DEPARTMENT OF AGRICULTURE, LAND REFORM AND RURAL DEVELOPMENT’S RESPONSES TO PUBLIC COMMENTS ON THE ULTRA BILL: 01 SEPTEMBER 2020

ORGANIZATION CLAUSE COMMENT OR PROPOSED AMENDMENT DALRRD RESPONSE

Legal Resources Centre

1. Context

within which

ULTRA

operates

ULTRA is about making “insecure” tenure rights, secure.

Nearly 60% of the population or 30 million people are

“off-register”. That includes an estimated 6,5 million

people in RDP houses, people in backyard shacks, on

farms and people in communal areas.

Off-register property is not regarded as an asset because

it cannot secure loans, and in turn, the property is seen

as of little or no value by a system that values such

assets. As a result, communities, farm workers and

shack dwellers displaced through development of a mine,

for example can lawfully lose their property without being

compensated for its value.

We agree.

That is not disputed.

The principle is not disputed.

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Some people suggest that the solution to this

fundamental South African problem is to simply expand

titled private property rights to all through the Deeds

Registry, that solution does not only appear unrealistic

and prohibitively expensive, but even if it was realistic,

would likely lead to exacerbating the problem.

An enormous amount of thinking has gone into what

alternatives to the existing system could look like.

Manona, Kingwell and others advocate for an entirely

new system of land administration based on a statutory

recording of off-register rights that exist parallel to the

Deeds Registry.

It is our submission that ULTRA itself, even

with the necessary tinkering, remains a

wholly inappropriate piece of legislation for

solving the complex and urgent issue of the

There is an alternative view. Extending titling is

not only realistic but also ensures security of

tenure and equality. The process cannot be

prohibitively expensive if officials of the

Department are designated to perform functions

ordinarily performed by conveyancers. That can

be provided for in legislation.

Ideally and ordinarily there should be nothing

wrong with a statutory recording of off-register

rights that exists parallel to the Deeds Registry.

However, in our context, continuing parallel

systems means continuing with a system that

was only created for Africans alongside the one

created for other race groups. This is unfair

discrimination as it does not guarantee equal

protection of the law. Some may see it as

continuing separate development by a

democratic State.

We agree that we need to focus our attention to

the bigger question of how best to secure

tenure rights in SA. We are already developing

legislation on how best to secure tenure rights.

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insecurity of the property rights of 30 million

South Africans. We urge the committee to

turn its attention towards engaging the

bigger question of how best to secure

tenure rights in South Africa.

No Communal Land Tenure Bill can

succeed in the absence of an alternative

system of land recordal in South Africa. As

long as we are only able to record property

rights at a single level as the existing Deeds

Registry dictates, communal land can only

be registered at one level: if that is the level

of the community, the tenure rights of the

individuals and families within that

community are rendered more insecure.

The amendment to ULTRA necessitated by

We have started with legislation of communal

land tenure.

Communal Land Tenure Bill envisages both

systems, the recordal and registration of land

rights. The nature of land right will determine

whether it is to be recorded or registered. If it is

freehold or long-term lease for residential or

business purposes it has to be registered with

Deeds Registry. Use rights for grazing,

cropping, access to forests and rivers may be

assumed or recorded at a community level. The

question is whether land rights in respect of

residential or business purposes can be legally

secure if not registered as freehold in the

Deeds Office. We believe they can only be

secure if registered with Deeds office, not just

recorded. Use rights can be assumed e.g. for

grazing and access to forestry and rivers or

recorded at community level for cropping.

It is possible for traditional councils to apply for

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the Constitutional Court’s order in Herbert-

case, may make it possible, in theory, for

traditional councils to apply, in terms of

sections 19 and 20 of ULTRA, to have the

title deed of a communal area transferred to

the council. Within the current context, that

will erase the rights held at individual and

family level and lead to greater, rather than

reduced, tenure insecurity.

The tinkering with ULTRA without a parallel

process of overhauling the recordal and

registration of rights in South Africa will

thus, at best, lead to an entrenchment of

the status quo whereby the majority of ‘off-

register’ rights of 30 million South Africans

retain their insecure status. At worst, it

would deepen the insecurity of tenure

problem by reinforcing the hierarchy

between ‘titled’ and ‘untitled’ tenure.

Mr Shabane is quoted as explaining that

while the problem with the Communal Land

Rights Act which was declared

transfer of communal land to them as councils.

However, the Minister can only lawfully transfer

communal land to a community which is a legal

person in terms of section 19 of ULTRA and not

a traditional council. Transferring land to a

council will in effect not be a transfer to a

community but a transfer to another organ of

state. A traditional council is an organ of state

performing a public function in terms of

legislation.

We agree, hence we are earnestly overhauling

the recordal and registration of rights through

the Communal Land Tenure Bill that we are

developing. We had to amend ULTRA because

the Constitutional Court prescribed to

Parliament the time frame within which to

amend that Act.

Communal Land Rights Act, 2004 aimed at

transferring communal land to a community (a

legal person) in ownership for that community

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unconstitutional was that the Act aimed to

transfer “the outer boundaries of land”, or

the communal land as a whole in private

ownership, to structures like traditional

councils, ULTRA is different as it “deals with

deeds of grant at the level of households

and not at the level of a traditional council”.

Section 19 and 20 of ULTRA, on the face of

it, provides for precisely the problematic

model of communal land to be transferred

in titled private property to “a tribe” or a

community – which must necessarily be

held by a communal structure such as a

traditional council, with no provision for the

protection of household, individual and

overlapping rights; and

to own its land. It did not seek to transfer

communal land to traditional councils.

