Some Scottish perspectives on land reform in South Africa

This is a blog post by Malcolm Combe, reflecting on a recent research trip to South Africa. The role of the Schools of Law at the University of Aberdeen and the University of Stellenbosch together with the financial support of the Carnegie Trust for the Universities of Scotland played in making that trip possible is acknowledged and further explained below.

In blogging parlance, please note this is a “long read”.

Introduction – Scottish and Personal Perspectives on Land Reform

Towards the end of its first parliamentary term, the Scottish Parliament passed the Land Reform (Scotland) Act 2003. This statute sought to broaden access to land in Scotland in two ways: in the sense of liberalising the law relating to outdoor access; and in the sense of giving some communities the right to acquire land in certain circumstances.

This legislation has been important for many people in Scotland. I suppose I am one of those people, but not in the sense that I have used it to acquire land or brought a test case to demarcate the limits of the right of responsible access. Instead, I find that I have written about it. A lot. This trend began when I was searching for an undergraduate LLB dissertation topic (in 2004). This post effortlessly evidences that the trend continues. I suspect I will write about it and the wider topic of land reform again. There are worse vices than writing about land law reform, I tell myself.

In writing that dissertation, it quickly became clear to me that land reform was not a peculiarly Scottish issue. Whilst it might be just about possible to offer an opinion on land matters in any given place by simply looking at that place, adopting such an approach restricts the scope of a study somewhat. Another thing that became clear was that it would be nigh on impossible to compare Scotland to every other legal system that also regulated land. This meant I had to whittle down my comparator jurisdictions a bit. Taking guidance from Scott Wortley (now at the University of Edinburgh, but then at the University of Strathclyde and also my dissertation adviser), South Africa was proposed as a prime candidate.

My dissertation ultimately became a critique of the new community rights to buy found in Parts 2 and 3 of the Land Reform (Scotland) Act 2003. The dissertation looked both at the “blackletter” of the law and whether the 2003 Act could meet its stated policy goals. The research associated with the dissertation involved building on my existing knowledge of Scots land law and policy, whilst undertaking a desk-based and Scots law library-based study of South Africa.

With the online and library resources I had access to, I sought to gain any insight I could. (I found the book Land Title in South Africa , by Carey Miller with Pope (1999) particularly useful, then I was fortunate to work with Professor David Carey Miller in later years.) Several features of South African law were of particular relevance to my study. For example, I read of South Africa’s Communal Property Associations Act 28 of 1996, which gives communities a means to associate together to hold land. This was directly in point to my consideration of community rights of acquisition, allowing me to highlight the more flexible approach South Africa had for community bodies that could own land.

I also considered South Africa’s history, its new Constitution, and its programme of land restitution. These considerations were undeniably interesting, but not particularly useful to my immediate task. In fact, a chapter in a wide-ranging Scots/South African comparative study, it was noted by Professors Reid and van der Merwe that a comparison on these matters highlighted “difference and not similarity” (in Zimmerman, Visser and Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004) – more will be said about the similar legal systems below).

In relation to the specific researcg for my dissertation, much of my interest in wider South African land reform was necessarily put on the back-burner; something to come back to at a later stage. This research trip to South Africa gave me a chance to return to the issue, in the company of experts in South African law, with South African resources to hand, and indeed with a South African context to experience for myself. This post now offers some raw and eclectic thoughts about the trip. (I have also offered some thoughts on another aspect of my trip, where I had a cursory but instructive look at the Stellenbosch Legal Aid Clinic, which is available here.)

I should acknowledge that there are some things that this blog post will not cover. For example, this post will not seek to explain what makes for effective land reform. Nor will it directly set out how recent Scottish land reform laws are framed or operate: other resources are available for that (including on this blog). Attention is now firmly shifted to South Africa, but Scottish observations will be made where South Africa offers a suitable comparator. I should also declare that my observations on South African matters are offered with due deference to existing treatments of land reform by South African scholars (notably Pienaar, Land Reform (2014), and the already mentioned Carey Miller with Pope). Please also note that a complete analysis of the changing nature of land law since the end of apartheid will not be attempted here, to ensure this post remains (close to) a manageable length. This means the coverage will be selective at times, although further reading will be identified where appropriate. There are also some notable omissions from my South African coverage. For example, I say nothing here about national parks, although I can shield myself from accusations that I copped out of this topic by steering people to this post over at my personal blog. Another area not addressed is abandonment of land. This is not because the topic is uninteresting or uncontroversial: a forthcoming paper in the South African Law Journal by Richard Cramer, a PhD candidate at the University of Cape Town, will demonstrate that adeptly. It is also a topic that merits study from a Scottish perspective, and I am writing a paper of my own on it. That will follow in due course.

