Provision of Land & Assistance Amendment Bill [B40-2008]: public hearings & Minister's response

Agriculture, Forestry and Fisheries

19 August 2008
Chairperson: Mr M R Mohlaloga
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Meeting Summary

The Committee listened to submissions from the Institute for Constitutional and Labour Law Studies (ICL&LS), the National African Farmers Union (NAFU), AGRI SA and Mr Geoff Lumsden, on the Provision of Land and Assistance Amendment Bill. The Minister responded to some of these concerns.

The ICL&LS submitted that the Bill was not compliant with the Constitution and had the potential to result in unintended consequences, by excluding persons who, at present, were not regarded as “historically disadvantaged persons” but who might in the future fall into this category. Their comments were mainly based on the provisions of the Constitution, and the submission that the effect of the Bill would be to take away the rights of those citizens who could, under the provisions of the current legislation, approach the Minister. The Institute was opposed to attempts to validate land reform through any process bringing about fresh discrimination against current lawful land owners and occupiers and their dependants. It argued that cognisance should be taken of modern day micro and macro economic principles, the importance of sustainable investor relations, sustainability of full scale economic growth, the constitutional protection of rights, especially minority rights. It argued that there was already existing legislation to deal with the ideals of property and land reform. It asked that the entire Bill be rejected.

National African Farmers Union (NAFU) affirmed its commitment to dialogue, and supported the Bill, which it said advanced land reform through redistribution, land restitution and tenure reform, and would thus contribute to economic development by giving people the opportunity of engaging in productive land use. NAFU supported the Bill, saw it as constitutionally compliant, and a fine tool for a peaceful transitional arrangement, that would enable the agricultural sector to attract international investment and local investment. The Bill would assist the DLA in creating a legal framework to enable meaningful partnerships with private sector unions across the colour lines and civil society. There were legal safeguards built into other legislation, that would ensure it served its intended purposes without any adverse results. The NAFU submitted that agriculture should not be perceived on racial lines. However, it was concerned by the failure of government to adequately resource the Department, noting that the low budgets contributed to its inability to achieve its targets and reforms. It proposed that the budgets of the Department should be raised by at least 7% of Gross Domestic Product in the next financial year.

AGRI SA submitted that whilst it supported the principle of government acquiring going concerns, rather that land only, as envisaged by the Bill, there were still concerns as to how this would be achieved. The concerns related also to the debate on expropriation being conducted still in Parliament. The Expropriation Bill was creating huge uncertainty, negativity and loss of investor confidence, and it was feared that this Bill would lead to the situation where both farms and the moveable assets would simply be targeted for acquisition and expropriation at a price and manner of payment which could be very unfavourable for landowners. It suggested that stringent measures be put in place to ensure that property acquired by the State did not sit in its hands, but was passed on timeously, and in good condition, to the ultimate beneficiaries, and that there should be provision that it be properly cared for pending the final transfer.

Mr Geoff Lumsden spoke of his own experiences in Zimbabwe, stating that he had been convinced in Zimbabwe that the Commercial Farmers Union had not done enough to ensure transfer to formerly disadvantaged farmers. Whilst there was a need, therefore, in South Africa, to put mechanisms in place that would make it possible to expedite land redistribution, it was important at the same time to ensure that land reform would be conducted in a fair manner, and would avoid a situation such as had arisen in Zimbabwe, and he therefore appealed that the mechanisms must be just and reasonable, to ensure a prosperous future for all South Africans. 

The Committee noted that it did not necessarily agree that there were potential Constitutional difficulties with the Bill, and stressed that the Bill was intended as part of the process of addressing historical injustices and inequalities in land distribution. Several questions were asked of the ICL&LS, and it was asked to deal specifically with assertions on sections 9(2); 25 (4) and 25(7) and the Bill of Rights. Several more questions were asked for clarification, and the Committee requested those making submissions to propose amendments that they felt would cater better for the process. They agreed with some of the concerns raised and said that these would be taken into account. The Department and Minister responded that the land reform process would be informed by Constitutional imperatives, and hoped that land redistribution would continue to benefit from the spirit of goodwill between commercial farmers and emerging farmers through strategic public and private partnerships.

