Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120140002&lang=en vol. 17 num. 2 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Editorial</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000200001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Green Paper on Land Reform: Overview and challenges</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000200002&lng=en&nrm=iso&tlng=en Originating as a submission made to the Department of Rural Development and Land Reform by the Centre for Constitutional Rights in 2011, this paper provides an overview of some of the main aspects and key features that stem from the Green Paper on Land Reform, 2011. Following the framework of the Green Paper, this article provides a brief commentary on some of the most problematic aspects of the Green Paper, cross-referencing the key topics to the Green Paper itself as well as the other articles in the special edition of PER dealing with the Green Paper on Land Reform, 2011. <![CDATA[<b>The mechanics of intervention and the Green Paper on Land Reform</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000200003&lng=en&nrm=iso&tlng=en The South African land control system has always, to some extent, been interfered with by government. Interventions in the course of the twentieth century in particular have resulted in an unequal, fragmented and diverse land control system. The law has been integral to this process. Since 1994, within a constitutional paradigm, interventions have been aimed at untangling the complex web of land-related measures so as to affect an equitable, co-ordinated and less complex land system. In this process law - including policy documents, plans, programmes and legislative measures - is again integral. The aim of this contribution is to ascertain whether, under the present government, the mechanics of intervention within the land reform arena have resulted overall in a sensible, workable framework within which challenges and weaknesses linked to land reform can be addressed effectively. In this regard both the structural and material dimensions of recent interventions are set out. Within this context the most recent intervention dealing with land reform in particular, the Green Paper on Land Reform of 2011, is placed in perspective and investigated further in light of the recent National Development Plan. Specific themes that have resonated in the recent mechanics of intervention, as well as the persons and communities who stand to be affected by them and the possible extent of their collective impact, are thereafter discussed. Due to the general vagueness of the Green Paper and its lack of depth and detail, the extent of the impact of the recent measures cannot be ascertained fully. The alignment of the new bodies and institutions proposed by and their contribution to actually addressing the challenges identified in the Green Paper are furthermore problematic and disappointing. Excluding vast portions of rural land comprising communal areas from all of the recent tenure-related measures is especially disconcerting. Clearly, huge gaps prevail in the resultant framework. Overall, the analysis of the recent structural and material dimensions of the recent mechanics underlines that further engineering is urgently required. <![CDATA[<b>The historical context of land reform in South Africa and early policies</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000200004&lng=en&nrm=iso&tlng=en The need for the current land reform programme arose from the racially discriminatory laws and practices which were in place for the largest part of the twentieth century, especially those related to land ownership. The application of these discriminatory laws and practices resulted in extreme inequalities in relation to land ownership and land use. This article provides an overview of the most prominent legislation which provides the framework for the policy of racially-based territorial segregation. It further discusses the legislative measures and policies which were instituted during the period from 1991 to 1997, aimed at abolishing racially-based laws and practices related to land and which eventually provided the basis to the current land reform programme. <![CDATA[<b>Introducing CSR - The missing ingredient in the land reform recipe?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000200005&lng=en&nrm=iso&tlng=en In reaction to the unequal land ownership brought about by decades of apartheid, the first democratically elected government embarked on an extensive land reform programme - a programme consisting of the three constitutionally protected pillars: restitution, redistribution and tenure reform. The aim of this programme is not only to provide for restitution to persons who lost their land as a result of racially based measures, but also provide previously disadvantaged South Africans with access to land in order to address the unequal land ownership. This research focuses on the restitution and redistribution pillars of the land reform programme The progress made in terms of both these sub-programmes has been disappointing. With reference to redistribution the government has set the target to redistribute 30% of white owned commercial agricultural land to black persons by 2014. To date, less than 10% of this target has been achieved and all indications are that the overwhelming majority of land which has been redistributed is not being used productively or have fallen into a state of total neglect. The state of the redistributed land can be attributed to a variety of causes, with the main cause being the government's inability to provide proper post-settlement support to land reform beneficiaries. Against this background it is clear that alternative options have to be identified in order to improve the result of land reform. This article identifies corporate social responsibility (CSR) as one of the missing ingredients in the recipe for a successful land reform programme. The article introduces CSR and discusses the business case for CSR; identifies its benefits; considers its possible limitations; and examines the major drivers behind the notion. From the discussion of these topics it will become evident that an assumption of social responsibility by businesses in especially the agricultural sector might contribute to an improved land reform programme. <![CDATA[<b>Land as a "national asset" under the Constitution: The system change envisaged by the 2011 Green Paper on land policy and what This means for property law under the Constitution</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000200006&lng=en&nrm=iso&tlng=en This paper takes a close look at some of the main tenets set out in the Department of Rural Development and Land Reform's Green Paper on Land Reform of 2011, specifically those that have a bearing on the creation of a new framework for land law. The purpose is to advance some suggestions as to how new statutory interventions can avoid being contested for unconstitutionality. The analysis focuses on the Green Paper's notion of land as a "national asset", questioning the meaning and implications of such a notion against the debate about nationalisation of important resources. In this context, the paper is critical of the perceived tendency to introduce reforms for the mere sake of political expediency. The guidelines for state interventions with property rights that would pass constitutional muster are deduced from (mainly) the decision of First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC). <![CDATA[<b>Silence is golden: The lack of direction on compensation for expropriation in the 2011 Green Paper on Land Reform</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000200007&lng=en&nrm=iso&tlng=en The government set the target for redistribution of land to 30% by 2014. They have adopted the "willing-buyer-willing-seller" model that relies on a voluntary transaction between farmers and government to acquire such land. Frustrated at the slow pace of land reform, the ruling party is starting to indicate that the state will in future rely on its expropriation powers to acquire such land. Section 25 of the Constitution makes it clear that when the state expropriates property, compensation must be paid. The current act, the 1975 Expropriation Act, determines that such compensation must be market value, while the Constitution lists market value as only one of at least five factors that must be taken into account when determining compensation. There have been various attempts at drafting legislation that will bring compensation practices in line with the Constitution, with the latest Bill published in March 2013. This article focusses on the Green Paper that preceded the Bill, and argues that not much direction is given on how compensation for expropriation should be calculated. <![CDATA[<b>The 2011 Green Paper on Land Reform: Opportunities and challenges - The National African Farmers Union (NAFU SA)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000200008&lng=en&nrm=iso&tlng=en The government set the target for redistribution of land to 30% by 2014. They have adopted the "willing-buyer-willing-seller" model that relies on a voluntary transaction between farmers and government to acquire such land. Frustrated at the slow pace of land reform, the ruling party is starting to indicate that the state will in future rely on its expropriation powers to acquire such land. Section 25 of the Constitution makes it clear that when the state expropriates property, compensation must be paid. The current act, the 1975 Expropriation Act, determines that such compensation must be market value, while the Constitution lists market value as only one of at least five factors that must be taken into account when determining compensation. There have been various attempts at drafting legislation that will bring compensation practices in line with the Constitution, with the latest Bill published in March 2013. This article focusses on the Green Paper that preceded the Bill, and argues that not much direction is given on how compensation for expropriation should be calculated.