The voice of agriculture . Die stem van landbou . Izwe lezokulima

Failure to implement land reforms may point to policy design flaws

Give the beneficiaries of land redistribution real rights to the land they occupy and protect these rights in law

in Opinion by Theo Boshoff

Reading Luyolo Mkentane’s article on farm evictions took me on a rollercoaster of emotion (“Thoko Didiza bows to pressure to stop farm evictions”, April 13). We don’t know the exact circumstances surrounding these evictions. However, if the article is correct and bona fide land reform beneficiaries have been forced to vacate productive farms, it is cause for concern.

Readers might be upset to hear about the treatment these successful black farmers have endured, then relieved to hear that interventions to bring justice are being made. Finally, sadness and frustration set in when one realises that nothing is stopping the same thing from happening again.

To be fair, the headline may have been a little misleading in stating that the agriculture, land reform & rural development minister “bowed” to pressure, thereby insinuating some kind of support on her part for this conduct in the past. In reality, Didiza inherited a situation that came about as a result of poor policy design as much as anything else. Credit must be given to her for stepping in when she did, but the policy design must also be reconsidered to prevent the same situation from occurring again.

In the early 2000s the then department of land affairs moved away from a grant-based system that subsidised land reform beneficiaries who purchased their land, to favour a more proactive approach. A “proactive land acquisition strategy” was unveiled, in terms of which the state would purchase farms directly and allocate them to beneficiaries based on a state land lease and disposal policy. This makes provision for an initial trial period, followed by a 30-year lease in favour of the beneficiary.

At the time the reasons for this approach seemed reasonable. By entering the market and acquiring land directly, the state could take advantage of offers on the market and influence the prices being paid for land. By offering the beneficiary a trial period followed by a 30-year lease it could ensure that bona fide farmers obtained the land, as opposed to opportunists who may have accepted a state subsidy only to resell the land at a profit. There was certainly merit in this thinking, but it has also led to beneficiaries becoming perpetual tenants on state land, with limited recourse when their rights are threatened.

While the exact circumstances of the recent spate of evictions remain unclear, a study conducted by academics Ruth Hall and Thembela Kepe in 2017 indicated that many land redistribution beneficiaries did not have long-term leases and were operating under short-term “caretaker” lease agreements. In the Rakgase case, the high court recently ruled in favour of an elderly beneficiary who had been denied the right to buy the state farm he had been living on since 1991. For all the good intentions set out in the proactive land acquisition strategy and the state land lease and disposal policy, it is clear that they are not always implemented as intended.

Whenever these issues are raised on policy platforms the same phrase pops up: “We have all the best policies and laws in the world, but the challenge is that they are not implemented.” I beg to differ. If a law or policy is capable of being ignored, the policy design contains a fatal flaw. The high-level panel came to the same conclusion when it delivered its report on land reform to parliament in 2019. The mere fact that beneficiary selection, land allocation and tenure rights for land redistribution are governed by policy, as opposed to legislation, is a cause for concern. Policies are easy to ignore, the law is not.

The first step should be to give the beneficiaries of land redistribution real rights to the land they occupy and protect these rights in law. As long as beneficiaries rely on flimsy, nontradable lease agreements for their tenure rights, they will always be at the mercy of a landlord. If land reform beneficiaries are awarded real rights to land, be it ownership or long-term leases that are registered against the title deed of the property, their rights cannot merely be terminated by notice.

To prevent an opportunist from simply reselling the land at a profit the title deed can be endorsed with a restriction to the effect that the land (or a registered long-term lease) cannot be sold or transferred within a given time frame. In the same manner, the conditions of use can be registered against the title deed or spelt out in legislation so that the rights and obligations of both parties are clear and unambiguous. In this way one could give effect to the original intention of the proactive land acquisition strategy while empowering the beneficiaries to stand their ground when their rights are threatened.

Corruption should be called out and eradicated, but is it not time we started closing the gaps that allow corruption and nepotism to thrive in the first place?

  • Boshoff is head: legal intelligence at the Agricultural Business Chamber. He writes in his personal capacity.