The Draft Preservation and Development of Agricultural Land Bill was published in Notice 210 No. 38545 Government Gazette on 13 March 2015 (“the Bill”) which said Bill will repeal the Subdivision of Agricultural Land Act, No 70 of 1970.
Purpose of the Bill
The purpose of the Bill is to inter alia provide for the custodianship of agricultural land, agricultural regulation pertaining to subdivision and rezoning applications on high potential and medium potential cropping land, implementation of protected agricultural land, registration of servitudes on agricultural land, the National Agricultural Land Register and other systems, Agro-ecosystem Reports, various governmental committees, settlement of disputes, provincial and municipal responsibilities and matters connected therewith.
Cognizance should be taken of the following salient points introduced in the Bill namely:
1. there are different classes of agricultural land use zones based on agricultural potential, agricultural capability, agricultural suitability, conservation status, use and location namely “high potential cropping land” and “medium potential agricultural land”;
2. “Protected Agricultural Areas” will be identified, published and registered against title deed of each property;
3. the establishment of Intergovernmental Committee, Agricultural Land National Advisory Commission, Preservation and Development of Agricultural Land Framework Act National Internal Technical Committee, Preservation and Development of Agricultural Land (“PD-ALFA”) Provincial Technical Committee, PD-ALFA Municipal Internal Technical Committee and Agricultural Land Review Board;
4. the custodianship of ‘agricultural land’ is assigned exclusively to the Department of Agriculture, Forestry and Fisheries and the department, acting through the National Minister or Ministerial Executive Committees at provincial level, as the case may be, the department will approve, reject, control, administer and manage any rezoning and subdivision of agricultural land. This means that, contrary to the Constitutional Court ruling in the case of Maccsand (Pty) Ltd v City of Cape Town and others 2012 (7) BCLR 690, the local authorities will not be the operative entities to make decisions regarding change of land use and subdivision. In view of hereof and the Spatial Planning and Land Use Management Act which will be implemented on 1 July 2015, the Bill in its current form will have a disastrous effect on spatial planning and land use considerations.
5. an agro-ecosystem report must be submitted with all applications which must be compiled by an agricultural scientist registered with the South African Council for Natural Scientific Professions (“SACNSP”). Regulations to the Bill will be published which will provide a framework of the report;
6. if application is made for subdivision or rezoning of high potential cropping land or medium potential agricultural land for prospecting, mining, energy sources or renewable energy, the agro-ecosystem report must comply with additional specifications and a negative report will result in the non-utilisation of any right (i.e. prospecting right, mining right) issued by any other national or provincial government department or a municipality;
7. in the event that agricultural land:
• is not used for active agricultural production on a continuous basis over a period of at least 3 years;
• or used in a manner significantly below the land’s optimal production potential for the practiced farming enterprise; or
• any activity on the agricultural land concerned results in or may result in significant degradation or the land is not used at all for agricultural purposes for 3 consecutive years
the Minister may expropriate at a lower price than would be paid for similar land in the same geographical area which is used optimally for agricultural purposes;
8. payment of incentives will be granted to landowners and land users. This provision relates directly to the restitution of land rights as set out in the Restitution of Land Rights Act No 22 of 1994 as amended by the Restitution of Land Rights Amendment Act No 15 of 2014.
9. the Minister must consent in writing for the sale of any portion of high potential cropping land (whether surveyed or not) where such land is sold or advertised for sale for non-agricultural purposes. Non-compliance will result in the automatic termination of the sale agreement;
10. the Minister must consent in writing to the acquisition and registration of agricultural land by any person who is not a South African citizen;
11. the status of land will be registered against the title deed of that land and the status will also be reflected on any Surveyor General diagrams.
There are several problematic areas in the Bill which must be addressed by the Department of Agriculture, Forestry and Fisheries before its enactment and in this regard we will keep you updated.