Reconceptualising redistribution of land in South Africa: A possible legal framework

• Author: Kotzé, T.
• Published date: 19 May 2021
• Citation: (2021) 138 SALJ 287
• DOI: https://doi.org/10.47348/SALJ/v138/i2a3
• Pages: 287-322
• Date: 19 May 2021

287

RECONCEPT UALISING R EDISTRIBUTION

OF LAND IN SOUTH AFRICA:

A POSSIBLE LEGAL FRAMEWORK

TINA KOTZɆ

Post-doctoral researcher, Stellenbosch University

JUANITA M PIENAAR‡

Professor in Private L aw, Stellenbosch University

After 27 years the un equal distribution of la nd in South Africa rema ins prevalent,

despite a constitut ional mandate, and corr esponding legislative mea sures and policy

documents. In light o f the government ’s dismal track record in achiev ing any meaning ful

redistribution, t his article suggest s a possible overarching legal frame work within which

land redistribu tion in South Africa co uld be approached and, ultima tely, monitored

and adjusted as need ed. This requires, from the outset, a co ntextualisation of relevant

concepts of ‘a ccess to land’ and ‘redi stribution’ respectively. Th ereafter, the article

proposes seven di erent phases, compr ising a coherent and bro ad legal framework

for land redistrib ution. Where rele vant, we consider recent d evelopments, includin g

the 2020 Bene ciary Policy and th e 2019 Land Reform Repor t. While all land,

urban as well as r ural, is integral in the redistr ibution endeavour, the arti cle’s main

emphasis is on a gricultural land: reference i s made to urban and peri-urba n land only

where approp riate. The artic le concludes with an Ann exure that contains a schemati c

overview o f the suggested die rent phases, and the cor responding institution s we

propose ought to be resp onsible for, or involved in administerin g, the respective phases.

Access to land – redistribution – agricu ltural land – fr amework

I INTRODUCTION

Despite the constit utional mandate to broaden access to land,1 the unequ al

distribution of land remains prevalent.2 Leg islation promulg ated prior to

† BA LLB LLM LLD (Stellenbosch). https://orcid.org/0000-0002-1626-4495.

South Afr ican Resear ch Chair in Prop erty Law, hosted by Ste llenbosch Univer sity,

funded by the Department of Science and Technology and adm inistered by t he

National Re search Foundation (‘NRF’). The n ancial assistance of the NR F is

hereby acknowledged. Opinions ex pressed are tho se of the author and are not

attrib utable to the NRF. This a rticle is based on work pre sented in my LLD thesis

entitled The R egulation of Agricultural La nd in South Africa: A Comparative P erspective

(Stellenbosch University, 2020). I wi sh to thank Professor Ju anita Pienaar for her

supervi sion and invaluable a ssistance in pre paring the the sis and this ar ticle. As co-

authors we are a lso grateful for the valuable inputs of the anonymous reviewer s.

‡ BJuris LLM LLD (Potch). https://orcid.org/0000-0002-7671-0821.

1 Section 25(5) of the Const itution of the Republic of South A frica, 1996.

2 Section 1.1 of the Department of Agric ulture, Land Reform and Rural

Develop ment ‘National Policy for Beneciary Selection and Land Al location’

GN 2 in GG 42939 of 3 January 202 0; Advisory Pa nel on Land Reform and

Agric ulture Fina l Report of the Pres idential Advisory Pane l on Land Reform and

Agricultu re (4 May 2019) 33, avai lable at https://www.gov.za/documents/nal-report-

https://doi.org/10.47348/SALJ/v138/i2a3

(2021) 138 SALJ 287

© Juta and Company (Pty) Ltd

288 (2021) 138 THE SOUT H AFRICAN LAW JOUR NAL

https://doi.org/10.47348/SALJ/v138/i2a3

1994, but adjusted after the Constitution of the Republic of South Africa,

1996 (‘the Constitution’) came into force, was specically employed

to give eect to s 25(5) of the Constitution to provide access to land,

namely the Land Reform: Provision of Land and Assistance Act 126 of

1993 (‘Act 126’).3 This piece of legislation remains operational and forms

the foundation upon which access to land may be broadened. In essence,

Act 126 allows the Minister discretionary power to acquire, allocate, and

develop such land for the purposes of small-scale far ming, resident ial,

public, community and business or similar u ses,4 and to provide fund s for

land purchase.5 Both the Repor t of the High Level Panel on the Asse ssment

of Key Legislation and Acceleration of Fundamental Change (‘HLP Report’)

and the Final Rep ort of the Presidential Advisor y Panel on Land Refor m and

Agricult ure (‘Land Reform Report’) agree that Act 126 is an ineective

mechanism for ensuring the succe ssful redistr ibution of land, and does not

adequately operationalise the constitutional m andate to broaden access to

land.6 Moreover, the deta ils of the redistribut ion programme, such as who

the beneciar ies are or ought to be, the respect ive qualifyi ng and selection

criteria for beneciaries, a nd the type of land rights they may acquire,

are found in a var iety of arguably incoherent policy documents.7

Initially, the 1997 White Paper on South Afr ican Land Policy prov ided:

‘The purpo se of the Land Redistr ibution Program me is to provide the poor

with land for residential a nd productive purposes i n order to improve their

livelihoo ds … . Land redistr ibution is intended to ass ist the urban and ru ral

poor, farm workers, labour tena nts, as well as emergent f armers.’8

presidential-advisory-panel-land-refor m-and-agriculture-28-jul-2019-0000, accessed on

22 May 2020. Se e also in genera l the Report of the High Le vel Panel on the Assessment

of Key Legisl ation and Acceleration of Fundame ntal Change (2017), available at h t t p s: //

www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_ Panel/

HLP_Repor t/HLP_report.pdf, accessed on 8 June 202 0.

