of 2021;
Transfer Duty Act 40 of 1949 s 2(1)(b)(i)â(vi) (imposition of duty);
Land Survey Act 8 of 1997â
s 1â
âdiagramâ (document containing geometrical etc representations of a piece of land forming the basis for registration of a real right, and signed by a land surveyor),
âgeneral planâ (plan representing relative positions and dimensions of two or more pieces of land, and signed by a land surveyor),
s 10 (regulations)â
(1) (survey regulations board may make regulations regardingâ
(a) (how surveys must be performed,
(b) (degree of accuracy to be obtained and limit of error allowed in land surveys,
(c) (diagrams and general plans for registration of land in a deeds registry, manner of preparing them, and information to be recorded thereon,
(f) (manner and circumstances in which cadastral surveys of land must be based on or connected to trigonometrical stations and reference marks;
(h) (how Surveyor-General must test accuracy or correctness of surveys whose results appear on diagrams or general plans to be registered in deeds registry),
(2) (board may prescribe circumstances when Surveyor-General may authorise departure from such regulations if compliance is impossible or impracticable),
s 14 (no general plan or diagram of any piece of land shall be accepted in any deeds registry in connection with any registration therein of that land, unless the general plan or diagram has been approved by the Surveyor-General);
s 15 (numerical and other data recorded on a general plan or diagram lodged for approval of the Surveyor-General must be within prescribed limits of consistency);
s 16 (no general plan or diagram shall be approved by the Surveyor-General unless prepared under the direction of and signed by a land surveyor, as a rule);
s 18 (survey of land for which title deed has been issued without a diagram),
s 29 (acceptance of boundary by agreement of owners if doubt arises),
s 30 (in deciding which beacons or boundaries common to contiguous pieces of land are correct, an arbitrator must be guided by the principles thatâ
- original beacons erected at original survey of a piece of land if surveyed define the true boundaries despite not corresponding to the diagram or general plan,
- well-ascertained beacons recognised as correct for 30 years or more by the parties or their predecessors must be taken to be the original beacons);
Govt Notice R1130 of 29 Aug 1997 (land survey regulations) reg 20(4) (unnecessary to place internal beacons on general plan until erven concerned to be transferred);
Geomatics Profession Act 19 of 2013â
s 1(1) sv âsurveyingâ (is a component of geomatics work),
s 2(a)(iii) (geomatics includes determining position of boundaries of land for purposes of registration of such land i.t.o. applicable laws),
s 3 (establishment of Geomatics Council),
s 8(1)(b)(iii)(bb) (Council must register professional land surveyors qualified to perform surveys for diagrams or general plans to be filed i.t.o. land registration laws),
s 11(c) (land surveyor must deposit with Surveyor-General, for examination and filing, records of any survey carried out by her for purpose of land registration in a deeds registry, and i.r.o. a general plan or diagram prepared as result of that survey);
s 13(2)(b)(i) (persons not so registered may not perform such surveys),
s 30(1) (Council may determine guideline professional fees),
Bd N 203 of 2019 (Gazette 42902 of 13 Dec) (guideline professional fees proposed by Council for land survey work),Immigration Act 13 of 2002â
s 19(4) read with reg 19(5);
Govt Notice 459 of 3 Jun 2014 (determination of critical skills for critical-skills visas or permanent-residence permits): svv âland surveyorâ;
National Credit Act 34 of 2005â
s 1 (definitions)â
(âconsumerâ includes (d) the mortgagor under a mortgage agreement,
(âjuristic personâ includes a partnership, association or other body of persons corporate or unincorporated,
(âmortgage agreementâ is a credit agreement secured by registration of a mortgage bond by the registrar of deeds over immovable property),
s 4(1) (Act applies to every armâs-length credit agreement, except inter aliaâ
- (a credit agreement where the consumer is a juristic person whose asset value or annual turnover exceeds a threshold determined by the Minister,
- (a large agreement where the consumer is a juristic person, even if its asset value or annual turnover is below that threshold),
s 7(1)(a) (Minister to determine asset-value or annual-turnover threshold up to R1m),
s 8 (credit agreements)â
(1)(b) (a credit agreement includes inter alios a credit transaction),
(4)(d) (a credit transaction includes inter alios a mortgage agreement),
s 9(4)(a) (a credit agreement is a large agreement if it is a mortgage agreement),
s 10(1)(b)(iii)(aa) (a credit agreement is a âdevelopmental credit agreementâ if the credit provider is a registered developmental-credit provider and the agreement is entered into for inter alios the purpose of development of a small business),
s 100(1)(c) (credit provider must not charge the consumer i.r.o. an interest charge under a credit agreement exceeding the amount that may be charged consistent with the Act),