 

Meeting report

Provision of Land and Assistance Amendment Bill (PLAAB or the Bill) : Public Hearings
Institute for Constitutional and Labour Law Studies (ICL & LS): Submission

Mr Johan Kruger, Executive Director, ICL&LS submitted the Institute’s comments on the Amendment Bill. The Institute was grateful for the opportunity to come before the Committee with its comments on the Bill. Mr Kruger explained that the Institute was a section 21 company that had been established and that its aims and mandate included to study, investigate and comment upon issues of constitutional and labour law importance in South Africa. The Institute was therefore taking part in the public hearings to raise certain constitutional issues. It was a non-partisan association that sought to promote and uphold the Constitution’s values and its importance within the broader South African community.

Mr Kruger noted that the comments were, firstly, founded on consideration and implementation of all relevant provisions of the Constitution of the Republic of South Africa, and based on the studies it had done into the Land Assistance Act (LAA) of 1993. The Institute sought to protect the freedoms and the rights entrenched in the Constitution and were opposed to attempts to validate land reform through any process bringing about fresh discrimination against current lawful land owners, occupiers or their dependants. It supported in principle legislation that would stimulate reform, but thought that cognisance should be taken of modern day micro and macro economic principles, the importance of sustainable investor relations, particularly with foreign investors, the sustainability of full scale economic growth within the Republic; protection of the Constitutional rights of all citizens, accountability by the National Government in balancing competing interests and rights of all citizens, and protection of the rights of minority groups in South Africa.

The Institute was opposed to the apparent fast-track manner in which the Department and Parliament wanted to amend the principal Act. It currently provided land and assistance to a far broader group of persons than the Bill would reach. If the Bill was to be adopted, all persons who could currently or in future qualify for land provision, but who were not “historically disadvantaged” would be excluded. It was necessary to consider why this category of people was to be excluded. Such exclusion of persons was not only unfortunate but without merit and potentially unconstitutional. It appeared that the Amendment Bill was being introduced not only in an attempt to progress land reform but also to disseminate the intention of Parliament that property and assistance would be provided to historically disadvantaged people only, to the express exclusion and detriment of others not regarded as historically disadvantaged. This intention was untenable. If the Bill was adopted, it would pay mere lip service to the protection of the rights and interests of minority groupings.

The Institute said that the insertion of a new Section 1A into the Act was necessary. However, this carried the possibility that persons who already owned land also qualified for assistance in terms of the Act. Section 10(2)(a) of the Act, which said that a person who could be granted an advance or a subsidy was a person who had no or limited access to land, to better his position. Therefore even historically disadvantaged people who already owned land but wished to gain additional land would qualify for assistance. The Institute believed that this intention was regrettable, and could disadvantage those with no land at all. Persons who already had land should not be at the front of the queue.

Clause 10 was not supported by the Institute. Firstly, it submitted that sufficient and already far-reaching land reform legislation was in existence and the heading of the Clause, which included “Property for land reform purposes” was in direct contradiction to the title of the Act, which was expressly limited to “provision of land and assistance”. The Institute had difficulty in understanding the necessity for acquisition of movable property or business or economic enterprise as a going concern to fulfil “land reform”. It seemed that the Bill did not intend to advance and protect the ideals and rights enshrined in Section 9(1) of the Constitution, or section 25(6) of the Constitution, but instead aimed to limit the rights of persons who were not “historically disadvantaged” in a manner that was unreasonable and unjustifiable in an open and democratic society based on human dignity, equality and freedom.

Mr Kruger pointed out that already there was other far-reaching legislation, in terms of which the ideals of land and / or property reform were being addressed. No law, except as provided for in the Constitution, could limit any right entrenched in the Bill of Rights. The Institute therefore called upon the Committee to reconsider the entire Bill and reject it.

