Feet on the Earth or Head in the Clouds? The State Plans Our Agricultural Future: Part V - The Two Departments - Overlapping Jurisdictions and the Coherence of Legislative Proposals

The previous four briefs have dealt with the Minister of Agriculture, Forestry and Fisheries (DAFF) and its Draft Preservation of Agricultural Land Framework Bill. But there is a second player in the field: the Department of Rural Development and Land Reform (DRDLR). Their purposes and programmes overlap. The purposes and programmes specified in Budget 2015: Estimates of National Expenditure are as follows:
 

The Department of Rural Development and Land Reform intends to introduce five bills in parliament by the end of the year. None has been published yet, but their names and purposes are set out in the Department’s Strategic Plan for 2015 to 2020. They are:

1. ​The Communal Land Bill, designed to transfer communal land to communities and to members of communities and to provide for the administration of communal land.
2. The Regulation of Land Holdings Bill, which will require disclosure by land owners of their nationality, race and gender, the circumstances under which foreigners may own or have access to land, the establishment of a register of land ownership and the resolution over conflicts when two or more deeds have been issued in respect of the same land.
3. The Communal Property Associations Amendment Bill, designed to redefine the communities to whom the provision of the Act apply.
4. The Extension of Security Tenure Amendment Bill, which aims to find lasting solutions to tenure insecurity on commercial farms by combining land redistribution measures within effective legal protection and dispute mechanisms.
5. The Electronic Deeds Registration Bill, which will provide for an electronic deeds registration system.

Also relevant is the Spatial Planning and Land Use Management Act, passed last year.  

While detailed comment must await publication of the Bills, some questions are already apparent.

1. How will existing deeds and the Deeds Office relate to the electronic deeds registration system, the DRDLR’s proposed Land Register and DAFF’s Land Register? The DLDR’s register relates to ownership, whereas the DAFF register deals with agricultural land and is to contain material on land capacity, land use, environmental encumbrances, water licenses and other natural resource information.
2. How will the land redistribution measures in the Extension of Security Bill relate to provisions about subdivision in the Preservation and Development of Agricultural Land Framework Bill (the DAFF Bill)?
3. How consistent will be the treatment of foreigners between the Regulation of Land Holdings Bill and the DAFF Bill? The State of the Nation address 2015 promised that no new purchase of agricultural land by foreigners will be allowed, yet the DAFF Bill provides for applications by foreigners for purchase.
4. Will household rights to land in communal areas be registered anywhere? If so, where and how?
5. Given that more than half privately agricultural land is owned by companies and trusts, what is the point of disclosure of race and gender by individual owners?
6. Under which legislation are limits on maximum farm sizes to be specified? And what exactly is to be the form of these maxima?  

Current statements on this issue are confusing. The State of the Nation 2015 address announced the policy of a limiting all farms to a maximum of 12 000 hectares. The Minister of Rural Development and Land Reform said the following in his 2015 budget speech:
 

We have come up with the following policy proposals on the ceilings, for both natural and juristic persons: 

a) SMALL SCALE FARMS. The ceiling for a viable commercial small scale farm should be 1 000hectares; 
b) MEDIUM SCALE FARMS. The ceiling for a medium scale viable commercial farm should be 2 500 hectares; and, 
c) LARGE SCALE FARMS. The ceiling for a large scale viable commercial farm should be 5 000 hectares. 

We have come up with a SPECIAL CATEGORY to address the 12 000ha maximum announced by the President. We are proposing that this maximum applies only to three categories of land use: forestry, game farms and renewable energy farms, especially wind energy. 

Any excess land portions shall be expropriated and redistributed, and compensation will be on the basis of the ‘just and equitable’ principle enshrined in section 25(3) of our Constitution.  

This raises the following questions:

1. What are small scale, medium scale and large scale farms? The term ‘scale’ suggests classification by size, but then the policy proposals become logically circular and therefore useless.
2. Should the type of land and the local climate not be considered in determining maxima?  The DAFF policy proposal reveals huge differences in average farm size. In 2007, the Free State had the smallest average commercial farm size at 439 hectares, and the Northern Cape the largest at 4 907 hectares, more than eleven times larger than Free State. Why? Much of the Free State land is under crops, whereas most of the land in the Northern Cape is arid range land. One law for the lion and the ox is oppression.
3. Can the country afford expropriation of excess land from farmers? Might not the excess portions form subeconomic farming units?

Optimal land use, food security, land redistribution, modernising communal land tenure, and rural development and reduction of rural poverty are all government goals. But there are tradeoffs between them. There is, as yet, no sign of acknowledgement of these tradeoffs, much less an indication of how they are to be approached.

The cover of the DLRD strategic plan has a photograph of people marching towards the future in departmental uniform, with arms swinging high. The march will be long and circuitous over difficult terrain, with battles on the way. Soldiers leaving for war in August 1914 thought they would be back for Christmas. They weren’t.




Charles Simkins
Senior Researcher
charles@hsf.org.za