I, Angela Thokozile Didiza, Minister for Agriculture andLand Affairs hereby publish the Communal Land Rights Bill, 2002 for comment by the general public.
to provide for land rights investigations; to provide forthe establishment of land rights boards; toprovidefor leases of communallandforcommercialand developmental purposes; to provide for the expropriation Of COmmnal land Or individual holdings within communal land for certain purposes; to Provide for the registration of deeds and alienation of certain rights inCOmmUnal land; to Provide assignment of duties and the making of regulations; to provide for the repeal of certain laws; and to provide formatters incidental thereto.
AND FURTHER RECOGNISING that many women were made perpetual minors without rights to property and that legal mechanisms need to be developed to assert their equal rights to property.
TRANSFER OF COMMUNAL LAND 32 16. Transfer of State land to communities or individual households or individual families or individual persons 32 17. Application for transfer of land or initiation of projects for transfer of land by the Minister 33 18. Preliminary land rights inquiry and report 33 19. Notice of application and project 35 20. Inquiry into objections and any other matter the Minister may deem relevant 36 21. Consideration of application or project by Minister 36 22. Opening of Communal Land Register 37 23. Registrationof Deeds of Land Tenure Rights and Deeds of Transfer 39 24. Registration of new allocations of Land Tenure Rights to community members after the openingof communal land rights register 40 25. Conversion of registered land tenure rights intofull ownership 40 26. Transfer costs and stamp duties 41 70 No.
ALIENATION OF COMMUNAL LAND FOR DEVELOPMENT AND COMMERCIAL PURPOSES 42 29.
Themaking of community rules, the application for the registration of rules and land administration and natural resources management in terms of this Act 45 33. Appointment of administrative structure 52 35. Restriction on rewards 55 37. Establishment of land rights boards 56 38. Constitution of land rights boards 57 39. Disqualification as board member and vacationof office 59 40. Functions of Land Rights Boards 60 41.
DISPUTE RESOLUTION 63 44. Settlement of disputes 63 63 45. Choice of Court 64 46. Powers of courts 64 48.
Magistrate 66 50.
EVICTION OF PERSONS WHOSE TENURE RIGHTS HAVE BEEN TERMINATED 68 52.
CHAPTER XI 71 57. Matters calling for the conduct of a land rights inquiry 71 58. Designation of a land rights inquirer or appointment of person to assist the land rights inquirer 72 59. Functions ofa land rights inquirer and assistant to the land rights inquirer 73 75 60.
Offences 81 64.
Delegation of powers and assignmentof duties 81 66. Regulations 81 67. Act binds state 82 68. Limitation of liability 82 69. Amendment and repealof laws and savings 83 70. The status of the Interim Protectionof Informal Land Right Act, 1996 (Act No. 31 of 1996) 83 71. Short title 83 72. Date of commencement 83 73. Schedule 1 84 74. Schedule 2 89 75. Repeal of laws 89 14 No. 23740 GAZETTE.
(i)theSouthAfricanDevelopmentTrustestablishedbysection 4 of the Development Trust and Land Act, 1936 (Act No.
was listed in the schedules to the BlackLandAct,1913(Act No.
(ii)waslisted in the schedule of releasedareas in terms of the Development Trust and Land Act, 1936 (ActNo.
(d)landwhich wasacquiredbyorforacommunity, butwasnot.
Trust Act, No.
"communities" has a corresponding meaning.
"Deeds Registry Act" means the Deeds Registry Act, 1937 Act NO.
"project" means a project as contemplated in section 17.
"registrationofficer"means a registrationofficer as contemplated in section 32(13) of this Act.
(xxxvi)"this Act" includes any regulations made andin force under this Act.
recognize alternative dispute resolution mechanisms for the resolution of conflicts and disputes concerning communal land, arising from any cause, land; and provide for certain institutional, material and technical support by the State tocommunities in the ownershipandmanagement of theirlandtenure rights, subject to the provisions of the Constitution and this Act.
excluding land restored or awarded to any individual or community in terms of the Restitution of Land Rights Act, 1994 (ActNo. 22of 1994).
