Implementation of The Upgrading of Land Tenure Rights Amendment Act 6 of 2021 Procedure

By Malcolm on September 2, 2024

PURPOSE:

The purpose of this circular is to elaborate on the procedure to be followed when

implementing/applying the amendments of the Act and Regulations of Act 6 of 2021 in the Deeds Registry Pretoria.

BACKGROUND:

Section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 was declared constitutionally invalid insofar as it automatically converted holders of any deed of grant or any right of leasehold defined in Proclamation R293 of 1962 into holders of rights of ownership in violation of women’s rights in terms of section 9(1} of the Constitution of the Republic of South Africa (Act 108 of 1996), (see – RAHUBE v RAHUBE AND OTHERS 2019 (2) SA 54 (CC))
The above decision was suspended by the Constitutional Court for a period of 18 months to allow Parliament the opportunity to introduce a constitutionally permissible procedure for the determination of rights of ownership and occupation of land to cure the constitutional invalidity of the provisions of section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991.
The Act as well as the Regulations were amended, as a result and therefore there is a need for the new procedure to be outlined.
The commencement date for the amendments to Act and Regulations is the 1^st of June 2024.

PROCEDURE:

1. The procedure for the Upgrading of the Land Tenure Rights Act 112 of 1991 in terms of the Amended Act and the Regulations: (new amendments)

Any person who is the registered holder of a land tenure right mentioned in Schedule 1 according to the register of land rights in which that land tenure right was registered in terms of the provisions of any law, or could have been a holder of that land tenure right had it not been for laws or practices that unfairly discriminated against such person, may apply to the Minister in the Prescribed manner for the conversion of such land tenure right into ownership. (see Section 1(b} of the Amendment Act No 6 of 2021 read with Regulation 2 of Act No 112 of 1991)
The Minister shall, after making a decision relating to the conversion of a land tenure right, the objection related thereto, if any, and the vesting of ownership as contemplated in section 2(1D) of the Act, inform the Registrar of such decision as set out in Form 4 of the Annexure. {see Regulation 5 of Act 112 of 1991)
Any person aggrieved by a conversion of land tenure right which took effect from 27 April 1994 may approach the court for an order setting aside such conversion and registration of land tenure right or that is just and equitable. {see section 14A 1 of the Amendment Act 6 of 2021)
Rights automatically converted prior to 27 April 1994 remains valid and are not voidable.
Rights automatically converted from27 April 1994 and which falls within the ambit of section 14A(2) of the Amendment Act 6 of 2021 remains valid and is not voidable . {the provisions of section 14A (2) are follows: Transfer of ownership of any erf or any other piece of land from 27 April 1994 in which a land tenure right had been converted in respect of —
- (a) Any erf or any other piece of land purchased by third parties acting in good faith;
- (b) Any erf or any other piece of land which has been inherited by a third party acting in good faith and the estate has been finalized in terms of the law of succession and the Reform of Customary Law of Succession and Regulation of Related Matters Act 2009 (Act No 11 of 2009) has been applied or
- (c) Any erf or any other piece of land which has been converted to ownership in favour of a woman in terms of this Act acting in good faith remains valid.
NB: Rights automatically converted from 27 April 1994 and which falls outside the ambit of section 14A (2) of the Amendment Act 6 of 2021 are voidabie.

2. The procedure where the Township has already been upgraded and section 2 of Act 112 of 1991 is noted on the property printout and the title deed has not yet been endorsed with section 2 endorsement.

The application must be made to the Minister for the upgrading of the property as contemplated in Section 1 of the Amendment Act No 6 of 2021. The Minister will then inform the Registrar of such a decision as set out in form 4 of the Annexure to the Regulations. {-see Regulation 5 of Act 112 of 1991)
NB: Examiners are to raise a note that an application must first be made to the Minister as contemplated in section 1 of the Act. The deeds must not be endorsed with the section 2 endorsement. (the deeds must be rejected)
NB: The procedure also covers transfers by endorsements and mortgage bonds.
NB: The following transactions (amongst others/but not limited to) are not affected by the amended Act and Regulations: – section 4(1) (b), cancellation of the bond, cession of the bond, change of names, Certificate of ownership.

3. The procedure where the Township is not upgraded and section 2 is not noted on the printout of the property.

Where section 2 of Act 112 of 1991 is not noted on the property printout and the property is in the process of being transferred, same must be transferred as a Leasehold or Deed of Grant.
NB: Examiners are to check that there is no section 2 of Act 112 of 1991 noted and that the property being transferred is a leasehold/deed of grant and not a freehold (deed drafted in accordance with Form E of Act 47 of 1937). if the property is being transferred as a freehold, the deeds must be rejected.

4. The procedure where the title deed has already been endorsed with section 2(2) (a) of Act 112 of 1991.

Where the title deed has already been endorsed with the section 2 of Act 112 of 1991 endorsement and it was signed by the Registrar of Deeds, the title deed is acceptable. No need for an application to the Minister. Subsequent transfers must follow form E of Act 47 of 1937. Mortgage bonds to follow the accepted practice format except for collateral Bonds which must be in the prescribed form (Form KK } and Surety Bond (Form LL).

5. The procedure after receiving the notification from the Minister.

Where the notification by the Minister is lodged together with the transfer documents, the Examiner must endorse the title deed with Section 2(2) endorsement.
Where the notification by the Minister is submitted to the Registrar for noting, it will be noted as caveat by the interdict Section.
Section 2(2) is unchanged and thus requires Registrar to endorse title deeds to give effect to section 2(1).

DATE OF APPLICATION:
This Circular comes into operation with immediate effect.

REGISTRAR OF DEEDS: PRETORIA
DATE: 30 August 2024