WYNDHAM HARTLEY  

CAPE TOWN — The role of the judiciary may be infringed and the willing buyer, willing seller principle in land transactions has been effectively abandoned in the green paper on land reform.

Legislation emanating from the green paper, made public yesterday, is unlikely to pass constitutional muster if it vests powers currently held by the courts in the Department of Rural Development and Land Reform.

Even within the government reaction to the paper was swift and negative. Deputy Minister of Agriculture, Forestry and Fisheries Pieter Mulder warned the paper could have unintended consequences for SA’s food security.

The paper proposes two powerful institutions, the Land Management Commission and the land valuer-general. The commission will have the power to validate title deeds, seize or confiscate land and set property values.

Rural Development and Land Reform Minister Gugile Nkwinti yesterday played down the powers of the commission at a media briefing in Parliament. He said that the power to validate title deeds would be used when there was doubt over the ownership of a piece of land, or where the title deeds were confused.

Asked if all title deeds would face scrutiny and validation by the commission, Mr Nkwinti said: "The Land Management Commission won’t throw the land ownership system into doubt."

He said the intention was that the commission would be a permanent body — unlike the Land Claims Commission, which would be disbanded when the land restitution process was completed.

The Land Management Commission would be created by the Land Protection Bill, which would be finalised soon, he said.

The surprisingly short 12-page green paper will translate into three pieces of legislation later this year without going through a white paper process, as is normal parliamentary practice.

Mr Nkwinti said there would be a meeting of stakeholders, and working groups would be set up to consider the draft legislation.

It is proposed that the land valuer-general would be a statutory office that could determine financial compensation in cases of expropriation and "provide fair and consistent land values for rating and taxing purposes".

When asked if this did not, in effect, abolish the willing buyer, willing seller principle, Mr Nkwinti said the principle had always been a problem as "it distorts the market". "The land valuer-general is designed to eliminate these vagaries."

Democratic Alliance national spokeswoman Lindiwe Mazibuko said the creation of the Land Management Commission would violate the constitutional principle of property rights.

"We believe it is untenable that an extra judicial body, that is not independent from a political office, is granted powers to terminate land ownership rights," she said. "The office of the valuer- general will have powers to determine the value of financial compensation in cases of land expropriation. The constitution explicitly provides that this role is to be performed by the judiciary.

"Appointing a nonindependent body to determine compensation is open to abuse, and is unlikely to pass constitutional muster."

Mr Mulder warned that another proposal in the paper, to limit the size of private land that individuals could own, was "a recipe for food shortages in SA".

"Approximately 15% of SA’s commercial farmers … produce 80% of the food …. By placing limits on how much land these big farmers are allowed to own, the whole of the agricultural economy will be warped without the land reform problems … being solved."