Abolition of Certain Title Conditions Bill; Kgalagadi Park Agreement

LAND & ENVIRONMENTAL AFFAIRS SELECT COMMITTEE
13 September 1999
WORLD HERITAGE CONVENTION BILL, LAND AFFAIRS GENERAL AMENDMENT BILL AND ABOLITION OF CERTAIN TITLE CONDITIONS BILL: BRIEFING

Documents handed out:
Briefing on the World Heritage Convention Bill
Briefing on the Land Affairs General Amendment Bill
Briefing on Abolition Of Certain Title Conditions Bill
[These documents are attached to end of minutes]

SUMMARY
Mr C Swart from the Department of Environmental Affairs and Tourism gave a presentation on the background and context of the World Heritage Convention Bill. Ms I Coetzee, also from the Department, presented on the Consultation process the Department had gone through. An official from the Department of Land Affairs presented on the Land Affairs General Amendment Bill and on the Abolition of Certain Title Conditions Bill.

MINUTES
World Heritage Convention Bill
Mr Swart outlined the background and context of the World Heritage Convention Bill, and Ms Ingrid Coetzee explained to the Portfolio Committee the departments consultation process. After the briefing, members of the Portfolio Committee were given an opportunity to ask questions for clarity.

Questions by Committee members
Q You have made a lot of reference about management of these sites, but you do not talk about the business plan. What are the financial implications.
A Out of about 40 sites nominated there are those like St Lucia with a potential for tourism. Sites like these need business plan. The majority of the sites are not so exciting need no business plan.
Q As a follow up, I think sites like these can have a great negative impact on Local Government and on the provinces.
A Every time there is consultation. No Local Government would be surprised by what would take place. On the financial side, St Lucia is costing the Government plus minus 30 million a year. The site can stand on its own and be a job creator for the people of the area. There are a number of sites that would be a burden on the scarce state resources but of course that increases our chances of access to International aid.
Q In connection with Section 7, you said when there is no existing authority a new authority would be created. Could it happen that an additional authority may be created on top of the existing one.
A The "may" in Section 7 is specific because the Minister would have to go on a variety of options first, that is, the process of consultation begins. Without consultation the Minister will not override any existing authority. The problem here is that a province may think it is doing a great job when in fact it does not.
Q Can we be given an example of sites which the presenter claims are in the rural areas. I am of the view that all the sites are in the so-called urban areas; what motivated the committee to nominate these sites.
A When the committee was first nominated it was given a task to go to all provinces. We consulted all relevant members of the committee in the provinces. We had workshops where people were invited from communities to mention sites of Local, National and international significance. Representatives came and mentioned sites that they felt would qualify. About 60 or so sites were named but the number was cut down to 20. This 20 is on what we call a tentative list.
The committee agreed that out of that list we should submit to Paris the names of Robben Island, St Lucia and Sterkfontein for the year 1998. For the year 1999 the Drakensburg and the Peninsula Florist Region have been submitted already. So, this is an on going process; it is perpetual.
Q What could be a hick up resulting in the Bill not to be finalised by December.
A The Bill is now with the Portfolio Committee. We will meet tomorrow the 14 September with the Portfolio Committee and start going clause by clause. There are no hick ups as yet.
Q Is there any reason why the Bill was tabled in the NA first
A I think constitutionally it can go either way.

Land Affairs General Amendment Bill
The Department of Agriculture and Land Affairs briefed the committee. See Appendix 2 for the briefing. The questions of the committee on the Bills were not recorded.

Abolition Of Certain Title Conditions Bill
A representative from the Department of Land Affairs briefed the Select Committee on the Bill.

He said that the Bill is designed to abolish conditions whereby a title holder to a land would first have to seek permission from the holder of an office in the Republic, the Union of South Africa, a Colony or any structure which preceded these, before he could transfer his land. He explained that the objective is not to do away with conditions that an owner of land has to be consulted in land development. He said this Bill would not in anyway interfere with other abolition Acts. He further informed the members that the Bill is very short and simple.

