12 April 2012
To: Agri SA office bearers
Provincial agricultural unions
Commodity organisations
Dear colleagues
RE: GREEN PAPER ON LAND POLICY
You are all aware of the Green Paper on Land Policy which was published for commentary on September 2011. Agri SA’s written commentary on the Green Paper was submitted towards the middle of November 2011 after the content thereof had been cleared with affiliates. The commentary is available on Agri SA’s website.
Minister Nkwinti added further substance to the consultation process by appointing a National Reference group/ NAREG from among representatives of organisations that attended his workshops on land reform in 2010 and 2011. Agri SA is also represented in this National Working Group. The reference group was instructed to discuss and evaluate submissions and other inputs obtained during the consultation process and to make recommendations in this regard. In the Minister’s own words, the reference group’s mandate is as follows: “... the department cannot deal with the challenges of land reform alone; it needs the buy-in of all the beneficiaries and stakeholders. The idea behind this is to have an inclusive approach in terms of finding the problems and the solutions”. And further: “... the go-it-alone approach has failed the previous administrations and that mistake cannot be repeated. Help us understand better the services we are rendering as a department, the weaknesses and quality of these services. The NAREG is part of the consultative process the department has embarked on in making sure that the stakeholders are given a fair chance to make inputs.”
Reference group meetings had already taken place in September 2011, November 2011 and February 2012. At the first meeting, six themes were identified for which working groups were convened to deal with the following:
1. The Land Management Commission.
2. The Land Rights Management Board and its local structures (including negotiations on the draft Land Tenure Bill, evictions and agri-villages).
3. The Valuer-General where fair market value compensation for property is discussed.
4. The three-tiered system of land ownership (state land, private ownership with limited extent and leased land). The committee also attends to aspects such as land ceilings and the right of first refusal.
5. Communal land.
6. Amendments to the Restitution Act and the Community Property Associations Act.
Agri SA nominated two representatives in each of these working groups. Agri SA’s representatives were provided with relevant background literature by Annelize Crosby. Agri SA also insisted that working groups keep proper minutes of discussions and that these should form the basis for recommendations to the National Reference Group.
Agri SA had become concerned about the poor attendance by land reform beneficiaries at the reference group’s working group meetings, which could at a later stage lead to them questioning the consultation process and resultant recommendations. Agri SA discussed this with the Minister and also suggested that pilot projects be identified for the Land Rights Management Board so that the concept can be tested and supplementary work can be done around the restitution and tenure rights issues. Minister Nkwinti was of the opinion that these were good proposals which should be dealt with further by the appropriate working groups.
The second meeting of the reference group took place on 29 November 2011. This meeting focused on encouraging all parties to participate fully in the activities of the working groups. It also served as an information session to keep everyone informed of the progress made by each working group. As an introduction, Minister Nkwinti said the NAREG process was not a normal Green Paper process. Normally consultation would take place on a Green Paper, after which a White Paper would follow. In this case the six working groups had a mandate to go further than this and could go ahead and develop policy, strategy and legislation in respect of their areas of work. He confirmed that it was not merely a consultation process, but an “engagement”. He said the Green Paper was simply a framework of principles and that the working groups had to give substance to such principles. He reported that the Ministry and Contralesa had agreed that Contralesa would now also nominate one person for each working group and that the working group dealing with communal land would commence with its activities.
Most working groups continued with their activities in January and February 2012. Agri SA’s representatives kept one another informed by exchanging information via correspondence and by means of teleconferences.
The third meeting of the National Reference Group took place on 17 February 2012, with the Deputy Minister of Rural Development and Land Reform, Mr Solomon Tsenoli, as chairman. He said that the respective working groups had to report back to Minister Nkwinti by the end of March 2012. This implied that the work of the committees should be completed by mid March so that final reports could be compiled. The working groups’ convenors thereafter reported back to the bigger grouping on their progress to date. The Deputy Minister was of the opinion that three working groups had not made satisfactory progress and that intervention was required from the Ministry’s side. These are the working groups on communal land ownership, the Land Management Commission (LMC) and the Land Rights Management Board. The working group on legislative amendments, which focuses on amendments to the Restitution Act and the Community Property Associations Act, confirmed that a workshop on restitution would be arranged. Agri SA had requested such a workshop. During Agri SA’s Transformation Committee meeting held on 13 March 2012 a small working group was appointed to prepare for this workshop.
