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Stalwo - more

29 November 2007

From Johann Strauss:

I find the comments (see Stalwo responses)on the Stalwo judgement quite extraordinary. I must assume that those commenting have had little or no experience of Act 70 of 1970. The Stalwo judgement is good, sound law and a perfectly correct interpretation of exactly what the Minister intended when he passed the 1995 amending legislation. It was a unanimous decision from a good bench.

Act 70 of 1970 is archaic legislation, and the previous Minister of Agriculture, ex-Minister Hanekom, introduced and Parliament passed legislation completely repealing the Act. Due to unfounded concerns of persons with vested interests, the repealing legislation has never been given a commencement date.

The 1995 amending legislation which the Supreme Court of Appeal has very correctly interpreted was intended to remove all the headaches which we experience in practice with Act 70 of 1970. We all know that most "agricultural land" with which we deal has been within urban areas and yet for the past few years, in every single instance, even when you wish to register a miserable servitude, you have to get the Department's consent.

In many instances this relates to land sitting well within municipal areas! The Department has become enormously inefficient and we have in some instances waited over a year for consent and in certain instances deals have fallen through.

The market will very properly determine the viable size of true farmland which constitutes the real agricultural land with which the Act should be concerned. If someone can successfully farm a hectare of land, why should he not be entitled to? In practice farms are being consolidated and are getting bigger and the market is driving this. Act 70 of 1970 was a silly interference with the market and the Minister's amendment in 1995 and the interpretation thereof by the Supreme Court of Appeal is exactly what is needed. In the 95% of cases where one is dealing with agricultural land within municipal areas, we should be able to get on efficiently with our transactions without having to go to a quite useless department and wait many many months for a consent which was never intended by the Act. In respect of the 5%, the Minister must issue a notice exactly as the Act envisages and as correctly found by the SCA.

The law is clear and both the Registrar of Deeds and the Surveyor-General's office are acting unlawfully in ignoring the judgement. We certainly look forward to taking both the Registrar and the Surveyor-General to court when they reject or refuse any attempt at subdivision registration or servitude registration because they tell us we need the Minister's consent.

Many thanks.

Johann Strauss
Strauss Scher Inc

And from Ken Mustard:

The Stalwo judgement has drawn a lot of comment, a lot of it unfavourable. The suggestion has been made by various parties, including the Surveyor General and one of your contributors (Robert Krautkrämer), that it be ignored for the time being.

The judgement is a judgement of the Supreme Court of Appeal. It cannot be ignored. Our society is based on the rule of law. One cannot ignore a Supreme Court of Appeal judgement because one considers it to be wrong. This is a dangerous precedent. There are a number of judgements of the Supreme Court of Appeal that have gone against the state. What would the position be if the state ignored them because it disagreed with them?

If one follows the rule of law, then one must accept that Supreme Court of Appeal judgements are binding unless and until they are overturned by the Constitutional Court, irrespective of whether or not one agrees with them. The alternative is to ignore the rule of law and to descend into anarchy.

Attorneys of all people should uphold the rule of law and speak out against its erosion.

Ken Mustard
Attorney
Pinetown


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