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Implementing presidential advisory panel on land reform: any progress?

Abstract

This report is formulated as a desktop-researched briefing paper on the progress made or lack thereof in implementing the recommendations by the Presidential Advisory Panel (PAP) on Land Reform. Due to the extremely broad nature of land reform in South Africa, and the wealth of literature already published on the overall topic of national land reform,[1] the focus of this brief is not on land reform, in general. Instead, the first of the quarterly briefings performs an analysis of the progress areas in the uptake of the PAP report, and areas that appear to be lacking in the uptake of the Panel’s recommendations. We also outline our findings on the factors contributing to both the progress in uptake of the PAP report, and the lack, thereof; together with recommendations and steps that could be taken, to make further progress in the important area of land reform.[2]

1       Introduction

Since 1994, the policy of Government towards land reform has been framed under three separate pillars, namely land redistribution, restitution of land rights, and land tenure [8], [9].[3] Following 25 years of perceived stagnation in land reform in South Africa, and at the request of the Presidency, the report of the Presidential Advisory Panel (PAP) on Land Reform and Agriculture [10], was completed in May, and released in July 2019. The PAP report presented 11 areas for immediate action to be taken towards land reform,[4] together with 4 recommendations to refocus land reform policy, and 32 recommendations towards a consolidated land reform policy framework.[5] The Advisory Panel consequently added a fourth dimension to land reform, under the concept of land administration, which is somewhat related to tenure reform [14].

1.1       Cabinet response to the PAP report

Cabinet’s response to the PAP report was generally positive, although not all of the Panel’s recommendations were endorsed [11]. Addressing a media briefing in Tshwane, the Department of Agriculture, Land Reform and Rural Development (DALRRD) Minister Thoko Didiza stated that “some of the issues raised or reflected upon by the Advisory Panel were matters already being addressed”; and that “the recommendations were seen as the affirmation of the work already being done” [11]. Didiza stated that “There were some recommendations that were not accepted – not because the issues raised were not important, but such recommendations required further engagement of a policy nature.”

Among the recommendations that were not endorsed by Cabinet were the following [11]:

  • Redirecting the responsibility for coordinating rural development from the Department of Rural Development and Land Reform (DRDLR) to the Presidency, since this decision was already made by the Government, in its sixth administration.[6]
  • The establishment of a land agrarian reform agency, as this had been addressed by configuring the Department to combine land reform and agriculture.
  • The creation of a land reform fund, as it was claimed that Government saw no merit in this due to current State budget allocations for addressing land reform.
  • The establishment of a national land rights protector to manage conflicts at a high level, particularly between citizens and the State, since this issue was said to already have been covered within the expanded mandate of the Land Courts Bill.
  • An enquiry into land tax, since this was already being performed by the finance minister, with land tax being incorporated into the property rates legislation.

Didiza also noted that further work on some of the Panel’s recommendations would need to be undertaken, while acknowledging that “Given its time frame”, it could be respected that “some recommendations could not be extensively canvassed [in the report]” [11]. [7]

The decision of Cabinet not to endorse some of the Panel’s recommendations was supported by various bodies, including Agri SA, where Head of Land Affairs Annalize Crosby stated that regarding land ceilings and a land tax, the organisation was “relieved” that Government chose “not to blindly implement those recommendations.” Agri SA did, however, appear to support the implementation of a land reform fund, through public-private partnerships, as being “essential”, and that current budget allocations for land reform were far lower than required.[8] Agri SA supported the formation of an agricultural development agency; while noting that the costs of such an agency would need to be considered.

1.2       Public debate regarding the PAP report

Clearly, the issue of land reform in South Africa is one of the most contentious socio-political issues being addressed in the country, today, and the report drew scepticism, praise, and criticism in equal amounts.[9] It has been argued, though, that this was to be expected in light of the subject matter, as it deeply affects people’s lives and livelihoods [20].[10] The nature of the issues, therefore, are an expected contention that have resulted in stagnation in the uptake of the PAP recommendations, and which cannot be ignored.

1.2.1      Criticisms of the PAP report

Although the PAP report has been generally well received, with various reviewers arguing that it drives the debate on land reform forward, there are some issues that its critics have raised, as outlined next [21].

