How do I transfer ownership of a property built on land in the tribal area?

The long answer

Just to provide you with some context: The original Upgrading of Land Tenure Act (ULTRA) was passed in 1991 to give the right to own land to black South Africans who had been denied these rights under apartheid. ULTRA provided for permit holders to be automatically upgraded to owners with title deeds. 

But although this was a progressive aim, there were many problems with ULTRA: under the 1927 Native Administration Act, only black men over 21 were allowed to be permit holders. So when these permits were upgraded automatically to freehold, the deeds were only in the names of the male members of families and women were discriminated against. 

The Constitutional Court found sections of ULTRA unconstitutional in two cases in 2018 and in 2019: 

CMS Law reports that in the Rahube case in 2018, Mantshabelle Mary Rahube lived with her brother, Hendsrine Rahube, who tried to evict her because he had been the permit owner that had been converted to freehold under ULTRA and so he had full ownership of the property.

Mantshabelle had lived on the property for over thirty years, and the ConCourt said that it was unjust for her as a female to be removed from the property. It found that by providing automatic registration of these rights and not allowing for competing claims, the ULTRA conversion process prejudiced all women.

CMS Law reports that the Constitutional Court ordered Parliament to reopen this process for any conversions implemented on or after 27th of April 1994 to ensure that all applicants had the opportunity to compete for the conversion of these rights.

Thus, Section 14A of the ULTRA Amendment provides a legal mechanism for persons who are aggrieved by a conversion to full title to approach the court for relief. This relief would include an order setting aside the conversion and registration of a land tenure right, or an order which is just and equitable in the circumstances.

The other instance of ULTRA being found unconstitutional was that when it was passed in 1991, it did not apply to the whole of South Africa as we know it today: Transkei, Ciskei, Venda and Bophuthatswana were excluded from ULTRA, as they had more autonomy under apartheid than the other homelands. 

In 2019, the Concourt found in the Herbert case that Section 25A of ULTRA was unconstitutional to the extent that it excluded the application of certain provisions of ULTRA in the areas previously known as Transkei, Ciskei, Venda and Bophuthatswana.

ULTRA was re-issued in 2018 and was amended in 2021 after the Constitutional Court’s findings in the 2018 and 2019 cases.

The 2021 amendments to ULTRA have come into effect since June 2024.

The Land and Water Affairs Ministry issued a press release in October 2022 informing the public that all Land Boards would continue to receive applications for the Secure Land Title. The Ministry said that all Land board Offices would act as registration points where members of the public could deposit their applications for Secure Land Title and that such applications would be transmitted to the respective Land boards or Sub Land boards where the plots are located.

A post by Tempest Gold Property sets out key notes from the amended ULTRA:

• Section 23 introduces a new compulsory way of holding tribal land. This is through a deed of Customary Land Grant which is to be registered at the Deeds registry. 

• The land boards will be largely responsible for registering customary land grants at the Deeds Registry thus saving transferees from incurring conveyancing fees. (Usually a conveyancing attorney is required to transfer a property at the Deeds Registry, and this is expensive.)

• The land board cannot give non-citizens a deed of customary land grant unless the person is exempted in law or by minister.

• A holder of land is entitled to adequate compensation on the basis of market value

But they go on to note that “New controls in the Act are likely to add to the new, onerous duties and responsibilities of land boards, which will be poorly executed.” 

In Natural Justice’s response to the Land Tenure Act Upgrading Amendment Bill, they say that, while the application for land conversion will be published in the Government Gazette to inform the public and allow them to object to the conversion, this is not how many women get their news. They go on to say that if the Bill really aims to boost women’s land rights, it should be implemented in a way that allows these groups to gain access to knowledge.

Before the amendments to ULTRA were published, Natural Justice also submitted a proposal that the rights of unregistered land rights holders, which are protected by the Interim Protection of Informal Land Rights Act (IPILRA), should be specifically acknowledged in an amendment to ULTRA. 

So to sum up, you need to submit your application at a Land board Office for a Customary Land Grant Deed. In the Government Gazette of 3 April 2024 (50430), the regulations are laid out with a long list of what information people must put on their application forms, which will be handed in to the Minister to consider.

Wishing you the best,
Athalie