Enough scene-setting. Time for the meat of the post. (Which reminds me, one important lesson that I learnt on my trip is many South Africans like meat. The braais are amazing. Anyway, I digress…)

South Africa – constitutional land reform?

It is difficult to know where to begin in South Africa’s land reform story, but the 1990s offer a starting point with a certain logic. In 1994, the first multi-racial elections in South Africa brought Nelson Mandela’s political party (the ANC) to power and him to the office of President. This heralded a new political era and the end of the overtly racial system of apartheid that had influenced so much law and policy in that country, albeit that process was set in train by negotiations followed by an earlier interim constitution, then put firmly on a constitutional law footing when The Constitution of the Republic of South Africa came into effect on 4 February 1997.

Whilst aspects of the South African Constitution are unavoidably functional, other aspects are far from dry. The Preamble is simultaneously reflective, inspirational and pragmatic. Its words can be narrated in a compelling and captivating manner. (Incidentally, the American musician and spoken word performer Henry Rollins has done just that: I happened to attend one of his shows in Edinburgh when he diverted into a breathless, ranted appreciation of the Constitution. Footage of this from another show is available on YouTube.)

Chapter 1 then sets out the founding provisions, including section 1’s explanation of the basis on which the sovereign, democratic state is founded (including: human dignity; non-racialism and non-sexism; and supremacy of the constitution and the rule of law). Chapter 2 contains the Bill of Rights, which “affirms the democratic values of human dignity, equality and freedom” (section 7). Section 25 then provides constitutional protection for property. It is that “property clause” that is of most interest to land lawyers, and which kept coming up in my research about contemporary South African law. That is not to say other aspects of the constitution are not important more generally, or indeed specifically in the context of land. For example, a recent law on communal land ownership was struck down by the Constitutional Court because parliamentary process as mandated by the Constitution had not been properly followed. There are also provisions about cultural life and the environment that are important in the context of land. Section 26 on housing, and specifically the right not to be evicted without a court order (which will be returned to below) also merits attention. That notwithstanding, the property clause is the most sensible place to start any consideration.

Whilst the nine subsections of the property clause must be read together for a full picture, it is worth noting that it begins by providing that:

No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

It then clarifies:

Property may be expropriated only in terms of law of general application: a. for a public purpose or in the public interest; and b. subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

Property clauses in other constitutions or similar rights documents (such as the European Convention on Human Rights) also make similar provision for the protection of property, but what is striking about the South African Constitution is it then goes on to say, “For the purposes of this section… the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources.” This is a constitutional order that puts land reform in the foreground. (Those who wish read more should seek out A J van der Walt, Constitutional Property Law (3rd edition, 2011).)

For its Constitution alone, South Africa is worthy of study. This relatively young Constitution is already a crucial consideration in terms of who should control, manage and use land in that country. According to van der Merwe, Pienaar and Du Waal (writing in the Kluwer Law International publication South Africa which is part of Property and Trust Law in the International Encyclopaedia of Laws series, 2015), “The South African law of property has been the realm of South African law that has been most affected by the new South African Constitution.” Important as it is, the property clause of the Constitution did not sweep away the legal system that regulates the country’s land, nor did it instantly change who owned what at the time it came into force. This means an understanding of the manner in which the country developed, featuring waves of European migration following the establishment of a Dutch trading post at what is now Cape Town and subsequent incorporation into the British Empire, is important to understanding the legal migration of Roman-Dutch law that also occurred.

This also goes some way to explaining why a Scots lawyer does not feel wholly uncomfortable commentating on that legal development. This is not because Scots law migrated to the Cape. Rather, the Roman-Dutch law of the province of Holland went to the Cape, and then that law was flavoured by aspects of English law (English law being the system that followed the British Empire to its outposts). The mixture that emerged from this clash of legal traditions leaves an underlying property law system that is (or at least was) more familiar to continental European – or civilian – eyes than Anglo-American – or common law – eyes. Meanwhile, the Scottish system of land law draws heavily on Roman law, and whilst it too has been influenced by English law (owing to a shared legislature from 1707 and much in the way of shared experience and trade) its land law also remains somewhat civilian.

