GOVERNMENT has started a process of repossessing land to compensate indigenous and white former commercial farmers affected by the 2000 land reform programme, described by many as chaotic.
Farms which were protected under Bilateral Investment Protection and Promotion Agreements (BIPPAs) and Bilateral Investment Treaties (BITs), including those owned by indigenous corporates, could also be returned to their previous owners upon application for repossession.
In terms of Statutory Instrument 62 of 2020 — Land Commission (Gazetted Land) (Disposal in Lieu of Compensation) Regulations, 2020 — former landowners under these categories can either opt for repossession or monetary compensation.
An amendment to the Constitution in 2005 provided for the acquisition by, and vesting of full title in the State, of agricultural land for resettlement purposes.
As a result, all land that had been gazetted for acquisition under the Land Acquisition Act, including that which was owned by indigenous farmers or protected by bilateral treaties, was summarily acquired by the State.
Effectively, this deprived indigenous farmers of land they had duly acquired through purchase, thereby disempowering them in the name of empowering their fellow indigenes.
In addition, the compulsory acquisition of farms protected by international treaties resulted in diplomatic complications for the State, which was accused of failing to respect property rights and international accords.
A senior official in the Ministry of Lands, Agriculture, Water and Rural Resettlement, who requested anonymity, told The Sunday Mail that the new regulations are designed to address the wrongful disempowerment of indigenous farmers.
“The way agriculture land was acquired, in a way, disempowered black farmers in the name of empowering landless blacks,” said the official, who is not authorised to talk to the press.
“Also, the way farms which were protected by BIPPAs were acquired was not the way they were supposed to be taken. These are the wrongs that the SI (Statutory Instrument) is trying to address. In essence, these former land owners can opt for either compensation or apply to get their land back.
“Getting the land back is, however, not automatic. There is a process that has to be followed, which includes application and an assessment of the application on a case-by-case basis.”
Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi referred questions to the Lands Ministry.
Secretary for Lands, Agriculture, Water and Rural Resettlement Permanent Dr John Basera said he could not comment.
Reads the regulations in part: “The object of these regulations is to provide for the disposal of land to persons referred to in Section 4, who are, in terms of Section 295 of the Constitution, entitled to compensation for acquisition of previously compulsorily acquired agricultural land. Identification of persons to whom these regulations apply.
“These regulations apply to the following persons who, before agricultural land owned by them was compulsorily acquired under the Land Reform and Resettlement Programme (hereinafter in these regulations referred to as “acquired agricultural land”), were the owners thereof under a deed of grant or title deed or had completed the purchase of their farms from the State in terms of a lease with an option to purchase — (a) indigenous individual persons (or where such persons are deceased, their legally recognised heirs); (b) individuals who were citizens of a BIPPA or BIT country at the time their investments in agricultural land were compulsorily acquired under the Land Reform and Resettlement Programme (or where such persons are deceased, their legally recognised heirs); (c) partnerships, if the partners who held any farm jointly were — (i) indigenous individuals; or (ii) citizens of a BIPPA or BIT country; (d) private companies whose shareholding is wholly or predominantly owned by — (i) indigenous individuals; or (ii) individuals who were citizens of a BIPPA or BIT country.”
The regulations invite the categorised former land owners to apply to the Lands Minister (Perrance Shiri), who then refers all such applications to a committee chaired by the director of the Department of Lands Management.
The committee then reviews the application before recommending to the Minister whether or not to allot the land in question to the applicant.
The applicant must submit a copy of the deed of grant or title deed or lease and identity documents.
In the case of an applicant who is a citizen of a BIPPA or BIT country, they are required to submit a copy of the relevant BIPPA and a passport showing that the applicant was a citizen of the BIPPA or BIT country when the farm was acquired.
“If in the opinion of the committee — (a) an applicant qualifies to obtain title to a farm in part or in full, the committee shall make the appropriate recommendation to the Minister; (b) an applicant does not qualify to obtain title to a farm in part or in full, the committee shall inform the applicant in writing accordingly and give him or her reasons why he or she does not qualify.
“In considering a recommendation of the committee, the Minister shall invite the Land Commission to make representations, if any, on the recommendation within a period (not being less than seven days) specified by the Minister.
“The Minister may reject any application on the basis that granting it would be contrary to the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest.
“The Minister shall notify every applicant in writing of the outcome of his or her application and, where the application is rejected, the reasons for the rejection.
“The Minister’s decision upon an application shall be final.”
The Sunday Mail has gathered that in cases where a farm has been subdivided to a lot of people who would have settled and are productive, the applicant will be given the option of being reallocated another farm.
Some of the countries covered by BIPPA include Denmark, Germany, Belgium, Netherlands, Italy, Malaysia and Switzerland.
A BIPPA is a legal instrument that establishes specific rights and obligations to meet the primary purpose of protecting foreign investments against discriminatory measures like policy inconsistencies by the host state.
In principle, it ensures reciprocal encouragement, promotion and protection of investments, thus enabling conditions conducive to increase investment.
Following acquisition of BIPPA-protected farms by Government, some former owners took Government to the International Court for the Settlement of International Investment Disputes where a group of 40 Dutch farmers won a US$25 million settlement.
Agreements under BIPPA require that Government pay fair compensation in currency of the former owner’s choice for both land and improvements. Official figures show that 197 out of 258 farms measuring 977 000 hectares under BIPPA were acquired for resettlement under both A1 and A2.
During the land reform, Government acquired around 14 million hectares of large scale commercial farms out of the 15,5 million hectares that were previously owned by white commercial farmers.