19/03/2017 15:13 SAST | Updated 19/03/2017 16:51 SAST

Here Comes The Land Register Law: A Register Of Ownership Of Agricultural Land And No New Foreign Ownership

The state wants to know who owns what agricultural land. And there's a provision for 'forfeiture of unlawfully acquired land'.

Minister of Rural Development and Land Reform
Gugile Nkwinti Gallo Images / Beeld / Jaco Marais
Minister of Rural Development and Land Reform

The draft law aimed at setting up a register of agricultural land ownership, blocking foreign ownership and seizing unlawfully acquired land has finally been published.

The Minister for Rural Development and Land Reform, Gugile Nkwinti, published the "Regulation of Agricultural Land Holdings Bill" on Friday. It applies only to agricultural land.

The deadline for public comments is April 16.

"The aim of the Regulation of Agricultural Land Holdings Bill is to reverse the legacy of colonialism and apartheid; and to ensure a 'just and equitable' distribution of agricultural land to Africans," says the memorandum attached to the Bill.

It says the "core intervention" in the Bill is the creation of a Land Commission.

This commission "shall serve as the principle structure to oversee the collection and dissemination of all information regarding public agricultural land (agricultural land vested in the national and provincial governments, in a public entity, in a municipality and in a municipal entity), and private agricultural land (land owned by South Africans, and that held by foreign persons)".

The bill states that it is intended to:

  • Establish a Land Commission
  • Set up a register of public and private agricultural land holdings
  • Provide for the declaration of present ownership and acquisition of private agricultural land
  • Provide for the submission of information on public agricultural land
  • Prohibit the acquisition of agricultural land by a foreign person
  • Provide for leasing by foreign persons
  • Provide for ceilings in respect of agricultural land
  • Provide for redistribution agricultural land
  • Provide for the forfeiture of unlawfully acquired land

Foreigners may lease but no longer buy agricultural land.

This is the foreign ownership rule: "No foreign person shall, from the date of the commencement of this Act, acquire ownership of agricultural land." But foreigners can get around that with good black economic empowerment (BEE) credentials, as that prohibition "does not apply to agricultural land that is acquired by a foreign person where a black person as defined in the Employment Equity Act, 1998 . . . has a controlling interest".

Foreigners selling such land must offer it to the state first.

There's little clarity on what the "ceilings" on ownership means; this appears to refer to the size of the holdings.

The reference to forfeiture is brief: "Any acquisition of land in any manner which is inconsistent with or contrary to the provisions of this Act, is unlawful and a court may make an order for the forfeiture of such land to the State."

The Bill states that it's expected to cost the state R21.3 million a year "for the operation of the Land Commission as well as the acquisition of redistribution agricultural land" but then states that "this excludes the cost of the acquisition of redistribution agricultural land that will be funded within the baseline of the relevant programmes of the department". Staffing is included in the Land Commission cost, said the Bill.

Some of this would thus fall under the budget for the Department of Rural Development and Land Reform but those costs are not clearly identifiable in the 2017 Budget.

The proposed law aims to improve the national land reform programme and "achieve the vision of integrated and inclusive rural areas by 2030".

The memorandum says that whenever the State refers to the need for land for service delivery, the issue of state-owned land is raised, but the extent of state-owned holdings "remains debatable" so there is a need for an accurate record of all public agricultural land.

The memorandum says there's no clear overview of land ownership and mentions speculation around the amount of foreign ownership of agricultural land.

It says that "the decade from 1997 to 2007 was characterised by significant shifts in ownership and land use including increasing acquisition of agricultural properties by foreign nationals in certain regions. However, the nature, extent, trends and impact of land acquisition, land use and investment in the country's land by foreign persons remains unknown as no comprehensive database exists to develop an understanding of such. Related to this is the absence of reliable information regarding the extent of agricultural land holdings owned by South Africans in terms of race and gender as well as the use and size of the land in question."