On behalf of Agri South Africa and its members we wish to at the outset, express our support for land reform and for the land restitution process as provided for in the Restitution of Land Rights Act 22 of 1994 ("the Act"). It is also in the interest of landowners that the claims should be finalised as soon as possible to enhance social stability and food production.

We further support the need to expedite the settling of land claims under the Restitution Act. The cut off date for lodgement of claims was December 1998 and the projected date for settlement of claims has been extended on a number of occasions.

In light thereof, the President has issued a directive that all claims must be settled by the end of 2005 and admittedly, at the rate that the claims are being dealt with currently, it does not appear that the deadline will be met.

We wish to support the Minister in her aim to streamline the process of settling land claims lodged in terms of the Act and the purpose of this submission is to:

• point out, inter alia, certain practical difficulties which may be faced by promulgating the amendment published in Government Gazette Notice 1991 of 2003.
• elaborate on our opinion that this Act should not be used for general land reform; and
• request that the Promotion of Administrative Justice Act3 of 2000 should be specifically incorporated for reasons set out herein.

The Act is the fruit of political arm wrestling i.e. a process of give and take culminating in an agreement reflected in the Act.

The Act has a specified political purpose i.e. to redress racially discriminatory acts and practices of the past.

The scope of the Act is limited in space and time i.e. to a claim in terms of which a nexus between the claimant and an identifiable piece of land has been shown and further it is only applicable to the period subsequent to 19 June 1913.

The claimant:

• must have had a right in land – either property right or usage right;
• this right must have been taken away through a racially discriminating act;
• no adequate compensation paid.

As early as 1999, when section 42D - which the State now wants to amend - was included in the Act, Agri SA stressed that it would be unacceptable for the Minister to have the power to expropriate land solely on the strength of her administration’s belief that a claim is valid.

In the explanatory notes to the proposed amendments it is alleged that the current procedures within the Restitution of Land Rights Act relating to the acquisition and expropriation of land are unsatisfactory and tend to delay the process of land reform.

According to Agri SA, the process is hampered by a lack of funds and capacity within the Commission for the Restitution of Land Rights, as well as by the complexity of large-claimant communities who must collectively decide on the type of compensation they require, the future use of the land, who should be in control, etc. The latter aspects, rather than landowners who question the validity of claims, are most likely the cause of the slow progress made with land restitution.

It is proposed that the Minister be given the power to expropriate land even where there is no court order authorising such expropriation. At present only the Court or the parties by agreement may decide whether land is to be expropriated for restitution purposes.

If the proposed amendments are passed, the evaluation of the validity of claims, which may lead to expropriation, will become an administrative process where the Minister and her officials will have discretionary powers to decide whether a claim is valid, and on the strength of such a decision, an expropriation order may be issued to the owner.

Should the intended amendments be passed, land could be expropriated without a court determining the merits of a claim, thus overlooking the goals and intentions of the Restitution Act. A landowner who is of the opinion that a claim does not comply with the requirements set by the Act for a valid claim would have to take the Minister’s decision on review resulting in protracted court proceedings. This would in effect defeat the Minister’s objectives of expeditious settlement of land claims.

The amendment further proposes that land acquired for restitution purposes may also be used for other land reform purposes. There are, however, laws, programmes and policy that deal with the other aspects of land reform. For example, thousands of claims have been instituted in terms of the Labour Tenants Act, Act No 3 of 1996.

The most important implication of the proposed amendments is therefore that the Minister and her officials will now have sole power in deciding whether a claim is valid, with the landowner being unable to dispute the validity of a claim prior to the expropriation.

To address the issue of incorporating the authority to expropriate for "any other land reform purposes" in the Restitution Act, we are of the opinion that it may not be appropriate to do so for

the following reasons:

1. The grammatical structure of section 42 E(1) renders the provision ambiguous i.e. does one interpret the phrase "and for any other land reform purpose" conjunctively or disjunctively.

1. If it is to be interpreted conjunctively it means that the Minister may expropriate for any other land reform purpose in terms of this Act. Thus all the requirements and prerequisites of the Act must be met. After they have been, the Minister may decide that instead of restoring the land to the claimant, it should rather be used for other land reform purposes.
2. If it is to be interpreted disjunctively, it will be read as follows: "The Minister may purchase, acquire and in any other manner expropriate land, a portion of land or a right in land for any other land reform purpose". This interpretation falls foul of the criteria listed in the preamble of the Act and thus should not be incorporated in the Act.
3. The explanatory notes to this section state that "although land may originally be intended for restitution purposes subsequent events may indicate that the land should rather be used for other land reform purposes". This leads one to infer that the provision must be interpreted conjunctively.
4. However, the explanatory notes also refer to section 6 (2) (b) of the Act which allows for recommendations to be made to the Minister regarding the most appropriate form of relief for those claimants who don’t qualify for restitution in terms of the Act. This clearly leads to the inference that the phrase should be interpreted disjunctively. Hence, the ambiguity is compounded.

1. The Act deals primarily with the restitution of land rights. The incorporation of other land reform measures in the Act by a singular reference leaves many issues unaddressed i.e.

1. The term "other land reform purpose" is not defined. This could lead to the validity of expropriations effected for such purpose challenged in court.
2. The Minister would have to state the purpose of the expropriation in the expropriation notice and if the Court finds that such purpose is not a land reform purpose, the expropriation may be set aside.
3. Thus, the Courts will have to each time define the concept "land reform purpose".

