Introduction

On Thursday, 19 December 2019, Minister of Agriculture, Land Reform and Rural Development Thoko Didiza briefed the media on government’s response to the recommendations of the Presidential Advisory Panel (PAP) on Land Reform and Agriculture. The full media briefing can be found online:

ENCA: https://www.youtube.com/watch?v=j4WD4N2kaeQ

SABC: https://www.youtube.com/watch?v=npQ7G8t73Ng

President Cyril Ramaphosa appointed the 10-member PAP, chaired by Dr Vuyokazi Mahlati, in September 2018 to analyse and provide proposals on a broad range of land and agricultural issues to help address inequalities that have persisted in the democratic era. The panel was established in the wake of national anger over the failures of land reform, and resulting debate over expropriation of land without compensation, but the report provides a detailed analysis of a wide-range of issues.

On 24th July 2019, Cabinet received the Report of the PAP, which made 73 recommendations.  Through the Inter-Ministerial Committee on Land Reform led by Deputy President Mabuza, all the affected departments were asked to study the recommendations relating to their respective portfolios and respond accordingly.

It is worth remembering that this briefing comes in a context of fast-growing global inequality, and a 2018 World Bank Study on Poverty and Inequality in South Africa places the country at the top of the world’s inequality-equality gap. It furthermore comes at a time when South African’s have been hotly and emotively debating the “land question”, and waiting impatiently for Government to begin implementing expropriation without compensation (EWC), as promised by the ruling party.

The purpose of the briefing was to explain which recommendations of the PAP were adopted by Cabinet, which ones were not, and why. However, many people have been hoping that Government would have something much more concrete to put on the table by now, including specific policy decisions. While it is only five months after the report was presented to Cabinet, it is some years after the High-Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (HLP) made many overlapping recommendations, and extensive and detailed debates on EWC put increasing pressure on government to address its many years of failed land reform.

Since the briefing, senior officials within the Department of Agriculture, Rural Development and Land Reform have confirmed that, as Minister Didiza said in her briefing, there are no policies developed yet in respect of all of the adopted recommendations except for a few, such a land donations policy and beneficiary selection criteria, which will be published soon for public comment. They are developing a road map and timelines for the development of the rest of the policies, including a stakeholder engagement plan. This should start in earnest in the first quarter of the new year. A team has been put together for the Rights Recordal Policy, but they want to begin with pilots in areas under traditional leaders. They should have a draft Land Tenure Policy in the coming few months, after which they will commence with consultations. A team has also been put together for the Land Administration Framework and some work is already underway. They had to get Cabinet to approve or adopt the recommendations before extensive, detailed policy work, including consultations, could begin.

Background:

The PAP report was a culmination of an intense 10-month period of deliberation and consultation, with a wide mandate on extremely complex and contentious issues, and very limited time and budget. Many LandNNES members, and the LandNNES Facilitator at the time, engaged in the consultation processes in many ways, and the Land Administration group in particular was active in making a number of recommendations that found their way into the final recommendations.

It is worth noting that the complexity confronting the PAP and the tight time frame to deliver its recommendations were mitigated by its ability to build on the extensive empirical record submitted to the High-Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (HLP), chaired by former President Kgalema Motlanthe from January 2016 to November 2017, which also examined land reform extensively. The HLP was an initiative of the Speakers’ Forum of Parliament to investigate the impact of legislation with respect to the main socio-economic challenges facing the post-apartheid state, of which land reform was a critical element comprising a quarter of the brief, and civil society and research and academic institutions contributed significantly to the panel’s commissioned expert reports, policy roundtable discussions, public hearings and parliamentary briefings (see the report at https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf).