1.2.1.1     The expropriation of land without compensation (EWC)

The report has spurred considerable debate on the topic of expropriation of land without compensation (EWC); and in particular, whether to amend Section 25 of the Constitution to enable EWC [21]. It has been noted that a cause for stagnation in the uptake of the report is its lack of clarity in many of the definitions contained, therein. For instance, the report proposes that EWC should be applied in instances of hopelessly indebted land, farm equity schemes, abandoned land, and land acquired through criminal activity [15].

However, definitions are not provided, therein, to indicate whether a holiday home, or fallow land between crop rotations, for instance, are “abandoned land”; or whether the historical “theft” of Africans’ land by the Europeans constitutes criminal activity; and/or whether criminal blame is transferrable across genetic lineage [15].[11] Another issue noted for stagnation in the procedures for EWC is that it will require a change in Section 25 of the constitution [22]; and if there is a change in Section 25 to allow EWC of land assets, this could pave the way for the expropriation of any asset, including provident funds, pensions, and so forth — while also leading to a collapse in investor confidence in the country, and economic collapse [15], [23], [24].[12]

1.2.1.2     Land tax

The report has spurred debate on the recommended land tax, which should be levied as a punitive measure on those occupying underutilised or unproductive farmland [21].

1.2.1.3     Land ceilings

The report has spurred considerable debate on the recommended land ceilings that would regulate the maximum size of landholdings by any corporation or individual [21].

1.2.1.4     Additional issues

Another frequent criticism of the report is that it has failed to detail the systematic and deep structural challenges that are engrained in the current processes of land reform, such as the slow assessment and finalisation of land claims — where a backlog of cases persists [26].[13] It has been criticised that there are weaknesses with elements of incoherence in the PAP report, and “in some cases blatant contradictions” [20].[14] Another aspect of contradiction that has been noted is the association between the PAP report, and an August 2019 paper by the National Treasury, titled: ‘Economic Transformation, Inclusive Growth, and Competitiveness: Towards an Economic Strategy for South Africa’ [14].[15] It has been argued that the Treasury paper offered some schematic comments on land reform and agriculture, while dealing with broader economic issues in the country; however, that there were numerous contrasts between that document and the PAP report, which have prompted considerable uproar, while heralding possibilities for significant adjustments to policy that counter the PAP report [14].

It has been argued, too, that the report fails to locate its recommendations within the current fiscal crisis, which is placing tight limits on future state expenditure towards land reform [14]. While it is conceded that the report acknowledges continued pervasive corruption and severe capacity constraints within the State, it is criticised to have made recommendations based on the notion that the State can launch, oversee and fund the complex new initiatives, agencies and legislations proposed. Appraisers have also argued that, after two decades of too many unsuccessful projects, administrative failures, unmet deadlines, and unrealistic targets, the report does not address how the State will now be able to avert such issues from continuing [14].[16]

1.2.2      Commendations of the PAP report

While the Panel’s report has generated a considerable amount of debate, it is worth highlighting that numerous aspects have been commended. A factor that has been repeatedly lauded, for instance, is its addressing of ‘land administration’ as a critical issue in land reform.[17] At this time, there does not appear to have been much effort by the State towards the Panel’s recommendations for implementing any land administration systems; however, the report has been applauded for encouraging appropriate systems of recording and valuating people’s rights, while formalising informal settlements — a long-overdue and necessary aspect of land governance [20]. Commentators have also welcomed the Panel’s emphasis on urban land, and incorporating urban areas into the framework of policy and practice regarding land reform; where it is acknowledged that there is considerable demand for land in the peri-urban and urban areas [14].

2       Progress areas in land reform in South Africa

Since the release of the PAP report, there have been numerous progress areas that are worth highlighting. These relate to amendments to Section 25 of the Constitution [22], financing developments for land reform, and new private-public-community partnerships, as noted, here.

2.1       Amendments to Section 25 of the constitution

Land expropriation is currently allowed in Section 25 of the Constitution, but it must be compensated [22]. The African National Congress (ANC) and the Economic Freedom Fighters (EFF) have been leading the drive to amend Section 25 of the Constitution to allow for EWC, though the two parties do not agree on how it should be achieved. The EFF is calling for all land to be transferred back to the State, and for the State to act as the custodian of South Africa’s land resources; while the ANC has been pushing for restitution and redistribution for individual South Africans [28], [29].[18] The Advisory Panel has also recommended that EWC should be pursued, provided certain circumstances are met.[19]

Since the release of the PAP report, an ad hoc parliamentary committee has been drafting an EWC constitutional amendment bill [23]; and the bill to amend Section 25 of the Constitution was gazetted on December 6, 2019 — the period allowing public comments closed on January 31, 2020 [30]. It is important to emphasise that the bill does not define the circumstances wherein the provision for EWC could be allowed; though it stipulates that legislation should be drafted to codify when a court may determine that compensation should be nil [30].

