PRESIDENT'S
OFFICE
-
- No. 1099.
-
3 July 1996
-
- NO. 34 OF 1996: UPGRADING
OF LAND TENURE RIGHTS AMENDMENT ACT, 1996
-
- It is hereby notified that
the President has assented to the following Act which is hereby
published for general information-
-
- GENERAL EXPLANATORY NOTE:
-
- ** ** Words between
asterisks indicate omissions from existing enactments.
-
- << >> Words
between pointed brackets indicate insertions in existing
enactments.
-
ACT
-
- To amend the Upgrading of
Land Tenure Rights Act, 1991, so as to insert a definition of
"putative holder"; to alter
the definition of "tribal
resolution"; to grant discretion to the Minister regarding
payment for the costs of upgrading,
as well as in respect of the
upgrading of Schedule 2 rights outside formalised townships; to
amend procedures regarding the compilation
and correction of
registers of land rights as well as the making of entries therein;
to substitute the provisions relating to
rural settlements; to
further regulate offences in terms of the said Act; and to further
regulate the delegation of powers and
assignment of functions; and
to provide for matters connected therewith.
-
(English
text signed by the President.) (Assented to 27 June 1996.)
-
WHEREAS it is the government's
policy that the upgrading of land tenure rights should henceforth be
demand driven and that security
of tenure should be protected under
a variety of forms of tenure;
-
- AND WHEREAS it is
necessary to protect the rights and interests of putative holders
and to provide for a minimum requirement of
democratic procedures in
decision making;
-
- BE IT THEREFORE ENACTED by
the Parliament of the Republic of South Africa, as follows:-
-
Amendment
of section 1 of Act 112 of 1991, as amended by section 30 of Act -
108 of 1993 and section 8
of Act 11 of 1995
-
- 1. Section 1 of the
Upgrading of Land Tenure Rights Act, 1991 (hereinafter referred to
as the principal Act), is hereby amended-
-
- (a) by the insertion
before the definition of "Deeds Act" of the following
definitions:
-
- "<<
'community' means a group of persons of which its members have or
wish to have their rights to or in a particular
piece of land
determined by shared rules;
-
- 'community resolution'
means any decision taken by a majority of the members of the
community over the age of 18 years present
or represented at a
meeting convened for the purpose of considering the disposal of a
right in land lawfully occupied by or
allocated for the
-
use of such community, of
which they have been given sufficient notice, and in which they had
a reasonable opportunity to participate>>;";
-
- (b) by the insertion
after the definition of "Official Gazette" of the
following definition:
-
- "<< 'putative
holder' means the person who occupies an erf as if he or she is the
holder of the land tenure right
in respect of that erf but who is
not formally recorded in the register of land rights as the holder
of the right in question;>>";
and
-
- (c) by the substitution
for the definition of "tribal resolution" of the
following definition:
-
- " 'tribal
resolution', in relation to a tribe, means a resolution passed by
the tribe <<democratically and>>
in accordance with the
indigenous law or customs of the tribe: <<Provided that for
the purposes of this Act any decision
to dispose of a right in
tribal land may only be taken by a majority of the members of the
tribe over the age of 1 8 years
present or represented at a meeting
convened for the purpose of considering such disposal, of which
they have been given sufficient
notice, and in which they had a
reasonable opportunity to participate>>;".