Clause 1
The presenter said the important thing in this clause is that the Bill refers to existing conditions and not to conditions to come. He mentioned that from date of promulgation, the conditions sought to be abolished would be abolished.

Clause 2
This clause deals with conditions that will not be affected by the Bill.

The presenter said it takes about 6 months for an undesired condition to be removed. He promised that if this Bill is promulgated it will take about 7 to 10 days for a condition to be removed and it will be at low cost.

Further, he said to carry these conditions any further has the effect of frustrating the present climate. "They are redundant", he declared.

He confided that at present the Department has not received any comments whether in support of or against the Bill.

Chairperson Rev P Moatshe (ANC) enquired "…what exactly are you
removing and what are you putting in; can you please simplify what you are
talking about." The presenter said there is now, for example no Governor
General of the Colony of the Cape to get permission from "there is
of course a successor in title like a relevant Department. The important thing
is that if we do not take away these conditions we are forcing our people to go
to court all the time and we are creating work for attorneys." A Committee
member enquired about the effect of the Bill on disputed land (restitution).
The presenter denied that the Bill would have effect in any such cases.

Chairperson advised the people from the Department that the Committee requires data research, as it could not just abolish laws for no clear reason. A Committee member concurred and said that the members were presently confused and so the Department should come up with objectives of such abolition.

Appendix 1
Briefing on the World Heritage Convention Bill

WORLD HERITAGE CONVENTION BILL
Background & Context
Significance of WHC Bill
Consultation

BACKGROUND & CONTEXT
World Heritage Convention imposes obligations on state parties, eg :
"duty of ensuring the identification, protection, conservation, presentation & transmission to future generations " of the cultural & natural heritage of outstanding universal value" {Art 4}
"ensure effective & active measures are taken for the protection, conservation & presentation of the cultural & natural heritage situated on its territory" {Art 5}
submit an inventory of properties suitable for inscription on World Heritage List {Art 11}
Obligations require SA to take certain legal steps to alter domestic law in order to give effect to the Convention

BACKGROUND & CONTEXT
National Government must ensure adequate legal protection is provided - SA already has package of laws that provide for protection & conservation, eg:
Environment Conservation Act (No 72 of 1989)
National Environmental Management Act (No 107 of 1998)
Cultural Institutions Act (No 119 of 1998)
National Heritage Resources Act (No 29 of 1999
National Government must also provide the legal framework & mechanisms that will comply with Art's 4 & 5 of the Convention, and at the same time address specific needs & priorities of Government

BACKGROUND & CONTEXT
DEAT included the World Heritage Convention Bill as a top priority in its Law Reform Programme
The Bill provides the legal framework & mechanisms required to comply with the Convention by :
establishing certain fundamental principles
spelling out DEAT's responsibilities re: the enforcement & implementation of the Convention; and identification & nomination of WH Sites
establishing appropriate institutions to manage WHS
facilitating tourism & other development activities in & around such sites
ensuring regular monitoring & reporting
ensuring proper financial control

SIGNIFICANCE OF WHC BILL
Sign of Government's commitment to Convention
Ensures that SA & affected communities can derive maximum benefit from World Heritage Sites & Convention
Implementation can contribute to both Tourism & Rural Development Strategy (many WHS situated in rural areas)
Contribute to co-operative governance - uniformity of management norms & standards & ensure effective management structures in place
Allows Minister oversight to ensure compliance & at same time flexibility to accommodate provincial differences

CONSULTATION
Cabinet approval
SA World Heritage Convention Committee
National Dept's - Presentation to CEC, written submissions & bilateral consultations
Provinces - letters to MEC's, presentation to MINTECH, written submissions & bilateral consultations
Published in Gov't Gazette for public comments - widely distributed
Received 48 written submissions - summarised in Table of Comments
Gave due consideration to concerns raised
Amendments made but without deviating in principle or substantively from what was approved by Cabinet

