Green paper on land reform offers 'no guidance'

If the green paper on land reform is unconstitutional, then the Constitution must be changed, the department of land reform said on Wednesday, in response to claims by the Democratic Alliance that the green paper is unconstitutional.

The spokesperson for the department of rural development, Mtobeli Mxotwa, told the Mail & Guardian that “only people with land are questioning the constitutionality” of the paper, which was presented in Parliament last month, and the minister “will approach Parliament if the Constitution needs changing”.

The Institute for Poverty, Land and Agrarian Studies (Plaas) has also criticised the DA’s suggestion that the paper was unconstitutional.

“Nothing in the green paper suggests the need for a constitutional amendment,” senior researcher at Plaas, Dr Ruth Hall, told the M&G.

“The responses to the green paper have tended to exaggerate the significance of its proposals and resulted in knee jerk reactions to this draft policy,” she said.

However, Plaas said the green paper provides almost “no guidance on any of the crucial questions facing land and agrarian reform in South Africa”, and called it “insubstantial and vague”.
Plaas called the 11-page document a “damp squib” that “defers policy making” to two bodies suggested in the paper.

The DA on Tuesday said the policy document removes the power from the courts’ hands to value and expropriate land, as determined in the Constitution. Two autonomous bodies, that are accountable to the minister and the department of rural development and land reform, will be able to value and expropriate land.

The debate over constitutionality concerns the recommendation in the paper that the land management commission (LMC) and the land valuer-general (LVG) should resolve the land reform issues.

The LVG will value land in cases that it may be expropriated and for rates and taxes purposes. The LMC will audit current land owners and seize property that has been illegally acquired.

The DA’s spokesperson, Lindiwe Mazibuko, said: “Disagreements over land value need to be sorted out in the courts and not by bodies that are accountable to the minister and a political authority.”

She said that the Constitution allows for the state and land owners to approach the courts if they cannot agree on the value of land that is to be expropriated.

She referred to section 25 of the Bill of Rights in chapter two of the Constitution, which states: “Following expropriation, the amount of which and the time and manner of payment of which have either been agreed to by those affected, or decided or approved by a court.”

But Dr Hall says that once the LVG has decided on land value, there is nothing in the green paper that prevents parties from questioning this decision or challenging it in court.

“The problem with the green paper lies in what is not said: It doesn’t say how these institutions should use their new powers, it doesn’t actually clarify what the new policy is,” she said.

Hall said, “It could be that the minister is trying to get the new LVG to try to drive down compensation and pay below-market prices for land the state wants, which is feasible within the ambit of the Constitution. Or it could be that the LVG will pay market-based compensation. We just don’t know the implications of these bodies as they have not been spelled out.”

The policy document describes the LMC as a body that will manage state land and state land agencies. The LMC has the powers to “subpoena anyone to appear before it relating to its landholding interest”.

The LVG will decide on the value of land, in order to speed up the process of land reform as the value of land is often debated. The LVG has the job of “determining fair and consistent land values for rating and taxing purposes; for determining financial compensation in cases of land expropriation and creating a database of valuation information”.

The Free Market Foundation’s Leon Louw said much of what the LMC and LVG will do can already be done.

“Much of what it envisages, such as seizing land acquired fraudulently, is adequately provided for under existing law—there is no need for new, costly, bureaucratic institutions. Most of what is proposed will be much more costly and cumbersome, and create needless uncertainty and risk,” he said.

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