By Kyle Cowan
A draft report by the Advisory Panel on Land Reform and Agriculture has recommended that President Cyril Ramaphosa establish a “compensation policy” to guide how expropriation without compensation should be implemented.
While the panel endorses a proposed change to the Constitution to allow for expropriation without compensation, it has further recommended sweeping changes to current land reform and restitution mechanisms and systems, which have been plagued by slow progress and corruption.
This includes a recommendation for the establishment of a new land reform agency which should absorb land reform functions from the department of rural development and land reform and the department of agriculture, forestry and fisheries.
News24 has seen a draft version of the report by the panel, which Ramaphosa appointed last year to provide independent expert advice to the interministerial committee on land reform headed by deputy president David Mabuza.
Professor Ruth Hall, a member of the panel, said during an interview with Talk Radio 702 that the mandate of the panel extended much further than a simple question of expropriation and a constitutional amendment, but was tasked to provide advice on how existing mechanisms could be better used.
The panel was initially given six months to complete its work and due to have submitted its final report on March 31.
News24 understands the report exists only in draft form at present.
Some of the key recommendations in the draft version include:
A detailed land audit be conducted to determine fully the ownership and usage of land; A land reform fund, capitalised by public and private sectors, be established. The fund should be managed by the Land Bank; A new White Paper on land policy be drafted to guide land reform processes; The establishment of a single repository and platform to access information on land in South Africa, including ownership, usage and viable uses; A land tax inquiry with the aim of reviewing national policy or regulations to discourage retention of large, unproductive land holdings; Removing the mandate for Rural Development from the Department and relocating it within the Presidency; The amendment of the Minerals and Petroleum Resources Development Act and Marine Living Resources Act to recognise customary rights exist alongside rights awarded under these acts. Communities directly affected must be given an opportunity to consent before any change is made to their land rights for mining, commercial farming or conservation.
Establishment of ‘compensation policy’
The panel endorses policy shifts to use the Constitution to expropriate land without compensation, but says this need not be applied in every case.
It recommends the establishment of a compensation policy to determine how and when expropriation without compensation should be applied.
The proposed compensation policy should outline a range of compensation from zero, to minimal compensation to substantial and market-related compensation.
Only one panel member, Agri SA’s Dan Kriek, objected to any mention of a compensation policy.
Property owners who bought land after 1994 should not be treated the same as those who inherited property, similarly institutional land owners who own large swathes of property should not be treated in the same manner as families whose land is their primary livelihood.
The Expropriation Bill, gazetted in December 2018, identified five types of property that could be expropriated without compensation:
Abandoned property; Property owned by state owned entities/corporations; Land held purely for speculative purposes; Land into which the state has already invested more than its value; Farms or portions of farms with labour tenants.
The panel recommends that this bill be referred to the Constitutional Court for confirmation that it is consistent with the Constitution.
Just and equitable compensation
On land redistribution, the draft recommendations say land reform should take a targeted approach based on just and equitable compensation.
On land restitution the panel recommends that the Committee on Restitution of Land Rights must prioritise settlements of older claims submitted by the first deadline in December 1998.
Crucially, claimants should be offered a choice between redistribution or tenure security options, which could circumvent requirements to prove past dispossession.
A key question surrounding land reform has been the identification of beneficiaries. The panel recommends the majority of the available budget be allocated to farm dwellers and labour tenants as well as subsistence farmers and smallholder farmers producing for market.
Medium to big commercial farmers should be second in line, as they could contribute their own capital and have financing leverages available to them.
Private sector co-financing
Crucially, while land reform is a state-funded initiative, the private sector should contribute in terms of co-financing.
Finally, key indicators must be developed to monitor and evaluate the success of land reform – this includes the development of a national land classification system and the determination of what constitutes successes.
The 10-member panel comprises: Doctor Vuyo Mahlati, a National Planning Commissioner and president of the African Farmers Association of South Africa (AFASA), chairperson; Professor Ruth Hall of the University of the Western Cape; Professor Mohammed Karaan of Stellenbosch University; Dan Kriek, who is president of Agri South Africa; Bulelwa Mabasa of Werksmans Attorneys; Thato Moagi, who is a farmer in the Western Cape and Limpopo; Thandi Ngcobo from the Dr JL Dube Institute of the University of KwaZulu-Natal; Advocate Tembeka Ngcukaitobi, who is at the Johannesburg Bar; Nick Serfontein, who is a farmer in the Free State; and Wandile Sihlobo of the Agribusiness Chamber.
For reasons on which the draft report does not elaborate, Ngcukaitobi did not participate in the writing of the report.