LAND REFORM: RECENT DEVELOPMENTS
This article draws from several first published in Legalbrief Today, under Policy Watch
The Preservation & Development of Agricultural Land Bill will be tabled in Parliament before the end of this year, according to an explanatory summary gazetted on 11 December – just as South Africa’s month-long builders’ break began, with its annual nationwide exodus to rural and coastal areas. The unusual timing of the summary’s publication notwithstanding, it has confirmed that, once operationalised, the proposed new piece of legislation will apply to all agricultural land in South Africa and bind ‘all organs of state in all spheres of government’.
Empowering the Minister to ‘establish evaluation and classification systems’ for appraising agricultural land and spatially delineating agricultural areas, the Bill also deals with the development of provincial agricultural sector plans; applications for ‘agro-eco-system’ authorisation; a related appeals process; and establishing, operating and maintaining a national agro-eco information system. A media statement on the outcome of the Cabinet meeting at which it was approved notes that – in keeping with ‘constitutional requirements’ – the Bill seeks to ensure a ‘fair and balanced approach’ towards the use of agricultural land and to repeal the 1970 Agricultural Land Act with that in mind. Once in force, it will ensure that only low-potential farmland is made available for ‘non-agricultural uses’.
Meanwhile, in anticipation of parliamentary hearings on the revised Expropriation Bill, the National Assembly’s Public Works & Infrastructure Committee has called for written submissions by 10 February 2021 – twice the length of time normally provided, taking account of festive season holiday commitments. This despite only one clause in the Bill differing from a ‘D’ version of the 2015 Bill eventually withdrawn from Parliament in 2018. Although that version was informed by a robust public participation process in the National Assembly during 2015 and 2016, former President Jacob Zuma’s decision to return it to Parliament in 2017 was based on concerns about the National Council of Provinces’ public consultation process. In his view, the Bill should also have been considered by the National House of Traditional Leaders (NHTL) given its possible implications for communal land. Against that backdrop, the revised Bill has been reopened in its entirety for stakeholder input, having already been sent to the NHTL.
Sub-clauses 12(3) and (4) respectively propose a list of circumstances in which land expropriation for nil compensation could be justifiable; and that, when a court or arbitrator determines the amount of compensation in terms of section 23 of the 1996 Land Reform (Labour Tenants) Act, ‘it may be just and equitable for nil compensation to be paid, having regard to all relevant circumstances’. Otherwise, according to a media statement issued by the inter-ministerial committee on land reform shortly before the revised Bill was tabled in October, it ‘retains unchanged’ the remitted and eventually withdrawn version’s ‘substantive content’.
Once operationalised, the proposed new piece of legislation will become the law of general application required to implement framework legislation envisaged in the draft Constitution 18th Amendment Bill. Seeking to amend section 25 of the Constitution (property) to expressly allow for expropriation without compensation when this is deemed appropriate for land reform purposes, the draft Bill is still being finalised. The National Assembly ad hoc committee responsible was recently granted another extension to the deadline by which it should complete its task. As a result, members now have until 31 March 2021 to process input received during the provincial public hearings, consider any written submissions on the draft Bill and finalise it for tabling.