3 Initial ly this Act was n amed the Provision of Certain L and for Settlement

Act. This Ac t has since been ren amed twice,  rst, by way of amendment as the

Provision of Land and Assist ance Act in 1998, and subs equently as the La nd

Reform: Prov ision of Land and As sistance Act in 200 8.

4 Section 3 of the Land Refor m: Provision of La nd and Assistance Act 126

of 1993.

5 Ibid at s 10.

6 Land Reform Report op cit note 2 at 96; HLP op cit note 2 at 219.

7 Rakgase v Minist er of Rural Development an d Land Reform 202 0 (1) SA 605 (GP).

See also J M Pie naar ‘Approaching systemic fai lure? A brief overv iew of recent

land refor m case law’ 2020 TSA R 536 at 537–9.

8 Depa rtment of Land A airs T he White Paper on So uth African Lan d Policy

(1997 ).

© Juta and Company (Pty) Ltd

RECONCEP TUALISING REDIS TRIBUTION OF LA ND IN SOUTH AFR ICA 289

https://doi.org/10.47348/SALJ/v138/i2a3

While it is clear that initial program mes such as the Settlement/Land

Acquisition Gra nt (‘SLAG’)9 and Land Redistribution and Ag ricultural

Development (‘LRAD’)10 targeted the poorest of the poor, later projects,

such as the Proactive Land Acquisition Strategy (‘PLAS’)11 and the

State Land Lease and Disposa l Policy (‘SLLDP’)12 to enable commercial

farming, focused on more resourced and more competent beneciaries,

such as emerging black farmers.13 These redistribution schemes and

policies, comprising various grant-assisted program mes, were employed

successively over the years under dierent mi nisteria l leadership,14 were

aimed at di erent target groups and beneciaries, and provided for

dierent types of rights to the allocated land.15

9 In the early years of demo cracy, state-a ssisted, dem and-led land purchase

took the form of sm all gra nts to poor households to buy land for settlement and

small-scale far ming. See W hite Paper on South Afr ican Land Polic y op cit note 8

at part 4.7: Grants a nd Services; J M P ienaar Land R eform (2014) 218; R van

de Brink, G Thomas & H Bins wanger ‘Agricu ltural la nd redistr ibution in

South Afr ica: Towards acceler ated implementation’ in L Nts ebeza & R Hall (eds)

The Land Q uestion in South Afr ica (2007) 152 at 175; S R A Dlamin i Taking Land

Reform Ser iously: From Willing Seller-Will ing Buyer to Expropr iation (unpub lished

LLM thesis , University of Cape Town, 2014) 45. T Kepe & R Hall ‘L and

Redistr ibution in South Afr ica’ Commissioned Report for the Hig h Level Panel on the

Assessment of Ke y Legislation and the Acce leration of Fundamental Chang e, An Initiative

of the Parliament o f South Africa (2017) 16–18, available at ht tps://www.parliament.gov.

za/storage/app/media/Pages/2017/october/High_Level_ Panel/Commissioned_Report_

land/Commissioned_Report_on _Land_Redistr ibution_Kepe_and_ Hall.pdf, accessed

on 22 May 2020; R H all & T Kepe ‘Elite c apture and state neg lect: New evidence

on South Afr ica’s land reform’ 2017 Review of Af rican Political E conomy 1 at 2;

Tina Kotzé T he Regulation of Agric ultural Land in South Afr ica: A Legal Comparative

Perspective (unpublished LLD d issertation, St ellenbosch Universit y, 2020) 169–71.

10 From 2000, under the leadership of for mer President Thabo Mbeki, a new

policy, the LR AD, which provided for la rger grant s in favour of the poor and

black capita list farme rs emerged. See Kepe & H all ibid at 6–7, 15–16,19–22 and 29.

Kotzé ibid at 171–3.

11 Kepe & Hall ibid; Kotzé ibid at 173 –5.

12 From 2011, under former P resident Jacob Zuma , the state moved away

from state -assisted l and acquisition t o state-led purch ase. Under this supply-

driven approa ch, the state became the pu rchaser of land (the wi lling buyer) which

did not always result in the tr ansfer of title to t he beneciarie s. Instead, such

land acqui red by the state was u sually lea sed to the beneciaries, in line w ith

the SLLDP. While the SLLDP identies d ierent priorit y groups, benec iary

target ing and selection continue to favour the com mercially or ientated far ms,

ahead of the r ural poor. See Kepe & Ha ll op cit note 9 at 1 at 2.

13 Pienaar op cit note 9 at 8 32–3; Rakgase supra note 7 para 5.4.3.

14 See W du Pless is, J M Pienaar & N Oliv ier ‘Land matters a nd rural develop-

ment’ (2009) 24 S A Public Law 588 at 60 8–10.

15 R Ha ll ‘Who, what, wher e, how, why? Many disagree ments about land

redist ribution in South Af rica’ in B Cousins & C Walker (ed s) Land Divid ed, Land

Restored (2015) 127 at 134 –9.

© Juta and Company (Pty) Ltd