COMMUNAL LAND. TENURE SYSTEMS Juristic personalityof communities 4 (1) A community, upontheregistration of its community rules in terms of section 32 shall be establishedas a juristic person.
have(c) succession of in perpetual regardless its changes membership.
No.22 of 1994, shall take place, if at all, only after and subject to thefinal determination of the restitution claim.
(ii)AnysimilarlegislationorRegulationorProclamation in force in any area currently comprising the Republic of South Africa at any material time; and and existing at the date of commencement of this Act shall be deemed to have been lawfully created, provided that the Minister is satisfied, after due and thorough enquiry, includingconsultationwiththeLandRightsBoardorBoards, thattheallegedrights holder acted in good faith and further provided that the issuing of the land tenure right was not for any other reason unlawful.
IO. (1) Anadministrativestructure, dulyactingonbehalf of the community, orany person whose right to land is adversely affected by the conditions referred to in section 8 may, as prescribed, apply to the Minister for an award of comparable redress.A copy of the application shall be lodged with the Land Rights Board having jurisdiction in the area.
Minister after ofapplication in subsection (I),at her or his discretion, initiate the procedure in terms of this Chapter for the awardingof comparable redress.
the extent of overcrowding orpoverty in the area; and the number of persons affected by the conditions referred to in paragraphs application referred to in section IO.
and provide the Minister witha written report, in the prescribed form, regarding the land rights inquiry together with an appropriate recommendation with regard to the issues contemplated in paragraphs (a),(b)and (c) orany other issue the land rights inquirer may find necessary to submit tothe Minister.
TheMinistermayimposeanyreasonable condition in respectof a comparable redress award and may impose different conditions in respect of different awards, if there isa reasonable basis for the imposition of such conditions.
32 No. 23740 GOVERNMENT GAZETTE, 14 AUGUST 2002 for the purpose of transferring such land to the beneficiaries of comparable redress in terms of this Chapter orto appropriate juristic bodies of which such beneficiaries are the members or beneficiaries.
the name of the beneficiaries.
Neither transfer duty in terms of the Transfer Duty Act, 1949 Act No.
1949) nor value added tax in terms of the Value Added Tax Act, 1991 (Act No. 89 of section 15(1).
(b)individualhousehold or individual family or individualpersoninthe form of Deed of Transfer as contemplated in sections 21.
Thefunctions of a conveyancer to be performed in order toeffect the registration of a transfer toa community, or individual household, or individual family or individualperson may be performedbyan official employed by the Department.
procedure for the possible transfer of land and appropriate registration of rights in land referred to in this Chapter.
7 and 32(3);and any other documentor information that may be required or prescribed.
34 No.23740 GOVERNMENT GAZETTE.
A land rights inquirer appointed for this purpose shall use her or his best endeavours to complete the investigation within a period of 120 days of receipt of the application or such extended period as maybe agreed with the applicant.
36 No. 23740 GAZETTE.
decision with reasons and advise on how the application or the project could be amended to make it comply with the objectives of this Act.
TheMinistermay, aftersheor hehasconsideredthe final report of the land rights inquirer as contemplated in section 20, approve or refuse the application or the project provided that if the application or the project has been refused, the Minister shall furnish the reasons for the decision to the applicantor the intended beneficiaryof the project.
Deeds Registries Act register the Deed of Transfer.
TheRegistrarofDeedsmust, when the communal generalplanhasbeen lodged in terms of subsection (4), register the communal general pian and open thecommunallandregister in respect of the land concerned, containingthe prescribed information. Section 46 of the Deeds Registries Act will apply with the necessary changes.
In the case of land or land tenure right, allocated to an individual household or the individual family, the Deed of Land Tenure Right or the Deed of Transfer shall be registered in the name of the person or persons, subject to the laws governing the matrimonial property regime between spouses on behalf of the household or family, as governed by the community rules.
Subject to the provisionsof this Act and community rules, land tenure rights may be conveyed from one household or family or person to another by Deed of Land Tenure Rights in accordance with the provisions of this Chapter and the Deeds Registries Act subjectto the necessary changes.
