Report: Land reform can no longer elude us – Thoko Didiza
Thoko Didiza |
29 July 2019
Panel endorses proposed policy shift towards using the provisions of the Constitution for land EWC, says Minister
Statement by Minister Didiza on the tabling of the Final Report of the Presidential Advisory Panel on Land reform and Agriculture
28 July 2019
The Presidential Advisory Panel on Land Reform and Agriculture was appointed by His Excellency President Cyril Matamela Ramaphosa on 26 September 2018 to provide a unified policy perspective on land reform and independent advice to the Inter-Ministerial Committee (IMC) chaired by His Excellency Deputy President David Mabuza. Panel members brought a diversity of skills, experience and expertise in matters related to land reform policy, practice and research, urban and rural development policy and planning, land reform law, agricultural economics, farming and agribusiness.
The Panel’s Terms of Reference (TOR) covered a broad spectrum of land reform issues in rural and urban areas. These include the consideration of agrarian reform and addressing spatial inequality. The mandate was partly informed by the resolution of Parliament to consider expropriation of land without compensation. However, the Panel’s role is distinct from, and does not duplicate the role of Parliament’s Constitutional Review Committee. Focus has been on the circumstances in which the policy should be applied, the procedures to be followed and the institutions to implement and enforce.
Considering the complexity and the emotive nature of land reform, the Panel applied evidence-based approaches, pivoting discussions and the Report on historical truths and grounded facts, Various reports that had diagnosed and vigorously analysed the problems and failure of land reform were considered to build a sound basis for recommendations . As instructed by our terms of reference, these were followed by a series of consultative processes within government (Land Reform Inter-Ministerial Committee Ministers, Heads of Departments, Land Claims Commission and Office of the Valuer General); two Colloquia and 10 Roundtables that included different spheres of government, Parliamentarians, Civil Society, Private Sector, Academics, Legal and Foreign experts.
In recognition of the magnitude of the responsibility placed on our shoulders, it was incumbent on each member of the panel to always be mindful of and hear the cries of the majority of our ancestors who were dispossessed of the land of their birth through bloodshed and untold pain, but to also be mindful of the hopes and dreams of our future generations for a just, prosperous, stable and egalitarian country. In essence, therefore, the premise of the work undertaken by the panel is the firm belief that land reform could enable social cohesion, deliver social justice and restore dignity to the majority of the people of our country. We also believe that land Reform can contribute to inclusive growth and sustainable development.
It is thus with great humility and pride that we announce the official approval by Cabinet of the “Final Report of the Presidential Advisory Panel on Land Reform and Agriculture” of 4 May 2019. The Cabinet approval on 24 July 2019 in Cape Town follows the handover of the Report to His Excellency President Ramaphosa, Deputy-President David Mabuza, and presentation to the Sixth Administration’s Inter-Ministerial Committee on Land Reform. The panel wishes to emphasise and encourage each citizen and all sectors of society to read the report, not just as a policy position, but a crucial resource which will contribute to land reform, spatial transformation and agricultural development policy formulation. The panel also expresses its gratitude and honour bestowed upon it to serve the people of South Africa. It is our hope that the recommendations contained in the report will contribute positively to expedite and sustainably deliver land reform objectives as directed by the Constitution.
Before highlighting the key recommendations, it is incumbent on us to draw the public’s attention to Areas of Panel Disagreement which are included in the Report on page 102. These were registered by Mr. Dan Kriek and Mr Nic Serfontein. They mainly cover (but are not limited to) expropriation without compensation and amendment of the Constitution.
Findings and recommendations
The Time is Now, Ke Nako!
Our country has reached the precipice, and it is the hope of the Panel that land reform can no longer elude us, as it forms a critical and central place within the Bill of Rights. Critical issues such as land hunger, insecurity of tenure with majority of land rights that are not legally recognized nor registered (in both rural and urban areas) are threatening stability, inclusive growth and development.
The Land Reform trajectory requires a radical shift as 80% of urban dwellers (Including peri-urban) reside on 2% of land, with targets for transferring commercial agricultural land (30% by 2014) not able to even reach half (around 10%). This is exacerbated by the reluctance by government to address communal tenure and underdevelopment of communal areas perpetuating the marginalization of women, the rural poor and communal farmers in general. The Report provides recommendations for immediate action.
These include immediate allocation of allocated land, building on and refocusing private partnerships, and strengthening of food systems and rural-urban linkages. The report further calls for a Consolidated National Land Reform Policy Framework with a new White Paper that addresses current gaps to include urban land, address spatial transformation and climate change. The Framework must also add Land Administration as a fourth pillar, retaining and strengthening Land Restitution, Redistribution and Tenure in 1997 National Land Policy. In these recommendations the Panel calls for:
Expediting and refocusing land reform to address Inequality and historical injustices
South Africa has made world headlines as the most unequal country. The Report attributes the persisting inequalities to the manner in which land is owned, managed and transacted, with approaches that have not addressed historical injustices, contributing to deepening of structural poverty and inequality (racial, spatial, gender). Of concern is the transactional as opposed to transformational nature of Land Reform riddled with corruption.
The Panel’s report urges the President and his Cabinet to expedite the land reform process, use all its existing powers to deliver land reform, and re-orient it towards meeting the most urgent needs first, to resolve the outstanding land restitution claims, to release acquired private land, State-Owned land, and to much more effectively identify privately-owned land needed for redistribution. The report further provides Beneficiary Selection Guidelines to promote transparency in addressing the urgent need for human settlements, providing access to land for the landless, household food security, emerging black farmers, industrialists and entrepreneurs.
On land expropriation without compensation:
We endorse the proposed policy shift towards using the provisions of the Constitution to expropriate land without compensation. The majority view in the Panel is that it is an inescapable fact that section 25 of the Constitution is compensation-centric. In other words, the notion and origin of "expropriation" draws from global examples where it is inextricably linked with some form of compensation.
The Panel has therefore offered a proposal for a constitutional amendment that clarifies that EWC may be necessary in limited circumstances, but certainly in order to elevate the objectives of land reform. The State is already empowered under Section 25 of the Constitution to expropriate land for land reform purposes, but is required to pay ‘just and equitable compensation’. Whether, and when, such compensation can be set at zero has been the subject of debate over the past 18 months.
There were differing views within the panel as to the necessity for constitutional amendment. Parliament has already voted to amend the Constitution and a committee has been established to propose the nature of such an amendment. We have suggested some wording that would serve as a clarification that compensation may be zero in circumstances that justify this as obliged by the Panel’s TOR.
The Panel was further concerned about the current and previous land acquisition transactions that did not adhere to the Constitution as it allows for expropriation with ‘just and equitable compensation’. Part of the problem was the use of the 1975 Expropriation Act that precedes the 1996 Construction and the poor capacity of OVG office that still uses the market value.
Although the current framing of Section 25 does not inhibit the State from expropriating land, this report assists by identifying those specific conditions under which land may be expropriated without compensation. It recommends that the circumstances warranting expropriation without compensation should be set out in the Expropriation Bill and further detailed in a Compensation Policy.
On land redistribution:
We propose a proactive, targeted area-based approach. Land redistribution should no longer be dependent on willing sellers offering their land for sale. Instead, we propose that government should pursue a proactive targeted acquisition of land identified as needed. Land identification and acquisition should happen at municipal level in a participatory and democratic manner, to specify the land parcels required to meet identified needs.
The Constitution’s property clause requires that all citizens should have access to land on an equitable basis. In our view, this requires that those who have the most urgent needs should get priority. We also propose that beneficiary selection processes be strengthened and made more transparent, consistent with UN and African Union frameworks.
This should address corruption in the land allocation process. It should clarify who should benefit, how prioritisation of beneficiaries should take place, and how the scarce available public resources should be rationed. We note with concern that most land reform to date has benefited men rather than women. We propose that at least 50% of beneficiaries and of state resources should go to women.
We further call on government to refocus land redistribution on meeting the needs of the poor, while also providing some support to the better-off. We therefore propose that the available funds and land be allocated to the four categories of beneficiaries as follows: 30% to farm dwellers, labour tenants and subsistence farmers, 30% to smallholder farmers producing for local markets, 30% to medium-scale emerging commercial farmers and 10% to large-scale established farmers, who do need state assistance, but are better situated than the poor to contribute their own capital and leverage finance from the Land Bank, commercial banks and other financing institutions.
On land acquisition:
The new White Paper must specify the range of land acquisition methods that will be pursued for land identified as required for land redistribution or restitution, that can be pursued in this sequence: (a) Calls for land donation, (b) Negotiated acquisition, (c) Expropriation.
