Posted on by Benn Van Wyk

What is considered Agricultural Land?

by Kristijan Madjarevic

The Act governing this is the Subdivision of Agricultural Land Act No. 70 of 1970 (hereinafter referred to as ‘The Act’) and its main purpose is to identify and control the subdivision and the use of agricultural land.  Furthermore, the legislator’s purpose of enacting the act was to avoid the subdivision of such land into lesser uneconomical portions.

What is considered “Agricultural Land”?

In terms of Section 1 of the Act, “Agricultural Land” is defined as any land except:

  • land situated in the area of jurisdiction of a local authority such as a municipal, city, town or village councils;
  • agricultural holdings in the former Transvaal Province;
  • land defined as a township as per the Deeds Registries Act;
  • land that is owned or held in trust by the State;
  • land that is excluded by the Minister of Agriculture from provisions of this Act; and
  • a portion of land not less than 1 morgen (8 565 square metres) in extent used solely or mainly for the purpose of agriculture or horticulture or for breeding or keeping domestic animals, poultry or bees.

 Proviso to Section 1

Where the new democratic dispensation brought in numerous municipalities across the entire country, it has become extremely difficult to identify land that is agricultural land as defined in Section 1 of the Act.

As a result of this above-mentioned difficulty, the Chief Registrar of Deeds issued a circular 6 of 2002 which states the procedure to follow when any farm land that is involved in a transaction to which the Act may apply, as all farm land will be regarded as “agricultural land” as per the Act, until proof to the contrary is furnished.

The procedure to follow when any farm land regarded as “agricultural land” is included in a transaction

Where any one of the following happens:

  1. any farm land is subdivided; or
  2. transferred, and therefore results in an increase of the number of registered owners of farm land in undivided shares; or
  3. a servitude is to be registered over any farm land,

then, either one of the following documents must be lodged in the deed registry with the transaction:

  1. A consent by the Minister of Agriculture in terms of the Act; or
  2. A letter by the Department of Agriculture stating that the land in question is not agricultural land as per the Act.

Exclusions under the application of the Act

The provisions of the Act shall not apply in terms of:

  1. The subdivision of land for the purpose of transferring a portion to the State or a statutory body;
  2. The transfer of an undivided share in land to the State or a statutory body;
  3. The sale or grant of any right to any portion of agricultural land to the State or a statutory body;
  4. The subdivision or 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, being 2 January 1971;
  5. The passing of an undivided share in any land in accordance with any contract entered into BEFORE the commencement of the Act;
  6. The subdivision of any land in connection with which a surveyor has submitted the relevant subdivisional diagram to and has obtained approval from the surveyor-general concerned BEFORE the commencement of the Act; and
  7. The registration of a long-term lease in respect of a portion of agricultural land, concluded in writing BEFORE the commencement of the Act.

Section 3 – Prohibition of certain actions regarding Agricultural Land

Unless the Minister has consented in writing:

  1. Agricultural land shall not be subdivided;
  2. No undivided half share in agricultural land already held by any person shall be transferred to another person (even through succession). This applies to where the transferor holds the whole property;
  3. No part of an undivided share in agricultural land shall be transferred to any person, if any person does not already hold such a part. This applies to where the transferor holds a part of the property;
  4. No lease agreement in respect of agricultural land shall be entered into:
  1. for a period of 10 (Ten) years or longer;
  2. for a period of the natural life of the lessee or any other person mentioned in the lease; or
  3. for a period 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, for periods which together with the first period of the lease amount to not less than 10 years (thus a long term lease agreement over a portion of agricultural land may not be entered into);
  1. (a) A portion of agricultural land may not be sold or advertised to be sold;

(b) No right to a portion of agricultural land shall be:

  • sold; or
  • granted for a period of –
    • more than 10 years, or
    • for the natural life of any person; or
    • to the same person for periods totaling more than 10 years; or
  • advertised for sale or with view to any such granting.

Section 5 – Succession and Agricultural Land

Where the consent of the Minister cannot be obtained and the heirs of a testator cannot reach any other agreement such as a redistribution agreement, in terms of which the land is allocated to only one heir, the executor of the estate concerned must sell the land and divide the net proceeds between the heirs.  Alternatively, the heirs may establish a company or close corporation and purchase the land from the estate in terms of such juristic entity.

Section 6A – Servitudes and Agricultural Land

A servitude in respect of agricultural land shall not be registered without the written consent of the Minister, however certain exceptions allow servitudes to be registered without the Minister’s written consent, these include:

  • A right of way, aqueduct, pipe line or conducting of electricity with a width not exceeding 15 metres;
  • A servitude which is complementary to the abovementioned servitude and which servitude area not exceeding 225 square metres which adjoins the area of the last-mentioned servitude;
  • A usufruct over the whole of the agricultural land in favour of one person or in favour of such person and his spouse or the survivor of them if they are married in community of property; and

Section 6A also implies that the Minister’s consent is necessary where a servitude of usufruct or usus is registered over a portion of the agricultural land only.  This also applies to where a habitatio is registered in respect of a house on such agricultural land.

Chief Registrar’s Circular 7 of 1973 – Fideicommissa and Agricultural Land

The Minister’s consent shall not be required where agricultural land is conveyed to a single fiduciary subject to a fideicommissum in favour of more than one fideicommissary heir.  However, consent shall be required and lodged at the respective deeds registry if the abovementioned property is conveyed to the names of the fideicommissary heirs.

Conclusion

Whereby the Subdivision of Agricultural Land Act Repeal Act has been in existence since 1998, the former Act is still operative and any or all terms relating to Agricultural Land should be strictly followed.