National African Farmers Union (NAFU): Submission
Mr Motsepe Matlala, representative of the National African Farmers Union, addressed the Committee, reaffirming the NAFU commitment to dialogue as forerunner to decision-making. NAFU recorded its full support for the Amendment Bill and saw it as constitutionally compliant and fundamental to transformational objectives of the South Africa. However, it did sound a note of caution, saying that all South Africans of every race had come a long way in making contributions to redress the past. The basis of the Bill was land reform, and this had three aspects of redistribution, land restitution, and tenure reform. The latter must be seen in the context of reform by contributing to economic development, both by giving people the opportunity to engage in productive land use, and by increasing employment opportunities through encouraging greater investment. Investment in agriculture was not what it should be. The basis of land reform was that all those marginalised and previously excluded (not just disadvantaged) black communities should be able to acquire ownership of land and participate in the total value change of the economy, whether in agriculture or other sectors.  NAFU felt that such requests were quite reasonable, that they should be granted by a smooth transitional and transformative arrangement, that would enable the agricultural sector to lock into international and local investment. This had not happened in the past 15 years because government had not previously succeeded in truly affirming formerly-excluded communities; which was the reason for mass action. NAFU believed that there must be a firm yet reasoned process.
NAFU pointed out that government was envisaging agricultural development through land reform that would allow for a diverse landscape of small, medium and large farms, which should promote both efficiency and equity through a combined agrarian and industrial strategy, in which land reform sparked growth. Therefore it suggested that the new Section 1A being inserted by the Bill should include the phrase “promote economic growth and empowerment”. Both commercial and developing sectors deserved to be assisted. NAFU was not promoting segregation or any kind of discrimination. NAFU expressly did not want to hear of “commercial” being interpreted as “white” or “minority” because all South Africans deserved to be treated equally. NAFU was particularly concerned with the extremely slow pace of land reform, because 14 years after the new democratic order there had still been no qualitative and quantitative reform to meet the 30% - by-2014 target. It saw this Bill as key to the achievement of the country’s targets, as a means to give effect to the 2005 National Land Summit and as promoting an active role for government. It would also enable implementation of the recently revised agricultural sector plan, particularly the area of equitable access.

It also welcomed the proposal for discussion of the future of agriculture, as proposed at Polokwane in 2008. All farmers should be allowed to discuss their future, and let lawyers do their work in the courts. This Bill was seen as a framework for the Department of Land Affairs (DLA) to enable meaningful partnerships with private sector unions across the colour line and civil society, who, together, could bring the expertise, resources, and infrastructure needed for sustainable agrarian reform in the Republic.

NAFU noted the debate around clause 10(1)(b) of the Bill, which allowed for the Minister to acquire property on such terms as he/she could determine. Whilst this debate was healthy in the context of a democratic society it was not to be used to retain the status quo. It was important to learn to address the fears of others, around economics and growth potential, without apologies. NAFU saw this clause as a tool to expedite land reform, if used wisely. It pointed to the safeguards built in and was confident that this power would serve its intended purpose. Opponents of the Bill merely argued about the legality of the sections and definitions, but not about the principles of expropriation, which both justice and equity demanded should be used for greater access of public farmers to land. Many progressive supporters of change had begun to question the logic of market-led land reforms in a society so polarised by inequality and lack of access to resources. There should also be a mechanism to deal with exorbitant land prices that were tending to hold the land reform process to ransom. This issue had nothing to do with colour or race.

The resolutions of the Land Summit of 2005 had been very clear on the desirability of well-targeted state interventions in order to expedite land reform in South Africa. Current measures had not been able to fast-track reform. There was a need to speed up settlement of difficult rural claims so that current land owners and the beneficiaries could move on with their lives. ‘Land owners’ did not mean ‘white farmers’ but was an all embracing term to include every owner, including government. There was a collective responsibility to change the image of agriculture. Farmers must be seen primarily as the food producers of the nation, and accepted for their skills. 

NAFU supported the objects of the Bill, pointing out that in the past land had been transferred without meaningful support and assistance to the beneficiary. However, it was somewhat concerned at the indifference of government to resource the DLA adequately. The Department itself could not be blamed if they had not been given an adequate budget. The Freedom Charter contained some good resolutions, as did the Heads of State in Africa in 1992, but agriculture was poorly resourced, and it was feared that it would head the same route as its Northern neighbours. Government was not taking agriculture seriously. NAFU proposed that the budgets of the DLA should be raised by at least 7% of Gross Domestic Product (GDP) to avoid a “small revolution of the future” if the poor were forced into other actions.

