Afesis-corplan makes submission on Expropriation without compensation

Afesis-corplan, in its submission to the Constitutional Review Committee, submits that the constitution does not need to be revised at this stage to (1) expropriate land without compensation, and (2) create an appropriate tenure regime. The state should however (1) test the constitutional provisions to determine under what circumstances it is ‘just and equitable’ to provide zero or less than market value compensation; and (2) undertake research and investigation into the advantages and disadvantages of various tenure options in different circumstances, to inform appropriate tenure regimes.

More broadly however, Afesis-corplan believes that the state is not living up to its constitutional obligations to (A – as per section 25.5) take sufficient “reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis”, or (B – as per section 25.6) create a situation, to the extent provided by an Act of Parliament, where “a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, … either to tenure which is legally secure or to comparable redress.”

By making this criticism we do not want to take away from the significant achievements made by government in addressing land reform in the country since 1994, including, for example, building RDP houses for people and finalising land restitution claims, but we do want to highlight that there is still much to be done.  We contend that the solutions to these failures do not lie in changing the constitution but rather relate to developing a clear land reform policy that can be translated into specific land redistribution and tenure reform legislation, programmes and projects.

While this policy is being developed we suggest a number of more specific recommendations for the state to implement including, for example, and amongst others:

  • Develop and adopt a new Land Expropriation Act that is in line with the constitution.
  • Introduce a Managed Land Settlement Programme, a Housing Support Programme, and a Smallholder Programme.
  • Require municipalities to include a land acquisition and development plan and programme within their Spatial Development Framework plans.
  • Introduce a new comprehensive land administration system that accommodates both on-register and off-register land tenure situations such as in communal land areas, informal settlements, farm dwellers, communal property associations, etc.
  • Establish a national coordinating structure to “drive a coherent and co-ordinated spatial framework for South Africa” as recommended by the High Level Panel.

Afesis-corplan is willing to participate in any land reform policy development process. Land for sustainable settlements is already a key focus area of Afesis-corplan and we are open to investigating opportunities for collaboration and partnership with government and others in pursuing land redistribution, land tenure reform and spatial restructuring.

For examples of submissions made by other organisations to the Constitutional Review Committee looking into expropriation without compensation, see :

Daily Dispatch article: Give priority to ‘managed land settlement’

In the Daily Dispatch today Afesis-corplan specialist for sustainable settlements Ronald Eglin writes about what government needs to do to avoid land grabs.

Read the article Give priority to ‘managed land settlement’

Learning Brief #12: Equitable Access to Land

Land redistribution is a hot topic in South Africa. Some are saying that the constitution needs to change so as to speed up land reform and land redistribution while others claim that it is not the constitution that is the problem, but rather weak land reform implementation and elite capture of the land reform process. What does the constitution actually say about land redistribution? What legislation is there in support of land redistribution? What is the state doing to implement land redistribution? Click on the link to read the full Learning Brief.

Managed Land Settlement Training

Ronald Eglin gave a training presentation to students at the Wits School of Governance course on Human Settlement Policy and Management on 5 December 2017 on “An Introduction to Managed Land Settlement: from depth to width”. The presentation outlined what a new site and service or plot and basic service approach to human settlement development could look like and what implications this would have for how land is acquired and developed, and how government can support households to build or arrange for the building of their own houses on this land.

The presentation highlighted the need for government officials and others to reconsider the role of government from changing from building houses for people (as is done at the moment) to supporting people to build their own houses. This mindset change builds on commitments from the National Development Plan which says that the state should gradually shift its role from a direct housing provider of last resort to a housing facilitator, as well as building on recent policy pronouncements from the Minister of Human Settlements – Lindiwe  Sisulu – who stated in her budget vote speech earlier in 2017 that “we are now concentrating on serviced sites. …

[P]eople would be able to move to their own stand and build their own houses.”

It was noted that the latest draft Human Settlement policy came out two years ago in November 2015, and that government is due to update this new human settlement policy which is anticipated to re-emphasise this policy shift from ‘building RDP houses for all who need’ to focusing on ‘providing at least (semi) serviced sites and basic tenure’.

A new framework law for land reform

The much anticipated Report of the High level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental  Change was published on 22 November 2017.

The report draws attention to a number of serious problems with South Africa’s land reform programme and makes recommendations for how legislation can be used to address these challenges. In particular Afesis-corplan notes the following three issues raised in the report and strongly supports the associated recommendations.

  • Efforts to redistribute land from whites to blacks  (as required by section 25(5) of the constitution) has been exceedingly slow, and the target group for land redistribution has shifted away from the poor to a larger group that includes the more well off;
  • People living in communal land areas, informal settlements, farms and in other off-register areas still do not have adequately secure land tenure as required by section 25(6) of the constitution; and
  • Apartheid spatial patterns still persist more than 20 years after the new democracy with the majority of previously disadvantaged people still living in overcrowded former rural homeland areas and in informal settlements and townships on the periphery of our urban areas.

The report makes the following recommendations in an attempt to address these problems.

