LCP4805 - Environmental Law tut

Question X is the owner of the farm Riverside and of a half share in the farm Hope. X wants to bequeath these properties to his two sons. Fully advise X in terms of the provisions of the applicable law. (10) Suggested answer: With regard to the farm Riverside, the Subdivision of Agricultural Land Act 70 of 1970 provides that without the Minister’s consent, no share in land which is not already held by someone may be transferred. If the Minister’s consent cannot be obtained, the land must be sold and the proceeds must be divided between the two sons. Alternatively, a company can be formed with the two sons as the shareholders and the farm Riverside can then be transferred as a whole entity to the company in terms of a redistribution agreement between the heirs or, if not, the share of one son can be transferred to the other son against payment of the value of that half. Downloaded by Adeella Ally () lOMoARcPSD| LPL4805/201 3 Regarding the farm Hope, section 3(c) of the Act prohibits further reduction of an undivided share in agricultural land. Consequently it is possible that a co-owner can transfer a part of his or her undivided share to the remaining co-owners without the permission of the Minister, provided that, simultaneously with the transfer, a certificate of registered title in terms of section 35 of the Deeds Act is taken out in respect of each co-owner's total undivided share in the land. This increases the shares of the remaining owners and at the same time prevents the newly acquired share from being dealt with separately. Section 3(e)(i) prohibits the sale, or an advertisement for the sale, of a portion of agricultural land, whether surveyed or not, without the Minister's consent. The sale of such land, without the Minister's consent, even if the sale is made subject to a suspensive condition that the sale is subject to obtaining the Minister's consent, is void ab initio. The Minister's consent for the subdivision must be obtained before conclusion of the agreement of sale (Geue and Another v Van der Lith and another 2004(3) SA 333 SCA CRC 6/2002). Thus, X will have to obtain the Minister’s consent before making his bequests. Alternatively X could create a trust into which the properties could be transferred with the children as the beneficiaries.