2.2       Financing land reform

There have been some recent developments in line with the Panel’s recommendations for financing of land reform through funds that create investment opportunities for individuals and corporate capital market participants to make meaningful contributions to land reform. A recent progress area is the establishment of a new Agricultural Development Agency (SAADA), focussed on private sector financing for agricultural partnership projects [31]. In November 2019, an announcement was made at the South African Investment Conference that the Agency would invest R12.9 billion into 32 schemes.[20] Although this amount may not all be available, immediately, it is a significant amount relative to the State’s current land reform budget. [21]

2.3       Private-public-community partnerships

There have been some recent inspiring instances of private agricultural partnerships, such as Project CHANGE, which has been formed between family-owned and –run business Schoonbee Landgoed, with black-owned equity partner Thebe Investment Corporation. The CHANGE initiative has the possibility to offer a lasting, innovative model for partnership development between black institutional investors and white commercial farmers, while supporting new entrant farmers (including small holders) and empowering local communities to achieve financial viability [26].

3       Stagnation in land reform in South Africa

The brief turns, now, to areas that appear to be lacking in the uptake of the Panel’s recommendations, or otherwise, where land reform continues to be stagnant.

3.1       Land redistribution

It has been observed that elite capture in land distribution in South Africa is still not being adequately addressed; and despite calls by the PAP report for previously disadvantaged people, who are currently still disadvantaged, to benefit more than individuals who are now advantaged, this has not changed [8]. This has been attributed to the officials of many departmental offices considering the redistribution of land to be a discretionary mechanism, as opposed to a rights-based system [32]. Of particular note is the redistribution of land to women and people with disabilities, who despite repeatedly being listed as priority groups in government policies in recent years (and again in the PAP report), such groups are still failing to achieve equitable land access.[22]

3.2       Restitution of land rights

Achieving the principles of restitution remains an urgent priority; however, it has been argued that at present, there is still no end in sight [14]. There is a considerable emphasis on job creation, in both the PAP and National Treasury paper, where an emphasis is placed on small holders as being a primary route to achieving this.[23]

3.3       Land tenure

Since the release of the PAP report, there is, as yet, no certainty for the tenure of either transferred land, or communal areas, nor how it will proceed, in future [14]. It clearly formed a difficult challenge for the PAP to arrive at an agreement on this, and to achieve consensus on the other important issues at hand. However, it has been argued that the recommendations of the PAP are at times inconsistent, and raise questions about the political control of land, agricultural production, and capacity [14].[24] An argument that has been proposed for the slow uptake of agrarian reform, in general, is the increasing urbanisation of South African communities; where it is argued that a return to small-scale farming lifestyles is neither wanted nor practical, among many of the younger black South African population [23].

4       Steps to further the successful execution of the recommendations of the PAP report

There is a volume of literature and recommendations for steps that could or should be taken to progress further in the areas of land reform in South Africa.[25] Indeed, even the members of the original Panel were in disagreement as to the nature of the narrative and the recommendations to follow, with certain members proposing a minority report as to the actions that should be performed [33]. The focus of this brief, therefore, is on the steps that have been proposed, in the literature, which would further the successful execution of the recommendations of the PAP report.

4.1       Land redistribution

In the literature, it is recommended that if Government is to prioritise all previously disadvantaged citizens in South Africa, the DRDLR must adopt the PAP recommendation for women to constitute an equal 50% of land reform beneficiaries, acquire an equal 50% of the available budget, and be awarded an equal 50% of redistributed land.[26] We support this recommendation.

4.2       Restitution of land rights

It has been proposed [14] that a specialised unit should be established working alongside or within the Land Claims Commission, with the necessary resources and skills to swiftly identify and investigate claims. We support this suggestion, as well as with the position that the Land Claims Court should be provided more authority in its mandate; and that greater clarity and improved research should be encouraged by the Commission into the validity of claims to reduce the time and costs of court cases [14].

The literature also recognises that certain constraints of small-scale farming result from issues in the policies of other Government departments and sectors [27]; and we support the stance that these constraints should be investigated and addressed simultaneously to implementing an employment-intensive land redistribution programme. Such efforts have been recommended to include bridging policies related to enhancing the understanding of small-scale farming through improved data collection, state procurement, climate change, environmental management, water allocation reform, and informal agricultural markets [27].

