Land law has no teeth - experts

2004-02-02 14:36

Pretoria - With a nervous eye on land invasions in Zimbabwe to the north, South African farmers have taken fright at legal changes to boost their government's land expropriation powers.

But as the Transvaal Agricultural Union (TAU) geared itself for a fight, legal experts said the Restitution of Land Rights Amendment Bill posed little reason for real concern.

In fact, any measure to expedite land reform was exactly the right way of avoiding a Zimbabwe-like situation, they agreed.

"Any comparison to Zimbabwe is a cheap shot," said Edward Lahiff, senior lecturer at the University of the Western Cape's programme for land and agrarian studies.

"In Zimbabwe, the government abuses the law, courts are corrupt, and there is a collapse of democracy. The South African government has gone out of its way to follow an orderly and legal process. It is the complete opposite."

President Thabo Mbeki signed the amendment bill into law last Wednesday. It allows the land affairs minister to expropriate land for restitution without a court order.

Professor Jeannie van Wyk, University of SA property law lecturer, believed South African land owners were adequately protected by the constitution.

The government was legally bound to fair administrative action, and aggrieved property owners had recourse to the courts.

Massive scale

According to Danie Brand, lecturer in public law at the University of Pretoria, problems would arise only if the government used the law to expropriate land on a massive scale rather than employing other means of obtaining land for reform.

But he saw no danger of that happening.

"It would be a very expensive way of obtaining land, would involve frequent legal challenges, and would necessarily give rise to much enmity - which the government doesn't want."

The TAU believed the bill gave the minister excessive powers to circumvent the judicial system. It suspected the government of deliberately making it hard for cash-strapped farmers to challenge land claims in court.

The TAU would decide shortly how to resist the bill. Legal action was one option, said the union's property rights manager Jack Loggenberg.

"Thirteen years ago, Zimbabwean farmers were in exactly the same position as we are today. What is happening there now started off in the same way," he claimed.

For its part, the national farmers' union AgriSA expressed concern at the government's move.

While acknowledging that some farmers obstructed land reform, the union believed negotiations to be the only solution.

It claimed the onus had shifted, in terms of the bill, to the land owner to prove that a claim was invalid - involving huge legal costs.

Damage relationships

AgriSA feared the bill may be abused by future governments and that it would damage relations between land owners and the State, said natural resources director Nic Opperman.

"It makes us feel uncomfortable because we believe there are other ways of speeding up land reform."

On the other side of the spectrum, the National Land Committee said land reform legislation remained inadequate.

Opposition to the new bill was hysterical and irrational, said spokesperson Andile Mngxitama. The committee represents landless people.

"Land reform is subjected to the whims and goodwill of often racist beneficiaries of apartheid and colonialism who have been frustrating the process," he said.

"There is much impatience on the part of landless people. If not addressed, this historical grudge may be mobilised to bring about a crisis like in Zimbabwe."

Chief land claims commissioner Tozi Gwanya said the Zimbabwe example was "used as a scarecrow" by opponents of land reform. In South Africa, he said, the government was the second highest-paying buyer of land. Only foreigners paid higher prices.

Impact on economy

He stressed expropriation would only be used as a last resort, and said farmers wishing to challenge a land claim could always approach the Legal Aid Board for financial assistance.

The legal experts agreed there should be no threat to South Africa's international image.

"For every investor questioning this law, there are others asking whether the government is serious about land reform," Lahiff said.

According to economist Tony Twine, there had been no notable impact on the economy.

"At the time that the news first broke, the rand certainly did fall. But whether that was related or not, nobody will ever know."

The government aims to redistribute 30% of commercial agricultural land to blacks by 2015. It has managed about three percent to date.

In addition, about 46 000 of 79 000 land restitution claims had been finalised by the end of last year and about 810 000 hectares of land given back to communities dispossessed of it under apartheid laws.

The remainder had to be settled by the end of next year. According to Gwanya, less than 20% of commercial farm land was under claim.

- SAPA