The South African Property Owners Association (SAPOA) supports a land reform process that is a "win-win" scenario, in which the rights of present and future landowners are protected. However, the Green Paper on Land Reform 2011 falls short of this objective in a number of areas and, in fact, could fall short of the Constitution.

“A key challenge facing South Africa 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,” says Neil Gopal, Chief Executive Officer of SAPOA.

SAPOA is concerned about some of the proposals of the newly released Green Paper on Land Reform.

Gopal says SAPOA believes there is still much debate needed and lots of work to be done, especially if SA hopes to achieve a White Paper that is supportive of the basic policy imperatives without eroding the principles of a society cognisant of property rights and a need for a thriving, competitive economy.

“We understand that the country cannot afford to protect private property with such zeal that it entrenches privilege,” says Gopal. “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,” says Gopal

Of explicit concern to SAPOA in the Green Paper is the establishment of a Land Management Commission which, SAPOA believes, infringes on the jurisdiction of SA Courts.

The commission gives a state official, the Valuer-General, control of determining the amount of compensation payable for expropriated land. And a state bureaucracy is given the job of “invalidating” title to land. “These are processes the SA Constitution already allocates to the courts,” says Gopal.

The Green Paper suggests 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.

“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,” says Gopal.

Gopal also notes 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, is 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 South Africa have a Land Management Commission doing the same?” questions Gopal.

“Regrettably it seems the Green Paper issues highlighted clearly bypass the Judiciary and are intended to establish a new norm,” Gopal stresses.

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,” says Gopal. “However, this only goes part of the way. A supplementary panel is required for audit purposes to ensure consistent, fair function.”

SAPOA also notes that the Green Paper on Land Reform is 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,” points out Gopal. “However, this is not stated in the Green Paper.”

He elaborates that the statutory and/or legislative provisions for valuers in respective categories also need to be considered.

Gopal stresses that the historic challenges that the Green Paper on Land Reform seeks to address are recognised and accepted as critical and inherent realities that the South African community has inherited and has to disown in a manner that is morally, but legally, fair and just.

“SAPOA embraces the principles underlying land reform. However we do so by supporting the vision and aspects of the implementation strategy of the White Paper on South African Land Policy of April 1997, which, amongst other things, recognised the underpinning of economic growth,” says Gopal.

“We hope that the White Paper on Land Reform will be cognisant of this vision and further it by balancing the interests sought to be addressed by the Green Paper with those of a need for the growth of the commercial property sector,” notes Gopal.

*Section 25 of the constitutions also notes:

• “The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances.”
• “For the purposes of this section the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources; and property is not limited to land. 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. 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.”
• “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. Property may be expropriated only in terms of law of general application for a public purpose or in the public interest; and subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.”