Discussion
Mr S Abram (ANC) said that he had found there to be some problematic misconceptions of the term “minorities” in the presentation by ICL&LS. He thought that it was sufficient simply to refer to South Africans, without making reference to race. He suggested that there was a need for a paradigm shift. There was a need to look at the total land ownership scenario back to colonial days. Land ownership clearly then did vest in the “favoured” people – namely, the white people. However, South Africa was now in a new era. Mr Matlala was quite correct when he had pointed out that race was irrelevant. Of prime importance was agriculture, food security, productivity and how these could be guaranteed and enhanced. He enquired whether the Institute was referring to “white” people when it referred to “minority”. He pointed out that historically all land ownership patterns had been skewed. There was a need to change this. The ownership landscape would change in a democratic order simply because of population demographics.

Mr Abram indicated that the comments that the Institute had made were based on the draft Bill that had been published by the DLA for public comment, and that Clause 1A(a)(i) had been eliminated from the current Bill.

Mr Abram asked whether the Institute did not see a need to provide land as well as assistance to those who were previously denied access in order to address the imbalances of the past.  Section 25 of the Constitution also required the State to take reasonable legislative and other measures to foster conditions that would enable citizens to gain access to land on an equitable basis. He enquired if the Institute had any submissions on the version of the Bill now before the Committee.

Mr Abram noted that South Africans had a duty to correct what was previously wrong in the country. One of the problems with the principal Act was that it had only allowed for the purchase of immovable property, but not of movable property. There had been many cases where farms had been purchased by the State, but the equipment necessary for the running of that farm could not be purchased, and therefore had to be auctioned off by the previous owner. He asked if the Institute did not agree that it was a positive move under this Bill to enable the State to acquire a going concern, so that the people that were the targeted beneficiaries could be given the necessary assistance and skills to be able to run that enterprise. He asked if the Institute did not see it necessary to help South Africans to enter into agriculture and farming by providing them with land and assistance


The Chairperson remarked on the constitutional angle taken by the ICL&LS in its submissions. He requested the Institute to provide an interpretation of sections 9(2); 25(4) and 25(7) of the Constitution, and to locate the Bill in terms of constitutional analysis. (These questions were dealt with during the other answers by Mr Kruger)

Mr Kruger responded to Mr Abram by affirming the Institute’s support for land reform. He stated, however, that land reform, like any other process, must pass Constitutional muster. The Institute and others should react and use the opportunities provided by Parliament and lawmakers to point out where unconstitutionality could arise. He agreed with most of what had been said by Mr Matlala, but noted that revolutionary action would be unconstitutional. The Institute had not said that the Bill was unconstitutional, but had been saying that it might be unconstitutional in the future. He argued that the current Act made no distinction in terms of race or colour, and any person could approach the Minister for assistance. The Bill would limit that assistance to the category of “historically disadvantaged persons”. That potentially could be unconstitutional because in future once the Bill became the law. Potentially, in ten or fifteen years, those who were not currently regarded as ‘historically disadvantaged persons’ might be disadvantaged persons. It was important that the Bill should pass all scrutiny in terms of its constitutionality

Adv S Holomisa (ANC) wanted to know what minority groups were and if he had understood the Institute’s submission correctly to be saying that the Bill excluded “historically advantaged” persons. He asked, if so, whether land reform should proceed by facilitating the acquisition of land by the “historically advantaged” before one had even finished with dealing with those who were historically disadvantaged”. He referred to the comments on the powers of the Minister and asked how the Institute believed that land reform would be sustainable if assistance was not provided to the new beneficiaries. He asked what the point would be in acquiring a farm if the business that came out of that farm was not acquired at the same time.

Adv Holomisa directed a question to NAFU on the question of exorbitant land prices, and asked how NAFU determined that a price was exorbitant, and the manner by which the market affected land prices, and how this would in turn delay land reform.

Mr Matlala responded that, speaking as a farmer and not as an expert land valuer, it was a historical fact that agricultural land had never been accorded the same treatment as other land schemes for urban development. The consideration of agricultural land with reference to market prices was a new development. Farmers, however, were also business people and so it was hardly surprising that the land prices had risen in response to rising demand. The problem was the lack of a mechanism to deal with this. It was important to have a new law that addressed this issue. Since there was a matter before the Constitutional Court on land pricing, it would be advisable to await its ruling on the matter. In order that black farmers could enter the mainstream of agriculture there would need to be a balance achieved between commercial interests and the objective of transformation. The tendency to explode land prices to an unaffordable level was unacceptable and problematic, which is why government had a case before the Constitutional Court.