It allowed traditional councils to continue to

administer communal land and that is what the

Court declared unconstitutional.

It is correct that section 2 of ULTRA which has

been declared unconstitutional deals with

deeds of grant for township households and not

at the level of traditional councils. Section 2

deals with townships, not communal land or

traditional councils.

It is correct that sections 19 and 20 of ULTRA

provide for communal land to be transferred to

a community in private ownership. This must be

lauded as ensuring tenure security. However, it

is not correct that communal land must

necessarily be held by a communal structure

such as a traditional council. Section 19

provides that a community becomes a legal

person so that it can hold property by itself or a

structure of its choice.

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2. Legal

Historical

Context

ULTRA specifically does not provide title “at

the level of households” as Mr Shabane

indicated, but to individuals. This is

precisely why Mrs Rahube was excluded

from the title deed that went to her brother

as an individual.

While the proposed amendment allows for

that individual to also be a woman, where

appropriate, it retains the structure of the

Act that titling is in the name of an individual

or single entity.

Section 2 of ULTRA deals with deeds of grant

for township “family” houses. It is correct that

titling is in the name of an individual. Individual

titling for township deeds of grant resulted from

the notion that in terms of customary law for

Africans, property can only be registered in the

name of a male person. If it was not for that

interpretation, the deed of grant could have

been correctly issued in the name of an

individual owner or names of joint or several

owners constituting a family or household.

The ULTRA Bill does not prohibit joint or

several ownership of property by individuals

constituting a family or household. It

deliberately includes a person who could have

been a holder. It does not exclude joint or

several holders. Therefore, family or household

members can register property as joint or

several owners.

Registering property in the name of a

compound structure like a “family” or

“household” will always have its challenges

because such structures are not static but are

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In 1991, the Upgrading of Land Tenure

Rights Act was passed. It envisioned

upgrading tenure in townships to private

title and could potentially be used in the

rural areas to ‘upgrade’ off-register rights of

black landholders. It has all the hallmarks of

apartheid-era legislation: a top-down

bureaucratic system that takes as a starting

point the State’s right to determine, from the

top, who the legitimate rightsholder is and

to grant that person the exclusive status as

private property owner.

evolving. When they transact on land rights,

they must have a representative and that is

where patriarchy kicks in.

The upgrading of tenure in townships from

deeds of grant to title deeds ensures security of

tenure and must be supported despite the fact

that it was initiated by the apartheid

government. Other race groups already had title

deeds.

Equally, the upgrading of “off-register” rights in

rural areas for African landholders ensured

security of tenure and must be supported

despite the fact that it was initiated by the

apartheid government. Other race groups

already had title deeds for their farms in those

rural areas and enjoyed exclusive status as

private property owners.

To continue to deny Africans exclusive status

as private property owners amounts to pure

discrimination. It is not clear how it can be

imagined that it ensures security of tenure.

That is correct, ULTRA and IPILRA are interim

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3.1 Proposed

Amendments

in Response

to Rahube

Judgement

As Minister Didiza explained to this

Committee in June 2020, ULTRA and the

Interim Protection of Informal Land Rights

Act (IPILRA) were meant to be placeholder

legislation until the task of formulating

proper tenure reform legislation under the

constitutional dispensation was completed.

Our concern is that the longer the

legislature and the executive focus its

attention on panel-beating inherited pieces

of legislation into a constitutionally

permissible format without tackling the more

fundamental issue of overhauling South

Africa’s tenure recordal and registration

system, the more difficult it will become to

do so.

The expanded implementation of ULTRA, in

particular in the vast tracks of rural land in

legislative measures while we formulate proper

land tenure legislation which will repeal these

laws.

ULTRA is being amended because the Court

prescribed time frames. We continue to develop

comprehensive legislation that seeks to

overhaul tenure systems. While we are

developing such legislation, persons have the

right to land tenure that is legally secure and

they are entitled to have that right enforced.

Land tenure legislation we are developing will

ensure proper recordal and registration of land

rights in respect of communal land. In

developing such legislation, we will also ensure

that such legislation does not perpetuate

apartheid and patriarchy under the guise of

“social tenure” or “customary rights”. Social

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the country held in terms of “social tenure”

or overlapping customary rights, will only

serve to make the eventual proper recordal

and registration of those rights more

difficult.

Apart from the concerns we raise below, the

fact that a comprehensive Socio-Economic

Impact Assessment was not placed before

this Committee alongside the Amendment

Bill is not a matter merely of procedural

irregularity, but of substantive concern.

While the amendment now make provision

for an application procedure that includes a

notice published in the Gazette to alert

interested parties, this mechanism seems

wholly out of step with the reality of most of

the women who might be affected by this

Act. It assumes that women in rural and

urban areas have access to Government

tenure and customary rights must exist within

our constitutional context of promoting equality

and nondiscrimination.

A SEIAS report on the Bill has been obtained.

We accept that it should have been obtained

before and considered together with the Bill.

We accept that the Gazette option is not the

best in the circumstances, but it remains the

most effective and reliable means of

government communication as it is controlled

by the State. We are not opposed to other

media options like newspapers. It must be

noted that the decision to publish in a

newspaper is made by the paper itself even

after a request by the State for publication.

That may be so, however, the process of a land

enquiry seeks to gather information from local

knowledge. Reliance on local knowledge will

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Gazettes.

