LAWREVIEW

Lindokuhle Mdabe
LAW REVIEW

1. BANTU (URBAN AREAS) CONSOLIDATION ACT 25 OF 1945 • Section 10(1)(a) [Cite] This section gave Africans a right to live in a prescribe area, provided they could show that they have resided in the areas “since birth, resided in such an area continuously”. This was apparently the greatest degree of security that was possible for Africans living in urban areas. Provided the above requirements are met, African could live in that area permanently. However, this right could be lost, if the person were to leave the area without “a legal recognised reasons”. Permission had to be granted or an agreement had to be reached for one to retain their right to a prescribed area. For instance were a forced eviction was conducted without provision of alternative accommodation, this right was lost, as there was no access to lawful accommodation. One of the benefits of living in an urban area was that one could change jobs within the area, provided they were registered with the labour bureau within three days of becoming unemployed. Others could even be allowed to make a living or rent a house residential township. A birth certificate was proof of the existence of this right. Section 10(1)(b) 2. REGULATIONS GOVERNING THE CONTROL AND SUPERVISION OF AN URBAN BANTU RESIDENTIAL AREA AND RELEVANT MATTERS NO. R. 1036, 14 JUNE 1968 • Regulation 6 In order to be taken into consideration, the applicant had to be a male over the age of 21 who has dependants and interested in erecting a home in accordance to Section 10(1) (a) or (b). The superintendent needs to be satisfied that the applicant is fit and proper and financially able to erect the Bantu Residential Area. The holder of the site was given three months to start with the building constructions in line with the building permit. Failure would lead to the agreement lapsing. Members of the household were registered accordingly, and was an offence for any other person unregistered, staying on the house. Rents, charges and other moneys were payable in advance on or before the seventh day of every month from the date the site permit had been issued. • Regulation 7 In order to be taken into consideration for a house, the applicant must have been a man over the age of 21 who qualifies to stay in the specified area in terms of Section 10(1) (a) or (b). Such a person shouldn’t be a tenant of any other house and he/she should be a fit and proper person to reside in the area as determined by the Superintendent. Foreign men and women were not considered except where the Chief Bantu Affairs Commissioner consent to the female to receive the residential permit, provided she qualifies in terms of Section 10(1)(a) or (b) or if she has been living with the husband before he deceased or deserted her. Members of the household were registered accordingly, and it is an offence for any other person unregistered, staying on the house. Residential permits expire on the last day of the month it was issued and needs to be renewed within seven days of the following month. The acceptance of the rent for the month automatically renewed the permit. • Regulation 8 The Council may build or acquire homes in which the applicants can buy the right of occupation from. Any male person over the age of 21 who had dependants and desired of having the right of occupation could apply to the superintendent for a certificate. The superintendent needs to be satisfied that the applicant is fit and proper and has paid a deposit as determined by the urban local authority. Any person under the age of 21 may be granted the certificate upon consent from his parent of guardian. Rents, charges and other moneys are payable in advance on or before the seventh day of every month from the date the certificate had been granted. • Cancellations of Permits Permits may be cancelled when the person is no longer a fit and proper person, fails to carry out instructions as prescribed by the Superintendent, with regards to the erection or demolition of any structures on site. Where a man’s wife leaves him or dies, the house may be taken away, also where the man leaves the wife, the family may have to vacate the house. Furthermore, residential permits may be cancelled where the holder leaves the area without permission for more than 30 days, unemployed for more than 30 days or employed outside the specified area for more than 30 days. Additionally, if he is sentenced to court for more than six months or legally loses his rights to poses the permit. • Lodger Permits The onus is on the applicants who lack accommodation to find tenants that are willing to accept to live with them. This applies to both applicants that don’t qualify for permits and those on the waiting list including, a female headed family and where the male head doesn’t not qualify in terms of Section 