This coincidence might be useful for legal research purposes. However, as already noted, the new order that is emerging in South Africa – with its written Constitution featuring an explicit declaration that land reform is in the public interest, and recognition of customary or indigenous rights – demonstrates a trend that is not replicated in Scotland. It can also rightly be said that the conditions faced in South Africa, which exist because of a discriminatory framework, are unique (Pienaar, 2013). This lingers in a socio-economic situation that is very different to Scotland, a number of which I set out in this post about addressing access to justice via student law clinics (and specifically the Stellenbosch Legal Aid Clinic). As a result, comparisons are necessarily tentative and land reform solutions and mechanisms are not automatically transplantable. One comparison that can be made, however, is the simple fact that both jurisdictions have recently legislated for land reform. Some recent South African statutes will now be considered, alongside some new measures that have been proposed.

Legislation

The legislative instruments that supported the apartheid regime are too numerous to mention here. For context, the Apartheid Museum in Johannesburg displays a number of laws that were instrumental in that regime, as this amateur photo demonstrates (taken when I visited there).

Apartheid Museum Laws

To digress for a moment, at the ticket desk for the museum each visitor was allocated a “white” or “non-white” ticket.

Apartheid Museum Ticket

As you can see I was allocated a “non-white” ticket (which under the old rules could have meant I was one of many classifications, all ranking below white to a variety of degrees). This allocation meant I could only use one of the two entrances. As such I could not see the displays accessible via the other entrance (before all visitors were funnelled back together). I felt excluded. I guess that was the point…

Anyway, back to those statutes. Many of those related to land, in terms of regulating who was allowed to own land in certain areas, or indeed allowing people to be forcefully removed. Mandela’s Long Walk to Freedom has numerous instances where such measures take centre stage, from the Group Areas Act 14 of 1950 and its successors (which Mandela notes that Daniel Malan described as “the very essence of apartheid”, and which features on the wall in the Apartheid Museum), to the clearing of Sophiatown (one of the oldest black settlements in Johannesburg). There were also older measures like the Natives (Urban Areas) Act 21 of 1923, which prohibited new freehold townships, and of course the Black Land Act 27 of 1913, of which Sol Plaatje famously noted that Africans awoke the morning after its passage to find themselves pariahs in the land of their birth. The importance of all these steps to the overall land question has been judicially recognised, in the case of Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority and Others [2015] ZACC 253. There, the South African Constitutional Court noted (at paragraph 2) ‘For decades restitution of land was the rallying point for the struggle against colonialism and apartheid. Regaining land ownership was the primary object of that struggle.’ (It then noted (at paragraph 3) that it was “not surprising that the Constitution guarantees land restitution and reform.” I will return to the Constitution in a moment.)

To paraphrase Carey Miller, such measures bolted onto the existing system of property law. That Roman-Dutch system was not in and of itself racist, but it was absolutist and put the holders of property rights in a strong (private law) position. If only certain people could access those rights in certain areas, only they could be in that strong position.

Fast forwarding to the modern era, racial statutes were repealed by the Abolition of Racially Based Land Measures Act 108 of 1991, but that step did not immediately undo the consequences of those measures. Meanwhile, even with their repeal it is not possible to ignore them. The consequences of some legal measures remain important, not only because they have influenced who might be owner now, but also because some of them (for example, the 1913 Act) are important in establishing who might have a claim to the restitution of land.

Back to the constitution, and related laws

The importance of the Constitution for land reform has been touched on already in this post. It mandates three broad ways in which land reform is to be achieved: restitution, redistribution, and tenure reform.

Restitution

Restitution will only be mentioned quickly here, not because it is not important, but (selfishly) because it is not important to the reform exercise that has taken place in Scotland. Some instructive observations can be made though.

By restitution, I mean “returning” property to someone (or someone’s descendants) where a previous act of expropriation that affected them can be traced. Whilst this may sound simple, there are a variety of factors to consider, not least the fact that the person who owns land in the present day may have had nothing to do with the original expropriation. There may also be issues of prioritising which wrong needs to be rectified: for example, Mandela himself notes the iMfecane (alternatively spelled as Mfecane or referred to as the Difaqane) left displaced people as refugees in the area where he grew up in the Transkei, even before you get to the upheavals caused by the British or the Voortrekkers. There may even be issues of competing claims.

Various jurisdictions have grappled with these issues and adopted a restitutionary approach to land reform, including in Eastern Europe and in other parts of Africa. Scotland has not adopted such an approach. South Africa has. It first did so via the Restitution of Land Rights Act 22 of 1994, whereby claimants had to identify an act of dispossession that occurred after 19 June 1913 before restitution could take place. Any dispossessions from before that date leave those affected relying on other aspects of the wider reform program (discussed below). There was also a time-limited period in which claims could be made.

