Communal Land Rights Act

Link to law: http://www.gov.za/documents/communal-land-rights-act
Published: 2004-04-20

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Communal Land Rights Act [No. 11 of 2004]


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 469 Cape Town 20 July 2004 No. 26590
THE PRESIDENCY No. 861 20 July 2004
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 11 of 2004: Communal Land Rights Act, 2004.

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2 No. 26590 GOVERNMENT GAZETT , 20 JULY 2004
Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
GENERAL EXPLANATORY NOTE:
] Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments.
(English text signed by the President.) (Assented to 14 July 2004.)
ACT. To provide for legal security of tenure by transferring communal land, including KwaZulu-Natal Ingonyama land, to communities, or by awarding comparable redress; to provide for the conduct of a land rights enquiry to determine the transition from old order rights to new order rights; to provide for the democratic administration of communal land by communities; to provide for Land Rights Boards; to provide for the co-operative performance of municipal functions on communal land; to amend or repeal certain laws; and to provide for matters incidental thereto.
B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:- ARRANGEMENT OF ACT
Sections
CHAPTER 1 5
DEFINITIONS AND APPLICATION OF ACT
1. Definitions 2. Application of Act
CHAPTER 2
JURISTIC PERSONALITY AND LEGAL SECURITY OF TENURE 10
3. Juristic personality of community 4. Security of tenure
CHAPTER 3
TRANSFER AND REGISTRATION OF COMMUNAL AND
5. Registration of communal land and new order rights 6. Transfer of communal land
15
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COMMUNAL LAND RIGHTS ACT, 2004
7. Functions of conveyancer 8. Registration of subsequent transactions 9. Conversion of registered new order right into freehold ownership 10. Transfer costs and stamp duties 1 1. Surveying and registration costs 5
CHAPTER 4
PROVISION OF COMPARABLE REDRESS WHERE TENURE CANNOT BE LEGALLY SECURED
12. Award of comparable redress 13. Cancellation of old order right
CHAPTER 5
THE CONDUCT OF LAND RIGHTS ENQUIRY
14. Land rights enquiry 15. Designation or appointment of land rights enquirer 15. N o 1 ice of land rights enquiry 17 . Powers and duties of land rights enquirer 18. Determination by Minister
CHAPTER 6
CONTENT, MAKING AND REGISTRATION OF COMMUNITY RULES
19. 20.
21. 22. 23. 24.
25. 26. 27. 28. 29. 30.
3 1. 32. 33.
Content, making and registration of community rules Amendment of community rules
CHAPTER 7
LAND ADMINISTRATION COMMITTEE
Establishment of land administration committee Composition Term of office Powers and duties
CHAPTER 8
LAND RIGHTS BOARD
Establishment of Land Rights Board Composition Disqualificaticn as Ecxd member Powers and duties of Board Resources of Board Service conditions of Board members
CHAPTER 9
KWAZULU-NATAL INGONYAMA TRUST LAND
Laws governing KwaZulu-Natal Ingonyama Trust Land Ingonyama Land Rights Board for KwaZulu-Natal Reconstitution of KwaZulu-Natal Land Rights Board
10
15
20
25
30
35
40
6 No. 26590 GOVERNMENT GAZETTE, 20 IULY 2004
Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
34. Powers and duties in relation to Ingonyama land 35. Inconsistency in laws
CHAPTER 10
GENERAL PROVISIONS
36. 37.
38. 39. 40. 41. 42. 43. 44. 45. 46. 47.
Provision of assistance to community 5 Provision of municipal services and development infrastructure on communal land Acquisition of land by Minister Application of Act to other land reform beneficiaries Extension of access to courts 10 Offences Penalties Delegation of powers Regulations Act binds State Amendment and repeal of laws Short title and commencement
SCHEDULE
CHAPTER 1
DEFINITIONS AND APPLICATION OF ACT
15
20
Definitions
1. In this Act, unless the context indicates otherwise- “beneficial occupation” means the occupation of land by a person for a continuous period of not less than five years prior to 31 December 1997 as if that person was the owner, without force, openly and without the permission of the 25 owner, and “beneficially occupied” has a corresponding meaning; “Board” except in Chapter 9, means a Land Rights Board established in terms of section 25; “communal land” means land contemplated in section 2 which is, or is to be, occupied or used by members of a community subject to the rules or custom of that 30 community; “Community” means a group of persons whose rights to land are derived from shared rules determining access to land held in common by such group; “community rules” means the rules registered in terms of section 19( 1); “comparable redress” means the redress contemplated in Chapter 4; 35 “Constitution” means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996); “Deed of Communal Land Right” means a deed in terms of which a new order right is registered in the game of a person as contemplated i11 section 6 ; “Deeds Registries Act” means the Deeds Registries Act, 1937 (Act No. 47 of 40 1937); “Department” means the Department of Land Affairs; “Director-General’’ means the Director-General of Land Affairs; “land administration committee” means a land administration committee established in terms of section 21; 45 “land rights enquirer” means a land rights enquirer designated or appointed in terms of section 15; “Minister” means the Minister responsible for Land Affairs;
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Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
“new order right” means a tenure or other right in communal or other land which has been confirmed, converted, conferred or validated by the Minister in terms of section 18; “old order right” means a tenure or other right in or to communal land which- (a) is formal or informal; 5 (b) is registered or unregistered; (cj derives from or is recognised by law, including customary law, practice or
usage; and (dj exists immediately prior to a determination by the Minister in terms of section
18, but does not include- 10 (i) any right or interest of a tenant, labour tenant, sharecropper or employee
if such right or interest is purely of a contractual nature; and (ii) any right or interest based purely on temporary permission granted by the
owner or lawful occupier of the land in question, on the basis that such permission may at any time be withdrawn by such owner or lawful 15 occupier;
“prescribed” means prescribed by regulation in terms of this Act; “this Act” includes any regulations made under this Act; and “traditional council” means a traditional council as defined in section 1 of the Traditional Leadership and Governance Framework Act, 2003. 20
Application of Act
2. (1) This Act applies to- (a) State land which is beneficially occupied and State land which-
(i) at any time vested in a government cohtemplated in the Self-governing Territories Constitution Act, 197 1 (Act No. 21 of 1971), before its repeal 25 or of the former Republics of Transkei, Bophuthatswana, Venda or Ciskei, or in the South African Development Trust established by section 4 of the Development Trust and L a d Act, 1936 (Act No. 18 of 1936), but not land which vested in the formkr South African Development Trust and which has been disposed of in terns of the State Land Disposal Act, 30 1961 (Act No. 48 of 1961);
(ii) was listed in the schedules to the Black Land Act, 1913 (Act No. 27 of 1913), before its repeal or the schedule of released areas in terms of the Development Trust and Land Act, 1936 (Act No. 18 of 1936); befort! its repeal; 35
(b) land to which the KwaZulu-Natal Ingonyama Trust Act, 1994 (Act No. 3 KZ
(c) land acquired by or for a community whether registered in its name or not; and (d) any other land, including land which provides equitable access to land to a
(3) The Minister may, by notice in the Gazette, determine land contemplated in subsection ( l ) ( d ) and may in such notice specify which provisions of this Act apply to such land.