10(1)(a) or (b). Upon finding tenants who are willing to stay with them, they should approach the Superintendent for a lodger’s permit. This permit expires at the last day of every month and needs to be renewed within 3 days. The permit may be cancelled when the lodger wishes so. 3. THE CONVERSIONS OF CERTAIN RIGHTS TO LEASEHOLD OR OWNERSHIP The purpose of the Conversion of Certain Rights to Leasehold or Ownership, 81 of 1988 as amended in 1993 (“the Conversions Act”) is to do away with the Regulations of 1968 by upgrading tenure rights of Black urban residents in the townships or in urban areas. The effect of the Act is that more secure forms of tenure in the form of either aleasehold or title deeds through conversion of site permits (or other rights in land, such as use and occupation permits). This Act is in line with section 25(6) of the Constitution which places a positive obligation on the South African government to strengthen tenure of a person or community whose tenure of land is insecure as a result old discriminatory laws or practice ensuring more secure tenure or comparable redress. Whilst section 1 of the Act provides a definition section where basic terms are explained, section of the Act provides as follow: “2 Inquiry as to rights of leasehold (1) The Director General shall conduct an inquiry in the prescribed manner in respect of affected sites within his province in order to determine who shall be declared to have been granted a right of leasehold or, in the case where the affected sites are situate in a formalized township for which a township register has been opened, ownership with regard to such sites.” In terms of this section the Director General must conduct an inquiry in respect of affected sites with a purpose of making a declaration on who should be granted a right of leasehold or where a township has been registered at the deed’s office to be converted into an ownership. It must be noted that this section is peremptory. First, a Director-General is Second, the inquiry??? Third, the DG must make a declaration. A declaration is??? Final, the declaration may result to leasehold or ownership????. First, “(2) Before the commencement of such inquiry the Director-General shall, after satisfying himself as to the identity of the affected site and of the person appearing from the records of the local authority concerned to be the occupier of that site, and, in respect of premises referred to in section 52 (5) of the principal Act, is in possession of an aerial photograph or plan of the premises concerned, certified as provided in section 52 (5) (a) of that Act, publish a notice indicating that such inquiry is to be conducted.” Both the above and the previous section are peremptory. Before the inquiry is conducted, the DG must ensure that the notice has been published indicating that an inquiry is be conducted. [Attach notice] At this stage, the DG must have had sight and has satisfied themselves as to the identity of the affected site. “(3) For the purposes of the declaration under subsection (1) the Director-General may (a) give effect to any agreement or transaction in relation to the rights of a holder contemplated in subsection (4) (a) or (b) in respect of the site concerned, between such holder and any other person;(b) give effect to any such agreement or transaction, or to any settlement or testamentary disposition in respect of such rights, entered into or made before the death of the last such holder; (c) consider any intestate heir of the last such holder to have been granted a right of leasehold or, in the case where that site is situate in a formalized township for which a township register has been opened, ownership in respect of the site concerned; (d) give effect to any court order or sale in execution in relation to the site concerned, notwithstanding that such agreement, transaction, settlement, testamentary disposition or intestate succession could not by virtue only of the provisions of the regulations have been entered into or made or was entered into or made without the approval of any person whose approval would have been required under the regulations, and notwithstanding that the site permit, certificate or trading site permit concerned had lapsed upon the death of such holder.” “(4) At the conclusion of the inquiry and after having considered any relevant claim or objection, the Director-Generalshall, if he is satisfiedthat the person concerned is, subject to the provisions of subsection (3), in respect of the site concerned(a) the holder of a site permit, certificate or trading site permit; or (b) the holder of rights which in the opinion of the Director-Generalare similar to the rights of the holder of a site permit, certificate ortrading site permit,determine whom he intendsto declare to have been granted a right of