'Land reform proposal may be unconstitutional'
Johannesburg, Sep 8 (I-Net Bridge) - The Green Paper on Land Reform 2011 falls short of providing a winning scenario for all parties and, in fact, could fall short of the constitution according to the South African Property Owners Association (SAPOA).
SAPOA made it clear that it supported a land reform process that was a "win-win" scenario, in which the rights of present and future landowners were protected.
However SAPOA was concerned about some of the proposals of the newly released green paper on land reform.
"A key challenge facing SA 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," said Neil Gopal, Chief Executive Officer of SAPOA.
"We understand that the country cannot afford to protect private property with such zeal that it entrenches privilege," he said. "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," Gopal said.
Of explicit concern to SAPOA in the Green Paper was the establishment of a Land Management Commission which, SAPOA believed, infringed on the jurisdiction of SA Courts.
The commission gave a state official, the Valuer-General, control of determining the amount of compensation payable for expropriated land. And a state bureaucracy was given the job of "invalidating" title to land. "These are processes the SA Constitution already allocates to the courts," Gopal said.
SAPOA said that the green paper suggested 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 according to SAPOA.
"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," said Gopal.
He also noted 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, was 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 SA have a Land Management Commission doing the same?" Gopal asked.
"Regrettably it seems the green paper issues highlighted clearly bypass the judiciary and are intended to establish a new norm," Gopal said.
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," said Gopal. "However, this only goes part of the way. A supplementary panel is required for audit purposes to ensure consistent, fair function."
SAPOA also noted that the Green Paper on Land Reform was 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," Gopal pointed out. "However, this is not stated in the green paper."
He elaborated that the statutory and/or legislative provisions for valuers in respective categories also need to be considered.
Gopal stressed that the historic challenges that the Green Paper on Land Reform sought to address were recognised and accepted as critical and inherent realities that the South African community had inherited and had to disown in a manner that was morally, but legally, fair and just.
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