THEO BOSHOFF: Deeds bill is a first step in improving security of tenure
The Deeds Registries Amendment Bill was published for public comment on July 9, with little fanfare. This was to be expected. Amendment bills of this nature are typically technical, uncontroversial and filled with empowering provisions that have more to do with the entity’s own functionality than consumer interface.
However, a closer look reveals a single amendment that could dramatically change our understanding of land rights. The bill seeks to allow the registrar of deeds to “… record, in compliance with the requirements of any law, land tenure rights lawfully issued by government or any other competent authority, and record the amendment and cancellation thereof”.
To date, only those tenure rights recognised under common law have been registered against a title deed at the deeds office. This includes ownership rights, long-term leases, usufructs and servitudes, among others. Informal land rights, occupation rights exercised by farm workers and tenure rights rooted in African customary law are recognised by various laws in SA, but could never be formally registered against the title deeds.
While these rights technically enjoy full legal protection under our law, they have never afforded the holder the same level of tenure security in practice. This bill may well take the first step to rectify that.
Tenure security is a term that is often thrown around in land reform debates, but it is worth pausing to consider what it actually means. Tenure is the relationship between a person or a community and the land they occupy — this is fairly simple. The aspects that make tenure “secure” or “insecure” is often where the debate gets lost.
In SA, ownership or property rights tend to be equated to tenure security, but this is merely because there is clarity about all of the elements that go along with ownership. If you are a landowner, no-one can evict you, your rights do not expire, you can sell at will, you can choose who inherits, you can use the land as security to get finance, there is a system by which you are taxed and, importantly, proving that you are the owner is as easy as walking into the deeds office. Unfortunately, the same cannot be said for all land rights in SA, and this is why the amendment bill is so important.
By allowing tenure rights to be recorded in the deeds office, we are taking a significant step towards improving security of tenure for millions of South Africans. But that is not to say it will be a silver bullet. Recording a right in the deeds office will serve as proof that right exists. This is good for the legitimate holders of rights, but it does raise the question: how do you verify the right before it is recorded? Once a right is recorded it will be extremely difficult and costly to amend it.
Many tenure rights are informal and imprecise. Labour tenant rights, for instance, may apply to a certain portion of a farm only and not the entire title deed. Likewise, permission-to-occupy rights are often granted for the exclusive use of a portion of land within communal land that is neither subdivided nor even surveyed in some instances. To determine the extant nature, extent and conditions attached to a tenure right will not be easy, but it is vital that the bill makes provision for this to be done before a right is registered. If not, it could lead to conflict and disputes that undermines the noble intention of the bill.
Finally, recording tenure rights is certainly a step in the right direction, but it won’t result in tenure security on its own. The conditions under which one can transfer or acquire a tenure right will naturally differ between long-term occupation rights under the Extension of Security of Tenure Act, labour tenant rights, permission-to-occupy and customary rights. The conditions need not be the same as common-law ownership, but until such time as there is legal clarity about all of these aspects these rights will not provide the same level of security.
The Deeds Registries Act can allow rights to be recorded, cancelled or amended, but it will only be successful once the conditions under which this can take place are clarified in dedicated legislation. This bill should only be the first step.
• Boshoff is head of legal intelligence at the Agricultural Business Chamber.
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