While we submit that any process that

centralizes the State as the decision maker

over legitimate claims to tenure

arrangement rather than local processes

relying on local knowledge, will fail in

attempting to capture the true nature of the

tenure it seeks to secure.

However, in so far as the legislation is

adamant to centralize the State in this

process, more pro-active procedures for

notifying interested parties exist in various

other pieces of legislation and should at a

minimum be imported here. The Restitution

of Land Rights Act, for examples, requires

in section 11 that the Commission notify

“any other party that might have an interest”

in a land claim to give them an opportunity

to object.

In the case of applications in terms of

not be lost to the process.

We agree, there will be more pro-active ways of

notifying interested persons. The process will

be outlined in the regulations in terms of the Bill

(Clause 1(c)).

We agree, the approach must require the

applicant to provide information on family

members with an interest. That will be provided

for in the regulations in terms of the Bill (Clause

1(b)).

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ULTRA, an approach that requires the

applicant to provide information of at least

family members with an interest in the

property combined with a more pro-active

approach by the Minister to notify such

parties (including by, for example,

advertising in local newspapers) may be

preferable.

Once an objection is received, the

amendment requires the Minister to “make

an enquiry”. We are left with no indication of

what the nature of such an enquiry will be

and, indeed, how the department intends to

fund it.

Most fundamentally, the mechanisms

proposed by the amendments give no

recognition to the existing tenure

arrangement on the ground whereby tenure

is arranged at family level. Local processes

and knowledge have been the basis for

localized security of tenure for generations.

The Act continues to rely on an individual

The nature of the enquiry will be as outlined in

the regulations in terms of the Bill (Clause 1(c)

under (1D)).

The land enquiry process will consider existing

tenure arrangements on the ground. It is tenure

that is arranged at family level that tends to

discriminate against women, widows, children

and uncircumcised men in certain communities.

As stated above, the Bill does not prohibit joint

or several ownership of property and therefore

there is nothing that prevents individuals

constituting a family or household from applying

for conversion. Even if it is a family, it would still

need to nominate an individual or individuals to

act on its behalf unless it has established itself

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bringing an application on behalf of him- or

herself (rather than the family), for other

individuals to object and for the Minister to

then arbitrate between the various

individual claims. That is not reflective of

most tenure arrangements on the ground;

rather, it serves to elevate one person’s

rights over the equal and overlapping rights

often held by others within a family.

as a legal entity such as a trust.

3.2

Amendments

in Response

to

Herbert/Senqu

Municipality

Judgement

It is irresponsible not to consider the impacts of the rest

of the legislation as it becomes applicable across the

country. We urge the legislature to do so. For example:

Section 3 of the existing legislation pertains

to unsurveyed land held in terms of a PTO

or customary entitlements. Because this

section is so out of step with the realities of

how PTOs are actually held and managed,

research indicates that this section is most

often ignored by the people it is designed to

assist.

We were mindful of the need to amend the rest

of the Act but took the advice by the State Law

Advisers to only concentrate on sections that

were declared unconstitutional because of the

strict time frames given.

Section 3 dealing with PTOs will be replaced by

new legislation we are developing on communal

land tenure.

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A key reason why the Act was initially not

made applicable across the country was

because the complex nature of the tenure

arrangements in communal areas was not

yet properly understood and an alternative

system for recordal and registration of those

rights developed.

The failure of the Communal Land Rights

Act to secure these arrangements led to its

constitutional downfall.

To now make ULTRA applicable across the

country may undo all the attempts to secure

these rights, with disastrous consequences

for South Africans who have already been

prejudiced by the inadequate state

response to section 25(6) of the

Constitution.

We believe the key reason why the Act was not

applicable to the entire country was because

the apartheid government did not want to be

seen to be legislating for the “independent

bantustans”.

The Communal Land Tenure Rights Act did not

fail to secure land tenure rights in its provisions.

It ensured tenure security. It is only in respect of

communal land administration that it was found

unconstitutional.

We do not understand how making the Act

applicable throughout the country has

disastrous consequences for South Africans.

We do not understand how extending the

upgrading of rights to communities that could

not do so before purely by reason of apartheid

bantustan politics can be disastrous. In our

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It is not clear what the implication of this

amendment to ULTRA is to Kwa-Zulu Natal,

where the KwaZulu Land Affairs Act of 1992

provides for upgrading of tenure in areas

where ULTRA may now be applicable.

More concerning, it is not clear whether the

Ingonyama Trust may be considered an

‘owner’ for purposes of ULTRA which will

give it undue power in blocking potential

localized upgrades of tenure.

At a minimum, we submit that the

legislature must ensure that the right to

Free, Prior and Informed Consent of

view, it ensures security of tenure.

The upgrading of tenure rights in terms of the

KwaZulu Land Affairs Act 11 of 1992 is limited

to upgrades from PTOs and customary land

tenure to deeds of grant, not ownership. It is not

an upgrade at all in our view. Since the Bill is

envisaged to apply throughout the Republic

including KZN, what may be required is to

amend the Schedules to ULTRA to include Act

11 of 1992 and Venda Land Affairs

Proclamation 40 of 1990.

As suggested above, the Ingonyama Trust Act,

KZ3 of 1994 may also be included in the

Schedules to make it clear that land rights

under that Act may be upgraded.

ULTRA supersedes provincial legislation.

The Ingonyama Trust holds state land. The

same KwaZulu Natal Land affairs Act defines

“government land” as including Ingonyama

Trust land.

