South Africa: Numbered Acts

LAND TITLES ADJUSTMENT ACT 111 OF 1993[/SAPL4]

[ASSENTED TO 28 JUNE 1993] [DATE OF COMMENCEMENT: 20 JULY

1993]

(English text signed by the Acting State President)

as amended by

Land Affairs General Amendment Act 11 of 1995

ACT

To regulate the allocation or devolution of certain land in respect of which one or more persons claim ownership, but do not have registered title deeds in respect thereof; and to provide for incidental matters.

[a111y1993s1]1 Definitions

In this Act, unless the context otherwise indicates-

'applicant' means a person by whom, or on behalf of whom, an application has been submitted to a commissioner in terms of section 6;

'commissioner' means the title adjustment commissioner concerned appointed under section 3;

'designated land' means the land designated by the Minister under section 2 to be dealt with in terms of this Act;

'Director-General' means the Director-General of Land Affairs; [Definition of 'Director-General' substituted by s. 13 (a) of Act 11 of 1995.]

'Minister' means the Minister of Land Affairs.

[Definition of 'Minister' substituted by s. 13 (b) of Act 11 of 1995.]

[a111y1993s2]2 Designation of certain land by Minister as land for purposes of this Act

(1) If one or more persons claim ownership of land in respect of which a title deed has at any time been issued, or of undivided shares in or defined portions of such land, and the Minister is satisfied that any number of such persons do not have registered title deeds in respect of such land, or undivided shares in or defined

portions of such land, by reason of the failure of any heir or other person preceding

them to take transfer of any such land or undivided share, or to pass a deed of partition transfer in respect of any such defined portion, and-

(a) that the situation will progressively become worse as a result of the increase in the number of such persons who do not have registered title deeds in respect of the land concerned, or the undivided shares in or defined portions of the

land concerned; or

(b) that the cost of acquiring in the usual manner registered title deeds in respect of the land concerned, or undivided shares in or defined portions of such land, would, with reference to any number of pieces of such land, or undivided shares in or defined portions of such land, be out of proportion to the value thereof,

and that in these circumstances the said land cannot be developed or utilized to the best advantage of the said persons, the Minister may, subject to the provisions of section 5 (7), by notice in the Gazette designate such land or any part thereof as land which may be dealt with in accordance with the provisions of this Act.

(2) Notwithstanding the provisions of subsection (1) and any decision taken under that subsection, the Minister may by notice in the Gazette and with effect from a date mentioned in that notice withdraw from a designation under subsection (1) any piece of land which in the opinion of the Minister, formed after investigation by the commissioner concerned, should not be dealt with in accordance with the provisions of this Act by such commissioner.

[a111y1993s3]3 Appointment of title adjustment commissioner

(1) The Minister may, subject to the provisions of subsection (3) and on the conditions determined by him, appoint a title adjustment commissioner in respect of one or more pieces of designated land to deal with that land in accordance with the provisions of this Act.

(2) Any such commissioner shall be a judge of the Supreme Court of South Africa or a magistrate, or a person who has held office as such a judge or such a magistrate, or an advocate or attorney who has for an uninterrupted period of at least five years practised as such.

(3) A commissioner who is not in the full-time service of the State shall, in respect of his service as a commissioner, be paid such remuneration and allowances as the Minister, with the concurrence of the Minister of Finance, may from time to time determine.

[Sub-s. (3) substituted by s. 14 of Act 11 of 1995.]

(4) If a commissioner for any reason vacates his office or is unable to perform his duties-

(a) another commissioner shall be appointed in terms of this Act in respect of the designated land concerned;

(b) anything done in terms of this Act by the commissioner who has vacated his office or who is unable to perform his duties shall be deemed to have been done by the commissioner referred to in paragraph (a); and

(c) any proceedings commenced with in terms of this Act by the commissioner who has vacated his office or who is unable to perform his duties, shall be proceeded with by the commissioner referred to in paragraph (a) as if those proceedings were commenced with by him.

[a111y1993s4]4 Commissioner deemed to be registered owner of designated land for certain purposes

(1) For the purposes of any survey of land or the transfer or sale of land, or an undivided share in or a defined portion of land, in terms of this Act, the commissioner concerned shall be deemed to be the registered owner of such designated land.

