Feet on the Earth or Head in the Clouds? The State Plans Our Agricultural Future: Part III – Can the State Capacity Requirements for Heavy Regulation be Met?

The first brief in this series set out definitions of agricultural land and outlined the regulatory framework contained in the Preservation and Development of Agricultural Land Framework Bill. The second brief set out the massive information requirements of the proposed system. This brief will deal with state capacity requirements. All three levels of government will be involved. Let us start from the bottom up.

Municipalities:

Every municipality must incorporate all agricultural land in their municipal spatial development plans. In the process, they must incorporate the classification of land formulated by the national and provincial departments. Each municipality must establish a Municipal Internal Technical Committee to deal with the province, monitor changes in land use, evaluate policies and strategies for sustainable agriculture and consider and make recommendations regarding for the rezoning and subdivision of agricultural land. The recommendations must be made in the light of the municipality’s integrated development plan, the local economic development plan, the land use management scheme and any other local planning framework. A municipality must also consult with traditional authorities if traditional land is involved. Applications must be dealt with quickly. If an application is not dealt with in twenty days from receipt of an application from the province, the province is entitled to disregard its inputs and execute the municipal functions.

Provinces:

Every province must, with the assistance of the national department, implement a coherent approach to planning and development of agricultural land and its optimal use. In so doing, it must establish systems for agricultural land use planning and zoning, regulating agricultural land conversions and processing applications for farmers. In formulating strategic plans, the province must include evaluations of alternative forms of development, give weight to strategies which minimise the impact on high cropping agricultural land and promote urban agriculture. Every province must establish a Provincial Internal Technical Committee to make recommendations regarding applications for subdivision or rezoning, and to make suggestions to municipalities on the use of agricultural land.

National:

The Bill provides for the establishment of four institutions:

• ​A National Internal Technical Committee, designed to make recommendations to the Minister on applications, including for long leases, sales of portions of agricultural land, acquisition of land by foreigners and consolidation of land. It will also make recommendations on expropriation and monitor trends and compliance.
• An Agricultural Land National Advisory Committee, whose functions will include the evaluation of provincial agricultural sector plans and to make recommendations to the Minister, and assessing the desirability of establishing incentive schemes to promote optimal land use. There is also considerable overlap between the functions of this committee and the National Internal Technical Committee.
• An Intergovernmental Committee on the Preservation and Development of Agricultural Land. On this Committee will be the Minister and Deputy Minister of agriculture, forestry and fishing, the Minister and Deputy Minister responsible for land reform, the Ministers responsible for trade and industry, environmental affairs, mineral resources and water affairs, and the Chairman of the National Planning Commission. This will act on recommendations by the Ministers responsible for agriculture and land reform. Where matters concerning a specific province are concerned, the MEC will attend committee meetings. ​The purpose of the Committee will be to ensure high level discussion and departmental co-operation in the preservation, development and sustainable use of agricultural land. It will also deal with applications for rezoning of high potential cropping land and protected agricultural land in medium potential land.

• ​An Agricultural Review Board, whose function is to review decisions on applications made to the Minister, the MEC or the Intergovernmental Committee, and any conditions on applications. The decision is final and must be communicated, with reasons, to all affected parties. However, an appeal against the decision may be lodged in a High Court.   

The Minister may authorise a suitable person to inspect agricultural properties. Inspectors may enter properties at any time to carry out routine inspections, to collect specimens and to investigate whether conditions attached to the authorised use of the land are being complied with. Inspectors may issue directives to non-compliant persons, which specify steps to be taken within a specified period. Directives can be appealed against to the Director-General. Failure to comply with a directive may result in any conditional approval being cancelled, a final notice of expropriation being issued or referral of the matter to the National Prosecuting Authority if an offence has been committed. The Bill defines the following as offences: committing or omitting an act which results in a contravention or failure to comply with any provision, aiding and abetting such a commission or omission, making a false disclosure, or avoiding the provisions of the Bill.

As indicated in the previous brief, the new system will entail great pressure on the Surveyor- General and the Deeds Office.

Financial and skills constraints on implementation of a new system will exist and may be severe enough to cause serious congestion at all levels, to the point where the system functions badly and, in places, not at all. This creates incentives for avoidance, and for bribery and corruption designed to grease the wheels. In any event, the new system will be costly and so the question must be considered of whether heavy regulation justifies the cost and produced desirable outcomes. This will be the subject of the fourth brief in this series.

Charles Simkins (charles@hsf.org.za) is a senior researcher at the Helen Suzman Foundation (HSF). This article first appeared on the HSF website.