The merits of such cut-off dates can be debated. I will not do so here. I will however quickly note that there may be more restitution legislation in the pipeline, as a result of a decision of the Constitutional Court which declared that the Restitution of Land Rights Amendment Act 15 of 2014 was unconstitutional (owing to a lack of public participation in the law-making process). This legislation had sought to allow for new lodgements of land claims. The court gave the South African Parliament 24 months to rectify matters, meaning it has until July next year. It seems there will be new legislation. Like the earlier act that was ruled invalid by the Constitutional Court, this piece of legislation aims to provide a new five-year window for land claims to cater for those who missed a previous cut-off date in 1998. Depending on how this proceeds, this means the Land Claims Lodgement Centre might be busy again…

Land Claims Lodgement Centre
Thanks to Hansie and Melanie Geyser for pointing this sign out to me, then humouring me when I took a photo.

Another aside worth mentioning relates to something I spotted from the window of a bus tour, yet failed to photograph. This was a sign painted on a wall next to a crossroads in Soweto, urging people to lodge a land claim. Does Scotland need to do more to advertise its land reform laws? For my part, I think Scotland does okay, but I do appreciate I am a) interested in these things and b) on the internet too much. Maybe advertising on street corners in less salubrious post codes is something that could be considered in Scotland too.

Redistribution

Interesting as restitution may be, consideration of the redistribution aspect of land reform leads to a more instructive comparison between Scotland and South Africa. Here, the land that is subject to reform is being reallocated in a way that is not directly linked to a past wrong. Instead, present day land rights are being revisited to reflect present day needs. There is provision for this in the South African Constitution.

Scotland has a number of rights to buy land which facilitate land transfer from one party to another, including some situations where a tenant can buy out her landlord and also situations where a community can acquire land local to it from a private individual. This might be on a “first refusal” basis (i.e. a community will be given first dibs on any land a local landowner wishes to sell) or, in some circumstances, on a forced sale basis (i.e. the landowner has less of a say in when or indeed if the land is sold).

In terms of how much land is to be redistributed, the Scottish Government has indicated that it wishes to see 1 million of Scotland’s 20 million acres in community ownership by 2020. For its part, in 1994 South Africa announced a target of having 30% of agricultural land in black ownership by 1999. This target year was subsequently amended to 2014. Both targets have been missed. (Without commenting on whether either the 1 million acres or 30% target should be higher or lower, in can be noted that the scientific reasoning for either figure has not been made out, although the importance of having a target should not be dismissed.)

South Africa also has something of a community focus in this branch of the reform programme. The first statute that catches the eye is one I have already mentioned, namely the Communal Property Associations Act. It has been described (in the Bakgatla case) as “a visionary piece of legislation passed to restore the dignity of traditional communities. It also serves the purpose of transforming customary law practices.” It would be fair to say that the community associations that can be formed under that legislation have a bit more flexibility than the Scottish model. That said, Scotland has now increased versatility in this area, after the Community Empowerment (Scotland) Act 2015 added the Scottish charitable incorporated organisation and the community benefit society as eligible community land holding bodies to what was previously the only option of a company limited by guarantee.

Another point that is worth noting here is – perhaps surprisingly – the legal rules in Scotland for redistribution of land seem a bit more radical. This is because South Africa (to date) has focussed on the willing buyer, willing seller model, whereas Scotland does allow for some compulsion in limited circumstances (in relation to crofting land, and there will soon be other rights in relation to neglected, abandoned or environmentally mismanaged land). That is only part of the story though. The overall South African position as regards communal land is slightly difficult to comment on in a blog format such as this, but suffice it to say it is complicated by a history of racial land policy that went as far as setting up puppet black states called “Bantustans”. There are then a variety of modern factors such as the Communal Land Rights Act 11 of 2004 and multifarious questions about what or who embodies a community. (That 2004 statute, like the more recent restitution statute already mentioned, was also struck down by the Constitutional Court, again for improper parliamentary process.) There is also a possible reassertion of tribal landownership. This is difficult to comment on from a Scottish perspective, but it seems almost akin to Scotland trying to reintroduce the heritable clan jurisdictions that were abolished in the tumultuous times of the 1700s (albeit without such a time gap).