(2) The commissioner may sign all documents required in connection with such a survey, transfer or sale or for the purpose of giving effect to the provisions of this Act.

(3) The commissioner, or any person authorized thereto in writing by the commissioner concerned, may at all reasonable times enter upon the designated land in respect of which the commissioner has been appointed and perform on it any act necessary or expedient in order to give effect to the provisions of this Act.

[a111y1993s5]5 Costs and expenditure

(1) Subject to the provisions of subsection (2), the Director-General shall defray all expenditure in connection with the performance of the functions of a commissioner from money appropriated by Parliament for this purpose.

(2) Every applicant, other than a person referred to in subsection (7), who is in terms of this Act entitled to the allocation or transfer of designated land, or of an undivided share in or a defined portion of designated land, shall pay to the Director- General an amount to cover-

(a) the cost, as determined by the commissioner, of the allocation or transfer to him of the land, undivided share or defined portion concerned, and, in the case of a portion referred to in section 10 (2) (a), the cost of the survey contemplated in section 10 (2) (c); and

(b) such applicant's share, as determined by the commissioner, of the other expenditure incurred in terms of this Act in connection with the land concerned, including the remuneration and allowances referred to in section 3 (3).

(3) Such amount shall be paid by the Director-General into the National Revenue Fund established by s. 185 of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993).

[Sub-s. (3) substituted by s. 15 of Act 11 of 1995.]

(4) If designated land, or an undivided share in or a defined portion of such land, is to be allocated or transferred to two or more applicants jointly, such applicants

shall be liable jointly and severally for the amount which is payable in terms of subsection (2) to the Director-General in respect of the share or portion concerned.

(5) The provisions of section 33 (10) of the Deeds Registries Act, 1937 (Act

47 of 1937), shall mutatis mutandis apply with reference to the registration of the transfer of land, or of an undivided share in or a defined portion of land, allocated in

terms of this Act, and for that purpose the date upon which the land, share or portion concerned is allocated or sold to the transferee in terms of this Act shall be deemed to be the date of acquisition by him of that land, share or portion: Provided that-

(a) an applicant who, at any time before the allocation to him of land, or a share in or portion of land, in terms of this Act, has paid transfer duty in respect of that land, share or portion or in respect of any land, share or portion in the place of which that land, share or portion has been so allocated for transfer to him, shall not be liable for any further payment of transfer duty in respect of the land, share or portion allocated to him;

(b) notwithstanding anything to the contrary in the Transfer Duty Act, 1949 (Act 40 of 1949), contained, the value of land, or of a share in or portion of land, for the purposes of the payment of transfer duty by an applicant to whom that land, share or portion has been so allocated, shall be determined by the commissioner on such basis, or having regard to such circumstances, as he may generally or in the particular case deem to be fair or relevant.

(6) Subject to the provisions of subsection (2), the Director-General may, upon the recommendation of the commissioner, pay on behalf of an applicant any moneys for the payment of which such applicant is liable in terms of section 33 (10) of the Deeds Registries Act, 1937, as applied by subsection (5) of this section.

(7) The Minister shall, if he is of the opinion that the financial circumstances of the persons referred to in section 2 (1) are such that they would not be able to pay the amount referred to in subsection (2), direct in the notice published under that section, that the amount be defrayed in full or in part from money appropriated by Parliament for this purpose.

[a111y1993s6]6 Application for allocation and transfer of designated land

(1) The commissioner concerned shall cause to be published in a newspaper circulating in the district in which the designated land concerned is situated, or in the Gazette, a notice calling upon every person who claims to have acquired a right, by hereditary succession or otherwise, to be registered as an owner in respect of such land and who is not so registered, to submit to the commissioner, within the period of two months following the day upon which the notice has appeared, an application for the allocation and transfer to him in terms of this Act of the designated land in respect

of which he claims such right, or of an undivided share in or a defined portion of such land, supported by sworn or solemnly affirmed declarations by the persons alleging

those facts, and by such documents as the applicant may be able to submit, including any title deed in respect of the land concerned that he may have in his possession.

