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Clara - I

30 August 2007

The above is a rather compendious forecast of the land registration practice, as it will be affected by the advent of the Communal Land Rights Act, No. 11 of 2004.

Below are a few points to ponder over conveyancing aspects in the same context, as well as conceptual justification steering the promulgation of the Act.

This is aimed at testing the readiness or flexibility of our deeds registration system, as well as testing our cognitive capacity to adopt the advent of new order rights, bearing in mind the possible extent of the modifications that the deeds registration system might have to undergo to accommodate the constitutional concomitants attached to the Act; for example, the implied vesting of communal land in the tribal authorities on behalf of their respective communities, and the vesting thereof in individuals. There are also matters of specific interest to conveyancers, like the impact of new order rights on the concept of the informal land rights as defined under the Interim Protection of Informal Rights Act 31 of 1996, and the proposed preparation of deeds pertinent thereto by departmental officers instead of conveyancers. Lastly, there is the question whether such rights are personal or real in cases where they are granted to a community on land owned by a tribal authority and what the legal test is to determine the registrability thereof.

Should the registrar of deeds register new order rights if the latter assumes a largely personal nature in composition? To what extent does the Act recognise or supersede the existing indigenous property law or the Interim Protection of Informal Rights Act 31 of 1996, and the perpetual powers of indigenous authorities and tribal authorities as entrenched under the indigenous or tribal laws, e.g., the KwaZulu-Natal Ingonyama Trust under the KwaZulu-Natal Ingonyama Trust Act 3KZ of 1994?

Conceptual justification
From the outset, the reader is referred to the conceptual justification underpinning the following three acts: the Ingonyama Trust Act 3KZ of 1994, the Communal Property Associations Act 28 of 1996, and the Communal Land Rights Act 11 of 2004.

"To provide for the establishment of the Ingonyama Trust and for certain land to be held in trust; and to provide for matters incidental thereto" - Ingonyama Trust Act.

"To enable communities to form juristic persons, to be known as communal property associations, in order to acquire, hold and manage property on a basis agreed to by members of a community in terms of a written constitution, and to provide for matters connected therewith" - Communal Property Associations Act.

"To provide for legal security of tenure by transferring communal land, including KwaZulu-Natal Ingonyama Land, to communities, or by awarding comparable redress, to provide for the conduct of a land rights enquiry to determine the transition from old order rights to new order rights, to provide for the democratic administration of communal land by communities, to provide for Land Rights Boards, to provide for the cooperative performance of municipal functions on communal land, to amend or repeal certain laws and to provide for matters incidental thereto.

The principles and tenets entrenched by the Interim Protection of Informal Land Rights Act are not farfetched as far as the foregoing justification is concerned, i.e.: "To provide temporary protection of informal rights and interests in land …"

Although not necessarily concurrent in application or operation, these three statutes, as discernible from the above preambles, are indeed concomitant to one another in terms of purpose and designated group. The common purpose of all three is to benefit tribes or communities or members thereof by providing them with opportunities to acquire land in their own names. In the proper and normal semblance of indigenous law and culture, tribal land is administered by tribal authorities, which in turn are answerable to the monarchy via chiefs or paramount chiefs. The point to ponder here is whether vesting land in a community is tantamount to vesting it in a particular tribal authority (see Column 2 of the schedule annexed to Act 3KZ of 1994, which describes all the KwaZulu-Natal tribes and their respective tribal authorities). This state of affairs mostly affects communities that derive from indigenous custom compared with those that are creatures of statute (communal property associations). The Interim Protection of Informal Land Rights Act is a striking example of this state of affairs. In terms of this act, the concept of informal rights to land includes indigenous law and customary usage.

It is thus crucial to scrutinise the concept of community as used in the above acts, as the application of the act in different scenarios may depend upon it.

The Communal Land Rights Act defines a community as a group of persons that wishes to have its rights in a particular property determined by shared rules under a written constitution and that wishes to form an association. There are no problems with vesting property in this type of community because the constitution and the individual members' willingness to form part of the association already points to a common will to co-own the land.

However, the Communal Land Rights Act defines a community differently from the above act. In terms of the Communal Land Rights Act, a community is a group of persons whose rights are derived from shared rules determining access to land held in common by such a group. This definition is wide enough to recognise even the status quo of traditional values of land ownership, which is sanctioned by regulations of traditional authorities. The non-palatable reality as far as the latter community type is concerned is that a tribe and a community are arguably synonymous and therefore property will invariably vest in the traditional authority, while the individual, family or community only acquires a personal right, i.e., informal right to the land, i.e., possession or occupation.

Given the above differences, it becomes obvious that the deeds registration practice or the conveyancing method might differ materially in respect of the type of holder being dealt with, e.g., peculiar procedures or formats and even name descriptions might be followed and different supporting documents may be required in respect of the above juristic persons, a matter which the deeds registry ought to be watchful against to avoid nomenclature problems and registration errors, such as double registrations. In the case of a community in terms of the Communal Property Associations Act, the name of the community will bear a registration number known as the CPA number, e.g., Mtunzini Communal Association No. 0001/1998. The supporting documents will compromise, inter alia, a communal constitution.

Whereas, in the case of a community deriving from indigenous law and custom, the name will invariably be a tribal name and there will be no communal constitution, the name will not bear any registration number. Under the circumstances one may wonder just how the deeds registry is going to identify a particular party, given the amount of responsibility for correctness and accuracy that behoves it in terms of the Act. Here the records of the Provincial House of Traditional Leaders could come in pretty handy; for example, in KwaZulu-Natal indigenous communities are recorded in the following schedule (Column 2 of the KwaZulu-Natal Ingonyama Act) in order of area of jurisdiction and tribe:

Tribes and/or communities with the same value for rights of different origins and foundations

Whereas the Communal Land Rights Act makes clear provision for communal land parcels in the former TBVC States and former South African Development Trust areas, the same cannot be said with equal measure in respect of land parcels currently held in trust by the Ingonyama Trust. This can be squarely attributed to the fact that the principles of this land tenure system are fundamentally indigenous and thus totally different from the conventional property law principles. In fact, in some indigenous law literature, it is even argued that there is no such right as ownership in communal property governed by indigenous law and culture. Instead every right is communal, as the individual does not exist independently of a family and the latter does not exist independently of a community. The indigenous property law principles and procedures can be linked to the ancient Roman Law feudal system, where land belonged to the Roman Catholic Church and was administered by feudal lords, with the communities and individuals only holding land tenure rights and no absolute title. Hence there have been numerous cases where financial institutions have declined financing to an applicant who affords tribal land as security for a loan. From a conveyancing and deeds registration perspective, if this is a true reflection of the nature of the tenure rights system, that would play havoc with the constructive work that this Act seeks to achieve, because the rights in terms of this Act would be reduced to mere personal rights, which may not be registered at a deeds office, or mere limited real rights, which do not award the holder thereof the absolute freehold that is dearly needed as a constitutional right.

At this point one is reminded of CRC 6 of 1971, which provides inter alia as follows:
"Conditions in contravention of Section 63 must not be incorporated in grants and deeds of transfer, nor may such conditions, including ancillary rights, be similarly included in notarial deeds of servitude, notarial cessions of mineral rights and mineral leases."

Next week: An in-depth discussion on the distinction between real rights and personal rights on the one hand and the informal rights to land and new order rights on the other, as it affects deeds registration:

Your views and comments please - Editor of SADJ

Republished with Permission from the SA Deeds Journal

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