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Upgrading of Land Tenure Rights and the Rahube vs Rahube Case: New Judgement and Ministerial Consent

Written by kevin Cartmell on February 16, 2026. Posted in Uncategorized.

In South Africa, land reform is a cornerstone of addressing historical injustices, particularly in relation to the dispossession of land rights under apartheid. The Upgrading of Land Tenure Rights Act (ULTRA), 1991, plays a significant role in this reform by enabling the automatic conversion of certain land tenure rights into full ownership. However, this process has not been without controversy, as demonstrated in the landmark case of Rahube v Rahube [2018] ZACC 42 and subsequent developments.

This article explores the implications of the Rahube judgment, recent legal developments surrounding the case, and the role of ministerial consent in the upgrading of land tenure rights.

Understanding ULTRA and Land Tenure Rights

ULTRA was enacted to address the inequalities in land ownership created by apartheid laws. It enables the automatic conversion of certain land tenure rights, such as deeds of grant or permits to occupy, into full ownership.

The Act aimed to provide legal recognition and ownership to individuals who historically occupied land but were denied formal ownership due to discriminatory laws. However, it has faced criticism for inadvertently entrenching gender inequality and undermining the property rights of women, especially in customary and family contexts.

The Rahube vs Rahube Case: Key Facts

In the Rahube v Rahube case, the Constitutional Court scrutinised the constitutionality of ULTRA, particularly its Section 2(1), which allowed the automatic upgrading of land tenure rights without considering the rights of other occupiers.

Case Background

The property in dispute was initially registered in the name of the male head of the Rahube household, as was customary during apartheid. Following the enactment of ULTRA, this property was automatically converted into full ownership in his name. The applicant, Rahube’s sister, challenged this conversion, arguing that it violated her constitutional rights to equality and property, as she had also occupied the property for decades.

Judgement

In 2018, the Constitutional Court declared that Section 2(1) of ULTRA was unconstitutional because it allowed automatic upgrading to full ownership without notifying or considering the rights of other affected parties, particularly women. The court suspended its ruling to give Parliament time to amend the legislation.

New Developments in the Case

In response to the Constitutional Court’s judgement, amendments to ULTRA have been proposed to ensure that:

Affected parties must be informed and given an opportunity to contest the upgrading of land tenure rights before ownership is formalised.
The consent of the Minister of Agriculture, Land Reform, and Rural Development is required for upgrading land tenure rights to ensure procedural fairness and protect vulnerable parties.
The amendments aim to align ULTRA with the constitutional principles of equality, particularly gender equality, to prevent patriarchal norms from continuing to dictate property ownership.

Ministerial Consent in Upgrading Land Tenure Rights

The requirement for ministerial consent is a significant safeguard introduced to address the flaws that were highlighted in the Rahube case. This consent sees to it that:

All stakeholders are considered – Before upgrading a land tenure right, the minister must assess whether the rights of other occupiers, particularly vulnerable groups such as women and children, are protected.
Procedural fairness is upheld – Consent prevents automatic upgrading without due process, ensuring compliance with constitutional principles.
Equity in ownership is maintained – It prevents the monopolisation of property rights by one family member, thereby protecting the rights of other lawful occupiers.

Implications of the Rahube Judgement

The judgement reinforced the need for fair and equitable land reform processes that consider the rights of all parties involved, and not just those of male stakeholders. Furthermore, the decision compelled Parliament to amend ULTRA to ensure it aligns with constitutional principles and established an important precedent for balancing individual property rights with broader social justice imperatives.

Challenges and Criticisms

While the amendments to ULTRA and the Rahube judgement are seen as steps that are taken in the right direction, certain challenges remain that hinder its effectiveness:

Administrative burdens – The requirement for ministerial consent may slow down the upgrading process due to bureaucratic delays.
Awareness – Many people, especially in rural areas, are unaware of their rights under ULTRA or how to contest unfair conversions.
Customary law conflicts – The reforms must balance constitutional principles with the realities of customary land tenure systems, which often still favour male ownership.

Conclusion

The Rahube vs Rahube case and subsequent developments highlight the complexities of land reform in South Africa. By addressing the flaws in ULTRA, particularly the introduction of ministerial consent, the legal framework now offers greater protection for vulnerable parties, and in particular, women.

