White Paper

Land ownership in South Africa has long been a source of conflict. Our history of conquest and dispossession, of forced removals and a racially-skewed distribution of land resources, has left us with a complex and difficult legacy. To address the consequences of this legacy, the drafters of the South African Constitution included the following three clauses:

 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.

 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.

The three key elements of the land reform programme - restitution, redistribution and tenure reform - address each of these constitutional requirements.

The policy set out in this document arises primarily

1 INTRODUCTION

1.1 The land policy process

Since 1994, the Department of Land Affairs has developed a comprehensive and far-reaching land reform policy and programme as its contribution to national reconciliation, growth and development. The White Paper on Land Policy is the culmination of a two and a half year process of policy development, consultation and implementation.

The Reconstruction and Development Programme (RDP) provided a set of guidelines and principles that gave direction to the initial process of formulating the land reform policy and programme. By May 1995, with almost a year of experience behind it, the Department of Land Affairs issued a Framework Document on Land Policy. This was the starting point for an extensive process of public consultation on land policy issues. Over 50 organisations, including farmers' associations, NGOs, government departments and concerned individuals, responded to the Framework Document. At the same time, a series of task teams of experts with knowledge in the different areas of land policy worked to refine and develop the different issues. This work, together with the public comments, was then incorporated into a Draft Statement of Land Policy and Principles that was the basic document discussed at the National Land Policy Conference held on 31 August and 1 September 1995.

This historic conference was attended by over one thousand delegates from all walks of life and from all parts of the country. The majority of the conference delegates were representatives from disadvantaged communities and most were from rural areas. The conference document was hotly debated. All participants voiced strongly-held views as to the correct way forward in regard to land policy. These views, together with feedback from the implementation process, were again taken into account in formulating the Green Paper on Land Policy.

The Green Paper, containing a series of firm proposals on a wide range of policy issues, was distributed widely in February 1996. Once more, submissions were solicited from the public and over 50 written responses were received. In addition, a series of workshops were held in each province where the Green Paper was presented to a wide range of stakeholders and community groups. Over 30 of these workshops were held, many of them in remote areas of the country, and most of them were conducted in more than one language.

The Department is indebted to all who have contributed to the land policy debate. Public concerns about land matters have been taken into account when reviewing policies and programmes. The inputs received through this process have significantly guided the Department of Land Affairs in its endeavours to ensure that the land policy put forward in this White Paper reflects the deepest concerns of our country's people in regard to land. The following is a summary of the public responses to the Green Paper on Land Policy.

1.2 Responses to the Green Paper

1.2.1 Issues raised at Green Paper workshops

In the course of these workshops, aspects of land policy set out in the Green Paper were questioned by participants. Generally, people felt that the land reform programme should not rely on the willing-seller principle and that land should be made available free to the poor and disadvantaged. Further, they argued that there was no guarantee that land redistribution would improve people's livelihoods unless a wide range of support services were provided.

People felt that:

The Settlement/Land Acquisition Grant

· the Settlement/Land Acquisition Grant of R15 000 was too little;

· the definition of a >qualifying household' discriminated against women;

· where people leased land, they should be able to use the Settlement/Land Acquisition Grant for farming expenses.

Support services and finance for farmers

· low interest loans to supplement the grant should be made available to beneficiaries of the grant B the Agricultural Credit Board and the Land Bank should relax their requirements;

· there should be free agricultural and farm management training;

· the support previously given to white farmers should now be available for black farmers.

Government intervention in the land market

· underutilised farm land should be expropriated;

· there should be restrictions on the size and number of farms that an individual could own;

· there should be a special tax on private land;

· absentee landlordism needed to be investigated;

· a property clause should not be included in the new Constitution.

Valuation and compensation

· the present asking prices were too high B compensation should be paid only on on-farm investments and improvements;

· valuation criteria should take account of the history of land acquisition B the subsidies the owner had received and the profit made on the farm, the environmental damage from past agricultural practices and the use value for future owners;

· valuation should exclude the value of all investments made by farmers.

Land administration and tribal authorities

At the Green Paper workshops, there were widely different opinions on the future involvement of tribal authorities and chiefs in land administration. Those in favour believed that:

· the state should not hold the land on behalf of black people B chiefs should get the title deeds, chiefs should redistribute the land;

· there would be problems if land were bought by subjects and not by tribes as the subjects would be separated from the tribes.

Those against the involvement of the chiefs, believed that:

· communities falling under chiefs should get their own title deeds;

· government should do away with PTOs;

· chiefs should not accept bribes;

· the lack of security of tenure on communal land in urban areas hampered development.

Farm workers

The Department's policies regarding tenure security were felt to be inadequate. People wanted:

· farm workers to be given secure tenure;

· more coordination between the Departments of Land Affairs and Labour, because evictions sometimes related to labour disputes ;

· farm workers to be given the right to acquire the land they had lived on for a long period of time;

· more information to be provided to farm workers about the schemes proposed by the DLA.

