Repealing the Subdivision of Agricultural Land Act : a constitutional analysis

[摘要] ENGLISH ABSTRACT: All agricultural subdivisions in the Republic of South Africa are regulated by theSubdivision of Agricultural Land Act 70 of 1970. The declared purpose of the Act isto prevent the creation of uneconomic farming units and this purpose is achievedthrough the requirement that the Minister of Agriculture, Forestry and Fisheries('Minister of Agriculture) must consent to the proposed subdivision. The Act waspromulgated in the 1970s when the South African landscape was racially divided.The government of the time used law to provide benefits for the white minority. Atthis time the rights of non-whites were restricted. This is the social and politicalbackground of the Subdivision of Agricultural Land Act. The Act formed part of alegislative scheme that provided benefits for white farmers. More than a decade afterdemocratisation and the end of apartheid the Subdivision of Agricultural Land Act isstill in operation. The post-apartheid legislature drafted and enacted the Subdivisionof Agricultural Land Act Repeal Act 64 of 1998, but it has not yet been brought intooperation. During 2003 the legislature tabled the Draft Sustainable Utilisation ofAgricultural Resources Bill which contains subdivision provisions that are identical tothe provisions contained in the Subdivision Act. These legislative actions havecreated some uncertainty about the state of agricultural subdivisions. In 2008 theConstitutional Court decided that the Act continues to apply to all agriculturalsubdivisions and that this would be the position until the legislature chooses adefinitive course of action.This constitutional analysis of the Subdivision of Agricultural Land Act examines theeffect of the Act beyond the pre-constitutional legislative intention and frameworkunder which it was enacted. If the Act cannot be saved from its apartheid context,the Repeal Act should become operational. This thesis concludes that the necessaryand legitimate purpose of the Act, namely the regulation of subdivision of agriculturalland, can be removed from its pre-constitutional setting in the apartheid era and maycontinue to justify the legitimate regulation of subdivision of land. Comparativesources, namely the United States of America, specifically the states of Oregon and Hawaii, Western Australia and the province of British Columbia, Canada indicate thatthe regulation of agricultural subdivisions is a valid means of protecting agriculturalland.If the Act can continue to exist without its legacy of apartheid and still serves alegitimate and necessary purpose it will have to be constitutionally compliant. Thepurpose of the Act and the means used to realise it were tested against the Bill ofRights. The effect that the regulation has particularly on ownership entitlements wasexamined against section 25(1) of the 1996 Constitution. Similarly, theconsequences of the regulation with regard to other rights in the Bill of Rights wereinvestigated. The conclusion was that where the Subdivision of Agricultural Land Actis used for its purpose of preventing the uneconomic subdivision of agricultural land,in the national interest, it is a legitimate land-use regulation that can continue tojustifiably operate in a constitutional dispensation.

[发布机构] Stellenbosch University