4.3       Land tenure

We also support the argument in the literature that Government and local policy makers should consider expanding on additional innovative approaches to land tenure reforms that respond to agricultural transformation and security of tenure; such as in Botswana, which has made substantial development by integrating a modern system of land administration with traditional tenure for both commercial and customary land applications [9]. We also acknowledge the indications in the literature of other innovative mechanisms of dealing with land tenure issues, such as those being generated by people in rural KwaZulu-Natal; such as for people to exchange communal tenure rights for fees that are endorsed by the traditional leadership [9].

4.4       Land administration

We support the literary need for attention to be focused on developing an integrated land administration and management framework; as it would arguably offer a potentially unifying mechanism to conceptualise and build a common framework of land governance [19], [20]. We also join the knowledge base in welcoming the Panel’s endorsement of land administration as a fourth pillar of land reform.

5       Conclusion

In conclusion, the sticking points of land reform remain sticky; however, we support the literary vantage of cautious optimism about many of the key elements that were deliberated and suggested by the Panel in the PAP report, such as those concerning the need for attention to be focused on developing an integrated land administration and management framework. We also join the knowledge base in welcoming the Panel’s endorsement of land administration as a fourth pillar of land reform; while concurring with the view that it would offer a potentially unifying mechanism to conceptualise and build a common framework of land governance which, to date, has been sorely missed.

 

 

6       References

[1] Hull, S., Babalola, K. and Whittal, J., 2019. Theories of Land Reform and Their Impact on Land Reform Success in Southern Africa. Land, 8(11), p.172.

[2] Maka, L. and Aliber, M.A., 2019. The role of mentors in land reform projects supported through the Recapitalisation and Development Programme: Findings from Buffalo City Metropolitan Municipality, South Africa. South African Journal of Agricultural Extension, 47(2), pp.37-45.

[3] Chikozho, C., Makombe, G. and Milondzo, K., 2019. Difficult roads leading to beautiful destinations? Articulating land Reform’s contribution to rural livelihoods in the Limpopo Province, South Africa. Physics and Chemistry of the Earth, Parts A/B/C, 111, pp.13-19.

[4] Antwi, M. and Chagwiza, C., 2019. Factors influencing savings among land reform beneficiaries in South Africa. International Journal of Social Economics, 46(4), pp.474-484.

[5] Koot, S. and Büscher, B., 2019. Giving Land (Back)? The Meaning of Land in the Indigenous Politics of the South Kalahari Bushmen Land Claim, South Africa. Journal of Southern African Studies, 45(2), pp.357-374.

[6] Aliber, M., 2019. How can we promote a range of livelihood opportunities through land redistribution? Cape Town: Institute for Poverty, Land and Agrarian Studies (PLAAS), Working Paper 58. Available from: http://repository.uwc.ac.za/xmlui/bitstream/handle/10566/4654/wp_58_promote_livelihood%20_opportunity_land_redistribution.pdf?sequence=1 [Accessed 1 July, 2020].

[7] Bank, L.J. and Hart, T.G., 2019. Land Reform and Belonging in South Africa: A Place-making Perspective. Politikon, 46(4), pp.411-426.

[8] Conradie, B., 2019. Designing successful land reform for the extensive grazing sector. South African Journal of Agricultural Extension, 47(2), pp.1-12.

[8] Venter, C., 2020. Land reform: a package deal? current affairs. FarmBiz, 6(1), pp.11-13.

[9] Mkhabela, T., 2020. OPINION: Land and land tenure reforms for agricultural transformation in Southern Africa. IOL, 9 July. https://www.iol.co.za/business-report/opinion-land-and-land-tenure-reforms-for-agricultural-transformation-in-southern-africa-50606833 [Accessed 1 July, 2020].

[10] Presidential Advisory Panel on Land Reform and Agriculture (PAP)., 2019. Final Report of the Presidential Advisory Panel on Land Reform and Agriculture, 4 May. Pretoria: Government Printers.

[11] Sokutu, B., 2019. Agri SA backs a land fund. The Citizen, 23 Dec. Available from: https://citizen.co.za/news/south-africa/government/2221152/agri-sa-backs-a-land-fund/ [Accessed 1 July, 2020].