At the same time, some people wanted the tenure rights of farmers, and their right to sell the property for agricultural purposes, to be safeguarded.

Public land

People wanted:

· the policy on accessing parastatal land to be made clearer;

· the public land data base to be completed;

· the million hectares of state land available to be redistributed immediately;

· priority to be given to sorting out the chaotic situation in trust lands;

· assistance to enable people to access commonage held by local authorities B people wanted the land to be leased at an affordable price and not at the rates paid by commercial farmers.

Land Restitution

People felt that:

· the 1913 cut off date should be scrapped;

· tenants forcibly removed in urban areas should benefit from the land restitution programme;

· people should be compensated for lost minerals rights on land taken by the government B compensation should be fair and market related.

Institutional framework for land administration

There were calls for:

· the roles and responsibilities for land administration at the different levels of government to be clarified;

· land offices to be located close to the people;

· the clarification of relations between tribal authorities and local authorities;

· black farmers to be represented on land reform institutions;

· trusts, committees and councillors responsible for implementation to be democratically elected;

· land administration at local level adequately to represent the interests of land users;

· better coordination between different departments;

· more clarity on the nature of the partnership between NGOs, CBOs and government.

1.2.2 Written submissions on the Green Paper

A wide range of views were expressed by the different stakeholders: For example:

Commercial farmers and farming organisations

· All submissions from this group were strongly in favour of a constitutional clause protecting property rights.

· Other submissions were concerned about:

- the criteria for assessing compensation due to land owners;

- the need to take a firm stand against land invasions;

- the subdivision of land into uneconomical units;

- communal ownership, especially the problem of free riders'; and

- the Green Paper's stance on the viability of small-scale farms.

· The need was expressed for a user-friendly, accessible national land data base.

Non-Governmental Organisations

· The Centre for Applied Legal Studies made a submission on tenure rights in tribal land.

· The submissions from the National Land Committee and Transvaal Rural Action Committee echoed many of the concerns raised by black rural communities at the Green Paper consultative workshops and in their written submissions (see below).

Black rural communities

· Most felt that the R15 000 Settlement/Land Acquisition Grant was far too small an amount to allow them to get a foothold in agriculture. There was also concern on the definition of a qualifying household in the Green Paper.

· Concerns were expressed about:

- the willing-seller approach and the problems raised by inclusion of a property rights clause in the Constitution;

- the 1913 cut off date in the Restitution of Land Rights Act;

- the high transaction costs involved in land transfers.

· Many felt that policy on the roles and rights of women should be explicitly integrated into the White Paper.

Planners

· The issue of transparency in the appointment of planners was raised.

· The necessity to plan for support during and after transfer of land was emphasised; and for formalising the process of participation.

Financial institutions

· These came out in support of the proposed market based approach to land reform, but expressed concern that it should not unduly distort the operation of the land market. They were in support of a national, user-friendly land data base.

· Concern was expressed about the need to safeguard property rights in the Constitution.

· They advocated support and training during and after transfer of land.

Provincial government departments

· Many submissions were made in respect of the manner in which the DLA planned to value land, including the willing-buyer, willing-seller approach.

· Concern over communal ownership was raised and the problem of free-riders was highlighted.

· The KwaZulu-Natal government made a range of comments on provincial autonomy.

Statutory organisations and national government departments

· Many of these organisations felt that environmental issues (national and cultural) should be integrated into the White Paper.

The issues raised, both in the written submissions and the Green Paper Consultative Workshops, have been carefully considered. The policy development process which has taken place in the past year has addressed many of the issues raised. It has to be recognised, however, that counter proposals by stakeholders are often difficult to reconcile and compromises have to be found.

2 LAND POLICY

2.1 Strategic goals and vision of land policy

Our land is a precious resource. We build our homes on it; it feeds us; it sustains animal and plant life and stores our water. It contains our mineral wealth and is an essential resource for investment in our country's economy. Land does not only form the basis of our wealth, but also our security, pride and history.

Land, its ownership and use, has always played an important role in shaping the political, economic and social processes in the country. Past land policies were a major cause of insecurity, landlessness, homelessness and poverty in South Africa. They also resulted in inefficient urban and rural land use patterns and a fragmented system of land administration. This has severely restricted effective resource utilisation and development.

Land is an important and sensitive issue to all South Africans. It is a finite resource which binds all together in a common destiny. As a cornerstone for reconstruction and development, a land policy for the country needs to deal effectively 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.

Land policy should ensure accessible means of recording and registering rights in property, establish broad norms and guidelines for land use planning, effectively manage public land and develop a responsive, client-friendly land administration service.