KEY CHANGES TO BILL
Various minor changes of technical or consequential nature
Various changes that reflect values of Convention more expressly, eg reference to safeguarding the integrity of WHS in long title
Definitions :
Changed definition of World Heritage Site to be more in line with Convention, but allow Minister to proclaim 'special heritage sites' after consultation with relevant Minister/s & MEC/s

KEY CHANGES TO BILL
Objectives of the Act:
Various insertions showing greater sensitivity regarding the need to balance protection & development, and to uphold the values of the Convention
Principles
Insertions showing greater integration with NEMA & other principles in Development Facilitation Act & National Heritage Resources Act

KEY CHANGES TO BILL
Enforcement & implementation
Insertions showing greater clarification
Insertions to address Provinces concerns re disseminating information, initiating research & capacity building, and ensuring public participation
Identification & nomination of WHS
Provisions on process of identification first, then provisions on establishment of authorities
Insertion clarifying DEAT's responsibility for identification & nomination of sites

KEY CHANGES TO BILL
Establishment of authorities:
Moved provisions on consultation forward (from clause 8 to clause 7) & give greater clarity on process
Bill now provides for strengthening of existing authority first (now clause 8), before giving the option to create a new authority (now clause 9)
Executive Committee changed into an executive staff component
Advisory Board & executive staff component conflated into one chapter
Powers & duties of authorities separated for greater clarity

KEY CHANGES TO BILL
Integrated Management Plans
Name change
Insertions that ensure greater integration with other plans
Greater consultation with other Ministers & MEC's
Greater clarity re jurisdiction of plans
New provision allowing for plans to be made available to public
Land
Various technical insertions to address concerns of Chief Registrar of Deeds
Finances & Resources
Various technical insertions to ensure compliance with Public Finance Management Act

Appendix 2
Briefing on the Land Affairs General Amendment Bill

EXPLANATORY MEMORANDUM ON THE OBJECTS OF THE LAND AFFAIRS GENERAL AMENDMENT BILL, 1999
The Land Affairs General Amendment Bill, 1999, contains amendments to a number of laws administered by the Department of Land Affairs. The laws affected are the Deeds Registries Act, 1937, the KwaZulu Land Affairs Act, 1992, the Provision of Land and Assistance Act, 1993, the Restitution of Land Rights Act, 1994, the Land Reform (Labour Tenants) Act, 1996, the Extension of Security of Tenure Act, 1997, and the Transformation of Certain Rural Areas Act, 1998. Because of the nature of the proposed amendments, separate amendment bills are not justified. It is common practice to embody these kinds of amendments in one amendment bill.

Amendment proposed in respect of the Deeds Registries Act, 1937:
The arrears in moneys owing by some conveyancers to the Deeds Office's Category 1 Business Account have reached unacceptable proportions. Negotiations with the Law Society of South Africa have not resulted in a satisfactory improvement of the situation. Administrative measures introduced by registrars of deeds have brought only temporary improvement. It has therefore become necessary to introduce statutory mechanisms to enforce timeous payment by conveyancers. In terms of section 10 of the Deeds Registries Act, 1937, the deeds registries regulations board may make regulations and it is proposed to broaden the board's powers to also make regulations on the manner in which the payment of fees may be enforced, which may include the withdrawal of a defaulting conveyancers privilege of lodging documents pending payment.

Section 99 of the Deeds Registries Act No 47 of 1937 exempts the Government from liability unless the Registrar acts in bad faith or without reasonable care and diligence.

Whilst that section may not cover the State if, for instance, lodging facilities were to be withdrawn from a conveyancer who was erroneously thought to be in default of payment of his or her account, the likelihood of this happening is Iimited by the practice of sending monthly statements and a series of warnings and demands for payment - which will precede the withdrawal of facilities (which will be a means of last resort targeting recurrent recalcitrant payers). These procedures will be set out in the Regulations still to be amended accordingly.