On land donations:
We recommend that government develop a Donations Policy, which encourages landowners to donate properties, or part of their properties, by offering exemptions from donations tax, and carrying the conveyancing costs of land transfer. We call on the churches, mining companies, financial institutions, agribusinesses and others, to audit their own landholdings to identify land they can donate, and suggest that the Minister convene, within the coming year, talks across these sectors to secure donations, and to open discussion with potential beneficiaries, including existing land occupiers such as farm dwellers and labour tenants.
On Land financing:
We propose the establishment of a Land Reform Fund, which will bring together state and private finance to support land reform – both the acquisition of land and support for beneficiaries thereafter. This will require broad buy-in, financial support from the state, restructuring of the Land Bank, and incentives for the private sector to contribute.
The Commission on the Restitution of Land Rights must prioritise the settlement of old order claims that were submitted by the first deadline of 31 December 1998, as required by the Constitutional Court. The Minister is urged to instruct her Department to expedite claims via redistribution: claimants should be able to opt for land redistribution or tenure security options to avoid the onerous requirements of having to prove how and when they or their ancestors were dispossessed in the past.
The Minister should use her discretionary authority to address legitimate claims which fall outside the eligibility criteria of the Restitution of Land Rights Act, such as Khoi-San and other pre-1913 claims, via land redistribution. This means that people who were previously excluded can now be included. We recognise the need to strengthen the capacity of the Commission, with additional staff and training, and call on government to do its utmost, within its resources, to make this happen.
The Commission should also establish a dedicated research team to enable it to fulfil its mandate, and ensure that more robust legal entities such as communal property associations are established to enable claimants to hold and manage their land jointly.
On the Land Claims Court: We call for the reform the Land Claims Court. It has not performed the functions for which it was established and has not been functioning optimally – and has not had even one permanent judge. It should be reformed and its mandate expanded and clarified. To reflect this change, it should be renamed the Land Court, to reflect its broad oversight over all land reform matters. It will need to be strengthened with the appointment of a permanent Judge President and at least one other permanent judge.
On land corruption:
We note with concern the growing evidence and instances of corruption in the acquisition, allocation and transactions of land. We have identified five different types of land corruption. We urge government to take steps to improve oversight and more investigations and prosecutions to stop land-related corruption in all its forms. The Department must tighten up the beneficiary selection process to reduce the scope for corruption.
Selection and allocation processes must be more transparent and there must be greater openness and accountability as to how these decisions were arrived at. We call on Government to establish an office of a Land Rights Protector as an ombudsperson who can investigate allegations of corruption and, where appropriate, refer cases to the National Prosecuting Authority for prosecution.
On farm workers and dwellers:
We call for an end to farm evictions and urgently expedite mechanisms to secure farm dwellers tenure rights in line with the law. We recommend that the Minister instructs her department to urgently create an application system for farm dwellers to upgrade their tenure and expand their land occupation, as provided in section 4 of the Extension of Security of Tenure Act. When eviction applications are heard in the courts, municipalities must be required to propose on-site settlement options for farm dwellers. National government must review the farm schools policy to ensure the right to education for children residing on farms.
The SAPS system must be reformed so that illegal evictions and violations of section 23 of ESTA are registered as criminal offences. Police, prosecutors, magistrates and attorneys in the Land Rights Management Facility panel all need training, and mentoring, by a dedicated training team, emphasising alternative dispute resolution.
To guide all this, to monitor trends, to respond to cases and popularise the law, we call on government to establish a widely-representative ESTA Task Team – with representation from different government departments and spheres of government, as well as civil society – to drive a massive enforcement drive nationally to deal with evictions and provide secure tenure for farm dwellers.
On labour tenants:
Labour tenants must be a priority group to benefit from land reform. Mostly located in KwaZulu-Natal and Mpumalanga, these are black farming families already living on and farming the land, who are entitled to upgrade and secure their land rights. Government has not moved speedily enough to address their claims. We call on the Department to finalise its database of applications under the Land Reform (Labour Tenants) of 1996, and prepare a proper, time-bound, costed and publicly available plan for implementation.
We call on Parliament to monitor implementation of this plan, and to amend regulations to the Act to address overlapping labour tenant and restitution claims. Those whose claims have been lost must have the opportunity to re-submit, and the Department must identify claims where expropriation may be used to break deadlock with owners, subdividing where appropriate, and test ‘just & equitable’ provisions in the Constitution, to acquire and transfer this land to the claimants.
Beyond the main areas of land reform, we identify several ‘game-changers’ that can give added meaning to the land reform process and benefit a wider population.
