Renewed thrust for land reform measures – expropriation, land ceilings, land register?

• 16 May 2025
• 0 Comments
• Agbiz
• Annelize Crosby

Background

The debate on land reform in South Africa does seem like a case of the same proposals coming around again and again. Although South Africa has a clear constitutional and legal framework for land reform, a lack of effective implementation of available measures and instruments coupled with low levels of budgetary allocations for land reform, corruption, lack of political will and lack of capacity, as cited in the 2017 High-level panel report on key legislation[1], has frustrated progress with the various land reform programmes.

The Minister of Land Reform and Rural Development, Minister Nyhontso recently engaged with the portfolio committee on rural development and land reform in Parliament.  He said, amongst other things, that the land redistribution programme is moving at a slow pace and that the slow pace of land reform in South Africa has become a source of mounting frustration for millions. He indicated that the Equitable Access to Land Bill will address this sluggish progress. This Bill is still in the drafting stage.  No draft is available as yet, but from what the Minister and officials of his department have indicated in their presentation to the portfolio committee, the Bill may contain clauses requiring landowners to register their race, a register of agricultural land and land ceilings.

Proposals for land ceilings, a land register, right of first refusal and restrictions on foreign ownership were contained in the 2011 Green Paper on Land Reform.[2] There was a three-year consultation process on these Green Paper proposals and most of these proposals were not proceeded with at that stage.

As far as expropriation is concerned, the first draft of a new Expropriation Bill was done in 2008.  The debate regarding expropriation without compensation started in earnest in December 2017 at the ANC policy conference.

The land debate went very quiet after the failed attempt to amend section 25 of the Constitution.  It has recently picked up again with the signing of the Expropriation Act and the stated intention to pass the Equitable Access to Land Bill.

Progress with land reform and the real reason for the frustrations around land reform

The perceived slow pace of land reform to date and the loss in production on land reform farms, as well as the failure to empower people economically through land reform is a failure of implementation rather than a failure of the legal framework. Generally speaking, land reform as envisaged by the Constitution and embodied in the 1996 White Paper on Land Reform and various pieces of legislation sets a workable framework for land reform.  Lack of adequate budgeting, policy uncertainty, the lack of comprehensive, integrated support systems, poor communication with stakeholders and corruption are the real reasons why land reform has not happened at a faster pace and in a more sustainable manner. The approach of government over many years has not been a focus on fixing these implementation problems, but rather coming up with new laws, policies and programmes.

The perception amongst the majority of the population is that land reform progress is slow.  The Human Sciences Research Council found in 2018, that: “In late 2017, only 21of adults were satisfied with progress in relation to government’s land reform programme, with satisfaction levels fluctuating between 21 and 32% over the fifteen-year interval. Current levels of satisfaction with the implementation of land reform are at an all-time low, which may also partly explain why this policy issue has once again come firmly under the spotlight.

But has there really been so little progress made with land reform?  My colleague Wandile Sihlobo and Prof Johann Kirsten has been doing a lot of research on land reform.  They state in a recent article[3]  that: “Based on our years of work on land reform and agricultural policy it’s unclear to us why such a bill (referring to the Equitable Access to Land Bill) is necessary. We believe there are two reasons a new law would be superfluous. Firstly, South Africa already has roughly 16 laws that address the issue of land. Secondly, policymakers tend to ignore the facts on land reform progress. It is hard not to view the obsession with new legislation by every new minister as a distraction from the core issues. The minister should be focusing on distributing the land the government has acquired to black farmers and give them title deeds.” It is however true that South Africa does not have a redistribution law. That is why the High-level panel report recommended that a Redistribution Bill be adopted. The draft bill included in the Panel report however dealt with subjects such as principles for redistribution, target groups, a land demand register, prioritisation and beneficiary selection.  It did not mention land ceilings or a register of agricultural land holdings, which now seem to be part of the thinking regarding the Equitable Access to Land Bill.