-
- Amendment of section 3 of
Act 112 of 1991
-
- 2. Section 3 of the
principal Act is hereby amended-
-
(a) by the substitution for
subsection (1) of the following subsection: "(1) <<Subject
to subsection (1B)>>,
any land tenure right mentioned
-
in Schedule 2 and which
was granted in respect of **-
-
(a) any
erf or any other piece of land in a formalized township for which a
township register was or is opened either before
or after the
commencement of this Act; or
-
- (b) any piece of land
under a provision of any law and does not form part of a
township,** <<any erf or other piece of
surveyed land>>
shall, upon the submission by the owner of such erf or piece of
land
-
at the deeds registry of a
deed of transfer on the form prescribed for that purpose under the
Deeds Act and made out in the
name of the
-
person who is the holder
of the relevant land tenure right, be
-
converted into ownership by
the registrar of deeds by the registration of such erf or piece of
land in the name of such person:
-
- <<Provided that-
-
- (a) where the State is
the owner of an erf or piece of land situated outside a formalised
township, the relevant land tenure
right need not be converted into
ownership, and a deed of transfer shall not be submitted unless-
-
- (i) the Minister is
satisfied, on the basis of a report by a
-
person assigned or appointed
by him or her, that the rights or interests of putative holders
are being protected; and
-
- (ii) where such land is
lawfully occupied or has been allocated for the use of a tribe or
community a tribal or community
resolution has been obtained;
-
- (b) where a tribe is the
owner of the land, the decision to
-
convert the relevant land
tenure right into ownership shall be
-
taken by way of a tribal
resolution>>";
(b) by the insertion after
subsection (1) of the following subsections: "<<(1A) For
the purposes of an investigation
referred to in
-
subsection (1)(a), the
designated or appointed person shall have all the rights and duties
referred to in section 24D(7).
-
- (1B) If an owner of an
erf or piece of land is requested to submit a deed of transfer of
land in terms of subsection (1), the
Minister may on request of
such owner, or if the State is the owner of such land,
-
of his or her own accord-
-
- (i) impose conditions in
respect of the use of such land, but if
-
the State is the owner of
such land and it is lawfully occupied by or has been allocated for
the use of a tribe or community,
in consultation with such tribe
or community;
-
- (ii) from moneys
appropriated by Parliament or at the cost of an affected person
and on such conditions as he or she may determine,
cause such land
to be surveyed;
-
- (iii) order that an amount
to be determined by him or her be paid
-
by an affected person
to the owner of the erf or other piece of
-
land, or if the erf or other
piece of land falls within an area lawfully occupied or allocated
for use by a tribe or community,
to the tribe or community
concerned;
-
- (iv) provide for a
method for determining the amount to be paid in terms of paragraph
(iii)>>.".
-
- Amendment of section 16 of
Act 112 of 1991, as amended by sections 31 and
-
35 of Act 108 of 1993 and
section 12 of Act 11 of 1995
-
- 3. Section 16 of the
principal Act is hereby amended by the substitution for subsection
(1) of the following subsection:
-
- "(1) Subject to the
provisions of subsection (2) and the availability of moneys and
personnel, the Minister **shall** <<may>>
in respect of
a township in which land tenure rights mentioned in Schedule 1 or 2
have been granted in erven or other pieces
of land, take in
conjunction with the community residing in such township such steps
as may be necessary to declare such township
to be a formalized
township.".
-
- Amendment of section 17 of
Act 112 of 1991, as amended by section 35 of
-
Act 108 of 1993 and section 12
of Act 11 of 1995
-
- 4. Section 17 of the
principal Act is hereby amended-
-
- (a) by the substitution
in subsection (1) for the words preceding paragraph (a) of the
following words:
-
"(1)
If a township in which land tenure rights mentioned in Schedule -
1 or 2 have been granted
in erven or other pieces of land has not been
-
surveyed, the Minister may
**from moneys appropriated for that purpose by Parliament**-";
and
-
- (b) by the substitution
in subsection (1) for paragraph (b) of the following paragraph:
-
- "(b) cause the land
on which the township is situated, including such township itself,
to be surveyed and cause a diagram
**and**
-
<<or>> general
plan to be prepared; and".
-
Repeal of section 18 of Act
112 of 1991
-
5. Section
18 of the principal Act is hereby repealed. -
- Deletion of Chapter 2A of
Act 112 of 1991, as inserted by section 32 of
-
Act 108 of 1993 and amended by
section 12 of Act 11 of 1995
-
- 6. Chapter 2A of the
principal Act is hereby deleted. Substitution of section 20 of Act
112 of 1991
-
7. The following section is
hereby substituted for section 20 of the principal Act:
-
- "20. (1) A tribe may
request the Minister to transfer tribal land the control of which
vests in the tribe to the tribe
in ownership.
