Johannesburg - The Green Paper on Land Reform 2011
falls short of providing a winning scenario for all parties and, in
fact, could fall short of the constitution according to the South
African Property Owners' Association (Sapoa).
Sapoa made it clear that it supported a land reform process
that was a "win-win" scenario, in which the rights of present and future
landowners were protected.
However, Sapoa was concerned about some of the proposals of the newly released green paper on land reform.
"A key challenge facing SA is how to reverse the racial
inequalities in land ownership resulting from our colonial past and the
violent dispossession of indigenous people off their land," said Sapoa CEO Neil
Gopal.
"We understand that the country cannot afford to protect
private property with such zeal that it entrenches privilege," he said.
"That would be a recipe for instability.
"Fundamental to a stable democracy is a guarantee of private
ownership as well as addressing the ills of the past, in regards to
property," Gopal said.
Of explicit concern to Sapoa in the green paper was the
establishment of a land management commission which, Sapoa believed,
infringed on the jurisdiction of SA courts.
The commission gave a state official, the valuer general,
control of determining the amount of compensation payable for
expropriated land. And a state bureaucracy was given the job of
"invalidating" title to land. "These are processes the SA constitution
already allocates to the courts," Gopal said.
Sapoa said the green paper suggested that more and more
land will come under state ownership, by introducing ceilings on land in
private ownership.
It implicitly requires commercial farmers with more land than
the maximum to dispense with the "excess". The state could decide to
expropriate "excess" land at valuations decided by the valuer general -
who will be a state official if the green paper proposals go forward,
according to Sapoa.
"We believe this is unconstitutional as it impinges on Section
25 of the SA constitution, which enshrines the right to property, which
is a standard international human right," said Gopal.
He also noted that, as the state could be a stakeholder in
these appropriations, decisions should in fact be made by a body
independent of the state. The judiciary, to which this task already
falls in terms of the constitution, was fittingly independent as
required for any democratic society.
"Section 25 of the constitution makes detailed provisions on
compensation. If the constitution clearly highlights this important
matter, why then should SA have a land management commission doing the
same?" Gopal asked.
"Regrettably, it seems the green paper issues highlighted
clearly bypass the judiciary and are intended to establish a new norm,"
Gopal said.
It also leaves the door wide open for malpractice and conflicts of interest.
"If the appointment of a land valuer general finds approval
past the white paper process, then the establishment of a legal office
with a qualified panel of valuers could assist in addressing this
problem," said Gopal. "However, this only goes part of the way. A
supplementary panel is required for audit purposes to ensure consistent,
fair function."
Sapoa also noted that the green paper on land reform was not clear on the qualifications of a valuer.
"Valuers should be registered with the South African Council
of Property Valuers Profession and have relevant experience in the
applicable field. All reports should be in accordance with, and as
prescribed by the International Valuation Standards Committee, as
adopted by the South African Institute of Valuers," Gopal said.
"However, this is not stated in the green paper."
He elaborated that the statutory and/or legislative provisions
for valuers in respective categories also need to be considered.
Gopal stressed that the historic challenges the green
paper sought to address were recognised and accepted as
critical and inherent realities that the South African community had
inherited and had to disown in a manner that was morally, but legally,
fair and just.