Abstract
This paper takes a close look at some of the main tenets set out in the Department of Rural Development and Land Reform's Green Paper on Land Reform of 2011, specifically those that have a bearing on the creation of a new framework for land law. The purpose is to advance some suggestions as to how new statutory interventions can avoid being contested for unconstitutionality. The analysis focuses on the Green Paper's notion of land as a national asset, questioning the meaning and implications of such a notion against the debate about nationalisation of important resources. In this context, the paper is critical of the perceived tendency to introduce reforms for the mere sake of political expediency. The guidelines for state interventions with property rights that would pass constitutional muster are deduced from (mainly) the decision of First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC).
Highlights
IntroductionThe stakes are just so much higher in the case of the Mineral and Petroleum Resources Development Act (MPRDA), which – unlike Communal Land Rights Act4 (CLaRA) – has been implemented,[16] and the transitional period has already expired
One of the many issues arising from the Department of Rural Development and Land Reform's Green Paper on Land Reform of 20111 is how the policies it envisages relate to the South African constitutional order
According to the Green Paper this is the premise on which any proposal for land reform, agrarian change and rural development should be based.[20]
Summary
The stakes are just so much higher in the case of the MPRDA, which – unlike CLaRA – has been implemented,[16] and the transitional period has already expired Were this Act to be declared unconstitutional and struck down, the costs involved would go even further than writing off years of planning and litigating the law. This paper attempts to extract from past experiences such as CLaRA and the litigation about the MPRDA lessons to assist the formulation of new land reform policies in ways avoiding the pitfalls of unconstitutionality. To do so, it identifies the core tenets of the Green. The property clause (section 25 of the Constitution) is used to predict possible directions that a new policy on land reform could take
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