Abolition of Certain Title Conditions Bill: briefing & voting

Meeting report

AGRICULTURE & LAND PORTFOLIO COMMITTEE
1 September 1999
ABOLITION OF CERTAIN TITLE CONDITIONS BILL [B40-99]: BRIEFING & VOTING

Documents handed out:
Abolition of Certain Title Conditions Bill: briefing document (attached below)
Amendments agreed to
Summary and explanation of the amendments
General Notice of 1999 of the Land Affairs General Amendment Bill,1999
Notes from a meeting with the chairperson of the Portfolio Committee on Land and Agriculture.

SUMMARY
Mr S Keebine informed the committee about the Bill, and the committee members adopted the Bill with the departmental amendments. The Portfolio Committee agreed not to have a debate in the House on the Bill.

MINUTES
The Directorate of State Land Development, Mr Sechele Keebine briefed the Portfolio Committee on the Bill. The Briefing document Ms Keebine used is attached below. After the briefing, the Chair opened the meeting for questions.

Questions asked by committee members
MP asked what the position is regarding the former office holders in the TVBC area.
Adv. D Du Toit: the provincial government covers some of the TVBC responsibilities. When the TVBC was formed, the registrar of deeds did not register any condition relating to the requirement of consent of the TVBC. This bill will, not affect the Land Rights Bill and the Restitution Act.

The amendments to this Bill and the preamble were adopted with no objections. The Parliamentary Whip felt that the parties should debate this Bill. The committee felt that a debate would be unnecessary, as they were all in agreement with the Bill. The chairperson announced that the Land Affairs General Amendment Bill will be tabled at the next meeting.

Appendix 1:
ABOLITION OF CERTAIN TITLE CONDITIONS BILL [B40-99]
Briefing Document

1. BACKGROUND
The Departments of Agriculture and Land Affairs, Public Works and Housing including the Office of the Presidency, receives numerous requests from members of the public and local authorities for the Ministers of those Departments to give consent to the transfer or alienation of land which is subject to a restrictive title condition in favour of the State or to the cancellation of the condition itself.
In some of the inquiries it is not clear whether the Minister who is so requested is the competent authority to grant such consent or cancellation.
In many cases it is virtually impossible to establish who is the current successor to the old functionaries mentioned in the title. This riot only involves a lot time consuming research but also creates legal uncertainty.
Examples of such difficulties includes the determination of who the successors in title to the following functionaries are, viz: Minister of Lands, Governor General, Minister of Community Development, Governor of Natal.
An example of such a condition would be:
"that the land hereby granted shall not be alienated or transferred to any person unless the consent of the Governor General shall have been first had and obtained"

In certain categories of cases, the requirement of consent is no more than a relic of an historical situation, which is no longer relevant. In these cases, the granting of consent is a pure technicality. However complying with this technicality takes a good deal of the time of staff in the Department concerned, and delays the development and use of the land. In an attempt to create legal certainty and to lighten the burden of the staff of the Department concerned, a Bill was prepared to make provision for the abolition of those type of conditions.

2. OBJECTS OF THE BILL.
It should made clear from the outset that the Bill is not designed to do away with the usual requirement that land cannot be transferred without the consent of the registered owner. In cases where the Minister of Land Affairs is the owner of the land (eg former SADT land or state land in the former homelands) or where he is a nominal owner of land, eg. land held in trust or a community or tribe, the consent or permission of the Minister, as owner, would still be required for the alienation or transfer of such land. The same would still be applicable to land owned by the State through other Departments, e.g.: - the Department of Public Works.
The basic rationale behind the drafting of this Bill is to lighten the administrative burden of the Departments concerned. The abolition of certain conditions in the title deeds was proposed as a result of these conditions being deemed to serve no meaningful purpose, therefore rendering them redundant.

The intention is not to derogate from other legislations making provision for the cancellation; amendment or suspension of conditions such as the Removal of Restrictions Act, 1967 (Act no 84 of 1961) or section 2A of the State Land Disposal Act (Act No 48 of 1961), hence the exclusions contained in clause 2 of the Bill.