[12] Moolman, H.J., 2019. New recommendations concerning expropriation without compensation: management & technology. Stockfarm, 9(11), pp.56-56.

[13] De Satgé, R. and Phuhlisani, N.P.C., 2020. Thematic study: The strengths and weaknesses of systems of land tenure and land administration in South Africa and the implications for employment intensive land reform. Capacity Building Programme for Employment Promotion (CBPEP). Available from: https://repository.uwc.ac.za/xmlui/bitstream/handle/10566/5236/20200331%20FINAL%20GTAC%20Thematic%20Study_Tenure%20and%20Land%20Admin%20branded.pdf?sequence=1&isAllowed=y [Accessed 1 July, 2020].

[14] Beinart, W. and Delius, P., 2019. Next steps towards land reform. CDE Insight, December. Available from: https://media.africaportal.org/documents/Next-Steps-towards-Land-Reform-CDE.pdf [Accessed 1 July, 2020].

[15] Maré, F., 2019. # EWC: comments on the Presidential Advisory Committee’s report. FarmBiz, 5(10), pp.14-15.

[16] Mboweni, T., 2019. Budget. National Treasury, February 2019. Available from: https://www.gov.za/speeches/budget_vote [Accessed 1 Jul, 2020]

[17] Gcoyi, T., 2019. A budget for tough times with an eye on the election. News24, 22 Feb. Available from: https://www.news24.com/news24/columnists/guestcolumn/a-budget-for-tough-times-with-an-eye-on-the-election-20190221 [Accessed 13 Jul, 2020].

[18] Mwelase and Others v Director-General for the Department of Rural Development and Land Reform and Another (CCT 232/18) [2019] ZACC 30; 2019 (11) BCLR 1358 (CC); 2019 (6) SA 597 (CC) (20 August 2019)

[19] Kingwill, R., 2019. Five months and counting: Let’s focus on the unifying threads in the presidential land reform report. Daily Maverick, 26 November. Available from: https://www.dailymaverick.co.za/article/2019-11-26-five-months-and-counting-lets-focus-on-the-unifying-threads-in-the-presidential-land-reform-report/#gsc.tab=0 [Accessed 1 July, 2020].

[20] Kingwill, R., 2019. Five months and counting: what can SA expect from the presidential land reform report? Daily Maverick, 22 November. Available from: https://www.dailymaverick.co.za/article/2019-11-22-five-months-and-counting-what-can-sa-expect-from-the-presidential-land-reform-report/#gsc.tab=0 [Accessed 1 July, 2020].

[21] Kapuya, T., 2020. Don’t ignore these aspects of the land panel report. Farmer’s Weekly, 27 September. Available from: https://www.magzter.com/article/Animals-and-Pets/Farmers-Weekly/Dont-Ignore-These-Aspects-Of-The-Land-Panel-Report [Accessed 1 July, 2020].

[22] Republic of South Africa., 1996. Constitution of the Republic of South Africa, Act 108 of 1996. Pretoria: Government Printers.

[23] Jeffery, A., 2019. Reaching the Promised Land: An alternative to the report of the Presidential Advisory Panel on Land Reform and Agriculture. South African Institute of Race Relations, No 5, September. Available from: https://irr.org.za/reports/atLiberty/files/liberty-issue-44-reaching-the-promised-land-18-09-2019.pdf [Accessed 1 July, 2020].

[24] Viljoen, S., 2020. Expropriation without compensation: principled decision-making instead of arbitrariness in the land reform context (part 1). Journal of South African Law/Tydskrif vir die Suid-Afrikaanse Reg, 2020(1), pp.35-48.

[25] Beinart, W. and Delius, P., 2019. Land reform report is a flawed document. Daily Maverick, 12 August. Available from: https://www.dailymaverick.co.za/article/2019-08-12-land-reform-report-is-a-flawed-document/#gsc.tab=0 [Accessed 1 July, 2020].

[26] Jeewan, E., 2019. Harvesting transformation opportunities in the agricultural sector. DealMakers: South Africa’s Corporate Finance Magazine, 20(3), pp.50-54.

[27] Cousins, B., Alcock, R., Aliber, M., Geraci, M., Losch, B., Mayson, D. and de Satgé, R., 2020. GTAC/CBPEP/EU project on employment-intensive rural land reform in South Africa: policies, programmes and capacities. Capacity Building Programme for Employment Promotion (CBPEP). Available from: https://freecourseware.uwc.ac.za/bitstream/handle/10566/5226/20200331%20FINAL%20GTAC%20Report_Employment%20Intensive%20Land%20Reform%20Branded.pdf?sequence=1&isAllowed=y [Accessed 1 July, 2020].

