Practice in the deeds registry South Gauteng at Johannesburg for the conversion of land tenure rights into ownership in terms of section 2(1) of the upgrading of land tenure rights Act 112 of 1991 (“ultra”) as amended by the upgrading of the land tenure rights amendment Act 6 of 2021.
1. CONSTITUTIONAL COURT MATTER
The Constitutional Court in RAHUBE V RAHUBE AND OTHERS (CCT319/17) made the following order:
- Section 21 of the Upgrading of Land Tenure Rights Act 112 of 1991 is declared constitutionally invalid insofar as it automatically converted holders of any deed of grant or any right of leasehold as defined in regulation 1 of Chapter 1 of the Regulations for the Administration and Control of Townships in Black Areas, 1962 Proc R293 GG 373 of 16 November 1962 (Proclamation R293) into holders rights of ownership in violation of women’s rights in terms of Section 9(1) of the Constitution.
- The order in (a) above is made retrospective to the 27 April 1994.
- In terms of section 172(1)(b) of the Constitution, the order in paragraph (a) and (b) shall not invalidate the transfer of ownership of any property which title was upgraded in terms of section 2(1) of the Upgrading of Land Tenure Rights Act 112 of 1991 through finalized sales to third parties acting in good faith; inheritance by third parties in terms of finalized estates; and the upgrade to ownership of a land tenure right prior to the date of this order by a woman acting in good faith.
2. AFFECTED LAND TENURE RIGHTS
2.1 The affected tenure rights referred to are those set those out in Schedule 1 of ULTRA, being:
2.1.1 Any deed of grant or any right of leasehold as defined in regulation 1 of Chapter 1 of the Regulations for the Administration and Control of Townships in Black Areas, 1962 (Proclamation R293 of 1962).
2.1.2 Any quitrent title as defined in regulation 1 of the Black Areas Land Regulations, 1969 (Proclamation R188 of 1969).
2.1.3 Any right of leasehold as defined in section 1(1) of the Black Communities Development Act, 1984 (Act 4 of 1984).
2.1.4 Any right of leasehold within the meaning of the Conversion of Certain Rights to Leasehold Act, 1988 (Act 81 of 1988).
2.1.5 Deed of grant or rights of leasehold as defined in regulation 1(1) of the Regulations concerning Land Tenure in Towns, 1988 (Proclamation R29 of 1988).
2.1.6 Deed of grant or leasehold within the meaning of the Regulations for the Disposal of Trust Land in Towns, 1988 (Government Notice R402 of 1988).
3. EFFECT OF ORDER AND AMENDMENT TO ULTRA
3.1 The effect of the order and the subsequent amendment of ULTRA on 1 June 2024 is that before any act of registration in respect of the property can be registered, including but not limited to mortgage bonds and transfers, application for the upgrading of the land tenure rights must be made to the Minister of Land Reform and Rural Development, in terms of the Regulations to ULTRA.
3.2 To ascertain whether such an application is required, a deeds office search must be conducted on the property to determine whether a “caveat” has been noted against the property indicating that the tenure right has been upgraded. This will typically read “Now Freehold” or “112/1991”.
3.3 The title deed must also be perused to determine whether the upgrading endorsement has not already been noted on the title deed prior to 1 June 2024.
3.4 Had it been noted, no application to the Minister will be required as the upgrading was finalized prior to the amendment of ULTRA to give effect to the above Constitutional Court.
3.5 Had it not been noted, application must be made to the Minister which entails the following:
3.5.1 An application for the conversion of the land tenure rights must be made by the owner to the Minister
3.5.2 The Minister’s notice of an application for the conversion of a land tenure right must be advertised.
3.5.3 Objection to an application for the conversion of a land tenure right can be made.
3.5.4 The Minister shall after having made a decision relating to the conversion of a land tenure right, inform the Registrar of such decision.
3.5.5 Where no objection is made the Registrar will endorse the title deeds accordingly.
3.6 To date, as far as we are aware, no approvals have been granted by the Minister, albeit numerous applications having been made.
4. CHIEF REGISTRAR’S CIRCULAR AND CIRCULAR ISSUED BY THE JOHANNESBURG DEEDS OFFICE
4.1 The Chief Registrar of Deeds issued Circular 5 of 2024 in which it requires an application to the abovementioned Minister for the upgrading of leaseholds, deeds of grant and quitrents converted after 1 June 2024 into full ownership only.
4.2 All deeds offices countrywide follow the directive issued by the Chief Registrar of Deeds in Circular 5 of 2024, which requires that an application only needs to be made to the above Minister for the upgrading of leaseholds, deeds of grant and quitrents which were converted after 1 June 2024 into full ownership, except the Registrar of Deeds South Gauteng at Johannesburg.
4.3 The Johannesburg Registrar of Deeds, contrary to the above Chief Registrar’s Circular, issued Registrars Circular 1 of 2024, which requires that application must also be made to the said Minister for the upgrading/conversion of all land tenure rights converted into full ownership prior to 1 June 2024 in respect of which the title deeds were not already endorsed on 1 June 2024.
5. EFFECT OF CIRCULAR ISSUED BY THE JOHANNESBURG REGISTRAR
The effect of the above Circular is that no acts of registration can be registered in respect of any of the above land tenure rights upgraded after 1994 if the title deeds of such properties were not endorsed to the effect that the upgrading has been effected without having obtained the consent of the Minister first – no transfers, no first or further bonds and recently even no bond cancellations as well.