of 1994), applies, to the extent provided for in Chapter 9 of this Act;
community as contemplated insection 25(5) of the Constitution. 40
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Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
CHAPTER 2
JURISTIC PERSONALITY AND LEGAL SECURITY OF TENURE
Juristic personality of community
3. Upon the registration of its rules in terms of section 19(1), a community acquires juristic personality with perpetual succession regardless of changes in its membership 5 and it may, subject to such rules, this Act and any other law, in its own name-
(a) acquire and hold rights and incur obligations; and (bj own, encumber by mortgage, servitude or otherwise and dispose of movable
and immovable property and otherwise deal with such property subject to any title or other conditions. 10
Security of tenure
4. (1) A community or person is entitled to the extent and in the manner provided for in this Act and within the available resources of the State, either to tenure which is legally secure or to comparable redress if the tenure of land of such community or perjon is legally insecure as a result of past racially discriminatory laws or practices. 1.5
(2) An old order right held by a married perscn is, despite any law, practice, usage or registration to the contrary, deemed to be held by all spouses in a marriage in which such person is a spouse, jointly in undivided shares irrespective of the matrimonial property regime applicable to such marriage and must, on confirmation or conversion in terms of section 18(3), be registered in the names of all such spouses. 20
(3) A woman is entitled to the same legally secure tenure, rights in or to land and benefits from land as is a man, and no law, community or other rule, practice or usage may discriminate against any person on the ground of the gender of such person.
CHAPTER 3
TRANSFER AND REGISTRATION OF COMMUNAL LAND 25
Registration of communal land and new order rights
5. (1) Communal land and new order rights are capable of being and must be registered in the name of the community or person, including a woman, entitled o such land or right in terms of this Act and the relevant community rules.
(2) Despite any other law- 30 (a) on the making of a determination by the Minister in terms of section 18, the
ownership of communal land which is not State land but which is registered in the name of- (i) a person;
(ii) a traditional leader or traditional leadership whether recognised in terms 35
(iii) a communal property association contemplated in the Communal of law or not;
Property Associations Act, I996 (Act No. 28 of 1996); or
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Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
(iv) a trust or other legal entity, vests in the community on whose behalf such land is held or in whose interest such registration was effected, and such land remains subject to limitations and restrictions in relation to and rights or entitlements to such land;
(b) the community referred to in paragraph (a) succeeds in all respects as the 5 successor in title to such person, traditional leader or traditional leadership, communal property association, trust or other legal entity;
(c) the title deed relating to land contemplated in paragraph (a) and any mortgage bond or other deed registered in respect of such land must, in the prescribed manner, be endorsed by the Registrar of Deeds to reflect the community as the 10 registered owner of such land; and
contemplated in paragraph (a). (d) the provisions of this Act must apply with the necessary changes to land
(3) (a) A document evidencing an old order right which is cancelled or replaced by a new order right in terms of this Act, must be lodged with the Registrar of Deeds, who 15 must endorse such document as having been cancelled.
(b) If a document contemplated in paragraph (a) cannot be lodged, the Registrar must accept an appropriate affidavit to that effect by the holder of such right or the Minister.
'Ik.;-mfer of communal land
6. After making a determination in terms of section 18, the Minister must- 20 (a) transfer the entire communal land determined by her or him to be the land to
which a community is entitled, to such community subject to the conditions contemplated in section 18(4) which are applicable to such land;
(b) despite any other law to the contrary, on behalf of such community and in respect of such land- 25 (i) have a communal general plan prepared and approved in terms of the
Land Survey Act, 1997 (Act No. 8 of 1997); (ii) have such plan registered and have a communal land register opened in
terms of the Deeds Registries Act; (iii] transfer, by means of a Deed of Communal Land Right or other 30
appropriate deed, the new order rights to the person or persons entitled to such rights; and
(c) do any other things necessary to give effect to that determination and this section.