The right of the holder of the land tenure right to alienate or otherwise dispose of a right shall governed by the community rules.
40 No. 23740 GOVERNMENT GAZETTE, 14 AUGUST 2002 members after openingof communal land rights register applicable legislation.
Conversion of land tenure rights into full ownership structure for the conversion of her or his land tenure right into full ownership.
The community, subject to section 7(3) and (4) and the community rules, must consider and approve or reject the application for the conversion of land tenure right into full ownership.
The community may impose any reasonable condition or reserve any right on behalf of or in favour of the community.
The administrative structure shall cause the relevant portion of the land to be surveyed and a diagram to be prepared and submitted to the Surveyor-General for approval in terms of the Land Survey Act.
The administrative structure on behalf of the owner shall cause the preparation and lodgment of a Deed of Transfer together with the existing Deed of Land Tenure Right, the Tittle Deed of the community and the diagram of the relevant portion with the Registrar of Deeds.
Registries Act, register the Deedof Transfer and make the necessary entries and endorsements in her or his registers and on the relevant deeds on compliance whereupon the Deed of Transfer shall supercede the existing Deedof Land Tenure Right.
Transfer duty, value added tax or stamp duty is not payable in respect of the first registration of a DeedofTransferorDeedsofLandTenureRights in terms ofthis Chapter.
GOVERNMENT 14 AUGUST 2002 and with anything consequent on such application or request including the preparation, lodgment and attestation or execution of any deed, document or diagram required for such registration.
The provisions of section 58(2) and (3) apply, with the necessary changes required by the context, to a person appointed in terms of sub-section (1).
The granting of a right contemplated in sub-section (1) by means of a deed executed by the administrative structure on behalf of the community and the organ of Stateconcerned shall be attestedto by a registered legal practitioner.
(a)notbepaidintotheNationalRevenueFundestablishedbysection 213 of the Constitution: and be distributed in ajustandequitablemanner to the communityas agreed to by the Minister and at least a majority of the holders of land tenure rights or interests referred to in sub-section (I).
Such leases shall be mortgageable and alienable by the lessees.
Any benefit accruing to community members arising from an agreement contemplated in sub-section (I),must be distributed in a just and equitable manner to the community in accordance with its rules and the provisions of this Act.
The administrative structure shall cause the deed to be lodgedwith the Registrar of Deeds for the registration of deeds of lease in accordance with the Deeds Registries Act.
make rules with regardto the nature and content, exercise or administration of its land tenure rights.
46 No.23740 GOVERNMENT GAZETTE.
GOVERNMENT 14 AUGUST 2002 in the and members, andshallexercisetheirpowers in the best interests of all the members of the community, without any advantage to themselves in comparison with other members who are similarly placed.
A community wishing to be established as a juristic person in terms ofsection 4 of the ActmayapplytotheDirector-Generalfor assistance in the preparation of community rules.
community rules in order to make it comply with the provisions of such suggestions.
The community shall, as soon as practicable after the adoption of the community rules, submit the rules together with the prescribed information to the Director-General.
in section 4.
If the Director-General is satisfied that the community qualifies to be established as a juristic person, she or he shall refer the application, community rules and writtenconsent, to the RegistrationOfficer, whoshallregisterthecommunity rules in the prescribedmanner, allocate a registrationnumber, andissue a certificateofregistration. TheRegistrationOfficershall be an officerofthe Department of Land Affairs designated by the Director-General.
The Registration Officer shall keep a register of registered communities to which the provisions of this Act applies.
On request and on payment of the prescribed fee, the Registration Officer shall provide members of the public with information contained in the register and with a copy of the community rules of any registered community.
The Director-General may assista community to deal with any issue, which is to be addressed in order to establish the community as a juristic person.
The rules contemplated in this section shall be made subject to the provisions of this Act.
(c)circumstances in the areaprevent them from conveningsuch a meeting or from freely expressing their views.
treat any matter discussed and unresolved at the meeting as the subject of a dispute to be dealt with in terms of the remaining provisions of Chapter IX, and must advise the land tenure right holders of their rights in terms of that Chapter.