[28] Feketha, S., 2020. Repossess all of South Africa, says EFF’s Floyd Shivambu. IOL, 8 July. https://www.iol.co.za/news/politics/repossess-all-of-south-africa-says-effs-floyd-shivambu-50584206 [Accessed 1 July, 2020].

[29] Shivambu, F., 2020. Without state custodianship there will never be equitable redistribution of land. IOL, 12 Jul. Available from: https://www.iol.co.za/sundayindependent/dispatch/without-state-custodianship-there-will-never-be-equitable-redistribution-of-land-50870708 [Accessed 1 July, 2020].

[30] Africa News Agency., 2019. EFF criticises ‘insufficient’ public notice on land amendment bill. IOL, 31 December. Available from: https://www.iol.co.za/news/politics/eff-criticises-insufficient-public-notice-on-land-amendment-bill-39897353 [Accessed 1 July, 2020].

[31] Smith, C., 2020. New agriculture development agency aims for R25bn in investment. News24, 19 Feb. Available from: https://www.news24.com/fin24/economy/south-africa/new-agriculture-development-agency-aims-for-r25bn-in-investment-20200219 [Accessed 1 July, 2020].

[32] Ramantsima, K., Mtero, F., Gumede, N., Du Toit, A. and Hall, R., 2020. National policy for beneficiary selection and land allocation. Cape Town: Institute for Poverty, Land and Agrarian Studies (PLAAS). Available from: https://repository.uwc.ac.za/bitstream/handle/10566/5198/PLAAS%20-%20Beneficiary%20Selection%20and%20Land%20Allocation%20-%20Comments.pdf?sequence=1&isAllowed=y [Accessed 1 July, 2020].

[33] Kriek, D. and Serfontein, N., 2019. Alternative perspectives on land reform based on sustainable economic growth and nation building principles. Available from: https://www.tlu.co.za/wp-content/uploads/2019/08/Alternative-perspectives-on-land-reform-Dan-Kriek-and-Nick-Serfontein.pdf [Accessed 1 July, 2020].

[34] Republic of South Africa., 1996. Interim Protection of Informal Land Rights Act 31 of 1996. Pretoria: Government Printers.

[1] See [1], [2], [3], [4], [5], [6], [7], [8].

[2] Note that, unless expressly stated as such, the opinions of this brief are not those of the Southern African Catholic Bishops Conference (SACBC) or Royaa Creative Solutions, but of the cited authors and literary contributors.

[3] Land redistribution refers to the reallocation of land ownership according to transformation principles of representativity; restitution of land rights considers the restoration of land rights to people who were previously dispossessed of their land as a result of the enforcement of colonialism and the laws of apartheid; and land tenure covers policies attempting to strengthen the property rights of people already occupying commercial and communal land under different relatively insecure tenure systems [8], [9].

[4] The 11 areas for immediate action included creating a consolidated system for integrated planning and land information; allocating land already acquired by the State; availing land in the medium term; developing a proactive targeted programme for land acquisition and allocation; land expropriation; developing guidelines for beneficiary selection; finalising and developing the national transformation fund and spatial development framework; establishing a land reform fund; assessing and refocusing private partnerships for empowerment; enhancing rural-urban linkages and strengthening food systems; and defining a consistent policy towards land allocation and settlement [10]. The Panel employed various processes to develop its recommendations, such as consulting a range of stakeholders including state entities and government departments, and reviewing various legislation and policy [11].

[5] See also [12], [13] for overviews of the PAP report.

[6] The opinion of the Constitutional Court on land reform, as noted in the judgment of Mwelase and Others v Director-General for the DRDLR [18], was that equitable land reform has taken more than 25 years, in South Africa, and the Department’s failure to practically expedite and manage its land reform duties is not the fault of the country’s laws, nor the courts nor the Constitution; but the institutional incapacity of the Department itself [11].

[7] It is worth noting that the PAP was formed in the footsteps of the High-Level Panel (HLP) on the Assessment of Key Legislation and the Acceleration of Fundamental Change; which had had 2 years to develop its recommendations. The PAP had only 7 months to prepare its recommendations, from September 2018 to May 2019; however, many of the facets of land reform indicated in the HLP re-emerged in the PAP report [15].