1. Develop a new Land Reform Framework Act

“The Panel proposes new framework legislation that …

[will provide] a coherent and consistent set of guiding principles; definitions of key terms such as ‘equitable access’; clear institutional arrangements (particularly at district level); requirements for transparency, reporting and accountability; and other measures that promote good governance of the land reform process. It would also allow government to consider both urban and rural land reform as part of a broader land reform programme, designed to address the spatial restructuring objectives of the National Development Plan, and thus address spatial inequality.” (page 223)

2. Develop a new Land Records Act

“The Panel motivates for the enactment of a Land Records Act … [that will establish] a robust, inclusionary land rights administration system to … recognise and administer land tenure rights that are insecure. … There are two key sides to this proposed law: firstly, the idea of having different categories of rights being made ‘visible’ and, secondly, the elevation of such rights to constitute property.” (page 481)

3. Establish a new co-ordination structure responsible for spatial development

“The Panel recommends the establishment of a co-ordinating structure responsible for spatial development, similar to the South African National AIDS Council (SANAC), which will be able to drive a coherent and co-ordinated spatial framework for South Africa … led by the Deputy President.” (page 462)

Also see  Afesis-corplan’s previous submissions to the HLPKL in 2016 and Afesis-corplan’s previous post on The 4th R – Restructuring.

Comments on the Communal Land Tenure Bill

The emerging Land Governance Transformation Network ( LGTN), of which Afesis-corplan is a member, has made a submission on the Communal Land Tenure Bill (CLTB) to the Department of Rural Development and Land Reform. To see a copy of the LGTN submission click here.

“The submission questions the assumption that ‘communities’ are appropriate vehicles for owning land.  … The approach we advocate is to start with existing rights in households and families and building up a national legal-administrative infrastructure that will accommodate all off-register rights in the country. We believe that new tenure legislation should … recognise [land] rights by reference to people in households and families as the basic rights-holding units rather than large collective entities that should only play a governance function. We propose bringing these rights into a recorded system of rights that is able to recognise individuals in families or households. The system should be set up to articulate with the Deeds Registry, which should be modified to allow for new institutional formats.

“Our argument is that the key focus of new law should be rebuilding a [land] administrative framework across the country. This would involve expanding the existing land administration infrastructure for all off-register rights to allow for recordal of rights in a range of contexts, including:

  • the communal land areas;
  • farms;
  • informal settlements, including those undergoing upgrading;
  • occupied buildings;
  • Communal Property Associations and Trusts.”

For similar arguments made by Afesis-corplan for a new land records system see Learning Brief 8: A New Land Records System

Edging towards Site and Services

by Ronald Eglin

Numerous speakers and participants at the National Department of Human Settlements summit in Gauteng from 21-22 September 2017, attended by Ronald Eglin, indicated a growing appetite, both within communities and within government, to seriously consider the promotion of ‘site and services’ as a new approach to human settlement development in South Africa. A resident from Eldorado Park, south of Johannesburg, was quoted by one of the speakers as saying: “just provide us with serviced sites; we will then build houses for ourselves’.

There appears to be a growing realisation within the country that with housing demand sitting at about 2.1 million households (as reflected in governments housing demand data base) and increasing at about 200,000 households per year – and with the housing subsidy quantum now standing around R190,000 per household (including a contribution towards land purchase costs, services installation and the construction of the top structure); we as a country just do not have enough funds to build RDP houses quickly enough to house everyone. Some of the key recommendations emerging from the summit included refocusing on the upgrading of informal settlements, prioritising rental accommodation (especially in well located areas), improving the targeting of housing subsidies to those most in need, widening support for Human Settlements to include more emphasis on finance linked individual subsidies as well as serviced sites, and reviving the Peoples’ Housing Process with an emphasis on appropriate housing and development support to help people help themselves.

Afesis-corplan supports this shift to serviced sites, or what we and others call managed land settlement, but notes that this comes with a need for government to:

(1) relook at how land is made available for human settlement development so that well located land is prioritised for new settlement growth;

(2) find ways to encourage the densification of these site and service and other areas;

(3) expand the range of tenure options available to government and households for how land can be ‘held’; and

(4) partly restructure the role of the Department of Human Settlements from one of building houses to supporting people to build their own houses.

Afesis-corplan predicts that adopting such an incremental settlement approach will not only provide more people with at least basic services and tenure security – restoring their dignity of having a safe and legitimate place to stay; but it will also help towards the creation of more quality living environments.

Afesis-corplan calls on government to speed up the process of consulting on and finalising the new Human Settlements policy and associated legislation so that we as a country minimise the uncertainty associated with any transition period from the past of building RDP houses to one of emphasising informal settlement upgrading and serviced site development (and only top structures for the truly destitute, such as the aged, and disabled). In the short term we call on government to immediately start a series of site and service, development support, rental housing and other pilot projects to demonstrate how this new, more incremental human settlement approach could work.

Learning Brief #11: Creating quality environments – Managed Land Settlement

Neighbourhoods that are developed using the Managed Land Settlement (MLS) approach are better than RDP neighbourhoods. This assertion is based on the argument that MLS environments are more adaptive to their local context and to the needs of their residents.

To further expand on this argument, have a look at the latest Learning Brief from the Sustainable Settlements department.

Learning Brief #10: Managed Land Settlement – Increasing densities

The South African Government is sending strong signals that we are about to see a significant policy shift when it comes to how government plans to address its constitutional mandate (section 26) to progressively, within available resources, ensure everyone has access to adequate housing. Read the latest Learning Brief discussing Managed Land Settlement here.

Learning Brief #8: A New Land Records System

It is fairly well understood how an incremental settlement approach to addressing South Africa’s housing and settlement needs works, but there is less understanding however for how an incremental settlement approach could work in the context of tenure security.

For a more in depth look at a new approach to Land Records, click here to read the full Learning Brief.