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Stalwo memorandum

15 November 2007

1. STALWO (PTY) LTD V WARY HOLDINGS (PTY) LTD

  1. If one reads the decision in Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd it is clear that there is no longer any land in the Republic of South Africa situated outside the jurisdiction of a local authority and therefore, for the moment, there is no "agricultural land" as defined in section 1 of the Subdivision of Agricultural Land Act, 1970 (Act 70 of 1970).
  2. Unless the relevant legislation is amended the situation will remain so until the Minister of Agriculture, after consultation with the executive committee concerned and by notice in the Gazette, declares any particular land to be agricultural land for the purposes of the said Act.

2. REGISTRARS OF DEEDS AND SURVEYORS GENERAL
  1. It would appear as if the Registrars of Deeds decided, at a management meeting held on 29 October 2007, that they will continue to apply Chief Registrars Circular 6 of 2002 in terms of which a uniform practice was laid down as follows: all subdivisions of agricultural land and the increase of shareholders in agricultural land requires the consent from the Minister of Agriculture or a letter from the Department of Agriculture to the effect that the land in question is not agricultural land as defined in the Act. For the sake of uniformity, the Registrars of Deeds applied the above instruction to all land, irrespective of its extent, which contained the word "farm" in its property description.
  2. I find it strange that the Registrars of Deeds have come to the said decision. It is the duty of the Registrars of Deeds to uphold and apply the laws of the country. They cannot choose to ignore the interpretation of the Supreme Court of Appeal of the applicability of the Subdivision of Agricultural Land Act. To decide that "all land, irrespective of its extent, which contains the word 'farm' in its property description" is agricultural land as defined in section 1 of the Subdivision of Agricultural Land Act is absurd.
  3. If they persist it will not be the first time that the Registrars of Deeds will have incorrectly interpreted the Subdivision of Agricultural Land Act. Almost thirty years ago the Bloemfontein Registrar of Deeds, as the court found in Willis NO v Registrateur van Aktes, Bloemfontein 1979 (1) SA 718 (O), also incorrectly interpreted the act. It is to be hoped that history will not repeat itself.
  4. It would appear as if the Surveyors General have also decided not to apply the decision in Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd . I have not been able to ascertain the reason for their decision.
  5. The Registrars of Deeds and Surveyors General should note that they may, if they persist in their decision not to apply Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd, contravene other legislation. I refer to paragraph 3.2 of this memorandum from which it is clear that they will contravene the provisions of Townships Ordinance No. 9 of 1969 if they allow the subdivision or consolidation, of what they obviously incorrectly regard as 'agricultural land' as defined in section 1 of the Subdivision of Agricultural Land Act, without the responsible Member's consent.
  6. It can only be hoped that the Registrars of Deeds and Surveyors General will re-read the decision in Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd and then correctly apply the law.

3. OTHER LEGISLATION AFFECTED
It needs to be noted that that the impact of the decision in Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd goes much wider than merely affecting the subdivision of "agricultural land". A number of legislative provisions are affected of which the following are but a few:
  1. The Share Blocks Control Act 59 of 1980 provides, in section 5 (1) thereof that "No share block scheme shall be operated in respect of... agricultural land as defined in section 1 of the Subdivision of Agricultural Land Act, 1970 (Act 70 of 1970). As there is, for the moment, no such land a share block scheme can now be operated as regards any land in the Republic of South Africa. This could prove a big boost for the tourism industry as more and more city dwellers are desirous of obtaining ownership of a weekend abode on a "farm";
  2. The Townships Ordinance No. 9 of 1969 of the Free State provides that, except with the approval of the responsible Member, the Surveyor-General shall not approve a diagram of a portion of an erf or land which is not agricultural land as defined in section 1 of the Subdivision of Agricultural Land Act, No. 70 of 1970, if such diagram is intended for the registration of the transfer or lease of such portion in the Deeds Office or for obtaining a certificate of registered title in respect of such portion; or which has been compiled from two or more diagrams representing several erven or pieces of land, for the purpose of obtaining a consolidated title thereto.
  3. The Sectional Titles Act 95 of 1986 defines a 'development scheme' as "a scheme in terms of which a building or buildings situated or to be erected on land within the area of jurisdiction of a local authority is or are, for the purposes of selling, letting or otherwise dealing therewith, to be divided into two or more sections..." As all farms are now "within the area of jurisdiction of a local authority" it should be possible to conduct a sectional title scheme on any farm.

Roelie Rossouw

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