At Agri SA’s Transformation Committee meeting held on 13 March 2012 feedback was provided on the activities of the working groups. The pertinent aspects can be summarised as follows:
1. Working group on Land Management Commission
Theo de Jager reported that the working group had made good progress since the third reference group meeting. The proposal was that the Land Management Commission should monitor ownership of state land, private land, communal land and land owned by foreigners. The commission would also regulate the leasing of state-owned land and help to enforce production discipline. It will also play a role in land conservation and water management. The possibility of establishing a unit to investigate corruption under the Land Management Commission is being considered – however, such a body would have no law enforcement powers. The proposed commission will probably consist of 15 representatives of all role players. It will be an inclusive structure which functions independently of the state.
2. The working group on Land Rights Management Board
Annelize Crosby reported on meetings of this working group which took place on 19 January and 2 March 2012. The working group must develop a broad tenure rights policy, make proposals on the functions and modus operandi of the proposed Land Rights Management Board and also discuss the future of the Land Tenure Security Bill. The working group seems to agree to recommend amendments to existing legislation (Tenure Security Act and Labour Tenants Act) rather than support for a Draft Land Rights Bill. At the time of reporting, most of the activities of this committee were still under discussion.
3. Working group on Valuer-General
Johan Pienaar represents Agri SA in this working group. Agri SA is opposed to any regulatory powers for the Valuer-General and has adopted the view that the structure’s powers should be merely of an advisory or monitoring nature. Furthermore, Agri SA took a firm stand to the effect that the institution as such should not undertake any valuations and may not manipulate land prices. This institution may also not replace access to the courts as an option for dispute resolution. It appears as if Agri SA’s views have been incorporated by the working group to date. The working group envisages further meetings.
4. Working group on three-tier land ownership system
Agri SA’s representatives in the working group have, based on a constitutional and economic framework, constantly argued against land ceilings and state involvement in the land market. The working group has appointed smaller working groups which focus on aspects such as land ceilings, state-owned land, a right of first refusal, partnerships with the private sector, shareholding schemes and a possible land tax. Agri SA has representatives in all these smaller working groups where it also provided written inputs on, for example, international experience with land ceilings. Agri SA’s opposition to a possible land tax has also been confirmed.
5. Working group on communal land rights
Livhu Ngwekhulu provided elucidation on the working group’s first meeting which took place in March 2012. The Green Paper contains no recommendations on communal land. The working group focused on communal land rights legislation (CLARA) and the ruling made by the Constitutional Court on this legislation. Agri SA’s mandate is to ensure that land in communal areas is used productively. The working group also looks at issues such as gender equality, different tenure systems and the boundaries of communal areas as they existed in 1951. The working group will possibly recommend amendments to CLARA as well as the Restitution Act, the Community Property Associations Act and TRANCRA act (Transformation of Certain Rural Areas Act, no. 94 of 1998). The compatibility of the communal system with the free market system and the need to use land reform in communal areas for large-scale empowerment, are aspects on which Agri SA’s inputs will focus.
6. Working group on possible legislative amendments
Sandy le Marque provided feedback. Two pieces of legislation were discussed by this working group, namely the Community Property Associations Act and the Restitution of Land Rights Act. It seems that this working group wants research done on the systems of land ownership that applied before apartheid. Certain areas for possible amendment to the Restitution Act were also identified. However, the particulars have not yet been fully discussed. It was decided, at Agri SA’s request, to hold a workshop on restitution. A smaller working group consisting of Theo de Jager, Sandy La Marque, Scot Scott, Abram van Veijeren and Annelize Crosby will do the necessary preparation in this regard. Sandy le Marque also reported that high-level discussions had already taken place with regard to the reopening of the restitution process and that an inter-ministerial committee was now dealing with this matter.
It is important to note that Agri SA has clear policy views from which it has never deviated during the consultation process within the reference group or in working groups. It appears as if Agri SA’s viewpoints have to a large degree been taken on board by the working groups to date. The respective working group reports are now awaited.
If necessary, Agri SA will respond in writing to the reports. Moreover, further public hearings in Parliament will follow where additional input can be provided. However, more processes will follow thereafter (including the ANC’s internal policy conference) which could also have an impact on the outcome of this process.
Kind regards
JF VAN DER MERWE
EXECUTIVE DIRECTOR