The rights of a defaulter's clients will in practice not be affected - the defaulter will be able to continue to lodge transactions for registration but through a colleague conveyancer who will charge the defaulter a fee for that service. Clause 1 of the Bill gives effect thereto.

Amendments proposed in respect of the KwaZulu Land Affairs Act, 1992:
Section 1 of the KwaZulu Land Affairs Amendment Act, 1998, amended section 39 of the KwaZulu Land Affairs Act, 1992, to validate certain acts purporting to have been performed by the KwaZulu-Natal provincial government in terms of the KwaZulu Land Affairs Act, 1992. The validation in that section unfortunately only referred to those provisions of the KwaZulu Land Affairs Act that were assigned to the Province and not to the functions that were delegated to it in September 1998 in terms of section 2 of the Land Administration Act, 1995. The KwaZulu-Natal Department of Traditional and Environmental Affairs requested the Department of Land Affairs to rectify this omission. Clause 2 of the Bill gives effect thereto.

Amendments proposed in respect of the Provision and Land and Assistance Act, 1993:
In terms of section 2(3) of the Provision of Land and Assistance Act, 1993, the Minister may, when designating land for purposes of settlement, impose conditions regarding the use of the land. These conditions are published in the Gazette. One of the conditions that is often imposed, is that such Iand must be held by a legal entity for the benefit of the beneficiaries. Others usually relate to the use of the land.
The question arises whether such conditions prohibit the legal entity from selling the land to somebody else - and on the other side of the coin, if it is sold, whether the new owners are bound by the conditions imposed by the Minister; and a change in the use to which the land may be put - perhaps in perpetuity. To obtain legal certainty in this regard and to provide for flexibility in the rights of the beneficiaries to enable them, for instance, to meet changing population dynamics and economic development and other factors, provision is made for the Minister, by notice in the Gazette, to amend or withdraw any condition made under section 2(3) of the Act. Clause 3 of the Bill gives effect thereto.

The amendment proposed in respect of section 1O(1)(b)(ii) of the Provision of Land and Assistance Act, 1993, will enable beneficiaries to use the remainder of their grant or subsidy which is not required for land acquisition to acquire capital assets for income generation. Clause 4(a) of the Bill provides therefor.

The purpose of the amendment proposed in respect of section 10(1)(b)(v) of the Provision of Land and Assistance Act, 1993, is not to restrict the grant or subsidy to equity shares in existing agricultural enterprises, but also to make provision for equity shares to be acquired in future agricultural enterprises. The section should also not be restricted to equity shares but should include other interests such as joint ventures Clause 4(b) of the Bill gives effect thereto.

The insertion of the proposed section 10(1)(bA) of the Provision of Land and Assistance Act, 1993, will empower the Minister to grant an advance or a subsidy in the same manner and for the same purposes as set out in section 1O(1)(b) in respect of State land made available by him for purposes of the Act. Clause 4(c) of the Bill provides therefor.

Section 1O(1)(c) of the Provision of Land and Assistance Act,1993, authorises the Minister to grant an advance or a subsidy to a Municipal Council to acquire or extend land for commonage purposes. The amendment will broaden the scope to include all types of municipalities as contemplated in the Constitution. The proposed amendment authorises the Minister to grant a subsidy or an advance to other bodies (as approved by her) as well. An advance or a subsidy may also be granted to develop the newly acquired commonage or an existing commonage. Clause 4(d) of the Bill provides therefor.

In terms of sections 10(1)(b)(ii), (iv) and (vi) of the Provision of Land and Assistance Act, 1993, an advance or a subsidy can only be given in respect of land acquired by the beneficiaries in terms of section 10(1)(b)(11) of the said Act. These provisions should also apply to instances where the owner donated the land for purposes of land reform.

Clause 4(e) of the Bill gives effect thereto.

Amendments proposed in respect of the Restitution of Land Rights Act, 1994:
Section13 (1A) of the Land Reform (Labour Tenants) Act, 1996, provides that:

"(1 A) If an issue arises in a case in a magistrate's court or a High Court which requires that court to interpret or apply this Act and-
(a) no oral evidence has been led, such court shall transfer the case to the Court and no further steps may be taken in the case in such court;
(b) any oral evidence has been led, such court shall decide the matter in accordance with the provisions of this Act."