However, ensuring equitable land ownership requires ongoing education, awareness, and vigilant enforcement of these protections. At AED Attorneys, we are committed to helping individuals navigate land reform processes and uphold their rights. Contact us today for expert legal guidance on land tenure and property law.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article which may result in any harm or liability flowing from the use of or the inability to use the information provided.

Key Considerations Before Buying a Sectional Title Property

Written by kevin Cartmell on February 4, 2026. Posted in Uncategorized.

Investing in a sectional title property is an attractive option for many, particularly for first-time homebuyers and investors looking to build a rental portfolio. However, before making such a significant purchase, it’s essential to consider various factors that can impact both your lifestyle and financial future. Here’s what you need to know before buying a sectional title property.

1. Understand the Financial Implications

One of the main advantages of sectional title properties is their affordability compared to freestanding homes. They often have lower purchase prices and offer easier financing options. Since banks typically approve these developments before construction begins, obtaining a home loan can be more straightforward. However, it’s crucial to factor in all costs, including the monthly levies you’ll pay to the Body Corporate. These levies cover the maintenance of common areas, security, and other services, but they can also increase over time.

Additionally, you should be aware of the possibility of special levies. These are additional charges that the Body Corporate may impose for significant repairs or improvements, such as repainting the building’s exterior. While these levies are usually announced well in advance, they can impact your budget, so it’s wise to plan accordingly.

2. Evaluate the Lifestyle Factors

Sectional title living appeals to many because of the community atmosphere and its convenience. The “live, work, play” lifestyle is a significant draw, especially in developments that combine residential spaces with retail and work areas, all within walking distance. This setup is particularly attractive to those looking to reduce their environmental footprint and enjoy a more connected lifestyle.

However, communal living also means sharing walls, parking spaces, and amenities with neighbours, which can sometimes lead to conflicts or irritations. Noise, for example, can be an issue if not managed with mutual respect and adherence to the conduct rules set by the Body Corporate. Before buying, assessing whether this type of living environment suits your preferences and lifestyle is essential.

3. Assess the Role of the Body Corporate

When you buy a sectional title property, you automatically become a member of the Body Corporate, the entity responsible for managing the property’s common areas. The Body Corporate not only handles the upkeep of these areas but also enforces conduct rules, manages financial accounts, and oversees the overall maintenance of the development.

Understanding how the Body Corporate operates is important. Investigate the current management team, review the financial statements, and ensure that the property is well-maintained. Poor management can lead to increased levies, unresolved disputes, and a decline in property value. If possible, attend a meeting of the Body Corporate before purchasing to get a sense of how issues are handled and whether the community atmosphere is positive.

4. Security Considerations

One of the key benefits of sectional title properties is the enhanced security they often provide. Entrance and perimeter security are typically managed by the Body Corporate and funded through your monthly levies. This setup offers a level of safety that might be more challenging and expensive to achieve in a freestanding home.

However, assessing the security measures in place before purchasing is important. Ensure that the systems are modern, well-maintained, and adequate for the area in which the property is located. Remember that while the Body Corporate handles security, you’re still responsible for the safety of your own unit, so consider additional measures like alarm systems or personal insurance for peace of mind.

5. Potential for Growth and Resale Value

Renters often favour sectional title properties, making them a solid investment choice. Their resale value tends to increase over time, particularly in well-managed developments. When buying, consider the potential for capital growth and whether the property is likely to remain desirable in the long term.

It’s also important to consider the overall market conditions and the property’s location. Proximity to amenities, schools, and transport links can significantly impact rental demand and resale value. Additionally, introducing fibre connectivity and other modern conveniences can further enhance the property’s appeal.

6. Consider the Pros and Cons of Buying Off-Plan

Buying off-plan can be an even more affordable way to purchase a sectional title property. This means buying before the property is built, often at a lower price than a completed unit. The benefits include getting a brand-new home and possibly saving on transfer duties.

Buying off-plan also comes with risks, so ensure that the developer is reputable and that the building plans align with your expectations. High-quality renders and modern technology can provide peace of mind, but it’s important to fully understand what you’re purchasing and be prepared for potential delays or changes in the construction process.

