Answer to a question from a reader

If land was bought by multiple individuals at the same time long ago, how do their heirs claim the estate?

The short answer

It's unclear how the heir of one of the owners would get an individual title deed for his share of the land.

The whole question

Dear Athalie

In 1912, 36 black men purchased a farm. The rural land was registered in all their names but was not individually surveyed. 

How does the title deed get to be transferred to one man's granddaughter? Very few of the third-generation beneficiaries have managed to take transfer. The land is still communally owned. In the absence of birth/death records and proof of lineage, where would she begin? Her main aim is to preserve future claims for her descendants.

The long answer

A Communal Land Tenure Bill, which seeks to provide the transfer of communal land to communities by giving ownership of land rights, was released for comment in 2018, and Deputy President David Mabuza said in 2018 that it was "therefore envisaged under this bill that communities will have title deeds for their communal land, and members of communities will have title deeds for their residential and business portions." The Department of Agriculture, Land Reform and Rural Development said it was ready to be tabled in Parliament in March 2021. 

However, the Bill deals with communal land which is land occupied by African communities in the former homelands or bantustans that could not be registered in the individual person’s name under apartheid laws, and so was held by the state. It does not deal with the steps that government needs to take to provide direct ownership of land to communal residents who have insecure rights.

The land that the granddaughter seeks to transfer ownership of is not communal land as such, as the farm was bought and registered in the names of the 36 black individuals who owned it collectively. 

A Letter of Authority gives the holder the right and duty to wind up her father’s deceased estate. Clearly, this cannot be done without the transfer of title deeds but the problem with outdated title deeds is that there is no laid down procedure for these title deeds of deceased people to be transferred to present generations. And in that the land has not been individually surveyed and is still communally owned, it’s not clear how one granddaughter of one of the 36 men will be able to get an individual title deed for her father’s land. 

Perhaps the granddaughter should start by taking the outdated title deed to the Deeds Office and asking what the process is that must be followed to enable the deed to be transferred.

She could also consult one of the following organisations for advice and assistance:

  • Association for Rural Advancement

123 Jabu Ndlovu (Loop) Street, Pietermaritzburg, 3201, KwaZulu-Natal

Email: [email protected]

Tel: 033 3457607 / 8318

  • Legal Resources Centre

Email: [email protected]

Tel: JHB: 011 038 9709

Tel: DBN: 031 301 7572

Wishing you the best,

Answered on Sept. 23, 2021, 1:15 p.m.

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