CHAPTER VI11 LAND RIGHTS BOARDS Establishment of Land RightsBoards establish such Land Rights Boards assheor he maydetermine, having jurisdiction for such areas as he or she must prescribe; and disestablish a Boardor amend its area of jurisdiction if its establishment or area is no longer appropriate. A Land Rights Board must perform the functions prescribed in this Act.
In appointing members of aBoard, theMinister must have dueregard to the general principles applicable to land tenure rights as contemplated in section 7, the objectsofthisAct, theneed to ensure andpromotegender, disabilityandother demographic representation and any other relevant factor.
Every member of a Board must be appointed for a period of five years, but the Minister may in her or his discretion extend the term of sucha member by a further period not exceeding three months has been appointed.
Whenthechairperson is unable to perform the functions ofthat office, the deputy chairperson shall perform them.
A member may nominate an alternate member who must act in her or his place if required and if the Minister approves such nomination.
TheMinistermustpublish in the Gazette thenamesofandpositionheld by each appointee to a Board and the date on which each appointment takes effect.
(d)has, without the leave of the Council, beenabsentfrom two ormore meetings of the Council duringa continuous twelve-month period.
attend any meeting or meetings of communities and administrative structures; and refer any dispute to the Director-General for the appointment of a mediator.
The Minister shall provide Land Rights Boards with the staff, accommodation and finances necessary for the exercise of their powers and performance of their functions, subject to the laws governing the public service.
A dispute, whichcouldnotbesettled as contemplated in subsection (l), may be referred to mediation in terms of the provisionsof this Chapter.
Notwithstandingtheprovisions ofsubsections (1) or (2), anymember of the community whose land tenure right or any right incidental thereto is infringed upon or threatened, may approach the magistrate's court or the Land Claims Court for appropriate relief.
A partymayinstituteproceedings in the magistrate'scourtwithinwhose area of jurisdiction the land in question is situate, or the Land Claims Court.
TherulesBoardforCourts of Lawestablished by section 2 of theRules Board for Courtsof Law Act, 1985 (Act No. 107of 1.985)'may make rules to govern the procedure in the High Court and the magistrate's courts in terms of this Act.
make such orders for the costs as it deems just.
66 No.23740 GOVERNMENT GAZETTE.
Any civil appeal fromthemagistrate'scourt in terms of thisActshallbe lodged with the Land Claims Court.
Any order for eviction contemplated in subsection (3) shall be suspended pending the review thereofby the Land Claims Court.
The Director-General may, on reasonable conditions that he or she may determine, appoint one or more persons referredto in subsection (1): Provided that the parties to the dispute may atany time, by agreement, appoint another personto facilitate meetings or mediate the dispute, on reasonable conditions the Director-General may determine.
A personappointed in terms of subsection (1) who is not in the full-time service of the State may, from moneys appropriated by Parliament for this purpose, for services performed by her or him, be paid such remuneration and allowances as the Minister, in consultation with the Minister of Finance, may determine.
Nothing contained in this Act limits the right of a person to approach an appropriate court orto refer a dispute to arbitration.
Application of Chapter lawfully been terminated by a community as contemplated in subsection 6(2) or by the remedies in relation to eviction.
a community which holds land tenure rightsin such land, and the Minister in respect of State land being administeredby her or him, may, if such right is infringed upon by an occupant, institute proceedings for the eviction of that occupant.
Notwithstandingtheprovisions of anyotherlaw, anoccupantmayonly be evicted from land after her or his land tenure right has been terminated as contemplated in sections6 and 14, and in terms of an order of court granted in terms of this Chapter.
must be carried out by and in the presenceof the sheriff.
A court may authorize any person to assist the sheriff to carry out an order for eviction, demolitionor removal at the request of the sheriff and subject to such conditions as the court may determine.
A court may, on good cause shown, vary any term or condition of an order for eviction made byit.
person evicted, if a final order is not granted.
TheMinistermay, in general or in specific cases, designateanofficer in the full time employ of the Department or appoint any other suitable person as a land rightsinquireroranassistant to alandrightsinquirer to conductinvestigations contemplated in this Act.
