SUBMISSION TO THE PORTFOLIO COMMITTEE ON THE WHITE PAPER
ON SOUTH AFRICAN LAND POLICY ON THE 16TH FEBRUARY
Honorable members of the portfolio committee on land policy, I greet you. My organization is honored to be invited by this committee to contribute in this significant process of shaping the land history of our country. My presentation is going to be structured in the following format:
· give a very brief background about AFRA and land dispensation;
· give AFRA's critique of a White paper on Land Policy;
· propose some solutions to overcome the challenges.
Association For Rural Organization (AFRA)
AFRA is an independent rural land service organization that strives to redress the legacy of an unjust land dispensation in South Africa. AFRA was formed in 1979 and the focus then was on assisting communities to resist forced removals. AFRA is working in partnership with groups of black rural people in the midlands and North western KwaZulu Natal seeking restitution, land redistribution and secure tenure; builds and strengthen democratic representative rural community organizations within and between communities, with particular emphasis on marginalized groups including women, and the poorest; lobby and advocate at regional and national for a just land reform programme within an integrated rural development framework. AFRA is affiliated to the National Land committee (NLC), an independent umbrella body which co-ordinates the activities of ten regional land and development organizations.
South Africa has a history that is not nice to quote. The past apartheid laws and practices dispossessed and denied the majority of black people access to land. People became slaves in the country of their own birth, exploitation of people in firms, tenure insecurity, denial of decent social life, lack of education, etc. are the living examples of the legacy of the past. I will not dwell very much on the past legislation's that contributed to the violation of human rights because they are well captured in the white paper on land policy.
For the very first time in the history of our country we have a land policy which aims, as a prime objective, to unravel the skewed land dispensation promoted by the legacy of the past. AFRA welcome the white paper on land policy as a great leap towards ensuring the secure tenure for all. It is important to note the significancy of the wide consultations that took place in the processes of formulating this land policy. As AFRA we support the goals and vision of the land policy, which aims to deal with:
· the injustices of racially based land dispossession of the past;
· the need for a more equitable distribution of land ownership;
· the need for land reform to reduce poverty and contribute to economic growth;
· security of tenure for all; and
· a system of land management which will support sustainable land use patterns and rapid land release for development. White paper on Land Policy (1997:7)
For the purpose of this submission I am not going to dwell on the points of agreements with land policy but the focus will be on the shortcomings, the gaps, and the issues we have identified as problematic in the land policy.
AFRA CRITIQUE OF THE WHITE PAPER ON LAND POLICY
From the economic theory, the rationale for the market-based approach is perfect. Its primary intention is to ensure economic growth. According to FRRP mid term report (1998:4) The free market is, however, based on certain assumptions; perfect competition which is characterized by many participants and easy access to the market and availability of information. However, like many land markets, the land market in South Africa does not satisfy these conditions. There are therefore imperfections in the land market. It is important to note that that economic growth does not necessarily imply improvement in standard of living of the general population. With the market based approach, the generators of wealth also become the beneficiaries of that wealth.
AFRA is very much concerned that the right based programme like land reform is market driven. We see a contradiction in the policy which is targeting, as prime beneficiaries, the poor people who do not have financial skill, and resources to effectively compete in the land market and the land reform programme which is market led. We view this as a major shortcoming of land reform as government will not be able to subsidies all the land needy people of the country. This approach makes the land reform very expensive to implement.
The market approach dictates the practice of willing buyer, willing seller principle in land distribution. This principle turns the land reform into a voluntary programme. Poor landless communities have to rely on the mercy of the white landowners to be willing sellers these landowners have long demonstrated that they do not have any intention to part with "their" land. In Colenso most of the farmers refused to sell land to the black tenants thus leading to the land redistribution not taking place. The exorbitant prices that most white farmers ask for their land clearly demonstrate their unwillingness to sell The white paper presupposes that landless people are willing buyers but this is not true in many cases, people have had historical attachment with the land and all what they want is to go back to their ancestral land whether the fall under restitution definition or not. People see the land reform as a means of restoring their land rights. How does government expect rural communities to effectively engage in land and price negotiations with the better-off landowners?
