South Africa’s land reform is embedded in the constitution. In relation to the land redistribution component of land reform, section 25 (5) of the Constitution clearly provides for the right to equitable access to land. However, much of the public debate has revolved around the failure of the market-based approach to land reform. Discussions often highlight the limitations of the ‘willing buyer willing seller’ approach as a mechanism for land acquisition and the need to expropriate of land without compensation in order to accelerate the pace of land redistribution. However, the ‘willing buyer, willing seller’ approach is largely a policy choice and not a constitutional requirement. Furthermore, the existing constitutional provisions on expropriation have not been fully utilised as an instrument for land acquisition. Nevertheless, the 18th Constitutional Amendment Bill presents an opportunity to make explicit the state’s existing expropriation powers and this could give a new impetus to land reform in South Africa. The High Level Panel (HLP) on the Assessment of Key Legislation and Accelaration of Fundamental Change (2017) and the Presidential Advisory Panel (PAP) on Land Reform and Agriculture (2019) have identified the absence of appropriate laws to give effect to the right to equitable access to land in South Africa. For instance, key questions in relation to who should benefit from South Africa’s land reform, how beneficiaries should be prioritised and targeted, how land should be identified and allocated remain unresolved. In the process, land reform policy has shifted markedly in terms of the profile of beneficiaries. The means-test initially adopted to ensure a pro-poor focus in the early years of land reform was abandoned and, as a result, well-off individuals have become predominant as beneficiaries. In addition to these policy shifts, research reveals a rise in elite capture in land reform. A key recommendation echoed in both the HLP (2017) and PAP (2019) is the need for an overarching national land reform law which provides the overall framework and outlines a key set of principles on broadening access to land on an equitable basis. The HLP process produced an illustrative National Land Reform Framework Bill that represents a key reference to possible legislative interventions to operationalise equitable access to land in South Africa. Equally significant is the Draft National Policy on Beneficiary Selection and Land Allocation released for public comment on the 03 of January 2020. This policy brief maps out the key set of challenges, opportunities and possible policy interventions in relation to equitable access to land in South Africa.
11th Dec 2021