Barry Streek
The minister of agriculture and land affairs is to be given sweeping powers to intervene if she believes any new land use application “prejudicially affects the national interest”.
The Land Use Management Bill, published recently in the Government Gazette, gives Minister of Agriculture and Land Affairs Thoko Didiza the right to overturn decisions by provincial and local government.
Her decisions will be final, subject to review by a court, unless she decides to refer it back to the relevant authority.
In terms of the draft Bill, the minister will also be able to enact “a national land-use framework management” in any part of South Africa.
A White Paper, attached to the Bill, reads: “It is no exaggeration to say that the economic, social and environmental future of our country depends on the wise use of our land resources.”
The new legislation would provide “a uniform, effective and efficient framework for spatial planning and land use management in both urban and rural contexts.
“This legislation will clear up the extraordinary legislative mess inherited from apartheid in this area of governance. The most dramatic effect of the White Paper is that it will rationalise the existing plethora of planning laws into one national system that will be applicable in each province, in order to achieve the national objective of wise land use.
“Land is a national resource. It falls squarely within the national legislative competence. The responsibility for this legislative competence resides with the Minister of Land Affairs.”
In terms of this approach, the Bill proposes giving the minister the final say over the use of land in South Africa in terms of the “national interest”, a concept which is not defined in the measure.
The need for new legislation was identified by the Development and Planning Commission, which was appointed in 1997, after it had studied the planning laws in each province, including the laws inherited from pre-1994 provinces and homelands and those designed for application in black urban areas.
“This revealed an extraordinary complex and inefficient legal framework, with planning officials in all spheres of government having to deal with numerous different systems within the jurisdiction of each province, and indeed within most municipalities.”
The Bill proposes that each metropolitan municipality, local municipality and district municipality must adopt a land use scheme within five years of enactment of the new law.
Once a land use scheme has been promulgated it will have the force of law and will bind the owners of land in the area to which the scheme applies. The use of a piece of land will be able to be changed only with the approval of the land use regulator with jurisdiction over it municipal councils in urban areas and district councils in rural areas and a system of tribunals to decide on applications.
However, the minister will have the final say if she believes that a land use application “prejudicially affects the national interest”.
The Bill also says that any land use management decision should be “determined taking into account its impact on society as a whole rather than only the narrow interest of those affected” and all processes and decisions should promote racial integration.
The National Land Committee (NLC) said this week it was “deeply disappointed” by the government’s decision to respond to the land crisis by intensifying its efforts to criminalise poor and landless people through the proposed amendment to the Prevention of Illegal Eviction and Unlawful Occupation of Land Act.
“The plan to extend the Act’s prosecutorial reach to include ‘any person who instigates land invasion … regardless of whether they have benefited financially or not’ and to make ‘any invasion of land’ an offence represents a draconian threat to further criminalise the desperately poor and landless, as well as organisations that support them,” an NLC statement read.
“Although the NLC has never instigated land occupations, and does not have a policy of doing so, it cannot but sympathise with landless people whose desperate circumstances made worse by government neglect lead them to do so.
“Less than 2% of land has changed hands from white to black in the seven years since the birth of the new South Africa, and the resulting widespread landlessness in rural and urban areas has created desperate circumstances for millions of poor black people. It is therefore not surprising that poor people would begin occupying vacant land.”