In terms of future redistribution, ongoing concerns about the pace of land reform has led to much speculation about what should happen next and in particular whether and if so when South Africa will move away from its willing buyer, willing seller model. (There are also questions about expropriation and compensation.) Much of this might be tied to the new Regulation of Agricultural Land Holdings Bill and a new Land Commission. That’s right, South Africa could be getting a Land Commission, not long after Scotland introduced one via the Land Reform (Scotland) Act 2016. It appears the South African version will be a little bit different to the Scots version though: for example, it will seek information about landowners (such as race, gender and nationality) and check on the use and size of the agricultural land holding. In due course it will have a role in relation to the proposed capping of the size of agricultural holdings (see below) and redistribution of land from holdings that are above the cap.

From discussions with postgraduate students at Stellenbosch, I know there are some questions about how such a new Land Commission will interact with the existing Deeds Registry (where title deeds relating to ownership are registered), so this is something to keep an eye on. There is also an ongoing issue in South Africa in terms of simply working out who owns what. To an extent, this chimes with current Scottish developments, where there is a drive to complete a transition of all titles to the Land Register by 2024, but more importantly there is a related drive to work out who holds controlling interests in any landowning entity (from Part 3 of the Land Reform (Scotland) Act 2016). Both jurisdictions could benefit from comparisons with the other.

As for the Regulation of Agricultural Land Holdings Bill itself, that could cap the size of South African landholdings or prohibit the acquisition of ownership of agricultural land by foreigners. Similar proposals were explored by the Scottish Land Reform Review Group, although a) it did not go so far as to propose what the cap might be, and b) the foreign ownership restriction would have targeted ownership of land by non-EU entities, rather than all foreigners. Neither of these proposals were included in the most recent Land Reform Act, but if South Africa takes steps in this direction that will be yet another reason that makes South African land reform something to watch. (As an aside, it can be noted that one reason for the non-EU entity point not being included in recent Scottish reforms is up in the air following the Brexit vote. There were fears such a step might breach EU law. Depending on the exact flavour of Brexit, this obstacle might be removed.)

Tenure reform

Tenure reform amends the manner in which control is exercised over property. This branch of South African land reform has been especially important, in relation to security of tenure, i.e. a right to stay on land. This is normally important for the likes of labour tenants on farms (and specific legislation was passed for that). There have also been two important statutes that apply to regulate eviction depending on where an occupier of land is.

In urban areas, there is a chance to grab a slice of the PIE. (Sorry, that is terrible legal pun.) The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 18 of 1998 both prohibits unlawful evictions and provides procedures for the eviction of unlawful occupiers. This legislation is analysed in a chapter by Professor Anne Pope in Professor David Carey Miller’s forthcoming festschrift, which will be published by Aberdeen University Press, so I will not say too much about it here. All I will note is it essentially provides that evictions can only take place when it is just and equitable for that to happen, and this might mean a landowner will not be able to recover possession from an occupier in all circumstances.

In rural areas, in addition to protections for labour tenants, protection is afforded by the Extension of Security of Tenure Act 62 of 1997. This conferred security of tenure on those who had, at one stage, been occupying land with the consent of the owner, and again this prevents eviction from a home unless it is just and equitable. An additional point worth noting here is that eviction actions can take place in a Magistrates’ Court (roughly equivalent to a Sheriff Court), but eviction orders are subject to automatic reviews by the dedicated Land Claims Court. All of this means people do not lose their homes lightly.

At this point I offer one aside from a Scottish perspective. In 2003, legislation was passed by the Scottish Parliament with a view to giving an element of security of tenure to a certain class of rural occupier, where that occupier (and active farmer) held land via a juristic personality called a limited partnership, with the landowner being a partner in that venture. The limited partnership was either of a definite length or the landowner was able to bring it to an end by taking certain procedural steps. The reform enacted by the Scottish Parliament was rather technical, to say the least: sections 72 and 73 of the Agricultural Holdings (Scotland) Act 2003 are not easy to understand, but essentially they sought to upgrade the active farmer into a class of tenant that enjoyed greater security of tenure. Technical issues aside, the more fundamental problem is that a court ruled this reform was a breach of an affected landowner’s human rights, as the imposition of a secure tenancy was found to be an interference with the landowner’s peaceful enjoyment of his possessions. Remedial legislation followed. (Further reading is available on my personal blog.) The analogy between the jurisdictions and the situations is not exact, and, for Scotland, any moment to cater for these individuals has passed. That notwithstanding, the South African model of extending security of tenure seems much simpler than the route which was eventually followed by the Scottish Parliament. As such, any future attempts by Holyrood to confer security of tenure to any class of occupiers might benefit from a comparative approach.

