The Subdivision of Agricultural Land Act No. 70 of 1970 Explained: Part 3
In this Part 3 of the series on “The Subdivision of Agricultural Land Act No. 70 of 1970 Explained”, we will discuss the procedure on how to apply for the consent as required by the Minister for any actions regarding agricultural land which is prohibited in terms of Section 3 of the Act. This will include the Minister’s imposition, enforcement or withdrawal of conditions by him or her, as well as any miscellaneous provisions. When you want to perform any of the actions which are set out in Section 3 of the Act, you will have to apply to the Minister of Agriculture, Land Reform and Rural Development of South Africa to obtain his or her consent thereto. This application needs to be made by the owner of the land concerned if the action being contemplated relates to the subdivision of agricultural land; the vesting of undivided shares or a part of undivided shares in any other person not already held by a person; leasing of agricultural land for a period of more than ten (10) years or subsequent leases amounting to a period of more than ten (10) years; and selling or advertising a portion of agricultural land. These actions are set out in Section 3(a) to (e) of the Act and are more fully discussed in Part 2 of this series. This application by the owner as referred to above needs to be lodged or submitted at the correct location and it should be in the correct form as determined and required by the Minister. The application also needs to be accompanied by the necessary plans, documents and information if required by the Minister. The word “owner” for this section of the Act has the meaning assigned to it in section 102 of the Deeds Registries Act, No. 47 of 1947. The term “owner” is defined as the person who is registered as the owner or holder of the immovable property and includes the trustee in an insolvent estate, a liquidator or trustee elected or appointed under the Farmers’ Assistance Act, 1935, the liquidator of a company which is an owner and the representative recognised by law of any owner who has died or who is a minor or of unsound mind or is otherwise under disability: provided that such trustee, liquidator or legal representative is acting within the authority conferred on him by law. The Minister may at his or her discretion either refuse such application or grant such application on any conditions which he or she deems fit. Such conditions may also pertain to the purpose or manner in which the land in question may be used for example if the Minister is satisfied that the land in question will not be used for agricultural purposes after consultation with the Administrator of the province in which such land is situated and upon such proposed conditions by the Administrator, then the Minister may grant such an application. Such conditions imposed by either the Minister or Administrator may be enforced, varied or withdrawn by the Minister or the Administrator, upon consultation with the Minister. If such condition is registered against the title deed of such land, the Minister has the authority to direct that such condition be varied or cancelled. In Part 4 of the series on “The Subdivision of Agricultural Land Act No. 70 of 1970 Explained”, we shall further look at miscellaneous provisions in the Act pertaining to succession, general plans or diagrams of the land, registration of servitudes, fees and offences and or penalties. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
The Subdivision of Agricultural Land Act No. 70 of 1970 explained: Part 1
The subdivision of agricultural land or “farmland” is regulated by the Subdivision of Agricultural Land Act No. 70 of 1970 (hereafter “the Act”) which came into operation on 2 January 1971. Baker J, in the case of Van der Bijl v Louw, stated that the Act has its purpose in preventing the situation where farming units are created which are not economical or could be described as non-viable subunits. This prevention objective is achieved in essence by the Minister of Agriculture, Land Reform and Rural Development of South Africa, who has to give their consent before any subdivision may lawfully be effected. Section 2 of the Act will be the topic of discussion in Part 1 of this series of articles and encompasses actions which are excluded from the application of the Act. These actions include the scenarios as follows: Firstly, the application of the Act is excluded where any portion of agricultural land is subdivided in order to transfer a portion thereof to the State or a statutory body, or a transfer to the State or statutory body of an undivided share in land, or the selling or granting of any right to any portion of agricultural land to the State or statutory body. The meaning of “right” in the latter scenario is defined in Section 1 of the Act as not including any right to minerals or a prospecting or mining right, but merely a right in relation to agricultural land. The second exclusion to the application of the Act is where a person had died before 2 January 1971,which is the commencement date of the Act, and there was a consequent passing of an undivided share or any subdivision of land due to a provision in the deceased’s last will and testament or due to intestate succession where the deceased had not left a will. The third exclusion to the application of the Act is where a contract was entered into before the commencement of the Act, and such contract made provision for the passing of an