South Africa: Land reform Green Paper denounced as inadequate

After a wait of two and a half years the Department of Rural Development and Land Reform (the Department) has finally produced the much awaited Green Paper on Land Reform that runs to a total of 11 pages. The first three pages consist of introductory remarks and generalisations concerning land issues that do not say anything that has not been said before and hence fails to add to the critical debate on land reform.

This is particularly disappointing given the abject failure of the current land reform programme and the urgent need for a complete turnaround. This problem is not going to be addressed by propounding a vision for land reform in the form of a 'reconfigured single, coherent four-tier system of land tenure, which ensures that all South Africans, particularly rural blacks, have a reasonable access to land with secure rights, in order to fulfill their basic needs for housing and productive livelihoods' – without detailing how this is to be realised. The same applies in respect of elements of this vision such as clearly defined property rights and effective land use planning and regulatory systems. It is one thing to list these as part of an overall vision for land reform but it is a completely different matter when attempting to spell out plans for the attainment of this vision. This is because the proposals contained in the Green Paper are not linked in any way to this vision.

It is submitted that the new structures proposed in the Green Paper to oversee the land reform process will not be up to the task unless extensively backed up and supported by the Department. But, owing to the lamentable inability to implement existing land reform policies, it appears that the latter is inherently incapable of rendering this type of support.

In addition it appears that the powers conferred on the Land Management Commission (LMC) are unconstitutional in the sense that the latter is empowered to validate or invalidate any title deeds. These are extremely broad powers and, since the LMC will be 'autonomous, but not independent of the Ministry and Department' this means that the Department or Ministry would exercise ultimate control over all ownership of property. This is in clear contravention of the rights to property set out in section 25 of the constitution. In addition, it is highly doubtful that the Commission will be truly autonomous since the minister will be responsible for making all the appointments.

The precise functioning of the Land Rights Management Board (LRMB) and Land Rights Management Committees (LRMC) as well as their relationship with the Department and to each other is not spelt out in the Green Paper. It would appear that the existence of these bodies will merely add another bureaucratic layer to the process that will ultimately result in the types of delays and inefficiencies that plague the current system. To this end the Green Paper does not disclose how the LRMB and the LRMC’s will function in order to avoid this bureaucratisation. This is particularly in the light of admission in the Green Paper that the Organs of State (which includes the Department) lack the capacity to implement legislation and policy.

The proposal that the office of a Land Valuer-General be established could constitute a positive development provided it is effectively implemented. Land valuation has proved to be a weak link in the land reform process and hence the LV-G could play an important role in facilitating valuation rather than placing over-reliance on the willing buyer / willing seller model. However, it is submitted that the role should be restricted to that of facilitation and not the making of a final determination as this would encroach on the ultimate role of the courts and hence would be deemed to be unconstitutional.

However, the main weakness in the Green Paper is that it fails to address adequately the greatest challenge confronting the land reform process viz the lack of tenure security that confronts millions of farm dwellers and those residing on communal lands. The outline in the Green Paper of a four-tier tenure system does not even begin to address this issue. Instead reference is made to the Land Tenure Security Bill 2010 which equally does not attempt to deal with this problem. It is worth noting at this stage that the Bill was heavily criticised by many rural communities and other stakeholders during the belated consultative process earlier this year.

The only novel suggestion concerning tenure security for farm workers and dwellers is that set out in the Land Tenure Security Bill 2010 and takes the form of the establishment of so-called agri-villages. However, the Bill is silent in regard to the precise form that these agri-villages would take. These details are vital because there is the real danger that, in the absence of proper planning and implementation, these villages could end up taking on the characteristics of apartheid-style dumping grounds. The Green Paper is disturbingly silent on this issue.

Land reform is one of the most pressing problems confronting the country. This is especially in order to redress the structural imbalance that has risen through colonial dispossession of land that has been extended through apartheid policies and laws to create a systematic process of denial of rights to land in respect of the black population that was hence based on pure racial discrimination. The government has thus far made certain attempts to address these issues through legislation such as the Labour Tenants Act, the Restitution of Land Rights Act and the Extension of Security of Tenure Act. However, the overall policy of land reform has been an abject failure. This was conceded in the Green Paper where reference is made to a 'total-system failure (TSF)' when it comes to the protection of rights of security of tenure for farm dwellers.

On the other hand, the Green Paper also emphasises the need to enhance food security which at present is almost totally reliant on large scale commercial farming. It goes without saying that commercial farmers are almost exclusively white and hence the racial imbalance needs to be addressed through the development of a small-scale farming sector. This aspect is neither mentioned nor dealt with in the Green Paper.

It can thus be concluded that the Green Paper reflects the inability of the Department to deal successfully with the issue of land reform. The issues are complex and the stakes are extremely high which increases the concern of all roleplayers at the inability of the Department to turn the current situation around. And this is reflected in the Green Paper which adds nothing to the debate. It is hence recommended that the Green Paper be scrapped and that a National Land Reform Summit (NLRS) be convened involving all stakeholders and roleplayers in order to forge a new direction for the land reform process.

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* Mike Cowling is with AFRA Land Rights Legal Unit
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