Section 1(1) of the Extension of Security of Tenure Act, 1997, specifically excludes a labour tenant in terms of the Land Reform (Labour Tenants) Act, 1996, from the definition of occupier. In order to decide whether someone is an occupier, therefore, it is necessary to decide that he or she is not a labour tenant, even where no specific allegation in this regard has been made.
The only way of deciding that someone is not a labour tenant is to interpret and apply the Land Reform (Labour Tenants) Act, 1996.
The effect of these two provisions, when read together, is that in every case in which a party alleges that he or she is an occupier before oral evidence is led, the case must be transferred to the Land Claims Court. This was clearly not the intention of the legislature, which specifically granted magistrates' courts and, in certain circumstances, High Courts, jurisdiction to hear cases under the Extension of Security of Tenure Act. The Land Claims Court has drawn this anomaly to the attention of the Department of Land Affairs.

It is accordingly suggested that section 13 of the Land Reform (Labour Tenants) Act, 1996, be amended and that a related amendment be made to section 22(l)(cC) of the Restitution of Land Rights Act, 1994 (Act No.22 of 1994).

Clauses 5(a) and 6 of the Bill give effect thereto.

Clause 5(b) of the Bill provides for the extension of the terms of office of the judges and President of the Land Claims Court. This bears the approval of the Minister of Justice.

Amendments proposed in respect of the Land Reform ('Labour Tenants) Act, 1996:
The purpose of clause 6 of the Bill is discussed in paragraph 4.5.1 above.

Since the coming into operation of the Land Reform (Labour Tenants) Act, 1996, and up to 15 March 1999, the provincial offices of the Department of Land Affairs in KwaZulu-Natal and Mpumalanga, which are primarily responsible for the implementation of the said Act, received the following numbers of applications by labour tenants for land acquisition.

These figures can be summarised as follows:


PROVINCE Section 17 - notice issued Section17 notice - Awaiting issuing Referral to the Land Claims Court **
KwaZulu-Natal 200 24 90
Mpumalanga 234 27 4

*" Section 17 - notice awaiting issuing" refers to the situation where initial investigations/ contacts with the parties are being made.

** "Referral to the Land Claims Court" refers to the situation where there is a dispute about the status of the labour tenants and where applicants have approached the Land Claims Court for a declaratory order.

Based on the figures collected by the Labour Tenant research conducted in Mpumalanga and KwaZulu-Natal in 1997/8 there may be as many as 60 000 labour tenants. This means that very few labour tenants have exercised their right to apply for an award of land.

The Department of Land Affairs plans to conduct extensive communication campaigns during the 1999\2000 financial year to inform labour tenants of their right to lodge an application in terms of the Act. The Act presently provides that such applications must be made by 23 March 2000. In light of the experience with restitution claims the Department of Land Affairs believes it advisable to extend this deadline to the end of 2000. This extension has been discussed with both the South African Agricultural Union and the National Land Committee who have indicated in principle support.
Clause 7 of the Bill gives effect thereto.

The Land Reform (Labour Tenants) Act, 1996, presently does not expressly authorise the Land Claims Court to issue an order for eviction where in proceedings before it, it is averred that the person sought to be evicted is a labour tenant, but it is subsequently not proved that such person is a labour tenant. This is a necessary power. Clause 8 of the Bill gives effect thereto.

At present section 40 of the Land Reform (Labour Tenants) Act, 1996, exempts awards of land ordered by the Land Claims Court or an arbitrator from the provisions of the Subdivision of Agricultural Land Act, 1970 (Act No. 70 of 1970), or any other law relating to the subdivision of land. After the amendment to section 1 8(6) of the Labour Tenants Act (in terms of section 45 of the Land Restitution and Reform Laws Amendment Act, 1997 (Act No. 63 of 1997)), some awards of land do not go to the Court or an arbitrator. They are simply certified by the Director-General. Section 40 of the Act should be amended to reflect this. Clause 9 of the Bill gives effect thereto.