The full 144-page PAP report and recommendations can be found online at https://www.gov.za/documents/final-report-presidential-advisory-panel-land-reform-and-agriculture-28-jul-2019-0000. The foreword to the Panel’s report states, “As the Panel we believe that our country has to face the reality that our colonial and apartheid past, as well as the current inequality- perpetuating economic trajectory, has excluded many from the mainstream. The majority of South Africans are either asset-poor, or sit with unrecorded or devalued assets, faced with information and credit market imperfections. The decisive action this Report proposes can be summarized as follows:

1. Restore human dignity and social justice by enabling and resourcing restitution, redistribution and securing tenure in rural and peri-urban areas. A mixed tenure model is proposed, accommodating a continuum of rights from freehold and communal, as well as multilevel ownership arrangements. The Panel supports the position that it is incorrect to view freehold systems of tenure and common property systems as polar opposites of one another, and the assumption that freehold systems of property are the only forms of tenure amenable to capital investment growth. To this end the Panel has advised on an immediate process of recordal of rights in rural and per-urban areas with legislative amendments to accommodate forms of collective ownership as currently only freehold is accommodated by Registry. This galvanised for the recommendation to establish Land Administration as the fourth pillar of Land Reform (Restitution, Redistribution and Tenure being the other pillars).
2. With the failure of “willing buyer willing seller” method of compensation, we explored more effective land acquisition methods, which include a Proactive and Targeted commodity and area- based approaches with production capacity informed by Agro ecological and land use analysis. This is aligned with proposed Beneficiary Selection methods to address the rampant corruption that characterized land acquisition and allocation.
3. In response to emerging interest to donate land by Private owners and in recognition of the potentially unifying role, the Panel has recognised the goodwill that land donations by Churches, Mining Houses, Commercial Farmers etc. has in terms of nation building. The panel further advised the IMC to commence a process of developing a Land Donations Policy. To this end a draft Voluntary Land Donations Policy is being completed with inputs from Treasury, DTI and DAFF. The outstanding work awaited is with regards tax exemptions as well as correlations in terms of empowerment legislation.
4. In terms of Expropriation without Compensation (EWC), the majority of the panel acknowledge that there are circumstances and cases that may warrant EWC. More importantly is the recognition that the current framing of Section 25 of the Constitution is compensation-centric and focused, a fact which is hardly surprising given the fact that expropriation as a concept is imported from foreign and international law that does not separate compensation from expropriation. However, the uniqueness of our Constitution and jurisprudence is that it recognises that compensation may not be solely market-based but rather, envisages that compensation may be significantly less than the market value in some instances, and even exceed market-based compensation in other instances. Part and parcel of the enquiry and the terms of reference, entailed the panel assisting and giving guidance on a constitutional amendment which would assist in making explicit, those instances that may give rise to EWC. The panel recognised that there are a plethora of divergent and scholarly views both in support of and against a constitutional amendment. The panel has, however, in line with its terms of reference, also given guidance on the possible ways in which Section 25 may be amended in order to make provision for zero compensation in certain instances.
5. The vulnerability of farm dwellers and the increasing number of evictions even after the dawn of democracy is concerning to the Panel. The December 2018 Colloquium called for a moratorium on evictions. However, an analysis of the legislation by the Panel pointed to the fact that Section 25(1) of the Constitution protects current landowners from arbitrary deprivation of property. The latter means that a landowner is able to utilise legally recognised mechanisms and processes to protect property from harm by third parties. The latter includes the right of landowners to access courts for relief against illegal occupations and for courts to finally decide on the legalities. A blanket call for a moratorium on evictions is likely to offend against the current framing of Section 25(1) of the Constitution. The panel has however also ventured a possible amendment to Section 25 aimed at strengthening and securing farmdwellers from the plight of inhumane and widescale evictions.
6. It is critical however, for the panel to reiterate that constitutional amendments are not on their own, the only tools available in order to bring redress to the people. The panel therefore emphasises the critical importance of government’s political will and ability to implement policies for the benefit of the people.”