Functions of conveyancer 35
7. A suitably qualified official of the Department may perform the functions of a conveyancer required in terms of the Deeds Registries Act.
Registration of subsequent transactions
8. Registrable transactions in respect of communal land, including new allocations of rights in such land, arising after the opening of a communal land register, must be 40 registered in terms or' t h i s Act and the Seeds Registries Act.
Conversion of registered new order right into freehold ownership
9. (1) The holder of a registered new order right may apply to the community owning the land to which such right relates for the conversion of such right into freehold ownership. 45
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Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
(2) After considering an application referred to in subsection (l), such community must, subject to its community rules and any applicable title conditions, approve or reject such application.
(3) If a community approves an application in terms of subsection (2), it may impose any condition or reserve any right in favour of the community. 5
(4) On application by the holder referred to in subsection (l), the Registrar of Deeds must in the prescribed manner record the conversion contemplated in this section.
Transfer costs and stamp duties
10. Transfer duty, value-added tax, stamp duty and deeds registration fees of office are not payable in respect of any registration required to give effect to sections 5 and 6. 10
Surveying and registration costs
11. The Minister may, from money appropriated by Parliament for this purpose, pay the costs of surveying and registration required to give effect to sections 5 and 6.
CHAPTER 4
PROVISION OF COMPARABLE REDRESS WHERE TENURE CANNOT BE 15 LEGALLY SECURED
Award of comparable redress
12. (1) The Minister may, on application by the holder of an old order right which is insecure as contemplated in section 25(6) of the Constitution and which cannot be made legally secure, determine an award of comparable redress to such holder. 20
(a ) land other than the land to which the applicable old order right relates or a
(b) compensation in money or in any other form; or (c) a combination of land or a right in land contemplated in paragraph (a) and 25
compensation contemplated in paragraph (b).
(2) An award in terms of subsection (1) may comprise-
right in such other land:
(3) The provisions of section 18, read with the necessary changes, apply to a determination in terms of this section.
Cancellation of old order right
13. For the purposes of this Act the Minister may, with the written agreement of the 30 holder of an old order right and on such conditions as may be agreed to, cancel such right.
CHAPTER 5
THE CONDUCT OF LAND RIGHTS ENQUIRY
Land rights enquiry 35
14. (1) Prior to securing an old order right in terms of section 4 or transferring communal land to a community or person in terms of section 6 or determining comparable redress in terms of section 12, the Minister must institute a land rights enquiry.
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Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
(2) A land rights enquiry must enquire into-
(i) constitutional and human; (ii) old order and other land and tenure; and
(iii) competing or conflicting, 5
(a) the nature and extent of all-
rights, interests and tenure of land, whether legally secure or not which are or may be affected by such enquiry;
(b) the interests of the State; (c) the options available for legally securing any legally insecure rights; (d) the provision of access to land on an equitable basis; 10 ( e ) spatial planning and land use management, land development, and the
necessity for conducting a development or a de-densification or other land reform programme, and the nature of such programme;
(f) the need for comparable redress and the nature and extent of such redress; (g) the measures required to ensure compliance with section 4 and to promote 15
gender equality in the allocation, registration and exercise of new order rights; (h) any matter relevant to a determination to be made by the Minister in terms of
section 18; ( i ) any other matter as prescribed or as instructed by the Minister,
2nd must endeavour to resolve any dispute relating to land and rights in, or to, land and 20 a report on such matters must be submitted to the Minister.
Designation or appointment of ladd rights enquirer
15. (1) The Minister may in the prescribed manner designate an officer of the Department or appoint a suitable person who is not such an officer to conduct a land rights enquiry. 25
(2) The Minister may, with the concurrence of the Minister of Finance, remunerate and pay allowances to a land rights enquirer who is not a State official.
Notice of land rights enquiry
16. The Minister must, in the appropriate national, regional and local media and in the prescribed manner, publish- 30
(a) a notice of an enquiry inviting interested parties to participate in such enquiry;
(b) a notice regarding the determinations made consequent upon a completed land and
rights enquiry.
Powers and duties of land rights enquirer 35
17. (1) A land rights enquirer must conduct a land rights enquiry in the prescribed manner, which must be open and transparent and must afford the communities and persons who may be affected by such enquiry an opportunity to participate in such enquiry.
cemmmity are in genera! the inferme:! md demscratic decisi~ns f the rnzjsrity ~f the members of such community who are 18 years of age or older and are present or represented by a proxy at a community meeting of which adequate notice of not less than 21 days was given.
(2) A land rights enquirer must adopt measures to ensure that decisions made by a 40
(3) A land rights enquiry report contemplated in section 14(2) must- 45 (a ) include recommendations in respect of the matters which require detennina-
tions to be made by the Minister;
18 No. 26590 GOVERNMENT GAZETIE, 20 JTJLY 2004
Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
( b ) prior to being submitted to the Minister, be made available on adequate notice for inspection by any interested community or person who must be afforded an opportunity to make representations in relation to any matter relevant to such enquiry; and
(cj be submitted to the Minister together with any such representations and 5 supporting documents for his or her consideration.
(4) Whenever relevant to an enquiry, a land rights enquirer and any person assisting such enquirer, may in the prescribed manner and having regard to the constitutional rights of affected persons-
(a) compel the provision of written and ve bal evidence; 10 (b) enter and search premises and take possession of documents and articles; and (c) convene and attend meetings of interested persons.
( 5 ) A land rights enquirer has all other powers and duties which the Minister determines are necessary for the effective conduct of such enquiry.