Mr D Dlali (ANC) expressed some doubt about whether the Institute was non-partisan. He noted that when it had previously appeared before the Committee, the Institute had stated that it was “established by solidarity”, which suggested that it was not non-partisan. He asked the Institute to address the Committee further on its submissions under Section 25(4)(a) of the Constitution, considered against their submission also that it was opposed to attempts to validate land reform through any process that brought about fresh discrimination against lawful current landowners and /or occupiers and their dependants. He also asked for further comment on the submission regarding the accountability of national government, with specific reference to the words “accountability” and “balancing”. The Institute raised some interesting points which he believed should be aligned also with Section 7 of the Constitution.

Mr Kruger responded by saying that the position occupied by government carried great responsibility and it was required to balance rights of the previously advantaged against the rights of previously disadvantaged people. It was necessary therefore to balance the Bill with the Constitution to ensure that some people did not have rights taken away without justification.

Mr Dlali also wanted to understand the Institution’s submissions that referred to “the exclusion of a large category of people”. He thought that all research clearly indicated that the majority of South Africans did not own land, that land was owned by a minority of white commercial farmers, and requested clarity on what suggestions the Institute would have for amending the Bill.

Dr A van Niekerk (DA) said that the statistics claiming that 80% of land in South Africa was held by a minority of white commercial farmers could be misleading. He observed that in many countries in the world it would doubtless be found, in respect of agriculture, that a minority grouping owned the majority of the land. It was not so important to play around with figures; issues such as food security were important. 

Mr Dlali asked NAFU to expand upon its comments that the government had had apologetic tendencies. He wanted to know what these tendencies were.

Mr Matlala responded that prior to establishment of the democratic government in 1994, black farmers had not been subsidised by the State. It was important to show a clear break away from past tendencies, because of the Constitution and the new dispensation.  It was now possible for black South Africans to be subsidised. The “apologetic tendencies” of government were based on the fact that the cut-off date for claims and restitution was, according to NAFU and its farmers, unreasonable. In Japan similar claims were allowed to be lodged over a 50-year period, compared to the short time frames in South Africa, of only three years. The cut-off date for claims had been premature, in view of the impact of apartheid which was continuing, as evidenced by poverty and illiteracy, and such a short cut-off time should not have been put in place. The Land Summit had made some telling recommendations, and NAFU did not think that the country’s law makers had reflected on them. Expropriation, for instance, should have been discussed ten years ago already.

Mr Dlali requested NAFU to clarify what had been meant by the submission that there was a lot of resistance to the Bill but that there were safeguards in the law.

Mr Matlala responded that the Union was aware of the fact there had been a lot of resistance to the Bill, as well as submissions against the Expropriation Bill. It was also aware that there were other people who misunderstood what the Bill was trying to achieve. NAFU was essentially saying that certain resolutions made at Polokwane, during a meeting of farmers, had been similar to submissions made here. All farmers, of all races, should work together with the DLA and the Minister to map out their future. NAFU thought that the resistance to the Bill should be defeated as a matter of urgency, and matters should proceed to a resolution, instead of trying to find some sophisticated mechanism that would do nothing but preserve the status quo. Experts in the field should not stop transformation. It was important for farmers to talk and agree about what they wanted. There were already safeguards against abuse in the land reform process. The problem lay rather in the attitudes of those who did not want the policy to change. All South Africans should be united before the international community. Safeguards in the Constitution had been quoted by Mr Dlali and Mr Holomisa, including Sections 25 to 29 and the Bill of Rights. It was shocking that there were still people who continued to say that the land reform process was wrong.

Mr Dlali asked NAFU to clarify their reservations about the budget allocated to the DLA. He wanted to know whether the Union felt that the DLA would be incapacitated from implementing the Bill if their budget was not increased.

