LOCAL legal think tank, Veritas, says the recent announcement by the government to allow land under the 2001 land reform programme to be held under bankable, registrable and transferrable tenure, is unclear on title.
Last month, the government said it had made changes to the land reform programme to help farmers on the land to secure financing to boost production.
This was done in line with Section 292 of the Constitution read together with Sections 289, 293 and 294 that obligates the state to give security of tenure to every person.
Under these sections, the government mandated that all land held by beneficiaries of the land reform programme under 99-year leases, offer letters and permits, will now be held under a bankable, registrable and transferrable more secure document of tenure.
This would be issued by the government to beneficiaries.
“The ‘bankable, registrable and transferable’ documents of tenure have been mooted for a long time but have yet to see the light of day. If and when they are issued, they will remedy at least one of the problems besetting the land reform programme: uncertainty about who holds the land,” Veritas said, in an analysis of the government statement.
“Properly drafted, they should provide evidence of the identity of the holders of the land and the boundaries of the land they hold. On the other hand, by emphasising documents of tenure the statement is putting the cart before the horse, because it is silent about the nature of the tenure under which farmers will hold their land.”
Veritas questioned: “Will it be ownership? Will it be lease — and if so, for how long will the leases last and under what circumstances will they be cancelled?”
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These factors, Veritas said, would determine whether farmers’ tenure was secure or precarious.
The legal think tank added that the documents of tenure or title would provide evidence of who holds rights over the land, but the holders’ security of tenure would also depend on the nature and extent of those rights.
“It is nearly 25 years since the land reform programme began and one would have expected the government to have worked out by now what form of land tenure beneficiaries of the programme should enjoy,” Veritas added.
“If the government has indeed decided on a land tenure system the statement should have set it out.”
When the statement refers to “bankable” documents of tenure, Veritas said, it presumably means documents that will be accepted by banks as security for loans.
“This is shorthand for saying that farmers will be able to mortgage their land as collateral for loans they take out with financial institutions,” it added.
However, Veritas noted that banks consider other factors besides the collateral brought about by the land to give out loans such as a farmer’s competence and ability to foreclose the property in case of loan default.
“Agriculture is the bedrock of our economy and giving farmers secure title will encourage them to unlock the full value of their land,” Veritas said.
“It is unfortunate that the government’s statement does not provide information on what title farmers will be given and how secure their title will be. It is doubly unfortunate that the government’s brief statement raises so many problems and unanswered questions.”
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