The subdivision of agricultural land or “farmland” is regulated by the Subdivision of Agricultural Land Act No. 70 of 1970 (hereafter “the Act”) which came into operation on 2 January 1971. Baker J, in the case of Van der Bijl v Louw, stated that the Act has its purpose in preventing the situation where farming units are created which are not economical or could be described as non-viable subunits. This prevention objective is achieved in essence by the Minister of Agriculture, Land Reform and Rural Development of South Africa, who has to give their consent before any subdivision may lawfully be effected.
Section 2 of the Act will be the topic of discussion in Part 1 of this series of articles and encompasses actions which are excluded from the application of the Act. These actions include the scenarios as follows:
Firstly, the application of the Act is excluded where any portion of agricultural land is subdivided in order to transfer a portion thereof to the State or a statutory body, or a transfer to the State or statutory body of an undivided share in land, or the selling or granting of any right to any portion of agricultural land to the State or statutory body. The meaning of “right” in the latter scenario is defined in Section 1 of the Act as not including any right to minerals or a prospecting or mining right, but merely a right in relation to agricultural land.
The second exclusion to the application of the Act is where a person had died before 2 January 1971,which is the commencement date of the Act, and there was a consequent passing of an undivided share or any subdivision of land due to a provision in the deceased’s last will and testament or due to intestate succession where the deceased had not left a will.
The third exclusion to the application of the Act is where a contract was entered into before the commencement of the Act, and such contract made provision for the passing of an undivided share in any agricultural land.
The fourth exclusion is where a surveyor has completed and submitted to the surveyor-general the relevant subdivisional diagram and survey records to be examined and approved prior to the commencement of the Act.
The fifth and final scenario that is excluded from the application of the Act is where a lease agreement for a portion of agricultural land had been concluded in writing before the commencement of the Subdivision of Agricultural Land Act Amendment Act, 1974 and such lease was registered with its provisions similar to Section 3(d) of the Act. Such provisions are lease contracts where the lease period amounts to 10 (ten) or more years in total, or, when consecutive lease contracts entered into did not amount to a total time period of less than 10 (ten) years.
Thus, if a person who finds him or herself in circumstances where they are dealing with the subdivision of agricultural land and such circumstances are alike with any of the five scenarios above, then the Act will not be applicable. This means that such subdivision of farmland can be effected immediately without compliance to any other conditions and/or provisions as contained in the Act.
In Part 2 of the series on “The Subdivision of Agricultual Land Act No. 70 of 1970 Explained”, we shall look at actions that are prohibited in the subdivison of agriculural land or actions amounting to such subdivison and consider any available remedies.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)