I encourage all landowners to read the recently published Green Paper on Land Reform in South Africa very carefully. It can be found at www.info.gov.za.
A Green Paper is a discussion document that sets out the direction a new set of rules might take. Green Papers precede White Papers, which are more formal publications of government policy.
White Papers lead to draft bills, which, after discussion, may be referred to the National Council of Provinces and the National Assembly for passing, before finally being sent to the president, who has the power to sign the bill, thereby making it law.
The views expressed in this Green Paper on Land Reform are very one-sided, in my view. It seems that those who drafted the document were acting under the assumption that the people whose interests are represented by the Green Paper have some sort of inherent right to land.
In South Africa, real rights in fixed property are registered at deeds offices around the country and title to such land is proof against all comers. Should the sentiments underpinning the Green Paper on Land Reform become law, the property rights of landowners would be seriously curtailed.
For one thing, it suggests appointing a land-use commissioner. This civil servant will have the power to determine whether optimal use is being made of land, with a view to expropriation of unused land.
Another appointee envisaged is a valuer-general, who would determine the price at which land might be bought by the state. Thus the time-honoured rights of property owners, enabling them to use their properties as they wish, with due regard for the others’ rights (in the sense of the law of neighbours), would disappear if the Green Paper on Land Reform became law.
One wonders what the banks would do when it came to lending money against fixed property if the property title and value were not secure anymore. However, it seems the proposals of the Green Paper on Land Reform are out of line with the provisions of Section 25 of the Constitution, which states that where land is expropriated, the landowner has to be compensated.
The amount of compensation will be agreed upon by the parties involved, or determined by a court. In TAU v Minister of Land Affairs (1997, 2 SA 621 CC), the court held that the action, which had been brought in order to question the constitutionality of certain sections of the Land Restitution Act, was not “urgent”.
It was said that the parties involved should have objected to the sections they disagreed with before the act was promulgated. South Africa’s farmers are in fact in a battle for their land.
In light of the ruling in the above case, I urge them to get involved now and make submissions to government on the Green Paper as soon as possible. Apathy at this point might be extremely costly in the long run.
Peter O’Halloran is head of tax at BDO, Gaborone. Call 00267 390 2779 or email [email protected] with the heading “Farmer’s Weekly tax issues”.