Another aspect of South African law, or perhaps even South African culture or philosophy, is the notion of ubuntu, which flows from ideas of human interdependence and dignity. Whilst there is no single definition of ubuntu, this did not stop it playing a role in the case of Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC). As noted by Justice JY Mokgoro in a short chapter in Frank Diedrich (ed), Ubuntu, Good Faith and Equity: Flexible Legal Principles in Developing a Contemporary Jurisprudence (Juta, 2011), “ubuntu was the underlying principle for the Court’s articulation of the proper procedure that must be followed when evicting vulnerable people from their homes.” Now, I am not going to be so crass or naïve as to suggest ubuntu‘s balance of individual rights and a communitarian philosophy could simply be lifted across to Scotland, but it did make me ponder a couple of things. In relation to historic Scotland, it reminded me of the Highland notion of duthchas, implying a connection to land that transcends legal ownership, which the historian Professor Jim Hunter and others have written about. More importantly, in relation to modern Scotland, I wondered if the was an analogy with the new land rights and responsibilities statement, which is provided for by Part 1 of the Land Reform (Scotland) Act 2016. Whilst landowners have always had certain obligations and responsibilities in Scots law, it is genuinely an exciting time for Scottish land law as Scottish society tries to pin down what a landowner’s responsibilities should be. Whether it is from ubuntu or from something else entirely, South Africa could be able to teach us something.

Conclusion

For the purposes of a provocative conclusion, let me replace that optimism with a dose of cynicism. Comparisons are tricky. One problem with comparisons is knowing where to stop. Given I have cleared 5,000 words, now seems as good a time as any. Before I go, I will set out some words of caution about comparative law, then draw some final conclusions.

The trouble with analogies is that they are different. So it goes with comparative law. I touched on some of the different socio-economic factors in my earlier post about the Stellenbosch Legal Aid Clinic. In addition to setting out some of those issues, that post explains how places like Stellenbosch Legal Aid Clinic try to address the unmet legal need of indigent South Africans, and of course there are fundamental matters like access to justice at play when it comes to the land question. This can be seen from the case of Nkuzi Association v The Republic of South Africa (LCC/10/01), where legal representation of respondents in eviction matters in terms of the Extension of Security of Tenure Act became compulsory. Scotland and South Africa do have some key historical and contemporary differences, which means there are certain limitations when it comes to transplanting ideas or rules from one legal system to another.

That said, I hope you learnt something from this blog post. I found it challenging to write, in part because I was an outsider looking at South Africa, but mainly because I wanted to do it justice. In fact, I spent more time writing this post than I had initially planned to. I do not regret that though. I felt it was important to write up my trip in the fullest possible way and this post, coupled with my note about the Stellenbosch Legal Aid Clinic and even my post about national parks, just about does that.

To reflect on the trip as a whole, I feel I learnt a lot. In addition to having access to the legal materials to allow me to draw this post and my wider thoughts together, I also benefited immensely from chatting to students, scholars and many other people I met along the way. For example, in a seminar at Stellenbosch I was asked to what extent the Scottish land reform programme was about human dignity (because the South African programme is), which really got me thinking. Then there were discussions with students and postgraduates at Stellenbosch and the University of Cape Town, which kept me on my toes as I tried to answer questions like the deceptively simple, “Why is Scotland doing what it is doing?” or the grenade of “Wait, what is crofting?” Then there were chats with non-lawyers, who politely/incredulously asked what I was doing in South Africa. I hope I managed to answer them at the time, and I hope this blog post serves as an answer to anyone who was too shy to ask that question directly.

UCT Seminar
A picture from a seminar at the University of Cape Town. Photo credit, Hanri Mostert. (Hanri also happens to be a Professor of Law at UCT. If you want to read about mineral rights in South Africa (yet another matter I failed to cover in this post), read her book about the topic!

 

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Crofting Law Group Conference 2017 – Reflections of an Aberdeen law student delegate

This blog post is by Simon Boendermaker, a recent LLB (Hons) graduate of the University of Aberdeen. Comments from Brian Inkster, Hon. Secretary of the Crofting Law Group, and Malcolm Combe follow.

Recently I had the opportunity to attend the Crofting Law Group Annual Conference, this year held in Stornoway on the Isle of Lewis, thanks to the generosity of the Group providing free student tickets and subsidised travel and accommodation.

