Adlem v Arlow

On 14 August 2008, Eugene Adlem and Joseph Adlem (the appellants) entered into a written lease agreement with Nestor Algemus Arlow (the respondent) for the lease of property described as Farm JP 73 Koppieskraal Skuinsdrift. The lease was for an initial period of 9 years and 11 months, commencing 1 August 2008 and ending 30 June 2016, with two successive renewal options of 9 years and 11 months each. The appellants sought rectification of the lease to describe the property as Remaining Extent of Portion 3 of the farm Koppieskraal 73 and Remaining Extent of Portion 16 (a Portion of Portion 3) of the farm Koppieskraal 73, both held by the respondent under title deed T24269/04. The respondent did not obtain the consent of the Minister of Agriculture for the lease. The respondent instituted action for ejectment claiming the lease was void as it contravened section 3(d) of the Subdivision of Agricultural Land Act 70 of 1970.

• Whether the lease of the whole property registered in the Deeds Registry constituted a lease of 'a portion of agricultural land' for purposes of section 3(d) of the Subdivision of Agricultural Land Act 70 of 1970
• What is the correct interpretation of the word 'portion' in section 3(d) of the Subdivision of Agricultural Land Act 70 of 1970
• Whether the lease was void for contravention of section 3(d) of the Subdivision of Agricultural Land Act 70 of 1970 due to the absence of the Minister's consent
• Whether the procedure adopted by the parties and sanctioned by the high court complied with rule 33(4)

1. The appeal succeeds, with costs. 2. The order of the high court as amended on 18 August 2011 is set aside and the following order substituted: (a) The question raised is decided in favour of the defendants. (b) The plaintiff is ordered to pay the defendants' costs occasioned by the argument. 3. The order in para 2(b) is provisional, with provision made for further written submissions within specified time periods.

The word 'portion' in section 3(d) of the Subdivision of Agricultural Land Act 70 of 1970 means a part of property (as opposed to the whole property) registered in the Deeds Registry, and not the whole property itself regardless of how it is described in Deeds Registry terminology. A lease of the whole of a property registered in the Deeds Registry does not constitute a lease of 'a portion of agricultural land' for purposes of section 3(d), and therefore does not require the Minister's consent under that section. The prohibition in section 3(d) is aimed at preventing physical fragmentation of registered property and the use of part of the property under a long lease, not at controlling the use of whole registered properties.

The court made important observations about procedural matters, stating that it is imperative at the start of a trial that there should be clarity on the questions the court is being called upon to answer. Where issues are to be separated, rule 33(4) requires the court to make an order to that effect, and the court must apply its mind to whether it is indeed convenient that they be separated. The questions to be determined must be expressed in the court's order with clarity and precision. The informal procedure adopted by the parties and sanctioned by the high court in this case was not acceptable. The court also noted that the purpose of the Act extends beyond preventing alienation of undivided portions of land, stating that 'the target zone of the Act is much wider' and includes preventing encroachment on the use of agricultural land so as to threaten its viability as such.

This case provides important guidance on the interpretation of the Subdivision of Agricultural Land Act 70 of 1970, specifically the meaning of 'portion' in section 3(d). It establishes that the prohibition on long leases without ministerial consent applies only to leases of part of a registered property, not to leases of the whole property. The judgment clarifies the scope of the Act's control over agricultural land use and prevents overly broad interpretation that would require ministerial consent for all leases of registered agricultural properties. The case also reinforces procedural requirements under rule 33(4) when separating issues for determination, emphasizing the need for clarity and precision in formulating questions for the court. The decision limits the Minister's power to intervene in agricultural land transactions to situations involving actual or de facto subdivision, preserving landowners' rights to deal with whole properties while preventing fragmentation into uneconomic units.