Land reform and the Deeds Office

Graham McIntosh writes on a disregarded but critical national asset

Often ignored in the land debate is the precious national asset in our Deeds Offices and our system of land registration with its surveys and diagrams of boundaries of immovable property. If Section 25 of the Constitution is amended and EWC ever comes to pass, the Deeds Office would be essential to the process. 

Each and every square metre of South Africa has been surveyed and depicted in accurate and comprehensive Topographical Survey maps. All land in the Republic of South Africa is registered, described, and recorded and with a diagram, in our Deeds Offices. That applies to farms, suburban property, sectional title properties, mining land and land that is owned by the State, such as our National Highways, National Parks and areas in the custodianship of traditional leaders.

Deeds Office staff are experienced and competent technical civil servants who have a positive and constructive symbiosis with a highly professional private sector in the form of skilled land surveyors and experienced conveyancing attorneys. There is nothing political in the Deeds Offices. They are transparent and easily accessible to any member of the public who wishes to do a Deeds Office search. They are an extraordinarily efficient national asset that provides, indeed, for more than a 100 years, the basis for secure and accurate land rights. 

Property deeds and rights

The oldest, and probably best known, purchase and sale of private property occurred 5000 years ago and is recorded in Bible history in Genesis Chapter 23. Abraham bought land at Machpelah from Ephron the Hittite to use as a grave site for his family. The price, the boundaries, and the deed of ownership were agreed. The name “Deeds Office” links back to this ancient transaction. All Jews and Muslims revere Abraham and many carry his name. All Christians who know Bible history know about this property transaction. Nowadays that grave site is still visited by tourists.

Other anecdotal records for property rights and the buying and selling of land in Bible history are incontrovertible. “Cursed was anybody who moved a boundary stone” in Deuteronomy 27:17. Jeremiah bought a field in Anathoth for seventeen silver shekels and had the deed signed, sealed and witnessed (Chapter 32:9,10) just as our South African Deeds Offices do. Judas’s 30 pieces of silver were eventually used by the Chief Priests to buy the “Potter’s Field” as a cemetery for use by strangers. (Matthew 27:27.) There are a number other examples of the full acceptance of private property rights and the buying and selling of defined pieces of land and also in other ancient texts.

The EFF and their many sympathisers in the ANC, clearly prefer the more recent views of Lenin and Marx on property rights, to those recorded in Bible history.

Social engineering around land

Two ideologically driven social engineering projects around land were in relation to the 1936 Land Act and the Group Areas Act. Tens of thousands of hectares of white-owned land were purchased and then added to what were known as the “Native Reserves” for the use of black South Africans. It was compensation for being deprived in 1936 of the right to vote in Parliamentary elections. That process suited the then National Party and dovetailed with their attempts at land consolidation of the former Homelands. The National Party then used the Deeds Office for their second, but more devastating, social engineering project around land, in the Group Areas Act. Every single title deed had to be stamped with the race classification of the owner, and they were. In both cases the Deeds Offices’ efficient administration could carry out what was needed for this radical racial engineering around land.

The land that is administered by traditional leaders (Chiefs and amaKosi) is mapped and surveyed and described in the Deeds Office records as “unallocated State Land” (UASL).

Deputy President, David Mabuza MP, correctly reminded Parliament that this UASL is strictly and only, in the custodianship of traditional leaders and they do not own it and “should stop exploiting customary rights for unscrupulous ends” (City Press 29 May 2019). The State is the legal owner. In the understandable excitement around EWC at the ANC’s December 2017 Policy Conference, many overlooked the very significant, indeed radical, resolution which wanted occupiers of land in the UASL areas to have secure tenure. That is a realistic, necessary and very positive progressive policy on critically necessary land reform. Land that is now owned by the Ngonyama Trust, was formerly UASL and that transaction remains controversial.

