New property title law to address gender issue, create more owners

Zakhele Mthembu is a legal researcher at the Free Market Foundation. 

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This article was first published on BBrief on 9 February 2022

New property title law to address gender issue, create more owners

The Upgrading of Land Tenure Rights Amendment Act of 2021 was assented to in May 2021 by the President. This amendment was necessitated by a case, Rahube v Rahube, heard initially in the North Gauteng High Court, with the Constitutional Court later confirming the order. The amendment changes the landscape around the conversion of insecure title into secure private title.
In 1991, the then apartheid government amid negotiations, introduced the Upgrading of Land Tenure Rights Act (ULTRA). This Act automatically converted previous rights to land and property held by black people in urban areas specifically, into full ownership title. The apartheid government had created, dating back to the previous colonial governments, a legal environment wherein indigenous people were barred from enjoying ownership to their property. They were only being afforded use rights of some variety, with their property rights residing with a central government office.
The property rights enjoyed by black people in South Africa had seen an interruption dating back centuries to the first wars of colonisation. Large tracts of landed property were taken in conquest, and republics and colonies were established on top of this injustice. They fought and ultimately unified, to create the Union, later the Republic of South Africa we know today.
Parliament adopted the Natives Land Act in 1912 which essentially consolidated the injustice that dated back centuries, barring property ownership by indigenous people in over 70% of South Africa. The apartheid government which won a racially exclusionary election in 1948 merely continued the tradition of the South African state, adopting further inhibitions on property acquisition and enjoyment by indigenous people.
This is the context under which in 1991 the apartheid government enacted ULTRA to upgrade the property rights that it had limited for indigenous people for generations, into full and secure private property rights.
The rights to property which were to be upgraded by ULTRA were problematic insofar as they were premised on a confused understanding by government of the property regime of the indigenous people. This confusion was manifest in women not being allowed to have rights in property, limited as they were in favour of males. Whereas the Western legal tradition was allowed to develop in line with changing sensibilities and conditions, African customary law was regarded as stagnant and therefore exclusionary. 
An example of this is the Regulations for the Administration and Control of Townships in Black Areas of 16 November 1962, mentioned in the Rahube matter, which gave males alone the insecure tenure rights black people enjoyed during apartheid.
ULTRA converted these rights which were premised on an unjust context in more ways than one, to full and secure property rights, subject to the municipality in question entering these new owners into the deeds registry and handing out title deeds.
According to data from the Free Market Foundation’s (FMF) Khaya Lam Project, close to 50% of the successful conversions to full title under ULTRA accrued to women in the Ngwathe Municipality. Khaya Lam is a project of the FMF wherein the administrative costs of conversion to full title using ULTRA are covered by the FMF in cooperation with municipalities.
In Rahube the Constitutional Court declared a section of ULTRA unconstitutional insofar as it allowed for the automatic conversion of rights which previously could not be enjoyed by women. The court ordered that there be an opportunity for any interested party, particularly women, to object to this conversion. The ability to appeal previous conversions was also ordered.
The result is that the new amendment requires the Minister to handle these applications for conversion reliant on ULTRA and allow for objections by any interested party. Interested parties which must be notified through advertisements in different mediums as part of the application process.
The amendment is meant to create a window for objection by any interested party to a property being converted to full individual ownership. The administrative tasks are a tall order to be burdened on the office of the Minister of Agriculture, Land Reform, and Rural Development alone. Delegation to municipalities is the only way conversions can happen expeditiously. The result will be more people enjoying secure title as is a constitutional imperative.
Since the amendment to ULTRA was precipitated by a court order, the focus ought to be on how best to comply with it. The administrative challenges can be alleviated through decentralisation. The opportunities, like the applicability of the Act to the entire Republic, are a matter for another time. The aim should be ensuring that the process of enabling people to enjoy secure title to their properties, continues, so that a centuries-old injustice may be alleviated.
To a future of property owners!

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