As my Honours courses at the School of Law included both the Rural Law and Law of Leases courses (co-ordinated by Malcolm Combe and Douglas Bain respectively), I did not want to miss the opportunity to take part in an event which appealed to my interests. Alongside this, the programme for the conference featured an afternoon of events dedicated to common grazings, which had been the subject of considerable controversy in crofting communities in the previous twelve months. The opportunity to see vigorous debate between the newly elected crofting commissioners and representatives of the Upper Coll and Mangersta grazings committees, who had been sorely affected by the actions of their predecessors, made for a captivating agenda.

The conference took place in the picturesque surroundings of Lews Castle, the ideal setting to soak in my first visit to the Hebrides. However, there was little time to admire the scenery as a packed schedule of events began with a warm welcome from Iain Maciver of the Stornoway Trust (the community landowner of property in and around Stornoway), followed by a brief introduction to the day’s events from Duncan MacPhee, vice chairman of the Crofting Law Group.

As the programme of the conference would focus on crofting law reform, Fergus Ewing, the Cabinet Secretary for the Rural Economy and Connectivity, gave a brief video outline of the stance of the Scottish Government on current legislation. Ewing highlighted that the Scottish Government agreed with the views of crofters that the law was in need of reform, expressing sympathy with the view that legislation had become overly complex for the average crofter. He also revealed that the Government was engaging with crofters over the direction that reform would take, with one approach being to consolidate legislation into a simpler Act or alternatively to adopt a clean sheet approach and developing a completely new legislative framework. However, his comments were tempered by his acknowledgement that the government currently has several “legislative priorities” which meant that crofting would be balanced alongside several competing interests.

The clean sheet approach which was mentioned by Fergus Ewing was rejected by Patrick Krause and Russell Smith, chief executive and chair of the Scottish Crofting Federation. Both noted that legislative reform was low on the list of priorities of the average crofter and that they were generally concerned with areas of practical concern, such as decrofting (that being the term used for taking land out of crofting regulation) and assignation (transfer). Smith noted that a clean sheet approach would risk “throwing the baby out with the bathwater.”

Much discussion followed the next item on the agenda, when Duncan MacPhee revealed he had successfully arranged a standard security (the Scots law term for a mortgage) over an entire croft without the need to decroft the house and restrict the scope of the security to the decrofted land alone.

Bill Barron of the Crofting Commission discussed “a year like no other” for the Commission, stating that the previous board of the Commission had witnessed deep personal splits, which had led to it failing to act as a corporate body. Barron said he was keen to learn from the mistakes of the previous year, where members of the Commission had made individual regulatory decisions which had resulted in the breakdown of trust between individual crofters and the Commission. With regard to crofting law reform, Barron insisted that the Commission would work with the Government to ensure that any new legislation would support opportunity for new entrants, an area which urgently required examination to secure the future of the sector. Finally, he expressed a hope that, with time, the Commission would be trusted to work for crofters once again.

After lunch, where I was able to speak further with Barron about his plans for the future of the Commission after the previous twelve months, Brian Inkster gave a presentation on the controversy surrounding the Commission. A complete chronology of that could take up several blog posts: Inkster’s Crofting Law Blog provides exactly that, so those interested in further reading on that topic are directed there.

The final portion of the day gave crofters a chance to discuss the current situation surrounding common grazings. Calum Maclean from Upper Coll gave a passionate account of the previous twelve months from the perspective of the grazings committee on Upper Coll. He could not understand how Barron and the new Crofting Commission could be expected to win back the trust of ordinary crofters when they had done little to actively address the effects of the decisions of the previous Commissioners in 2016. However, he was able to finish by stating that ordinary crofters did not want to abandon the current framework but that serious work would be required to secure the future of the sector.

Crofting Law Group Discussion
A discussion during the conference.

The lively debate provoked by the afternoon’s discussions continued well into the evening, when I spoke to several crofters who had attended the conference over dinner and gained some invaluable insights from these conversations. A desire for reform was evident and it is clear that stakeholders will need to undertake serious engagement to secure the bright new future that crofting is desperately in need of.

After writing my dissertation on agricultural holdings, I was able to draw a number of parallels throughout the day between the situation of crofters and issues faced in the agricultural holdings sector, where secure tenants also benefit from a parcel of rights (some which are particularly strong, perhaps even stronger than the rights of the landowner). All of this has ongoing implications for the wider rural sector. For my part, the conference and indeed the discussions over dinner brought to life some of the issues that had been discussed in my law degree. Thanks again to the Crofting Law Group for providing me with the opportunity to attend this year’s conference. I would not hesitate to recommend future conferences to other interested students.