LandNNES commissioned Rosalie Kingwill, who had been very involved in the Panel Consultations, to write an article on the Report on behalf of LandNNES. She subsequently published a two-article series in Daily Maverick on the 22nd and 26th November 2019:

Five months and counting: what can SA expect from the presidential land reform report?

Five months and counting: Let’s focus on the unifying threads in the presidential land reform report

Rosalie provided very detailed and rich analysis, and highlighted the following:

• The Presidential Advisory Panel on Land Reform and Agriculture (PAP) report is a pivotal moment in South Africa’s fraught land reform programme.
• There was a risk that the report would become embedded in the social imagination as a single-issue commission of enquiry – Expropriation Without Compensation – while in reality, the bulk of the report deals with a range of complex issues that provide insight into the broader context and wide range of issues that need to be tackled concurrently for a lasting and positive impact.
• Many of us in civil society, the private sector and academic institutions offered voluntary time and sponsorship of venues and expenses, and in some cases seconded key personnel to the panel itself. We have a stake in how post-PAP unfolds.
• The process was less tied to the Department of Rural Development and Land Reform (DRDLR) than previous engagements, but nevertheless appears to have secured a degree of support from inside the DRDLR. The latter has been notoriously slow in the past in providing a coherent and co-ordinated response to the urgency of land reform, but this time some key directorates appear to be responding positively.
• A major cause for celebration in our view is the attempt in the overall analysis to come to grips with underlying structural and institutional obstacles. None of this would have been possible had the panel not been willing to engage with researchers and civil society representatives, and we believe this helped provide more nuanced understandings of underlying structural and institutional weaknesses in land reform.
• Land administration is a crucial element of land governance that was strongly addressed and endorsed in the PAP report. It was acknowledged as a critical land reform issue, and is an issue we have campaigned for. It is a new angle that we welcome following years of policy stumbles around rural land tenure, raising the prospect of appropriate systems of recordal and valuation of these rights, and those in informal or formalising settlements.
• It is no surprise that the report has drawn praise, criticism and scepticism in equal measure given the subject matter that affects people deeply, and contention is to be expected.
• There are certainly weaknesses in the PAP report, with elements of incoherence and in some cases blatant contradictions. These are to be expected considering the range of representivity among the panel members and the tight time frames, but it is right to expose them.
• We urge critics to pay less attention to the inevitable ideological battlefields, and to show interest in the evidence of genuine shifts in thinking in the PAP report that could help lever our society out of the quagmire that has become identified with the land reform programme.
• South Africa has a vibrant and creative crop of sector specialists, academics and civil society institutions (NGOs and CBOs) that have worked in the land reform sector for decades and are willing to work with government to generate sustainable reforms. We urge government to partner with us more effectively moving forward.

What was actually said in the Briefing

Cabinet has endorsed and supported 60 of the 73 recommendations in the advisory panel’s report, with nine recommendations rejected and three noted.

Minister Didiza said many of the recommendations overlapped with work already under way. “Therefore, in large measure, the recommendations were seen as the affirmation of work already being done and also sharpening and giving alternatives on how some of these processes.”

She further said the recommendations also made proposals on policy and legislation gaps, such as a policy on land tenure that will address communal and traditional land tenure in South Africa. “Other recommendations spoke to programmatic interventions that are required to address matters including coordination amongst spheres of government.”

The relevant departments would develop plans to implement the approved 60 recommendations, and  “the Inter-Ministerial Committee from time to time will receive reports on progress on the implementation of such recommendations,”

What recommendations were NOT accepted?

Minister Didiza said, “There were some recommendations that were not accepted, not because the issues raised were not important but such recommendations required further engagement, which are of a policy nature, and as such, particular processes will need to be undertaken to arrive at the policy and legislative system.”

In its discussion, Cabinet noted that some of the recommendations may require further work, Didiza said. This included the panel recommending an in-depth assessment of the conditions for the application of land ceilings. She said it would be difficult to limit the size of farms as different regions have different agricultural conditions across the country.

