Many a times, the question gets asked – how does / did the allocation of sites take place in black townships and rural areas in KwaZulu-Natal (“KZN”)?  In order to answer this question, it is important that we set out the legal history of these processes.

In this article, I will attempt to summarise various pieces of legislation that deal with “ownership” of land amongst black communities, make mention of a piece of land legislation that deals with the conversion of certain rights into full ownership and highlight rights granted in terms of repealed laws that, although repealed, continue to for part of the property landscape in KZN.

The Regulation for the Administration and Control of Townships in Bantu Area popularly known as R293/1962

Broadly speaking, these regulations dealt with inter alia:

• The procedure to designate townships in black areas
• The issuing of the Deeds of Grant
• The Allotment and occupation of sites
• The numbering of sites

With the exception of a few regulations, the above regulations have been repealed by the KwaZulu-Natal Land Affairs Act 11 of 1992.

KwaZulu-Natal Land Affairs Act 11 of 1992

The purpose of the Land Affairs Act is inter alia to provide for certain rights of tenure to land and for the registration of certain forms of title in respect of land.  Of significance in as far as this matter is concerned is Section 7 which deals with the Deed of Grant.  Section 7 provides that:

“The Deed of Grant may be granted by or on behalf of the owner of the land, in respect of an erf in an approved township if such erf is shown on a diagram or general plan, where the township register in respect of the township has not been opened.”

Rights conferred by deed of grant rights: Section 8 of this Act provides that:

“The holder of deed of grant rights in respect of any land may with effect from the date of registration of such rights and subject to the provisions of this Act:

• Occupy such land
• Erect a building on or otherwise improve such land and alter or demolish such building or improvement, subject to the provisions of any law relating to the erection, alteration or demolition of buildings
• Mortgage the deed of grant rights
• Dispose of the deed of grant rights to another person, including the right to bequeath the deed of grant rights
• Let such land
• Subdivide such rights by the substitution for them of deed of grant rights in respect of any portions of such land, subject to the provisions of any law relating to the subdivision of land or the vesting of streets or other public places;
• Consolidate such rights with the deed of grant rights held by him in respect of a contiguous piece of land, subject to the provisions of any law relating to the
• consolidation of land;
• Burden the deed of grant rights of such land with servitudal rights, or acquire such rights therefore.

Rights conferred under subsection (1) shall prevail in the event of conflict with the rights of the owner of the land or with other real rights registered in the deeds registry. The rights conferred under a deed of grant, certificate of right of leasehold or quitrent title registered before the commencement of this Act under the provisions of a law repealed by Section 39 (1) shall be deemed to be deed of grant rights.”

Section 52 – Black Communities Development Act No. 4 of 1984

Granting of leasehold: Section 52 of the Black Development Act provides that:

“…a local Authority may subject to the Upgrading of Land Tenure Rights Act No. 112 of 1991, in respect of land which it is the registered owner or which vests in it or …….. on application made to it…….. grant to any person ……a right of leasehold in the prescribed manner in respect of any leasehold site which is situate on such land.”

Save for a few provisions, this Act is largely repealed.

Tribal Land in KZN

Under customary law and practice, the Inkosi and Induna of the tribe have the power to administer the land, control its use and to allot portions to members of the tribe.

In terms of Ingonyama Trust Act 3 of 1994, the Ingonyama Trust basically owns all tribal land in KZN (excluding land privately owned).  The Ingonyama Trust Board, created in terms of the Ingonyama Trust Act, is responsible for dealing with the selling, occupying or leasing of tribal land which it cannot do without the written consent from the tribal authority.

Previously, people who were allotted portions of land were issued with a Permission to Occupy (PTO).  The Ingonyama Trust Board does not issue PTOs but it grants either short or long leases.  A long lease is defined as a lease of 10 years or more. This can be registered in the Deeds Office and it can be bonded.

Of critical importance is that the Ingonyama Trust Act does not affect existing rights.

Upgrading of the Land Tenure Rights Act 112 of 1991

The Land Tenure Rights Act provides for, amongst other things, the upgrading and conversion into ownership of certain rights granted in respect of land.

These rights are set out in Schedule I of the Land Tenure Rights Act. These rights include:

• Any deed of grant or any right of leasehold as defined in Regulation 1 of Chapter 1 of the Legislations for the Administration and Control of Township in Black Areas Act, 1962
• Any right of leasehold as defined in Section 1(1) of the Black Communities Development Act 4 of 1984
• Any quitrent title as defined in Regulation 1 of the Black Areas Land Regulations Act, 1969

Section 2 of the Land Tenure Rights Act specifically provides that:

“Any land tenure right mentioned in Schedule 1 and which was granted in respect of:

• Any erf or any other piece of land in a formalized township for which a township register was already opened at the commencement of this Act, shall at such commencement be converted into ownership
• Any erf or any other piece of land in a formalised township for which a township register is opened after the commencement of this Act, shall at the opening of the township register be converted into ownership”

The Land Tenure Rights Act defines townships to mean:

“Any piece of land which is subdivided into smaller units in such a manner that the units are accessible by means of streets or thoroughfares, whether the units have been surveyed or are informally demarcated; or any settlement, whether surveyed as such or established in any informal manner.”

Section 5(1) of the Land Tenure Rights Act makes it abundantly clear that ownership vested in any erf or any piece of land continue to be subject to any mortgage bond registered immediately before such conversion.