South Africa: Green Paper On Land Reform 2011: Circular

Last Updated: 19 March 2012
Article by Michael Jackson, Carol McDonald, Themba Zikhali and Jason Goodison

On 31 August 2011, the Department of Rural Development and Land Reform tabled the Green Paper on Land Reform.

The Green Paper's stated aim is to address the injustice of past discriminatory laws and the inadequacy of existing land reform legislation and policy.

The Department of Rural Development and Land Reform proposes various measures to facilitate these aims. However, the Green Paper raises questions of constitutionality that cannot be overcome by what may seem to be laudable goals. Furthermore, little detail is provided regarding how the various mechanisms proposed in the Green Paper are to be implemented.


Since unionisation in 1910 and throughout the 1900s up to the late 1980s, a series of unjust and racially based laws resulted in the dispossession of black people of their land. Significant consequences of the racially discriminatory land laws were that the land tenure of many black people became tenuous and as a result, land development in rural areas was prevented.

Since the early 1990s there has been an effort to address injustices of the past. These efforts included the White Paper on land reform, which recommended the abolishment of all racially based legislation. Shortly thereafter, both the 1936 Land Act and the Group Areas Act were repealed and the Upgrading of Land Tenure Rights Act was passed, with the intention of upgrading black peoples very tenuous rights to land.

In 1996 the Constitution, in section 26 (6), bestowed upon persons whose land tenure was made legally insecure as a result of past racially discriminatory laws and practises, the right to either legally secure tenure or comparable redress.

So as to fulfil the obligation placed on it by the Constitution, the State has, since 1994 embarked on a process of land reform. This process is discussed in more detail in our previous circular (Circular No. 2: New Law Protecting Farm Workers And Farm Occupiers). Suffice it to say at this juncture that the State has passed into law various pieces of legislation which are aimed at fulfilling the promise of secure land tenure as contained in the Constitution. To this end, the Restitution of Land Rights Act, the Land Reform (Labour Tenants Act), the Interim Protection of Informal Land Rights Act, the Extension of Security of Tenure Act, the Prevention of Illegal Eviction and Unlawful Occupation of Land Act have all been brought into law.

Notwithstanding the enactment of this legislation, problems persist with the current land reform policy. The Green Paper speaks to these problems by addressing the three components of land reform, namely, land restitution, land distribution and tenure reform.


Amongst others, the problems alluded to above are the following:

  • There exists a lack of cohesion in the nations attitude toward land reform.
  • Due to budget constraints and lack of resources, the government has been unable to buy land efficiently, and the process of redistribution has been slow. In order to speed up land redistribution, the Green Paper proposes that an alternative to the "willing seller - willing buyer" model must be established and put into practise.
  • The claimants under existing legislation lack the resources to develop the land that is awarded to them. Rural poverty remains rife and rural development continues to be slow and incomplete.
  • There is a lack of dissemination of information to those who would benefit under the existing laws.
  • Farm workers and dwellers are failed by existing legislation as a result of the inadequate articulation, poor implementation and weak enforcement thereof. The Green Paper attempts to address this failure by providing systems that are (or will be, once implemented,) worker-friendly, co-ordinated and efficient.


A set of proposals is advanced by the green paper which attempts to improve on past and current land reform perspectives, without significantly disrupting agricultural production and food securities. The proposals aim to avoid or minimize land distribution and restitution which does not generate sustainable livelihoods, employment and income.

The following programs and institutions are proposed:

  1. A recapitalization and development program;
  2. A single land tenure system with Four Tiers;
  3. A land management commission;
  4. A land valuer - general;
  5. A land rights management board, with local management committee;\Properly aligned common property institution; and
  6. Properly aligned common property institutions
  7. The Land Tenure Security Bill, 2010.

Each of these programs and institutions are discussed briefly below.

Recapitalization and Development Program

The role of this program is to ensure that all land reform farms are 100% productive. The strategy underlying the program is partnership with commercial farmers on a risk sharing basis. Little detail is provided as to how this is to be achieved.