s 101(1)(d)(ii) (credit agreement must not require payment by consumer of interest exceeding applicable maximum prescribed rate determined),
s 105(1)(a) (Minister, after consulting National Credit Regulator, may prescribe method for calculating maximum rate of interest applicable to each consumer-credit-market subsector determined by Minister),
Govt Notice R489 of 31 May 2006 (regulations i.t.o. National Credit Act, 2005) â
reg 42 (maximum rates of interest, where RR = ruling Reserve Bank Repurchase Rate:
(mortgage agreements: RR + 12% p.a.,
(unsecured credit transactions: RR + 21% p.a.,
(small-business developmental credit agreements: RR + 27% p. a.),
Govt N 713 of 1 Jun 2006 (R1m asset-value or annual-turnover threshold determined),Subdivision of Agricultural Land Act 70 of 1970;
Subdivision of Agricultural Land Act Repeal Act 64 of 1998 (not yet in operation);
Small Claims Courts Act 61 of 1984 s 16(g) (matters beyond jurisdictionâinterdicts);
Spatial Planning and Land Use Management Act 16 of 2013â
s 1(1) (definitions)â
svv âland developmentâ (means erection of structures on land, or change of use of land including township establishment, subdivision or any deviation from land uses permitted i.t.o. an applicable land-use scheme);
s 10(1)(a) (provincial legislation consistent with Act may provide for matters in Sched 1);
s 24 (land use scheme)â
(1) (a municipality must adopt a single land use scheme for its entire area;
(2) (a land use scheme mustâ
(a) (include appropriate categories of land-use zoning and regulations for entire municipal area, including areas not previously subject to a land use scheme;
(c) (permit incremental introduction of land-use regulation in traditional-leadership areas, rural areas, informal settlements, slums and areas not previously subject to a land use scheme);
s 35 (municipal planning tribunalsâ
(1) (a municipality must establish a municipal planning tribunal to determine land use and development applications in its area;
(2) (a municipality may authorise the considering and determining of certain land-use and land-development applications by an official in its employ;
(3) (a municipality must categorise applications into those to be considered by an official and those to be referred to the tribunal).
s 55 (exemptions) â
(1) (Minister may, in public interest, on request from a province or municipalityâ
(a) (exempt from any provisions of the Actâ
(i) (a specified piece of land;
(ii) (a specified area;
(b) (substitute alternative provisions to apply;
(c) (withdraw an exemption).
(2) (exemptions may be subject to conditions the Minister considers appropriate).
Sched 1 (provincial legislation mayâ
(d)(ii) (repeal or amend provincial legislation that applies to land development, land-use management, township establishment, spatial planning, land subdivision or consolidation or removal of restrictions; and
(f) (establish procedures for public consultation, advertising and notification where a municipality amends a land use scheme or rezones land in its area;
(g) (determine procedures relevant to approval of an application forâ
(i) (establishment of a township;
(ii) (amendment of a land use scheme;
(iv) (subdivision of land,
(v) (consolidation of land;
(viii) (formalisation or incremental upgrading of an informal settlement or slum, including any matter related to tenure, land use control and service provision;
(n) (provide uniform content of conditions of approval for the province;
(y) (regulate engineering-service provision and imposing of development charges);
State Land Disposal Act 48 of 1961;
Government Immovable Asset Management Act 19 of 2007;Gen N 510 of 2017 (Gazette 40965 of 7 Jul), draft Communal Land Tenure Bill, 2017 and explanatory memorandum for public comment;
Expropriation Bill B23 of 2020 (as introduced in National Assembly)â
cl 2(4) read with cls 5 to 27 and 30 (Bill seeks to establish uniformity for expropriations by all spheres of government),
cl 3(1) (property may be expropriated for a public purpose, or in the public interest),
cl 7 (notice of intention to expropriate) â
(1)(a) (authority must serve notify of intended expropriation on affected persons),
(b) (expropriating authority must publish such notice),
(2) (the notice mustâ
- (describe the purpose for which the property is required);
- (give the reason for the intended expropriation of that particular property),
(h)(ii) (invite the owner to state the amount claimed as just and equitable compensation),
(4) (the owner must give the authority a statement indicatingâ
(a) (the amount claimed as just and equitable compensation if the land is expropriated and full particulars of how it is made up,
(b) (full particulars of all improvements which in his opinion affect the land value),
cl 8 (notice of expropriation)â
(1) (if the expropriating authority decides to expropriate the property, it must serve a notice of expropriation on the owner),
(3) (the expropriating authorityâs notice of expropriation must containâ
(g) (the amount of compensation offered or agreed by the authority),
(h) (if the amount of compensation is disputed, a statement that the expropriated owner may institute court proceedings to decide the amount, or request that the authority commence such court proceedings),
cl 12(3) (it may be just and equitable for nil compensation to be paid where land is expropriated in the public interest, having regard to all relevant circumstances, including but not limited toâ
- (where the land is not being used and the ownerâs main purpose is not to develop the land or use it to generate income, but to benefit from appreciation of its market value;
- (where an organ of state holds land that it is not using for its core functions and is not reasonably likely to require the land for its future activities in that regard, and the organ of state acquired the land for no consideration;
- (notwithstanding registration of ownership i.t.o. the Deeds Registries Act, where an owner has abandoned the land by failing to exercise control over it;
- (where the market value of the land is equivalent to, or less than, the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land; and
- (when the nature or condition of the property poses a health, safety or physical risk to persons or other property);
cl 31 (repeals Expropriation Act 1975);
Preservation and Development of Agricultural Land Bill B8 of 2021;
Official policies and reports
State Land Lease and Disposal Policy, 26 Aug 2019;
Land Audit Report, Phase I, 2013: Registered State land. Dept of Rural Development & Land Reform(registered State land and unaccounted land totals 25,422,409 ha (unaccounted land is unregistered State land in former Transkei, Ciskei, Gazankulu, Lebowa, Venda);
Land Audit Report, Phase II, 2017: Private land ownership by race, gender and nationality. Dept of Rural Development & Land Reform(erven in urban areas are 94% of all parcels of land but only 3% of all land and are owned by 93% of all owners of land, with an average per owner of 0.4 ha, yet these tiny land parcels command highest locational rent and prices in national property market);
Report of the Motlanthe High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, Nov 2017, pp 50â51, 205â224, 300;
General Household Survey 2019. Statistics South Africa: §§ 2.1, 2.2 (population, household estimates) (household growth outstripped population growth over the period 2002â2019)
Caselaw
African & European Inv Co Ltd v Warren and others 1924 AD 308 (where owners of three adjoining unsurveyed farms were agreed on a particular boundary beaconâs position, but then, after survey of the farms error by the surveyor in calculating its position placed it at a materially different location on the farmsâ diagrams, it was held that, despite statute providing that confirmed diagrams were unimpeachable and unalterable without all ownersâ consent, such diagrams could despite one ownerâs opposition be rectified if they conflicted with a beacon lawfully established and recognised when they were framed),
Union Govt Minister of Lands and ano v Lovemore 1930 AD 13 at 25 (where the diagram contradicts the unambiguous text of the title deed, the diagram must give way to the text),
City of Cape Town v Khaya Projects (Pty) Ltd and others [2015] 1 All SA 81 (WCC) pars [10], [37];
Ex parte Western Cape Prov Govt and others: In re DVB Behuising (Pty) Ltd v North West Prov Govt and ano 2000 (4) BCLR 347 (CC) (provinces have no power to legislate on land tenure and deeds registration);
Tongoane and others v Min for Agr and Land Affairs and others 2010 (8) BCLR 741 (CC) (Communal Land Rights Act 2004 held invalid for noncompliance with Constitutionâs procedures for enacting a Bill affecting provinces);
University of Venda v Mathivha and others (Limpopo high court) [2015] ZALMPTHC 6 pars 18.4.10 and 18.5 (no legislation authorises traditional leaders to grant Permissions to Occupy communal land, but by customary law they may permit occupation thereof),
Firstrand Bank Ltd v Carl Beck Estates (Pty) Ltd, 2009 (3) SA 384 (T) Satchwell J pars 10â13 (National Credit Act 2005 does not apply to a mortgage agreement where the borrower is a juristic person, whether its asset value or annual turnover exceeds or falls below a threshold determined by the Minister);
Silver Falcon Trading 333 (Pty) Ltd and others v Nedbank Ltd, 2012 (3) SA 371 (KZP) Gorven J pars 10â13 (National Credit Act does not apply to mortgage agreements with borrowers who are juristic persons, regardless of their asset value or annual turnover);
Books, articles, booklets and research
Eglin, R. and Kenyon, M., âBetween a Shack and an RDP House: Managed Land Settlementâ, Chap 21 in Upgrading Informal Settlements in South Africa: Pursuing a partnership-based approach, eds. Cirolia, L. et al. (2016), Univ. of Cape Town Press;
Land Audit Booklet, 5 Sep 2013, Dept. of Rural Development and Land Reform;
Prof. H. P. Binswanger-Mkhize,âFrom failure to success in South African land reformâ African Journal of Agricultural and Resource Economics (Dec. 2014) pp 253â269;
