The Subdivision of Agricultural Land Act: a review
The Subdivision of Agricultural Land Act No. 70 of 1970 (“the Act”) restricts the subdivision of agricultural land except with the permission of the minister. The Act was scheduled to have been repealed by the Subdivision of Agricultural Land Act Repeal Act. This Act has, however, never been put into operation.
The Act defines “agricultural land” to mean any land except:
- land situated in the area of jurisdiction of a municipal council, city council, town council, village council, village management board, village management council, local board, health board or health committee, and land forming part of, in the province of the Cape of Good Hope, a local area established under section 6(1)(i) of the Divisional Councils Ordinance, 1952, and, in the province of Natal, a development area as defined in section 1 of the Development and Services Board Ordinance, 1941, and in the province of the Transvaal, an area in respect of which a local area committee has been established under section 21(1) of the Transvaal Board for the Development of Peri-Urban Areas Ordinance, 1943, but excluding any such land declared by the minister after consultation with the relevant executive committee and by notice in the Government Gazette to be agricultural land for the purposes of the Act;
- land which forms part of any area subdivided in terms of the Agricultural Holdings (Transvaal) Registration Act, or which is a township as defined in section 102(1) of the Deeds Registries Act, but excluding a private township as defined in section 1 of the Town Planning Ordinance, 1949, not situated in an area of jurisdiction or a development area referred to in paragraph 3.2.1;
- land of which the state is the owner or which is held in trust by the state or a minister for any person;
- land which the minister, after consultation with the relevant executive committee and by notice in the Gazette, excludes from the provisions of the Act.
However, land situated in the area of jurisdiction of a transitional council as defined in section 1 of the Local Government Transition Act, which immediately prior to the first election of the members of such transitional council was classified as agricultural land, will remain classified as such.
This definition, especially its proviso, was examined in a number of court decisions, culminating in a decision of the Constitutional Court, which held that the fact that the country as a whole now falls within the jurisdiction of municipal councils, does not mean that the Act no longer applies and that the proviso was not tied to the life of the transitional councils (Stalwo (Pty) Ltd v Wary Holdings).
The Act provides that, without the written consent of the Minister of Agriculture, the following activities are not permitted:
- agricultural land may not be subdivided;
- no undivided share in agricultural land not already held by any person may vest in any person;
- no part of any undivided share in agricultural land may vest in any person if such part is not already held by any person;
- no lease in respect of a portion of agricultural land of which the period is ten years or longer, or is the natural life of the lessee or any other person mentioned in the lease, or which is renewable from time to time at the will of the lessee, either by the continuation of the original lease or by entering into a new lease, indefinitely or for periods which together with the first period of the lease amount in all to not less than ten years, may be entered into;
- no portion of agricultural land, whether surveyed or not, and whether there is any building thereon or not, may be sold or advertised for sale, except for the purposes of a mine, and no right to such portion may be sold or granted for a period of more than ten years or for the natural life of any person or to the same person for periods aggregating more than ten years, or advertised for sale or with a view to any such granting, except for the purposes of a mine as defined;
- no area of jurisdiction, local area, development area, peri-urban area or other area referred to in paragraph (a) or (b) of the definition of “agricultural land” may be established on, or enlarged so as to include, any land which is agricultural land;
- no public notice to the effect that a scheme relating to agricultural land or any portion thereof has been prepared or submitted under the ordinance in question, may be given.
The provisions of the Act do not apply in the following circumstances:
- in respect of any subdivision of land for the purpose of transferring a portion thereof or the sale or grant of any right to any portion of agricultural land to the state or a statutory body;
- any subdivision of, or the passing of an undivided share in, any land in accordance with a testamentary disposition or intestate succession, if the testator died before the commencement of the Act;
- the passing of an undivided share in any land in accordance with a contract entered into prior to the commencement of the Act;
- any subdivision of any land in connection with which a surveyor has completed the relevant survey and has submitted the relevant subdivisional diagram and survey records for examination and approval to the relevant surveyor-general prior to the commencement of the Act; and
- the registration of a lease in respect of a portion of agricultural land, concluded in writing prior to the commencement of the Subdivision of Agricultural Land Amendment Act.
Any application for the consent of the minister must, in the case where any act referred to in these paragraphs is contemplated, be made by the owner of the land and be lodged in such place and be in such form and be accompanied by such plans, documents and information as may be determined by the minister.
The minister has a discretion to refuse or on certain conditions, including conditions as to the purpose for or manner in which the land in question may be used, as he or she deems fit, grant any such application and, if he or she is satisfied that the land in question is not to be used for agricultural purposes and after consultation with the premier of the province in which such land is situated, on such conditions as such premier may determine in regard to the purpose for or manner in which such land may be used, grant any such application.