1. The Minister’s authority to expropriate land for land reform purposes is limited by the provisions of section 25 of the Constitution.

1. Sub-section 25(2)(a) provides that property may be expropriated only in terms of the law of general application for "a public purpose or in the public interest".
2. Sub-section 25(4) (a) further provides that the public interest includes the nations commitment to land reform and to reforms to bring about equitable access to all South Africa’s natural resources. Thus any expropriation would be invalid, albeit for land reform, if it is not for public purpose or public interest.
3. Sub-section 25(8) provides that "no provision of this section may impede the State from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36 (1).
4. Thus, an acquisition or expropriation for a "land reform purpose" by the Minister will have to be "for a public purpose or in the public interest" unless it can be shown that the acquisition or expropriation falls within the ambit of section 36 (1).

1. It is not clear from the amendment whether the High Court or the Land Claims Court will have jurisdiction to hear a review of an expropriation or acquisition for land reform purposes:

1. Chapter III of the Act created the Land Claims Court and inter alia determines the Court’s jurisdiction and authority.
2. Sub-section 22(1)(d) of the Act determines the exclusive jurisdiction of the land Claims Court "to determine all other matters which require to be determined in terms of this Act".
3. The Bill neither expressly includes issues regarding land reform under the exclusive jurisdiction of the Land Claims Court nor clearly states whether land reform measures are to be included in these "other matters" under sub-section 22(1)(d).

We further wish to express our concern, for the reasons set out below, about the fact that the latest version of sub-section 42 E (3) does not expressly incorporate the provisions of the Promotion of Administrative Justice Act 3 of 2000 ("the Administrative Justice Act").

1. By excluding the reference to the Administrative Justice Act, it is no longer clear whether the Minister has to apply the said act before she may expropriate.
2. Section 33 of the constitution guarantees that "everyone has the right to administrative action that is lawful, reasonable and procedurally fair." The Minster may argue that for an administrative expropriation to be procedurally fair in terms of section 33 she has to follow a fair process which does not necessarily include the application of the audi alteram partem principle.
3. Alternatively, the Minister may apply in terms of section 2 of the Administrative Justice Act for the exemption of administrative expropriations from the application of any of the provisions of section 3,4 and 5 of the said act.

Sub-section 3 (2)(b) of the Administrative Justice Act, which act was promulgated in terms of sub-section 33(3) of the Constitution, provides that in order for administrative action to be procedurally fair, a person whose rights are affected has to be afforded "a reasonable opportunity to make representations". If section 33 of the Constitution read with section 3 of the Administrative Justice Act, requires the application of the audi alteram partem rule to administrative expropriations by the Minister she will have to give the landowner concerned all necessary information and an opportunity to make representations before she can take a decision to expropriate his land.

It may be argued that such person includes an expropriatee which could allow the landowner to make representations prior to the expropriation regarding, inter alia, the validity of the claim.

This would alleviate some of our reservations regarding the fact that the landowner may not dispute the validity of the claim during administrative expropriations and thus we feel strongly that there is no need to deviate from the well grafted principles entrenched in the Administrative Justice Act. Thus the Administrative Justice Act should be specifically incorporated in the Act.

2. Although sub-section 42 E (2) states that the Expropriation Act will be applied "with the necessary changes" it is not clear whether all references to the Supreme Court in the Expropriation Act should be constructed as a reference to the Land Claims Court.
3. The proposed new sub-section 42 E (3) provides that "the amount of compensation and the time and manner of payment shall be determined either by agreement or by the Court in accordance with section 25 (3) of the Constitution." In the absence of an agreement the Minister will still in an administrative expropriation have to refer the amount of compensation for determination by the Land Claims Court.
4. Sub-section 35 (5A) of the Act which stands to be deleted expressly provides that the landowner’s right to just and equitable compensation should be determined with due regard to the provisions of section 12(3),(4) and (5) of the Expropriation Act. Sub-sections 12(3) and 12(4) deal with the payment of interest and 12(5) contain a number of rules for determining the amount of compensation to be paid. If these rules no longer apply, can it be inferred that the Minister will solely be guided by section 25 (3) of the Constitution when determining the compensation to be paid to the landowner?
5. Should the amount of compensation be unilaterally determined by the Minister and the landowner takes that decision on review, there will a second hearing of issues in the Courts which will lead to protracted proceedings.
6. The proposed sub-section 42E(1) authorises the Minister to "purchase, acquire in any other manner or expropriate land". This sub-section seems to differentiate between "acquisition" and "expropriation" as different concepts. However, the proposed sub-section 42E(5) refers to "the acquisition of land" only. The reason for this is not clear.

As we have recorded, it is not our intention to be obstructive to the land reform process but sincerely wish the restitution process to gain momentum. However, it is our desire that restitution takes place in accordance with fairness and justice as set out in the Green Paper of 1996.

We are of the opinion that the attempt to oust the function of the judiciary in these circumstances may well slow down the process rather than expedite it. We empathise with the need to streamline the process but perhaps it is incorrect to construe the bottleneck as only arising at the stage where the landowner refuses to sell. Indeed, most land claims have been settled by agreement and the members of Agri SA wish to continue to work through this process of restitution in conjunction with the Minister rather than to be on different sides of the playing field.

Finally, we believe that the amendment as it stands contains many irregularities and that it should in the light of the above explanations be reconsidered. We are emphatic that the Restitution Act should not be used for general land reform and that any administrative expropriations should specifically be subject to the Administrative Justice Act.