INDIGENOUS farmers whose farms were appropriated by
Government under the Fast-Track Land Reform Programme can now apply to
repossess their land under new regulations gazetted on Friday.
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. Sunday Mail
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