We are not opposed to making IPILRA’s 14

unregistered land rights holders as

contained in the Interim Protection of

Informal Land Rights Act (IPILRA) made

permanent (and regulations passed) and its

applicability alongside ULTRA recognized

explicitly in an amendment to ULTRA.

If the legislature feels bound by the Court’s

order to find ‘quick’ interim solutions, then

this is the simplest and most effective way

to ensure that within families and

communities, rights holders, in particular

women, can resist the upgrading of tenure

that will unduly erase their legitimately held

land rights.

application permanent. This will be provided for

in communal land tenure legislation we are

developing which will repeal IPILRA.

As expressly stated in the Bill, the Bill enables

women who were previously excluded to apply

for upgrading of land rights. The Bill does not

prohibit families from applying for or objecting to

upgrades. Ordinarily a family is not a legal

entity unless it has established one such as a

trust. It acts through its members.

4. Conclusion:

Summary of

Recommendat

ion

ULTRA is legislation inherited from the pre-

constitutional era which was meant to be

replaced by legislation that would entirely

overhaul the South African system of

recording and registering rights. Such an

overhaul is necessary given the various

tenure regimes that have emerged in South

Africa in its diversity.

We agree, we are currently developing

legislation that seeks to overhaul the entire land

tenure system.

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ULTRA is rooted in the notion that titled

private property rights is the gold standard

of tenure and that all other forms are

inferior.

It is an all or nothing system where one

person or entity owns land exclusive to all

others. As such, the model is completely

incompatible with the tenure systems based

on customary law and those that have

developed outside the formal Deeds

Registry system.

While the amendment of ULTRA is crucial

to curb the impact of the Act in erasing

certain tenure right, in particular those held

by women, ULTRA does not provide a long-

That notion is not unjustified. We believe that

informal off-register land rights worthy of only

recordal and not registration are inferior. They

are also unfairly discriminatory to the extent that

they only apply to one race group.

The upgrading system is not an all or nothing

system. It does not prohibit joint or several

ownership of property by members of a family

or household. It is not incompatible with land

tenure system based on customary law to the

extent that it recognizes that customary law

evolves and is not static and applies in a

constitutional context as provided for in section

211(3) of the Constitution that customary law is

applicable subject to the Constitution.

We agree, amendments to ULTRA do not

provide a long-term solution. We are developing

land tenure legislation for that purpose. But for

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term solution to securing tenure.

In the meantime, and to assist in minimizing

the damage of the absence of an

appropriate land recordal and registration

system, we submit that the Interim

Protection of Informal Land Rights Act

should be made permanent, regulations

passed and its applicability alongside

ULTRA made explicit in these amendments.

The proposed amendments perpetuate a

top-down model that centralizes the State in

determining tenure rights holders. This

model is problematic and should be

replaced by an approach that uses local

processes and knowledge as a starting

point.

The proposed model of application, notice

and objection is not practical or realistic.

There is too little detail related to how

objections will be dealt with to provide

meaningful comment.

urban land tenure it may be a solution once all

upgrades are concluded.

We are not opposed to making the application

of IPILRA permanent through the ULTRA Bill

while developing comprehensive land tenure

legislation. Parliament can decide on that.

However, we believe that IPILRA can best be

repealed by legislation that replaces it

comprehensively, not as a quick fix.

The land inquiry process will use local

processes and knowledge as a starting point.

However, that cannot divest the State of its

responsibility to implement its legislation.

More detail will be provided in the regulations

as stated in the Bill. Regulations are published

for comment and interested parties are invited

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There is no indication of how the

Department intends to fund these newly

established processes. There is no

evidence that the impact of the amendment

to broaden the applicability of the Act has

been assessed.

to comment.

We have obtained a SEIAS on the ULTRA Bill

and Parliament can make it available if it deems

it fit.

LAMOSA Entire Bill LAMOSA rejects entire as ill-conceived and

unconstitutional.

The Bill is made to apply to former bantustans without

constitutional safeguards.

The Bill does not deal with other laws not listed in the

Schedules which violates the rights of women.

The power of the Minister to transfer communal land to

communities in terms of section 20 is a huge backward

The Bill is in response to Constitutional Court

order and is well conceived.

Making ULTRA applicable to former bantustans

is also a Constitutional Court order seeking to

ensure equal protection of the law.

That is correct. However, it does not preclude

persons from proposing that the Schedules also

be amended. The other laws which are not

listed in the Schedules are the subject of a

separate process to comprehensively review

them.

It is not clear how transfer of communal land to

communities can be worse than the Minister

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step.

Ultra was conceived by the apartheid government during

the dying days of apartheid and it did not repeal all the

other discriminatory laws that were in place at the time

(1991).

The Constitutional Court or the Constitution do not

require that sections 19 and 20 of ULTRA be applied to

the former bantustans.

The Minister and officials of the Department informed

holding the land in trust for communities. For

the State, it serves to ensure tenure security for

those communities.

That is correct. The process to repeal other

discriminatory laws outside ULTRA is

underway. The Department is developing a

comprehensive communal land tenure

legislation.

The Constitutional Court ordered that section 3

must apply to former bantustans. It did not

make an order in respect of sections 19 and 20

because it was not asked to. The applicant was

not a community seeking transfer of communal

land in terms of section 19 and 20 but a person

(legal entity) seeking to convert a right in terms

of section 3 of ULTRA. The Constitution

certainly envisages equality, equal protection of

and equal benefit of the law. It cannot be

envisaged that the inhabitants of former

bantustans continue to be discriminated

against.