Mr Matlala responded that NAFU was of the view that if the objects of the Bill were to be achieved, then the current budget would have to be increased with immediate effect. Over the past twelve years, the DLA’s budget had not been very high, yet the Department had been continuously criticised over its lack of capacity to implement. If the Department was effectively resourced, it would be able to enter the market and acquire the necessary skills to attain this capacity. NAFU argued that the government and Parliament had not taken this Department very seriously. If one Department could get R40 billion compared to only R4 billion allocated to land and agriculture, then there was not much that could be achieved. It was necessary to make a plan for commercial farmers and small-scale farmers. The Maputo Protocol recommended a 10% increase, but NAFU was asking for 7% to be implemented in November of this year.

Ms B Thomson (ANC) had been of the view that the Bill would partly assist government with land reform, and that land reform was one of the best and most peaceful tools chosen to address the imbalances of the past. She wanted the Institute to suggest what other tools it thought would best fit the need to address these past imbalances.

Mr Kruger responded that it was a difficult task for government, but it was still necessary to evaluate whether the Bill was rational or not, and to look at whether the same objectives would not be attained if the limitation on previously disadvantaged persons was not brought into being. If the same objectives could be reached without that limitation, then he felt it would be better to bypass a potentially dangerous and discriminatory provision based on race.

Dr Van Niekerk asked Mr Kruger to explain the submission about those with limited access to land, as contained in paragraph 15 of his written submission. He could not find any references to this effect in the Bill and wondered if this was something that Mr Kruger had himself deduced. The Minister had discretion in applying the contents of the legislation.

Ms C Nkuna (ANC) asked the Institute whether it was able to read between the lines to avoid situations that might lead people to the Constitutional Court. She also requested what proposals the Institute could make to ensure that the Constitutional issues were being dealt with, given that it had, by its appearance before the Committee, shown willing to assist it.

Ms Nkuna referred to NAFU’s proposal for a budgetary increment of 7% of GDP, and enquired if this was the maximum percentage by which it suggested that the budget be raised. She also pointed out that the State had experienced certain problems in the land reform process such as the issue of areas that were not marked and beneficiaries who could not be traced. She requested assistance with such problems, since these were the major contributory factors to the delay in land reform.

Mr Matlala reiterated his response to Mr Dlali on the budget. In respect of the problems cited, he felt that the Department would be better equipped to deal with the issue of missing beneficiaries.

AGRI SA: Submission
Ms Annelize Crosby, Parliamentary Liaison Officer, AGRI-SA submitted that land reform was no longer just a question of equity but had actually become of practical importance. Because of the declining white population, including declining numbers of farmers in that population, as well as the food price and food security crisis internationally, it had become important to establish a class of successful new black farmers in South Africa. Agri SA believed that the chances of black farmers to succeed would be enhanced if the State was able to acquire going concerns and movable assets and shares in existing enterprises, as opposed to simply making land available to them, as was the case at present. Therefore it supported this principle in the Bill.

There were some concerns, however, arising from the debate on the Expropriation Bill. Ms Crosby explained that this debate had triggered a lot of fears amongst the white farming community, and because of that there was now also a fear that the extension of the Minister’s powers by this Bill to acquire going concerns and movable assets would also extend the power to expropriate. Farmers were worried that expanding expropriation provisions would lead to a situation in which current land owners would have their land expropriated under conditions unfavourable to them. The other concern was the issue of the management of removable assets in the interim. She said that it appeared to be envisaged that the State would acquire land, but that it would not be immediately transferred to the beneficiaries, meaning that there would be an interim period in which movable property could be damaged or lost. It was important to have some measures in place to ensure that these assets were properly cared for during that interim period. Mechanisms could be built into the Bill, or if necessary in regulations, to protect movable assets from being sold off or damaged to allow the beneficiaries to acquire the full benefit on eventual transfer.

Agri SA was in favour of the land acquisition and land reform strategy. It was understood that the State would acquire land under its own name initially, but Agri SA felt that in the long-term this should not be case. Land and assets should be transferred to the beneficiaries as soon as possible.

Ms Crosby noted that Members had asked what other questions were available for land reform, in expropriation was not seen as suitable for land redistribution purposes. Agri-SA suggested that the Area Based Planning and the Area Based Approach to land planning, which were now being introduced by the DLA as ways of organising agriculture, carried a lot of potential to realise the objectives of land reform. Under existing legislation, the Minister also had the power to expropriate in terms of the Restitution Act. The Minister of Housing also had similar power in terms of the Housing Act. Therefore there was scope in current legislation for land reform, including the use of expropriation in certain specific circumstances. In the case of redistribution, Agri SA preferred the approach of strategic partnerships, rather than expropriation, on the basis of area-based planning to take land reform forward.
 
