“The Upgrading of Land Tenure Rights Act, ULTRA, is arguably South Africa’s most important law, yet very few know about it. If the ULTRA Amendment Bill now before Parliament is enacted, it will cause the biggest expropriation without compensation ever, perhaps 4 million homes impacting 16 m low-income black people,” said the Free Market Foundation’s Leon Louw at an FMF media briefing webinar this week.
“The Constitutional Court ordered the Amendment due to a misunderstanding that the original 1991 Act discriminates against women. This is untrue. The Amendment should be scrapped, said Louw”
The FMF’s Khaya Lam (My Home) Land Reform project has been successfully using ULTRA to issue title deeds to rightful owners for 10 years.
In 1991 ULTRA automatically created property ownership for millions of victims of apartheid land dispossession by providing that “the ownership (of) land shall vest exclusively in the person who, according to the register of land rights … was the holder of that land … immediately before the (act).” All that remained was to give people title deeds.
This meant that factually and legally, landholders became landowners at the stroke of the statutory pen. The number affected remains unknown but is likely to be millions. Most recipients were and remain unaware of being owners.
Clause 1 of the Amendment Bill would retroactively dispossess all beneficiaries of their property. It would require the registered holders to apply for “conversion” to ownership, which could be declined arbitrarily by Ministerial and Departmental discretion.
Louw said that the proposed amendment, “Would undo all the automatic conversions of 1991. The procedural delay, chaos, and potential for corruption would not only delay land reform but place black people back where they were during the darkest days of apartheid.”
The pretext for the Amendment is a misconstruction of a Constitutional Court ruling that ULTRA should not discriminate against women, which is obviously correct.
As the department explained in the Portfolio Committee hearing, there is no gender discrimination in the act. The problem was discriminatory land allocation in the Bophuthatswana bantustan. “All the court requires is a minor amendment to the effect that past discrimination should not be carried forward. Instead, we face a law that retroactively reverses fundamental rights,” said Louw.
Louw continued, “During apartheid, male heads of households were, in many cases, allocated homes at the expense of women. Therefore, some automatic conversions went unfairly to men. ULTRA itself merely converts pre-existing occupation rights to ownership.”
The Constitutional Court ruling that an Amendment was required arose from a case brought by a sister against her brother’s claim to family property. In Matshabelle Mary Rahube (sister) vs Hendsrine (brother) Rahube, the court found that she had lived in, maintained, and improved the home for many years, yet her brother was given a title deed.
ULTRA deeds recognize but do not confer ownership.
“A misconception that the Act contains the gender discrimination arose. Since there is no discrimination in ULTRA, the Land Department’s proposed solution is to dispossess millions of owners and force them to make slow, costly, bureaucratic, and risky applications for ownership. Lowly unelected officials perhaps with ulterior motives decide. Discretionary power invites corruption, abuse, and victimisation”, said Louw.
The FMF solution is simple. The Amendment should create an opportunity to argue that a historic registration should be corrected where appropriate. Disputes ought to be resolved at the local government level under a simple Dispute Resolution mechanism. This has already been introduced by Khaya Lam. The FMF is the only source of reliable information on how many disputes there might be, and the answer is very few indeed. Roughly precisely half of all title recipients are women.
Louw said, “The proposed amendment would violate section 25 of the Bill of Rights, the property clause. If it is repealed as proposed, victims would not be rich whites, but millions of poor black people.”
The FMF is an independent, non-profit, public benefit organisation, created in 1975 by pro-free market business and civil society national bodies to work for a non-racial, free and prosperous South Africa. As a policy organisation it promotes sound economic policies and the principles of good law.