IRR Full Submission on the Preservation and Development of Agricultural Land Framework Bill – 29 May 2015

South African Institute of Race Relations NPC Submission to the Department of Agriculture, Forestry and Fisheries, regarding the Preservation and Development of Agricultural Land Framework Bill of 2014.

South African Institute of Race Relations NPC
Submission to the
Department of Agriculture, Forestry and Fisheries,
regarding the
Preservation and Development of
Agricultural Land Framework Bill of 2014

Johannesburg, 29th May 2015

Contents of this submission:
Introduction        page 1
Purpose of the Bill       page 2
The importance of property rights     page 2
State ‘custodianship’ of agricultural land    page 3
Specific reductions in ownership rights     page 3
           High potential land to be used solely for food production page 4
           The selling of agricultural land for non-agricultural purposes        page 4
           The selling of portions of agricultural land    page 4
           The selling of agricultural land to foreigners  page 4
           The rezoning of agricultural land    page 4
           The sub-division of agricultural land   page 6
           The leasing of agricultural land for ten years or longer page 6
           The optimal agricultural use of agricultural land  page 6
           The obligation to avoid ‘non-sustainable’ farming activities       page 7
           Ministerial regulations regarding the ‘right to farm’ page 7

Complex approval procedures     page 7
A host of new bureaucratic bodies     page 9
An ‘intergovernmental committee on the preservation and development of agricultural land’     page 10
           An ‘agricultural land national advisory commission’   page 10
           A ‘preservation and development of agricultural land framework act national internal technical committee’   page 10
           Provincial and municipal internal technical committees   page 10
           An ‘agricultural land review board’     page 11
          A ‘national agricultural land register’       page 11

‘Protected agricultural areas’, ‘agro-ecosystem assessment’, and integrated planning       page 11
Protected agricultural areas      page 11
          ‘Agro-ecosystem assessment’     page 12
          Integrated planning        page 12
          Restrictions on urban development     page 12

Enforcement         page 13
Monitoring and reporting      page 14
Ramifications of the Bill        page 14

The Department of Agriculture, Forestry, and Fisheries (DAFF) has invited interested people and stakeholders to submit written comments on the Preservation and Development of Agricultural Land Framework Bill of 2014 [BXX–2014] (the Bill) by 30th May 2015.

This submission is made by the South African Institute of Race Relations NPC (IRR), a non-profit organisation formed in 1929 to oppose racial discrimination and promote racial goodwill. Its current objects are to promote democracy, human rights, development, and reconciliation between the peoples of South Africa.

Purpose of the Bill
The purpose of the Bill is ostensibly, as an accompanying discussion document stresses, to enhance food security; limit any further loss of high potential cropping land to mining, residential, and other non-agricultural uses; prevent the fragmentation of farms into uneconomical units; and ensure that agricultural land is used optimally, so as to maintain and increase agricultural output and employment. [Department of Agriculture, Forestry, and Fisheries, Discussion Document on the Preservation and Development of Agricultural Land, Document No 19.P.2/PD-ALF, 2014, pp9, 11-12]

However, these important objectives could be met in very much better ways. In particular, there is no need to end the freehold ownership of agricultural land, as the Bill seems to envisage, in order for these goals to be fulfilled. On the contrary, the further erosion of property rights heralded by the Bill is likely to limit food security, reduce rural jobs, and worsen poverty and hunger.

The real aims of the Bill seem to be different from its stated goals. In fact, it marks yet another attempt by the South African Communist Party (SACP) to advance a ‘national democratic revolution’ aimed at a socialist and then communist future. The Bill has been authored by the chairman of the SACP, Senzeni Zokwana – who is simultaneously the minister of agriculture, forestry, and fisheries (the minister) – and it seeks to transfer all agricultural land into the ‘custodianship’ of the State. This provision could result in the effective expropriation of all farming land without compensation.

Even if this outcome is avoided, the Bill will at the very least, restrict the normal competencies of land ownership, tie farmers up in onerous and costly red tape, and reduce incentives for direct investment in agricultural land. It could make it harder for farmers to raise working capital and so restrict farming production to the point where South Africa might lose its current food security.

The importance of property rights
Property rights are vital to democracy, development, upward mobility, and rising prosperity for all. That is why the racially discriminatory laws that earlier barred black South Africans from owning agricultural land and many other assets were so profoundly unjust.
Since these restrictions began to crumble in 1975 – and were finally abolished by the National Party government in 1991 – African ownership of farming land, houses, and other assets has finally started growing, and has done so very rapidly. To speed up this process, South Africa needs an annual growth rate of 7% of gross domestic product (GDP) – which would double the size of the economy every ten years – coupled with an upsurge in investment and employment. However, these advances will not be possible if the Bill is enacted in its current form. The Bill could in fact reverse the gains already made in extending the ownership of agricultural land to thousands of black South Africans.
If the Bill is enacted into law, all agricultural land will become vested in DAFF as ‘custodian’ for all South Africans. This will prevent black South Africans from either acquiring such land in the future or from retaining the freehold land ownership they currently enjoy. Far from helping to provide effective redress for the Natives Land Act of 1913 and other discriminatory laws, the Bill will once again bar black South Africans from gaining (or  retaining) individual ownership of agricultural land. 
The impact of this prohibition will be heavily felt by all South Africans, not only those who were disadvantaged by racial laws in the past. In eroding – and perhaps ending – the individual land ownership that many of the country’s farmers currently enjoy, the Bill will undermine all property rights. This is likely to worsen unemployment and add to the country’s economic malaise. The Bill is also likely to disempower all South Africans by increasing their dependency upon the State and restricting their scope for upward mobility. Far from helping to overcome disadvantage, the Bill will make it much more difficult to enhance food security or to counter joblessness, poverty, and hunger.