Geoff Lumsden: Submission
Mr Geoff Lumsden made an appeal to the Committee in his capacity as a concerned citizen of the Republic. He described himself as a white African who grew up in Zimbabwe and had spent most of his adult life in South Africa. He was brought up on a farm and held a degree in Agriculture. The political and economic disparities in South Africa and Zimbabwe had deeply affected him. During the 1970s ‘bush war’ in Zimbabwe he had been a conscientious objector, and had entered a South African university to avoid conscription into the Rhodesian army.  He personally felt that black people had been unfairly treated by the white regime. He had assumed responsibility over the family farm in Zimbabwe after his father’s death in the early 1980s. During the land seizures that took place in Zimbabwe, he constantly appealed to his colleagues in the Commercial Farmers Union (CFU) to address what he described as the appalling working conditions of many farm workers but was met with stubbornness and resistance. However, in August 2003, his family farm had been seized by ‘agents of the new regime’.  Mr Lumsden felt that the behaviour of the Smith regime had led in part, to the subsequent disorderly acquisition of their family farm by the new government, and he pleaded that a similar situation must be avoided in South Africa.  It was his belief that that there was a just and reasonable way to act, which could result in a happy and prosperous future. It was also unfortunate that there were equally other ways to act, which would reap a lasting legacy of despair. He feared that South Africa could inadvertently choose this course. There was a need, therefore, to adopt a very clearly defined approach in dealing with land redistribution. He was concerned that the Bill would not adequately facilitate this approach. There was a need to put more mechanisms in place that would make it possible to expedite land redistribution, and at the same time make it almost impossible for this to happen in an unfair or incorrect manner.

Discussion
Mr A Nel (DA) stated that, for the record, the Committee was not opposed to the Bill in principle, because it was necessary to achieve most of what was contained in it. He was not sure that there was potential unconstitutionality, as suggested by earlier submissions. However, he had previously commented on the sensitivity of the matters, and he thought that there was a need to be informed about the progress of the Expropriation Bill. He wondered whether the Bill should not include clauses or provisions that would give more certainty as to how the Minister would handle clause 10(1)(b), and connect this to Section 25 of the Constitution, to explain how compensation would be dealt with.

Adv Holomisa responded that if there was anything done by the Minister, he or she would be guided by the provisions of Section 25 of the Constitution, which spoke of the need for redress as well as equity.

Adv Holomisa asked Ms Crosby whether in any event it would not follow that expropriation might be used as a last resort when there could be no agreement between State and landowner in respect of land reform.  He asked why would Agri SA want to oppose a Bill that sought to promote rapid land reform, by seeking to introduce a potential impasse where no agreement existed between the State and landowners, and what mechanism could be used instead. He pointed out that if the Minister decided to expropriate, the aggrieved party had the right to approach the Court.

Mr Dlali commented that it seemed that Agri-SA was focused more on the Expropriation Act than this Bill, and wondered if this was how farmers themselves felt or if this was just Agri SA’s own opinion. He asked how the State could be expected to redress imbalances if it could not become a large landowner. He referred to the earlier issue of exorbitant land prices and pointed out that ownership of land by the State could address those concerns by allowing its intervention on market forces.

Ms Crosby clarified that Agri-SA was not saying that the State should not take hold of the land, but was saying that it should not be held by the State over a long period of time, but should be conveyed to beneficiaries. Uncertainties that had arisen as a result of the expropriation issues had delayed investment decisions in the farming industry, and this had had a major impact on the country’s economic outlook. Studies conducted by the Free Market Foundation were available to show the impact of uncertainty as a direct threat to investment. These studies established a link between the security of property rights and investment opportunities and standard of living in various countries.

Mr Dlali (ANC) asked Agri-SA to explain what was meant by ‘conditions’ before beneficiaries could be given title over land. He asked if these would be economic conditions, or were related to the nature of the skills required.

