New policies undermine security of tenure

A plethora of bills and policies has been released in recent times that hold negative implications for the security of tenure of people living in rural areas. These policies and bills cover issues ranging from traditional leadership to communal tenure to land restitution and redistribution.

Among these are two policies made available on the Department of Rural Development and Land Reform’s website at the end of July: the State Land Lease and Disposal Policy and the Policy for the Recapitalisation and Development Programme. It appears that the centenary of the Natives Land Act has put government under pressure to show delivery, hence the hurried posting of a number of finalised new policies on the department’s website in the last few weeks, to the consternation of a broad range of civil society organisations.

The land lease policy applies to the state’s land redistribution programme as a whole and creates a framework for development on communal land. Replacing the previous grant-based system of land redistribution, it determines the terms on which the state acquires and leases land.

For agricultural leases, farmers are categorised as follows:

  • Category one: Households with no or limited access to land, even for subsistence production.
  • Category two: Small-scale farmers on communal, commercial or other land farming for subsistence and selling some produce on local markets.
  • Category three: Medium-scale commercial farmers who could expand but are constrained by lack of access to land and other resources.
  • Category four: Large-scale or well-established commercial farmers farming at “reasonable” commercial scale with growth potential but constrained by lack of land and other resources.

Leases will be awarded on condition that a lessee presents an acceptable business plan. Lease periods will be 30 years, renewable for another 20 years. However, the first five years will be a probation period during which time lessees’ ability to implement compulsory business plans will be assessed. The policy thus renders tenure contingent upon state assessment of “productive use”. The implications of these provisions are that subsistence and small-scale farmers –people who are among those most disadvantaged by apartheid and colonial dispossession – still remain without security of tenure. And the state will retain ownership of land as a powerful lever of political patronage.

This grave situation is compounded by the fact that only farmers in categories three and four have the option to purchase the land. The effect is that subsistence and small-scale farmers rent in perpetuity, at the behest of state officials and political elites.

Rent will be calculated at five percent of the projected annual net income, instead of actual income. The rationale is to “motivate the lessee to work towards achieving the projected income and any additional income shall serve as an incentive for the lessee to work harder…” Thus continue the themes of “productive use” and conditional land rights.

The recapitalisation and development policy exacerbates the problems created by the leasing policy. The recapitalisation policy states as its “focus areas” the “rekindling of the class of black commercial farmers destroyed by the 1913 and 1936 land acts”; “combating poverty, unemployment and income inequality”; and “reducing the tide of rural-urban migration”. However, these focus areas are later contradicted in the section on strategic objectives where the reference to inequality and poverty is replaced by the objective “that all land reform farms are 100% productive”. Similar to the leasing policy, the recapitalisation policy makes access to land and support contingent upon productivity. The right to land tenure is made conditional on satisfying state officials that one continues to qualify as sufficiently “productive”.

The policy re-iterates the government’s commitment to land reform and equitable access to resources, as per Sections 25 (4), (5) and (8) in the Constitution. Despite this affirmation, the policy states that “land reform, particularly in land restitution, does not translate into change of ownership when it is not in the public interest to restore or redistribute land or where legislation prohibits such full restoration or redistribution. Under these circumstances, partial control of the land shall be provided to the beneficiary”.

This contradiction is consistent with the fact that no mention is made of Section 25 (6), which asserts that people with insecure tenure due to past racial discrimination are entitled to security of tenure, and that Parliament should adopt a law in this regard. The Communal Land Rights Act of 2004 (since declared unconstitutional) was intended to give effect to the provision but failed to do so.

Regarding communal land, the recapitalisation policy document contains a diagram titled “Rural economy transformation: Agrarian transformation system” in which those living on communal land are indicated as qualifying for “institutionalised use rights”. At the same time the now finalised Rural Development Policy includes a “wagon-wheel diagram” that shows traditional leaders and institutions as holding the title deeds to the “outer boundaries” of communal land. Again only the elite (in this case traditional leaders) qualifies for ownership, which will inevitably trump the “use rights” of the ordinary people who have occupied particular homestead plots for generations.  The policy will, among others, target the 23 poorest districts and “congested” “sites within the former homelands and other communal areas”. Despite targeting poor communal areas, the policy explicitly states that it “does not create a welfare programme meant to provide support to so-called beneficiaries”. Instead, it is targeted at “emerging black farmers”, defined as people racially excluded from formal agriculture in the past who “have recently begun to engage in farming on a larger scale”.

The policy speaks of mentorships and partnerships with commercial farmers to advance black economic empowerment (BEE). It also mentions “strategic partners” from the private sector who will gain shares in farms and other rural-based businesses through share-equity agreements, envisaged to “leverage” private skills and finance. As with the state land lease policy, business plans are required. The implication seems to be that without strategic BEE partners, state support cannot be accessed. Effectively, the land reform budget will not be spent on those actually dispossessed by the 1913 and 1936 land acts and forced removals, but by BEE partners leveraging state subsidies in the name of “land reform”.

These policies are far-reaching and should form part of an overarching policy framework subject to public scrutiny. The 2011 Green Paper on Land Reform with its vision of “reasonable access” to land for especially rural black people is inadequate. Contextualising the policies reveals that the current government appears to be entrenching the legacy of the 1913 land act by once again deeming land ownership inappropriate for the majority of rural people – even in the form of communal land ownership. For example, the department’s mooted changes to the 1996 Communal Property Associations Act are consistent with its refusal to transfer title to restitution beneficiaries who have constituted themselves as democratic Communal Property Associations – even where the restitution has been fully approved or court ordered.  Instead, government appears intent on transferring restitution land to traditional leadership structures.

The policies, when read together, privilege politically connected elites, whether urban or rural based, while the vast majority of rural people – particularly in the former Bantustans – remain subject to conditional tenure regimes, and yet again, locked out of landownership.

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