Regarding the land reform statistics, Wandile Sihlobo and Johann Kirsten state the following: “the mix of government programmes to restore land rights and redistribute land has already addressed 25% of the total area of farmland defined and registered by formal title deeds. This means that 19.5 million hectares of the 77.5 million hectares of South Africa’s farmland have been affected by the government land reform programmes. There is an important nuance here: 2.5 million hectares have been acquired by the state and are now owned by the State Land Holding Account….. Included in the total of 19.5 million hectares are private purchases of farmland by black South Africans. We estimate a total of 2.4 million hectares have been acquired in this way up to the end of 2024.”

As far as corruption is concerned, Corruption Watch published a 40-page report in 2019 on:” Unearthing corruption in the land sector”[4] where they refer to 706 reports of land-related corruption reported between 2012 and 2018, 60.6% of which relate to housing and 24.3% to land. One of the findings of the report is that: “Due to the complex nature of South African land and property laws, the administrative red tape related to the acquisition, selling and administration of land, as well as the overlapping responsibilities amongst different authorities, e.g. state departments, state owned companies, the spheres of government and traditional authorities, a major challenge that is presented in this regard is the identification of enablers of corruption in the South African context.” Similarly, a master’s degree thesis by Gaopalelwe Mathiba entitled:” Corruption in land administration and governance: a hurdle to transitional justice in post-apartheid South Africa?”[5], found that: “The persistence of corruption in post-apartheid South Africa and the failure to control it adequately pose a significant threat to the country's transitional justice project and transformation imperatives. The study also concluded amongst other things, that: “corruption in South Africa is largely a function and abuse of political power as it occurs mainly in the public sector and through political offices.”

The Zondo-commission on touched on land related corruption.  Other investigations, including an investigation by the Special Investigating Unit (SIU) examined 148 individual land reform projects between 2011 and 2017, and found that one in four was fraudulent.[6]

Unpacking the need for land reform

The main need for land is for housing in and around urban areas with economic opportunities.   Research by Prof Ivan Turok from the HSRC[7] indicates that:” The legacy of apartheid includes persistent housing shortages, as well as ruinous spatial marginalisation of poor communities from economic and social opportunities. Meanwhile, the public sector retains sizeable amounts of vacant and underused land, some in well-located parts of cities with good access to jobs and social amenities. This land is a valuable resource which, through affordable housing, could help address the chronic shortage of such accommodation in desirable locations and counteract the typically exclusionary character of the property market in many urban areas of South Africa.”

Smallholders occupy a considerable area of agricultural land in South Africa, perhaps 23-25 per cent (over 20 million ha). Prof William Beinart and Prof Peter Delius argue in a 2018 Centre for Development and Enterprise publication[8] that: “there is great scope for innovative thinking and projects on the land already occupied by black smallholders in the former homeland areas or on recently transferred land. This may now constitute around 25 per cent of agricultural land much of it in areas with over 500mm rainfall. It is essential that the current landholders receive upgraded, secure tenure in these areas. Unlocking the productive potential of these areas should be a policy priority.” The two professors conclude by stating that: “A fast track process to land redistribution is likely to be a disaster. Land reform and agricultural policy should be discussed together with the wider aims of food security, cheap food, expanding production, exports, environmental sustainability, deracialisation of corporate enterprises, and the creation of more employment. This requires supporting the existing commercial, highly capitalised farming economy which can also contribute to the growth of more successful smallholder agriculture.”

The role of expropriation

Expropriation should be a measure of last resort.  It does have a function, but international best practice requires clear and transparent procedures for forced acquisition of property, and compensation that will ensure that the affected persons are not worse off after expropriation than they were before. [9]

Conclusion

Any proposed legislative changes in the land reform space should take careful note of all the reports on what the root causes of the frustration around land reform are.  These include the High-level Panel report, the report of the Presidential Advisory Panel, but also reports by Corruption Watch, the HSRC the Centre for Development and Enterprise and expert commentators like Prof Johann Kirsten and Wandile Sihlobo. Unless the underlying causes that include things like corruption, inadequate budgeting, lack of settlement support, proper beneficiary selection are addressed, no new law will really make an impact.  Care should be taken not to cause unintended consequences to the agricultural resources or food security.

 

 

 

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