(2) As soon as practicable after the date upon which the notice referred to in subsection (1) has appeared, the commissioner shall-

(a) send a copy of the notice by registered post to every person referred to in that subsection whose name and address are known to the commissioner;

(b) if he is of the opinion that any further notice will be necessary to ensure that the persons concerned will receive adequate notice, give such further notice as he may deem necessary in the circumstances and which may include-

(i) a further notice in a newspaper, or a notice in a magazine or on the radio or television;

(ii) a notice in the Gazette;

(iii) the sending of further copies of the notice referred to in subsection (1), whether by registered post or not;

_{(iv) an oral notice;}

(c) If the commissioner is unable to cause an application to be submitted by or on behalf of the person concerned, he shall record the facts on which that person's claim to such right is based.

(d) The record contemplated in paragraph (c) shall for the purposes of this Act be deemed to be an application submitted to the commissioner on behalf of the person concerned in terms of this subsection.

(6) (a) The commissioner may allow an application in terms of subsection (1)

to be submitted after the expiry of the period referred to in that subsection if-

(i) the person submitting such application obtained his right to be registered as an owner of the land prior to the date on which such land was designated in terms of section 2 (1); and

(ii) the reasons why the application was not submitted within the period mentioned in subsection (1) are presented to the commissioner.

(b) The commissioner shall, on receipt of an application submitted in terms of paragraph (a), make such application known in any manner the commissioner deems fit, and shall in such publication call upon any person who wishes to object to the granting of the application so received to submit his objections to the commissioner in the manner prescribed by section 7 (1) (b), within 30 days of the commissioner's publication of such application.

(c) The application referred to in paragraph (a) shall for the purposes of this Act be deemed to be an application submitted to the commissioner in terms of subsection (1).

[a111y1993s7]7 Objections to application

(1) After the expiration of the period referred to in section 6 (1), and after the provisions of section 6 (5) have been complied with, the commissioner shall cause to be published in a newspaper circulating in the district in which the designated land concerned is situated, a notice-

(a) making it known that the applications submitted to the commissioner in terms of section 6 will be open for inspection during the period of two months following the day upon which the notice has appeared in the newspaper, and at such times and such place in the district concerned as shall be mentioned in the notice; and

(b) calling upon any person who wishes to object to the granting of any application, to furnish his objection and the grounds therefor, supported by sworn or solemnly affirmed declarations and such documents as he may be able to submit, to the commissioner within a period of 30 days after the expiration of the said period of two months.

(2) The provisions of-

(a) section 6 (2) shall mutatis mutandis apply in relation to a notice referred to in subsection (1);

(b) section 6 (3) and (4) shall mutatis mutandis apply in relation to an objection and the declarations referred to in subsection (1) (b).

[a111y1993s8]8 Investigation by commissioner

The commissioner may-

(a) conduct such investigation in connection with any application submitted to him in terms of section 6 as he may deem necessary in order to be able to make a finding on the claim of any applicant to be registered as an owner in respect of the designated land concerned, or of an undivided share in or a defined portion of

such land, or on the validity of any objection furnished to the commissioner in terms

of section 7 or in order to be able to make an allocation of such land, or an undivided share in or a defined portion of such land, to any applicant;

(b) at his discretion refuse to hear any oral evidence of any person or of any particular person at such an investigation unless such evidence is given under oath or solemn affirmation, which may be administered by the commissioner.

[a111y1993s9]9 Finding of commissioner

(1) The commissioner shall, after the provisions of sections 6 and 7 have been complied with, consider each application submitted to him in terms of section 6 and, with due regard to all the circumstances, including any objections lodged in terms of section 7 and the result of any investigation conducted by the commissioner under section 8, but subject to the provisions of section 12, make such finding as in his opinion is justified with reference to the claim of the applicant concerned to be registered as an owner in respect of the designated land concerned, or of an undivided share in or a defined portion of such land.

(2) The commissioner shall advise the applicant concerned of his finding under subsection (1) by written notice, which shall be handed to the applicant or sent to him by registered post, and shall in such notice inform the applicant-

(a) that, if he is not satisfied with the finding, he may within 60 days from a date mentioned in the notice, in writing request the commissioner to reconsider the finding on grounds which shall be set out fully in the request;

(b) if, according to the finding, the applicant is entitled to be registered as the owner of the land concerned, or an undivided share in or a defined portion of such land, that such finding may yet be amended, set aside or substituted under subsection (5) (b);

(c) that the findings of the commissioner are subject to the provisions of section 12 (1).