Determination by Minister 15
18. (1) If the Minister, having received a report by a land rights enquirer, is satisfied that the requirements of this Act have been met, he or she must, subject to subsections (4) and ( 5 ) and having regard to-
( a ) such report; (bj all relevant law, including customary law and law governing spatial planning, 20
(c) the old order rights of all affected right holders; (d} the need to provide access to land on an equitable basis; and ( e ) the need to promote gender equality in respect of land,
local government and agriculture;
make determination as contemplated in subsections (2) and (3). 25 (2) The Minister must, where applicable, determine the location and extent of the land
to be transferred to a community or person. (3) The Minister must, subject to subsections (4) and ( 3 , determine that- (a) the whole of an area of communal land which is, or is to be, surveyed must be
registered or remain registered in the name of a specified community: 30 (b) the whole of an area contemplated in paragraph (a ) is to be subdivided into
portions of land, each of which must be registered in the name of a person and not a community;
(i) must be registered or remain registered in the name of a specified 35 community, and part of such land must be subdivided and registered as contemplated in paragraph (6); and
(c) a part of an area contemplated in paragraph (a)-
(ii) is reserved to the State; and
(i) confirmed: 40 (ii) converted into ownership or into a comparable new order right, and the
(iii) cancelled in accordance with Chapter 4 and-
(d) an old order right is to be-
Minister must determine the nature and extent of such right; or
(aa) the land to which such right relates must be incorporated into land held or to be held by a community; and 45
(bbj the holder of such right must be awarded specified comparable redress as contemplated in Chapter 4.
(4) In making a determination in terms of this section, the Minister must take into account the Integrated Development Plan of each municipality having jurisdiction and, after consultation with the Minister responsible for local government, each municipality 50 and other land-use regulator having jurisdiction may-
(a) reserve a right to the State, including a municipality, and stipulate any land-use or other condition which in her or his opinion is necessary- (i) for a public purpose or which is in the public interest;
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Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
(ii) to protect the affected land, rights in such land, an owner of such land and
(iii) to give effect to this Act; a holder of such rights; or
(b) confer a new order right on a woman- (i) who is a spouse of a male holder of an old order right, to be held jointly 5
(ii) who is the widow of a male holder of an old order right, or who otherwise
(iii) in her own right; and (c) validate a putative old order right which was acquired in good faith and 10
declare invalid such a right which was not acquired in good faith, and must determine the holder or holders of a new order right.
( 5 ) The Minister may not make a determination in terms of this section which relates to land and a right in, or to, land which is directly affected by a dispute until such dispute is resolved by mediation, other alternative traditional or non-traditional dispute 15 resolution mechanism or by a court, and must adopt measures to ensure that such dispute is resolved.
with her spouse;
succeeds to such right, to be held solely by such woman; or
CHAPTER 6
CONTENT, MAKING ANT) HEGISTRATION OF COMMUNITY R!'LES
Content, making and registration of community rules 20
19. (1) A community whose communal land is, or is to be, registered in its name must in the prescribed manner, to which the provisions of section 17( 1) and (2) read with the necessary changes apply, make and adopt its community rules and have them registered.
(2) Community rules must, subject to any other applicable laws, regulate- (a) the administration and use of communal land by the community as land owner 25
within the framework of law governing spatial planning and local govern- ment;
(b) such matters as may be prescribed; and (c) any matter considered by the community to be necessary.
(3) Community rules are binding on the community and its members and must be 30 accessible to the public and are on registration deemed to be a matter of public knowledge.
(4) (a ) A community must apply to the Director-General for the registration of its adopted rules and he or she must refer such application to the Board having jusisdiction in the area for report on the suitability of such rules. 35
(b) The Director-General must consider the adopted community rules, any informa- tion submitted and the report of the Land Rights Board having jurisdiction in the area.
(c) If the Director-General is satisfied that the adopted community rules comply with the requirements of the Constitution and this Act, a Registration Officer in the Department designated by her or him for that purpose must, in the prescribed manner, 40 register such rules.
(d) If the Director-General is not satisfied that community rules comply with the requirements and intention of the Constitution and this Act, she or he must notify the community of the steps to be taken to make such rules so comply.
standard rules prescribed by regulation as adapted by the Minister to such community, are deemed to be the rules of such community and must be registered as the rules of such community.
( 5 ) Should a community fail to adopt and have community rules registered, the 45
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Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
Amendment of community rules
20. ( l j A community may, in a general meeting and in the manner applicable to the
(2) An amendment or revocation contemplated in subsection (1) must he registered adoption of community rules, amend or revoke any community rule.
and only becomes effective on registration.
CHAPTER 7
LAND ADMINISTRATION COMMITTEE
Establishment of land administration committee
21. (1) A community must establish a land administration committee which may only be disestablished if its existence is no longer required in terms of this Act.
(2) If a community has a recognised traditional council, the powers and duties of the land administration committee of such community may be exercised and performed by such council.
(3) In the exercise of the powers and the performance of the duties of a land admjnistratim~ committee as contemplated in subsection \2), a tradition21 pouncil must ensure t h i t i h c ::omposition of its membership saiisfies th: rcyuirements of section '22(4) and (5).
(4) When a traditional council acts as a land administration committee as contemplated in this section, its functional area of competence is the administration of land affairs and not traditional leadership as contemplated in Schedule 4 to the Constitution.
( 5 ) Any provision in this Act'which refers, or is applicable, to a traditional council is intended to establish norms and standards and a national policy with regard to communal land rights, to effect uniformity across the nation.
Composition
22. (1) A land administration committee must consist of a total number of members as determined by the applicable community rules and must comply with this section.
(2) Subject to section 21 (2) , the members of a land administration committee must be persons not holding any traditional leadership position and must be elected by the community in the prescribed manner.