Without proper title deeds and the surveyed boundaries that come with the title deed, the administration of land in the areas of UASL is seriously problematic and increasingly so. In these areas, when a person has built a home and dies, passing ownership to the heirs is challenging because there is no security of tenure for the occupier of the property and no legal ownership with a valid title deed and surveyed boundaries. Any unscrupulous Chief can insist that, legally speaking, that property, as UASL, is under his administration and so, de facto, belongs to him or he can extract a financial consideration. That was Deputy President David Mabuza’s point. ANC Chairman, Gwede Mantashe has expressed strong and legitimate concerns around the urgent need for individuals owning houses and residing in UASL areas to be given formal ownership through issuing title deeds.

The University of Zululand’s, Kwa Dlangezwa campus near Empangeni, is located in UASL that is now owned and administered by the Ngonyama Trust where the only Trustee is the iSilo (Zulu King). Because the Council of the University wisely wants to get legal title to their campus property so that they can strengthen the University’s finances, they have proposed that they honour the King with a second honorary doctorate provided the Ngonyama Trust “deeds” (sells or donates) the campus land to the University Council and ownership is registered in the Pietermaritzburg Deeds Office. 

Expropriation of private property, usually land or immovable property, is entirely acceptable provided it is regulated by a law. The Deeds Office can cope with that and has done so over the decades. Every well run state expropriates private property and “for the public interest”. In the UK, for example, it is called “compulsory purchase”. In South Africa we have a tried and tested Expropriation Act (Act 63 of 1975) which has been revised and amended many times. The debate that the EFF and some in the ANC have started is around the qualifying phrase – “without compensation”. Many in both those parties share a Leninist antagonism to private property of any kind.

Around the world, determining fair compensation for any expropriated property is fiercely contested, as the huge number of court cases over the past century prove. A magisterial tome on the Expropriation of rights in land (leases as well as freehold title) was written by Land Claims Court Judge Dr Antonie Gildenhuys. There are other texts. People care hugely about what is “theirs”, whether land, houses, TVs, cell phones, livestock, their combi taxis. They want compensation and they will fight to get fair compensation. Section 25 of our Constitution protects the property of all South Africans from EWC. It is understandable that South Africans are united in their opposition to EWC.

Constructive land reform goals

Because of our superb system of land administration in the Deeds Offices, we have huge opportunities to fast track meaningful land reform. With new technology, satellite mapping and the use of drones for surveying and identifying land, the process is faster, easier, more accurate and should be less costly. 

A National Land Reform Implementation consultation should be called with the single purpose of addressing the mechanics and practicalities required to provide all occupiers, who do not have legal title (the real landless) to their properties, to acquire it, if they so wish. This should include not only dwellings but also the land where they do business whether trading or farming.

This would apply particularly to areas where people occupy land in the former homelands (UASL) but also those who are in RDP houses or have only a PTO (Permission to Occupy from the former Homeland Governments). The people attending the Consultation should be primarily technocrats and starting with the Deeds Office, the Land Survey Profession, Conveyancing Attorneys from the Law Societies, SALGA (South African Local Government Association) but also SAPOA (South African Property Owners’ Association). CONTRALESA and AGRI-SA.

The Consultation should address the one question of how South Africa can give its people secure land rights and tenure and ownership and as fast as possible. Rwanda has done it recently and it has brought exceptional economic benefits, growth and development to that little land-locked country. China did it and with the same excellent economic results.

In the UASL areas the traditional leaders would have to get some form of compensation or endowment but they must recognise that they are not required to administer land any longer. The new owners of the title deeds, who will become rate payers, and the municipalities will administer it.

South Africa has, without doubt, the finest comprehensive system of Deeds Registry and Topographical Survey in the World. The Deeds Office has the capacity to deliver title deeds and secure tenure to all South Africans. It is an extraordinary example of more than a century of excellence by a government department for which every South African can be thankful and proud. 

Graham McIntosh, 74, is a former MP, a graduate of the Universities of Cape Town and Cambridge and has the National Diploma in Property Valuation.