REPUBLIC OF SOUTH AFRICA

LAND AFFAIRS GENERAL AMENDMENT BILL

(MINISTER FOR AGRICULTURE AND LAND AFFAIRS)

[B - 99]

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

___________ Words underlined with a solid line indicate insertions in existing enactments.

BILL

To amend the Deeds Registries Act, 1937, so as to provide for the deeds registries regulations board to make regulations regarding the manner in which the payment of the fees of office may be enforced; to amend the KwaZulu Land Affairs Act, 1992, so as to validate certain acts purporting to have been performed in terms of that Act; to amend the Provision of Land and Assistance Act, 1993, so as to provide for the amendment, withdrawal and lapsing of conditions and to further regulate the granting of an advance or a subsidy; to amend the Restitution of Land Rights Act, 1994, so as to exclude issues concerning the definition of "occupier" from section 22 of the Act; to amend the Land Reform (Labour Tenants) Act, 1996, so as to extend the date upon which the right to apply to be awarded land, rights in land or servitudes contemplated in the proviso to section 16(1) lapses; to authorise the Land Claims Court to issue an order where in proceedings before it is averred that the person sought to be evicted is a labour tenant, but it is subsequently not proved that such a person is a labour tenant; and to exempt awards of land certified by the Director-General from laws regulating the subdivision of land; to amend the Extension of Security of Tenure Act, 1997, so as to extend the period for the review by the Land Claims Court of eviction orders by magistrates' courts pending the review thereof by the Land Claims Court; and to recognise the jurisdiction of the magistrate's court for purposes of section 20(2) of the said Act; to amend the Transformation of Certain Rural Areas Act, 1998, so as to insert a procedure whereby the registrar of deeds may endorse a title deed in the event of land vesting in a municipality in terms of section 2 of the said Act; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:

Amendment of section 10 of Act 47 of 1937, as amended by section 5 of Act 43 of 1957, section 5 of Act 43 of 1962, section 4 of Act 87 of 1965, section 4 of Act 3 of 1972, section 2 of Act 92 of 1978, section 5 of Act 27 of 1982, section 3 of Act 62 of 1984, section 5 of Act 14 of 1993, section 3 of Act 170 of 1993 and section 68 of Act 67 of 1995

1. Section 10 of the Deed Registries Act, 1937, is hereby amended by the substitution for paragraph (b) of subsection (1) of the following paragraph:

2. (1) Section 39 of the KwaZulu Land Affairs Act, 1992, is hereby amended by the substitution for subsection (3) of the following subsection:

(2) Subsection (1) shall be deemed to have come into operation on 11 September 1998.

Amendment of section 2 of Act 126 of 1993, as substituted by section 2 of Act 26 of 1998

3. Section 2 of the Provision of Land and Assistance Act, 1993, is hereby amended by the substitution for subsection (3) of the following subsection:

4. Section 10 of the Provision of Land and Assistance Act, 1993, is hereby amendedC

(b) by the substitution in subsection (1)(b) for subparagraph (v) of the following subparagraph:

(d) by the substitution in subsection (1) for paragraph (c) of the following paragraph:

(e) by the insertion after subsection (2) of the following subsection:

5. Section 22 of the Restitution of Land Rights Act, 1994, is hereby amended

"(5A) Notwithstanding subsections (3), (4) and (5) and subject to section 174(6) of the Constitution, the President of the Republic may extend the term of office of any person who immediately before the commencement of the Land Affairs General Amendment Act, 1999, was the President of the Court or a judge of the Court for a period of not more than 12 months.".

6. Section 13 of the Land Reform (Labour Tenants) Act, 1996, is hereby amended by the substitution in subsection (1A) for the words preceding paragraph (a) of the following words:

7. Section 16 of the Land Reform (Labour Tenants) Act, 1996, is hereby amended by the substitution in subsection (1) for the proviso of the following proviso:

8. Section 33 of the Land Reform (Labour Tenants) Act, 1996, is hereby amended by the insertion in subsection (1) after paragraph (eA) of the following paragraph:

9. The following section is hereby substituted for section 40 of the Land Reform (Labour Tenants) Act, 1996:

40. If the Court or an arbitrator orders, or if the Director-General certifies in terms of section 18(5), that any land or right in land or servitude be awarded to an applicant, the land in question shall not be subject to [the provisions of the Subdivision of Agricultural Land Act, 1970 (Act No. 70 of 1970), or] any [other] law regulating the subdivision of land.".

10. Section 19 of the Extension of Security of Tenure Act, 1997, is hereby amendedC

(b) by the insertion after subsection (4) of the following subsection:

11. Section 20 of the Extension of Security of Tenure Act, 1997, is hereby amended by the substitution for subsection (2) of the following subsection:

12. Section 2 of the Transformation of Certain Rural Areas Act, 1998, is hereby amended by the addition of the following subsection, the existing section becoming subsection (1):

13. This Act shall be called the Land Affairs General Amendment Act, 1999.

MEMORANDUM ON THE OBJECTS OF THE LAND AFFAIRS GENERAL AMENDMENT BILL, 1999

1. The Bill seeks to amend the Deeds Registries Act, 1937 (Act No. 47 of 1937), the KwaZulu Land Affairs Act, 1992 (Act No. 11 of 1992), the Provision of Land and Assistance Act, 1993 (Act No. 126 of 1993), the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994), the Land Reform (Labour Tenants) Act, 1996 (Act No. 3 of 1996), the Extension of Security of Tenure Act, 1997 (Act No. 62 of 1997), and the Transformation of Certain Rural Areas Act, 1998 (Act No. 94 of 1998).

2. Clause 1 proposes an amendment to section 10 of the Deeds Registries Act, 1937, so as to empower the deeds registries regulation board to make regulations regarding the recovery of arrears owing by conveyancers to the Deeds Offices.

