Bulelwa Mabasa | Director | Head of Land Reform | Werksmans Attorneys | mail me |
Communal property associations reform aims to address longstanding governance challenges and enhance the effective management of community-owned land.
The Restitution of Land Rights Act 22 of 1994 allowed individuals and communities to claim rights to dispossessed land. This dispossession occurred due to past racially discriminatory laws or practices. The Act raised questions about managing and holding land claimed by communities if restitution was granted.
Origins of communal property associations
To address this, the concept of Communal Property Associations (CPAs) emerged. CPAs are legal entities formed to help communities acquire, hold, and manage property based on an agreed constitution. These entities aim to ensure proper management and benefit distribution among community members.
Until 8 October 2024, the Communal Property Associations Act 28 of 1996 governed CPAs. This Act regulated CPA constitution, administration and governance. However, the 2023/24 Commission on Restitution of Land Rights (CRLR) report revealed significant non-compliance among 75% of registered CPAs.
Non-compliance issues included poor leadership, governance failures, and lack of proper administration within CPA executive committees. CPAs also lacked solid business models, leading to illegal transactions and poor record-keeping. Consequently, CPA beneficiaries often did not receive their rightful benefits.
Legislative shortcomings also contributed to these failures. Ambiguities in the principal Act created confusion and hindered compliance. To address these issues, legislators drafted the Communal Property Associations Amendment Bill.
Communal property associations reform and its effect
On 8 October 2024, the bill became law, introducing the Communal Property Associations Amendment Act, 2017 (new Act).
The new Act clarified provisions left vague by the principal Act. It solidified CPAs’ legal status, enabling them to manage community properties effectively. Additionally, the new Act broadened the principal Act’s scope. It also established various bodies to enforce compliance and ensure CPA functionality.
Below are the notable amendments to the principal Act and the implications on the operation of CPAs.
Provisional Associations [section 18A of the new Act]
- The principal Act allowed for communities to form provisional associations which would hold and administer the land belonging to the community whilst the community drafted its CPA’s constitution and arranged all necessary papers to ensure compliance with all relevant processes. An interim committee sat on the provisional association’s board pending registration of the association.
- The bill has eliminated the option of provisional associations and has indicated that all provisional associations which have not adopted a constitution or been registered as associations must be registered as CPAs within 12 months of the commencement of the ‘Act’ (8 October 2024), which period may be extended by a further 12 months only.
- Should currently existing provisional associations not be registered accordingly within the stipulated time periods, they will cease to exist and any property held by them must be dealt with by the Registrar in accordance with the Minister’s direction and with due regard to public interest.
Communal Property Associations Office [section 2B of the new Act]
- A completely novel addition, the bill provides for the establishment of a Communal Property Associations Office (CPA office) within the Department of Rural Development and Land Reform (Department).
- The bill envisages that the CPA office will be the centre of operations for all matters relating to CPAs in the country, in tandem with any regional offices that may be established as branches of the CPA office.
Registrar [section 2C and 2D of the new Act]
- A registrar of CPAs (Registrar) will be appointed by the Minister of the Department (Minister).
- The minimum qualifications and experience required of the Registrar will be determined by the Minister together with the Registrar’s remuneration, in consultation with the Minister of Finance.
- In furtherance of the Registrar’s main role of administering the CPA office and any regional offices, the Registrar’s functions include, inter alia:
- establishing a provincial office in each province and appointing a Deputy Registrar for each office established;
- providing assistance to the communities and associations concerned;
- ensuring verification of members of the association;
- registering associations and keeping record of all certificates of registration issued;
- ensuring compliance by associations with the new Act;
- keeping record of any bank account opened in the name of an association;
- keeping record of any delegation made in terms of the new Act;
- providing members of the public with copies of the constitution of any association or similar entity in line with PAIA;
- impressing the seal of Communal Property Associations on:
- any certificate of registration;
- any addendum to a certificate of registration, e.g. in the event of a CPA changing its name;
- any letter that the Registrar provides to an association to present to a bank or institution where the association wishes to open an account and which is valid for the period indicated in the letter; and
- any other documents as may be prescribed; and
- performing any other functions assigned to him or her as directed by any court or as may be requested by the Minister or Director-General.
- Regarding the registration of associations, the bill replaces the Registration Officer referred to in the principal Act with the Registrar and states that the Registrar:
- shall consider an application for registration of an association together with any prescribed information and the constitution adopted by the association, which constitution must reflect the views of the members of the community; and
- may, if satisfied of compliance with the Act, register associations in the prescribed manner, allocate a registration number and issue a certificate of registration.
Quorums [various sections in the new Act]
In stark contrast to the principal Act, the bill provides for a 60% minimum vote in favour of a decision to be made. As such, for a decision to be valid, 60% of the attendees of a meeting, who are eligible to vote must vote in favour of the motion. This 60% rule is applicable when:
- a community adopts a constitution;
- a community decides to amend the constitution or dissolve the association or to dispose of or to encumber immovable property; and
- members of an association adopt a resolution to deregister the association.
In conclusion
Since their inception, CPAs and the principal Act have faced corruption, incompetence, and lack of service delivery issues. CPAs have also frequently been sites of illegal activities, further undermining their intended purpose and effectiveness.
The CPA Amendment Act seeks to address these challenges by clearly outlining community rights and proper administration steps. The Act’s provisions aim to resolve key issues and improve the governance and functionality of CPAs.
A specialised CPA office and a Registrar’s appointment promise a centralised agency for CPA administration and oversight. These measures should result in accurate record-keeping, better community assistance, and more frequent information sessions for CPA beneficiaries. However, the success of the CPA Amendment Act depends on adequately resourcing the Registrar and the CPA office.
Both offices require sufficient skills, funding, and resources to perform their roles effectively and meet expectations. Additionally, a public awareness campaign is critical to educate communities and CPAs about complying with the CPA Amendment Act.