leasehold or, in the case where that site is situate in a formalizedtownship for which a township register has been opened, ownership in respect of the site concerned.” After the declaration or determination of ownership has been made, the property or land or residential unit, then forms part of the estate of the beneficiary. (5) Whenever he has made a determination as contemplated in subsection (4), the Director-Generalshall publish a notice stating(a) that such a determination has been made in respect of the site stated in the notice; (b) that the prescribed particulars of that determination are open to inspection for a period of 14 days as from the date of thebpublication of the notice at the prescribed place; (c) that that determination shall be subject to appeal to the Administrator concerned in the prescribed manner; and (d) that, subject to any decision of the Administrator concerned on appeal, the person concerned shall be declared to have beengranted a right of leasehold or, in the case where that site is situate in a formalized township for which a township register has beenopened, ownership in respect of the site concerned. 4 Granting of leasehold or ownership (1) The Director-General shall upon the expiry of the period specified for appeal under section 3 (1) or, in the case of such appeal, on the confirmation, variation or substitution of the determination referred to in section 2 (4), in the prescribed manner declare the person concerned to have been granted(a) a right of leasehold in respect of the affected site concerned under section 52 (1) of the principal Act, whereupon that person shall be deemed for all purposes to have been granted a right of leasehold under the said section 52 (1); or (b) in the case where the affected site is situate in a formalized township for which a township register has been opened, ownership in respect of the affected site concerned. (2) The provisions of section 52 (4) of the principal Act shall not apply in respect of any leasehold contemplated in subsection (1). 5 Registration of leasehold or transfer of ownership (1) Whenever the Director-General has made a declaration(a) in terms of section 4 (1) (a), he shall lodge such declaration and every deed and other document necessary for the registration of the right of leasehold concerned with the registrar concerned, who shall( i) for the purposes of registration, accept that the particulars contained in the declaration are correct; and (ii) without the production of any certificate to the effect that the levies or charges in respect of the affected site concerned have been paid to the local authority, register the right of leasehold in favour of the person mentioned in the declaration; (b) in terms of section 4 (1) (b), he shall lodge such declaration and a deed of transfer, on the form prescribed for that purpose under the Deeds Registries Act, 1937 (Act 47 of 1937), and made out in the name of the person mentioned in the declaration, with the registrar concerned. [Para. (b) substituted by s. 68 of Act 67 of 1995 (wef 22 March 1996).] (1A) (a) A deed of transfer referred to in subsection (1) (b) shall be prepared by(i) a conveyancer; or (ii) if the owner of the affected site is the State or any local government body, any officer in the public service or person in the employ of such local government body, as the case may be, who has been designated for the purpose by the Minister of Land Affairs, a Premier or a local government body, as the case may be. (b) A deed of transfer referred to in subsection (1) (b) shall be in the form prescribed under the Deeds Registries Act, 1937, and shall be signed by the owner of the affected site or his or her duly authorised agent in the presence of a conveyancer referred to in paragraph (a) (i) or officer or person referred to in paragraph (a) (ii) in the manner prescribed under that Act. (c) An officer or person referred to in paragraph (a) (ii)( i) shall disclose the fact that the deed of transfer referred to in subsection (1) (b), or any power of attorney, application or consent, which may be required by the registrar for the purposes of the registration of the transfer was prepared by him or her, by signing an endorsement to that effect on the deed of transfer, power of attorney, application or consent, as the case may be, and by virtue of such signing accepts, mutatis mutandis, in terms of section 15A (1) and (2) of the Deeds Registries Act, 1937, responsibility for the correctness of the facts stated in any such document; and (ii) may, despite anything to the contrary contained in any other law, perform all of the functions of a conveyancer in relation to the registration of a deed of transfer as contemplated in this section. (d) A conveyancer, officer or person referred to in paragraph (a) shall lodge the deed of transfer