THE LAND POLICY PROCESS AND RESPONSES TO THE GREEN PAPER
The White Paper on Land Policy is the culmination of a two and a half year process of policy development, consultation and lessons from early implementation.
Milestones in this process have been:
These inputs have guided the Department of Land Affairs in its endeavours to ensure that the land policy put forward in this White Paper takes account of people's deepest concerns in regard to land. It has to be recognised, however, that counter proposals are often difficult to reconcile and compromises have had to be found.
LAND POLICY
Current land ownership and land development patterns strongly reflect the political and economic conditions of the apartheid era. Racially-based land policies were a cause of insecurity, landlessness and poverty amongst black people, and a cause of inefficient land administration and land use. Land policy must deal with the following in both urban and rural environments:
The government's land reform programme is made up of the following principal components:
ISSUES AFFECTING LAND POLICY
A range of issues which must be addressed if the proposed land policy is to be effective. These issues relate to:
The Bill of Rights in the new Constitution guarantees existing property rights; but it simultaneously places the state under a constitutional duty to take reasonable steps to enable citizens to gain equitable access to land, to promote security of tenure, and to provide redress to those who were dispossessed of property after 19 June 1913 as a result of past discriminatory laws or practices.
The Constitution confers the right to equality before the law and the right to equal protection and benefit of the law. It states further that equality includes the full and equal enjoyment of all rights and freedoms. In relation to land reform, this requires positive action by government. Specific strategies and procedures must be devised to ensure that women are enabled to participate fully in the planning and implementation of land reform projects.
Other constitutional issues affecting land policy include the allocation of powers and responsibilities to national departments and provincial governments to administer land and promote and/or support land reform. There is a need to coordinate the functions of the different spheres of government. This is necessary both because of the constitutional requirement of cooperative government, and in order to achieve effective government.
Land market issues
In formulating its land reform policy, government has endeavoured to take account of the widely conflicting demands of the various stakeholders and the implications of any specific course of action on the land market and investment in South Africa. The government is committed to a land reform programme that will take place on a willing-seller willing-buyer basis. Rather than become directly involved in land purchase for the land redistribution programme, government will provide grants and services to assist the needy with the purchase of land.
Given limited fiscal resources and increasing competition between different budgetary priorities, government grants have to be affordable in macro terms. At the same time, they must provide a resource that can bring real benefit to the needy. For the time being, the allocation of the Settlement/Land Acquisition Grant per qualifying person has been set at R15 000. The White Paper emphasises the need to reduce the burden of fees and duties related to land purchase and to generate additional funds for those wishing to enter the commercial farming sector.
Institutional issues
The Department of Land Affairs is facing a severe shortage of trained personnel as the demand increases for services under the various programmes. Without a substantial increase in staff for this important work, the land reform programme will not be able to meet existing demands or long-term targets.
Other institutional issues facing the Department relate to:
The land reform programme, which aims to reduce poverty, diversify sources of income and allow people more control over their lives and their environment, is expected to reduce the risk of land degradation. Nonetheless, the land redistribution programme is not without environmental risks.
One of the challenges of land reform is to relieve land pressure without extending environmental degradation over a wider area. Unless projects are properly planned and the necessary measures are put in place to govern the zoning, planning and ultimate use of land and water resources, the programme will result in productive land being used unsustainably. The White Paper emphasises the need for the new owners to be the principals in the planning process. Planning should not be taken over by outsiders, who will bear no responsibility for the long-term maintenance of the land involved. A related issue is how to provide for subdivision of agricultural land to meet the land needs of small-scale farmers in a manner that prevents conversion of land to other uses.