New World Immigration (Pty) Ltd, âLand Surveyors needed in South Africaâ, Cape Town, https://www.nwivisas.com/nwi-blog/south-africa/land-surveyors-needed-in-south-africa/ (accessed 31 Mar 2021);
Kangâethe, S., Manomano, T. âExploring the Reconstruction and Development Programme (RDP): Residentsâ Perceptions of Housing Allocation Malpractices in Golf Course, Alice Town, Eastern Cape, South Africaâ Journal of Human Ecology 2017 407â415;
Simpson, K W and Sweeney, G M J, The Land Surveyor and the Law, Univ of Natal Press, 1973, 103â104 (a beacon to indicate the corner position of a rectilinear boundary may be a natural object such as a rock);
BizNews, 5 Jan 2018. âLand expropriation without compensation: Implications of a seismic shiftâIRRâ, T. Corrigan;
News24, 22 Feb 18, âWhy expropriation without compensation is incompatible with economic growthâ, T. Corrigan;
News24 in partnership with City Press, 1 Mar 2018, âExpropriation without compensation spells economic disasterâ;
Max du Preez, 2013, A Rumour of Spring: South Africa after 20 Years of Democracyâ
(the land-restitution programme was quite successful but land restored was less than expected because most beneficiaries opted for cash rather than receive their land back;
of about 80,000 land-restitution claims received by 1998, only 5,856 claimants preferred land, with 71,292 claimants preferring cash payouts (totalling R6 billion);
(the then minister of land reform Gugile Nkwinti said in 2013 âpeople have become urbanised, they have become de-culturised in terms of tilling land and so on; we no longer have a peasantry, we have wage earners nowâ;
Institute of Race Relations, Apr 2016, A. Jeffery, âEscaping South Africaâs Race Curseââ
(a national survey of opinions on key âtransformationâ policies which have been in force for many years was conducted for the Institute in Sep 2015; survey firm MarkData did the sampling, fieldwork and data-processing; results became available in 2016;
(a representative sample of 2 245 respondents was selected in households in all provinces in ten socio-economic categories from traditional rural areas to big cities; racial representivity was unavoidable given the studyâs purpose and subject and was secured by interviewing 1 757 black people (78.3% of the total) and 203 coloured (9%), 63 Indian (2.8%), and 223 white people (9.9%); trained experienced field teams interviewed respondents face-to-face in their language of choice;
(respondents were asked whether, if the government were to give them land, they would prefer rural land to farm or urban land for housing; 58.3% opted for urban land and 37.1% land to farm; among blacks the proportions were similar, with 55.2% favouring urban land and 39.5% land to farm, confirming South Africa is a rapidly urbanising society where relatively few people want land to farm);
Africa Check, L Pretorius and G Makou, 25 Apr 2019, âFrequently asked questions about land ownership and demand in South Africaâ;
The Conversation, Prof B Cousins, 27 Oct 2020, âProblematic assumptions raise questions about South Africaâs new land reform planââ
(governmentâs recently-announced plan to allocate 700,000 ha of state land to black farmers is unclear on how many farms and beneficiaries will be involved and whether there will be sufficient safeguards against its being captured by elites;
property rights on the allocated farms will continue to take the form of leases rather than private title so beneficiaries will not have collateral to secure bank loans;
(the minister admitted state land administration was deficient and corruption existed;
(land will be allotted to successful applicants with farming experience or will to learn;
(there will be compulsory training in record keeping and financial management;
(the farming model underlying land-reform policies is of modern, high-tech, large-scale commercial production by skilled business managers;
(lip service is paid to the need to provide land to smallholder farmers, but in practice the current model sidelines small-scale farmers;
(the current focus on promoting emerging commercial farmers means relatively few people gain access to a small number of medium-scale farms;
(land policies should urgently focus on small-scale farmers as the most practical way to provide real opportunities to enhance livelihoods);
S. Zantsi, âExplaining land size demand among potential emerging farmers in South Africa: what does it mean for land redistribution policy?â South African Geographical Journal, Dec 2020, https://doi.org/10.1080/03736245.2020.1854838 (studies report demand by smallholders for small land sizes and to meet it advocate subdividing land-reform farms despite 1970 Subdivision of Agricultural Land Act prohibiting subdivision);
Business Insider SA, 29 Mar 2021, âExpropriation without compensation is coming â what you need to knowâ;
SABC News, 23 Mar 2021, A Kobokana, âCommunal Land Tenure Bill ready to be tabled before parliamentâ
Read also:
- Land reform still divides the nation
- New land expropriation laws are worrying
- SA land owners â vulnerable to expropriation for nil compensation: Anthea Jeffery