It is our contention that the inclusion of the property clause in the constitution will have a direct negative impact to the land reform programs. Property clause protects the right; of the current property ownership, which is still skewed. Amendments were made to the clause to allow land reform programs not to be hindered by it, but our problem is that land dispute will be settled through the long and costly legal battles. As a result of the clause the tenure legislation's like Extension of Security of Tenure Act (ESTA) could not be made stronger than it is now. People wanting additional land e.g. small scale farmers will have to beg for the land to be made available. Government cannot effectively expropriate land for redistribution purpose.
The settlement/land acquisition grant represents the main source of direct financial assistance to beneficiaries of government's land restitution, redistribution, and tenure reform programs. The grant may be used to finance land , transaction costs, internal infrastructure, home improvements, fixed and movable farm assets. At present the grant is set at R15.000 per household. The R15 000 settlement grant is by no means enough to address the land hunger in the country. The white paper stipulates that people who quality may apply for the grant individually or in groups. In practice grants to finance agricultural land are heavily skewed in favour of large groups. This happens because people have to pull together their grants so that they can buy collectively. This results in land being overpopulated and not providing a conducive environment for economic activities to take place on the land. In many cases people have to part with their livestock so that they can raise money to cover the shortfall of the grant. Clearly R15.000 is not geared towards providing arable land, which is more expensive to the thriving farmers.
Another problem with the grant is that it does not cater for inflation. Since it was introduced in 1995 as R15.000 it is still remaining at that amount. The value of Rl5.000 is reducing and sooner people will realize that the grant is becoming valueless.
Land valuation influences the price of land negotiated with the seller, and differs depending upon the method employed. The white paper state that the DLA and Department of State Expenditure require that a fair price be paid. This will usually be "reasonable market value". This is defined as a price which is comparable with recent sales in the locality and one which is endorsed by an independent valuer. While the white paper contend that the land valuation based on market value should capture location specific factors such as proximity to settlements and the risk of land invasion and stock theft. At present private land is valued at its estimated market (not productive) value with total disregard of location specific factors.
Land reform beneficiaries presently pay high transfer duties when they acquire private land. Transfer duty is paid out of the R15.000 settlement grant in the case of private land acquisition thus reduces the capital amount available for land purchase. At Incunjane (KwaZulu-Natal) a project with just 15 beneficiaries - subdivision and survey costs amounted to R32022. Land designated under Act 126 must also be advertised for comments by affected parties. These costs account for a substantial part of a pooled settlement/land acquisition grant particularly for smaller groups because transaction cost do not vary directly with the cost of the land. In addition communities purchasing land adjacent to timber plantations game farms commercial crops have been advised to insure against claims for public liability. In several cases beneficiaries have requested that the initial insurance premium be paid from the pooled grant.
Policy "Vs" implementation and land administration
It is our concern that there seems to be more effort and input put at policy/legislation formulation than on implementation. The number of people already employed by national DLA is a vindication of this belief. This can be said also about provincial offices of DLA employing more people in their offices than at a regional/local land offices. The white paper is evasive on the issue of whether land administration should be located at local government or at provincial. There should be a clear process of decentralizing land administration from provinces to local government. In the absence of that clear process, provinces who have vested interest might hold on to that function.
The problem that is cited about local government is the lack of capacity. However the white paper does not spell out clearly the process of capacitating local government to deal with land administration issues. Currently local government is faced with many task however that is not matched by capacity. Any decentralization should be coupled with a clear and programmatic capacity building.
Currently, the communal land rights of most black South Africans living in rural areas are held in trust by the state. For a variety of reasons, it is desirable that ownership rights be transferred to the community level. Several issues arise in carrying out such transfers. An obvious question relates to who or to what entity land should be transferred. In the light of their historical role in communal land tenure systems, many traditional authorities would claim trustee or even outright ownership rights over communal land. The white paper falls short in clearly defining the role to be played by AmaKhosi and tribal authorities in land reform. In KwaZulu-Natal, where AmaKhosi are very much powerful and organized tensions have already arose between AmaKhosi and the democratically elected land trusts.
