What the proposed land laws mean for you

It’s crucial for farmers to know what’s expected of them once the proposed land legislation becomes law. Land occupiers will be given greater rights, but it’s not all bad news, says labour and land lawyer Rob McCarthy of McCarthy and Associates in KwaZulu-Natal.

The proposed legislation in the Green Paper on Land Reform and the Extension of Security of Tenure Act (ESTA) discussed subsequently are very serious. With ESTA, it’s clear that government wants to give greater rights to people resident on a property and limit the landowner’s ability to restrict these rights.

The Green Paper on Land Reform has primarily arisen due to the failure of current land reform legislation, such as land being claimed and purchased on behalf of claimants, and then their farm failing.  Most government officials say the Green Paper is an attempt to bring about land reform by improving past and current initiatives without significantly disrupting agricultural production and food security.

As part of the new process, government wants to bring in a land valuer-general to assess property value, thereby preventing conflict between the department of land reform’s valuations and those of the seller’s. Until now, in most cases, the farms have been handed over to land claimants without any support such as implements, livestock or capital. Even where there has been support, the land is often not used in any formal sense whatsoever.

Consequently, another part of the Green Paper proposes a recapitalisation programme. This will provide capital where government has previously purchased land without providing sufficient training to claimants or given them the capital to buy implements or livestock.

RECORDS of land
Government is also seeking to gather records on state land, private land, communal land and foreigner-owned land. As regards the latter, the aim is to limit ownership to a number of years – the title will not be granted in perpetuity. I don’t think this is a good idea, because it will create uncertainty.

Another mechanism for achieving the Green Paper’s goals will be the Land Management Commission. This will be autonomous and accountable to the Minister of Rural Development and Land Reform, the government and the public, and will investigate
previous land reform transactions to determine if they were legally conducted.

My concern is that its mandate will not be limited to only investigating previous land reform transactions and that it could, in theory, start investigating landowners’ title to land purchases going back indefinitely. Another proposal is the establishment of a Land Rights Management Board to manage aspects pertinent to land, such as the rights of landowners and land occupiers.

It will include the police, rural landowners, government officials, land occupiers, farm workers and municipal officials, among others.
This sounds good, but in my opinion it won’t work. There will be many conflicting views and achieving any sort of consensus on the way forward will be nearly impossible.

The proposed board will also communicate legal reforms to landowners and occupiers, and advise them on their rights, as well as provide them with legal representation when necessary. However, this positive aspect is undermined by the fact that government-sponsored legal representation is currently provided to labour tenants and other land occupiers only. Landowners have to pay for their own legal costs.

I believe it is unconstitutional and unfair to have a situation where landowners are unable to recover their costs against a state-sponsored party because they don’t have the funds to pay for the costs order. Government isn’t liable for the costs, because it’s not a litigant in the case.

More rights
What’s of great interest to me is that the end of the Green Paper focuses on the issues that a Land Rights Management Board will deal with. As soon as I saw this, I realised the Green Paper is going to work in tandem with the proposed ESTA.  As the ESTA currently stands, people on a landowner’s property are subject to certain rules and regulations.

For example, they may not bring livestock onto the property or build houses without the owner’s permission. Failure to follow the rules means the land occupiers and labour tenants can be evicted.  In other words, the current ESTA spells out landowners’ rights, as well as those of the occupiers.

The new draft however, is less equitable, in my opinion. It says that people who reside on your property have the right to own livestock and the right to grazing land for their livestock. But how much grazing land will this take away from a landowner?  The bill also states, ‘They will have the right of access to development on a property’.

The extent of this right is unspecified, meaning that tenants could develop agricultural land as they see fit. Simply put, they’ll have rights to a property normally only held by the owner. ‘They will also have the right to build houses and homesteads,’ continues the bill. So, if you have employees living on your property and they want their extended family to come and live with them, they will have the right to build on your property.

A further right will be to plant crops on a portion of a landowner’s property. Again it does not specify on how much land this will be allowed. Land occupiers and labour tenants will be given the right to bury family members on the land and the right of access to these burial grounds.

They will also have the right to clean water, electricity, the right not to be denied access to educational services and the right to have reasonable access to pathways across the land.

Some solutions
The current ESTA makes it difficult for a landowner to evict someone, and the new ESTA even more so. A landowner will go to court only as a last resort. The best way to deal with an eviction is to find a win-win solution – meaning the landowner needs to find suitable alternative accommodation for the person or family being evicted.

Fortunately, there are some solutions to the problems raised by the ESTA. If a farmer provides suitable alternative accommodation, with title for this accommodation, the farmer will be entitled to subsidy funding from government to the value of R84 000 per household. In many cases where farmers have taken this route, they’ve been able to recover much of their expenses. But accessing subsidies is a very tedious and time-consuming exercise.

And subsidies aren’t available where land occupiers don’t want to move to formal, structured housing and would rather move to communal land. ‘Suitable alternative accommodation’ is the standard of accommodation which the occupiers will expect if they move off the property, ie occupiers will expect accommodation which is equal to or better than the standard of accommodation which they already have on the farm. Most land occupiers, labour tenants and employees are aware of their rights and will demand this.

If employees live on the property, landowners must ensure that they have a properly regulated employment and accommodation relationship. The alternative is for employees to come to work in the morning and go home again in the evening. In cases where employees have to stay overnight, their employment contracts must be linked to accommodation contracts which clearly spell out the rights of both parties.

So there are solutions to the problems likely to be raised by the proposed new acts. Use these solutions and don’t ignore the problems; they will not go away. Things will just get more difficult if you don’t deal with them now. – Lloyd Phillips

Contact Rob McCarthy on 033 266 6170, 083 274 1232, email [email protected] or visit www.mccarthylaw.co.za.
The views expressed  in our weekly opinion piece do not necessarily reflect those of Farmer’s Weekly.