On 2 September 2016, the Department of Agriculture, Forestry and Fisheries published, a notice in the Government Gazette requesting comments on the updated Draft Policy and Bill on the Preservation and Development of Agricultural Land ("the Draft Policy").  The Draft Policy seeks to protect and develop agricultural land for food security purposes and to better control the subdivision of agricultural land in order to prevent agriculturally useful land being fragmented into other forms of development.

What is the possible impact of the Draft Policy on the Conveyancing process?

Section 16 of the Draft Policy presently deals with certain land being declared as Protected Agricultural Areas by the Minister of Agriculture (“the Minister”).  According to the Draft Policy, Protected Agricultural Areas means an agricultural land use zone protected for the purposes of food production, ensuring that high value agricultural land is protected against non-agricultural land uses in order to promote long term agricultural production and food security.  In terms of Section 16(5), the Deeds Office must amend (by way of endorsement) any title deeds of the affected properties that fall under the Protected Agricultural Areas.

It is trite that the Subdivision of Agricultural Land Act, No 70 of 1970 ("SALA") prohibits the subdivision of agricultural land, without first obtaining the consent of the Minister of Agriculture.  Section 19 of the Draft Policy effectively entrenches the above SALA provision, by prescribing that any owner of agricultural land must first apply to the Minister for subdivision of such land.   It is similarly in accordance with the Supreme Court of Appeal's decision in Four Arrows Investments 68 v Abigail Construction CC & Another 2016 (1) SA 257 (SCA), where the court held that neither the sale of, nor an option to sell, a portion of agricultural land may be concluded unless the Minister had granted his consent to the subdivision prior to the conclusion of the sale or option of sale.  It is therefore settled that the condition of obtaining the Minister's consent cannot be circumvented in any manner.  Section 19 of the Draft Policy will similarly make it impossible for any contractual structure seeking to circumvent the provision contained in SALA by consent between the parties.  The above requirement of consent would seem to also apply to consolidation of agricultural land, as contained in Section 21 of the Draft Policy.

The Draft Policy places restrictions on the Surveyor-General and the Registrar of Deeds, in terms of Section 44, by preventing either of them from attending to certain matters in respect of agricultural land and the subdivision thereof, unless they have been authorised under provisions of the Draft Policy.  This, once again, entrenches a barrier to circumventing in any manner the requirement that the consent of the Minister is required before subdivision can take place.