A critical analysis of the regulation of agricultural land under the draft preservation and development of agricultural land bill, of 2021

Abstract

The regulation of agricultural land in South Africa draws effect from several existing statutes at the backdrop of the Constitution. The Draft Preservation and Development of Agricultural Land Framework Bill 2021 was firstly tabled in parliament on April 2021, forming part of a tapestry of statutes for the regulation of what is regarded to be natural resources. Summarily, the motivation and purpose of the 2021 Draft Bill is clearly set out, amongst other things, the need for a national regulatory framework to co-ordinate the preservation and development of agricultural land in a proactive manner, to minimise the loss of agricultural land, and to encourage the optimal use of agricultural land. The 2021 Draft Bill is to give effect to the constitutional obligation imposed in section 24 for the protection of the environment for the benefit of current and future generations, to ensure sustainable ecological development, and to provide food security.

The primary aims of this study are accordingly to answer a twofold question of how will the regulation of agricultural land, as proposed in the 2021 Draft Bill, regulate agricultural land in South-Africa, and what impact would the regulations have on property rights and national food security. Furthermore, the study investigates whether the 2021 Bill is an answer to the Constitutional obligation to ensure access to food. An analysis is done on how agricultural land will be regulated in future by the 2021 Bill and if this may amount to an arbitrary deprivation. The study answers the aims mainly at the backdrop of the application of the provisions of the 2021 Draft Bill and the methodology as articulated in First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services and Another; First National Bank of SA Limited t/a Wesbank v Minister of Finance (FNB Methodology).