State ‘custodianship’ of agricultural land
The most damaging provision in the Bill is Section 3(1), which states: ‘Agricultural land is the common heritage of all the people of South Africa and the Department [DAFF] is the custodian thereof for the benefit of all South Africans.’ [Section 3(1), Bill]

This provision is clearly modeled on a similar clause in the Mineral and Petroleum Resources Development Act (MPRDA) of 2002, which says that ‘mineral resources are the common heritage of all the people of South Africa and the State is the custodian thereof for the benefit of all South Africans’. [Section 3, Mineral and Petroleum Resources Development Act of 2002]

This provision in the MPRDA precludes any black South African from ever owning any of the country’s vast mineral resources. It also provides the basis for the State’s absolute control over mineral resources and mining rights. In practice, the State’s powers in this sphere have often led to long delays and seemingly arbitrary decisions in the granting of mining and prospecting rights. They have also led to shifting regulatory requirements, policy uncertainty, insecurity of mining titles, and a steady decline in the size, profitability, and attractiveness to investors of the country’s mining industry. Giving the State custodianship of all mineral resources has also led to the effective expropriation without compensation of all those who previously owned these resources. This has further damaged South Africa’s reputation as an investment destination, and contributed to a major (40%) decline in mining jobs between 1990 and 2014.

Following the example of the MPRDA and vesting all agricultural land in the custodianship of DAFF is likely to have the same negative impact in the agricultural sector. It risks choking off investment in farms, thus eroding, rather than enhancing, the country’s food security.

Specific reductions in ownership rights
Even if expropriation without compensation is avoided, the Bill will significantly reduce the normal competencies of ownership over all ‘agricultural’ land. The Bill defines such land as all land other than land in a proclaimed township, land already zoned for non-agricultural purposes, and land which the minister ‘excludes by means of a notice in the Gazette’. [Section 1, Bill]

In laying down its various restrictions on ownership rights, the Bill also distinguishes between ‘high potential cropping land’ and other agricultural land with more limited farming ‘capability’. The Bill thus divides agricultural land into eight ‘capability classes’, ranging from Class I, which has ‘a very high potential for intensive crop production’, to Class VIII, which has permanent limitations, such as very steep slopes, that prevent commercial farming and restrict use of the land to ‘recreation, wildlife, extensive game farming, water supply, or aesthetic purposes’. [Section 1, Bill]

‘High potential cropping land’ is defined as including all land in Classes I to III, along with irrigated land and land suitable for irrigation. ‘Medium potential agricultural land’ is defined as all other land available for agricultural production and falling within Classes IV to VIII. [Section 1, Bill] Most of the constraints in the Bill thus apply to all agricultural land – including land so steep or severely eroded that it cannot effectively be used for food production.

Ownership rights will be reduced under the Bill in the following spheres:

High potential land to be used solely for food production
The Bill limits the use of high potential cropping land, saying this is to be used for the ‘production of food and food crops for human consumption’. [Section 55(1), Bill] The Bill thus prohibits the conversion of such land to game farming or ‘other agricultural production initiatives’ if this will lead to a decrease in food production.

The selling of agricultural land for non-agricultural purposes
Under the Bill, all agricultural land, whether it is in fact suitable for farming or not, may not be sold for ‘non-agricultural purposes’ without the State’s consent. In the case of high potential land, this consent must be provided by the minister, acting on the recommendation of a new ‘national internal technical committee’. In the case of medium-potential land, this must be given by the provincial member of the executive committee (MEC) for agriculture, acting on the recommendation of a new ‘provincial internal technical committee’. [Section 58, Bill]

The selling of portions of agricultural land
No portion of agricultural land may be sold without the State’s consent. This applies even where the land is still to be used for agricultural purposes, and irrespective of whether the land is in fact suitable for food production. This consent must be provided by the minister and the national internal technical committee in the case of high potential land, and by the MEC and the provincial internal technical committee in the case of all other land. [Section 59, Bill]

The selling of agricultural land to foreigners
Under the Bill, no agricultural land, irrespective of its suitability for food production, may be sold to a foreign individual who lacks permanent residence rights, or to a foreign company, without the State’s consent. Again, this consent must be provided by the minister and the national internal technical committee in the case of high potential land, and by the MEC and provincial internal technical committee in the case of all other land. [Section 60, Bill]