On tenure reform:
The panel proposes a bold new approach to recognising and recording the diverse range of tenure rights that exist within South Africa. While apartheid laws and regulations created a racialised hierarchy of rights, we endorse the principles underpinning tenure reform in the White Paper 1997, including legally enforceable rights, based on recognising the de facto vested rights that exist on the ground. In other words, people who by tradition are the occupiers and owners of land must be recognised as such, in law.
We urge government to avoid private titling of communal land, which is inappropriate to customary forms of tenure. Rather, the Panel recommends a Land Records Bill which will enable the majority of citizens, who hold property ‘off-register’, to record and register their property. An estimated 60% of all South Africans occupy land to which they have no recorded rights – including residents of informal settlements, farm dwellers, labour tenants, residents of communal areas, and others. They should benefit.
On land administration: We recommend that land administration be recognised as the fourth ‘pillar’ of land reform, alongside restitution, redistribution and tenure reform. This is needed to ensure that all people’s land rights are well governed and administered. We call on government to appoint a working group to drive this process, set up an integrated land information system, and appoint researchers to work with state officials to identify priority testing sites, such as informal settlements, farms and former homelands, and to advise on how to scale up improved land administration.
The intended outcome of these initiatives is a revitalised, integrated and unified Land Administration system that provides a legal and institutional infrastructure for all land-related management and rights.
On urban land reform:
We propose that land reform be extended to urban areas, with the aim of building inclusive towns and cities where all residents have equitable and secure access to land, for housing, businesses, recreation and other uses. We call on government to develop an urban land reform policy, and to take proactive steps to audit and redistribute well-located vacant, underutilised or inefficiently used urban land and buildings (including state-owned and state-leased land) that can contribute to overcoming apartheid spatial inequality; prioritise the social, historic and transformative value of land over its capital asset value in decisions relating to the use, lease, transfer and disposal of land owned by the state and state-owned enterprises.
Government must respond to the growth of informal settlements and inner city occupations where land or property is already settled, by recording off-register, less ‘formal’ land rights and providing occupiers with proof of residence; and providing alternative accommodation where eviction leads to homelessness, including in the form of affordable rental programmes in well-located areas.
On institutional arrangements:
We recognise that the institutions charged with implementing land reform have faced numerous challenges, and there are longstanding problems with coordination among institutions. First, we propose that government should transfer responsibility for Rural Development away from the Department. Rural development is a coordination function, not a line function.
Second, we call on government to establish a Land and Agrarian Reform Agency, combining land reform and agriculture functions and directorates from the two departments. Third, we propose the settled restitution claims be transferred from the Commission to this agency for implementation. The Commission should focus exclusively on settling claims, not implementing settlement agreements and court orders.
It must be noted that these are not all the recommendations that are contained in the report. The Panel will also publish a summary of recommendations, for ease of reference that will detail the sum total of all recommendations made.
We look forward to engaging with the public as we assist with the implementation of the recommendations of the report.
Advisory Panel on Land Reform
Dr Vuyokazi (Vuyo) Mahlati (Chairperson) – member of the National Planning Commission and President of the African Farmer’s Association of South Africa.
Professor Ruth Hall, a researcher and professor at the University of the Western Cape’s Institute for Poverty, Land and Agrarian Studies.
Professor Mohammed Karaan, Professor in Agricultural Economics at Stellenbosch University.
Advocate Tembeka Ngcukaitobi, a lawyer, public speaker and author whose current work for the Legal Resources Centre and Johannesburg Bar spans public law, labour law and competition.
Ms Bulelwa Mabasa, an admitted attorney with more than 16 years’ experience.
Dr Thandi Ngcobo, CEO and founder of the Dr J L Dube Institute of the University of KwaZulu-Natal who has conducted extensive research on land and education and capacity development.
Mr Wandile Sihlobo (Agricultural Economist) is the Chief Economist at the Agricultural Business Chamber of South Africa.
Mr Daniel Kriek is a Free State farmer and President of AgriSA who believes in progressive strategies and visions to achieve unity in agriculture.
Ms Thato Moagi is a young, emerging farmer and entrepreneur with six years’ experience in management and organisational administration.
Mr Nick Serfontein is chairman of the Sernick Group, which employs 550 people, and he holds a B.Sc. Engineering from the University of Pretoria.
Issued by Department of Agriculture, Forestry and Fisheries, 28 July 2019