Prohibition of transferring agricultural holding in undivided shares

Source: Allen West

Agricultural holding” is defined in the Agricultural Holdings (Transvaal) Registration Act, 22 of 1919 (hereinafter referred to as the Agricultural Holdings Registration Act), as land of which the use is determined, and it is not smaller than 1 morgen (8565 square meters). 

The title deed conditions in respect of agricultural holdings, in most cases, contain a provision that the land may not be further subdivided, or any portion thereof sold, leased or disposed of, or transferred to two or more persons, without the consent of the Board. This provision is usually one of the establishment conditions imposed in terms of Agricultural Holdings Registration Act. 

Section 5(2) of the Agricultural Holdings Registration Act provides that an agricultural holding may not be transferred to more than one person, if such owner’s portion will be smaller than 1 morgen (8565 square meters) on division thereof. This subsection is not applicable to land which has been expropriated for railway or public purposes. 

In view of the decision in the case of Martin Martens v Registrar of Deeds (unreported: see Case Number 118/1965) the transfer of an agricultural holding to two or more transferees by virtue of one transfer deed is permissible, provided it is not contrary to section 5(2) of the Agricultural Holdings Registration Act. In practice, however, it will be allowed where the transfer is an inheritance, and a further transfer is registered simultaneously to bring the matter within the limits of section 5(2) of the Agricultural Holdings Registration Act. 

Thus, by way of example, where Holding 452 Glen Austin Agricultural Holdings is for example 4,0680 ha in extent and the holding is transferred to 3 transferees, the transfer would not be contrary to section 5(2), because 4,0680 ha ÷ 3 = 1,3560 ha. In other words, each co-owner’s portion would not be smaller than 8565 square meters on division thereof, provided the division is not prohibited in terms of a condition of title as alluded to above.  Where the holding is, however, transferred to 5 transferees, the transfer is indeed contrary to section 5(2) as 4, 0680 ha ÷ 5 = 8136 square meters. In other words, each co-owner’s portion would be smaller than 8565 square meters on division thereof. The transfer can thus not be registered unless the Premier’s consent is lodged, or unless a further transfer is registered simultaneously to bring the matter within the limits of section 5(2) of the Agricultural Holdings Registration Act.

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