Land restitution issues
Key issues facing land restitution are how to:
Issues of relevance to land redistribution include:
Tenure reform is faced with the following major challenges:
Until recently, the binding constraints on the progress of the land reform programme have been limited staff capacity and an inadequate institutional infrastructure. As these problems are overcome, the delivery of land is expected to be seriously constrained by an inadequate budget. Current budget allocations for land reform constitute less than one half of 1% of the national budget, excluding interest payments. Land reform has been allocated about one twentieth of the proposed spending on rural infrastructure. In order to meet a significant share of the demand for land, the Department of Land Affairs will have to increase its funding and staff capacity. The Department is at present compiling its estimates to the year 2000/01 in accordance with the instructions of the Department of State Expenditure for the preparation of the proposals for the Medium Term Expenditure Framework. The expansion of the Land Reform Programme will be planned within the parameters set by this framework.
THE LAND REFORM PROGRAMMES
The White Paper explains the purpose and implementation strategy of each of the three land reform programmes.
Land redistribution
The purpose of the Land Redistribution Programme is to provide the poor with land for residential and productive purposes in order to improve their livelihoods. The government provides a single, yet flexible, redistribution mechanism which can embrace the wide variety of land needs of eligible applicants. Land redistribution is intended to assist the urban and rural poor, farm workers, labour tenants, as well as emergent farmers.
The Land Redistribution Programme enables eligible individuals and groups to obtain a Settlement/Land Acquisition Grant to a maximum of R15 000 per household for the purchase of land directly from willing sellers, including the state.
Priorities: Redistribution projects will give priority to the following:
Land invasions: Government will not give priority to people or groups who participate in land invasions, nor will threats of land invasions be rewarded by special treatment. Rather, government undertakes to work with organised groups of landless people to resolve their problems.
Overcoming discrimination against women: Government will uphold the provisions of the Constitution which outlaws discrimination against women. Within the redistribution programme, this will require the removal of legal restrictions on women's access to land, the use of procedures which promote women's active participation in decision-making, and the registration of land assets in the names of beneficiary household members, not solely in the name of the household head.
Farm workers are singled out for special attention in the Land Redistribution Programme, being one of the most insecure sectors of the population. Government will direct the subsidy to the farm workers and their families in a way which improves tenure security and at the same time contributes to reconciliation and harmony. The Settlement/Land Acquisition Grant can be used in a number of ways to achieve these aims.
Labour tenants are another category of rural dwellers who are particularly vulnerable, with specific land needs. The objectives of the Land Reform (Labour Tenants) Act, 3 of 1996, are twofold. On the one hand, the Act provides for the protection of the existing rights of labour tenants. On the other hand, it makes provision for the acquisition of land for labour tenants who will be able to access the Settlement/Land Acquisition Grant for this purpose.
Partnerships with the private sector will be supported which have the potential to widen the scope and efficiency of the land reform process. The Settlement/Land Acquisition Grant can be used to purchase a share in land and infrastructure provided that it broadens the base of land ownership, offers security of tenure and raises the incomes of the grantees. Such cooperative arrangements can greatly improve farm production and the income of the partners.
Rural finance: The White Paper explains how government plans to provide financial services for land reform beneficiaries. The measures that are being taken draw substantially on the conclusions of the Presidential Commission of Enquiry into Rural Financial Services (the Strauss Commission).
It is proposed that:
Valuation: Where state funds, including government grants, are used to subsidise the purchase of private land, the DLA and the Department of State Expenditure require that a fair price be paid. This will usually be `reasonable market value'. This is defined as a price which is comparable with recent sales in the locality and one which is endorsed by an independent valuer and/or the Land and Agricultural Bank. The White Paper provides information on the underlying principles involved in valuing land and explains the facilitative role of government.
Land restitution
The purpose of the Land Restitution Programme is to restore land and provide other remedies to people dispossessed by racially discriminatory legislation and practice. This will be done in such a way as to provide support to the process of reconciliation and development, and with regard to the over-arching consideration of fairness and justice for individuals, communities and the country as a whole.
The government's policy and procedure for land claims are based on the provisions of the Constitution and the Restitution of Land Rights Act, 22 of 1994. The White Paper elaborates four aspects: qualification criteria, forms of restitution, compensation (for both claimants and landowners), and urban claims.
A restitution claim qualifies for investigation by the Commission on Restitution of Land Rights provided that the claimant was dispossessed of a right in land after 19 June 1913, as a result of racially discriminatory laws or practices, or was not paid just and equitable compensation.