Regarding the recommendation to review or repeal the Ingonyama Trust Act, “The view of government is that the issue of Ingonyama Trust actually falls in the broad scope of tenure reform in South Africa which is not yet concluded and therefore it will be dealt with in that category of addressing the issue of rural tenure in South Africa,” said the minister.

9 Recommendations of the panel that were not accepted	Government’s reason for recommendation not being supported
Land reform must be informed by an agreed vision for agrarian reform.	The view of the government is that the current white paper on land policy of 1997 is still adequate in its application. It covers broad areas of the land administration framework and defines approaches for land reform to address unequal ownership patterns in the country, although it may need to be amended to allow people to register deeds in communal areas.
Significant measures to unlock urban state land for affordable housing and the creation of a more inclusive towns and cities	Cabinet broadly supported the recommendation; however, it raised a challenge in respect to certain mechanisms that the panel has proposed as interventions. Government is of the view that the feasibility of some of the proposed interventions warrants further investigation and therefore they are not in the position to support the recommendation in its entirety.
A review of the Office of the Valuer-General (OVG) and its functions in line with the Property Evaluation Act, which falls under the Department of Public Works, to ensure that the compensation determined in an event of expropriation for land reform purposes is just and equitable and not purely market value based.	Government regards the existing OVG Act as being in line with the Property Evaluation Act, which is under the Department of Public Works.
Government should develop a unified land administration system for the country, proposing to develop a green and white paper that would include land administration as a chapter.	The view of government is that the current white paper does include land administration; however, what may need to be expedited is a unified land administration system and, where possible, the amendment of the Deeds Registry Act will include the recording of informal land rights in the former homelands and communal areas.
The transfer of the responsibility for Rural Development and Land Reform (DRDLR) and locate its coordination within the Presidency.	The proposal was considered moot, by the time the panel made this recommendation a reconfiguration of government departments and ministries in the 6th administration had already been pronounced by the President.
The establishment of a land and agrarian agency.	The government is of the view that the new configuration of the DRDLR, which is now combined with the Department of Agriculture, will address the concerns that the panel might have had when they made this recommendation.
The establishment a National Land Rights Protector for managing higher-level conflict, especially between the State and the citizens.	The view of the government is that what this recommendation seeks to address may be covered in the expanded mandate of the Land Courts Bill that the panel itself has recommended. Didiza said the Land Claims Court already fulfils some of such functions and Justice Minister Ronald Lamola had been instructed to work on expanding its role to tackle a broader range of land disputes.
Government should create a Land Reform Fund.	Currently, there may not be merit on the setting up of such a fund. The optimum and judicious use of current budget allocation can still address the resources required for land reform.
A Land Tax Inquiry should be established.	There was a tax enquiry that was undertaken by the Ministry of Finance, which included issues of land tax which have been incorporated in the property rates legislation as well as capital gains tax.

Responses

Media Coverage:

• Daily Maverick: Government skirts tough decisions on land reform By Greg Nicolson, 19 December 2019 (quoting LandNNES members Rosalie Kingwill and Donna Hornby) https://www.dailymaverick.co.za/article/2019-12-19-government-skirts-tough-decisions-on-land-reform/
• News24: SA may revisit land and agrarian policy due to climate change by Jan Gerber 2019-12-19 20:17 https://www.news24.com/SouthAfrica/News/sa-may-revisit-land-and-agrarian-policy-due-to-climate-change-20191219
• ENCA: a short piecing highlighting Ingoyama Trust https://www.youtube.com/watch?v=F43Ge6OjPOI
• South African Government News Agency: Departments to implement land reform action plans, Thursday, December 19, 2019, SAnews Home https://www.sanews.gov.za/south-africa/departments-implement-land-reform-action-plans
• EWN: CABINET EXPLAINS WHY IT’S REJECTED LAND REFORM FUND FOR EXPROPRIATION by Kgomotso Modise https://ewn.co.za/2019/12/19/cabinet-explains-why-it-s-rejected-land-reform-fund-for-expropriation
• SABC Morning Live interview with Laurel Oettle on the Minister’s briefing, December 23 2019 https://www.youtube.com/watch?v=5KmpVE4paJ8

What might LandNNES welcome?

