Land Reform Faces Legal Hurdles

Recent research conducted by the Rule of Law Project has found that there are two Acts of Parliament that may hinder the process of effective land reform. These Acts, which include The Subdivision of Agricultural Land Act 70 of 1970, and the Spatial Planning and Land Use Management Act 16 of 2013, are said to be unconstitutional and may need to assessed by our government in order to allow for effective land reform.

What Makes These Acts Unconstitutional?

The Subdivision of Agricultural Land Act 70 of 1970 first came into operation on 2 January 1971 and since has given rise to a plethora of litigations. This Act prohibits the subdivision of land without the consent of the Minister of Agriculture. According to the report written by Gary Moore released by The Rule of Law Project, this Act is aimed at preventing agricultural land from being rendered economically unviable for the purpose of farming, as a result of uncontrolled subdivision. To achieve this, the legislature curtailed the common-law right of landowners to subdivide their agricultural property.
According to the Act, the Minister may “in his discretion” refuse any such application for his consent for subdivision; or he may “in his discretion” grant any such application on such conditions as he deems fit. However, because this Act grants unduly wide discretionary authority to the Minister, it violates the Rule of Law which excludes wide discretionary authority by the government.
On the other hand, the Spatial Planning and Land Use Management Act 16 of 2013 is a statute that aims to provide a uniform, effective, and comprehensive system of spatial planning and land use management in order to create social and economic inclusion in South Africa. However, according to Moore, this Act encroaches on the exclusive provincial legislative power of provincial planning and violates the Rule of Law by being unduly flexible and vague, and in consequence by giving the Minister unduly wide discretionary authority.
In his report, Moore states that “In a society governed by the Rule of Law, laws should be sufficiently defined, and government discretion should be sufficiently limited, to ensure that the law is not applied arbitrarily”.
That being said, in order for effective land reform to take place, both laws should be reassessed by government in light of the above mentioned constitutional considerations.

More on The Rule of Law Project

The Rule of Law Project was founded in 2016 with the aim of giving substance to section 1(c) of the Constitution of the Republic of South Africa, which provides that South Africa is founded upon the supremacy of the Constitution and the Rule of Law. The Project’s vision is that the Rule of Law should be seen to be the bulwark against capricious and autocratic government. Their purpose is to secure, so far as is practicable, the liberty of each individual.

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