At present, the central thrust of land policy is the land reform programme. This has three aspects: land restitution, land redistribution and tenure reform. The success of these elements of the programme is dependent in the long run on more than merely access to land. The provision of support services, infrastructural and other development programmes, is essential to improve the quality of life and the employment opportunities resulting from land reform.

This necessitates a constructive partnership between national, provincial and local level administrations. The successful delivery of land reform depends not only on an integrated government policy and delivery systems, but also on the establishment of cooperative partnerships between the state and private and non-governmental sectors.

Our vision is of a land policy and land reform programme that contributes to reconciliation, stability, growth and development in an equitable and sustainable way. It presumes an active land market supported by an effective and accessible institutional framework. In an urban context our vision is one where the poor have secure access to well located land for the provision of shelter. The land reform programme's poverty focus is aimed at achieving a better quality of life for the most disadvantaged.

Land reform aims to contribute to economic development, both by giving households the opportunity to engage in productive land use and by increasing employment opportunities through encouraging greater investment. We envisage a land reform which results in a rural landscape consisting of small, medium and large farms; one which promotes both equity and efficiency through a combined agrarian and industrial strategy in which land reform is a spark to the engine of growth.

If these goals are to be realised, major constraints have to be overcome (see Box 2.1). The means by which government intends to achieve this is set out in subsequent sections of this White Paper.

2.2 Land Reform and the RDP

The case for the government's rural land reform programme and its scope and content were clearly set out in the initial policy document of the RDP in 1994:

'Land is the most basic need for rural dwellers. Apartheid policies pushed millions of black South Africans into overcrowded and impoverished reserves, homelands and townships. In addition, capital intensive agricultural policies led to the large-scale eviction of farm dwellers from their land and homes. The abolition of the Land Acts cannot redress inequities in land distribution. Only a tiny minority of black people can afford land on the free market.

A national land reform programme is the central and driving force of a programme of rural development. Such a programme aims to redress effectively the injustices of forced removals and the historical denial of access to land. It aims to ensure security of tenure for rural dwellers. And in implementing the national land reform programme, and through the provision of support services, the democratic government will build the economy by generating large-scale employment increasing rural incomes and eliminating overcrowding.

The RDP must implement a fundamental land reform programme. This programme must be demand-driven and must aim to supply residential and productive land to the poorest section of the rural population and aspirant farmers. As part of a comprehensive rural development policy, it must raise rural incomes and productivity, and must encourage the use of land for agricultural, other productive or residential purposes.

The land policy must ensure security of tenure for all South Africans, regardless of their system of land-holding. It must remove all forms of discrimination in women's access to land.'

(Source: RDP: a policy framework, ANC, 1994, pages 19-20)

In urban areas, access to land is similarly a prerequisite for a successful urban development programme. Government at all levels, including local authorities, should strive to overcome all obstacles which may hamper equitable access to well located land. Implementation of appropriate urban and rural land policies and land management practices is required to overcome a primary cause of inequity and poverty. Realization of these policies is necessary to reduce living costs, occupation of unsafe land, environmental degradation and urban and rural vulnerability, affecting all people, especially the poor.

2.3 The three elements of the land reform programme

As anticipated in the 1994 RDP policy framework, government's response to land reform has three major elements:

Redistribution aims to provide the disadvantaged and the poor with access to land for residential and productive purposes. Its scope includes the urban and rural very poor, labour tenants, farm workers as well as new entrants to agriculture.

Land Restitution covers cases of forced removals which took place after 1913. They are being dealt with by a Land Claims Court and Commission, established under the Restitution of Land Rights Act, 22 of 1994.

Land tenure reform is being addressed through a review of present land policy, administration and legislation to improve the tenure security of all South Africans and to accommodate diverse forms of land tenure, including types of communal tenure.

The government has adopted a two-pronged approach. On the one hand it is striving to create an enabling policy environment and on the other hand it is providing direct financial and other support services.

2.4 Government's achievements

In the 22 years since the current government came to power, much has been achieved, in terms of both policy development and land reform implementation

(see Box 2.2).

2.5 The case for the government's land reform policy

The importance of land reform in South Africa arises from the scale and scope of land dispossession of black people which has taken place at the hand of white colonisers. For most of this century, indeed since the Natives Land Act, 1913, rights to own, rent or even share-crop land in South Africa depended upon a person's racial classification.

Millions of black people were forced to leave their ancestral lands and resettle in what quickly became over-crowded and environmentally degraded reserves B pools of cheap migrant labour for white-owned farms and mines. Under the Native Trust and Land Act, 1936, black people lost even the right to purchase land in the reserves and were obliged to utilise land administered by tribal authorities appointed by the government.

Black families who owned land under freehold tenure outside the reserves before 1913 were initially exempted from the provisions of the Natives Land Act. The result was a number of so-called 'black-spot' communities in farming areas occupied by whites. These were the subject of a second wave of forced removals which took place from the 1950s through to the 1980s.

