Author: Gary Moore

Date: 4 July 2018

The Subdivision of Agricultural Land Act,1970[1] is an Act to control the subdivision (and, in connection therewith, the use) of agricultural land.[2]

The Act stipulates that, unless the Minister of Agriculture has consented—

Agricultural land shall not be subdivided;[3]

no undivided share[4] in agricultural land shall[5] vest in any person;[6]

no lease i.r.o. a portion of agricultural land shall be entered into which—

is for ten years or longer, or the natural life of the lessee or any other person;[7] or

is renewable—[8]

at the lessee’s will[9] indefinitely, or

for periods which amount with the first one to ten years or more;[10]

no portion of agricultural land[11] shall be sold;[12] and

no right to such portion shall be sold or granted, or advertised[13]

for a period of more than ten years or the natural life of any person, or

to the same person for periods aggregating more than ten years;[14]

no municipal area of jurisdiction, local area, development area, peri-urban area or the like shall be established on, or enlarged so as to include, any agricultural land;[15]

no public notice[16] shall be given to the effect that a town-planning scheme relating to agricultural land[17] has been prepared or submitted.[18]

The phrase “agricultural land” refers to a separate unit of land with its own cadastral description as registered in the deeds registry.[19] The Act was aimed at preventing agricultural land from being rendered economically unviable for the purpose of farming, as a result of uncontrolled subdivision.[20] To achieve this, the legislature curtailed the common-law right of landowners to subdivide their agricultural property.[21] The Act does not confer on the Minister the power to control the use of agricultural land absent a contemplated subdivision.[22] The conversion of agricultural land to uses other than farming as a result of rapid urbanisation was not the mischief against which the Act was directed.[23]

The Act defines agricultural land[24] to mean “any land” (with exceptions).

One exception[25] from the definition of agricultural land[26] is land in areas of jurisdiction of municipal authorities[27] (other than, however, any such land declared by the Minister[28] to be agricultural land for purposes of the Act).

Land in the area of a transitional council[29] which immediately before the first election of members of that council was classified as agricultural land remains classified as such.[30] Consistent with that, it has been held that the current dispensation of “wall to wall” municipalities[31] does not mean that “agricultural land” no longer exists, and the exception for land in the areas of jurisdiction of municipalities must continue to be interpreted to mean municipalities before replacement of transitional councils by wall-to-wall municipalities.[32]

What constitutes “agricultural land” is also subject to certain other exceptions.[33]

An application for the Minister’s consent to the subdivision must be made by the owner of the land,[34] 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.[35]

The Minister may “in his discretion” refuse any such application.[36] Or he may “in his discretion” grant any such application on such conditions as he “deems fit”, including conditions “as to the purpose for or manner in which the land…may be used”.[37]

If the Minister is satisfied that the land in question is “not to be used for agricultural purposes” he may[38] grant any such application on such conditions as the provincial government may determine i.r.t. the purpose for or manner in which such land may be used.[39]

The Minister (or, in the case of a condition determined by the provincial government, the provincial government concerned[40]) may “vary or withdraw” any such condition.[41]

A servitude over agricultural land shall not be registered[42] without the Minister of Agriculture’s written consent.[43] (Excepted are servitudes up to 15 m wide for a right of way, aqueduct, pipe line or conducting of electricity,[44] as well as servitudes which are supplementary to and adjoin any such first-mentioned servitude and have an area not exceeding 225 sq m.[45])

The Minister may “in his discretion” refuse any such application for his consent to registration of a servitude over agricultural land. Or he may “in his discretion” grant any such application on such conditions as he deems fit, including conditions “as to the purpose for or manner in which” the servitude “may be used”.[46]

The Minister may make regulations with reference to any matter in respect of which, in his opinion, it is necessary or expedient to make regulations.[47]

The Act’s provisions that the Minister may refuse or grant applications for consent to the subdivision of, or registration of servitudes over, agricultural land “in his discretion” violate the Rule of Law in that they grant unduly wide discretionary authority to the Minister.

The Rule of Law excludes wide discretionary authority by the government.[48] In a society governed by the Rule of Law, laws should be sufficiently defined, and government discretion should be sufficiently limited, to ensure that the law is not applied arbitrarily.[49]

Postscript. A 1998 statute[50] which will repeal the Subdivision of Agricultural Land Act states that it will come into operation on a date to be fixed by the President.[51] However, no such date has yet been fixed, despite the statute’s having been enacted 20 years ago.

 

[1] Subdivision of Agricultural Land Act 70 of 1970.

[2] Subdivision of Agricultural Land Act, Long title.

[3] Subdivision of Agricultural Land Act s 3(a).

[4] Or part of an undivided share.

[5] If not already held by any person.

[6] Subdivision of Agricultural Land Act s 3(b) and (c).

[7] Mentioned in the lease.

[8] From time to time.

