 The uncertainty over who the sub-division of agricultural land is over. Conveyancing specialist Charl Theron discusses the Constitutional Court’s decision.
In our previous Talking Point I discussed the judgement of the Supreme Court of Appeal in the appeal against the Port Elizabeth High Court judgement in the matter between Wary Holdings (Pty) Ltd (Wary) and Stalwo (Pty) Ltd (Stalwo).
Wary in 2004 sold Plots 5, 6, 7 and 8 of proposed subdivision of Portion 54 of the Farm No. 8 Port Elizabeth, to Stalwo.
In terms of the Subdivision of Agricultural Land Act (Act 70 of 70) any sale of a subdivided portion of agricultural land as defined in The Act is invalid without the prior written consent of the Minister of Agriculture.
The definition of agricultural land in The Act for the purpose of this discussion is any land situated outside the area of a ‘municipal council, city council, town council, village management board, village management council, local board, health board or health committee’. Because of the reconstitution of Municipal Council’s and their being responsible for all land in South Africa, including farm land, the SCA found in effect that there was no longer any “Agricultural land” because it all fell within the newly constituted Municipal Boundaries! i.e. you can subdivide and develop farm land at will.
This finding was then appealed against to the Constitutional Court, which found that the Supreme Court of Appeal was wrong in applying the ‘narrow facts of this case’. It found that:
• Act 70 of 70 is an act of national importance;
• The reconstitution of municipal councils could not have done away with the powers of the Minister of Agricultural to preserve ‘agricultural land’;
• The reconstitution of municipal councils further recognised the need for ‘national control, oversight and policy to play a role in decisions to reduce agricultural land and for the consistency as part of a national agricultural policy’, and
• Municipalities do not have the expertise to take decisions on the subdivision of agricultural land and that these still remained within the specialist control of the Department of Agriculture.
The Constitutional Court supported the view of the Port Elizabeth High Court and declared the sale null and void.
Thus, the final word has been spoken. Agricultural land is still defined as it was before the establishment of the now defunct transitional councils. It is controlled by the Minister of Agricultural in terms of The Act 70 of 70, thus retaining its control over the fragmentation of the ‘bread basket’ of the nation.
ENDS
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