We are still in 2020 and we trust that communal

19

Parliament that communal land tenure legislation would

be introduced in Parliament in 2020 and nothing

happened.

Clause 4 will allow tribes to be awarded ownership and

this fundamentally alter power relations: domination over

land equates with imperial power over people.

The Committee can immediately state its intention to

scrap clause 4 entirely or at least its application to

sections 19 and 20 because section 20 does not protect

the existing property rights in the former bantustans.

The Committee can now enact IPILRA as PILRA as the

Act protects property rights in respect of communal land.

land tenure legislation can still be introduced in

Parliament. If not in 2020, it will be immediately

thereafter.

It is correct that communities will have their

communal land transferred to them. It is not

clear how ownership of communal land by a

community equates with imperial power over

people. It is the people who will be owning their

land and determining how that land is

administered. That is democracy at its best.

Section 20 simply states that the Minister may

transfer communal land to a community in

ownership. The fact that a community will own

its land which is currently held by the State is in

our view the most protection of property rights

that can ever exist.

That is not necessary as IPILRA will continue to

apply until such time that it is repealed by

communal land tenure legislation that we are

currently developing which will adequately

protect property rights.

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Clause 4 extends schedule 2 and section 3 of ULTRA to

the former bantustans. The Department and the

President must say how they intend to amend schedule 2

before the Committee can proceed with the Bill.

Taking into account all the complexities and the lack of

preparedness, it is not meaningful to enact another

undoable statute. Parliament and the Department must

do the homework and announce that it is expediting work

on a comprehensive communal land tenure Bill.

There is no need to amend Schedule 2 through

the Bill as a quick fix. We are developing

comprehensive land tenure legislation that will

repeal the laws in Schedule 2 as well sections

3, 19 and 20 of ULTRA.

We are not enacting another undoable statute,

we are simply amending an existing statute as

ordered by the Constitutional Court. We have

already announced, by LAMOSA’s own

admission, that we are developing

comprehensive communal land tenure

legislation.

COSATU Entire Bill - Entire Bill supported

- Department must review all existing land tenure

legislation

- Department must develop capacity to implement

existing land reform legislation

We agree, and the Department has committed

to review communal land tenure legislation and

to develop capacity to implement its laws.

AGRI-SA/AGBIZ Clause 1 Proposed amendments to include:

- Giving specific powers to a land rights enquirer

- Where no objections received, conversion must

We support the proposed amendments.

21

Clause 3

be confirmed

- Where there is objection, land rights enquirer

must facilitate mediation between the parties and

report to the Minister.

It must be stated that it is the “land court” that deals with

the disputes and not any High Court. We agree. However, we can also sate in the

Land Court Act that ULTRA falls under that

court’s jurisdiction.

INGONYAMA TRUST

Entire Bill - The Bill must be withheld

- If not withheld, the Bill must not be made to apply

to any tribal land and Ingonyama owned land.

We do not agree. Communities whose land is

held by the Ingonyama Trust also have a

constitutional right to secure land tenure and

the right to equality. The Ingonuama Trust is

only holding the land in trust for communities. It

does not own the land.

CONTRALESA Clause 1

Section 20

No objection to conversions but conversions must also

be in respect of “families” and not only individuals.

Section 20 of the Act must make it obligatory for the

Minister to transfer communal land to traditional

authorities / councils.

The Bill does not prohibit conversions by family

members jointly or severally.

We support transfer of communal land to

communities, not traditional authorities.

Traditional councils are organs of State.

National House of Traditional Leaders Definition of “community”, Communities must develop

22

Entire Bill community rules that determine who is a community

member and who can participate in community meetings.

Clause 2 that seeks to protect women in the conversion

of land rights is supported.

We agree that communities must develop

community rules. These must be democratically

adopted and must include how communal land

is to be administered and managed in general

at a community level.

Mr SehumeBarolong Ba Seleke

Sections 3, 19

and 20

(communal

land)

Land rights applicable to Communal land (PTO):

- Residential: divisible for individual or family

- Cropping: indivisible for whole community

- Grazing: indivisible for whole community

If a title deed is issued in respect of communal land:

- Members lose right to indivisible cropping/grazing

rights

- Family members (siblings) lose to the one in

whose name title deed is issued.

The interpretation is correct.

That interpretation is not supported.

- When communal land is transferred to a

community in ownership, the community as a

legal person assumes ownership of the entire

communal land including for cropping, grazing,

forestry, rivers (water).

- Individuals and families will have title deeds

issued in respect of their divisible residential or

business plots. Like in today’s urban security

estates or sectional titles, individuals and

families have title deeds for their divisible

portions but also have the right to use shared

facilities such as parks. In traditional

23

In Bloemfontein communities lost grazing/cropping land

to a municipality as a result of land transfer to a

community.

communities shared facilities include land for

grazing, cropping, forestry, water (rivers).

- When a title deed is issued in respect of a

family, family members at the time of issue

become joint/several owners with the right to

bequeath to their successors. If there are 4

siblings, they inherit according to applicable

laws governing succession. Usually, it is the

patriarchal interpretation of customary law that

is based on primogeniture suggesting that a

family must always have a representative, a

male, in whose name the title deed must be

issued. It is the patriarchal application of

customary law principles that deprives other

siblings of their rights, not the issuing of a title

deed itself.

- In the Bloemfontein case, it appears the entire

land was not transferred to a community as a

legal person in ownership. It appears only

residential portions were transferred to

individual or families in ownership.