The government expelled most of these farmers to 'homelands', often without compensation for their lost land rights. Dispossession forced successful black farmers to seek employment as farm labourers.

Meanwhile, the South African government continued to intervene in the administration of land within the homelands, where tribal chiefs were accorded special land-ownership rights and far-reaching powers over land allocation, often beyond those normally sanctioned under customary law. Some blacks who were moved from freehold land, and others removed from outlying pockets of tribal lands, became tenants of the South African Development Trust (SADT), which bought up farm land occupied by whites for the consolidation and enlargement of the homelands.

Some 3.5 million people were removed from rural and urban areas between 1960 and 1980. It was only from 1978, with the introduction of the 99-year leasehold system and in the mid-1980s with the abolition of influx control, that the state acknowledged that black people should have permanent land rights in urban areas. Yet land rights in rural areas have remained tenuous.

The land reform programme addresses this legacy. It aims to create stability, provide resources for the creation of livelihoods, and contribute to the establishment of viable and well-located urban and rural settlements.

The principles on which the government's land reform policy is based are set out in Box 2.3. The following paragraphs highlight some key policy issues.

2.5.1 Undoing the injustices of the past

The primary reason for the government's land reform measures is to redress the injustices of apartheid and to alleviate the impoverishment and suffering that it caused. Because of the enormity of the injustices, the measures proposed can only go a small way to compensate people for the loss of their land, their homes and their capital assets. The primary focus of land reform is the 'historically disadvantaged' B those who have been denied access to land and have been disinherited of their land rights.

Land reform can make a significant contribution to the alleviation of poverty and injustice caused by past apartheid policies in both urban and rural areas. Given the poverty focus of the programme, it prioritises areas of greatest need. Much of the country's most severe poverty is located in rural areas, where the poorest ten per cent of the people are Africans and where women-headed households are particularly impoverished. Three-quarters of the children in rural areas are in households living below the minimum acceptable subsistence level. Land reform aims to help in redressing the appalling inequality of incomes and to provide the largely impoverished black rural population with basic needs and more secure livelihoods. For the urban poor, access to land, secure tenure and phased provision of services is a key means of avoiding land invasions and resultant instability.

2.5.2 National reconciliation and stability

The historical legacy of South Africa necessitates land reform. Resentment over land dispossession runs deep in our society. It threatens to boil over, causing social and economic dislocation through the illegal occupation of land B invasions of public and private land in both rural and urban areas.

Without a significant change in the racial distribution of land ownership, there can be no long-term political stability and therefore no economic prosperity.

In rural areas the vision of government encompasses both productive and residential land uses. It envisages a well-balanced mix of farming systems and rural enterprise (livestock, annual and perennial crops as well as farm-forestry) with land held under a variety of forms of tenure by individuals, companies and communities. The objective is a flourishing rural landscape consisting of large, medium and small farms and enterprises developed by full-time and part-time farmers. A more balanced allocation of land and resources, partnerships between farm workers and farm owners leading to increased productivity, as well as the provision of secure tenure for all rural people are all part of this vision.

In an urban landscape the objective is to address urban landlessness and homelessness by directing development of affordable housing and services to unused or under-used land within present urban boundaries and close to employment opportunities. The distortions which have resulted from planning according to apartheid and segregation policies have to be redressed. Land use fragmentation, according to race and income, entrench social divisions and potential conflict.

2.5.3 Economic arguments for land reform

Land reform is not only a means of correcting past injustices and bringing reconciliation and peace to the country. There are other vital economic benefits for society generated by land reform. For example:

Major cost savings resulting from a more rational use of urban land: Low density development makes inefficient use of investments in infrastructure and amenities and reduces accessibility to social and economic opportunities. It imposes high costs and time wastage on society in terms of journeys to work and amenities. Efficient and speedy release of suitably located land at the required rate and scale is a prerequisite for achieving the aims of the overall urban development strategy.

More households will be able to access sufficient food on a consistent basis: The absence of household-level food security has devastating consequences, most notably on the physical and mental development of children. Access to productive land will provide the opportunity for putting more food on the table and providing cash for the purchase of food items.

Opportunities for Small Scale Production: Comparative international research notes that smaller sized agricultural units are often farmed more intensively, and are more labour absorbing. There are over a hundred thousand small scale and subsistence farmers in South Africa who could be assisted by the land redistribution programme to expand their land resource base through purchase or lease. The land reform programme thus offers the potential for more intensive irrigated farming, for contract farming in important sectors of the agricultural economy such as cotton, timber and sugar, and the potential to intensify agricultural production in areas of high agricultural potential.

Land reform can make a major contribution towards addressing unemployment, particularly in rural areas and small towns: In rural areas, the rate of unemployment ranges from 40% among poor households to 58% among the poorest. This