(3) At least one third of the total membership of a land administration committee must be women.
(4) One member of a land administration committee must represent the interests of vulnerable community members, including women, children and the youth, the elderly and the disabled.
( 5 ) Each of- (a) the Minister, in respect of the Department: (b) the chairperson of the relevant Land Rights Board; (c) the relevant provincial Member of the Executive Council responsible for
(a') the relevant provincial Member of the Executive Council responsible for local
(e) every municipality in whose area of jurisdiction a land administration
may designate a person to be a non-voting member of a land administration committee.
Term of office
agriculture;
government matters: and
committee functions,
23. The term of office of the members of a land administration committee is detemincd by community rdes but may not exceed a period of five years.
5
10
IS
20
25
30
35
40
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Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
Powers and duties
24. (1) To the extent provided by this Act and subject to any other applicable law, a land administration committee represents a community owning communal land and has the powers and duties conferred on it by this Act and the rules of such community.
of communal land or a right in communal land to any person, including a community member, does not have force and effect until ratified in writing by the Board having jurisdiction.
(3) In the exercise of its powers and the performance of its duties a land administration committee must- 10
(2) A decision by a land administration committee which has the effect of disposing 5
take measures towards ensuring- (i) the allocation by such committee, after a determination by the Minister in
terms of section 18, of new order rights to persons, including women, the disabled and the youth, in accordance with the law; and
(ii) the registration of communal land and of new order rights; 15 establish and maintain registers and records of all new order rights and transactions affecting such rights as may be prescribed or as may be required by the rules; promote and safeguard the interests of the ccmmunity and its members in t k i r land; ~~ 20 endeavour to promote co-operation among community members and with any other person in dealing with matters pertaining to land; assist in the resolution of land disputes; continuously liaise with the relevant municipality, Board and any other institution concerning the provision of services and the planning and 25 development of the communal land of the community; perform any other duty prescribed by or under this Act or any other law; and generally deal with all matters necessary for or incidental to the exercise of its powers and the performance of its duties.
CHAPTER 8
LAND RIGHTS BOARD
30
Establishment of Land Rights Board
25. The Minister may, by notice in the Gazette- (a) establish one or more Land Rights Boards having jurisdiction in such areas as
(b) disestablish a Board or amend its area of jurisdiction. she or he may determine; and 35
Composition
26. (1) Members of a Board must be appointed by the Minister in accordance with the
(2) A Eioard consists of- 40 prescribed nomination and selection processes.
one representative from each of the organs of State determined by the Minister; two members nominated by each Provincial House of Traditional Leaders contemplated in section 212(2)(a) of the Constitution having jurisdiction in the area of that Board; 45 one member nominated by institutions or persons in the commercial or industrial sector; seven members from the affected communities, of whom at least- (i) one must represent the interests of child-headed households;
(ii) one must represent the interests of persons with disabilities; 50
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Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
(iii) one must represent the interests of the youth as defined in section 1 of the National Youth Commission Act, 1996 (Act No. 19 of 1996); and
(iv) one must represent the interests of female-headed households. (3) In appointing members of a Board, the Minister must-
(a ) have due regard to the required knowledge of land, land tenure, old and new 5 order rights and the required capabilities, including relevant skills, expertise and experience; and
(b) ensure that at least a third of the Board members are women. (4) A member of a Board is appointed for a period of five years but the Minister may
in her or his discretion extend such term of office by a further period not exceeding six 10 months until a new Board member has been appointed.
(5) (a ) The Minister must, after consultation with the appointed Board members, appoint a chairperson and a deputy chairperson from among such members.
(b) When a chairperson is unable to perform her or his duties, the deputy chairperson must perform such duties. 15
(6) The Minister must publish in the Gazette the names of, and position held by, each appointee to a Board, the date on which each appointment takes effect and such other information as may be prescribed.
(7) If a member of a Board dies or vacates her or his office before the expiry of her or 111s r e m of office, the Minister may appoint a person to fill the vacancy for the remaining . X pcdion of such term.
Disqualification as Board member
27. (1) The Minister must not appoint as a member of a Board a person w h o - is not a South African citizen or a permanent resident and is not ordinarilv resident in the Republic; 25 is an unrehabilitated insolvent; is declared by a court of law to be mentally incompetent or is detained under the Mental Health Act, 1973 (Act No. 18 of 1973), or any other applicable law; has been removed from an office of trust on account of improper conduct; 30 has had his or her name removed from any professional register on account of misconduct and who has not been reinstated; has been determined by a court, tribunal or forum as contemplated by the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000), to have contravened section 7 or any other provision of 35 that Act; or is an elected political representative in the national, provincial or local sphere of government.
(2) A member of a Board must vacate her or his office if she or he- (a ) becomes disqualified in terms of subsection (1) from being appointed as a 40
(b) resigns by written notice addressed to the Minister; (c) is removed from office by the Minister on reasonable grounds, after
id) has, without the leave of the Eoarci, been absent from two or more meetings of 45
member of a Board;
consultation with the Board; or
the Board during a continuous twelve-month period.
Powers and duties of Board
28. (1) A Board must, in the prescribed manner and in respect of any matter contemplated by or incidental to this Act-
(a ) advise the Minister and advise and assist a community generally and in 50 particular with regard to matters concerning sustainable land ownership and use, the development of land and the provision of access to land on an equitable basis;
( b ) liaise with all spheres of government, civil institutions and other institutions;
28 No. 26590 GOVERNMENT GAZETTE, 20 JLJLY 2004
Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
~ ~~~
(c) monitor compliance with the Constitution and this Act; and (d) exercise any other power and perform any other duty in terms of this Act or
(2) A Board and any Board member acting inL her or his official capacity may, in the exercise of a power or in the performance of a (duty of a Board- 5
assigned to such Board by the Minister.