Conclusion

Purchasing a sectional title property can be an excellent investment and a convenient living option, but it’s important to consider all aspects carefully. From understanding the financial implications and lifestyle factors to evaluating the role of the Body Corporate and assessing security, these considerations will help ensure that your purchase is a sound decision. By doing your due diligence and considering both the pros and cons, you can confidently step onto the property ladder and enjoy the benefits of sectional title ownership.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

Resources:
Ooba
Better Bond
STBB PDF

What does it mean if the death certificate says “unnatural causes” – specific to reporting the estate

Written by Sandra on June 13, 2023. Posted in Uncategorized.

If the death certificate says “unnatural causes”, it means that the person died due to something other than natural causes. This has several implications for reporting the estate of the deceased, especially if the death occurred in South Africa.

One of the most important implications is that the death must be reported to the South African Police Service (SAPS) within 72 hours. The SAPS will then investigate the circumstances and manner of death and collect any evidence from the scene. The SAPS will also arrange for the removal of the body to a state mortuary for a post-mortem examination. A post-mortem examination is “a scientific and objective procedure that involves the systematic examination of the body tissues and organs by a pathologist”. The purpose of the post-mortem examination is to determine the exact cause of death and to provide a medical report that can be used for legal or administrative purposes. The post-mortem examination is required by South African law for all unnatural deaths and cannot be refused by the next of kin. The post-mortem examination may also reveal information that is relevant for reporting and administering the estate of the deceased, such as:

The identity of the deceased, if unknown or disputed
The date and time of death, if uncertain or disputed
The nature and extent of any injuries or diseases that affected the deceased
The presence of any substances or toxins in the body that may have contributed to or caused the death
The existence of any genetic or hereditary conditions that may affect the heirs or beneficiaries of the deceased

When a person dies, the cause of death is recorded on a death certificate by a medical practitioner or a traditional leader. The cause of death can be classified as natural or unnatural. Natural causes are those that result from disease or old age, while unnatural causes are those that result from external factors such as accidents, violence, poisoning, or suicide, and could also include any of the following:

Road traffic collisions involving cars, motorcycles, bicycles, pedestrians, or animals
Falls from heights, stairs, ladders, roofs, or windows
Drowning in pools, rivers, dams, or oceans
Fires or explosions in homes, workplaces, or public places
Electrocution by faulty wiring, appliances, or lightning
Poisoning by drugs, alcohol, chemicals, or plants
Animal attacks by dogs, snakes, bees, or wild animals
Natural disasters such as floods, earthquakes, landslides, or storms

If you do not specify that the death certificate says “unnatural causes” when reporting the estate to the Master of the High Court, you may encounter some problems or delays in finalising the estate. For example:

You may not have access to the medical report from the post-mortem examination, which may contain vital information for administering the estate
You may not be able to obtain a letter of executorship or authority from the Master until the SAPS has completed its investigation and issued a clearance certificate
You may not be able to claim any benefits or compensation from insurance policies, pension funds, or other sources that depend on the cause of death
You may face legal challenges or disputes from creditors, beneficiaries, or other parties who have an interest in the estate

To avoid these problems or delays, an unnatural death should be reported as soon as possible and all the relevant documents and information must be provided to the Master of the High Court without avail. You should also consult with a professional legal service that specialises in estate administration and planning, such as AED Attorneys.

How can AED Attorneys help you?

Reporting an unnatural death estate can be a complex and stressful process. If you are a new owner of a property that belonged to someone who died due to unnatural causes, you may face some challenges in reporting and administering their estate. You may also encounter some emotional distress and trauma as a result of their death.

AED Attorneys can help you with:

Reporting an unnatural death estate to the Master of the High Court and the SAPS
Obtaining a letter of executorship or authority from the Master
Claiming any benefits or compensation from insurance policies, pension funds, or other sources
Dealing with any legal challenges or disputes from creditors, beneficiaries, or other parties
Finalising and distributing the estate in accordance with the law and the wishes of the deceased

An unnatural death can complicate your inheritance or ownership of a property. AED Attorneys understands these implications, tax and financial consequences and other considerations. We have experience of the emotional and psychological impact, and offer the legal support that is essential in the event of an unnatural death estate.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

What Are The Benefits Of Leaving Assets To A Trust Fund?

Written by Design on February 26, 2021. Posted in Uncategorized.

When a person passes away, all their assets are placed into an estate administered by an Executor. These assets can include both moveable and immoveable property. Immoveable property relates to assets such as residential and commercial property. Moveable assets can be money in the bank, cars, furniture, jewellery, etc. The Executor will finalise all the administration needed to process the estate, pay the relevant taxes and Estate Duty and distribute the remaining assets to the beneficiaries.

