Land reform quo vidas?
LEGAL PERSPECTIVE BY THEO BOSHOFF
Theo Boshoff is head of legal intelligence at Agbiz.
Email him at [email protected].
Farmer’s weekly SA 29 June 2018
Public hearings on the review of Section 25 of the Constitution, which would make it possible for the state to expropriate land without compensation, will soon start in all nine provinces. Now is therefore a good time to stop and reflect on how far the debate has progressed.
When the decision was made to review the Constitution, many of the protagonists were not exactly clear about what it was they were aiming for. Although the EFF and the DA had been consistent in their positions, the ANC was still in the process of formulating its position.
The EFF has been clear that the party’s support for expropriation without compensation extends to both rural and urban land. However, the salient point that distinguishes the EFF’s ambitions from other parties is what will happen after the land is acquired.
According to statements, the EFF’s aspiration is that all land, including that in urban areas bonded to financial institutions, should vest in the state, which would in turn lease it back to the people.
At the other end of the spectrum, the DA has rallied against expropriation without compensation and emphasised the need to divide existing state-owned land and transfer ownership to occupiers.
ANC POSITION
The ANC’s position has taken a bit longer to crystallise. The initial position taken at the party’s conference in December was to provide for expropriation without compensation, but to do so in a manner that increased agricultural production and did not harm other sectors of the economy.
Subsequently, a series of differing options has been mooted, but the emerging position can be summarised as follows: being opposed to amending the Constitution, the current formulation of ‘just and equitable compensation’ should be tested.
The Expropriation Bill should, however, be amended to allow for zero compensation in four specific instances: unused land, especially that held by public entities; abandoned buildings; land held for speculation; and land actively farmed by labour tenants where the landlord is absent. Since the National Assembly mandated the Joint Constitutional Review Committee to look into the matter, no political party can summarily determine the outcome and all will have to present their case to the committee.
The review process has also spurred academics, social commentators and business organisations throughout the agricultural value chain into action.
Many private sector organisations have highlighted that land expropriation, with or without compensation, is merely a way of acquiring land and does not address many of the systemic challenges facing the land reform programme.
There are lingering challenges around beneficiary selection; diversified models to address land reform for settlement purposes versus commercial farming purposes; governance issues; post-settlement support; and gaps in the current legislative and policy environment, especially in relation to tenure arrangements in communal areas.
PARALLEL PROCESS
The high-level panel led by former president Kgalema Motlanthe came to similar conclusions, and a parallel process is under way within Parliament to assess its recommendations that deal with land reform in more general terms.
The private sector has also presented some innovative solutions. These include diversified funding models that blend state funds with private sector capital; various partnership models; a digital, integrated platform to host land-based information; and post-settlement support that incentivises agribusinesses and commodity organisations to assist beneficiaries to integrate into the mainstream economy.
If nothing else, the process has stimulated sectors of the economy not traditionally involved in the land reform debate to join the discussion.
Interested parties are encouraged to take part in the public hearings to build on this momentum, as only innovative thinking will enable us to pass this litmus test in our country’s history.