24

The Department must concentrate its efforts on

developing comprehensive communal land tenure

legislation. Since CLARA was declared unconstitutional,

no legislation was passed to replace it.

We agree, the Department is working on the

Communal Land Tenure Bill.

Free Market Foundation Entire Bill The retrospective application of clauses 1 and 2 will have

the effect of nullifying the conversions that have already

taken place since the commencement of the Principal

Act, 1991. Nullifying such conversions amounts to

expropriation without compensation and therefore

unconstitutional.

The interpretation is partly but not entirely

correct. The retrospective application is not

expressed but implied. It is limited to

conversions that occurred in violation of

women’s rights. Conversions in favour of

women and certain third parties in good faith

remain valid.

The Constitutional Court weighed the

expropriation implications and concluded that

limited expropriation for a constitutional

violation is a lesser evil than imposing monetary

liability on a person who believed that he

converted constitutionally.

Lawyers for Human Rights

Entire Bill Bill perpetuates invalidity as all properties affected have

been upgraded into title deeds.

Bill puts obligation on the public to prompt an

investigation when it is actually the State’s obligation.

Properties upgraded in good faith and in favour

of women remain valid.

That is correct and unavoidable. The State

cannot start a whole scale investigation without

25

SANCO Entire Bill

Bill doesn’t provide for consultation with persons affected

by the implementation of the Bill.

The power to investigate should be with local or

provincial government.

Notification of interested parties can, in addition to the

government gazette, be by means of fixing notices at

municipality offices, newspapers and personal notices to

affected persons.

The Bill is supported.

The leasing of State land must be properly regulated to

ensure that those who utilize the land properly can be

supported.

an individual prompting it.

An enquiry is conducted as prescribed.

Regulations will make provision for affected

persons to respond to the assertions put before

the land rights enquirer.

The principle is not objected to but is likely to

result in large scale delays.

We agree.

We agree although that is not directly related to

the Bill.

Land & Accountability Research Centre

Entire Bill Without clear restrictions and protections, the operation

of these sections poses the danger of undermining or

erasing existing customary and other individual, family

The comment must be in relation to sections 3,

19 and 20 which deal with communal land.

We agree, transferring communal land to a

26

and group and community rights and interests in land

falling under the jurisdiction of traditional leaders.

The Department’s plans for tenure reforms should centre

on shifting away from the idea that the recognition and

recordal of tenure rights held by people in traditional

communities can only be done in absolute and

individualistic ways that undermine the rights held by

individuals that make up those communities.

Placing the obligation on the Minister to consider

applications for conversions raises questions about the

Minister and the Department’s capacity to deal with the

applications.

The applications are to be made in the prescribed

manner without giving content to what the prescribed

process will be.

It must be stated clearly when the Minster will make the

regulations contemplated in the Bill.

traditional community must be done in a

manner that vests ownership in the community

as a legal person and not a traditional authority.

Tenure rights in traditional communities do not

necessarily have to be held by an individual

(traditional leader) for the entire community.

The law already provides for traditional

communities becoming legal entities (section 19

of UL and section 3 of CLARA) which can own

property.

We agree, the Department has an obligation to

build capacity to implement the legislation.

The prescribed process will be outlined in the

Regulations to be developed in terms of the

section.

Acts do not ordinarily state when regulations

will be made. However, regulations are

developed as soon as an Act is passed by

27

Notices by the Minister must not only be in the Gazette

but must also be in newspapers and posted in

community halls in appropriate languages.

Section 14A must not only look up the courts to

adjudicate but also at alternative dispute resolution

mechanisms.

There are very real dangers to not holistically engaging

with how all the provisions in ULTRA as amended play

into one another, in particular in relation to sections 19

and 20.

There are no clear and adequate mechanisms to prevent

the undermining of the rights protected in the Constitution

and IPILRA and customary law.

No limitations or judicial oversight exists on the ability of

Parliament. When the President assents to the

Act the draft regulations must be ready for

public consultation.

We are not opposed to the principle.

We agree, the applicable legislation, currently in

the form of the Land Court Bill, provides for

alternative dispute resolution mechanisms.

The Department is engaged in a holistic

approach of developing comprehensive land

tenure legislation that will replace sections 3, 19

and 20 of ULTRA.

The Bill does not seek to amend section 3, 19

and 20 which deal with communal land where

customary law is applicable. Comprehensive

legislation on communal land is being

developed.

28

a chief to dispose of tribal land.

No recourse is provided to anyone who holds rights on

the land that it to be transferred should they be aggrieved

by the decision in this regard.

ULTRA does not mention IPILRA and does not provide

for protection that are at least equivalent to those in

IPILRA.

Sections 19 and 20 of ULTRA instead undermine the

fulfillment of section 25(6) and any comprehensive tenure

reform framework that the State may attempt to adopt.

Section 19 of ULTRA provides some limitation

and judicial oversight. Section 19(3)(a) provides

that disposal of communal land must be

authorized by a community resolution. Section

19(2) provides that such disposal must be

consented to by a competent court.

The transfer of land is to a community that

owns that land. The act of transferring land is

an administrative process that can be

challenged in the courts by anyone aggrieved

by such act.

ULTRA does not mention IPILRA because it

predates IPILRA. However, IPILRA mentions

ULTRA and therefore land rights protected

under IPILRA include those in ULTRA. (See par

(d) of definition of “informal right to land” in

IPILRA).

