Land rights challenges under South Africa’s ITIPP framework

South Africa’s electricity system increasingly depends on a reliable and resilient transmission network.

To overcome existing grid constraints, the National Transmission Company South Africa (NTCSA) has identified the need to construct approximately 14,500 km of high-voltage transmission lines and network infrastructure across South Africa over the next decade. The Transmission Development Plan (TDP) will require large-scale capital investment and expertise.

Land rights pose a particular challenge to this large-scale programme given that transmission infrastructure typically traverses multiple provinces, communities, private properties and environmentally sensitive areas. The vast geographical scope of this project will raise complex land acquisition, permitting and regulatory risks.

Transmission requires land-based rights  

To facilitate the TDP’s roll-out, the Department of Electricity and Energy has established a designated framework, the Independent Transmission Infrastructure Procurement Programme (ITIPP), to help attract private investment and facilitate the expansion of the network and associated infrastructure. 

Under the ITIPP, the NTCSA will act as the public transmission system operator and buyer of transmission services. Developers will be procured to design, finance, construct, operate and maintain specified transmission infrastructure for the duration of a concession period or transmission services agreement (TSA).

At this stage, the request for qualification (RFQ) leaves the choice between BOT (Build-Operate-Transfer) or BOOT (Build-Own-Operate-Transfer) procurement models. The programme anticipates a long-term concession – typically 25–35 years – after which control of the transmission assets is expected to vest in NTCSA, subject to confirmation in the final procurement documentation. The publication date for this is yet to be announced. 

The NTSCA has been mandated to secure land for the transmission infrastructure build-out. It may, where required, rely on expropriation to secure these land rights. As any such expropriation will be for a ‘public purpose’, it will be subject to compensation. If compensation is disputed, the matter may proceed to mediation, which would introduce procedural steps, timeframes and uncertainty that can materially delay access to land.

Cession of personal servitudes 

Under the ITIPP, transmission lines will be constructed and operated within a pre-identified servitude area. A servitude is a legal right that one person – the non-owner – holds over another person’s – in other words the owner’s – property, allowing them to access, utilise or restrict use over that property.

Servitudes in South Africa are governed by the Deeds Registries Act 47 of 1937 (‘the Act’), which provides for their registration against title deeds, ensuring they are legally binding and enforceable against current and future landowners.

The Act distinguishes between different types of servitudes, including personal servitudes. A personal servitude is limited to the lifetime of a natural person or, in the case of a juristic person, limited to its continued existence, up to a maximum period of 100 years.

Due to the limited nature of a personal servitude, it is only logical that it is not freely transferable. The right is therefore inseparably attached to the specific beneficiary. Section 66 of the Act expressly prohibits the cession of personal servitudes: “no personal servitude of usufruct, usus or habitatio may be transferred or ceded to any person other than the owner of the land encumbered thereby, be registered.” A personal servitude cannot be ceded to a third party; it can only be ceded back to the landowner that is subject to the servitude.

Traditionally, developers have relied on servitudes being registered in their names and then ceded to Eskom at a later stage. However, a recent deeds office circular 218 KB / 1 page PDF) made it clear that this option is no longer available. Going forward, servitudes will have to be framed in favour of the NTCSA with specific rights granted to the developer.   

How the ITIPP model changes lands rights

After NTCSA has secured the necessary servitudes for the projects, land rights will be made available to developers. More information about the servitudes will be provided for in the RFP documentation.

Against this backdrop, it is worth considering how developers can build, operate and control transmission infrastructure when the servitudes are registered only in favour of NTCSA, without creating unlawful or unregistered real rights in their favour.

One possible solution may be tripartite agreements between the landowner, the NTCSA and the developer. Indeed, a tripartite agreement may be required by lenders to ensure a project’s bankability.  

This model keeps registered servitudes with the NTCSA and grants developers only contractual and statutory operating rights to perform their functions. In doing so, it avoids vesting real rights in developers.

What this means for ITIPPs 

It is expected that the developer’s land use may arise through relevant statutory and regulatory authorisations or delegation by the NTCSA as servitude holder through a tripartite servitude agreement.

The servitude agreements will need to be drafted carefully to clarify that both NTCSA and the developer have separate and defined rights of access and use. This will avoid infringing the prohibition on cession of personal servitudes and limit the risk of creating disguised or unlawful real rights in favour of private developers. 

It is widely understood that no templates in respect of land documents have been shared with the developers to date. There remains uncertainty over whether the responsibility of compensation to landowners lies with the NTCSA or the developers, or how these compensation values will be determined.

It is also unclear how many landowners a developer may have to engage with and whether these landowners have been made aware of the respective roles of the NTCSA and the developer for these projects. Clear communication and alignment will be critical to avoiding potential disputes and delays.

In one recent case, South Africa's High Court ruled that Eskom's wayleaves policy acted counter to the government’s broader policy objectives to facilitate private sector electricity generation to help diversify the country’s energy mix.

Although this decision does not relate to the ITIPP directly, it is likely to have far-reaching implications for energy developers, landowners and rights‑holders navigating Eskom servitudes in South Africa and certainly underscores the complexity of servitude rights and land rights for developers operating in the country.

Private sector investment will be critical to the implementation, acceleration and sustainability of this ambitious programme. Investors and lenders will be looking for what security developers can provide, particularly where traditional security over registered land rights is not available

Developers should actively interrogate compensation responsibilities, landowner engagement strategies and bankability structures to ensure the model remains both legally robust and commercially sustainable.

Co-written by Neliswa Zulu of Pinsent Masons