SAPOA believes that while the historical background of land ownership needs to be addressed, it is critically important that South Africa navigates carefully through the sensitivities, with the greater vision being to ensure that the imbalance is dealt with and economic stability continues to be reinforced.
“SAPOA supports a land reform process that is a "win-win" scenario, in which the rights of present and future landowners are protected. A key challenge facing South Africans is how to reverse the racial inequalities in land resulting from our colonial past and the violent dispossession of indigenous people of their land,” comments Mr Neil Gopal, CEO of SAPOA. “We need more clarity and debate on the factors responsible for the slow pace of land reform. Are there not existing fundamental contradictions between the protection of private property, the willing buyer / willing seller principle and the property clause in the SA Constitution?”
“We understand that the country cannot afford to protect private property with such zeal that it entrenches privilege. This is a recipe for instability. The guarantee of private ownership and the need to address the ills of the past (with regard to property) are fundamental to a stable democracy,” he adds.
SAPOA’s view is that the establishment of the proposed Land Management Commission and the associated Land Management Board and Office of the Valuer-General is infringing on the jurisdiction of the South African courts. The courts current responsibilities include: determining the amount of compensation payable on the expropriation of land, a task the green paper proposes to give to a state official (the new valuer-general) in place of the courts; deciding whether title to land should be ‘invalidated', a job the green paper proposed to give to a state bureaucracy (the land management commission).
“The Constitution of South Africa allows our courts to act in accordance with constitutional principles and provisions and we must have some level of confidence in this,” Gopal says.
Section 25 of the Constitution enshrines the right to property, which is a standard international human right. It states that no one may be deprived of property except in terms of the law of general application, and no law may permit arbitrary deprivation of property. It says that property may be expropriated only in terms of the law of general application for a public purpose or in the public interest; and subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
This Section makes detailed provisions on compensation by stating: “The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances.”
Section 25 also sets out the context in which these provisions may be of relevance, stating: “For the purposes of this section the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources; and property is not limited to land. The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress. A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.” If the Constitution clearly highlights this important matter, why then should South Africa have a Land Management Commission doing the same?
The issues as highlighted in the green paper clearly bypass the Judiciary and the intention appear to be to establish a new norm: that the amount of compensation payable on expropriation can be decided by a state official and that title to land can be set aside by a new bureaucratic body, the land management commission. SAPOA believes that the powers and duties of such Commission should not override or have similar powers to those of already established institutions such as judicial courts whose independence from the parliamentary is a requirement for any democratic society. Our Constitution entrenches the doctrine of separation of powers between three different but interdependent components or arms, namely Cabinet, Parliament and the Courts of law.
The historic challenges that the green paper on land reform seeks to address are recognised and accepted as critical and inherent realities that the South African community has inherited and has to disown in a manner that is morally but legally fair and just. While SAPOA embraces the principles underlying land reform, it however does so by supporting the vision and the implementation strategy of the White Paper on South African Land Policy of April 1997, which, amongst others, recognised the underpinning of economic growth. It is hoped that the white paper on land reform will be cognisant of such vision and in furtherance thereof, balance the interests sought to be addressed by the Green Paper with those of a need for growth of the commercial property sector.
“South Africa must be a nation that recognises a need for land reform and that accepts that such must be done being cognisant of property rights and a need for a thriving and competitive economy,” Gopal concludes.
