LAND CEILINGS PRESENTATION TO THREE TIER WORKSTREAM 18 OCTOBER - PowerPoint PPT Presentation

LAND CEILINGS PRESENTATION TO THREE TIER WORKSTREAM 18 OCTOBER 2012

BACKGROUND • This Presentation provides an extensive summary of the Draft Report on Comparative Constitutional and Legal Perspectives on Land Ceilings. • Within this context, an overview of the manner in which land ceilings are dealt with in a number of foreign jurisdictions, namely India, Egypt, Mexico and Taiwan, is given. • This is followed by a brief exposition of the relevant South African constitutional provisions that provide the framework for evaluating the constitutional validity of the possible introduction and implementation of ceilings in South Africa. In essence the concept ceiling for land is aimed at limiting the amount of land • (agricultural and/or urban) that can be owned and acquired by either an individual or a family unit. • In an agriculture-based land reform programme, land exceeding the ceiling limit is expropriated and distributed amongst identified beneficiaries according to criteria stipulated in legislation that underlies the specific land reform programme.

KEY FINDINGS INDIA • In order to facilitate the land reform programmes, and specifically in order to implement land ceiling legislation, the 1949 Constitution of India has been amended at least six times. • The right to property has been weakened from a fundamental right to a mere legal right. • Simultaneously, provisions were written into the Constitution allowing state legislatures to enact legislation aimed at land reform which, if incorporated in the Ninth Schedule of the Constitution, would not be void merely on the ground that they infringed on any fundamental rights.

KEY FINDINGS INDIA (CONTINUED) • It is imperative to take into account that India’s land ceiling legislation is founded upon and developed from within a very context-specific situation and has a particular underlying philosophical and ideological foundation, which differs from the constitutional framework of South Africa. In this regard, it has to be noted that India is a socialist republic. It is also important to take cognisance of the fact that India had a semi-feudal agrarian system at the time of independence. The land was mainly owned and controlled by large absentee landowners or intermediaries and mostly ‘tilled’ by sharecroppers or tenants. Leasing out land was a common practice. Landowners cared little for land and agriculture and they were mainly interested in extorting high rents from tenants. Tenants and sharecroppers had little motivation to farm effectively and sustainably as they had no security of tenure.

KEY FINDINGS INDIA (CONTINUED) • Constitutional amendments that paved the way for the implementation of the land reform initiative were inherent to the constitutional land reform framework in India. Constitutional amendments were necessary to: – Immunise land reform legislation from fundamental rights contained in the Constitution; – Limit the judicial review of land reform legislation; – Limit government’s liability to pay compensation in cases of expropriation of land for the purpose of land reform; and to – Differentiate between fundamental rights and overarching constitutional principles. • In addition, Directive Principles of State Policy surpassed fundamental rights contained in the Constitution, resulting in the downgrading of the fundamental rights concerned. Furthermore, unintended and unforeseen consequences of the ceiling approach in India have necessitated the review of existing land reform initiatives and the development of new land reform initiatives.

KEY FINDINGS EGYPT, MEXICO & TAIWAN • Taken the experiences of the maximisation of the number of land holdings in Egypt, Mexico and Taiwan into account, it can be concluded that: – Land size that is too limited can be representative of poverty and under- development. Furthermore, in determining the limitations/ceilings it should be taken into account that too limited land size negatively impacts on agricultural production while too high ceilings risk excessive concentration. – The distribution and readjustment of land is complemented (and even dependent) on government assistance to owner-farmers and owner-users. However, the presence of corruption in institutions responsible for supporting small-holder farmers can be detrimental to the success of a land ceiling programme.

KEY FINDINGS EGYPT, MEXICO & TAIWAN (CONTINUED) – Agricultural productivity improves as a result of greater production incentives, improvements in land use, and increased use of farm implements and agricultural equipment. – Security of title is needed for self-investment and higher input in property. Owners of land are more willing to invest in their own land without the fear that their rights can be terminated. Agricultural outputs are increased in the process. Ownership of land is also fundamental to acquire access to credit. – The limitations on landholding in Mexico and Taiwan were to an extent influenced by the socialist "heritage" of the respective countries. The limitation on landholding in Egypt was based on reform measures introduced by a socialist government and a socialist constitution (and subsequent control of the administrative system) that influenced the strong political and administrative pressure to apply land ceilings in Egypt.

KEY FINDINGS SOUTH AFRICA: CONSTITUTIONALITY • The following principles are relevant regarding the constitutionality of land ceilings: – Due to the negative property guarantee entrenched in the Constitution, the holding of property is protected by implication while the right that property will only be limited according to constitutionally-prescribed norms is directly guaranteed. – Section 25 must always be interpreted contextually, taking into regard both the overall framework and spirit of the Constitution, and the actual specific incidences that need to be adjudicated. – A constitutionally valid deprivation must be authorised through a law of general application and it may not be an arbitrary deprivation of property. – Due to the fact that section 36 stipulates that a limitation of a constitutional right contained in the Bill of Rights may only be contained or brought about by a law of general application, it is clear that a deprivational measure that is not a ‘law of general application’ will not pass constitutional muster .

KEY FINDINGS SOUTH AFRICA: CONSTITUTIONALITY (CONTINUED) – Due to the similarities between the test for arbitrariness (required by section 25(1)) and proportionality (required by section 36(1)), it seems highly unlikely that an arbitrary deprivation will be regarded to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. – Aggrieved parties have a constitutionally guaranteed recourse to the courts of the country. – Section 36 cannot be used to limit the court’s powers. Section 36 only deals with the limitation of rights contained in the Bill of Rights. – In terms of section 25 (read with section 36), land reform initiatives must be contained in a law (or laws) of general application and may not authorise arbitrary deprivations. Due to the fact that the implementation of ceilings on land will inevitably lead to expropriation, the compensation issue will probably also become a constitutional issue.

KEY FINDINGS SOUTH AFRICA: CONSTITUTIONALITY (CONTINUED) • Although land reform is purposively included in the concept ‘public interest’, it is but one aspect that needs to be taken into consideration when public interest is determined for purposes of section 25(2). Other vital aspects that must be regarded to form part of the public interest include food security, economic growth, poverty reduction, a stable labour force, etc. Legislation should be drafted in such a manner as to ensure that the implementation thereof would, from different perspectives, be in the country’s (public) best interests.

KEY FINDINGS SOUTH AFRICA: CONSTITUTIONALITY (CONTINUED) Critical questions: • The effect as regards constitutionality if land ceiling legislation were to be enacted on the rights of bond holders and other holders of limited real security (whether registered or unregistered, on the basis of statute or ex lege ). • The effect as regards the constitutionality if ceiling legislation would: – Exclude the expropriation of movables (e.g. cattle) – Include the expropriation of movables (e.g. cattle); used farm implements (e.g. tractors) • The constitutionality of legislation that would enable the break-up of farms that have been consolidated since 27 April 1994.