Amendments to the land rights bill would be a great injustice

The Free Market Foundation's Khaya Lam Land Reform Project takes an intense interest in the proposed amendments to ULTRA. The reason is that the Khaya Lam Project, in partnership with municipalities and generous donors, is carrying out a task that should have been completed years ago, ensuring that people who are entitled to property are in possession of title deeds that prove it.

The ULTRA legislation, in 1991, gave ownership of property to an unknown number of people (probably millions countrywide), occupants of government rental and other properties on which they were acknowledged tenants and occupants. Unfortunately, the beneficiaries of the property grant were generally not informed that they were owners of the properties on which they were living. Many people today still do not know.

The Khaya Lam Land Reform Project was established specifically to assist ULTRA property owners to obtain titles. More than 10,000 title deeds have already been registered by Khaya Lam and presented to new owners in partnership with municipalities. With the applications being handled in bulk, the costs are considerably reduced. Once the Covid-19 lockdown is over, Khaya Lam aims to increase the number of titles dealt with from 500 to 1,000 per month.

Instead of simplifying the procedure, the method of dealing with applications as described in the proposed amendments to ULTRA, would deprive thousands of property owners of their right to expeditiously receive title deeds. The process would be made cumbersome and slow.

In giving oral evidence to the Parliamentary Portfolio Committee on Agriculture, Land Reform and Rural Development on 18 August, Free Market Foundation director, Eustace Davie, elaborated on the cautionary note contained in the FMF’s previously submitted written submission. According to the FMF, the Bill, in its current form, endangers the rights of all the people intended to benefit from the provisions of the original 1991 Act who have not yet done so.

The FMF submission said, "We trust that this position is clear, and that the Amendment Bill sees itself as applying only to any new properties that might, from the day of its enactment, qualify under ULTRA. If it is applied retrospectively, a great injustice would come about, as it would amount to the unilateral expropriation without compensation of millions of private residences. This would be unlawful and inconsistent with the spirit, purpose, and values underlying the Constitution."
On behalf of the beneficiaries of the work of Khaya Lam, Davie appealed to the Committee to make the process easier and less costly to ensure that the intended beneficiaries receive title deeds to their properties, and not more difficult and costly.
The original Act automatically converted to ownership all the properties listed in the Act, which determined that "as from such conversion the ownership of such erf or piece of land shall vest exclusively in the person  who, according to the register of land rights in which that land tenure right was  registered in  terms of a  provision of  any law, was the holder of that land tenure right  immediately  before the conversion."

In its submission to the Portfolio Committee, the FMF described the drastic and possibly unintended consequence of the Bill as it is currently worded: "Clause 1 of the Amendment Bill purports to change the automatic conversion of land tenure rights listed in Schedule 1 into ownership, to an application for conversion into ownership. In so doing, it vests the Minister with a discretion to either approve or reject such application."

"The evident problem with this is that all conversions happened from the moment of ULTRA coming into operation in 1991. In law, in 1991, all the holders of properties that qualify under Schedule 1 of the Act were automatically converted into ownership. In other words, factually and legally, the holders became owners. All that remained was for them to receive the title deeds that confirm the already-existing factual and legal position. The FMF's Khaya Lam Land Reform Project has therefore made use of ULTRA since 2013 to assist homeowners in obtaining title deeds to their property." In the area of one municipality alone, Khaya Lam has, in partnership with the municipality and with generous support from sponsors, assisted more than 3,000 households to obtain title deeds to their properties.

During the hearing, participants expressed concerns that males could be given preference in the granting of title to property. It was explained that the Minister and Department of Agriculture, Land Reform and Rural Development had been instructed by the Constitutional Court to amend ULTRA to ensure that gender equality would be maintained in the process of title transfers under the Act.

Instead of the automatic existing conversion which states that "as from such conversion the ownership of such erf or piece of land shall vest exclusively in the person who, according to the register of land rights in which that land tenure right was registered in terms of the provision of any law, was the holder of that land tenure right immediately before the conversion", the amended Act proposes that the automatic conversion be removed. Instead, if adopted, the amendment will require every single application for a title deed in terms of ULTRA to be made to the Minister, who will be required to advertise the application and grant Ministerial approval if there are no objections.

Where, in one fell swoop, ULTRA converted into ownership an estimated 5 million properties (nobody seems to know the real number) across the length and breadth of South Africa, making the legal and legitimate occupants the owners of those properties, the amended Act seeks to adopt a process that will be unfair to the owners seeking titles. It will also be unfair to the Minister and the Department to burden them with the task of monitoring the titling of all ULTRA properties.

Gender equality can be ensured at the municipal level where municipal officials currently sign off on property transfers. At joint Khaya Lam and municipal events, women are very well represented among the title recipients.

Khaya Lam has had the privilege, together with the Mayor of a participating municipality, of presenting title deeds to one grand elderly lady who was 99 years old, and another who was 101 years old when they at last received the title deeds to their properties. In both cases, they and their husbands had built the houses themselves. Without ULTRA, the assistance of the municipal officials, Khaya Lam and its funders, they would probably never have known the feeling of security the title deeds gave them after all those years. With the title deed in her hands, Mrs Maria Mothupi said, "I will sleep well now!" since she knew, at last, that her family's rights to their home were secure.

This article was first published on City Press on 24 August 2020.
Help FMF promote the rule of law, personal liberty, and economic freedom become an individual member / donor HERE ... become a corporate member / donor HERE