3. Clause 2 seeks to amend section 39 of the KwaZulu Land Affairs Act, 1992. The Act was amended in 1998 in order to validate certain acts purporting to have been performed by the KwaZulu-Natal provincial government in terms of the KwaZulu Land Affairs Act, 1992. However, that validation only referred to those provisions of the Act that were assigned to the Province and not to the powers that were delegated to it in September 1998, in terms of section 2 of the Land Administration Act, 1995 (Act No. 2 of 1995). The clause seeks to validate acts done under the latter powers.

4. Clause 3 seeks to amend section 2 of the Provision of Land and Assistance Act, 1993. In terms of section 2(3) of the Act, the Minister may, when designating land for purposes of settlement, impose conditions regarding the use of the land. One of the conditions usually imposed is that the land must be held by a legal entity for the benefit of the beneficiaries. However, it is uncertain whether such conditions prohibit the legal entity from selling the land and, if it is sold, whether the new owners are bound by the conditions imposed by the Minister. It is proposed that provision be made for the Minister to amend, withdraw or provide for the lapsing of any such conditions.

5. Clause 4 proposes amendments to section 10 of the Provision of Land and Assistance Act, 1993. The amendment proposed to section 10(1)(b)(ii) seeks to enable beneficiaries to use the remainder of their grant or subsidy which is not required for the acquisition of land to acquire capital assets for income generation. The amendment proposed in respect of section 10(1)(b)(v) is to provide for the acquisition of equity shares in any future agricultural enterprise and any other interests such as joint ventures. A new section 10(1)(bA) is proposed in order that the Minister may grant an advance or a subsidy in the manner and for the purposes set out in section 10(1)(b) of the Provision of Land and Assistance Act, 1993, in respect of State land made available by him or her for purposes of that Act. An amendment to section 10(1)(c) of the Act seeks to extend the Minister's power to grant an advance or a subsidy to a municipality in order to acquire or extend land for commonage purposes. The proposed amendment will broaden the scope of the provision to include all types of municipalities as contemplated in the Constitution. The Minister will also be able to grant such a subsidy or an advance to other bodies. An advance or a subsidy may also be granted in order to develop a newly acquired commonage or an existing commonage.

6. Section 1(1) of the Extension of Security of Tenure Act, 1997, specifically excludes a labour tenant in terms of the Land Reform (Labour Tenants) Act, 1996, from the definition of Aoccupier@. In order to decide whether or not a person is an occupier, it must first be decided whether or not he or she is a labour tenant, even where no specific allegation in this regard has been made. The only way of deciding whether or not someone is a labour tenant is to apply the Land Reform (Labour Tenants) Act, 1996. The result is that every case in which a party alleges that he or she is an occupier must be transferred to the Land Claims Court in terms of section 13 of the Land Reform (Labour Tenants) Act, 1996, before any oral evidence is led. This is no longer the intention since magistrates= courts and, in certain circumstances, High Courts, now have jurisdiction to hear cases under the Extension of Security Tenure Act, 1997. It is thus necessary to amend section 13 of the Land Reform (Labour Tenants) Act, 1996, and section 22(1)(cC) of the Restitution of Land Rights Act, 1994, to give effect thereto (clauses 5 and 6). Clause 5 also seeks empower the President to extend the terms of office of the President and other judges of the Land Claims Court.

7. The Department of Land Affairs plans to conduct an extensive communications campaign during the 1999/2000 financial year to inform labour tenants of their right to lodge applications in terms of the Land Reform (Labour Tenants) Act, 1996. The Act at present provides that such applications must be made by 23 March 2000. The Department believes it is advisable to extend this date to the end of the year 2000. Clause 7 seeks to achieve this.

8. The Land Reform (Labour Tenants) Act, 1996, does not expressly authorise the Land Claims Court to issue an eviction order where, in proceedings before the Court, it is averred that the person sought to be evicted is a labour tenant, and it is subsequently not proved that such a person is a labour tenant. Clause 8 provides expressly for the issue of such an order.

9. In terms of section 18 of the Land Reform (Labour Tenants) Act, 1996, some applications may be resolved by agreement. Such agreement takes effect if it is certified by the Director-General. Section 40 of the said Act only provides for orders made by the court or an arbitrator and not for agreements certified by the Director-General. Clause 9 seeks to rectify this.

10. From the statistics made available to the Department, it appears that magistrates are still experiencing considerable difficulties in applying section 19(3) of the Extension of Security of Tenure Act, 1997. In terms of section 19(3) of that Act any eviction order by a magistrate's court in respect of proceedings instituted before 31 December 1999, must automatically be reviewed by the Land Claims Court. Clause 10 seeks to extend that date to a date determined by the Minister.

11. Clause 11 seeks to amend section 20(2) of the Extension of Security of Tenure Act, 1997, in order to recognise the jurisdiction of the magistrate's court for purposes of that Act expressly.

12. Clause 12 seeks to amend section 2 of the Transformation of Certain Rural Areas Act, 1998, so as to simplify the procedure that allows a registrar of deeds to endorse the change of ownership on the title deeds of all trust land in a township. The registrar of deeds is authorised to endorse the current title deeds to the effect that the land vests in the municipality in question.

DEPARTMENTS/BODIES/PERSONS CONSULTED

The following departments, bodies or persons were consulted:

IMPLICATIONS FOR PROVINCES

The only province affected by the Bill (clause 2) is KwaZulu-Natal. Apart from validating certain actions in respect of land matters, it does not have other implications for that province.

FINANCIAL IMPLICATIONS FOR STATE

None.

PARLIAMENTARY PROCEDURE

The State Law Advisers and the Department of Land Affairs are of the opinion that this Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.