(3) If any applicant requests the commissioner as contemplated in subsection

(2) (a), to reconsider a finding-

(a) the commissioner may, if he is of the opinion that reconsideration of the finding on the grounds set out in the request will serve no useful purpose, refuse the request by written notice, which shall be handed to the applicant or sent to him by registered post;

(b) in so far as it may be necessary as a result of an amendment, setting aside or substitution under paragraph (a), amend, set aside or substitute by another finding, any other finding made by him under subsection (1) and in respect of which a notice has been furnished in terms of subsection (3) (b) (ii) to the applicant concerned.

(6) If the commissioner has confirmed, amended, set aside or substituted a finding under subsection (5), he shall advise the applicant concerned thereof by written notice, which shall be handed to the applicant or sent to him by registered post.

[a111y1993s10]10 Allocation and transfer of designated land

(1) Subject to the provisions of section 12, the commissioner shall allocate to an applicant who in terms of a finding under section 9 is entitled to be registered as an owner in respect of the designated land concerned, or an undivided share in or a defined portion of such land, the land, share or portion, as the case may be, in respect of which such applicant is in terms of such finding so entitled.

(2) (a) If all the applicants to whom undivided shares in one or more pieces of designated land have been allocated under subsection (1) or who are entitled to such an allocation, submit to the commissioner within two months from a date fixed by the commissioner a written partition agreement entered into with reference to such land

by such applicants and the registered owners of undivided shares in such land who are not applicants (if there are any such owners), the commissioner shall, after

subdivision of the land, allocate the different portions in accordance with the partition

agreement.

(b) The provisions of paragraph (a) shall not apply with reference to a piece of land referred to in section 12 (1).

(c) If a diagram of the different portions or any particular portion referred to in paragraph (a), which has been approved by the surveyor-general, is not available, the commissioner shall cause the necessary survey to be carried out in accordance with

the partition agreement.

(d) For the purposes of the allocation and transfer of the defined portions concerned in accordance with the partition agreement, the registered owners referred to in paragraph (a) shall be regarded as applicants.

(3) The commissioner may under subsection (1) or (2) and at his discretion or in accordance with the relevant finding or the partition agreement, as the case may be, allocate an undivided share in, or a defined portion of, land to one applicant or to two or more applicants jointly.

(4) When the commissioner has allocated land or an undivided share in or a defined portion of land to an applicant, he shall-

(a) by written notice, which shall be handed to the applicant or sent to him by registered post, advise the applicant of the allocation and of the date

thereof;

(b) if no direction under section 5 (7) was published, require him to pay the amount due by him to the Director-General under section 5 (2) in respect of the share or portion concerned, within three months from a date mentioned in the notice, or to make arrangements to the satisfaction of the Director-General within that period for the payment thereof.

(5) As soon as the commissioner is satisfied that the applicant has paid the amount referred to in subsection (4), or has made the arrangements for the payment thereof, he shall transfer the land, undivided share or defined portion concerned to that applicant.

(6) If a direction was published under section 5 (7), the commissioner shall cause the land, share or portion concerned to be transferred to the person entitled thereto and such land, share or portion shall, subject to the provisions of this Act, be registered in terms of the Deeds Registries Act, 1937 (Act 47 of 1937), and shall be exempted from payment of transfer duty, stamp duty or other fees.

(7) The designated land, or the undivided share in or defined portion of such land, shall, subject to the provisions of subsection (8), be transferred under subsection (5) or (6) subject to all rights registered against the land concerned, or the land of which the designated land, or the share or portion concerned, is a part, at the date of the transfer.

(8) If the undivided share in respect of which a defined portion has been allocated to an applicant under subsection (2) and such portion are to be transferred to him under subsection (5) or (6), are burdened with a registered mortgage or are the subject of a trust, fideicommissum, usufruct or other encumbrance by virtue of a will or other disposition in writing, such defined portion shall be deemed, in place of such undivided share, to be burdened with the mortgage or to be the subject of the trust, fideicommissum, usufruct or other encumbrance, as the case may be, and shall be transferred accordingly.