The rezoning of agricultural land
According to the Bill, no agricultural land – once again, irrespective of its suitability for food production – may be rezoned for non-agricultural purposes without the consent of the State. [Sections 3(2), 6, 30, Bill]

If the owner wants to rezone high potential cropping land from agricultural use to other uses – such as business, residential, or conservation purposes – approval is required under an extraordinarily complex process involving the provincial department of agriculture, the relevant municipality, any affected traditional authority, the provincial internal technical committee, the national internal technical committee, the agriculture minister, and (where land reform is in issue) the minister for rural development and land reform. [Sections 7 to 12, Bill]

In addition, the change may be approved only by a new ‘intergovernmental committee on the preservation and development of agricultural land’ – and then only if the rezoning is needed for ‘land reform purposes’ or if ‘exceptional circumstances exist’. Moreover, before making its decision, the intergovernmental committee must consult with all relevant national departments, provincial departments, and municipalities, along with all other interested and affected parties. [Sections 12,13, 14, Bill]

Though the Bill’s definition of ‘exceptional circumstances’ is poorly phrased, the current wording of Section 13 suggests that such circumstances cannot be found to exist unless ‘the proposed rezoning constitutes a change in category of agriculture as a scheduled land use purpose’ (emphasis supplied). Even then, moreover, the proposed change in agricultural use must not ‘impact negatively on food production’ [Section 13(3), Bill] if approval is to be forthcoming.

This wording in Section 13 indicates that no rezoning of high potential land from an agricultural to a commercial use, for instance, will ever be capable of approval. It also suggests that a farmer with high potential land who wants to shift from one category of agricultural use to another – for example, from running dairy cattle to growing sunflowers – may have to apply for his land to be ‘rezoned’ in order to allow this. For many farmers, this would constitute an extraordinarily damaging and intolerable restriction on their capacity to produce, and to adjust swiftly to shifting prices and market needs.

If it is not the Bill’s intention to require farmers to apply for consent before they can shift from one category of agricultural use to another, then the wording of Section 13 needs to be changed to remove this possible interpretation. Instead, the Bill must make it very clear (as the definition section does in fact state) that ‘rezoning’ means solely ‘a change in land use from the scheduled land use of agriculture to another scheduled land use purpose’. [Section 1, Bill] The definition of ‘scheduled land use purposes’ should also be changed to remove the current reference to ‘sub-categories of agriculture’ and make it crystal clear that rezoning means a shift from the use of land for ‘agricultural purposes’ to such other purposes as ‘business purposes, commercial purposes, industrial purposes, mining purposes, and residential purposes. [Section 1, Bill]

Under the Bill, if consent for rezoning is granted by the intergovernmental committee, further administrative requirements will also have to be fulfilled. In particular, the rezoning decision will have to be recorded on a new ‘national agricultural land register’ (as described below). It will also have to be registered against the title deed of the land in issue by the registrar of deeds. [Section 12(8),(10), Bill]

Many of the same constraints will apply to the rezoning of medium potential land. The main difference is that the relevant approval will generally have to be provided by the provincial MEC for agriculture, acting in conjunction with a new ‘municipal internal technical committee’ and its provincial counterpart. The consent of the inter-ministerial committee will not be needed, and so ‘exceptional circumstances’ justifying the granting of approval will not have to be demonstrated. [Sections 31 to 36, Bill]

The sub-division of agricultural land
No agricultural land, again irrespective of its suitability for food production, may be sub-divided without the State’s consent. Such consent will also have to be provided under the provisions of this Bill, irrespective of what other legislation might currently allow. [Sections 3(2), 4(2), 5, 29, Bill]

Sub-division is (unusually) defined under the Bill to include the division of land into smaller pieces not only so as to bring about ‘a change in ownership’, but also for ‘the purposes of a change in land use rights’. ‘Land use’, in turn, is broadly defined to include any activities which ‘have an impact’ on the land in question or ‘make use of its resources’. [Section 1, Bill] Though the wording here is also poor, one possible meaning is that a farmer who fences off a portion of his land so that he can change its use from running cattle to growing maize will need the State’s permission for this ‘sub-division’. Again, if this is not the intention of the Bill, its wording must be changed to eliminate this possible interpretation.

In the case of high potential land, the approval process will again include the provincial department of agriculture, the relevant municipality, the provincial internal technical committee, the national internal technical committee, and the agriculture minister, who will ultimately be responsible for making the decision. [Section 12, Bill]

In the case of medium potential land, essentially the same procedure must be followed, though the decision will in the end be made by the provincial MEC for agriculture. However, he must first consult with all relevant national government departments, provincial government departments, and municipalities, plus all other interested or affected parties. [Sections 31 to 37, Bill]

According to the Bill (as clarified by DAFF’s discussion document), where intensive agricultural enterprises are proposed – such as feedlots for cattle or the use of hydroponics in growing vegetables – ‘sub-division may only be considered in respect of medium potential agricultural land’, rather than high potential land. In addition, permission may be granted only if the remainder of the land can still be used optimally for agricultural purposes. [Section 46(3), Bill; Discussion document, p26]