A comprehensive tenure reform framework

(Communal Land Tenure Bill) that is being

developed replaces sections 3, 19 and 20 of

29

ULTRA bases its understanding of communal land

ownership on the distorted belief that customary tenure

systems are systems of collective and ownership which

are devoid of individual or family interest. In other words,

the belief that land vests in indeterminable conglomerate

of people as tribes and not individuals, families or parts

of communities.

Communal land tenure is both individual and communal

and can be seen as a system of complementary interests

held simultaneously by different people and groups.

These relative rights may even overlap because

individuals and families have to negotiate access to

common resources like land for grazing rivers and

forests. Communal land tenure systems are therefore

nested or layered with different people or groups holding

varying degrees of rights and interests over land and

resources.

By allowing transfer of land to a tribe with no explicit

recognition and protection of individual and family rights

to land, the issue surfaced in Rahube is replicated. The

use of title vests ownership in one owner – in this case

the tribe- to the exclusion of other persons with rights and

interests in the land.

ULTRA.

The Department’s understanding of communal

land ownership recognizes individual and family

interests. Residential and business divisible

portions are occupied and owned by individuals

and families who all have the right to use

indivisible communal facilities used on a shared

basis by all members of a community.

We agree with the principles and share the

same understanding.

The transfer of communal land to a community

must be coupled with a transfer of subdivided

portions for residential and business purposes

to persons already owning those portions. That

30

The transfer may result in larger groups undermining

other individuals, families and smaller groups who would

then become structural minorities within a greater super-

imposed tribal boundary.

The language used in ULTRA especially “tribe” has a

disgraceful history in South Africa and no longer has a

legally acceptable definition. TLGFA currently refers to

them as traditional communities.

The Dinabakubo case study: Communal land transferred

to a traditional community in terms of ULTRA and vested

in the traditional leader, Chief Bhengu and it was later

discovered that that certain transactions relating to part

of the land had taken place without consultation with or

the consent of people that hold rights over the land.

was envisaged in CLARA and is currently

envisaged in Communal Land Tenure Bill.

That will only occur if it is not done properly as

envisaged above. The land enquiry process

envisaged even in ULTRA will assist in

determining individual, family and group

interests in the land to be transferred and

ensure that these are protected.

We agree, we tried to amend the entire ULTRA

including doing away with such obnoxious

references but were constrained by OCSLA to

look at only sections that were declared

unconstitutional.

Communal land was supposed to vest in a

community as a legal entity in terms of section

19 of ULTRA and not the traditional authority.

Any transaction was supposed to have been

supported by a community resolution and

consented to by a court in terms of section 19.

It appears to be a matter of not complying with

31

the law or acts of corruption.

Alliance for Rural Democracy

Entire Bill Some of our legislation still perpetuates apartheid and

TBVC forms of operations. An e.g. section 25 of TKLA

which takes powers from communities and hands them

to one person, the Chief.

There are communities that have purchased land but the

title deed is still held by the Minister in trust for the

communities.

The current modus operandi of Ingonyama Trust

replacing PTOs with leases must come to an end.

It is correct that some laws confer on traditional

leaders the power to administer communal land

and some of them emanate from the Bantu

Administration Act, 1927.

Section 25 of the Traditional and Khoisan

Leadership Act, 2019 provides that national or

provincial legislation may provide for a role for

traditional councils and that such role may not

include decision making powers.

That we cannot dispute. It is for those

communities to take up the issue with the

Department.

The replacement of customary land rights by

lease agreements is indeed a violation of those

customary land rights. Replacing customary

ownership land right with lease means

32

If Ingonyama Trust is not repealed it will be problematic

to implement this Bill.

A single comprehensive legislation dealing with land

tenure is required. Proliferation of legislation results in

implementation failures.

extinguishing the customary land right first and

then making the owner a tenant on his/her land.

The matter of whether the Ingonyama Trust Act,

1994 must be repealed indeed must be

resolved. However, the Trust is not a creature

of the Department but of Parliament.

We agree, the Department is currently working

on such legislation in the form of Communal

Land Tenure Bill.

However, we believe that urban land tenure

may require own legislation as the dynamics

are totally different from those of communal

land tenure. For instance, it may not involve

shared land for grazing, cropping or access to

forests or rivers.

SALGA Entire Bill The rationale for moving away from automatic

conversions which served to speed up upgrading of land

rights and replacing it with an administrative process.

That results in red tape and unnecessary costs.

We agree; however, the Court has found that

the automatic process violates women’s rights.

The administrative process and the inherent

33

What is the role of municipal councils in the application

process.

How will the application process impact on municipal

councils’ right to determine land objectives and

responding to development applications.

What is the role of traditional authorities in the application

process.

Will the appeal process suspend SPLUMA application

while the affected piece of land is being investigated.

costs are necessary to safeguard rights.

There is no role for municipal councils.

However, the land rights enquirer will most

often require information from a municipality to

establish facts around the holders of rights in

respect of applications.

It may impact in different ways, e.g. where the

development application is in respect of

property that is the subject of an application for

conversion. It may be in the interest of a

municipal council to await the finalization of an

application which will determine ownership.

It is unlikely that traditional authorities would be

involved as the applications relate to section

2(1) and schedule 1 rights which apply to

townships and not communal land in general.

It is possible if there is a dispute and an

objection lodged in respect of the conversion

because that may have an effect on who is the

rightful applicant in respect of SPLUMA.

34

The Department must engage SALGA on the areas of

concern and possible collaboration to fast track public

consultations.