-
- (2) If the land has been
surveyed **and** the Minister **is of the opinion that the request
is feasible, he shall forthwith**
<<may>> take steps to
transfer the land concerned to the tribe in question.
-
- (3) If the land has not
been surveyed **or** the Minister **has any doubt as to the
feasibility of the request, he shall** <<may>>
designate any person to investigate the feasibility of the request
and to submit a report and recommendation to him <<or
her>>
in regard thereto.
-
- (4) Any person designated
under subsection (3) may for the purposes of his <<or her>>
investigation-
-
- (a) gather such
information as he <<or she>> may deem necessary; (b)
hear or receive representations from any person;
-
(c) question any person who
in his <<or her>> opinion may have relevant
information available;
-
- (d) by agreement between
interested parties, settle any difference as to the land which
forms the subject of the investigation,
or the boundaries of such
land;
-
- (e) <<if requested
by the interested parties>> determine the boundaries of such
land or, if they cannot be determined,
establish them in
consultation with interested parties;
-
(f)
<<on the authority of a warrant issued by a magistrate or a
judge having jurisdiction>> at any reasonable
time enter
upon such land or any contiguous land.
-
- (5) Any person designated
under subsection (3) may in the
-
performance of his <<or
her>> functions be accompanied by such persons as he <<or
she>> under the circumstances
of any particular case may deem
necessary.
-
- (6) The Minister shall
issue to a person designated under subsection (3) proof in writing
of his <<or her>> designation,
and such person shall in
the performance of his <<or her>> functions under this
-
section produce, at the
request of any person affected such functions, such proof to the
latter person.
-
- (7) **If** After receipt
of a report and recommendation referred to in subsection (3), the
Minister **is of the opinion that
the request is feasible or
partially feasible, he shall** <<may>> cause the land
-
to be surveyed, if such land
or any portion thereof **which may in the opinion of the Minister
be transferred** has not been
surveyed, and
-
**forthwith** take steps to
transfer such land or such portion to the tribe in question.
-
- (8) If **after receipt of
a report and recommendation referred to in subsection (3),** the
Minister **is of the opinion that
the request is not feasible, he**
<<does not proceed in terms of subsections (2) or (7) he or
she>> shall cause
the tribe in question to be notified in
writing of the reasons for his <<or her>> decision not
to accede to such
request.
-
- (9) No transfer duty,
stamp duty or other fees shall be payable in respect of any
transfer in terms of subsection (2) or (7).
-
- (10) For the purposes of
this section 'surveyed' means surveyed under a provision of any
law.".
-
- Amendment of section 21 of
Act 112 of 1991
-
- 8. Section 21 of the
principal Act is hereby amended by the deletion of paragraph (a).
-
- Substitution of section 22
of Act 112 of 1991, as amended by section 12(b)
-
of Act 11 of 1995
-
- 9. The following section
is hereby substituted for section 22 of the principal Act:
-
- "Transfer of certain
offices to Department **of Public Works and** Land Affairs
-
- 22. (1) **Subject to the
provisions of section 25, the President may by proclamation in the
Gazette, and as from a date determined
in the proclamation,
transfer** Any office <<-
-
- (a)>> for the
registration of land tenure rights<<->> (a)>>
mentioned in Schedule 1; or
<<(b) similar to the
rights mentioned in Schedule 1, as -
contained in laws which by
virtue of section 229 of the Constitution
-
of the Republic of South
Africa, 1993 (Act No. 200 of 1993), continue to be in force in any
area of the Republic,>>
-
- **(b) which renders
surveying services,** and which has been established in the
Department of Development Aid or in any department
under the
control of the government of a **self-governing**
-
territory, <<which
after the commencement of that Constitution, forms
-
part of the national
territory, is hereby transferred>> to the
-
Department of **Public Works
and** Land Affairs.