The leasing of agricultural land for ten years or longer
No agricultural land – again, irrespective of its suitability for food production – may be leased for ten years or longer without the State’s permission. In the case of high potential land, the necessary approval must be granted by the minister, acting on the recommendation of the national internal technical committee. For medium potential land, the MEC must give his consent, and may do so only on the recommendation of the provincial internal technical committee. [Section 57, Bill]

The optimal agricultural use of agricultural land
Under the Bill, a farmer must ‘actively use and develop his agricultural land to its optimal agricultural potential’. [Section 54, Bill] If the land is ‘used in a manner significantly below its optimal production potential’ – in terms of guidelines to be drawn up by the minister [Section 26, Bill] – then the minister may expropriate the land ‘at a lower price’ than would be paid for land that is being optimally farmed. [Section 54(3), Bill]

The obligation to avoid ‘non-sustainable’ farming activities
According to the Bill, a farmer must also protect his land from ‘non-sustainable agricultural activities’. The Bill’s definition of ‘sustainable agriculture’ is wide and requires, among other things, farming practices that are ‘environmentally non-degrading’, promote ‘ecological and bio-diversity conservation’ and make use of ‘natural biological cycles’. [Sections 54, 1, Bill]

This suggests that farmers may have to avoid the use of pesticides, chemical fertilizers, and genetically modified crops if the State should decide that these are environmentally damaging. Yet pesticides, chemical fertilizers, and (more recently) genetically modified foods have played a major part in the ‘green revolution’ of the 20th century and in helping meet the food needs of a rapidly expanding global population. They have also been shown, through a solid body of statistical evidence compiled by relevant international agencies, not to cause any significant environmental harm.  [Bjorn Lomborg, The Skeptical Environmentalist, Cambridge University Press, 2001; Bjorn Lomborg, The Deadly Opposition to Genetically Modified Food, 2013,]

Ministerial regulations regarding the ‘right to farm’
Subject to these (and various other) constraints, the Bill currently recognises that ‘landowners and users of agricultural land have the right to farm’. (It also says they should be protected from ‘urban encroachments, urban traffic, and a ‘lack of urban weed control’, all of which points to a determination – reflected elsewhere in the Bill as well – to prevent or avoid urban encroachment on farming land.) [Section 56(1), Bill]

However, the Bill also empowers the minister to make regulations ‘pertaining to the right to farm’, provided these regulations are ‘not inconsistent’ with the Bill. [Section 165, Bill]

Since the Bill’s entire thrust is to vest all agricultural land in the ‘custodianship’ of the DAFF, while subjecting farmers to a raft of new regulatory controls, this suggests that farmers might in time be required, under the minister’s regulations, to obtain a licence from DAFF for any farming activity. Farmers might then find that they need a lease from DAFF to farm at all, or that their choice of how they wish to farm is overridden by DAFF’s licence ‘conditions’.

The introduction of such a regulation would echo the position in the mining sector, where any mining activity requires the prior grant of a (conditional and revocable) mining right. Hence, the issuing of such a regulation by the agriculture minister would be in keeping with a precedent already established and would presumably be portrayed as a logical consequence of DAFF’s ‘custodianship’ over all agricultural land.

Complex approval procedures
The approval procedures set out in the Bill are so complex and multifaceted as to make it very difficult to summarise them in this submission. However, the approval process for the rezoning of high potential land provides a good example of how difficult and time-consuming the procedure is likely to be.

An application for rezoning must be lodged with the provincial department of agriculture, and must be accompanied by an ‘agro-ecosystem report’ compiled by a ‘registered agricultural scientist’. This report must deal with the proposed use of the land, municipal and provincial land-use frameworks, information on soil, terrain, natural vegetation, climate, and water sources, and on- and off-farm infrastructure. Only an agricultural scientist registered with the South African Council for Natural Scientific Professions may compile such a report. [Sections 7, 8 Bill]

The agro-ecosystem report must also include an ‘agro-system impact assessment’ of the proposed change. This assessment must include information on the location and nature of the proposed change, the land’s ‘natural agricultural resources’, and its agricultural capability and suitability. It must also cover the likely effect of the proposed change on ‘the agro-ecosystem and farming system’, in terms of such issues as ‘production, ecological, and socio-cultural services’. [Section 8, Bill; see also Discussion document, pp20-21]

The agro-ecosystem report and agro-system impact assessment must be accompanied by a scientific report (see below), along with further ‘documentation and baseline information on adjacent land parcels’, plus ‘any other documentation that may be prescribed’ and ‘any other information that may be requested in writing’. [Sections 7, 8 Bill] Obtaining these reports is likely to be costly, while gathering all the data required will be time-consuming and unduly onerous.

Once the application is complete, the provincial agriculture department must seek the views of the local municipality, which must take into account a host of plans, including its own integrated development plan as well as the relevant local economic development plan and the overall land use management scheme. The provincial department, where appropriate, must also consult any relevant ‘traditional governance structures’, including the ‘principal traditional leader’ in the area.

