Land Reform

• Author: Pienaar, J.M.
• Published date: 28 March 2022
• Date: 28 March 2022
• Citation: 2020/2021 YSAL 854
• Pages: 854-920

854

1. INTRODUCTION

South Africa embarked on a la nd reform programme roughly three decades

ago: first in a provisional format, under the former govern ment, and

after 1994, by way of an all-encompassing land reform progra mme. The

programme itself is rather u nique: it consists of three inter- connected sub-

programmes, embedded in the Con stitution.1 In this regard, the parameters

for the redistribution, tenur e reform and restitution sub-progra mmes are

found respectively in s 25(5), s25(6) and s25(7). Under s25(4)(a) the public

interest includes the nation’s commitment to land reform and to refor ms to

bring about equitable access to all South Af rica’s natural resources. In the

process of grappling with land reform, a bo dy of case law has developed. Yet,

disappointingly, judgments are still ha nded down highlighting that some of

the basic requirements are not b eing complied with, or the basic tenets of the

legislative measures are bei ng overlooked. In this context, where the aim s of

the legislative measures are not ach ieved, secure tenure remains elusive for

many South African s. Likewise, neither the redist ribution of land, nor the

restitution of land or rights in l and is at the level that was envisaged when

the programme was embarked on.

The drive to amend the property c lause to enable expropriation with nil

compensation is part and parcel of t he attempts to promote land reform.

Although the review process regai ned momentum during 2021, after being

negatively impacted by the COVID-19 pandemic in 2020, the review process

was, at the time of writing, sti ll ongoing. A process parallel to the rev iew

process involves the drafting of a new Expropri ation Bill, published for

comment in October 2020. While the se processes are integ ral to the overall

* B Iuris LLB LLM LLD (PU for CHE); Professor of Law, Vice-Dean: Research and

Internationalisation, University of Stellenbosch.

1 Constitution of the Republic of South Africa, 1996 (the Constitution). For more detail,

see JM Pienaar Land Reform (2014) 173–185.

Land Reform Land Reform

Juanita M Pienaar*

2020/2021 YSAL 854

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LANd reForm 855

land reform process, critical problems – s ome of which are described i n the

case law below – prevail. Ultimately, the land reform programme requ ires

much more than only an amended proper ty clause to deal with the m any

concerns.

This chapter provides an overview of t he latest legislative and case law

developments linked to land reform, inc luding the attempt to amend the

property clause, as well as the sub -programmes of redistr ibution, tenure

reform and restitution. A di scussion of case law on eviction in contravention

of the COVID-19 regulations concludes this chapter.

2. LEGISLATION

2.1 INTRODUCTION

With respect to land reform, import ant legislative developments during the

reporting period i ncluded the continued review of the property clause, and

the publication of a Draft Expropriation Bill a nd a Draft Land Courts Bi ll.

Regulations issued u nder s27 of the Disaster Management Act2 i mpacted on

eviction in partic ular.

2.2 AMENDMENT OF S25 OF THE CONSTITUTION

The Draft Constitut ion Eighteenth Amendment Bill3 was published for

comment in December 2019, and was intended to be finalis ed at the end of

March 2020. Due to the COVID-19 pandemic, the consultation processes were

suspended, leading to a reconstitut ion of the review committee on 1 July

2020, with the same composition, mandate and powers as its predecessor.

While the mandate rem ained the same, extended to conclude on 31 August

2021, the chairperson of the ad hoc commit tee, Dr Mathole Motshekga,

announced that a revi sed approach would encapsulate the whole of s25, and

not only focus on the sub-se ctions lin ked to expropriation.4 In this regard,

three specif ic proposals were placed on the table on the last day of the

committee’s previous term, on 31 May 2021: state custodianship of land as

a natural resource; lim iting the role of courts in t he process of determining

the amount of compensation payable at expropriation; and reconsidering

19 June 1913 as the cut-off date for restitution claims. While all t hree

proposals are integra l to the land reform debate, brief comments follow with

respect to the fir st proposal only, namely state custodianship of la nd.

2 57 of 2002.

3 See the detailed discussion of the Bill in JM Pienaar JQR Land Reform 2019 (4) 1.2.

4 Parliamentary Monitoring Group, available online at https://pmg.org.za/committee-

meeting/33201/.

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YeArbooK oF south AFrICAN LAW

856

Apparently, the initial suggestion with regard to state custod ianship

was that the state should take reasonable and ot her steps, within available

resources, to promote conditions to put state custodian ship of land into

operation and to broaden access to land for citizen s on an equitable basis

– essentially an adaptation of s 25(5) of the Constitution. The general

reference to state custodian ship of land was later adjusted to mean ‘state

custodiansh ip of some la nd ’.

With reference to previous policies and high level repor ts, including the

Green Paper on Land Reform;5 the Report of the High Level Panel on t he

assessment of key legislation and t he acceleration of fundamental cha nge;6

and the Final Land Panel Repor t, published in May 2019,7 a move towards

a form of state custodiansh ip over land is drastic and unexpe cted. In none

of the previous direction-g iving documents was state custodiansh ip of land

even mentioned, not in general and specif ically not as a viable option for land

reform purposes. On t he contrary, state custodianship is rem iniscent of the

old apartheid approach where the state holds land in trust for t he country,

and decides who, when and on which terms someone ca n gain access to

land.8 The rights -based approach undergirding t he all-encompassing la nd

reform programme after 1994 aimed to develop a diverse spec trum of tenure

forms, including but not limited to private indiv idual title. The main th rust

of s25 embodies change, reform of rights and the tra nsformation of property;

it does not espouse the centrali sation of land in the hands of the state.

In the 2017 High Level Report, dealing with state conduct in general

and not only with respect to la nd reform, the section focu sed on ‘Poverty,

unemployment and equitable division of wealth’, and highlighted the

possible adjustment of ownership forms and patter ns as follows:

The extent to which desi rable changes in the di stribution of ownersh ip

and control of economic as sets can be effec ted without adversely

affecting t he level of investment through a loss of con fidence in South

Africa’s property rights reg ime; or the extent to which diversi fying

control of assets mig ht grow the economy due to an incre ase in

domestic expenditu re on home ownership given high rates of people

without land to build.9

5 Green Paper on Land Reform (August 2011).

6 Report of the High Level Panel on the assessment of key legislation and the acceleration of

fundamental change (November 2017).

7 Advisory Panel on Land Reform and Agriculture Final Report of the Presidential Advisory

Panel on Land Reform and Agriculture (4 May 2019) at 33, available online at https://www.gov.

za/documents/final-report-presidential-advisory-panel-land-reform-and-agriculture-28-

jul-2019-0000.

8 Pienaar (note 1) 142–159.

9 Report of the High Level Panel (note 6) 89.

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