-
- (2) As from the date
**specified in a proclamation under subsection (1)** <<of the
commencement of the Upgrading of Land Tenure Rights Amendment Act,
1996>>-
-
- (a) the control of
<<such>> an office **so specified,** and all
registers, books, plans, diagrams, records and
other documents
relating to the affairs of such office, shall vest in the
Director-General: **Public Works and** Land Affairs;
and
-
- (b) the officers and
employees attached to such office shall, subject to subsection
(3), perform their functions as if they
were seconded to the
Department of **Public Works and** Land Affairs.
-
(3) **(a)** Any officer or
employee referred to in subsection (2) and who is an officer or
employee in the public service may
be dealt with in accordance with
the Public Service Act, **1984 (Act No. III of 1984)** <<1994>>.
-
**(b)
Any officer or employee referred to in subsection (2) who is an
officer or employee in the government service of a self-governing
territory may be transferred to the Department of Public Works and -
Land Affairs in accordance
with the Public Service Act, 1981, as if he is a member of the
public service: Provided-
-
- (i) that such transfer
shall not be effected without his consent;
-
and
-
- (ii) that such transfer
shall not be effected under conditions which are less favourable
than the conditions applicable to
him as a member of the
government service concerned.**".
-
- Substitution of section 23
of Act 112 of 1991, as amended by section 33 of
-
Act 108 of 1993
-
- 10. The following section
is hereby substituted for section 23 of the principal Act:
-
- "23. Any person who-
-
- (a) <<wilfully>>
hinders or obstructs any person designated under section
-
18 (1) or (2) **181)(1)
or (2)** or 20(3) in the performance of his
-
<<or her>>
functions under this Act;
-
- (b) **refuses or fails to
answer to the best of his ability any questions put to him by any
such person in the performance of
his functions under this Act;
or** <<fails to comply with an order in terms of section
18(6A), except an order for costs,>>
-
- **(c) refuses or fails to
comply to the best of his ability with any request made by any such
person in the performance of his
functions under this Act,** shall
be guilty of an offence and liable on conviction to a fine **not
exceeding R 2 000** or to
imprisonment for a period not exceeding
six months.".
-
- Amendment of section 24A
of Act 112 of 1991, as amended by section 9 of
-
Act 11 of 1995
-
- 11. The following section
is hereby substituted for section 24A of the principal Act:
-
- "Delegation of
powers and assignment of functions
-
- <<24A. (1) The
Minister may, either in general or in a particular case or in cases
of a particular nature, in writing
delegate to-
-
- (a) a Premier or a member
of the Executive Council of a province; or
-
- (b) any officer in the
service of the national government or a local government body
contemplated in section 1 of the Local
Government Transition Act,
1993 (Act No. 209 of 1993), any power conferred upon him or her by
or under this Act.
-
- (2) Any person to whom
any power has been delegated under subsection (1) shall exercise
that power subject to the directions
of the Minister.
-
(3) The Minister may at any
time revoke such delegation in writing and the delegation of any
power shall not prevent the Minister
from exercising that power
himself or herself.
-
- (4) The Premier or a
member of the Executive Council of a province to whom any power has
been delegated under subsection (1)(a)
may, subject to any
directions contemplated in subsection (2) and such further
conditions and periods of time as he or she may
determine, delegate
any such power in writing to-
-
- (a) the Director-General
of that province; or
-
- (b) any officer in the
service of the provincial government concerned.
-
- (5) The President may, by
proclamation in the Gazette-
-
- (a) assign the
administration of this Act or any provision of this
-
Act to a Premier of a
province; or
-
- (b) reassign the
administration of this Act or any provision as assigned in terms of
paragraph (a) to a Minister referred to
in section 88 of the
Constitution, either generally or to the extent specified in the
proclamation, and subject to such conditions,
amendments,
adaptations, modifications, and periods of time as the President
may determine.