What Is Estate Duty?

Estate Duty is a tax levied on the assets of a South African resident or on South African assets of a non-resident if the estate is valued above R3,500,00. Section 4 of the Estate Duty Act, 1995 specifies the various deductions that are allowed to determine the net value of the estate.

What Deductions Are Allowed Under The Estate Duty Act?

A tax exemption of R3.5 million is allowed on the entire estate before Estate Duties are calculated. Estate Duty is then payable on the remaining value of the estate at a rate of 20% on the first R30 million and 25% on the balance of the value over R30 million. If the estate’s value is under R3.5 million, SARS must still be notified of the deceased’s death.

What Happens to Assets Accrued After A Person’s Death?

Any income accrued up until the date of a person’s death is taxable. After their death, the Deceased Estate is formed. Any assets are held here until the liquidation and distribution have been finalised as per Section 35(12) of the Administration of Estates Act. Income that accrues after the date of death but before any assets being distributed to the beneficiaries is dealt with slightly differently under Section 25 of the Income Tax Act.

When Must Estate Duty Be Paid?

Estate Duty must be paid within 12 months of the date of death or 30 days from the assessment date – if the assessment has been issued within 12 months of the date of death. Late payments currently attract an interest of 6% per annum.

Who Is Liable To Pay Estate Duty?

As the estate administrator, the Executor is usually liable to pay the relevant Estate Duties. However, in some cases, estate duties may be payable by the beneficiary. This is particularly relevant when a policy is paid out to a beneficiary.

Who Can Establish A Trust Fund?

All South African citizens over the age of 18 may establish a trust. However, they need to be fully aware of its impacts and potential challenges. Many people feel that trusts are only for the wealthy, but there are still a number of benefits from property owners placing their immovable assets into a trust for their family:

As part of a trust, the property is not subject to inheritance tax as it no longer makes up part of the deceased’s estate.
A trust does not require an Executor, who may charge up to 3.5% of the estate’s value for their services.
A trust will provide for remaining dependants and minors.
The trustees administer the trust’s assets until the minor dependants come of age, or according to the trust deed’s specifications on the termination of the trust.

However, trusts are not without complications, and serious consideration of high tax rates, trustees and several other issues will have to be considered and thoroughly discussed with an attorney before setting up one. When a property is transferred into a trust, it is important to be aware of the fact that this property is now out of the owner’s control. Here are some thoughts to consider:

Many issues surrounding the setting up of a trust occur when the relationship between the founder of the trust and the trustee/s disintegrates. This can happen in the case of a relationship breakdown, so it is crucial to choose the trustee/s very carefully.
There are costs involved when initially setting up a trust.
If the beneficiaries need to use the trust to secure finance, it is worth noting that banks rate trusts as a higher risk than an individual.
Any future changes to legislation involving trusts are always possible and may limit the benefits they currently provide.
Any rebate an individual may have falls away when the asset is in the trust. For example, capital gains rebate on a primary residence.

Through AED Attorneys, proper estate planning helps to legally ensure that assets provide for family and loved ones, rather than the taxman. Here are some recommendations from AED Attorneys, but are by no means exhaustive:

Set up an Inter Vivos Trust

This is a living trust, created whilst an individual is still alive. It allows the trust owner to access their assets, which may be property, investments or cash while they are still alive. On their passing, the designated beneficiaries of the trust are granted access to the remaining assets and the trust is managed by a successor trustee.

Invest in a Retirement Annuity (RA)

RA’s are attractive from both an investment and estate planning perspective. The contributions are tax-deductible; they enjoy a tax-free grow on their value and are excluded from the deceased’s estate.

Buy Life Insurance

Life insurance can effectively fund any taxes due on the estate after death.

Leave R3.5m To The Trust

As mentioned earlier, estates worth less than R3.5m will not attract estate duty. Also, any amounts left to a spouse are free of estate duty and capital gains tax until the spouse sells the asset. Therefore, leaving R3.5m to the trust allows children to benefit from the estate duty exemption of both parents. Recent changes to the law have reduced this need, but leaving money to a trust should still be considered for growth assets.

While it is worth being informed about estate planning, it can get quite complicated. AED Attorneys helps clients set up Wills and Trusts to make provision for dependants and minimise estate duties legally.