A Single Land Tenure Framework with Four Tiers

A single land tenure framework is proposed, integrating the current multiple forms of land ownership (communal, state, public and private) into a single four tier tenure system consisting of:

  • Tier 1 – State and public land: leasehold
    The need for consultation between different spheres of government in instances of disposal of State land has a paralyzing effect on service delivery. By keeping State land in the hands of the State, leasehold will (in theory) enable the State to utilize land more effectively to achieve service delivery objectives.
  • Tier 2 – Privately owned land: freehold, with limited extent
    The Green Paper entrenches the right of a citizen to outright ownership of property. However, it is anticipated that there will be regulatory limitation relating to prime unique agricultural land. Details of the limitations are not set out in the Green Paper, but it is implied that there will be a cap on the amount and type of land that any single person may own.
  • Tier 3 – Land owned by foreigners: freehold, but precarious tenure, subject to obligations and conditions
    It is envisaged that foreigners will no longer hold freehold title but be entitled to leasehold, the titles subject to limitations imposed by the Government.
  • Tier 4 – Communally owned land: communal tenure with institutionalized use rights
    This fourth tier of tenure, communal land tenure, will form the subject of a separate policy document, to be prepared by the Department of Rural Development and Land Reform after extensive consultation. Further details about this tier are not available at present.

In support of these proposals, the Green Paper looks at the land tenure models applicable in China, India, Brazil, Mexico, Chile and, in relation to Africa, Egypt.

Land Management Commission (LMC)

The functions of this autonomous, although not independent, commission will include, advising, co-ordinating, regulating and auditing. The LMC will have the power to subpoena any person to answer questions relating to his land holding or land interest, to enquire about any land question, to verify or invalidate title deeds, and to seize or confiscate land obtained through fraudulent or corrupt means.

The Land Valuer General

The office of the Land Valuer General will be a statutory office responsible for the provision of fair and consistent land values for rating and taxing purposes, as well as for determining financial compensation in cases of expropriation.

Land Rights Management Board (LRMB) and Land Rights Management Committees (LRMCs)

The Green Paper proposes the establishment of the LRMB. Functions of the LRMB will include communicating legal reforms to farm owners, farm dwellers and potential land beneficiaries, providing legal representation, where necessary, and establishing a co-ordinated and integrated support system for development measures in rural areas. The LRMB will have the power to establish LRMCs. LRMCs will be composed of representatives in a specific rural environment. The LRMB, together with LRMCs will be responsible for enforcing respect for, and observance of, rights of fellow dwellers.

The Land Tenure Security Bill 2010

This Bill aims to regulate the rights farm owners and of persons who reside or work on farms, and those associated with them. For more information about the land tenure security bill, please see Circular No. 2: New Law Protecting Farm Workers and Farm Occupiers.


We raise the following concerns in relation to the Green Paper :

  • The retention of ownership of land in the hands of the State follows models which have been adopted in socialist (and historically, Marxist) countries. It is unlikely to foster investment in land and infrastructure.
  • The imposition of limitations on the rights of private landowner will similarly restrict investment in land. It is a continuation of the trend to restrict private property rights without compensation. Since 1994, we have seen this in relation to water rights and mineral rights.
  • Imposing a restriction on land owned by foreigners is likely to restrict foreign investment.
  • The treatment of communally owned land has been not properly dealt with since 1994. It has resulted in a continued impoverishment of those who live on communal land and has hampered development of these areas.
  • Conferring powers to the Land Valuer General to determine compensation in the case of expropriation will result in the courts powers being ousted and we believe would be unconstitutional.
  • Imposing a ceiling on land ownership is dangerous and will result in the State being able to expropriate land through the back door.
  • The comparison of land reform experience elsewhere is superficial and in many cases, inappropriate.
  • There is a complete lack of clarification on the implication of the proposals which the Green Paper has made.


The Green Paper raises serious concerns regarding the treatment of land and land rights in South Africa. We will continue to monitor this very important area.

As and when further details become available, we will communicate these developments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions