It’s not as simple as buying and selling – not when it comes to Agricultural Land. In this article, Bean du Plessis explains what many people don’t know: a transaction to buy or sell Agricultural Land is invalid and can lead to imprisonment if concluded without the consent of the Minister.
Sellers and buyers often conclude agreements in respect of portions of agricultural land. These agreements include both uncomplicated agreements of sale, drafted by laymen as well as complicated agreements endeavouring to circumvent the costly and time-consuming process of obtaining the consent of the Minister of Agriculture, Land Reform, and Rural Development.
Most, if not all, of these agreements are prohibited and subsequently invalid and further expose the parties to possible criminal prosecution.
Section 3 of the Subdivision of Agricultural Land Act constrains the dealings and transactions in respect of Agricultural Land without the consent of the Minister of Agriculture or the Minister of Agriculture, Land Reform, and Rural Development as it is now known.
These restrictions provide that: –
- Agricultural Land may not be subdivided
- No undivided share in Agricultural Land, not already held by any person, shall vest in any person, in other words, no undivided share in Agricultural Land may be held by any person unless that undivided share has already existed.
- No part of any undivided share in Agricultural Land shall vest in any person, if such part is not already held by any person in other words, not even a part of an undivided share in Agricultural Land may be held by any person unless that undivided share has already existed.
- No lease shall be entered into in respect of any portion of Agricultural Land where the term of the lease is for longer than 10 years, or for the natural life of any person, or where the lease is renewable the lessee even by concluding a new lease if the total lease period exceeds the period of 10 years.
- No portion of Agricultural Land, irrespective of whether it was surveyed or not, or even whether there is any building on it or not, may be sold or even as much as advertised for sale.
- No right to a portion of Agricultural Land shall be sold or even granted to any person for longer than 10 years or for the duration of the natural life of any person or the same person for periods aggregating more than 10 years. These rights may also not be advertised as for sale or for the granting of thereof.
The Minister of Agriculture, Land Reform, and Rural Development may grant consent to the conclusion of these transactions. His or her consent is, however, subject to provisions of Section 4 of the Agricultural Land Act.
It is important to note that these transactions are prohibited from the very outset.
The court in Van Wyk and Others v Topaz Sky Trading 146 (Pty) Ltd and Others 2017 ZAGPPHC, held that the inclusion of a suspensive condition, to the extent that both the sale and the subdivision would be subject to the minister’s consent, did not render these transactions valid. The court found that these provisions were peremptory, and the Minister’s consent had to be obtained beforehand and the agreement was therefore unenforceable from the very outset.
To make matters worse, the –
-conclusion of any rental agreement (as discussed above); and/or
-the sale or advertisement for sale; and/or
-the sale or granting of any rights or event the advertisement thereof
constitutes a criminal offense for which offenders may be imprisoned for a period not exceeding 2 years.
The services of both a Property and Commercial Attorney will not only prevent you from using a criminal attorney but will also secure the enforcement of the agreement you are about to conclude.