Thereafter, the provincial department must obtain a ‘scientific report’ on the ‘potential, capability, suitability, state, and use of the natural agricultural resources’ on the land. This report must also be compiled by a registered agricultural scientist, who must again be registered with the South African Council for Natural Scientific Professions. The provincial department must also obtain all relevant information on the land from a new ‘national agricultural land register’ and ‘consider the impact of the proposed application on adjacent land’. [Section 12(1), Bill]

Based on all this data, the provincial department must compile a submission to the provincial internal technical committee, obtain its recommendation, and then make a submission to the national internal technical committee. [Section 12(1), Bill] The national internal technical committee must take the provincial submission into account, along with ‘national spatial plans’ and ‘any other planning frameworks applicable in the area concerned’. [Section 12(3), Bill]

Since the application in this example applies to a rezoning of agricultural land, the minister may not decide the matter. Instead, it must be referred to the intergovernmental committee, which may approve it only if ‘the application relates to land reform’, or if ‘exceptional circumstances exist’. The intergovernmental committee must also take into account ‘the national interest’, the availability of ‘alternative options’, and whether ‘the applicant is able to prove that the rezoning will not negatively affect food security’. [Section 12(5), (6), Bill]

Where land reform is in issue, both the agriculture minister and the land reform minister must concur in recommending approval or rejection by the intergovernmental committee. [Section 12(5)(a), Bill] Where ‘exceptional circumstances’ must be shown to exist, the agro-ecosystem report must indicate that: [Section 13(3), Bill, emphasis supplied by the IRR]

• approval will not ‘impact negatively on surrounding agricultural activities’,
• ‘the proposed rezoning will not have a negative impact on agricultural production’,
•  the ‘specific long-term benefits’ of the rezoning ‘outweigh the cumulative loss of agricultural land’, and
• ‘the proposed rezoning constitutes a change in category of agriculture as a scheduled land use purpose’, which must not ‘impact negatively on food production’.

The intergovernmental committee must also take into account the recommendations of the municipal council, the provincial internal technical committee, the national internal technical committee, the agriculture minister, and the land reform minister (where land reform is in issue). It must also consult with all relevant national departments, provincial departments, municipalities, and any parties that have a direct interest in the matter or ‘may be affected if the application were to be approved’. [Section 13(4), 14, Bill]

If the application for rezoning involves proposed prospecting, mining, hydraulic fracturing, or the production of wind or solar energy, the agro-ecosystem report must also indicate what the impact of these activities might be on:

• the land concerned,
• the surrounding area,
• the current and future potential agricultural use of the land, and
• the surface water, along with any subterranean water.

According to the Bill, ‘a negative agro-ecosystem report results in the non-utilisation of any right’ relating to any of these proposed actions, even if such a right has been issued by another national department. [Section 13(6), Bill]

What this means, as DAFF’s discussion document confirms, is that the intergovernmental committee will be able to override the granting of any mining (or similar) right by the Department of Mineral Resources. [Discussion document, p25] This power will, of course, add to the uncertainty of mining titles, and could deter investment in the mining industry even further. These provisions in the Bill are also unnecessary, as the MPRDA and the National Environmental Management Act of 1998 (Nema) already bar the issuing of environmental approvals and mining rights where environmental damage to land is likely to be significant and cannot easily be mitigated or rectified.

The approval process set out here is the most onerous of the various procedures required under the Bill. However, in all instances where the State’s consent is needed, an agro-ecosystem report will have to be provided. In addition, none of the procedures for evaluating and deciding on applications for consent will be easy or quick to fulfil. All applications for consent will require significant investments in time and money on the part of owners. They will also demand far more bureaucratic capacity than the State seems likely to be able to supply.

A host of new bureaucratic bodies
The Bill provides for the establishment of a host of new bureaucratic bodies at all levels of government, from the national to the local. These include:

An ‘intergovernmental committee on the preservation and development of agricultural land’
This new forum will be responsible for deciding on the rezoning of high potential cropping land and will comprise a number of ministers, including those dealing with agriculture, land reform, mineral resources, trade and industry, environmental affairs, and water resources. [Sections 82, 86, Bill] Members (including ministers) will be remunerated, and the committee will meet regularly, appoint sub-committees, compile annual reports, and be supported by DAFF with the necessary ‘administrative capacity and…resources’. [Sections 87 to 91, Bill]

An ‘agricultural land national advisory commission’
This new commission will be established to advise the minister on the ‘sustainable use and development of agricultural land and natural agricultural resources’. It will include various DAFF officials as well as ‘representatives of other role players’ and other experts, all of whom will be appointed by the minister for (once-renewable) five-year terms. The commission will meet regularly and appoint sub-committees. It will be supported by DAFF and funded from tax revenues via the budget. [Sections 92 to 103, Bill]

A ‘preservation and development of agricultural land framework act national internal technical committee’
This ‘PD-ALFA’ national internal technical committee will evaluate and make recommendations to the minister on the rezoning or sub-division of high potential cropping land, as well as on all other matters where the State’s consent is needed. It will also recommend ‘the purchase or expropriation of agricultural land’ where this is not being optimally used, and generally help to monitor compliance with the Bill. [Sections 105, 65, 54, Bill]