Claims arising from dispossession prior to 1913 may be accommodated by the Minister in terms of preferential status in the Land Redistribution Programme providing that claimants are disadvantaged and will benefit in a sustainable manner from the support.
Restitution can take the form of:
In order to deal with the multiple complications of the anticipated urban restitution claims:
Land tenure reform
Tenure reform is a particularly complex process. It involves interests in land and the form that these interests should take. In South Africa, tenure reform must address difficult problems created in the past. The solutions to these problems may entail new systems of land holding, land rights and forms of ownership, and may therefore have far-reaching implications. For these reasons policy in respect of tenure reform has to be developed with extreme care. In order to ensure this, a two year period was set aside for consultation on tenure policy, for the implementation of test cases and for the preparation of legislation. In the interim, a number of measures have been introduced to deal with urgent and pressing matters. A separate Green Paper on Land Tenure Policy will be released at the end of 1997.
The principles guiding the policy development process and the programme of action that is being undertaken are as follows:
The principal tasks necessary for developing the Land Tenure Reform Programme are set out in Section 4 of the White Paper. Rights of affected land holders will be formalised only in response to requests. A programme of forced land titling will not be undertaken. There is limited capacity within government to respond to the urgent requests which are being made. Because there will be extensive areas where tenure reform may not take place for many years, interim measures that entail a limited reform of regulations governing access to, and control over, land are being established.
Financial Grants of the Land Reform Programme
The Department of Land Affairs offers a set of grants in support of the Land Reform Programme, applicable in varying respects to each of the three principal programmes restitution, redistribution and tenure reform.
The Settlement/Land Acquisition Grant is set as a maximum of R15 000 per beneficiary household, to be used for land acquisition, enhancement of tenure rights, investments in internal infrastructure, and home improvements.
The Grant for the Acquisition of Land for Municipal Commonage is to enable primary municipalities to acquire land in order to extend or create a commonage for the use of qualifying persons.
The Settlement Planning Grant is to be used to enlist the services of planners and other professionals, to assist the beneficiaries in preparing project proposals and settlement plans.
The Grant for Determining Land Development Objectives provides for under-resourced, poor or rural local authorities to undertake a strategic planning process to set Land Development Objectives in terms of the Development Facilitation Act, 67 of 1995. Land Development Objectives require local authorities to set out a development vision for their area and to consult with local stakeholders and other relevant parties.
Eligibility, disbursement procedures, tenure and settlement options, and methods of accessing the grants are explained in Section 4 of the White Paper. These grants are intended to assist the following categories of people:
Land development
The prime purpose of government's land development policy is to establish procedures to facilitate the release of appropriate public land for affordable housing, public services and productive as well as recreational purposes. In settlements which have been established in remote locations, without formal planning, land development involves upgrading services and infrastructure in situ.
Spatial and physical planning: Racial segregation has made South Africa's towns, cities and rural settlements extraordinarily inequitable and costly to service. Restructuring the laws and institutions which supported apartheid's spatial and physical planning is a complex task. Land development policy must cater for a wide variety of needs and circumstances. To proceed effectively, land development requires:
Public land management
Public land includes land held by provincial and national governments, as well as land held by local authorities and parastatals. State land is land which is held by the national and provincial governments, but excludes local authority and parastatal land. This includes former SADT land and land already allocated to communities and individuals in the former homelands and former coloured reserves.
Land development requires an information system for public and state land which supports land development. A database is therefore being established to detail all public and state land holdings. It is expected that all parastatals will enter their land holding information as well.
The White Paper describes the power of attorney which has been finalised whereby the provincial departments of Agriculture administer state land which is held by the Minister for Agriculture and Land Affairs outside the former homelands. An agreement for the disposal of state land has been reached with the Department of Agriculture to ensure a cooperative approach to the settlement of farmers.