Lack of co-operation and co-ordination amongst line function departments
This is still a problem. Different line functions departments are pursuing their programs independently of each other. This defeats the idea of an integrated rural development. The government must do something about this before it is too late.
As AFRA we have a problem with a narrow interpretation of restitution. The majority of people who were dispossess land under apartheid practices and before 1913 are not covered by the act. It is our view that restitution could be broadened to include the above categories. The slow pace in land restitution delivery is another issue of great concern.
We are also not comfortable with the fact that compensation in restitution cases is based on the R15 000 grant. Restitution as a right based programme should take all factors into account before determining fair and equitable compensation. This is also the case with labour tenants compensations, they are based on the R15000.
The Land Claims court is supposed to be the traveling court but this is not happening. This results in many labour tenants/land claimants not turning up for their cases handled by this court because of the traveling expenses.
The Restitution act stipulate that only direct descendants of the dispossessed landowners have the right to claim. In the cases whereby eligible claimants had no children and brothers it means that no one has a right to claim on his/her behalf. Married sisters, nephews, cannot claim.
Communities having to pay back compensation that they receive when they were forcibly removed, it is immoral. The apartheid government subjected people to major losses and sufferings, the compensation that they received is nothing compared to their losses.
Labour Tenants Act
The Labour Tenants Act definition effectively excludes most farmdwellers and labour tenants. The act state that labour tenants should be those who:
· work without being paid
· have right to use the land for settlement farming, and grazing purposes and
· persons parents history and background be traced and found in the farm.
Most of the labour tenants are being paid meagre wages in the farms and this will effectively excludes this category of labour tenants. It is also a problem like in Restitution, that R15000 are being used to compensate labour tenants. The rights of people to land cannot just be equated to R15000.
Gear is being seen as posing a major threat to the social programs like land reform. The cuts in land reform budget is worrying and with the government intentions to drastically reduce the government spending, programs like land reform are on the line.
We suggest that land reform should be supply driven i.e. the state must acquire land at a fair and equitable price and then redistribute the land to the landless. The good arable land should be given to people who will make productive use of it. By this approach the state will be proactive and it will be able to monitor and evaluate the success of the programme. The state has got more muscle to influence the land market than the rural poor people.
We suggest that the state go all the way out to get white farmers/landowners to donate land for redistribution purposes. This will be their contribution to the reconstruction and development of this country. The programme should be coupled with an incentive to farmers who heed the call and some form of penalty to those who do not.
The state should explore a variety of the non-market approach to land reform. The DLA must proactively investigate these options, in other countries and by piloting some of the non-market options in the state owned land. Land for the tiller programme is an example of the non-market option. This programme essentially involves converting tenants and sharecroppers into owner operators. This may involve compulsory sale of both leased and tenanted land.
It does not make sense for government to sell stateland at a market value to tenants. The state must give those tenants rights to use the land.
The R15000 should be used flexibly, for example, if a community is residing on the state land and want to use their grants to only develop the land. This should be made possible.
We appeal for the scrapping of the property clause in the constitution.
The restitution 1913 cut off date should be removed and the interpretation be broadened to include people who lost land through apartheid practices.
The land claim court should be a traveling court so that it will be accessible to the majority of the people.
One of the prime objectives of land reform is to create economic opportunities for people and contribute towards the country's economic growth. The programs that are presently in place are not geared towards achieving that goal. The state must start to proactively redistribute prime agricultural land to thriving black farmers and provide them with necessary support.
As AFRA we are optimistic that the challenges facing land reform can be overcome if the state can start playing a proactive role in redistributing land and ensuring securing of tenure for all. The government needs to devise an effective information dissemination strategies so as to make sure that people are aware of government intentions on land reform. The government needs to ensure that her line function departments work in a cooperative and co-ordinated fashion to facilitate the smooth implementation of integrated development. We therefore appeal that our submission be taken seriously by the portfolio committee on land policy.