The Minister shall, in terms of the laws governing public finance and of this Act, determine the terms of reference of a land rights inquirer and an assistant to the landrightsinquirer, andtheconditionsofserviceand, with the concurrence ofthe Minister of Finance, the remuneration and allowances to be paid to a person appointed in terms of sub-section(1) who is not an official employedby the State.
A personwhohasaninterest of whatevernature in any aspect of the subject matter of the inquiry may not be appointed as a land rights inquirer or assistant to the land rights inquirerin respect of such inquiry.
Board or the Director-Geieral for the appointment of a mediator.
accompanied by any other person reasonably requiredto assist him or her in exercising or performing any function or duty under this Act.
sufficiently identify any book, document or object to be produced.
a description of the book, document or object suspected of being on the premises and its relevanceto the land rights inquiry; and the grounds for such suspicion.
The owner or occupier of any premises to be entered and inspected, and every person employed by that owner or occupier, must provide such facilities required by the land rights inquirer to enter those premisesto enable him or her to carry out the inspection and seizure.
Thelawrelating to privilege as it applies to a witnesssubpoenaedtogive evidence or to produce any book, document or object before a court of law shall apply to the questioning of any person or the praduction or seizure of any book, document or object in terms of this section.
who appears before a land rights inquirer, whetherin response to a subpoena or not.
Thelawsgoverning the sub-division ofagricultural land and the establishment of townships shall not apply to communal land unless the Minister directs otherwise in a notice in the Gazette.
for any purpose relating to a provision of this Act.
Without derogating from the powers a Minister may exercise under section 25 of the Constitution and the Expropriation Act,1975 (Act No. 63 of 1975),the Minister may for the purposes of this Act, exercise equivalent powers to the powers such other Minister may exercise under the Expropriation Act,1975 (Act No. 63 of 't975).
The owner of any land or the holder of a right to the land, which has been expropriated in terms of sub-section (I), is entitled to payment of such compensation in respect of the expropriation of such land or right asis prescribed by the Constitution.
Any right in land may be expropriated in accordance with the provisions of this section or any other law providing for the expropriation ofland or rights in land, and for purposes of such an expropriation, the holder of a right in land must be treated as the owner of the right.
unlawfully requires any other person to refrain from exercising a right in terms of or under this Act;or in any manner prevents any other personfrom exercising such a right, is guilty of an offence.
in the case of State land, the consent of the Minister, is guilty of an offence.
refuses to take an oath or affirmation as a witness when the land refuses to answer any question of the land rights inquirer fully and without good cause, fails to produce any book, document or object specified in a subpoena issued by the land rights inquirer; or does or says anything in relation to the land rights inquirer which if saidordoneinrelationtoacourt of law wouldbecontemptof court.
(a> in the case of anoffencereferredto in section 63(1)or (2) to a fine or imprisonment for a period not exceeding two years, or 'both such fine as may be prescribed by regulation and imprisonment; and in the caseofanoffencereferredto in section 66(3),to the penalty applicable toa similar offence in a magistrate's court.
TheMinisterandtheDirector-General, asthecasemaybe, maydelegateor assign any power or duty, which has been conferred or imposed upon her or him in this Act.
Anyregulationmadeundersubs-sections (I)and (2) may, in respect of any contravention thereof create an offence.
This Act is binding ontheState.
The statusof the interim Protectionof Informal Land Rights Act, 1996 (Act No.
TheInterimProtectionofInformallandRightsAct,1996(Act No. 31 of 1996) shall, subject to the provisions of this Act, be applicable to persons having land tenurein respect of communal land whose security of tenure to such land has not been secured by the registrationof deeds of transfer and deedsof land tenure rights.
of community membership.
rights of accesstoattendmeetingsand to recordsandminutes held by community members and other persons.
the administrative structure; or and where applicable, the voting majorities required to make a decision and the method or methods of voting.
the provision of access to financial records and information by community members and other persons.
(a)Provision shall be made for theappointment of custodians of households headed by minors for the benefitof such households.
10 Settlement of Disputes Rules and procedures for the settlementof disputes as contemplated in section 44(1).