Feet on the Earth or Head in the Clouds? The State Plans Our Agricultural Future: Part I - What is Agricultural Land?

The first brief, in this series, sets out the definitions of agricultural land and outlines the regulatory framework contained in the Preservation and Development of Agricultural Land Framework Bill.

The story goes back to the Subdivision of Agricultural Land Act 70 of 1970, as amended. In that Act, agricultural land was defined as a residual category. Excluded was:

• land situated in the area of jurisdiction of a municipal council, city council, town council, village council, village management board, village management council, local board, health board or health committee;
• land of which the State is the owner or which is held in trust by the State or any Minister for any person;
• land which the Minister after consultation with the executive committee [of a province]; concerned and by notice in the Government Gazette excludes from the provisions of the Act;
• a number of other categories of land, often specific to individual provinces.

What happened when wall to wall local authorities were introduced? That threatened to create a situation in which no land was agricultural land, so a proviso was added by proclamation which said that any land classified as agricultural immediately prior to the first election of the members of a transitional local council would remain classified as such. The issue of what would happen once the new local authority system was finalized was tested in the courts, with the Constitutional Court ruling that the proviso would continue to apply.

Much, though not all, of the land in the former homelands was, and continues to be, state trust land.

The draft Preservation and Development of Agricultural Land Framework Bill proposes to update the definition. Agricultural land is again defined as a residual category. This time the exclusions are:

• land in a proclaimed township;
• land included in an application for declaration as a township before the commencement of the [new] Act, provided that the application is approved;
• land which, immediately before the commencement of the Act, was formally zoned for non-agricultural purposes by any sphere of government or any public entity;
• land which the Minister, after consultation with other relevant Ministers and provincial MECs concerned, excludes by notice in the Government Gazette.

Gone is the earlier reference to state land or land held by the state in trust. Applying for a subdivision or rezoning of agricultural land after the commencement of the new Act will be a lengthy process. First an application has to go to the province. Then the province has to consult the relevant municipality. If the land is occupied by a traditional community, traditional authorities have to be consulted by the municipality. The application then goes back to the province and from the province to the national department responsible for agriculture, forestry and fishing, where it has to be considered by a committee and then by the Minister, who makes the decision. At every stage, the application must be considered in the light of several criteria and recommendations made. This means that there can be no new township without the approval of the Minister of Agriculture.

In tandem with the publication of the Bill, a Draft policy document on the preservation and development of agricultural land has been released by the Department of Agriculture, Forestry and Fisheries. This contains quite a different definition of agricultural land:

any land which is or may be used for the production of biomass that provides food, fodder, fibre, fuel, timber and other biotic material for human use, either directly or through animal husbandry including aquaculture and inland and coastal fisheries or any other agricultural purpose, with the exception of land excluded by the Minister.

The draft Bill innovates by defining eight classes of land, ranging from Class I, which has very high potential for intensive crop production to Class VIII, which has permanent limitations that preclude its use for commercial agricultural production and restrict its use to recreation, wildlife, water supply or aesthetic purposes. Classes I and II are suitable for intensive crop production, class III has a moderate and Class IV has a marginal potential for crop production. Classes V-VII are suitable for grazing and forestry while Class VIII normally includes very steep areas that are not suitable for agricultural purposes.

Classes are grouped into high potential cropping land (Classes I to III plus irrigated or potentially irrigated land plus other land capable of producing high quality and high yields of a specific crop) and medium potential land (all other agricultural land).

This classification has bite, because the Bill:

• states that agricultural land is the common heritage of all the people of South Africa and the Department (DAFF) is the custodian thereof for the benefit of all South Africans.
• requires that a farmer actively uses and develops the agricultural land concerned to its optimal agricultural potential, with due regard to the farming enterprise concerned; and protect the agricultural land concerned from non-sustainable agricultural activities and non-agricultural activities. Failure to do so may result in expropriation at a lower price than would be paid for similar land in the same geographical area which is used optimally for agricultural purposes.

The draft Bill also:

• prohibits the conversion of high potential cropping land to eco-tourism game farming or other agricultural production activities, where such conversion will result in a decrease in, or cessation of, the production of food and food crops;
• requires that lease agreements of longer than ten years on high potential cropping land be approved by the Minister;
• requires written consent, by the Minister in the case of high potential cropping land or the provincial MEC in the case of medium potential land before any portion of agricultural land, whether surveyed or not, is sold or advertised for sale for non-agricultural purposes;
• requires Ministerial consent to consolidation of high potential cropping land;
• requires Ministerial consent to the acquisition of agricultural land by a foreigner;
• permits the Minister to intervene in matters succession to agricultural land, possibly requiring the realization of the land as part of winding up an estate.

The passage of the Draft Bill as it stands would introduce much heavier regulation than existing legislation. In turn this requires considerable information and capacity, at all three levels of government. The next brief in this series will consider both these issues.

Charles Simkins is Senior Researcher at the Helen Suzman Foundation.

This article first appeared as an HSF Brief.