Agri SA takes a stand against restitution bungling

Many farmers, local and foreign media reporters and stakeholders in business and industry were surprised when Agri SA, at its annual conference, officially called on members to no longer offer their land as willing sellers in the restitution process.
Issue date : 23 January 2009

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Many farmers, local and foreign media reporters and stakeholders in business and industry were surprised when Agri SA, at its annual conference, officially called on members to no longer offer their land as willing sellers in the restitution process. A few Land Affairs officials and land claimants with whom Agri SA has built up a healthy relationship of cooperation and mutual support, enquired whether commercial farmers have turned their backs on land reform.

The answer is no. Agri SA is as supportive of restitution as ever since embracing the new South African constitution and shortly afterwards the Restitution of Land Rights Act in 1994. However, since 2004, the Land Claims Commission has deviated from the legal framework in which it is supposed to implement land reform. This has lead to a fatal breakdown in sensitive rural economies and intergroup relations, and ultimately to the collapse of hundreds of farms transferred in land reform.
Each of the judges in the Land Claims Court, the local and foreign media and even parliament have since lashed out at the mismanagement and disastrous conduct of senior officials at Land Affairs, and farmers have decided to draw the line.

Reasons for drawing the line:

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  • Firstly, willing sellers are receiving poor offers and sub-market related prices. After having transferred little since the end of 2006, the department has been approaching willing sellers with offers of up to 40% below the values proposed by department valuers, who are already under immense pressure to undervalue agricultural improvements on farms.
  • Sellers who don’t accept offers are bluntly intimidated by threats of expropriation and further administrative delays. Landowners who want access to their valuations have to force the department in terms of the Public Access to Information Act. After costly legal battles, in which the department doesn’t mind wasting taxpayers’ money, weary landowners find themselves the victims of vengeful administrative bungling and years of further delays.
  • Secondly, it takes years for a simple transactions to be finalised. On average, it takes 46 months to transfer land from the time a willing seller’s land is gazetted under a claim. It takes on average 11 months from valuation to receive an offer.
  • In Magoebaskloof some willing sellers, who accepted offers in December 2006, are yet to receive offers to purchase. All sellers have since received reduced offers. Without exemption, all willing sellers in the restitution process fall victim to the most frustrating and financially disastrous administrative red tape imaginable and there’s no excuse other than incompetence and politically motivated spitefulness.
  • Thirdly, sellers are intimidated into having a stranger, most often from another province, doing the transfer of their property, and he only serves the interest of the state. Contrary to common law in South Africa, and elsewhere in the world, the commission insists on appointing its own conveyancers and there’s no due process or transparency in the appointment process. Under the excuse of promoting BEE, they implement their own secret BEE codes, which differ from those of the Department of Trade and Industry.
  • In the Baberton Valley, the services of a local black attorney were terminated according to one of these new rules and the transfer given to an Indian attorney in Gauteng. Enquiries were never made about the BEE status of attorneys in Hoedspruit, Phalaborwa, Louis Trichardt or Nelspruit before terminating their mandates in favour of department appointments. After the transfer of farms to the value of R164 million in Phalaborwa, conducted by the commission’s attorney, he ran off with the money.
  • It took the landowners 18 months to locate him in Mauritius. The commissioner just shrugged his shoulders, claiming the money had been paid over to the conveyancer.
  • Fourthly, the department is supposed to pay 47% of the price a week after the transfer of the property. Sometimes it tries to withhold it.

This practice recently caused an international incident in the Harmony Block in December, after the department refused to release payment after transfer of the land of a German-based willing seller. Its excuse was that improvements weren’t in the same condition as when the property had been valued two years ago.
While one can understand its concern, especially as the owner had disinvested some 18 months previously, the department simply wouldn’t provide a list of the items it deemed necessary to renovate. At each inspection, it shifted the goal posts, demanding renovations far beyond the condition of the farm at valuation.

Many promises and excuses later, as well as being totally unavailable for a week, it was only when the German media and embassy made enquiries that the arrogant official tried to compile an impromptu list over the phone. If there was an open channel of communication between organised agriculture and the department, many of the above concerns could have been addressed. Agri SA could secure only one meeting with the chief land claims commissioner over the last four years and felt cheated and betrayed after the commission implemented draconian procedures, two days later, which had never been mentioned in the discussion.

In Limpopo, where few farms don’t have claims on them, the commission is on record as saying it isn’t interested in discussing the concerns of organised agriculture, and only attends restitution forums to discuss issues on which it needs the cooperation of farmers. Discussions with politicians, especially ANC parliamentarians, are more frequent and constructive, but fruitless. There seems to be a vast gap between the policies and intentions of the ANC versus the agenda and interests of Land Affairs officials.

Agri SA was repeatedly reassured during 2008 that it’s still official government policy to pay market value for land, but in practice officials, of whom not one is qualified as a professional property valuer, offer only 60% and refuse to reveal true values to willing sellers.

Commercial farmers are still excited about land reform and two estate agencies offered close to 11 million hectares of prime land to the department at the end of 2006, proving there is more land available than the state can handle. The culture of misconduct and ideological agendas is the biggest obstacle to successful restitution. Until some discipline and control is introduced, Agri SA can’t support the department, or expose farmers to the bully tactics and financial risks that have become synonymous with being a willing seller in restitution.    |fw