-
- (6) When the President
assigns the administration of this Act under subsection (5), or at
any time thereafter, and to the extent
that he or she considers it
necessary for the efficient carrying out of the assignment, he or
she may regulate any matter which
is necessary or
-
expedient as a result of the
assignment, including matters relating to the transfer or secondment
of persons (subject to the provisions
of sections 236 and 237 of the
Constitution) and relating to the transfer of assets, liabilities,
rights and obligations, including
funds, to or from the national or
a provincial government or any department of state, administration,
force or other institution.
-
- (7) The transfer of any
asset, liability, right or obligation contemplated in subsection (6)
shall be done subject to the provisions
of the relevant applicable
Exchequer Act.
-
- (8) The transfer or
secondment of persons as contemplated in subsection (6) shall be
done after consultation with the Public Service
Commission and the
relevant provincial service commission, if applicable.
-
- (9) The Premier of a
province may, subject to such conditions and periods of time as he
or she may determine, in writing authorise-
-
- (a) any member of the
Executive Council of that province;
-
- (b) any member of such
Executive Council and the Director-General of the province jointly;
-
- (c) the said
Director-General;
-
- (d) any officer in the
service of the provincial government concerned;
-
- (e) any local government
body contemplated in section I of the Local Government Transition
Act, 1993, to exercise or perform in general or in a particular
case or in cases of a particular nature, any power, duty or
function
which the Premier is in
-
terms of a proclamation
under subsection (5) authorised to exercise or perform, except the
power to make regulations.
-
- (10) The provisions of
section 10(5) and (5A) of the Interpretation Act, 1957 (Act No. 33
of 1957), shall apply mutatis mutandis
to the administration of
this Act or any provision of this Act assigned under subsection
(5)(a) or reassigned to a Minister
under subsection (5)(b)>>.".
-
- Insertion of sections 24B,
24C and 24D in Act 112 of 1991
-
- 12. The following sections
are hereby inserted in the principal Act after section 24A:
-
- "Payment of costs of
upgrading
-
- <<24B. The holder
of a land tenure right shall be responsible for the payment of all
costs connected with the upgrading
of such right including the
costs of surveying: Provided that the Minister may assist such
person with the payment of such
costs.
-
- Regulations
-
- 24C. The Minister may
make regulations regarding-
-
- (a) any matter required
or permitted to be prescribed by regulation in terms of this Act;
and
-
- (b) generally, all
matters which are necessary or expedient to be prescribed in order
to achieve the objects of this Act.
-
- Updating and compilation
of registers of land rights
-
- 24D. (1) If the Minister
is of the opinion that a register of land rights in respect of
which land tenure rights mentioned in
Schedule I or 2 have been
granted in erven or other pieces of land has not been written up or
properly written up, there is
an incorrect entry therein or that it
reflects the names of persons who are not the putative holders of
the relevant land tenure
right, he or she may designate any person
to investigate and compile a register of land rights for the area
or to update the
existing register and to rectify errors or
supplement omissions.
-
- (2) If the Minister
receives a request from a tribe or community in respect of any area
on land lawfully occupied by or has
been allocated for use by such
tribe or community, in which the individual erven or other pieces
of land are occupied or utilized
by individuals and their families
under the rules or customs of that tribe or community, he or she
may designate any person
to compile a register of land rights in
respect of such area.
-
- (3) If an area referred
to in subsection (1) or (2) has not been surveyed, the Minister may
determine that the functions contemplated
in that subsection shall
not be performed before the survey of such area has commenced.
-
- (4) Any register of land
rights compiled or updated under subsection (1) or (2) shall, as to
its shape, form and contents, be
compiled or updated in accordance
with the legal and administrative requirements applicable to a
township or other relevant
register.