Committee members will be appointed ex officio (and must include, for example, the registrar of the new ‘national agricultural land register’). The minister will have to consider the committee’s advice, but will not be bound by it. Again, the committee will appoint sub-committees and will be funded and resourced by DAFF. . [Sections 107, 105(4), Bill]

Provincial and municipal internal technical committees
PD-ALFA provincial internal technical committees will also be established in each of the nine provinces to make recommendations to the MEC for agriculture on various issues, including the development of an ‘agricultural sector plan’, spatial agricultural plans for every municipality, the designation of ‘protected agricultural areas’, and the sub-division or rezoning of medium potential agricultural. These provincial committees must also advise on applications for consent for various other activities (as earlier described), such as the sale or leasing of medium potential land. Again, these committees will appoint sub-committees, while provincial agriculture departments must provide them with the necessary administrative capacity and financial support. [Sections 112 to 118, Bill]

PD-ALFA municipal internal technical committees will be established for every municipality, whether metropolitan, district, or local. They will make recommendations to the relevant municipal councils on applications for the rezoning or sub-division of medium potential land. All municipalities – no matter how cash-strapped or ineffective they might be at discharging their existing responsibilities – must provide these committees with the necessary administrative capacity and financial support. [Sections 119 to 124, Bill]

An ‘agricultural land review board’
This board will comprise five members, all of whom will be appointed by the minister. The minister will also determine their remuneration and employment conditions, while administrative support for the board will come from DAFF. The board will nevertheless act ‘independently’ (according to the Bill) in reviewing any decisions on rezoning, sub-division, sale, or so forth, made by the minister, the MEC for agriculture, or the intergovernmental committee. [Sections 125 to 129, Bill]

Any person who has ‘a direct interest’ in any such decision may apply within 30 days for it to be reviewed by the board. Only after the board has given its decision – which must be communicated, with reasons, to all parties – may any party to the matter appeal to a high court against this decision. [Sections 130 to 132, Bill]

A ‘national agricultural land register’
A national agricultural land register is to be established within six months of the Bill’s commencement and must be made fully operational within a further six months. The new register will store ‘geo-referenced data and information’ on natural agricultural resources and land, and provide for the ‘on-line lodging and tracking of applications’ for consent of various kinds. The register will operate under the control of a new ‘registrar of the national agricultural land register’, who will be appointed by the minister, and must be updated at least three times a year. [Sections 69 to 71, 74, Bill]

The register will include details of all agricultural land, whether public, private, or located in the former homelands. It must show the ownership of every piece of agricultural land, including ‘the nationality and gender’ of the owner ‘and any other information as may be prescribed by the minister from time to time’. [Section 73(2)(b), Bill] This regulatory power will no doubt soon be used to require a racial classification of the owner. The current agricultural use of every piece of agricultural land will also have to be recorded, along with the water licences it has been allocated, any ‘other natural resource-related information’, and ‘any other information or data as is reasonably required by the registrar’. [Section 73(2), Bill]

The minister will lay down ‘a binding framework’ for the design and operation of the register. At minimum, however, the register will have to show the demarcation of high and medium potential land, ‘key production…and socio-economic… information’, and the extent of agricultural land already lost to mining, urban settlement, or industrial development without a rezoning application having been approved. The register will also have to include the characteristics of all agricultural land, including land cover and agricultural capability.   [Section 73(1),(4), Bill]

A detailed categorisation of every piece of agricultural land, including its agricultural potential and its land capability class, must be registered against the relevant title deeds in the deeds registry. All water-use licences granted for the land in question must also be so registered. In addition, the information in the deeds registry must be linked to the national agricultural land register. [Section 78, Bill]

‘Protected agricultural areas’, ‘agro-ecosystem assessment’, and integrated planning
Protected agricultural areas

According to the Bill, all areas of ‘predominantly’ high potential cropping land must be proclaimed as ‘protected agricultural areas’. The minister may ‘designate and demarcate’ such land ‘for purposes of crop production’, while a provincial MEC may ‘demarcate and designate medium potential agricultural land as a protected agricultural area for purposes of animal production’. [Section 53, Bill] The Bill does not define ‘crops’, raising questions as to whether high potential land would be limited to the production of maize, wheat, and the like, or could also be used for deciduous and citrus fruits, for instance.