3. EXPLANATION OF THE BILL.
3.1. Clause 1.
The intention of this clause is to abolish any condition registered against- any title BEFORE THE COMMENCEMENT OF THIS ACT, whereby) the consent of the HOLDER OF OFFICE is required for transfer or alienation of immovable property from one person to another.
Note: -
1. The Bill will only affect those conditions that were registered before its commencement. The cut off date will ensure that the Bill does not affect any new legislation regarding tenure reform.
2. The Bill only refers to where a permission or consent was to be sought from a holder of an office eg :- Governor General, Minister of Lands.

A concern has been raised by the Deputy Minister of Agriculture and Land
Affairs regarding the historical correctness of the sentence in page 2 line 7 of the Bill which reads ..."or any of its constituent colonies or republics". The Department of Land Affairs agrees with the Deputy Ministers' concerns.

At the time of the formation of the Union of South Africa in 1910 there were no republics in existence.
An amendment is hereby requested at page 2 line 7 of the Bill to omit "its constituent colonies or republics" and to substitute "the dominiums, colonies or republics that preceded the Union of South Africa"
On the date of promulgation of this Bill, if it is accepted, all the conditions referred to in clause 1, will be automatically abolished. The Registrar of deeds would then be required to make such entries or endorsements in his or her register. In practice this means that members of the public would approach the registrar with a request for confirmation of the abolition of such a condition. They will have to satisfy the registrar that the conditions in their title are those referred to in clause 1.1 and are not excluded by clause 2.

3.2. Clause 2 - Exclusions.
In respect of those conditions mentioned in paragraphs (a) to (j) of clause 2, this Bill will not apply.
In broad terms these exclusions relate to the change of land use; town planning schemes; rights to minerals; subdivision of agricultural or agricultural holdings land, time period during which land may not be alienated or sold; right of State to acquire the land if condition is breached; right of State to resume ownership for public purposes; right of pre-emption towards the State; conditions imposed in permits or authorisations for the extraction and use of water as a scarce natural resource in terms of the National Water Act, 1998 (Act 36 of 1998 ), where the State is the owner of the land and where the holder of an office is the nominal owner of a piece of land.
In all the above situations the necessary consent or permission would still be necessary.

3.3. Clause3
It refers to the title of the Bill if promulgated.

4. IMPLICATIONS
FINANCIAL IMPLICATIONS
The present procedure of removing the conditions is time consuming and costly. To remove a title deed condition takes between three to six months and the cost of advertising alone is +- R500, 00. If a speedy route of removing a condition through a court order is adopted, it will cost anything from R5000, 00 to R10 000,00.
If this Bill is promulgated it will shorted the period within which these conditions are removed and it will be at no cost to the members of public. Such entries or endorsements by the Registrar referred to in clause 1.2 will be a confirmation of what the Act has already abolished.

4.2. POLITICAL IMPLICATIONS
Suffice to mention that these conditions have outlived their usefulness and are a drawback to the speedy development of land, this Bill is of an administrative nature and purely technical.

4.3. PROVINCES AND LOCAL AUTHORITIES
There are no implications for provinces or local authorities.

5. CONSULTATIONS.
The following Departments/bodies were consulted and they have indicated their support for the promulgation of this Bill, viz:
- Department of Agriculture,
- Chief Registrar of Deeds,
- Department of Housing,
- Department of Public works, and
- Department of Water Affairs and Forestry.

6. COMMENTS ON THE BILL.
The Department of Land Affairs received requests for copies of the Bill after publication on the 25 June 1999 in the Government Gazette. The list of those who requested the Bill is available. However no comments were received from the members of the public on the Bill.

7. CONCLUSION.
The Abolition of Certain Title Conditions Bill is designed to lighten the administrative burden of the relevant Departments to reduce the costs of removing these conditions which serve no meaningful purpose and to assist in the speedy development of the land concerned.