-
- (5) Any person designated
under subsection (1) or (2) shall in the compilation or updating of
a register of land rights-
-
(a) satisfy himself or
herself that if a general plan for an area exists the property
descriptions in the register or which
he or she makes in the
register correspond with those descriptions on the general plan of
the area concerned;
-
- (b) ascertain the
identity of the person who at the relevant time is the de jure
holder of the land tenure right in each relevant
erf or other piece
of land in the area as well as the identity of any
-
putative holder of the
relevant land tenure right in each such erf
-
or piece of land;
-
- (c) consider any
representations made to him or her either orally or in writing by
any person who lays claim to be registered
in the register as the
holder of a land tenure right;
-
- (d) take reasonable steps
to ensure that persons affected or likely to be affected by the
investigation and compilation receive
-
effective notice of the
investigation, are given an opportunity of making representations
with regard thereto and are informed
of
-
the result thereof;
-
- (e) if it is just and
equitable, make a recommendation to the Minister regarding such
arrangements as are appropriate and necessary
to protect other
rights and interests, if any, in that erf or piece of land,
including the rights and interests of putative
holders.
-
- (6) In order to gather
information which is necessary or expedient in compiling or updating
a register of land rights for the
area concerned, any person
designated under subsection (1) or (2) may-
-
- (a) subject to any law
governing privilege, question any person who in his or her opinion
may have relevant information available;
-
- (b) subject to any law
governing privilege, require any person to deliver to him or her
forthwith, or to submit to him or her
at such time and place as may
be determined by him or her, any register, permit, certificate,
title of land right or other
-
document in the
possession or under the control of any such person
-
and which in his or her
opinion contains relevant information;
-
- (c) examine any such
register, permit, certificate, title of land right or document or
make an extract therefrom or a copy thereof;
-
- (d) if it is necessary
for the purposes of paragraph (a), (b) or (c), at any reasonable
time, on the authority of a warrant
issued by a magistrate or judge
having jurisdiction, enter upon any erf or other land in the area
concerned.
-
- (7) If any person refuses
to answer a question put to him or her under subsection (6)(a) or to
deliver or submit anything required
under subsection (6)(b), the
person acting under subsection (6)(a) or (b) may apply to the
magistrate's court for the district
in which the erf or piece of
land in question is situated for an order compelling the former
person to answer the question or
deliver or submit the thing and the
court may make such order as it deems fair and just under the
circumstances, including an
order for costs, having regard to the
public interest and the right to privacy of the respondent.
-
- (8) Any person designated
under subsection (1) or (2) may in the performance of his or her
functions be accompanied by such persons
as he or she under the
circumstances of any particular case may deem necessary.
-
(9) The Minister shall issue
to a person designated under subsection (1) or (2) proof in writing
of his or her designation,
and such person shall in the performance
of his or her functions under this section produce, at the request
of any person affected
by such functions, such proof to the latter
person.
-
- (10) (a) Any person
aggrieved by an entry made by a person designated under subsection
(1) or (2) in a register of land rights,
may within 30 days after
he or she became aware of the entry, but not more than a year after
the entry was made, appeal in
writing against such entry to the
Minister.
-
- (b) The Minister may,
after he or she has considered the grounds of the appeal and the
reasons of the person designated under
subsection (1) or (2) for
such entry-
-
- (i) either in whole or in
part, allow the appeal, and-
-
- (aa) direct such person
to alter such entry or to substitute for it any other entry which
such person in the Minister's opinion
ought to have made; or
-
- (bb) order that such
arrangements be made as are appropriate and necessary to protect
the rights and interests of the appellant
as well as other rights
and interests, if any, in that erf or piece of land; or
-
- (ii) dismiss the appeal.
-
- (c) The Minister shall
cause a person who lodged an appeal with him or her to be notified
in writing of his or her decision
on the appeal.
-
- (11) The Minister may
from monies appropriated by Parliament for that purpose, after
receiving a recommendation in terms of
subsection (5)(e) or an
order made in terms of subsection (10)(b)(i)(bb), provide
assistance to persons having rights and interests
in such erf or
piece of land, including assistance to obtain rights in such erf or
piece of land or alternative land.
-
- (12) The designation of a
person in terms of subsections (1) and (2)
-
and section 3(1)(a) and
assistance in terms of subsection (11) shall be subject to the
availability of personnel and funds.
-
- (13) This section shall
apply throughout the Republic>>.". Short title
-
13. This Act shall be called
the Upgrading of Land Tenure Rights
-
Amendment Act, 1996.
-
|
