Turning over the land

The government is preparing to overhaul land reform legislation, with the controversial Expropriation Bill coming off the shelf and the agriculture department looking at legislating targets for BEE ownership in the farming industry.

In addition, the Department of Rural Development and Land Reform was due to present a Green Paper to the Cabinet last week outlining a new form of land ownership.

On Tuesday Beeld reported that Minister Tina Joemat-Pettersson had proposed a new empowerment charter for agriculture requiring farmers to sell a 40% share of their farms and land to black shareholders.

In her budget vote last month Joemat-Pettersson also alluded to possible black ownership targets in agriculture. Her comments provoked an angry reaction from commercial farm unions, with which she had previously enjoyed good relations.

Her spokesperson, Priscilla Sehoole, said that the minister had merely said that a process of rethinking the challenges of production on the land and its political economy was critical.

“The process will look at various options and stakeholders will be consulted,” Sehoole said. “Government will release an official statement when finality is reached.”

Joemat-Pettersson told Beeld the new agricultural shares scheme will be discussed in September at the ANC’s interim national conference.

The land reform department would also not be drawn on the new scheme, referring all questions to Joemat-Pettersson’s office.

The original target was for the transfer of 30% of farmland into black hands by 2014, but earlier this year the government admitted that this will not be possible because of an inadequate budget.

The government estimates that less than 6% of land has been transferred to black ownership since 1994.
Some analysts agree that reform is moving at a snail’s pace, but the figure has also been disputed because it takes no account of private land transactions.

The Green Paper that Rural Development Minister Gugile Nkwinti was due to submit to Cabinet at the end of April, outlining his department’s plans, is still under wraps. But Nkwinti told Parliament during his budget vote that his department was considering moving towards a system of “freehold with limited extent” for private farmland.

At the end of last month President Jacob Zuma signalled that the government is looking at a new scheme to drive land reform. “The general view is that the willing-buyer willing-seller model has not worked adequately thus far,” he said.

Zuma promised a more “pragmatic formula” to address South Africa’s land problems, including less “costly ways” of purchasing land and significant changes in the current land redistribution model. He emphasised that all plans will follow the letter of the law and that South Africa will not go the Zimbabwean route.

A week later Public Works Minister Geoff Doidge announced that the controversial Expropriation Bill will be resubmitted to Parliament next January. The Bill was shelved in 2008 after objections that it allows government to expropriate farms in the national interest. Doidge said his department and the land reform departments are redrafting the Bill, which will have to be approved by the Cabinet before being presented to Parliament.

At the time the Bill was shelved the ANC said it believed that there had been insufficient time for its national executive committee and parliamentary caucus to consider it. Public hearings were “far too limited” and the Bill needed to go back for review.

As pressure mounts over the perceived slow pace of reform, many in the ANC believe it is now time to reintroduce the legislation.

Joemat-Pettersson’s proposal has not been met with enthusiasm in commercial farming circles.

“To expect farmers to transfer 40% of their agricultural interest to black shareholders is outrageous and totally unacceptable,” said Transvaal Agricultural Union president Ben Marais.

“We’ve been experiencing difficulty for some time in meeting the minister to discuss agricultural issues. Meetings were postponed and in the last case she didn’t even bother to give notice that she would not be available.”

Marais said organised agriculture had the impression “that she cannot meet us eye to eye because she knows what our reaction would be on this unacceptable and ridiculous plan”.

He said that a 2001 study for the Development Bank indicated that the state and people of colour own more than 56% of South Africa’s land.

Court stands by traditional communities
The Constitutional Court ruled this week that the Communal Land Rights Act—regarded by some traditional communities as “a new apartheid”—is unconstitutional and invalid.

The Act would have given traditional authorities the power to control property owned by families, subcommunities, trusts and communal property associations.

Four communities from Limpopo, Mpumalanga and North West challenged its constitutionality in the North Gauteng High Court, where they succeeded in having 17 subsections declared unconstitutional last October.

The offending subsections provided for the transfer and registration of communal land, the determination of rights by the minister of rural development and land reform and the establishment and composition of land administration committees.

The communities of Kalkfontein, Makuleke, Makgobistad and Dixie argued that the Act violated the Constitution by restoring “apartheid-era tribal units” and reinforcing tribal boundaries created by the architects of apartheid.

The Constitutional Court heard the state’s appeal in March and upheld the high court judgment this week.

Judge Sandile Ngcobo found that the “inescapable conclusion” was that the Act’s provisions substantially affected indigenous law and traditional leadership, areas of concurrent national and provincial competence.

Ngcobo ruled that the Act would have replaced the living indigenous law that regulates the occupation, use and administration of communal land.

He also concluded that Parliament followed incorrect procedure in enacting the law.

The Act would have affected about 21-million people living under traditional leadership, handing administrative control of communally owned land to traditional leaders.

Its original intention was to give rural South Africans security of tenure. But its effect would have been to give traditional leaders much greater authority over their subjects.

The communities argued the Act would have given traditional leaders undemocratic and unprecedented powers and undermined women’s rights and black ownership of land.

“We submit that the evidence shows that, far from securing the applicant communities’ land tenure, the Act actually undermines their tenure and makes it more insecure,” the communities argued in their application.”

The Kalkfontein community feared that the law would have given their chief the power to take over their land.

The Dixie community, bordering the Kruger Park, feared that its valuable land could be sold from under them to developers.

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