AED Attorneys understands that every situation is unique. Although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

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Surviving Spouses – What You Should Know About Tax and Estate Duties

Written by Design on February 26, 2021. Posted in Uncategorized.

When the definition of a “spouse” was introduced into the Income Tax Act No. 58 of 1962, the Estate Duty Act, and the Transfer Duty Act in 2001, it brought specific tax implications for spouses.

How does South African law define a spouse?

In terms of the definition of a “spouse” under South African law, it refers to a person who;

is the partner of another person in a marriage or customary union recognised by the laws of South Africa;

people in a partnership recognised as a marriage by any religion; and

people of the same sex or in a heterosexual union which has satisfied the SARS Commissioner about its permanency.

What taxes become due when a spouse dies?

Spouses enjoy a certain amount of leniency from SARS when it comes to donations between them and property transfer duties. Should their marriage break-up or one of the spouses die, the remaining spouse will not be liable for transfer duty on any property they jointly owned.

Also, Section 4q of the Estate Duty Act (Act 45 of 1955) stipulates that the value of all property bequeathed to the surviving spouse, either in respect of a Will or by intestate succession, is deductible from the gross estate of the deceased.

What Capital Gains Tax must a spouse pay?

When one spouse passes away, estate duty is not payable on any asset left to the remaining spouse. Neither is Capital Gains Tax payable on an asset’s disposal from one spouse to another. This is because the spouse who is the recipient is considered to have acquired the asset at a base cost equal to that of the deceased spouse.

What happens if the surviving spouse has not been provided for in the Will?

In instances where the surviving spouse has not been sufficiently provided for, they are entitled to claim from the deceased estate in terms of the Maintenance of Surviving Spouses Act 27 (1990).

What happens to the surviving partner if the couple was not legally married?

However, it is important to realise that the above exemptions only apply to partners who fall under the legal definition of a spouse. The decision as to whether the remaining unmarried partner will receive any pension fund benefits (if applicable) leaves them at the mercy of the retirement fund trustees. As per the Pension Funds Act, trustees must identify the deceased member’s dependants so that the funds may be fairly distributed.

Increasingly, many people choose to rather co-habit instead of formalising their union in a legal marriage under South Africa’s laws. Although there may be clear indications that partners can be considered as spouses in terms of the legal definition, the administration will prove challenging under the Fiscal Acts when one partner dies.

Examples of this would be such as when two people have been living together for many years yet have no intention of marrying each other, and one of them dies. There is usually strong evidence to prove that they were spouses by the legal definition under these circumstances. If established, they may be entitled to some of the financial benefits when their co-habiting partner passes away.

Therefore, it would be advisable for partners living together to record a Co-habitation Agreement to avoid any disputes arising in the event of a break-up or a death. In addition, both parties should also draw up their own Will wherein it states what each partner is to inherit from the other upon one of them dying.

How to prove a Life Partnership when one co-habiting partner dies

If no Co-habitation Agreement exists when one partner passes away, then the onus will be on the surviving partner to qualify as a spouse in the eyes of the SARS Commissioner. Three affidavits will be required from different parties confirming that the relationship existed for some time. Besides the three affidavits, the following may also prove useful as supporting documentation to establish the life partnership:

Co-habitation Agreement
Legal Will
Proof of joint ownership of fixed property or other assets
Proof of medical aid with the partner registered as a dependant
Any policies mentioning the partner as a beneficiary
Joint bank account

What is the impact of the Intestate Succession Act, 1987 (Act 81 of 1987)

If a partner or spouse dies without a Will, the estate falls under the law of intestacy, which means that the Executor [AD1] will divide the estate, according to a set formula, among any surviving children [AD2] and spouse first. If there are no children, then the estate will be given to the legal spouse, and if there is no spouse, then it falls to the deceased’s parents [AD3] . In this case, the surviving partner will not be able to inherit as a spouse, unless he or she was married to the deceased.

Failure to leave a Will behind may leave the surviving spouse or partner in a predicament, should the parents or children seek to take possession of the deceased’s assets.

AED Attorneys provides professional advice and assistance with the drawing up of Wills or Co-habitation Agreements which will help prevent most disputes should a spouse or partner pass away.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

[AD1]executor

[AD2] and spouse

[AD3] add: In this case a person that only lived with a partner will not be able to inherit as a spouse.