The Department duly accepts the invitation

even during the implementation of the Act.

Black People’s National Crisis Committee

Entire Bill BPNCC supports transfer of property to women in

general.

We agree.

DIRECT COMMENTS ON THE BILL THAT THE DEPARTMENT BELIEVES MAY BE INCORPORATED

1 Clause 1(b) Under (1): Reference to Schedule 1 must be maintained.

2 Clause 1(c) Under (1A): In addition to a notice in the Gazette, the following may also be considered:

- Personal notice/letter served on family members and persons known to have interest.

- A notice at local municipality offices notice board in local languages.

35

3 Clause 1(c) Under (1D):

- An enquiry must only be instituted where there is an objection, not with every application.

- There must be reference to other sections in the principal Act on the powers of a person conducting an

enquiry.

It must be made clear in the Bill that the Minister’s role is to determine facts around who is the rightful holder of the

rights, not whether or not to convert. The right to convert is provided for in the Act and is not within the Minister’s

discretion.

4 Schedules to

Principal Act

Possible amendments of Schedules 1 and 2 to ULTRA.

As it currently stands, ULTRA conversions are only in respect of land rights listed in the Schedules to the Act. The

Schedules do not include other laws that create land rights e.g. provincial Kwazulu Land Affairs Act No. 11 of 1992;

The KwaZulu Natal Ingonyama Trust Act No. kz3 of 1994 as well as Venda Land Affairs Proclamation No. 40 of

1990.

The inclusion of the above Acts in the Schedules will ensure that holders of land rights in townships that fall under

the former bantustans KwaZulu and Venda can also convert their land rights into title deeds. The KwaZulu Land

Affairs Act only provides for conversions from Permission to Occupy certificates and other customary land rights into

deeds of grant, not ownership title deeds.

OTHER COMMENTS NOT RELATED DIRECTLY TO THE ULTRA BILL BUT TO LAND TENURE IN GENERAL

36

Comment DALRRD Response

1 On Land Tenure in Urban AreasLand tenure for formal townships, RDP houses and informal

settlements) needs to be made legally secure.

That is correct.

With formal townships with registers, ULTRA already provides for

conversions from deeds of grant into title deeds. Going forward, there will

be applications for conversions as contemplated in the Bill. However,

that process only applies to persons who are current holders of deeds of

grant as stated in schedule 1 of ULTRA.

With RDP houses and informal settlements, the State must take a

conscious effort to formalize these settlements and issue title deeds in

respect thereof. This involves other Departments such as Human

Settlements, provincial governments as well as local government.

ULTRA can be used to formalize land rights referred to above (RDP and

informal settlements). That can be provided for by amending Schedule 1

and including those land rights. Once they are included in the schedule,

holders thereof can convert them into title deeds.

In converting them into title deeds, the Deeds Office must have a system

that recognizes registration of properties by joint and several owners at

any given time to provide for family properties. If members of the family

are registered as joint or several owners, that will avoid a situation where

a family must appoint a representative in whose name the family

property must be registered. The Rahube matter illustrated that decisions

37

on who must be a family representative are made along patriarchal lines

and thereby unfairly discriminating against women, children, the disabled

and other vulnerable groups.

The above process is for dealing with the current challenge of a backlog

of already existing tenure rights that are not legally secure. Going

forward, the State must simply have a system of recognizing a land right

when it is created and issue a title deed in respect thereof. Once a title

deed is issued it is regulated under the deeds registry system which

must be a uniform system for all South Africans. Once the Deeds Office

creates a parallel system of only recording and not fully registering the

land rights, then the system will continue to be racially based, legally

discriminatory and socially obnoxious.

1 On Communal Land Tenure

There must be a system of communal land and other off-

register rights recordal that exists parallel to the Deeds Office.

The difficulty with the approach is that-

- It is not clear who remains the actual owner of the property, does

the State (including Ingonyama Trust and Traditional Councils)

continue holding the property in trust for African communities?

- It perpetuates separate land administration systems for different

racial groups.

38

Communal land must be transferred to communities in a

manner that protects the rights of community members against

the State and the community itself.

Transfer of communal land to communities presupposes a

transfer to traditional leaders or traditional councils.

Communal land must not be transferred to traditional

authorities (councils or leaders).

In registering communal land, provision must be made for

We agree with that approach. However, we stand to be advised on how

best that can be made possible without transferring subdivided portions

for residential and business purposes in ownership to individual

community members. The entire community as a legal person can own

the indivisible portion which is shared by community members for

grazing, cropping and access to forestry, rivers and other facilities.

Communal land can be transferred to a traditional community as a legal

entity and not in the name of a traditional leader or traditional Council.

The Communal Land Tenure Rights Act, 2004 had contemplated that

approach and also transferred divisible residential portions in ownership

to community members.

We agree. Transferring communal land to traditional authorities will not in

effect be any transfer. Traditional Councils are organs of State.

Communal land is owned by communities and the State is not the owner

but the holder in trust for communities.

If the State was to transfer communal land to any entity other than the

community itself, the State would have to expropriate such communal

land and compensate the community in terms of IPILRA.

39

family, household and group rights. We agree. However, we stand to be advised on how best to provide for

that in such a manner that does not perpetuate patriarchy or leads to the

application of customary law principles in a manner that does not

entrench patriarchy. We believe that it can be provided for by recognizing

individual family members as joint or several owners with then right to

bequeath the right to their successors in terms of applicable laws of

succession, whether customary or otherwise.

40