Justice and correctional services minister Ronald Lamola recently indicated that a Land Redistribution Bill was on the cards for Mzansi. In 2017, a high-level panel on key legislation recommended that a National Land Reform Framework Bill was required to provide coherence between redistribution, restitution and tenure and provide a clear framework for redistribution. The panel went as far as drafting a proposed Bill, writes Annelize Crosby, Agbiz head of legal intelligence.
The presidential advisory panel on land reform and agriculture supported the recommendation for a National Land Reform Framework Bill. They proposed that the Bill should be gazetted and urgently debated in parliament.
Redistribution is one of the three pillars of land reform in South Africa. Lately, the department of agriculture, land reform and rural development has added a fourth pillar, namely land development. Section 25(5) of the Constitution gives the mandate for redistribution.
The section provides that “the state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”
Although redistribution is only one of the pillars of land reform, which is the broader concept, there are also redistributive elements in the tenure reform programme. The Labour Tenants Act, Upgrading of Land Tenure Rights Act (ULTRA) and the Extension of Security of Tenure Act (ESTA) are aimed at tenure security and provide permanent solutions that are redistributive.
The 1997 White Paper on South African Land Policy provided, with regard to redistribution: “The purpose of the Land Redistribution Programme is to provide the poor with land for residential and productive purposes in order to improve their livelihoods.”
A big debate over the past 20 years has been what the focus of the redistribution programme should be: Simply pro-poor as the White Paper suggested, aimed at creating a class of black commercial farmers as the Land Distribution for Agricultural Development (LRAD) programme intended, or maybe both?
And a critical question that needs to be answered is whether the state ownership of land can be regarded as redistribution at all?
How successful were past attempts at redistribution?
There have been various programmes over the years that were intended to facilitate redistribution. The first one was the so-called Settlement Land Acquisition Grant (SLAG) programme from 1997 to 1999. A state grant of R15 000 was way too little to purchase any land, so beneficiaries had to come together in large groups to buy land, and the numbers were then very often unsustainable.
Then in 2001, minister Thoko Didiza introduced a new redistribution programme called LRAD (Land Redistribution and Development Programme). This programme was geared more toward establishing black farmers. In this programme, grants were made available to beneficiaries on a sliding scale of between R20 000 and R100 000. All beneficiaries were required to make their own contribution, either in cash or in kind.
The LRAD programme did deliver some successes. Many people who would never otherwise have had a chance to acquire land for farming had the opportunity to do so. A number of these beneficiaries took to farming on the LRAD farms.
In 2006, the Proactive Land Acquisition Strategy (PLAS) was launched to replace LRAD. This strategy aimed to speed up the transfer of land through the government’s proactive acquisition of the land in the market for redistribution purposes.
The implementation manual of the PLAS programme stated that it was primarily pro-poor.
It was implemented using the Provision of Land and Assistance Act, Act No. 126 of 1993, as amended. The land was directly acquired and warehoused within the government.
In theory, the beneficiaries could get ownership after a period; in practice, anecdotal evidence seemed to point to permanent state ownership of the land acquired. It seemed that state ownership of land in terms of PLAS and the accompanying State Land Lease and Disposal Policy undermined agricultural investment and productivity as the beneficiaries felt insecure with tenure arrangements under which the state exercised undue influence over their activities.
Private sector investment was basically excluded as the commercial banks required tradable tenure rights so that the land could be put up as collateral for loans. Beneficiaries we forever dependent on the state, not only for tenure security but also for production finance.
Land redistribution principles
- Reasonable measures to ensure that land is made available on an equitable basis, which means giving priority to people who are landless and poor.
- Primary focus on the poor and disadvantaged.
- A land redistribution programme that considers the capacity of institutions responsible for implementing the programme and is balanced and flexible.
- A coherent and comprehensive land redistribution programme that is sufficiently resourced and able to secure equitable and secure access to land and related resources including water.
- Planning for land redistribution that must happen at both national level and local level.
- An equitable balance between the expressed demand for land for agricultural and non-agricultural purposes, including settlement, as well as multiple uses of land for both commercial and non-commercial purposes.
- The promotion of gender equality.
- State resources for land redistribution must be allocated and used in a manner designed to ensure that large numbers of poor and vulnerable South Africans benefit, and thus promote equitable access, taking due account of the need for post-settlement support and other relevant factors.
- Redistribution must be designed to overcome the legacy of apartheid and apartheid geography.
- Racial integration in rural areas is to be promoted, as is the provision of opportunities for poor and landless people to gain access to land in areas previously dominated by the wealthy.
- The land redistribution programme must guide the uses of land in rural and peri-urban areas to promote equitable access to land in such areas in a manner that contributes to the overcoming of the legacy of apartheid geography around the urban centre.
Land demand register
The proposed Bill also deals with target groups, prioritisation and beneficiary selection. It proposes a focus on women and the very poor. It requires that beneficiary selection happen transparently and should consider the demand for land.
A land demand register should be developed. The selection of beneficiaries must be informed by the outcomes of substantial public and broad community engagement.
The Bill further proposes that the state must develop a land reform implementation framework for every district municipality, which framework must, amongst other things, reflect the needs for land, the socio-economic profile of people expressing a need for land, an assessment of competing needs and demands for land. Land demand shall guide the acquisition of land. Such land can then be purchased or expropriated.
Beneficiary selection and land donation
The department of agriculture, rural development and land reform published a beneficiary selection and land allocation policy in 2020. The policy aims to ensure household food security and food sovereignty.
It proposes to cater for diverse land needs, not only agriculture. It envisages independent beneficiary selection panels and a land application register.
The policy proposes that women, youth, disabled people and military veterans should be prioritised in the beneficiary selection process. 50% of all land acquired will be allocated to smallholders, and no less than 50% of this land should be allocated to women, while not less than 40% to youth, and 10% to persons with disabilities.
The over-regulation of beneficiary selection for farming purposes is problematic. The policy is very prescriptive in terms of percentages from certain categories of persons.
Different criteria should apply to land that is earmarked for farming beneficiaries as certain character traits such as perseverance and passion for farming, as well as aptitude, experience and access to financing, are likely to determine a person’s success in farming.
The policy does not state how the independent selection panels are going to be constituted. These panels must contain farming and financing experts. Corruption will have to be guarded against.
Land donations can also contribute to redistribution. The department also accepted a land donation policy in 2021. This policy is intended to guide the donation of land for land reform purposes.
It aims to address some obstacles to land donation, such as the subdivision of agricultural land or the payment of donations tax. It proposes that beneficiaries of donated land should get title to the land. In this sense, it can simplify the process for those landowners who have made up their minds that they want to donate land for altruistic purposes.
Expectations should be tempered as the policy does not, however, provide for clear incentives that could prompt current landowners to consider a land donation. It also places quite an administrative burden on landowners who want to donate to pre-selected beneficiaries. There may, however, be an opportunity to explore incentives for land donation further.
We are likely to see a Land Framework Bill this year, with a strong focus on redistribution. It is likely to contain elements of the draft Bill proposed by the high-level panel and endorsed by the presidential advisory panel.
It is also likely to incorporate beneficiary selection and land donation policies elements. It may also include expropriation powers for redistribution purposes. Hopefully, it will help curb corruption, improve land delivery, and provide sensible selection.
- Annelize Crosby is the head of legal intelligence at Agbiz.
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