Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd & Another (Trustees of the Hoogekraal Highlands Trust & SAFAMCO Enterprises (Pty) Ltd (amicus curiae); Minister of Agriculture & Land Affairs (intervening)) [2008] JOL 22099 (CC)

Abstract

In terms of the Subdivision of Agricultural Land Act 70 of 1970, the (national) Minister of Agriculture, Forestry and Fisheries has to authorise, in writing, every application for the subdivision of agricultural land. The following proviso was added to the definition of ‘agricultural land’ in the Act in 1995: “Provided that land situated in the area of jurisdiction of a transitional council as defined in section 1 of the Local Government Transition Act, 1993 (Act No. 209 of 1993), which immediately prior to the first election of the members of such transitional council was classified as agricultural land, shall remain classified as such.” The question that arose in this case was whether the proviso only existed during the lifetime of transitional councils. An affirmative answer to the above question would result in the de facto and de jure implicit termination (and disappearance) of agricultural land as a category in South African law and, consequently, of the Minister’s power to approve any subdivision of agricultural land. A negative answer would imply that agricultural land remains as a category, that the provisions of SALA need to be complied with, and that the Minister’s written approval needs to be obtained for each and every application for subdivision of agricultural land. This article contends that the Constitutional Court was correct in finding that the proviso (and the Act) is still applicable today.