Amendments proposed in respect of the Extension of Security of Tenure Act, 1997:
Section 19(3) of the Extension of Security of Tenure Act,1997, presently provides as follows
"19. (3) Any order for eviction by a magistrate's court in terms of this Act, in respect of proceedings instituted on or before 31 December 1999, shall be subject to automatic review by the Land Claims Court, which may -
(a) confirm such order in whole or in part;
(b) set aside such order in whole or in part;
(c) substitute such order in whole or in part; or
(d) remit the case to the magistrate's court with directions to deal with any matter in such manner as the Land Claims Court may think fit."

Where an order for eviction by a magistrate's court is reviewed by the Land Claims Court in terms of section 19(3) of the Extension of Security of Tenure Act,1997, there is no provision providing for the automatic suspension of the order for eviction pending the decision of the Land Claims Court. This means that the order for eviction can be executed although it may be set aside by the Land Claims Court. Such execution may lead to serious and irreparable harm to the persons evicted. To ensure that such hardship is not inflicted it is proposed that a new subsection (5) be added to section 19.The Land Claims Court has to date handed down 14 review judgments in terms of section 19. In total, 18 magistrates' court orders for eviction have been considered. All but three of these orders (16.7%) were overturned, either in whole or in part. It would thus appear that magistrates are still experiencing considerable difficulties in applying the Extension of Security of Tenure Act, 1997, and that a further period of two years in which their orders may be reviewed by the Land Claims Court is warranted. Clause 10 of the Bill provides therefor.

Section 20(2) of the Extension of Security of Tenure Act, 1997, provides that the Land Claims Court shall have the powers set out in section 20(1) of that Act to the exclusion of any court contemplated in section 166(c), (d) or (e) of the Constitution of the Republic of South Africa, 1996 (Act No.108 of 1996). These exclusive powers are conferred upon the Land Claims Court "subject to the provisions of section 17(2)" of the Extension of Security of Tenure Act, 1997, which provides for the institution of proceedings arising out of the Extension of Security of Tenure Act, 1997 by consent in any division of the High Court within whose area of jurisdiction the land in question is situate.

Parties are however also entitled to institute such proceedings in the magistrate's court (see section 19(1) which grants the magistrate's court the relevant jurisdiction). There is no reference to the latter exception to the exclusive powers of the Land Claims Court in section 20(2) of the Extension of Security of Tenure Act, 1997.

To expressly recognise the jurisdiction of the magistrate's court for the purposes of section 20(2) it is therefore proposed that the latter section be amended. Clause 11 of the Bill gives effect thereto

Proposed amendment in respect of the Transformation of Certain Rural Areas Act, 1998:
The Transformation of Certain Rural Areas Act, 1998 (Act No. 94 of 1998), in its present form does not contain a simplified procedure allowing a registrar of deeds to endorse the change of ownership on the title deeds of all trust land in a township as contemplated by section 2 of that Act. The result of this is that a vesting transfer deed will have to be formally registered in the deeds office, which means that a new title deed will have to be drafted and typed for each township. As each general plan constitutes a township, it means that there are several hundred townships involved. Furthermore a certificate of remaining extent will also be required by the registrar of deeds for each township. These certificates are issued by the surveyor-general. To have the certificates issued is an extremely time consuming exercise. In addition, a minimum fee of R95.00 is currently charged per certificate.

All the above difficulties can be eliminated if the Transformation of Certain Rural Areas Act 1998, is amended by inserting a procedure whereby the registrar of deeds is authorised to endorse the current title deeds to the effect that the land vests in the Municipality concerned.

