Land reform: Time to look at the bigger picture?

With a report on the review of section 25 of the Constitution scheduled for ‘adoption … at the end of next month’, according to Parliament’s programming committee (Cape Argus) – and the imminent tabling in Parliament of a reworked Expropriation Bill (Fin24) – commentators would do well to revisit two proposed new statutes with significant implications for land reform and property ownership, suggests Pam Saxby for Legalbrief Policy Watch. Legalbrief Today has regularly reported on both: the draft Regulation of Agricultural Land Holdings Bill; and a ‘B’ version of the 2015 Extension of Security of Tenure Amendment Bill.

Commentators should also bear in mind that sections 59, 72 and 118 of the Constitution make it mandatory for the National Assembly, NCOP and provincial legislatures to facilitate public participation in the law-making process. Rules 167 of the National Assembly and 32 of the NCOP empower committees to conduct public hearings on Bills before them, while Rule 286 of the National Assembly requires a committee at the very least to invite written submissions on a Bill before beginning formal deliberations. It remains to be seen whether ongoing public hearings on the vexed issue of land expropriation without compensation will be deemed sufficient in the context of the revised Expropriation Bill. The version recently withdrawn from Parliament was not adequately consulted in the provinces, as Legalbrief Today reported at the time.

Rural Development and Land Reform Minister Maite Nkoana-Mashabane’s budget vote speech in May referred to a fine-tuned Regulation of Agricultural Land Holdings Bill, which was expected to be tabled in the National Assembly before the end of the financial year. A draft version gazetted in March 2017 for public input among other things sought to empower the Minister to identify categories of agricultural land holdings and prescribe ownership ceilings for each category per district, in accordance with ‘land capability factors’. It was envisaged that any land exceeding the prescribed amount would be deemed available for redistribution. The draft Bill also sought to prohibit agricultural land acquisition by foreign nationals – unless ‘a black person as defined in the Employment Equity Act … has a controlling interest’. Long-term leasehold was proposed as an alternative. In June, responding to questions from the DA’s Ken Robertson, Nkoana-Mashabane said that, once the Bill is in force, redistribution in accordance with its provisions will be informed by ‘scientific methods’ and refined criteria apparently already being tested. Not only will such land be ‘strategically located’ according to ‘expressed … need’, it will land that is either underutilised or not utilised at all – and above the basic land factor efficiency requirement for agro-ecological-region-specific commodities.

Against that backdrop, a ‘B’ version of the 2015 Extension of Security of Tenure Amendment Bill now waiting to be signed into law is expected to end the arbitrary eviction of farm workers, farm dwellers, the ‘occupiers’ of vacant land and their families. This is noting that the family of an ‘occupier’ is defined in the Bill as a spouse by customary marriage (regardless of whether the marriage is registered), while family members are deemed to include any dependent child (who may be adopted or fostered), grandchild, parent and grandparent. Clause 4 of the Bill provides that a land ‘occupier’ may only be evicted in terms of a court order issued under the principal statute and if he/she was legally represented at the proceedings concerned – or expressly waived his/her right to state-funded legal representation and the court determined that, in so doing, ‘the interests of justice would not be harmed’. Clause 3 provides that an occupier should take ‘reasonable measures’ to maintain the dwelling to which his/her right to security of tenure applies. District land rights management committees and a land rights management board will be tasked with monitoring the processes preceding legal evictions and ensuring that specific procedures are followed.

This particular piece of legislation may be behind President Cyril Ramaphosa’s apparent reluctance to declare a moratorium on farm worker evictions allegedly promised nearly four years ago (GroundUp). As Legalbrief Today has also reported, in August the President told a gathering in Paarl that ‘women who live in rural areas must have their right to land recognised and enforced and must have the means to use their land to improve their lives and the lives of their families’. He made this observation in the context of a ‘range of measures’ government is apparently already using ‘to accelerate comprehensive land reform and expand agricultural production’. It is not clear if the powers that be have already considered how this will dovetail into processes envisaged in the draft Regulation of Agricultural Land Holdings Bill. Throw into the mix the emotionally-charged issue of farm attacks and the picture assumes even more worrying dimensions. According to The Citizen, only last Friday the ANC released a media statement calling for them to stop. ‘As a society, we must be concerned (about all) instances of criminality (on) farms,’ the statement reportedly read, noting that attacks are not ‘restricted’ to farm owners, but ‘affect all persons living in … (farming) areas, including some of the most vulnerable in our society, farm workers and their families’. At the time of writing the statement had yet to appear on the ruling party’s new website.

This notwithstanding, 93% of land restitution claimants since 1994 have opted for monetary compensation, according to Nkoana-Mashabane (Beeld). She was responding to questions from FF Plus MP Pieter Groenewald, as Legalbrief Today has already reported. The land claimants concerned have apparently received a total of R13.5bn in compensation, although it is not clear how many of the 8.2m hectares of land acquired for restitution since 1994 were sold back to government. Neither is it clear how much of this land and the remainder of the 17m hectares now owned by the state is agricultural. What is blatantly obvious is that, in the absence of willing (let alone suitably skilled) black farmers, Ramaphosa’s ‘agricultural revolution’ (Business Day) could well be a non-starter.

Follow Pam Saxby on Twitter (@SaxbyPam)