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 Shortly thereafter, both the 1936 Land Act and the Group Areas Act were repealed and the Upgrading of Land Tenure Rights Act was passed, with the intention of upgrading black peoples very tenuous rights to land.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.

Michael Jackson
Carol McDonald
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”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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