[8] See also the budget tabled in Parliament, in February 2019 [16]. See also [14], [17].

[9] There are generally three types of responses that have been observed: free-market advocates are concerned about minimal state control, asset-formation and private property; agrarian reformers are concerned with ownership as a mechanism (or not) for accumulation, and the middle class is apprehensive about protecting their property rights [19].

[10] Institutions and individuals have tended towards strong ideological or sectoral biases focused on red flags, often quoting extracts or redacting parts of the report in a way that ignores the logic or broader contexts underlying the issues concerned; while academia and the media have tended towards general optimism regarding the report. Disputes remain hotly contentious regarding the protection of private property, market priorities, the optimum scale of farming operations, and the targets and goals of land redistribution [20].

[11] Different opinions on EWC evoke a broad array of responses, from euphoria to fear; though the Panel approached EWC with constructive pragmatism [20].

[12] It has been argued that EWC and restitution are not beneficial for lasting job creation and investment; and that the ANC’s perceptible dedication to EWC, even in its undefined form, hampers confidence among all land owners [25].

[13] Some reviewers have stated, for instance, that “while we agree with the view that it is a helpful intervention, we are sceptical that it can or should carry the weight of expectation that has been placed upon it.” Such reviewers have also argued that as an advisory report, it must be “set against the existing slate of all policies being pursued by the state” [14].

[14] Although it has been acknowledged that such contradictions are to be expected in view of the tight time frames, and the range of representation among the panel members; some critics have argued that is important to reveal such inconsistencies [14], [20]

[15] Released by Minister of Finance Tito Mboweni on 27th August 2019 (see [16]), it is worth highlighting that the figures and references to land reform suggested that some sections were written at an earlier date. On p.39 of the Treasury report, for instance, land transfers were listed as 7.4 million ha; although more-recent government figures indicate 8.5 million ha [14].

[16] The report has also spurred debate among reviewers on aspects such as the eviction of farmworkers when land is transferred to new owners, and land purchases are concluded. An example is the case where farmworkers are the descendants of black people who originally refused to relocate to homelands, and who have as much right to redress as any historically disadvantaged individuals: it has been argued that forced eviction of such individuals would be propagating injustice, and that the report does not suitably address this [21].

[17] Land administration is largely recognised as a bridging concept to denote the mechanisms for coordinating different aspects of land management — requiring well-matched land data management and information systems. See also [13], [27].

[18] In December 2017, at the ANC’s national congress, a decision was made to proceed with the policy of EWC, and in December 2018, the National Assembly (NA) and National Council of Provinces (NCOP) agreed to the amendment of Section 25 of the Constitution to allow EWC [8].

[19] Circumstances include where the land has been relinquished by the owner; has excessive debt burdens; is solely owned for speculative reasons; is unused by the State; was acquired through criminal activities; is used and occupied by former or current labour tenants; is informal residential land; is an urban building without an owner present or exercising any control; is donated land; or a farm equity scheme [12].

[20] Launched in Pretoria on 18 February, 2020, SAADA hopes to facilitate investments into the agricultural sector totalling R25 billion by 2030 [31].

[21] The emphasis, in these initiatives, is on production and projects, as opposed to the percentages of land transferred [14].

[22] There is also, as yet, no progress towards the redistribution of land to the poor, or the recommendation of the PAP for public resources to be rationed; such that middle-scale and small hold commercial farmers and land-poor households are each allocated 30% of the public resources, and large-scale commercial farmers are allocated 10% of the public resources (since they can often leverage private resources) [8], [32].

[23] Debates also persist on whether land reform in particular and farming in general can significantly reduce unemployment; and there is also a range of uncertainties regarding the implications necessary to be able to do so [14].

[24] It has also been argued that certain sections in the report describing land tenure were insufficiently nuanced or not entirely coherent to offer a relevant and credible route to tenure reform; while the recommendations and categorisations were said, at times, to be too blunt or susceptible to misconception [19]. It was also stated that while the report acknowledged that some chiefs made a strong case for maintaining authority over customary land, a central aim should be in strengthening the existing legislation; and particularly, the Interim Protection of Land Rights Act (IPILRA) of 1996 [34], which must be made permanent [9]; [14].

[25] See [1], [2], [3], [4], [5], [6], [7], [8].

[26] It has been proposed that these are the three means by which gender inequality should be quantified [32].

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