The minister or, in the case of a condition dealing with any subdivision of, or the passing of an undivided share in, any land in accordance with a testamentary disposition or intestate succession, if the testator died before the commencement of the Act, the relevant premier may enforce any such condition. Similarly, the minister or, in the case of a similar condition, the premier concerned after consultation with the minister, may vary or withdraw any such condition and, if it has been registered against the title deed of the land, the minister may direct that it be varied or cancelled.
If the minister does not consent to the subdivision of any particular agricultural land in accordance with any testamentary disposition or intestate succession or to the vesting of any undivided share in such land in accordance therewith, and no agreement is reached as to a subdivision or vesting in respect of which the minister grants his or her consent, the executor of the estate must realise the land or undivided share and dispose of the nett proceeds in accordance with the testamentary disposition or intestate succession.
The provisions of the Expropriation Act apply mutatis mutandis in respect of any such proceeds of land or an undivided share in any land, and in an application of that section a reference therein to a minister will be deemed to be a reference to an executor.
A surveyor-general may approve a general plan or diagram relating to a subdivision of agricultural land, and a registrar of deeds may register the vesting of an undivided share in agricultural land or a part of any such share or a lease or, if applicable, a right in respect of a portion of agricultural land, only if the written consent of the minister in terms of the Act has been submitted to him or her. If consent was granted subject to a registrable condition, it must, on approval or registration, be endorsed on the title deed of the land concerned. No servitude may be registered by a registrar of deeds in respect of land without the written consent of the minister and subject to the provisions of the Water Act, except a right of way, aqueduct, pipe line or conducting of electricity with a width not exceeding 15 metres, a servitude which is supplementary to it and which has a servitude area not exceeding 225 square metres which adjoins the area of the last-mentioned servitude as well as a usufruct over the whole of agricultural land in favour of one person or in favour of such person and his or her spouse or the survivor of them if they are married in community of property.
In terms of the Agricultural Holdings (Transvaal) Registration Act, “agricultural holding” is defined as meaning a portion of land not less than one morgen in extent used solely or mainly for the purpose of agriculture or horticulture or for breeding or keeping domestic animals, poultry or bees.
All land prior to the establishments of transitional councils remains classified as agricultural land for purpose of the act.
In terms of CRC 6/2002 the practice has been laid down that where the word farm is included in the property description, such land must be regarded as agricultural land, as defined in the Act until proof to the contrary is furnished.
“Sale” includes a sale subject to a suspensive condition.
Any sale which is subject to the suspensive condition that ministerial consent must be obtained is void ab initio and cannot be enforceable if the consent is obtained after the date of the sale. Examiners will check the sale dates against the consent dates. (Geue and another v Van der Lith and Another)
Written options are covered by the definition of sale. Written options to buy land subject to the obtaining of the minister’s consent are void ab initio (Colchester Zoo SA Investments v Weenen Safaris CC)
If agricultural land is bequeathed to a fiduciarius subject to a fideicommissum, in favour of more than one heir, it is unnecessary to insist on a consent. One will however be required when such a property is eventually transferred to the fideicommissum heirs. Where spouses married in community of property appoint the survivor of them in a joint will as the universal heir of all their property and at the death of the survivor the entire estate had to devolve upon their children. If the testator passes away in 1949 and the testatrix in 1973, section 2(b) are satisfied and no consent is required. The date of vesting of the fideicommissum is the date of the testator and not the death of the fiduciaries. (Kruger v Terblanche)
Where property is transferred to a single fiduciary subject to a fideicommissum in favour of more than one heir, the minister’s consent is not required.
Minister’s consent will not be required where agricultural land is transferred to two or more persons and simultaneously to one person; and where a co-owner transfers his undivided share to two or more of the remaining co-owners of that property provided that CRTs of their aggregate shares are registered with such transfer. (CRC 5/1986).
If a right of habitation is granted for a period of 10 years or for the life of the holder of such right, the consent of the minister will have to be obtained. (CRC 3/1995)
Courts may not ignore the consequences of the Act because of absurdity of harsh or unwise results.
If a spouse married in community of property dies and leaves her undivided share in agricultural land to be held in trust for her children, in terms of section 40 of the Administration of Estates Act, the consent must be obtained.
When the title to agricultural land is endorsed in terms of section 45bis(1A) of the DRA such transfer by endorsement is regarded as an increase in shareholders and thus the consent of the minister must be obtained.