In April 2019, the Nelson Mandela Foundation commissioned a series of papers on urban land reform. Their aim was to inform debate about and propose a feasible approach to urban land reform which could, in the near future, be implemented. In line with this, SERI authored two papers on urban land reform and urban land redistribution. SERI has recently published the revised versions of the summary reports of the papers submitted to the Nelson Mandela Foundation and will be published at a later stage.
The paper on urban land reform adopts Section 25(6)2 and Sections 26 (1), (2) and (3)3 of the Constitution as its starting points. Shortly after the Constitution was enacted, a set of tenure security laws were enacted to give immediate effect to Section 25(6), pending the development of legislation providing permanent, positive rights.4 The Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act), which gave effect to section 26(3), is one of these laws. The long-term legislation has not yet been developed.
The summary report on urban land reform further recommends that the Department of Public Works also has a role to play in making better use of existing instruments, as it is responsible for land expropriation. Expropriation should be used to secure the tenure of a person or community living without it because of past racially discriminatory laws or practices. They should be able to request the Minister to consider whether to expropriate the land on which they reside for their benefit.
The paper on urban land redistribution adopts the redistribution clause in section 25 (5) of the Constitution as its starting point: “the state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.” On this basis SERI argues, in line with the Presidential Advisory Panel and High-Level Panel reports, that a law should be developed and enacted which gives effect to section 25(5) and that the in order to operationalise the approach we propose a process for fine-tuning urban equitable access principles, the main legislative measure (the Framework Act) and the policy measures (the various programmes).
The summary report on urban land redistribution further recommends that expropriation should be employed as a significant mechanism in urban land redistribution. The voices of the urban landless should be heard on what land should be expropriated and when, either directly or indirectly. Ordinary South Africans and communities, who have not been able to gain access to land on an equitable basis, should be able to approach the Minister of Public Works to consider expropriation.