(a) at any time enter upon any communal land; (b ) enquire into any relevant matter; (c) inspect any document in the possession of any land administration committee
or any rights holder concerning old and new order rights and make copies of such document; and 10
(d) convene and attend meetings of E L community or land administration committee.
(3) A Board has all powers necessary or incidental to the performance of its duties.
Resources of Board
29. The Department must, from monies appropriated by Parliament for this purpose, 15 provide a Board with the staff, accommodation and financial and other resources required by such Board.
Service conditions of Board members
30. The Minister must, in terms of the Public Finance Management Act, 1999 (Act No. 1 of 1999), determine - 20
(a) the conditions of service of Board members; and (h) with the concurrence of the Minister of Finance, the remuneration and
allowances payable to Board members who are not employed by the State from monies appropriated by Parliamlznt for this purpose.
CHAPTER 9 25
KWAZULU-NATAL INGONYAMA TRUST LAND
Laws governing KwaZulu-Natal Ingonyama Trust Land
31. Communal land to which the KwaZulu-Natal Ingonyama Trust Act, 1994 (Act No. 3 KZ of 1994), applies is, from the date of commencement of this Act, governed by the provisions of that Act as amended by this Act and, to the extent provided for in this 30 Chapter, by the provisions of this Act.
Ingonyama Land Rights Board for KwaZulu-Natal
32. From the date of commencement of this Act, the KwaZulu-Natal Ingonyama Trust Board established by section 2A of the KwaZulu-Natal Ingonyama Trust Act, 1994 (Act No. 3 KZ of 1994)- 35
(a) is known as the Ingonyama Land Rights Board for KwaZulu-Natal; (6) constitutes both the Board so established by that Act and, despite the
provisions of sections 25, 26 and 27 of this Act, the Land Rights Board for KwaZulu-Natal as contemplated in Chapter 8, with all the powers and duties provided for in both the KwaZulu-Natal Ingonyama Trust Act, 1994, and in 40 this Act;
(c) is headed in perpetuity by the Ingonyama referred to in section 13 of the KwaZulu Amakhosi and Iziphakanyiswa Act, 1990 (Act No. 9 KZ of 1990), or its successors in title or nominee as the chairperson and member of the Ingonyama Land Rights Board; and 45
30 No. 26590 GOVERNMENT GAZETIE, 20 JULY 2004
Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
(d) continues to be constituted by the Ingonyama and the members appointed by the Minister in terms of section 2A of the KwaZulu-Natal Ingonyama Trust Act, 1994, until it is reconstituted in. terms of section 33 of this Act.
Reconstitution of KwaZulu-Natal Land Rights Board
33. (1) Upon the termination of the term of office of the appointed members of the 5 KwaZulu-Natal Ingonyama Land Rights Board immediately after the date of com- mencement of this Act, the Board must be reconstituted in terms of sections 26 and 27.
(2) From the date of such termination all the provisions of Chapter 8, with the exception of section 25(a), apply to such Board.
Powers and duties in relation to Ingonyama land 10
34. From the date of commencement of this; Act, the powers and duties provided for in relation to land to which the KwaZulu-Natal Ingonyama Trust Act, 1994 (Act No. 3 KZ of 1994), applies, must be exercised or performed by-
(a ) such Board, when communal land is' transferred to a community or person in terms of section 6; 15
(b) the Minister, after consultation with :such Board, when cancelling an ola order right in terms of section 13;
(c) the Minister or such Board, when a land rights enquiry is instituted In terms of section 14( 1);
(d) the Minister, in relation to the designation of an officer of the Department or 20 such Board in relation to the appointment of a suitable person who is not such an officer, when a land rights enquirer is designated or appointed in terms of section 15; and
( e ) the Minister or such Board, when a notice of a land rights enquiry or a determination is published in terms of section 16. 25
Inconsistency in laws
35. In the event of any inconsistency between this Act and the KwaZulu-Natal Ingonyama Trust Act, 1994 (Act No. 3 KZ of 1994), this Act prevails.
CHAPTER 10
GENERAL PROVISIONS
Provision of assistance to community
36. The Minister may designate an officer of the Department to assist a community or person to give effect to the implementation of this Act.
Provision of municipal services and development infrastructure on communal land
30
37. Despite the other piGvisiGiis of this Act a-nd the provisions of a y other law, no law 35 must prohibit a municipality from providing services and development infrastructure and from performing its constitutional functions on communal land however held or owned.
32 No. 26590 GOVERNMENT GAZETTE, 20 JULY 2004
Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
Acquisition of land by Minister
38. (1) The Minister may, for the purposes of this Act, purchase, acquire in any other manner or, consistent with section 3 of the F’romotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), expropriate land, a portion of land or a right in land.
changes, apply to an expropriation under this Act, and any reference to the Minister of Public Works in that Act must be construed as a reference to the Minister for the purpose of such expropriation.
(3) Where the Minister expropriates land, a portion of land or a right in land under this Act, the amount of compensation and the time and manner of payment must be 10 determined either by agreement or by a court in accordance with section 25(3) of the Constitution.
