This article appeared in the 29 July edition of Legalbrief Today, under Policy Watch

While the presidential advisory panel on land reform and agriculture report released recently lists situations in which land could be targeted for expropriation without compensation, it is envisaged that the revised Expropriation Bill will provide the required level of detail on each. Against that backdrop – and building on sub-clause 12(3) of the draft Bill released last year for comment – the report refers to ‘land already occupied and used by labour tenants and former labour tenants’; informal settlements; ‘inner city buildings with absentee landlords’; abandoned land; ‘hopelessly indebted land’; land held purely for speculative purposes; unutilised land held by state entities; land obtained through criminal activity; and farm equity schemes.

Noting an ‘emerging interest’ among private land owners in ‘goodwill’ donations, the report recommends that this, too, be considered a form of expropriation without compensation. With that in mind, a voluntary land donations policy is being drafted with input from National Treasury, the Department of Trade & Industry and the Department of Agriculture, Land Reform & Rural Development. Tax exemptions and the policy’s ‘correlation’ with empowerment legislation are apparently the only matters still requiring attention.

Against that backdrop, regarding possible amendments to section 25 of the Constitution the report proposes a new sub-section (2)(c), requiring Parliament to ‘enact legislation determining instances that warrant expropriation without compensation for purposes of land reform envisaged in section 25(8)’. This appears to be a reference to the revised Expropriation Bill. The report also alludes to a provision in the Constitution itself ‘strengthening’ measures already in place for protecting farm dwellers from ‘inhumane and widescale evictions’. Given that a moratorium on land evictions would undermine section 25(1) provisions protecting land owners from the arbitrary deprivation of property, this appears to have been ruled out. Interestingly, the report also alludes to ‘myriad … shortcomings’ in a draft Regulation of Agricultural Land Holdings Bill released in March 2017 for comment. These include its focus on agricultural land, ‘the concept of land ceilings’ and related proposals for the redistribution of any excess land. ‘Further studies’ are recommended in this regard.

Several other pieces of urgently required new legislation are mentioned in the report: a National Land Reform Framework Bill or Land Redistribution Bill (among other things prioritising ‘competing needs for land’); a Land Records Bill (to formalise and record off-register property); a Restitution of Land Rights (General) Amendment Bill and Restitution of Land Rights (Judicial) Amendment Bill (to address what appear to be the Act’s numerous shortcomings); a Protection of Informal Land Rights Bill (also dealing with rights under customary law); and a Land Court Bill (to strengthen the adjudication process in the context of disputes over land restitution, distribution and expropriation). As Legalbrief Today has already reported, Justice & Correctional Services Minister Ronald Lamola’s recent political overview of the work of his two departments prioritised the Land Court Bill, which is expected to be tabled in Parliament ‘soon’. 

Given that, according to introductory remarks from advisory panel chair Vuyokazi Mahlati, ‘the people have voiced their impatience’ and that prevailing inequalities ‘are threatening peace and stability’, the length of time likely to be taken drafting, processing and implementing all this legislation is worrying. Other recommendations in the report point to the need for urgent attention to a raft of equally demanding imperatives, including agrarian and social reform. This is noting that if ‘social issues’ directly impacting on the quality of life of most South Africans are not addressed, the land reform programme will fail. However, beyond somewhat superficially referring to a ‘land reform fund’ and its possible ‘sources of capital’, the report is largely silent on the practicalities of how the entire ambitious programme will be financed. It is nevertheless made very clear that – as ‘one mechanism’ for enabling land reform – expropriation without compensation will not, on its own, release land on the scale required.