together with the necessary supporting documents at a deeds registry in the manner prescribed under the Deeds Registries Act, 1937. (e) The registrar shall deal with a deed of transfer and the other documents referred to in paragraph (d) as if such deed of transfer were executed in the presence of the registrar in terms of section 20 of the Deeds Registries Act, 1937. (f) Ownership of the affected site shall be deemed to have been transferred on the date of registration by the registrar of a deed of transfer referred to in subsection (1) (b). (g) Section 17 (1) and (2) of the Deeds Registries Act, 1937, shall not apply to and no transfer duty or stamp duty shall by[sic] payable in respect of the transfer of ownership of the affected site in terms of this section. (h) Sections 4 (2) and 5 (1) (a) (ii) shall mutatis mutandis apply in respect of a deed of transfer referred to in subsection (1) (b). [Subs. (1A) inserted by s. 68 of Act 67 of 1995 (wef 22 March 1996).] (2) If the occupier of a site is not the holder of the right of leasehold or the owner in respect of it, the DirectorGeneral shall not act in terms of subsection (1) unless he is satisfied that the amount of any bona fide improvements on the site that have been effected by that occupier has been assessed in the prescribed manner and paid to that occupier, or that security to the satisfaction of the DirectorGeneral has been furnished for the payment of that amount. (3) (a) Sections 10 (1) (q) and 16A of the Deeds Registries Act, 1937, shall apply in respect of the said right of leasehold as if it were a right of leasehold referred to in those sections. (b) ...... [Para. (b) deleted by s. 68 of Act 67 of 1995 (wef 22 March 1996).] (4) The DirectorGeneral shall for the purposes of any registration in terms of this section be deemed to be the duly authorized representative of the local authority concerned. 6 Certain persons to be lessees (1) The holder(a) of a residential permit or hostel permit referred to in the regulations, or of a permit issued by a local authority allowing the person mentioned therein to occupy a site set apart under those regulations for allotment to a trader for trading, business or professional purposes, the building upon which site is leased to that holder by the local authority, shall from the commencement of this Act; (b) of a site permit, certificate or trading site permit or of rights referred to in section 2 (4) (b) who has not prior to a date to be determined by the Administrator concerned in respect of a particular area (which date shall not be earlier than the date upon which theDirectorGeneral has completed the inquiry contemplated in section 2 (1) to the satisfaction of the Administrator) become the © 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Sep 11 2018 12:15:19 GMT+0200 (South Africa Standard Time) (1) The holder(a) of a residential permit or hostel permit referred to in the regulations, or of a permit issued by a local authority allowing the person mentioned therein to occupy a site set apart under those regulations for allotment to a trader for trading, business or professional purposes, the building upon which site is leased to that holder by the local authority, shall from the commencement of this Act; (b) of a site permit, certificate or trading site permit or of rights referred to in section 2 (4) (b) who has not prior to a date to be determined by the Administrator concerned in respect of a particular area (which date shall not be earlier than the date upon which theDirectorGeneral has completed the inquiry contemplated in section 2 (1) to the satisfaction of the Administrator) become the holder of a right of leasehold or an owner, shall from such date; or [Para. (b) substituted by s. 19 (a) of Act 108 of 1993 (wef 1 August 1993).] (c) of a site permit, certificate of trading site permit or of rights referred to in section 2 (4) (b) in respect of a site in an area defined in a proclamation under section 2 (2) of the principal Act, shall from the commencement of this Act, or if such a proclamation is issued after the commencement of this Act, from the date of such proclamation, [Para. (c) substituted by s. 19 (b) of Act 108 of 1993 (wef 1 August 1993).] and subject to the provisions of subsection (2), be the lessee, and the local authority concerned shall be the lessor, of the site or accommodation concerned: Provided that nothing in this subsection contained shall be construed as derogating from any right that the holder of a site permit, certificate, trading site permit or rights contemplated in section 2 (4) (b) might have acquired by virtue of the provisions of the regulations. [Subs. (1) amended by s. 19 (c) of Act 108 of 1993 (wef 1 August 1993).] (2) Subject to any bylaws relating to letting that may apply to the site or accommodation concerned, a lease contemplated in subsection (1)(a) may be terminated by the lessee on three months' written notice; (b) shall be subject to the payment of rental by the lessee to the lessor in an amount equal to the amount paid by the lessee immediately before the commencement of this Act in respect of the site or accommodation concerned unless such amount is varied by agreement. 