Section 16 of the Deeds Registries Act 1937, (Act No 47 of 1937) allows for title deeds to be endorsed under certain circumstances to reflect the change of ownership when land vests in a local authority. The reason why the said section 16 is not already applicable to land contemplated in section 2 of the Transformation of Certain Rural Areas Act, 1998, is because it only allows a vesting from one local authority to another. Section 16 of the Deeds Registries Act, 1937,will therefore have to be specially made applicable to land contemplated in section 2 of the Transformation of Certain Rural Areas Act, 1998 Clause 12 of the Bill gives effect thereto.

OTHER DEPARTMENTS/BODIES/PERSONS CONSULTED
Since most of the proposed amendments are of a technical nature, it was not considered necessary to consult broadly with other departments, bodies or persons. The following departments, bodies or persons have however been consulted in respect of the indicated proposed amendments, in addition to those referred to elsewhere in this Memorandum:

In respect of the proposed amendment to the Deeds Registries Act, 1937:
- the Chief Registrar of Deeds

In respect of the proposed amendment to the KwaZulu Land Affairs Act, 1992:
- the KwaZulu-Natal Department of Traditional and Environmental Affairs

In respect of the proposed amendment to the Transformation of Certain Rural Areas Act, 1998:
- the Chief Registrar of Deeds
- the State Attorney. Cape Town

IMPLICATIONS FOR THE PROVINCES
Except for the proposed amendment to section 39 of the KwaZulu Land Affairs Act, 1992, (clause 2 of the Bill), none. The amendment to section 39 of the KwaZulu Land Affairs Act, 1992, is supported by the KwaZulu-Natal Provincial Government

PARLIAMENTARY PROCEDURE
The State Law Advisors and the Department of Land Affairs are of the opinion that the Bill must be dealt with in accordance with section 75 of the Constitution.

Appendix 3:
Briefing on Abolition Of Certain Title Conditions Bill
(No 40 Of 1999)

1. BACKGROUND
The Departments of Agriculture and Land Affairs, Public Works and Housing including the Office of the Presidency, receives numerous requests from members of the public and local authorities for the Ministers of those Departments to give consent to the transfer or alienation of land which is subject to a restrictive title condition in favour of the State or to the cancellation of the condition itself.
In some of the inquiries it is not clear whether the Minister who is so requested is the competent authority to grant such consent or cancellation.
In many cases it is virtually impossible to establish who is the current successor to the old functionaries mentioned in the title. This riot only involves a lot time consuming research but also creates legal uncertainty.
Examples of such difficulties includes the determination of who the successors in title to the following functionaries are, viz: Minister of Lands, Governor General, Minister of Community Development, Governor of Natal.
An example of such a condition would be:
"that the land hereby granted shall not be alienated or transferred to any person unless the consent of the Governor General shall have been first had and obtained"

In certain categories of cases, the requirement of consent is no more than a relic of an historical situation, which is no longer relevant. In these cases, the granting of consent is a pure technicality. However complying with this technicality takes a good deal of the time of staff in the Department concerned, and delays the development and use of the land. In an attempt to create legal certainty and to lighten the burden of the staff of the Department concerned, a Bill was prepared to make provision for the abolition of those type of conditions.

2. OBJECTS OF THE BILL.
It should made clear from the outset that the Bill is not designed to do away with the usual requirement that land cannot be transferred without the consent of the registered owner. In cases where the Minister of Land Affairs is the owner of the land (eg former SADT land or state land in the former homelands) or where he is a nominal owner of land, eg. land held in trust or a community or tribe, the consent or permission of the Minister, as owner, would still be required for the alienation or transfer of such land. The same would still be applicable to land owned by the State through other Departments, e.g.: - the Department of Public Works.
The basic rationale behind the drafting of this Bill is to lighten the administrative burden of the Departments concerned. The abolition of certain conditions in the title deeds was proposed as a result of these conditions being deemed to serve no meaningful purpose, therefore rendering them redundant.

The intention is not to derogate from other legislations making provision for the cancellation; amendment or suspension of conditions such as the Removal of Restrictions Act, 1967 (Act no 84 of 1961) or section 2A of the State Land Disposal Act (Act No 48 of 1961), hence the exclusions contained in clause 2 of the Bill.

