New land reform bill unconstitutional - FMF

Cape Town - The new land reform provisions contained in the Regulation of Agricultural Land Holdings Bill 2017 render the bill unconstitutional and is an exercise in redistribution rather than restitution as required by the Constitution, says the Free Market Foundation (FMF).

In a statement issued on Tuesday, the Foundation said the bill demonstrates government’s refusal to consider far more appropriate and effective measures to achieve land reform.

This is the basis on the FMF’s submission to the Department of Rural Development and Land Reform submitted on April 13 2017.

A new bill that will among other things set out unique land ceilings for various districts in the country and determine the long-term lease of agricultural land by foreigners was published in the Government Gazette for public comment late in March.

READ: New bill will set out unique land ceilings 

Under the bill foreigners may not own agricultural land in South Africa and obliges all agricultural land owners to self-classify themselves along racial and gender lines in a national registry of land ownership. Another flaw is that the bill gives government the right of first refusal when any agricultural land owned by foreigners is being sold.

“The bill discriminates unfairly against non-South Africans by disallowing them ownership of agricultural property. This violates section 25(1) of the Constitution, which provides that anyone, foreigners included, may own property," says FMF legal researcher Martin van Staden.

"The language of the Bill of Rights differentiates in various sections between 'citizens' and 'anybody', meaning a different application was intended. In the case of the property rights provision, 'nobody' may be deprived of property except in the delineated circumstances." 
The Constitution provides a roadmap to address the consequences of Apartheid, which requires restitution rather than redistribution, according to Van Staden.

“Redistribution is not mentioned or implied anywhere in our highest law yet this is the approach taken by the new bill. Land that was taken by the Apartheid regime without the wilful cooperation of the legitimate owner must be given back to that owner or his descendants. This, ‘restitution’, is distinguished from government simply picking and choosing land, which might be legitimately owned by the current occupier, and ‘redistributing’ that to others or being held in state hands,” said Van Staden.

READ: Bill launched to ban foreigners from owning land in SA

The FMF says in its statement the organisation has been "at the forefront" of advocating substantial land reform since the late 1980s, especially for the urban poor who continue to live on council-owned property, which they cannot put to their own economic benefit.

The Peruvian economist Hernando de Soto wrote in 2000 that a house is not a "mere shelter" or "dead asset", but that property is “an economic concept about the house”, Van Staden says. 

De Soto argues that property rights have enabled people “to produce surplus value over and above [their] physical assets. Property representations enable people to think about assets not only through physical acquaintance but also through the description of their latent economic and social qualities”.

Distribute 'vast amounts' of government-owned land 

The FMF advocates that land reform for rural South Africans could be resolved by the simple, yet highly effective, policy of distributing the vast amounts of land held by government to the poor. Apartheid land laws such as the Subdivision of Agricultural Land Act continue to disallow the poor and small businesses access to agricultural land without having to move through bureaucratic mazes rife with backlogs and corruption.

READ: Zuma repeats call for land expropriation without compensation  

The one redeeming feature of the bill, contained in its accompanying memorandum, is that government recognises that a thorough audit of government land is required to paint a holistic picture of land ownership patterns in South Africa. The FMF has always supported such important initiatives as first steps in ensuring redundant government land is transferred to the people in full ownership.
In its submission, the FMF recommends ways in which the bill can be rescued from unconstitutionality, however, continues to promote the that government must change its approach to land reform entirely to deliver a people-centric instead of state-centric process.

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