undivided share in any agricultural land. The fourth exclusion is where a surveyor has completed and submitted to the surveyor-general the relevant subdivisional diagram and survey records to be examined and approved prior to the commencement of the Act. The fifth and final scenario that is excluded from the application of the Act is where a lease agreement for a portion of agricultural land had been concluded in writing before the commencement of the Subdivision of Agricultural Land Act Amendment Act, 1974 and such lease was registered with its provisions similar to Section 3(d) of the Act. Such provisions are lease contracts where the lease period amounts to 10 (ten) or more years in total, or, when consecutive lease contracts entered into did not amount to a total time period of less than 10 (ten) years. Thus, if a person who finds him or herself in circumstances where they are dealing with the subdivision of agricultural land and such circumstances are alike with any of the five scenarios above, then the Act will not be applicable. This means that such subdivision of farmland can be effected immediately without compliance to any other conditions and/or provisions as contained in the Act. In Part 2 of the series on “The Subdivision of Agricultual Land Act No. 70 of 1970 Explained”, we shall look at actions that are prohibited in the subdivison of agriculural land or actions amounting to such subdivison and consider any available remedies. Recources: CJ Nagel “The Subdivision of Agricultural Land Act 70 of 1970, Options to Purchase and Related Matters” 2016 (79) THRHR p 276. 1974 2 SA 493 (C) 499. T Sewapa “Subdivison of Agricultural Farmland” 2016 p 1. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
The Subdivision of Agricultural Land Act No. 70 of 1970 explained: Part 2
In this Part 2 of the series of “The Subdivision of Agricultural Land Act No. 70 of 1970 Explained”, we shall look at actions that are prohibited regarding the subdivision of agricultural land or any actions amounting to such subdivision and if there are any available remedies. Once again it is reiterated that The Subdivision of Agricultural Land Act No. 70 of 1970 (hereafter “the Act”) has its purpose to prevent the subdivision of farming units or the creation thereof, and such units not being economical in their nature. This objective is essentially achieved through the Act as the Minister of Agriculture, Land Reform and Rural Development of South Africa has to give his or her consent before any subdivision may lawfully be effected. The first three actions which are prohibited by the act are that agricultural land may not be subdivided; no undivided share in agricultural land shall vest in any other person if such undivided share is not already held by a person, and no part of such undivided share in agricultural land shall vest in any other person if such part is not yet held by another person. The fourth action which is prohibited concerns the leasing of agricultural land and the renewal of such lease. The Act states that no one may enter into a lease for which the period of such lease is 10 years or longer. Neither may the length of the lease be the natural life of the lessee and/or the life of any other mentioned person in such lease. Further actions which are prohibited surrounding the leasing of agricultural land by the lessee, is the renewal of such lease either by the continuation of the original lease or by entering into a new lease and such continued and/or renewed lease being for an indefinite period or the combined period of 10 (Ten) years. The following actions are prohibited by the Act, except where such actions relate to the purposes of a mine as defined in section 1 of the Mines and Works Act. These actions include the selling or advertising for the sale of a portion of agricultural land, whether or not the latter is surveyed or contains any building thereon. Furthermore, the selling or granting of a right to such portion is not allowed if it is: for more than 10 years; or for the natural life of any person; or to the same person if such consecutive periods amount to more than 10 (Ten) years. Section 3(f) of the Act states that no area of jurisdiction, local area, development area, peri-urban area, or other area referred to in paragraphs (a) and (b) of the definition of “agricultural land” in section 1 of the Act, shall be established on, or enlarged to include any agricultural land. Lastly, the action of giving public notice that a scheme relating to agricultural land, or any portion thereof has been submitted or prepared under the ordinance in question. Thus, if a person finds him or herself in circumstances where they are dealing with the subdivision of agricultural land and such circumstances are alike with any of the scenarios above, then such dealings will be prohibited in terms of the Act and will be null and void. This means that such actions will need the prior consent of the Minister to comply with the Act. In Part 3 of the series on “The Subdivision of Agricultural Land Act No. 70 of 1970 Explained”, we shall look at the procedure on how to apply for consent as required by the Minister. This will include the imposition, enforcement, or withdrawal of conditions by him or her, as well as any miscellaneous provisions. T Sewapa “Subdivison of Agricultural Farmland” 2016 p 1. Section 3(a)-(c) of the Act. Section 3(d) of the Act. No. 27 of 1956. Section 3(e)(i)-(ii) of the Act. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)