(2) The Expropriation Act, 1975 (Act No. 63 of 1975), must, with the necessary 5
Application of Act to other land-reform beneficiaries
39. This Act, read with the necessary changes, applies to beneficiaries of communal land or land tenure rights in terms of other land-reform laws. 15
Extension of access to courts ~ ~~~
40. The Minister and a Board, in their capacities as such and on behalf of any community or person, each has the legal capacity to institute or intervene in any legal proceedings arising from, or related to, this Act.
Offences 20
41. (1) A person who- (a) hinders, obstructs or unduly influences any other person in the exercise of the
powers or the performance of the duties conferred on or vested in such other person in terms of this Act;
(b) unlawfully requires any other person to refrain from exercising a right in 25 terms of this Act; or
(c) in any manner prevents any other person from exercising such a right, is guilty of an offence.
(2) Any person who grants or purports to grant to any other person, other than a member of a community, a new order right in communal lmd- 30
(a) in contravention of, or without complying with, a community rule; (bj without the prior consent of the community or its land adrmnistration
committee or, in the case of State land, the consent of the Minister, is guilty of an offence.
(3) A person who, without good cause- 35 (a) having been subpoenaed to appear before a land rights enquirer, does not
(b) having appeared in response to a subpoena by a land rights enquirer, fails to
( e ) refuses to take an oath or a h a t i o n as a witness when a land rights enquirer 40
(d) refuses to answer any question fully and to the best of her or his knowledge
( e ) fails to produce any book, document or object when required to do so; or (’ does or says anything in relation to a land rights enquirer which if said or done 45
attend at the time and place stated in the subpoena;
remain in attendance until excused;
so requires;
and belief;
in relation to a court of law, would be contempt of court, is guilty of an offence.
34 No. 26590
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GOVERNMENT GAZETTE, 20 JULY 2004
Act No. 11,2004 COMMUNAL LAND RIGHTS ACT, 2004
Penalties
42. A person convicted of an offence in temns of this Act is liable on conviction- (a ) in the case of an offence referred to in section 41(1) or (2), to a fine or
imprisonment for a period not exceeding two years, or to both a fine and such imprisonment; and 5
(b) in the case of an offence referred to i n section 41(3), to the penalty applicable to a similar offence in a magistrate’s court.
Delegation of powers
43. The Minister and the Director-General m.ay delegate any power, except the power to expropriate land, a portion of land or a right in land, which has been conferred upon 10 the Minister or the Director-General, respectively, in terms of this Act.
Regulations
44. (1) The Minister may make any regulation with regard to any matter which is
(2) Any regulations made ,111der this section must be tabled in Parliament. 15 governed by or incidental to the objects or implementation of this Act.
Act binds State
45. This Act binds the State.
Amendment and repeal of laws
46. (1) The laws mentioned in the Schedule are amended or repealed to the extent set
(2) Any law which regulates an old order right and which- out in the third column of the Schedule. 20
(a ) is not mentioned in the Schedule; and (b) is not in conflict with this Act,
remains in force until repealed by a competent: authority.
Short title and commencement 25
47. This Act is called the Communal Land Rights Act, 2004, and comes into operation on a date to be determined by the President by proclamation in the Gazette.
36 No. 26590 GOVERNMENT GAZETIE, 20 JULY 2004
Act No. 11,2004
Vo. and year of law
k t No. 38 of 1927
k t No. 47 of 1937
COMMUNAL LAND RIGHTS ACT, 2004
Schedule
Amendment or repeal of laws
(Section 46)
Part 1: Laws enacted by Parliament
lhort title
3lack Administration Act, ,927
k e d s Registries Act, 1937
Eutent of amendment or repeal
Repeal of sections 6 and 7
1. Amendment of section 3 by the insertion in subsec- Lion ( I ) after paragraph (d)bis of the following para- yaphs:
“(dlter register deeds of communal land rights as contemplated in the Communal Land Rights Act, 2004;
of old and new order rights as contem- plated in the CommuL?! LdEd Rights Act, 2004:
‘djter(1B) =er~the cancellzfion of old order rights as contemplated in the Communal Land Rights Act, 2004;”.
‘d)ter(lA) - register the conversion to full ownership
- I_-_
l . Insertion after section 16B of the following section: “Registration of new order rights 16C. New order-rights shall be transferred by means
, f a Deed of Communal Land Right as contemplated n the Communal Land Rights Act, 2004.”. TAmendment of section 102- a) by the insertion after the definition of “court” of
the following definition: “ ‘Deed of Communal Land Right’ means a deed of communal land right as defined in section 1 of the Communal Land Rights Act, 2004;”;
plan” of the following definition: “ ‘general plan’ means a plan which represents the relative positions and dimensions of two or more pieces of land and has been signed by a per- son recognized by law as a land surveyor, and which has been approved, provisionally approved or certified as a general plan by a surveyor-gen- era1 or other officer empowered under any law so to approve, provisionally approve or certify a gen- eral plan, and includes a general plan or copy thereof prepared in a surveyor-general’s office and approved, provisionally approved or certified as aforesaid, or a general plan which has at any time prior to the commencement of this Act, been ac- cepted for registration in a deeds regism or sur-
bi by the substitution for the definition of “general
veyor-general’s office, and includes; communal general plan as contemplated in the Communal Land Rights Act, 2004;”;
‘cJ by the addition to the definition of “immovable property” of the following paragraph: “(e) new order rights as contemplated in the
Communal Land Rights Act, 2004;”; and ‘d, bv the substitution for the definition of “oerson”
of the following definition: “ ‘person’, for the purpose of [the registration of immovable trust property only] any registration in terms of this Act, includes a trust and, for the purpose of the Communal Land Rights Act, 2004, includes a community;”.