(9) A reference in a mortgage bond, will or other document to an und ivided share referred to in subsection (8), shall for the purposes of that subsection be construed as a reference to the relevant defined portion referred to in that subsection.

(10) The registrar of deeds shall make such endorsement on the registry duplicate and, upon the production thereof to him, on the original of any registered document relating to a mortgage, trust, fideicommissum, usufruct or other encumbrance referred to in subsection (8), as he may deem necessary in order to give effect to the provisions of that subsection and subsection (9).

(11) If an applicant dies after his application has been submitted to the commissioner but prior to the allocation or transfer of the land referred to in such application, such land may be allocated or transferred to the deceased's successor in

title or heir after the claim of the successor in title or heir has been proved to the satisfaction of the commissioner.

[a111y1993s11]11 Sale and transfer of allocated share or portion in certain circumstances and distribution of proceeds

(1) If an applicant fails to pay the amount, or to make the arrangements, referred to in section 10 (4) (b), within the period referred to in that section, the commissioner shall sell the land, undivided share or defined portion concerned in such manner and on such conditions as the Minister may determine, but subject to the provisions of subsection (2), and transfer it to the purchaser concerned.

(2) Land, or an undivided share in or a defined portion of land, referred to in subsection (1) shall be sold and be transferred free from any mortgage or any trust, fideicommissum, usufruct or other encumbrance by virtue of a will or other disposition in writing, but subject to any other registered right with which it would in terms of section 10 (6) or (7) have been encumbered had it been transferred in terms of section 10 (5) to the applicant to whom it was allocated.

(3) The proceeds of a sale in terms of subsection (1) shall be paid to the Director-General and shall be distributed by him in accordance with the provisions of this section.

(4) From such proceeds there shall be deducted-

(a) the amount payable by the applicant concerned to the Director- General in terms of section 5 (2) and the expenditure incurred by the commissioner in connection with the sale;

(b) if the land, undivided share or defined portion sold, was subject to a registered mortgage, the amount of the mortgage debt.

(5) An amount deducted in terms of subsection (4) (b) shall be paid by the

Director-General to the mortgagee concerned.

(6) After the deductions under subsection (4) have been made, the balance of the proceeds shall-

(a) if the land, undivided share or defined portion sold was subject to a trust, fideicommissum, usufruct or other encumbrance by virtue of a will or other disposition in writing, be deemed to be the subject of the trust, fideicommissum, usufruct or other encumbrance concerned and be paid by the Director-General to the master of the provincial division of the Supreme Court of South Africa having jurisdiction in the area in which the land concerned is situated;

(b) in any other case, be paid to the applicant referred to in subsection (1) or, if his address is unknown, to the said master.

[a111y1993s12]12 Sale and transfer of certain land and distribution of proceeds

(1) If the commissioner is of the opinion that any particular piece of designated land should not be subdivided or that any undivided share in such piece of land should not be transferred to an owner, the commissioner may, with the approval of the Minister, designate such piece of land as land which shall be sold in such manner and on such conditions as the Minister may determine, but subject to the provisions of this section.

(2) Any piece of land referred to in subsection (1) shall be sold and be transferred free from any mortgage or any trust, fideicommissum, usufruct or other encumbrance by virtue of a will or other disposition in writing, but subject to any other registered right with which the land is encumbered at the date of allocation in terms of section 10 (1).

(3) The proceeds of a sale under subsection (1) shall be paid to the Director- General and shall be distributed by him in accordance with the provisions of this section.

(4) The proceeds shall be allocated by the commissioner to the owners concerned in such manner that the amount allocated to an owner bears in relation to the total amount of the proceeds the same ratio as the share or shares of such owner bear in relation to the total shareholding in the land concerned.

(5) From the amount allocated to an owner in terms of subsection (4), there shall be deducted-

(a) any amount payable in terms of section 5 (2) by such owner to the Director-General and such part of the expenditure incurred by the commissioner in connection with the sale as bears the same ratio to such expenditure as the share or shares of such owner bear to the total shareholding in the land concerned;

(b) if the land concerned or any undivided share in such land was subject to a registered mortgage, the amount of the mortgage debt.

(6) An amount deducted in terms of subsection (5) (b) shall be paid by the

Director-General to the mortgagee concerned.