[9] Whether by continuation of the original lease or by entering into a new lease.

[10] Subdivision of Agricultural Land Act s 3(d).

[11] Whether surveyed or not, and whether there is any building on it or not.

[12] Or advertised for sale, except for the purposes of a mine.

[13] For sale or with a view to any such granting.

[14] Except for the purposes of a mine. Subdivision of Agricultural Land Act s 3(e).

[15] Subdivision of Agricultural Land Act s 3(f).

[16] Under the town-planning law in question.

[17] Or any portion thereof.

[18] Subdivision of Agricultural Land Act s 3(g).

[19] Nuance Invs (Pty) Ltd v Maghilda Invs (Pty) Ltd and others [2017] (SCA) supra par [25].

[20] Geue and another v Van der Lith and another [2003] 4 All SA 553 (SCA) pars [5], [15].

[21] Wary Holdings (PtyLtd v Stalwo (PtyLtd and ano 2008 (11) BCLR 1123 (CC) par 13.

[22] Whether in the literal sense or the extended sense (long lease or the like). Adlem and ano v Arlow [2013] 1 All SA 1 (SCA) par [12].

[23] Nuance Invs (Pty) Ltd v Maghilda Invs (Pty) Ltd and others [2017] 1 All SA 401 (SCA) par [49].

[24] Subdivision of Agricultural Land Act s 1 svv “agricultural land”.

[25] Subdivision of Agricultural Land Act s 1 svv “agricultural land” exception par (a) proviso.

[26] Subdivision of Agricultural Land Act s 1 svv “agricultural land”.

[27] I.e., a municipal council, city council, town council, village council, village management board, village management council, local board, health board or health committee, as well as land forming part of a local area established under of the Divisional Councils Ordinance 15 of 1952 (Cape) s 6(1)(i); in a development area as defined in the Development and Services Board Ordinance 20 of 1941 (Natal) s 1; in an area i.r.o. which a local area committee has been established under the Transvaal Board for the Development of Peri-Urban Areas Ordinance 20 of 1943 (Transvaal) s 21(1).

[28] After consultation with the provincial “executive committee” and by notice in the Gazette. See Subdivision of Agricultural Land Act s 1 svv “agricultural land” par (a) proviso read with s 1(1) svv “executive committee”.

The reference to a province’s “executive committee” should, no doubt, now be interpreted as a reference to a province’s “executive council”. See Constitution s 132 (Executive councils).

[29] See Local Government Transition Act 209 of 1993.

[30] Subdivision of Agricultural Land Act s 1 svv “agricultural land” proviso.

[31] See the Local Government (Municipal Structures) Act 117 of 1998.

[32] Kotzé v Minister van Landbou en andere 2003 (1) SA 445 (T) 455E; Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and others 2008 (11) BCLR 1123 (CC) [87]–[93].

[33] Such as land in a township, generally speaking. Subdivision of Agricultural Land Act s 1 svv “agricultural land” exception (b)(ii).

[34] Except in the case of a contemplated establishment or enlargement of a municipal area. See Subdivision of Agricultural Land Act s 3(f).

[35] Subdivision of Agricultural Land Act s 4(1)(a)(i) and (ii).

[36] Subdivision of Agricultural Land Act s 4(2).

[37] Subdivision of Agricultural Land Act s 4(2)(a).

[38] After consultation with the provincial government concerned.

[39] Subdivision of Agricultural Land Act s 4(2)(b).

[40] After consultation with the Minister.

[41] And, if it has been registered against the title deed of the land, the Minister may direct that it be varied or cancelled. Subdivision of Agricultural Land Act s 4(4).

[42] By a Registrar of Deeds.

[43] Subdivision of Agricultural Land Act s 6A(1).

[44] Subdivision of Agricultural Land Act s 6A(1)(a).

[45] Subdivision of Agricultural Land Act s 6A(1)(aA).

Also excepted are usufructs over the whole of agricultural land i.f.o. one person, or that person and his spouse if they are married in community of property or the survivor of them: s 6A(1)(b).

[46] Subdivision of Agricultural Land Act s 6A read with s 4(2)(a).

[47] For achieving the objects of the Act. Subdivision of Agricultural Land Act s 6A read with s 10(1).

The Minister of Finance must be consulted for regulations relating to State revenue or expenditure: s 10(2).

[48] Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (8th ed, 1926, Macmillan & Co) pp 198–9; C Ling, “Martin Krygier’s Contribution to the Rule of Law”, The Western Australian Jurist vol 4 [2013] 211 216.

[49] Robert Stein, “Rule of Law: What Does It Mean?” 18 Minn. J. Int’l L. 293 (2009) at 302.

[50] Subdivision of Agricultural Land Repeal Act 64 of 1998 s 1.

[51] By proclamation in the Gazette. Subdivision of Agricultural Land Repeal Act s 2.

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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