20 August 2020
Ministerial discretion under the ULTRA Amendment Bill
will cause land dispossession on a huge scale
The Upgrading or Land Tenure Rights Act (ULTRA) is arguably democratic South Africa’s most important law. Yet virtually no one knows about it. A proposed amendment is currently before Parliament but only one aspect has enjoyed attention: the removal of gender discrimination.
“Essential thought that is, by far the most important aspect, which few have noticed, is it proposes what might be the biggest land dispossession in history,” says Leon Louw, CEO of the Free Market Foundation (FMF). “Victims will be almost exclusively millions of poor black South Africans. They will be placed right back where Verwoerd had them – wards of government under the whimsical discretion of officialdom.”
Essentially ULTRA provides that black people on formal land during and since apartheid own their homes and must get title deeds. They have, or should be recognised as having, full freely tradable title. Ultra should have transformed the lives of most South Africans, especially the poorest victims of apartheid, and caused more transformation and empowerment than any other measure. Yet it has not.
Louw says, “ULTRA has been ignored except by the FMF’s Khaya Lam Land Reform Project which has been helping homeowners, mostly elderly black women, exercise their right to title deeds”.
Clause 1 of the Amendment Bill intends to change the automatic conversion of land tenure rights into ownership, into an application for conversion. This would give the Minister the right to affirm or deny ownership. Such extreme discretionary power has no place in a free and democratic society.
According to Louw, “Millions of people could lose their homes. The Bill proposes a gigantic act of expropriation without compensation from the poorest and the most vulnerable – people deprived of resources with which to defend themselves.”
“Had ULTRA been implemented as intended, there would be thriving land markets in predominantly “black” areas with more black land-owning households than the entire white population. A trillion rand of dead capital would have been liberated into the hands of newly empowered and enriched families, and, through them, into the economy. Millions of destitute people would have been enriched and bankable,” said Louw.”
ULTRA confers full and clean title, with none of the demeaning and dehumanising restrictions inherited from apartheid or imposed since as RDP pre-emptive clauses.
According to the FMF, reversion, as the Bill envisages, of ULTRA ownership back to the state would be one of the greatest deprivations in history.
“The Bill could force occupiers of future land to apply for ownership” says Louw, “but should never be considered for previously liberated land. Retroactive deprivation would be a manifestly unjust, racist, unconscionable and unlawful travesty. It should be scrapped.
Regarding future land allocations, he continued, “It is time for the government to abandon the patronising apartheid era notion that black people should not enjoy full land rights. The poor should never be forced to beg for what is rightfully theirs.”
“If the ‘land question’ is taken seriously by government it would enhance and extend land rights for the poor, not obliterate them.”
The FMF unequivocally supports gender equality. It implores the government to eliminate gender discrimination and implement land empowerment and transformation in terms of ULTRA.
The consultation period has been extended to allow for more submissions and oral evidence.
FMF SUBMISSION TO THE
COMMITTEE ON AGRICULTURE, LAND REFORM,
AND RURAL DEVELOPMENT
UPGRADING OF LAND TENURE RIGHTS
AMENDMENT BILL, 2020
The Free Market Foundation (FMF) appreciates the opportunity to comment on the Upgrading of Land Tenure Rights Amendment Bill, 2020 (hereinafter ‘the Amendment Bill’), which amends the Upgrading of Land Tenure Rights Act, 1991 (hereinafter ‘ULTRA’). This submission takes the form of a very short note of clarity.About the Free Market Foundation
The Free Market Foundation (FMF) is an independent public benefit organisation founded in 1975 to promote and foster an open society, the Rule of Law, personal liberty, and economic and press freedom as fundamental components of its advocacy of human rights and democracy based on classical liberal principles. It is financed by membership subscriptions, donations, and sponsorships.
Most of the work of the FMF is devoted to promoting economic freedom as the empirically best policy for bringing about economic growth, wealth creation, employment, poverty reduction, and greater human welfare.Clause 1 of the Upgrading of Land Tenure Rights Amendment Bill
Clause 1 of the Amendment Bill purports to change the automatic conversion of land tenure rights listed in Schedule 1 into ownership, to an application for conversion into ownership. In so doing, it vests the Minister with a discretion to either approve or reject such application. Various other clauses make reference to conversions that occurred after 27 April 1994.
The evident problem with this is that all conversions happened from the moment of ULTRA coming into operation in 1991. In law, in 1991, all the holders of properties that qualify under Schedule 1 of the Act were automatically converted into ownership. In other words, factually and legally, the holders became owners. All that remains is for them to receive the title deeds that confirm the already-existing factual and legal position. The FMF’s Khaya Lam Land Reform Project has therefore made use of ULTRA since 2013 to assist homeowners in obtaining title deeds to their property.
We trust that this position is clear, and that the Amendment Bill sees itself as applying only to any new properties that might, from the day of its enactment, qualify under ULTRA. If it is applied retrospectively, a great injustice would come about, as it would amount to the unilateral expropriation without compensation of millions of private residences. This would be unlawful and inconsistent with the spirit, purport, and values underlying the Constitution.
Martin van Staden
Head of Legal (Policy and Research)
Free Market Foundation