Land demarcated as falling within a protected agricultural area must have this demarcation registered against its title deeds. It must also be shown as such on all maps published by the surveyor-general. [Section 53(8), (9), Bill]

‘Agro-ecosystem assessment’
Within 12 months of the Bill’s commencement, the minister must establish a system for ‘the assessment and evaluation of agro-ecosystem services’. This system will provide ‘the appropriate information framework’ for considering development options, their likely impact on agriculture, and the making of decisions on the sub-division and rezoning of agricultural land. [Section 76, Bill]

Integrated planning
A ‘national spatial information framework’ is to be established under the Bill, [Section 77, Bill] which must take into account the information reflected in the national agricultural land register. [Section 80(2), Bill] This information must be supplemented by the ‘agricultural sector plans’ developed by every province, along with the ‘spatial agricultural plans’ required for every municipality within a given province. These plans must be updated each year and lodged with the registrar of agricultural land. [Section 80(3), Bill]

In addition, the minister must publish ‘minimum provincial norms and standards’ for all organs of state at provincial level in order to help ‘preserve and develop agricultural land’. These minimum norms must be supplemented by ‘detailed, province-specific…policies and guidelines’. [Sections 145, Bill]

Every provincial department of agriculture, helped by DAFF, must have ‘a coherent approach to co-ordinated planning and development’ as regards agricultural land and its optimal use. To this end, provincial departments must develop systems for ‘agricultural land use planning’ and ‘land use zoning’. [Section 140 (1), Bill] Provincial departments must also establish ‘protected agricultural areas’ and ensure that these are ‘integrated into the planning frameworks’ of all the municipalities concerned. [Section 140(2), Bill]

Provincial departments must also ‘adopt annual provincial agricultural spatial planning frameworks’ in order to protect high potential land. [Section 140(2), Bill] All ‘national, provincial and local spatial plans must be co-ordinated’, while both DAFF and its provincial counterparts must ‘raise general awareness at local government level of the significance of protecting agricultural land’. [Section 147, Bill] In formulating strategic plans, provincial agriculture departments must include evaluations of alternative forms of development, give weight to strategies which minimise the impact on high potential land, and promote urban agriculture. [Section 140(3), Bill; Discussion document, p20]

Restrictions on urban development
The Bill contains several provisions which will make it difficult for agricultural land to be rezoned for urban use. In addition to the onerous requirements that apply to any rezoning application, the Bill further stipulates that high potential farming land on the urban periphery that is in fact rezoned for urban development must still be used for agricultural purposes.

According to the Bill, ‘the provincial department concerned must oppose an application for the development of high potential cropping land…in close proximity to the...urban edge if such development does not support or promote urban agriculture’. As an exception to this general rule, a provincial department may consider the development of ‘urban agricultural zones for intensive food production practices’. However, any consent granted must be made subject to ‘strict conditions’ that will prevent the approval becoming ‘a stepping stone’ to a change from agricultural to other uses. [Section 19, Bill]

The Bill also states that, where ‘an application for sub-division or rezoning of high potential land is granted, all existing agricultural water licences, if any, must be retained for agricultural production purposes’. [Section 17(1), Bill] Hence, even if rezoning for urban residential purposes, for example, were to be permitted, the water use licence relating to the land would still have to be used for farming. Compliance with this water licence requirement must be monitored by the provincial agriculture department, while non-compliance may result in the cancellation of the approval earlier granted. [Section 17(5), (6), Bill]

Since many towns and cities along the coast or within the higher-rainfall eastern regions of the country could well have high potential farm land on their urban peripheries, this provision could limit the use of such land for urban residential, industrial, or commercial purposes. Given the benefits of urbanisation in enhancing access to education, health-care, and employment, for example, there should be more flexibility to permit such developments, in place of the Bill’s insistence that land on the urban edge must be used solely for agricultural purposes.

Non-compliance with any requirement in the Bill may result in the refusal of the State’s consent wherever this is required. It may also lead to the cancellation of an approval previously granted. [Section 149, Bill]

The minister has significant powers of inspection and may authorise ‘any suitable person’ to carry out ‘routine inspections’ of the way in which agricultural land is being used. For this purpose, any authorised person may, ‘at any reasonable time and without prior notice, access…a property with the necessary…equipment and material’. [Section 150(1),(2), Bill] For routine inspections, thus, the consent of land owners will not be required. A warrant will, however, be needed for inspections aimed at investigating whether the Bill is being contravened, or whether a condition attached to any consent is not in fact being upheld. [Section 150(5), Bill]

Any authorised inspector has the power to issue ‘a directive’ to any land owner or land user who is not complying with the Bill. This must give details of the ‘nature and extent of the non-compliance’ and of the remedial steps which must be taken within a specified time. This directive remains in force until it has been fulfilled, or until it is set aside by the minister or a court on review or appeal. [Section 151, Bill] If any person fails to comply with a directive, the minister may cancel any conditional approval earlier granted or ‘issue a final notice of intention to expropriate the land at less than market value’. [Section 151(9), Bill

The minister, in consultation with the minister of finance, ‘must’ also develop ‘taxation strategies’ aimed at ‘encouraging the optimal utilisation of agricultural land for agricultural purposes’ and at ‘discouraging its conversion to other uses’. These taxation strategies ‘must be prescribed in regulations’. [Section 152, Bill] The tax burden is thus likely to increase for all farmers whom DAFF regards as failing to use their land to optimal effect.