7 Director General's powers of investigation (1) For the purposes of the application of this Act a DirectorGeneral may, after due notice, at all reasonable times enter such premises where any record, book or document which relates to or is suspected to relate to matters dealt with in this Act by any local authority, is kept, and may examine or make copies of or extracts from any such record, book or document and require from any person who has control over such record, book or document an explanation of any entry in any such record, book or document. (2) Any person who hinders or obstructs a DirectorGeneral in the performance of his functions in terms of subsection (1), or who refuses or fails to comply to the best of his ability with such requirement made by a DirectorGeneral, shall be guilty of an offence and liable on conviction to a fine not exceeding R500 or to imprisonment for a period not exceeding six months. 8 Limitation of liability No person, including the State, shall be liable in respect of anything done in good faith in the exercise or performance of a power or duty conferred or imposed by or under this Act. 9 Regulations An Administrator may in relation to his province make regulations as to( a) any matter which in terms of this Act is required or permitted to be prescribed; (b) the form of any notice or document relating to a matter referred to in this Act; (c) the manner of hearing of any appeal referred to in section 3; (d) the procedure to be followed in the service of any document or notice under this Act; and (e) in general, any other matter which he considers necessary or expedient to prescribe in order that the purposes of this Act may be achieved. 10 Delegation of powers (1) An Administrator may delegate any power conferred upon him by or under this Act, other than the power under section 9 to make regulations, to an officer in the provincial administration concerned. (2) The DirectorGeneral may, with the approval of the Administrator, delegate any power conferred upon him by or under this Act to an officer in his provincial administration or to any person appointed by him under the authority of this subsection for the purpose. [Subs. (2) amended by s. 23 of Act 108 of 1993 (wef 1 August 1993).] (3) A delegation under subsection (1) or (2) shall not prevent the exercise of the relevant power by the Administrator or the DirectorGeneral himself, as the case may be. [Subs. (3) amended by s. 23 of Act 108 of 1993 (wef 1 August 1993).] 11 Retention of rights (1) The holder of a site permit, certificate, trading site permit or rights contemplated in section 2 (4) (b) shall, notwithstanding the repeal of the regulations by this Act but subject to the provisions of any other law, and until a right of leasehold or the transfer of ownership in respect of the site concerned has been registered or until he has become a lessee under section 6 (1) (c), as the case may be, have the same rights that he would have had in respect of that site in terms of the regulations as if they were not repealed by this Act. [Subs. (1) substituted by s. 20 of Act 108 of 1993 (wef 1 August 1993).] (2) Nothing in this Act contained shall be construed as prohibiting any person from acquiring of his own accord a right of leasehold or ownership in respect of a site. (3) Any bona fide act purporting to have been done in terms of the regulations in an area where those regulations did not apply, shall be deemed to have been validly done. THE GAUTENG HOUSING ACT 6 OF 1996 In terms of section 24A of the GHA, an adjudication process must be commenced. The Gauteng Housing Department is “authorized to adjudicate cases that emerge from housing bureaus established for the transfer of residential properties, by Premier's Directive in terms of section 171 of the Local Government Ordinance, 1939 (Ordinance 17 of 1939) and disputed cases that emerged from the transfer of residential properties in terms of the Conversion of Certain Rights in Leasehold or Ownership Act, 1988 (Act 81 of 1988).” The MEC shall ensure that the transfer of residential properties to individuals determined to be lawful beneficiaries in terms of this Act. The Department shall deal with disputed cases through adjudication and appeal panels established in terms of section 24B. …". Consequently, if the process set out in section 2 of the Conversions Act above and this process were not followed, the court may cancel and reverse any title-deed registration.