Revisiting the Willing Buyer, Willing Seller Principle

1
Revisiting the Willing Buyer, Willing Seller
Principle
By Ebrezia Johnson University of
Stellenbosch Presentation for the Land Law
Forum 16 August 2005
2
Reasons for Revisiting the WSWB Principle

• Property Clause (S 25 of the Constitution)
  regarded as being responsible for slow pace of
  land reform
• Slow pace of land reform 3 land transferred to
  Blacks since 1994
• Land hunger ? Land grabs ? Reality or Myth?

3
Origins of WBWS Principle

• Advocated in 1990s by the World Bank as a
  market-led/market-based mechanism by means of the
  following
• Selective expropriation land taxes subdividing
  landholdings the negotiation of exit
  strategies for current landowners
• Approach to WBWS of the ANC differ substantially
  from that of the World Bank set out in their
  South African Agriculture Structure, Performance
  and Options for the Future

4
Origins of WBWS Principle (Cont.)

• WBWS usage history in SA with regard to the 1975
  Expropriation Act
• WBWS absent ANCs Ready to Govern document
  1994 the RDP programme
• 1997 White Paper on South African Land Policy ?
  WBWS cornerstone of land reform policy

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Meaning of WBWS

• WBWS distinct meaning in SA context
• Willing sellers (private owners) ? choice to sell
  or not to sell ? their land ? _at_ market or
  market-related prices to the highest bidder or
  buyer of choice
• 3 Elements of WBWS in SA
• Discretionary powers of landowners
• Compensation to be paid to landowners
• Role of the State in acquiring the land

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WBWS General Remarks

• Willingness to acquire land by landless still
  dependant on willingness of seller the
  willingness of State to approve application and
  provide funding
• WBWS protects property rights of current
  landowners
• According to Lahiff (Plaas, Policy Brief no.17)
  State chose not to enter the land market on
  behalf of potential beneficiaries.

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WBWS General Remarks (Cont.)

• State provide grants to potential land
  beneficiaries- who themselves have to identify a
  willing seller ? secure an agreement ? buy land
  _at_ agreed price
• Lahiff Willing buyer abstract concept refer
  neither to the State (which does not buy land on
  its own behalf or own initiative) nor to the
  intended beneficiaries (who only become effective
  buyers once they secure state approval and
  funding.

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WBWS - Recommendations

• Not full-scale expropriation of land unwilling
  seller selective expropriation of portion of
  land together with land tax incentives offered by
  the State to unwilling sellers
• And still offering market-related compensation
  for the to be expropriated land based on
  principles of if being just and equitable

9
WBWS - Recommendations

• Not Full scale expropriations ? anarchy land
  grabs Zimbabwe route of speeding up land reform
  
• Lahiff acquiring land by paying productive value
  based on estimated productive value of the land
  in case of agricultural usage of the land

10
WBWS - Recommendations (Cont.)

• Role of the State should become more visible and
  pro-active