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What is going on in Land Reform Policy and Legislation making?- South Africa

The President's panel on land reform and agriculture made 73 recommendations, of which 60 were supported and take to the Inter-Ministerial Committee on Land Reform and Agriculture (the IMC).

This committee committed to meet once a month to process the recommendations that were approved by Cabinet. The work is divided between things that can be done short term; medium term and long term. 

So what are some of the issues being discussed, and for which we can expect policy or legislation soon?

Property Valuation Act

One recommendation was that the functions of the Office of the Valuer-General were not in line with s 25(3) of the Constitution and that the PVA is under review to determine the scope and mandate. The question here is if the OVG is a regulator or an implementing agent for the government. I am hopeful that they will review the process of determining compensation, and will look at studies that argue that a distinction should be drawn between the determination of "value" – done by valuers, also in terms of the PVA, and the determination of "compensation", which incorporates values of justice and equity and that can be performed either by the courts or, for example, a Minister so authorised (which decision can be taken on review in courts).

The Land Court Bill

Land Court Bill is being developed in 2020, to be submitted to Cabinet early 2021. It will argue for a CCMA approach to dispute resolution regarding land and will widen the jurisdiction of the Land Claims Court. It will also ensure that the court has three permanent judges appointed with specialised knowledge on land issues. 

Release of State Land

We have recently seen the state releasing state land for land reform. Some concerns are whether the land is indeed not occupied or under land claims, and how it will be decided who will get the land, and then on what basis (state lease or ownership).

Beneficiary Selection and Land Allocation Policy

This policy was opened up for comments earlier this year, and we are waiting to see if the comments will be included in a final version. This policy is crucial because it will give us an idea of who the government thinks should benefit from land reform, and how beneficiaries will be screened and selected.

Upgrading of Land Tenure Rights Amendment Bill

Based on the Constitutional Court judgment of Rahube, the Bill is currently being amended and debated in the Portfolio Committee. Many people and institutions are unhappy with the piecemeal amendment of the legislation, done without a proper framework as to what will happen on so-called communal land. They are calling for a broader conversation and more comprehensive legislation dealing with these types of land rights. 

Expropriation Bill

Cabinet has approved the Expropriation Bill. The State Law Adviser will probably assent to it in the next week or so, after which it will be tabled in parliament for adoption. This is an essential piece of legislation, as it will finally align expropriation legislation with the Constitution. I will discuss the Bill in more detail later. Still, it is important to note that unlike the 1975 Act, it has a pre-expropriation process envisioning a process of negotiation with the landowner first. Compensation must be "just and equitable" in line with the compensation values of the Constitution, and the role of the courts in the process is stipulated. Possible challenges might be to the definition of "expropriation" (it requires acquisition by the state), clause 12(3) dealing with "nil compensation", the possible vast powers of the executive and the fact that people living in terms of customary law's land rights are not adequately protected. None of these issues will, for now, stand in the way of the Bill being promulgated.

Amendment Bill for amending Section 25 of the Constitution

The committee has convened again and will start with their last round of public participation in the next month. They will then deliberate on the inputs, and come up with a final amendment Bill to table in parliament. This must then be accepted with a 66% majority. It is not sure if the EFF will vote with the ANC on a mere cosmetic amendment (making explicit what is implicit), so it is not sure that the Constitution will be amended in the end.

Other policy frameworks, policies and legislation to keep an eye on (mid-term to long term):

Deeds Transformation Policy and Bill Agrarian Reform Policy Revised White Paper on Land Policy and the Land Redistribution Bill

Land Valuations

Land Compensation Policy

Urban Land Policy

President Ramaphosa also alluded to the possibility of a Land Summit earlier this year (referring to the Institution of Traditional Leaders). Still, there is no clarity on such a summit, or what the contents of such will be. It would be great, Covid dependent of course, if a broader discussion is held once most of the policies and Bills are written, to enable roleplayers to participate meaningfully in the determination of the future of Land Reform. It is essential that we get it right.


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