3. EXPLANATION OF THE BILL.
3.1. Clause 1.
The intention of this clause is to abolish any condition registered against- any title BEFORE THE COMMENCEMENT OF THIS ACT, whereby) the consent of the HOLDER OF OFFICE is required for transfer or alienation of immovable property from one person to another.
Note: -
1. The Bill will only affect those conditions that were registered before its commencement. The cut off date will ensure that the Bill does not affect any new legislation regarding tenure reform.
2. The Bill only refers to where a permission or consent was to be sought from a holder of an office eg :- Governor General, Minister of Lands.

A concern has been raised by the Deputy Minister of Agriculture and Land
Affairs regarding the historical correctness of the sentence in page 2 line 7 of the Bill which reads ..."or any of its constituent colonies or republics". The Department of Land Affairs agrees with the Deputy Ministers' concerns.

At the time of the formation of the Union of South Africa in 1910 there were no republics in existence.
An amendment is hereby requested at page 2 line 7 of the Bill to omit "its constituent colonies or republics" and to substitute "the dominiums, colonies or republics that preceded the Union of South Africa"
On the date of promulgation of this Bill, if it is accepted, all the conditions referred to in clause 1, will be automatically abolished. The Registrar of deeds would then be required to make such entries or endorsements in his or her register. In practice this means that members of the public would approach the registrar with a request for confirmation of the abolition of such a condition. They will have to satisfy the registrar that the conditions in their title are those referred to in clause 1.1 and are not excluded by clause 2.

3.2. Clause 2 - Exclusions.
In respect of those conditions mentioned in paragraphs (a) to (j) of clause 2, this Bill will not apply.
In broad terms these exclusions relate to the change of land use; town planning schemes; rights to minerals; subdivision of agricultural or agricultural holdings land, time period during which land may not be alienated or sold; right of State to acquire the land if condition is breached; right of State to resume ownership for public purposes; right of pre-emption towards the State; conditions imposed in permits or authorisations for the extraction and use of water as a scarce natural resource in terms of the National Water Act, 1998 (Act 36 of 1998 ), where the State is the owner of the land and where the holder of an office is the nominal owner of a piece of land.
In all the above situations the necessary consent or permission would still be necessary.

3.3. Clause 3
It refers to the title of the Bill if promulgated.

4. IMPLICATIONS
FINANCIAL IMPLICATIONS
The present procedure of removing the conditions is time consuming and costly. To remove a title deed condition takes between three to six months and the cost of advertising alone is +- R500, 00. If a speedy route of removing a condition through a court order is adopted, it will cost anything from R5000, 00 to R10 000,00.
If this Bill is promulgated it will shorted the period within which these conditions are removed and it will be at no cost to the members of public. Such entries or endorsements by the Registrar referred to in clause 1.2 will be a confirmation of what the Act has already abolished.

4.2. POLITICAL IMPLICATIONS
Suffice to mention that these conditions have outlived their usefulness and are a drawback to the speedy development of land, this Bill is of an administrative nature and purely technical.

4.3. PROVINCES AND LOCAL AUTHORITIES
There are no implications for provinces or local authorities.

5. CONSULTATIONS.
The following Departments/bodies were consulted and they have indicated their support for the promulgation of this Bill, viz:
- Department of Agriculture,
- Chief Registrar of Deeds,
- Department oh Housing,
- Department of Public works, and
- Department of Water Affairs and Forestry.

6. COMMENTS ON THE BILL.
The Department of Land Affairs received requests for copies of the Bill after publication on the 25 June 1999 in the Government Gazette. The list of those who requested the Bill is available. However no comments were received from the members of the public on the Bill.

7. CONCLUSION.
The Abolition of Certain Title Conditions Bill is designed to lighten the administrative burden of the relevant Departments to reduce the costs of removing these conditions which serve no meaningful purpose and to assist in the speedy development of the land concerned.