• Government is at least responding to the Panel’s recommendations. This has not always been the case in the past, for example the extensive work of the High Level Panel on the Assessment of Legislation and the Acceleration of Fundamental Change seemed to be effectively buried without real engagement or response.
• We now have a basis for monitoring how these recommendations will be implemented, and to hold Government accountable to this in their policy decisions. This is an important shift from Minister Nkwinti’s era, when policy seemed entirely detached from legislation and was not, in many cases, published or consulted on.
• Land administration is a crucial element of land governance that was strongly addressed and endorsed in the PAP report. It was acknowledged as a critical land reform issue, and is an issue we have campaigned for, and work has begun on a new Land Administration framework (although there are concerns regarding what direction this work may in fact take).
• A Voluntary Donations Policy is nearly completion at last, and is being piloted.
• Beneficiary selection criteria will be published soon for public comment.
• The Department are developing a road map and timelines for the development of the rest of the policies, including a stakeholder engagement plan. This should start in earnest in the first quarter of the new year, and LandNNES is recognised as a key consultation stakeholder, with the Multi-Stakeholder Platform being seen as a potentially important consultation space.
• They should have a draft Land Tenure Policy in the coming few months, after which they will commence with consultations.
• How that Cabinet has made this announcement on which recommendations are endorsed, detailed policy work and consultations can proceed more swiftly.

What might be of concern to LandNNES members?

• Overall, the responses to her briefing from the Land Network National Engagement Strategy members has been a sense of frustration at the lack of detail. However, this should be taken in the context mentioned in the introduction, with detailed policy roadmaps to emerge in the first quarter of 2020.
• Despite the long length of time taken to respond to the Panel’s recommendations, there was vagueness in the response from Minister Didiza, which seemed to show a surprising lack of leadership from such an experienced Minister. Dr Donna Hornby commented: “To put it bluntly, the minister’s response dodged the hard issues and reinforced pie-in-the-sky policies that have proved to be ineffective.”
• Didiza avoided taking a clear stance on expropriation without compensation, instead deferring to the ongoing work of Parliament’s ad hoc committee on amending Section 25 of the Constitution. The panel was divided on the issue, leading two members to write an alternative report. The current proposed changes to the Constitution are out for public consultation until the 31 January 2020, which is an opportunity for further input into the process that LandNNES members should make full use of.
• “What is land reform for? Who should benefit? How should land be held and used? These are foundational questions which the minister believes were addressed in the 1997 White Paper on Land Reform, the very policy framework her department criticised and rejected when she was previously minister of land reform and agriculture,” said Hornby.
• Hornby said a key reason for land reform’s failure was the lack of co-ordination between relevant departments, the Land Bank and units in Didiza’s own department. Didiza said the current inter-ministerial task team was sufficient, but Hornby suggested the minister was continuing the oversight system that led to “abandoned and under-used agricultural land”.
• Didiza was also criticised for failing to take a stance on the Ingonyama Trust, which administers communal land in KwaZulu-Natal and is accused of abusing tenants’ rights for financial gain. Hornby commented, “One is left with the impression that government intends doing nothing about the Ingonyama Trust, preferring perhaps not to confront the [King Goodwill Zwelithini] and his vested commercial interests.” LandNNES members will need to engage strongly on how the upcoming proposed tenure proposals are likely to impact on the future of the Ingonyama Trust.
• Of major concern is how inclusive government’s policy development process will really be. We have learnt over many years that when we are invited to comment on already-drafted Bills, our comments usually make little or no impact. We sincerely hope that their commitment to more inclusive and consultative processes brings meaningful change in 2020.