The Department of Public Works and the Department of Land Affairs have agreed on the rational allocation of responsibilities for the management and disposal of state land. The agreement recognises the need to rationalise the custodianship, administration and disposal functions of the two departments. It defines areas of competency and responsibility and procedures by which decisions on the allocation and use of this land can be reached at a decentralised level.
Land administration
In the long run, as part of the Land Tenure Reform Programme, government is committed to the transfer of the land, that is in the nominal ownership of the state, to its real owners. In the meantime, numerous local tenurial problems need to be overcome and administrative uncertainties addressed. Section 5 of the White Paper sets out the guiding principles and the interim strategy for dealing with both the permit system and uncertainties as to the responsibilities of different tiers of government in relation to the different categories of state land. The interim strategy has been developed for the administration of land in proclaimed towns inside the former homelands, on former SADT land, as well as in rural settlements and villages in these areas.
INSTITUTIONAL ARRANGEMENTS FOR IMPLEMENTATION
Rationale
The arrangements for implementation, described in Section 6 of the White Paper, emphasise the importance of:
Decentralisation is also seen within the broader context of institutional arrangements for land reform. Efficient and effective delivery requires that the Department of Land Affairs' provincial offices create the widest possible land reform implementation capacity by funding, contracting and building the capacity of service providers in provincial government, local government, the private sector and the NGO sector.
Transformation: Delivery of land reform will require the transformation of the DLA from a traditional state bureaucracy to one that is responsive, service oriented and is adequately staffed with skilled personnel which reflect the racial, gender and disability composition of the South African population. The Department has established a Transformation Unit which is serving as a catalyst for the change process.
Division of land-related functions
Land reform is a national competency. It is the responsibility of the national government to ensure a more equitable distribution of land ownership, to support the work of The Commission on Restitution of Land Rights and to ensure that a programme of land tenure and land administration reform is implemented. It is the responsibility of provincial governments to provide complementary development support to beneficiaries of land reform. Provincial governments have concurrent competencies with national government with regard to critical areas such as rural and urban development and agriculture that effect the sustainability of land reform.
The experience of the land reform programme over the past two years has demonstrated the critical importance of establishing a clear understanding between national and provincial governments of their respective roles and responsibilities in regard to land reform.
Much of the land administration function is likely to be delegated or assigned to provincial government. Eventually it may be appropriate for most of these functions to be located at the local government level. This would bring the situation in rural areas into line with those in urban areas where substantial land administration functions, particularly those relating to planning and development control, are already vested in local authorities.
The long-term success and sustainability of the land reform programme is, to a large extent, dependent on the ability of potential beneficiaries to be able to access the programme easily. This requires the provision of services close to the local level. Building the capacity for this will be a long term process. It will require strong support at the provincial level.
The Provincial Offices of the Department are key institutions in the implementation of the land reform programme. They are responsible for ensuring that the government's land reform policy is implemented and for liaising with provincial government in land reform matters. Co-ordinating arrangements between the provincial DLA office and the provincial government departments are currently being discussed in each province. The precise allocation of functions between the DLA regional offices and the provincial authorities will vary according to negotiated arrangements.
Facilitation services and dispute resolution services are two key services in support of land reform. They will be provided by government, either directly, or through agency agreements with non-government or private sector service providers. The first aims to ensure that prospective beneficiaries are given the necessary support to apply for appropriate assistance; and the second aims to provide both conflict prevention and conflict resolution skills amongst a cross-section of participants in the land reform process.
Land information: The Department is also reorientating its service to meet the land information needs of all South Africans, in particular those currently outside the formal land ownership system. While the country's land records and survey operation are of a high standard, the registration and cadastral system covers only the freehold sector and state land outside the former homelands. The challenge is to devise ways of recording rights in land as envisaged under the Land Tenure Reform Programme.
Concluding comment
A sound land policy is one of South Africa's preconditions for the attainment of peace, reconciliation and stability, without which economic growth and secure livelihoods cannot be achieved. Effective land programmes will also contribute directly to increasing production and to poverty alleviation. The White Paper encourages the reader to view our land in this perspective: as a cornerstone in the development of our country.