5
10
1s
20
25
30
35
$0
45
50
5s
60
~ ~~~~
38 No. 26590 GOVERNMENT GAZETTE, 20 JULY 2004
Act No. 11,2004
$0. and year of law
k t No. 112 of 1991
lct No. 31 of 1996
lct No. 8 of 1997
COMMUNAL LAND RIGHTS ACT, 2004
Short title
Lipgrading of Land Tenure Rights .4ct, 1991
Interim Protection of In- Formal Land Rights Act, 1996
Land Survey Act, 1997
3xtent of amendment or repeal
. Repeal of section 20. !. Substitution for section 25.4 of the following sec- ion:
“25A. As from the coming into operation of the Communal Land Rights Act, 2004, this Act shall apply throughout the Republic.”.
I . Amendment of Schedule 1 by the insertion of the ‘cdlowing items before item 1, items 1 to 6 becoming tems 3 to 8:
“ 1 . Any quitrent title referred to in Proclamation 196 of 1920.
2. Any quitrent title referred to in Proclamation 170 of 1922.”.
imendment of section 5 by the deletion of subsection 2).
4mendment of section 1 by the substitution for the iefinition of “general plan” of the following defini- ion:
‘‘ ‘general plan’ means a pian which, reprewnting the relative positions and. dimensions of twfi or more pieces of land, has i-en signed by a person recognised under any law then !n t ime as a land surveyor, or which has been approved or certified as a general plan by a Surveyor-General and in- cludes a general plan or a copy thereof prepared in a Surveyor-General’s office and approved or certi- fied as such or a general plan which has, prior to the commencement of this Act, been lodged for registration in a deeds registry or Surveyor-Gen- eral’s office in the Republic or any area which be- came part of the Republic at the commencement of the Constitution, 1993 and, for the purposes of the Communal Land Rights Act, 2004, includes a com- munal general plan contemplated in that Act;”.
5
10
15
20
25
30
35
40 No. 26590 GOVERNMENT GAZETTE, 20 JULY 2004
Act No. 11,2004 COMMUNAL LAND RlGHTS ACT, 2004
Part 2 : Laws of the former KwaZulu
io. and year of law 1 Short title ict No. 3 KZ of 1994 1 KwaZulu-Natal
Ingonyama Trust Act, 1994
i
3xtent of amendment or repeal
. . Amendment of section 2 - a) by the substitution for subsection (2) of the folloa- ng subsection:
“(2) The Trust shall, in a manner not inconsis- tent with the provisions of this Act, be adminis- tered for the benefit, material welfare and social well-being of the members of the tribes and com- munities as contemplated in the KwaZulu Amakhosi and Iziphakanyiswa Act, 1990 (Act No. 9 KZ of 1990), referred to in the second col- umn of the Scheduie, established in a district re- ferred to in the first column of the Schedule, and the residents of such a district to whom the land referred to in section 3 and the real rights and other rights in such land must, subject to this Act and any other law, be transferred.”.
‘bj by the substitution for subsection (5) of the follow- sng subsection:
“(5) The Ingonyama shall not encumber, pledge, lease, alien,& or ottlerwise dispose of any of the said land or any interest or real right in the land, unless he has id t m e d the prior written con- sent of the [traditional authority or community authority,] community concerned, and otherwise than in accordance wlth the provisions of any applicable law.”.
Part 3: Laws of the former Bophuthatswana
5
10
15
20
25
30
I No. and year of law I Short title 1 Extent of amendment or repeal I Act No. 39 of 1979 Bophuthatswana Land
Control Act, 1979 Repeal of the whole 35
No. and year of law
Act No. 16 of 1986
Proclamation 45 of 1990
Part 4: Laws of the former Venda
Short title
Venda Land Control Act, 1986
Venda Land Affairs Proc- lamation, 1990
Extent of amendment or repeal I Repeal of the whole
Repeal of sections 1 to 5, 8 to 13, 20 to 43 and so much of sections 6 ,7 and 14 to 19 as has not been assigned to the government of Limpopo province un- der section 235(8) of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993).
40
45
42 No. 26590 GOVERNMENT GAZETTE:, 20 JULY 2004
Act No. 11,2004
No. and year of law
Act No. 14 of 1982
No. and year of law
Act No. 15 of 1989
COMMUNAL LAND RIGHTS ACT, 2004
Part 5: Laws of the former Ciskei
Short title
Ciskei Land Regulation Act, 1982
Extent of amendment or repeal
liepeal of the whole with effect from the date of regis- tration of a community‘s community Ivies under sec- tion 19(1) of “this Act”, but only within the area com- prised of that community‘s communal land and with effect from the date on whlch Proclamation No. R. 188 of 1969 is repealed in that area.
Part 6: Laws of the former Qwaqwa
Short title I Extent of amendment or repeal Qwaqwa Land Act, 1989 Repeal of the whole with effect from the date of regis-
lratioo of a community’s community rules under sec- tion 19(1) of “this Act”, but only within the area com- prised of that community’s communal land.
5
10
15
Part 7: Laws of the former KwaNdebele
c - -~ No. and scar uf law- ~~ Extent of amendment or repeal Short title ---.___.- . 30 I I Act No. I I of 1992 KwaNdebele Land Tenure So much as has not been repealed
Act, 1992
Proclamation 26 of 1936
Part 8: Other laws
Short title or description
Administrative Area Regu- lations - Unsurveyed Districts: Transkeian Terri- tories
Extent of amendment or repeal
Repeal of the whole with effect from the date of regis- tration of a community’s community rules under sec- tion 19(1) of “this Act”, but only within the area com- prised of that community’s communal land.
25
30