Farm land and tenure security : new policy and legislative developments
CITATION: Pienaar, J.M. & Kamkuemah, A. 2011. Law and Poverty: Perspectives from South Africa and beyond. Stellenbosch Law Review, 22(3):724-741.
The original publication is available at https://journals.co.za/content/journal/jlc_slr
On 24 December 2010 a new Draft Tenure Security Policy and concomitant Draft Land Tenure Security Bill were published for comment. These new measures focus on farm land in particular and have specific implications for the Extension of Security of Tenure Act 62 of 1997 (“ESTA”) and the Land Reform (Labour Tenant) Act 3 of 1996. This contribution briefly explores the reasons for the introduction of these new measures at this point in time, thereafter the Policy and Bill are analysed in detail. In light of our finding that the three main objectives of the tenure reform programme, namely (a) rationalisation; (b) increased security; and (c) the embodiment of constitutional imperatives, have not been achieved, some kind of intervention seventeen years after the tenure reform programme was embarked on, is to be expected. However, it is questionable whether the proposed Policy and Bill in their present formats will address the prevalent short-comings sufficiently. In this regard the contribution identifies two main problem areas: (a) a glaring lack of synergy between the Policy and the Bill; and (b) inherent flaws in the Bill itself. Regarding the first problem, various concepts and contructs identified in the Policy remain unattended to in the Bill. Accordingly, new initiatives proposed in the Policy, for example, the introduction of a permit system, have not been given effect to in the Bill. In fact, neither the acquisition, nor the recording or transfer of rights, have been dealt with in the Bill. The Bill is furthermore drafted poorly, thereby resulting in confusing and ambiguous provisions, for example, relating to the service of notice in eviction proceedings and matters surrounding resettlement areas. In this regard numerous questions remain unanswered. The conclusion is reached that, although intervention in the tenure programme is necessary, the most recent proposals do not embody an allencompassing approach, resulting in numerous lacunae leaving important issues unaddressed.