A land owner (and any other person) will be guilty of an offence if he (or she) ‘wilfully and unlawfully’:
• contravenes or fails to comply with any provision of the Bill,
• makes ‘a false disclosure’ as regards any information required by the Bill, or
• obstructs an authorised inspector from carrying out his functions. [Section 158, Bill]

Any such offence is punishable by a fine or by imprisonment for up to five years. Repeat offences may be punished more severely. [Section 159, Bill]

The Bill states that ‘nothing in its provisions must be interpreted to prejudice or derogate from’ the constitutional right of access to court. However, it immediately contradicts this assertion by providing that any person wishing to turn to the courts must start by getting the agricultural land review board to issue a decision on the matter. [Section 155, Bill]

Monitoring and reporting
Within six months of the Bill’s commencement, the minister must publish in the Gazette a ‘monitoring, evaluation and assessment framework’. This must help ensure, among other things, that three of the new national bodies (the national internal technical committee, national advisory commission, and the review board) carry out their duties ‘effectively and efficiently’.  The MEC for agriculture in each province must issue a similar framework in the relevant provincial Gazette to ensure that the provincial internal technical committee and its municipal counterparts also function well. [Section 160, Bill] The minister and all provincial MECs must also report to Parliament each year on the implementation of the Bill. [Section 160(4), Bill]

Ramifications of the Bill
By vesting all agricultural land in the ‘custodianship’ of DAFF, the Bill is likely to bring about the effective expropriation of all such land without the payment of any compensation. Such a drastic erosion of property rights would greatly damage the economy. It would also reduce direct investment in the agricultural sector and undermine, rather than enhance, the country’s food security.

Even if farmers are able to retain residual ownership rights, the normal competencies of ownership will be significantly curtailed. Farmers will need State consent for any rezoning or sub-division, both of which (on the current wording of the Bill) seem to be defined broadly enough to include proposed changes from one agricultural use to another. Consent might also be needed for such changes as opening up ‘bed & breakfast’ accommodation on one portion of a maize farm, or setting up a restaurant on a wine farm. In addition, any sale of a portion of a farm, or any sale where the buyer plans a non-agricultural use, will also need to be approved, as will any long lease of ten years or more, or any sale to a foreigner.

If, as some provisions in the Bill currently suggest, consent will indeed be needed before farmers may change from growing crops to animal husbandry, for instance, this requirement will bog many farmers down in all the Bill’s complicated bureaucratic processes. This could rob them of a necessary flexibility and nimbleness in responding to shifting market needs.

The information demanded under the Bill will also be complex and often very costly to procure, particularly as regards the necessary agro-ecosystem report, the agro-system impact assessment, and the scientific report, all of which have to be compiled by registered agricultural experts.

In addition, the Government lacks both the capacity and the financial resources to ensure that all the new bureaucratic bodies to be established under the Bill carry out their tasks efficiently and effectively. Long delays in the granting of approvals are likely to become endemic, along with ‘backhanders’ to officials who turn a blind eye to contraventions or promise to help speed up approval processes.

The Bill also ignores the fact that many current obstacles to food security are largely the product of the Government’s own interventions since 1994. These include the dismantling of agricultural extension services, the disbanding of the commando system which helped maintain farm security, and the laying down of often unrealistic minimum wages for farm workers. Most damaging of all, however, have been the Government’s inept attempts at land reform over the past 21 years.

Long delays in settling claims for the restitution or return of land have eroded investment in farms by owners no longer certain of their title. Though at least 8 000 claims from the first window period (from 1995 to 1998) still remain unresolved, the Government has now compounded the difficulty in finalising these outstanding claims by re-opening the land claims process for an additional five years (from 2014 to 2019).

In addition, the farming potential of agricultural land is being further undermined by misguided proposals by the land reform minister to transfer 50% of all commercial farms to long-serving farm workers; introduce ceilings on the maximum size of farms (pegged in general at 5 000 hectares, at most); and appoint a state official (the ‘valuer general’) to value all land and movables targeted for land reform. Also in the legislative pipeline is the Expropriation Bill of 2015, which comprehensively contradicts the property clause in the Constitution and various other guaranteed rights.

Farm owners are likely to become increasingly unwilling to put further working capital into farms which have been vested in the ‘custodianship’ of DAFF. This reluctance will be compounded by the Bill’s constraints on their competencies of ownership – and by the fact that their ‘right to farm’ will depend on the ministerial regulations to be issued in the future. Also relevant are the host of other damaging policies (as outlined above), which have already been written into the law or are soon to be enacted into statute. In addition, even where farmers are still willing to invest, their capacity to raise working capital from banks will diminish as the collateral they have to offer becomes increasingly uncertain and insecure.

The best way to enhance the country’s food security is to create a policy environment conducive to agricultural investment – and then leave it to the market and individual farmers to make their own decisions on how best to use their land. This requires freehold title, policy certainty, and a concomitant confidence that ownership rights will be respected in the future, rather than incrementally eroded. Damaging dirigiste interventions regarding labour, in particular, must also be removed, while the current damaging land reform process must be fundamentally transformed.

If DAFF is serious about improving food security, it must withdraw this Bill and stop tying all farmers up in yet more reams of expensive, impractical, and damaging red tape.

South African Institute of Race Relations (IRR)    29th May 2015