The s 3(d) bar
The Subdivision of Agricultural Land Act 70 of 1970 regulates what may be done with agricultural land in South Africa. Section 3 lists a catalogue of prohibited acts in respect of such land “except with the written consent of the Minister” (the preamble to the section). Paragraph (d) is the provision that bites long leases:
(d) no lease in respect of a portion of agricultural land of which the period is 10 years or longer, or is the natural life of the lessee or any other person mentioned in the lease, or which is renewable from time to time at the will of the lessee, either by the continuation of the original lease or by entering into a new lease, indefinitely or for periods which together with the first period of the lease amount in all to not less than 10 years, shall be entered into;
Note — The prohibition attaches to the act of entering into the lease, not merely to registration. Consent must be in writing and must be obtained before the lease is concluded. A retroactive consent cannot validate a lease that was void ab initio.
Three aspects of the wording deserve attention in practice.
Portion, not the whole. The prohibition applies to a lease “in respect of a portion of agricultural land”. A lease of an entire agricultural property registered in a single title is not caught by s 3(d) in the same way as a lease of a portion — though practitioners should verify the position under s 3(e) (which restricts the sale or granting of rights in a portion) and confirm the title deed reflects a single, undivided farm. The typical commercial scenario — a farmer leasing a defined strip, paddock, or section of his farm to a third party for a long term — falls squarely within the bar.
Agricultural land is broadly defined. Section 1 of the Act defines “agricultural land” broadly: it means any land other than land situated in the area of a municipality or divisional council (now local municipality) that has been zoned for purposes other than agriculture, or that is declared a township, or that is held under a mining title. The practical effect is that a great deal of land outside urban boundaries qualifies as agricultural land, even if it is not actively farmed. Parties cannot assume that because land is used for, say, industrial storage or game farming it falls outside the definition — the statutory meaning, not the actual use, governs.
Prior written consent. The Act does not forbid long leases of agricultural portions outright; it forbids them without the Minister’s prior written consent. An application to the Department of Agriculture must therefore be made and approved before the lease is signed. The Deeds Registry will require proof of consent as a condition of registration (see the registration process guide, where ministerial consent appears in the list of documents that must accompany the lodgement).
Void without prior consent
Failure to obtain prior written consent does not merely make the lease voidable at the election of one of the parties — it renders the lease void ab initio. The lease is a nullity from the moment it is purportedly concluded. No subsequent ratification by the Minister and no registration at the Deeds Registry can cure a lease that was void from inception: the consent must come before, not after, the agreement is entered into.
The practical consequences are severe. The occupying lessee under a void lease has no contractual right of occupation and cannot resist eviction on the basis of the lease. Any rental paid may give rise to an enrichment claim, but the terms of the void lease do not regulate the parties’ relationship. The lessor similarly has no contractual right to the rent bargained for under the void agreement. Both parties are exposed.
For the practitioner, the risk presents at two points: at the time of drafting (where consent must be applied for and received before signature) and at the time of Deeds Registry lodgement (where the Registrar will reject a deed of lease in respect of a portion of agricultural land that is not accompanied by proof of ministerial consent). A lease that reaches the Deeds Registry without consent was, in any event, already void before lodgement.
Counting renewals toward the bar
The wording of s 3(d) expressly catches leases that are “renewable from time to time at the will of the lessee, either by the continuation of the original lease or by entering into a new lease, indefinitely or for periods which together with the first period of the lease amount in all to not less than 10 years”. In other words, renewal and extension periods do not stand alone — they are aggregated with the first period to determine whether the 10-year threshold is crossed.
This matters in practice because parties sometimes structure leases with a first period of, say, 9 years and 11 months together with an option to renew for a further 9 years and 11 months. Without a valid renewal option the first term falls just below the 10-year line; with a valid renewal option the aggregate term is nearly 20 years and the combined lease is void without consent. The Supreme Court of Appeal addressed this dynamic in Letaba Sawmills:
The lesson for drafters is that a renewal option is not a safe exit from s 3(d). If the option is valid (as Letaba illustrates it usually will be where the parties intended it to operate), the aggregate of the first term and the renewal term is what matters. A lease structured with a sub-10-year first term plus a renewal option that takes the aggregate to 10 years or beyond is void without prior ministerial consent just as surely as a lease drafted for a fixed 20-year term from the outset. For the full treatment of how renewal clauses are drafted and counted, see the guide on renewal options and the 10-year threshold.
Is the Act still in force?
A common question in practice is whether the Subdivision of Agricultural Land Act 70 of 1970 is still operative — because Parliament passed a Repeal Act in 1998 and a further successor statute in 2024. The short answer is: yes, the 1970 Act remains fully in force. Current practice is unchanged.
The Repeal Act of 1998 was never commenced. The Subdivision of Agricultural Land Act Repeal Act 64 of 1998 purported to repeal the 1970 Act in its entirety, but left the date of commencement to be determined by presidential proclamation. That proclamation has never been issued. A statute that leaves its own commencement date to proclamation does not come into force unless and until the President so proclaims. The Repeal Act of 1998 accordingly remains an uncommenced statute: it is on the statute book but has no legal effect, and the 1970 Act it purported to repeal continues to apply.
The 2024 successor Act has also not commenced. The Preservation and Development of Agricultural Land Act 39 of 2024, which is intended to replace both the 1970 Act and the uncommenced 1998 Repeal Act, was assented to in December 2024. However, as at mid-2026 it too had not yet been brought into force by presidential proclamation. When it does commence it will repeal the 1970 Act, and the s 3(d) regime will be superseded by whatever ministerial consent framework the new Act introduces. Practitioners should monitor the Government Gazette for the commencement proclamation, but until it appears the consent requirement under s 3(d) of the 1970 Act continues to apply in full.
Until the 2024 Act is commenced, the position is straightforward: any long lease of a portion of agricultural land requires the prior written consent of the Minister of Agriculture, and a lease entered into without that consent is void ab initiounder s 3(d) of the 1970 Act.