Is a Land Redistribution Bill on the cards for South Africa?

• 03 February 2022
• 0 Comments
• Agbiz
• Annelize Crosby

At a recent media conference, Minister of Justice and Correctional Services Ronald Lamola indicated that a Land Redistribution Bill was on the cards for South Africa. The High-Level Panel on the Assessment of Key Legislation recommended as far back as 2017 that a National Land Reform Framework Bill was required to provide coherence between redistribution, restitution and tenure and provide a clear framework for redistribution. The panel went as far as drafting a proposed Bill. The Presidential Advisory Panel on Land Reform and Agriculture supported this recommendation and proposed that the Bill should be gazetted and debated in Parliament urgently.

Redistribution is one of the three pillars of land reform in South Africa. Lately, the former Department of Rural Development and Land Reform has added a fourth pillar, namely land development. Section 25(5) of the Constitution gives the mandate for redistribution. The section provides as follows: “The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”  A big debate over the past 20 years has been what the focus of the redistribution programme should be – simply pro-poor as the White Paper on South African Land Policy suggested, aimed at creating a class of black commercial farmers as the Land Distribution for Agricultural Development (LRAD) programme intended, or maybe both? And a critical question that needs to be answered is whether the state ownership of land can be regarded as redistribution at all?

The presidential advisory panel recommended that such a Bill should operationalise ‘equitable access’ and provide a framework for all aspects of land reform; establish guiding principles for redistribution, restitution and tenure with land administration included as the fourth element of land reform; set legal criteria for beneficiary selection; land acquisition and the choice of land for redistribution; to set in place measures to ensure transparency and accountability; enable allocation of secure long-term use and benefit rights, and to provide for alternative dispute resolution.

The proposed National Land Reform Framework Bill contains several land redistribution principles. These include concepts such as reasonable measures to ensure that land is made available on an equitable basis, which means giving priority to people who are landless and poor and an equitable balance between the expressed demand for land for agricultural and non-agricultural purposes, including settlement, as well as multiple uses of land for both commercial and non-commercial purposes.

The proposed Bill also deals with target groups, prioritisation and beneficiary selection. It proposes a focus on women and the very poor. It requires that beneficiary selection happen transparently and should consider the demand for land. A land demand register should be developed. The selection of beneficiaries must be informed by the outcomes of substantial public and broad community engagement. The Bill further proposes that the state must develop a land reform implementation framework for every district municipality, which framework must, amongst other things, reflect the needs for land, the socio-economic profile of people expressing a need for land, an assessment of competing needs and demands for land. Land demand shall guide the acquisition of land.  Such land can then be purchased or expropriated.

We are likely to see a Land Framework Bill this year, with a strong focus on redistribution. It is likely to contain elements of the draft Bill proposed by the high-level panel and endorsed by the presidential advisory panel. It is also likely to incorporate beneficiary selection and land donation policy elements. It may also include expropriation powers for redistribution purposes. Hopefully, it will help curb corruption, improve land delivery, and provide sensible selection criteria for beneficiaries.

 By Annelize Crosby, Agbiz head of Legal Intelligence

annelize@agbiz.co.za

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