(7) After the deductions under subsection (5) have been made, the balance of the amount allocated to an owner in terms of subsection (4) shall-

(a) if the share of such owner in the land concerned was burdened, as contemplated in subsection (2), with a trust, fideicommissum, usufruct or other encumbrance by virtue of a will or other disposition in writing, be deemed to be the subject of such trust, fideicommissum, usufruct or other encumbrance in place of that share and shall be paid by the Director-General to the master of the provincial

division of the Supreme Court of South Africa having jurisdiction in the area in which the land concerned is situated;

(b) in any other case, be paid to the owner or, if his address is unknown, to the said master.

(8) For the purposes of this section 'owner', in relation to the sale of land or to an undivided share in land or to the distribution of the proceeds of such a sale, means a person registered in the deeds office as owner of such land or such undivided share

or a person to whom such land or such undivided share has been allocated in terms of section 10 (1).

[a111y1993s13]13 Laws no bar to subdivision and transfer under this Act

(1) The surveyor-general may approve a diagram or general plan of any subdivision of land in terms of this Act, and the registrar of deeds may register the transfer of any land, or of any piece of, undivided share in or defined portion of land, in terms of this Act, notwithstanding the provisions of any other law relating to the subdivision or registration of land.

(2) Notwithstanding the provisions of section 14 of the Deeds Registries Act,

1937 (Act 47 of 1937), but subject to the provisions of section 5 (5) of this Act, the

transfer of land, or of an undivided share in or a defined portion of land, which has been allocated or sold by the commissioner in terms of this Act shall be passed directly to the applicant to whom it has been so allocated, or the person to whom it has been so sold, as the case may be.

(3) If the commissioner is unable to obtain any title deed of land required in connection with the transfer of land or of an undivided share in or a defined portion of land in terms of this Act and submits an affidavit to that effect to the registrar of

deeds, the registrar may register the transfer and endorse it on the registry duplicate of such title deed.

[a111y1993s14]14 Delegation

(1) The Director-General may, subject to such conditions as he may deem necessary-

(a) delegate to an officer employed by the Department of Land

Affairs any power conferred upon him in terms of this Act; or

(b) authorize an officer employed by the Department of Land

Affairs to perform any duty assigned to him in terms of this Act. [Sub-s. (1) substituted by s. 16 of Act 11 of 1995.]

(2) Any person to whom any power has been thus delegated or who has been

authorized to perform any duty shall exercise that power or perform that duty subject to the directions of the Director-General, and the Director-General may at any time revoke such delegation or authorization.

(3) Any delegation under subsection (1) shall not prevent the Director-General from exercising that power or performing that duty himself.

[a111y1993s15]15 Repeal of laws, and savings

(1) The laws set out in the Schedule are hereby repealed to the extent indicated in the third column thereof.

(2) Any proceedings commenced with prior to the commencement of this Act, in terms of any law amended or repealed by this Act shall be concluded as if this Act had not been passed.

(3) Any person who is entitled to a deed of grant in terms of section 19 of the John Dunn (Distribution of Land) Act, 1935 (Act 15 of 1935), may obtain such deed of grant in terms of that section as if this Act had not been passed.

[a111y1993s16]16 Application of Act

As from the coming into operation of the Land Affairs General Amendment Act, 1995, the provisions of this Act shall apply in the whole of the national territory referred to in section 1 of the Constitution of the Republic of South Africa, 1993 (Act

200 of 1993).

[S. 16 substituted by s. 17 of Act 11 of 1995.] [a111y1993s17]17 Short title

This Act shall be called the Land Titles Adjustment Act, 1993.

Schedule

LAWS REPEALED

(Section 14*)

No and year of law Short title Extent of repeal

Act 38 of 1927 Black Administration Act, 1927 Section 8

Act 15 of 1935 John Dunn (Distribution of Land) Act, 1935 The whole

Act 42 of 1942 Black Administration Amendment Act, 1942 Section [1811] EngR 300; 2

Act 54 of 1952 Black Laws Amendment Act, 1952 Section 21

Act 68 of 1979 Land Titles Adjustment Act, 1979 The whole

Act 13 of 1984 John Dunn (Distribution of Land) Amendment Act, 1984 The

whole

Act 74 of 1987 Land Titles Adjustment Amendment Act, 1987 The whole