26 November, 2019
Important land matters and Agricultural Development Agency update
the Agri SA Centre of Excellence on Land meeting on
Monday 18th November, we would like to report on the
following important matters:
Amendment of the
Constitution for Expropriation without compensation
As we have previously
reported, the ad-hoc Parliamentary committee on EWC,
never completed the task of recommending proposed
wording to amend the Constitution. They are busy with
that process now and they invited experts to address
them on 6-7 November. It was once again a flawed
process, as the meeting was scheduled for 11-12
November and should have included many more experts,
including a broad spectrum of experts from academia.
The meeting was brought forward on short notice and as
a result, there were very limited inputs from
- The committee invited
comments on two proposed wording options, both of
which over-reach way beyond what the President and
other senior party members have repeatedly said,
following the shocking resolution of the ruling party
in December 2017.
What is very important to
note however, is that the proposed options make it
clear that any amendment should be in respect of land
and not in respect of property rights, which has been
a deeply worrying issue throughout the process.
re-iterated their position, which is consistent with
that of FSA, that they disagree with the committee's
findings and with Parliament's resolution based on
those findings, that the Constitution requires any
amendment. The committee didn't want to entertain any
dialogue on this issue, saying that the meeting was
only to discuss the proposed wording of the
Constitutional amendment but they finally conceded
that they were able to report to Parliament that some
invitees to the meeting were not prepared to discuss
any changes to the Constitution.
Prof Elmien Du Plessis
with whom FSA has engaged several times previously,
also supported the view that there was no need to
amend the Constitution.
It was agreed that AgriSA
was correct not to comment on the wording and that
they should also not make any written comments on the
proposed wording, as doing so may legitimise the
process, whereas our position and that of AgriSA, is
that the process is fundamentally flawed, which
precludes our participation therein. FSA will maintain
The committee are adamant
that they will conclude their work by 6 December and
that by 15 February, they will Gazette proposed
wording to amend the Constitution.
It was agreed that if
they indeed Gazette proposed wording, even if it is
what we expect to be very benign changes, FSA, AgriSA
and all other commodity groups must at that time, once
again submit our previous written objections to any
proposed changes to the Constitution. This will
support any future litigation we will initiate should
the Constitution be amended in a way that we regard as
As we have previously
reported to members, bringing about an amendment to
the Constitution will require a two thirds majority in
favour thereof in Parliament and if the final proposed
wording is as benign as we expect it to be, it is
unlikely that the EFF will support the amendment, in
which case the proposed amendment will fail. Also as
we have previously reported, the President himself
when he was still Deputy President, defeated the
proposed policy to amend the Constitution at the ANC's
NEC in June 2017, so if the ANC allows its members to
vote with their conscience on this issue, it is also
likely that a significant number of ANC MPs will also
not support the amendment. Once again this would
result in a failure to secure a two-thirds majority.
In the worst case
scenario, if the two-thirds majority is actually
achieved, notwithstanding the severe damage this would
do to the EFF in the process, if the wording simply
makes explicit what is already possible in the current
wording in the Constitution, this would pose no new
threat to either property or land rights in South
The committee has planned
for another round of public hearings on 17-18 March
2020 once the Gazette has been published. It was
agreed that all associations and commodity groups
should once again participate in those hearing in
addition to making written submissions and our
participation should once again be to express our
opposition to any changes to the Constitution in this
This Bill, even though it
poses no threat to forestry or agriculture in the
categories of land it proposes for expropriation, has
nonetheless been sent back to Nedlac to revisit the
conditions under which expropriation can take place.
Status of Land Claims
Advocate Sandile Kobese
who works in office of the Chief Land Claims
Commissioner (CLCC) gave an excellent presentation to
He reminded the meeting
that of the original 80 000 land claims from the 1998
process, 7000 were still outstanding.
After the disaster which
was caused through Jacob Zuma's re-opening of the land
claims window under the Land Rights Amendment Act of
2014, the Constitutional Court halted the process by
declaring that the legislation was invalid.
The Concourt nonetheless
said that the 163 000 new claims lodged under the
invalid legislation, were lodged correctly but
interdicted the CLCC from processing them, until the
7000 outstanding claims had been settled.
In its second judgement
on 19 March 2019 the Concourt dismissed Parliament's
application for an extension to finalise the 7000
outstanding claims and declared furthermore that the
CLCC must report to the Land Claims Court (LCC)
instead of the Minister of DARDLR.
The CLCC must report
every 6 months to the LCC on the claims settled and
progress in respect of phased claims. Must also report
to the LCC on any challenges and constraints (budget
The CLCC are also
prohibited from declaring on the validity of claims as
this is the sole mandate of the LCC.
Of great importance, is
that FSA asked the advocate whether the CLCC can
consider the competing new claims, while settling the
old order claims, even if they are not "processing"
per se, so as to avoid settling a claim and
finding out in future years, that there were competing
claims over that area. The advocate advised that they
are both able to do so and do so as a matter of
course, during the public comment process, once they
Gazette an old order claim. Moreover he advises that
they actively alert new order claimants to the
Gazette, as many of them may not know the claim has
been Gazetted. The importance of this is that through
this process, it is theoretically possible to avoid
duplication/conflict between old order and new order
claims, once the CLCC is able to process the new order
claims (assuming the amendment Act is rectified).
New Property Valuations
Following the partial
successes achieved in the Melmoth case, on which we
previously reported to members and to which FSA
contributed, there is a another case at Jakkalsdal
which AgriSA are going to support.
- In this case, the
Minister who is being interdicted, has directed that
Professor Moyo, who drafted the spurious regulations,
must give evidence as to why the owner should not
receive full market value.
If this case also goes in
our favour, it will expose the flawed logic by the
drafters and may compel the State to finally
completely withdraw the regulations.
Approved South African
Agricultural Development Agency (SAADA)
Public Private Growth Initiative, in which Forestry
features prominently and on which we regularly report
progress to members, has approved the SAADA.
An MoU is currently being
concluded with the department of DARDLR for the
establishment of SAADA.
It is a private sector
led initiative but enjoys the support of DARDLR,
National Treasury, the DHWS, DTIC and COGTA.
A seperate MoU is being
drawn up with the banks to provide support and
"patriotic capital" to the SAADA. This will involve
differential rates from normal commercial loans.
The Motsepe Foundation is
putting up R100m in capital.
The EU Finance Bank have
expressed their willingness to invest up to R1bn at a
2% interest rate.
The United States' Built
Fund for Infrastructure are also willing to commit
large funding and again at an interest rate of 2%.
Importantly this would be repayable in Rands which
mitigates the risks of currency fluctuations.
The SAADA want to
encourage companies to invest their CSI spend through
the fund which will also provide soft finance.
Because more than 75% of
SAADA income is for black businesses, all contributors
will score 100% for ED, SD and SED/CSI on their BBBEE
Scorecard, if they contribute to the fund.
They are also looking to
use Sec12J structures to augment investment, by paying
rebates to contributors.
Source: Forestry South Africa