Mr Dlali (ANC) asked Mr Lumsden in what capacity he had made his submissions to the Committee. He thought that the problems in Zimbabwe had arisen because of the implementation of the land policy. The entire process was not incorrect, but implementation had been problematic. Zimbabwe’s policy was itself a benchmark that South Africa was still a long way from achieving. The current pace of land reform was highly unsatisfactory, as evidenced by a report on foreign land ownership that was “gathering dust somewhere:, and it would be impossible to achieve proper transformation at the current rate of progress. Whilst the Committee sympathised with Mr Lumsden’s experiences, that alone was not sufficient to persuade Parliament to scrap the Bill. The DA representative had affirmed his support for the Bill. The Committee would have liked to hear Mr Lumsden deal with specific provisions in the Bill, other than merely expressing concerns around clause 10, which dealt with acquisition of movable property.

Ms Lulu Xingwana, Minister of Agriculture, responded to Mr Dlali that the report on foreign land ownership was not “gathering dust somewhere”, but that there was a draft policy under review by an inter-departmental task force. A draft of legislation had been drawn, and if there was time, this might still be passed this year.

Mr N Singh (IFP) stated the principle of the Bill and its desirability was generally supported. He wanted to know if, in saying that land should be acquired for economic growth, the presenters were suggesting that this be restricted only to land for agricultural purposes, or meant land that could be acquired for any other purposes.

Mr Singh noted, with regard to the issue about the State holding land, that it was important to have a time frame in place. The State had a reciprocal obligation to ensure that it did not put farmers into a ‘debt trap’.  If an enterprise was acquired, it had to be profitable and viable, and be in this condition at the time that it was passed to the beneficiary. Whilst this was not the forum to discuss the Expropriation Bill, it was necessary to accept that whatever happened to that Bill would have an impact to some extent on the current Bill.

Ms Crosby responded that this Bill would also, according to her interpretation, allow land to be acquired for any other purpose. Agri-SA agreed with the need for time frames, but did not have any specific proposals in terms of what that wording should be.

Mr Abram asked Mr Lumsden, whether he was suggesting that the Bill should proceed, or not.

Mr Abram noted that, according to the Memorandum on the Objects of the Bill, organisations in agriculture were consulted on the Bill. He asked if Ms Crosby was saying that clause 6 was inserted in the Bill after those consultations. He noted that, even if this was so, the principle was to be found already in the Expropriation legislation, and was nothing new. He asked if Agri-SA had any specific practical suggestion with regards to the expropriation clause and the mechanism by which the protection of assets could be achieved during the interim period. He explained that what the legislature was trying to do in drafting this Bill was to give effect to the State’s land and related reform obligations under Section 25 of the Constitution, to contribute to poverty alleviation and economic growth.

Ms Crosby responded that Agri SA did not believe that the Expropriation Bill was in line with Section 25 of the Constitution as suggested by Adv Holomisa. She said that the right to approach the Court was subject to certain limitations that would make it impossible, at times, to challenge an expropriation. The strong emphasis on compensation that could be less than market value was the main concern of Agri-SA to the Expropriation Bill, especially since the power to determine compensation would be exercised by the Executive and would not be subject to judicial review. Within the area of redistribution, Agri SA felt that there were better options than expropriation, and suggested the area planning approach and partnerships with the private sector would be a more ideal route, since there was still a lot of land that was available on the market, and there were possibilities of coming to a fair agreement on price. Although there were practical problems at present with valuations, if these could be dealt with it would go a long way towards arriving at fair prices. Anything that would go towards addressing the fears in the farming community around expropriation would be of great assistance.

The Minister of Agriculture took note of the concerns that had been raised by NAFU and remarked that the submissions had assisted the Department to look at the gaps in the Bill. The Department would also address the fears of the white farming community. The Minister indicated to Agri-SA that the Department accepted the importance of public/private partnerships and had already started to work through strategic partnerships between commercial farmers and emerging farmers, and initiating skills transfer. It was hoped that this programme would be fast-tracked through the Bill.  There was a lot of goodwill amongst commercial farmers who wanted to support the government’s land reform programme. The importance of skills transfer was very important to the Department. She noted that just as Zimbabwe was an independent and sovereign State with its own laws and Constitution, so too was South Africa, and whatever was done in South Africa would be done according to the rule of law, and in accordance with Constitutional imperatives.

The meeting was adjourned.

 

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