Comment from Brian Inkster

We have been running the assisted places scheme to our conferences for law students at the Universities of Aberdeen, Dundee, Edinburgh, Glasgow and Strathclyde for a few years now. It has been very well received by the Universities. It gives their students an opportunity to find out more about crofting law, a subject seldom touched upon at university. It is hoped that this exposure to crofting law may encourage those students to become tomorrow’s crofting lawyers. The Crofting Law Group will continue the assisted places scheme for next year’s conference which will be held in Edinburgh.

Comment from Malcolm Combe

The University of Aberdeen is very grateful to the Crofting Law Group for the support it gives to students from across Scotland. Whilst some courses at the Scottish universities touch on crofting matters, even with the best will in the world there is no way we could replicate a programme of events akin to the Crofting Law Group Conference for students to benefit from. We look forward to working with the Crofting Law Group in future, and if any other conferencing organisations would be interested in offering a similar student support scheme  we at the School of Law would be delighted to hear from you.

Crofting Students
From left to right: Brian Inkster (Secretary CLG), George MacDonald (Committee member CLG), Maureen Duffy (University of Strathclyde), Duncan MacPhee (Vice Chair CLG), Andrew Agnew (Dundee University), Fraser McDonald (Edinburgh University), Simon Boendermaker (University of Aberdeen), Gemma Thomson (University of Glasgow), Iain Maciver (Committee member CLG).

 

Scottish land reform – cool for cats?

This blog post, by Malcolm Combe, explores Scotland’s newest land reform law. For those short on time, more selective and succinct coverage is available in this article in The Conversation.

On 19 April 2016, the Land Reform (Scotland) Act 2016 received Royal Assent. This final step of the law-making process signifies that the reigning monarch has rubber-stamped a statute passed by elected representatives, in this case Members of the Scottish Parliament. Those with a sprinkling of public law knowledge will know that the Queen does not readily withhold Royal Assent, so her personal views about a law or its potential impact on her are not normally scrutinised. In the wide press coverage of the run-up to and passage of this land reform legislation, there was a curious challenge to this norm. A tweet and an associated front page splash from the newspaper The National proclaimed the following: “Purr-fect news for communities as Queen’s new tax bill pays for buyouts”.

The National - Land Reform

What was The National getting at? The first thing that might need an explanation is the “purr” reference, especially as the word “purr” does not actually feature in the news story (or, for that matter, the new statute). This is an oblique reference by the Scottish independence supporting newspaper to the fact the Queen apparently “purred” down the telephone to Prime Minister David Cameron in the aftermath of Scotland voting to remain in the UK on 18 September 2014. Now, though, the inference is that it is communities that will be purring, as they will benefit from any revenues that flow from the reinstatement of duties for certain land uses (namely shootings and deer forests). According to The National:

The Queen… will face an annual levy of thousands of pounds on her Balmoral property. Others who face paying the new tax include the Duke of Buccleuch, who is in charge of a sporting estate at Drumlanrig Castle in Dumfries and Galloway.

The Duke of Buccleuch (reported to be Scotland’s largest private landowner) and the Queen might make for handy, high-profile figures to be “land reformed”, but others without as much nobility or indeed land will be affected by this measure. Meanwhile, there are other measures in the Land Reform (Scotland) Act 2016 beyond the reintroduction of sporting rates which could also impact on a wide range of people.

So is the Land Reform (Scotland) Act 2016 “purr-fect” – sorry, time to scratch the cat imagery – perfect news for communities?

Before answering that, it should be recalled that this new statute is not the full story. This is not Holyrood’s first dalliance with land reform. In fact, we now have two Land Reform (Scotland) Acts, one from 2003 and a younger namesake from 2016.

The 2003 Act gave everyone the right to access Scotland’s land and inland waters, even without an owner’s prior consent, provided such access is taken responsibly and subject to certain exclusions relating to the character of land. It also provided for some rights of community acquisition, in rural areas and in the crofting areas of the north and west of Scotland.

Important as those innovations were, calls for further land reform in Scotland continued to be made from some sections of society. Such calls were answered in part by the Community Empowerment (Scotland) Act 2015. As its name suggests, that legislation aims to empower communities, which it does by giving them a number of entitlements to participate in local decisions and a new right of acquisition for abandoned, neglected or environmentally mismanaged land. It also widens the right of first refusal the 2003 Act introduced to rural Scotland by expanding it into Scotland’s cities.

Another answer to those calls is now found in the Land Reform (Scotland) Act 2016.

Cat-aloguing [sorry] the 2016 Act

This newest land reform statute contains a mix of measures. Two of those might lead directly to a change of landowner, either in terms of a community buying land to further the cause of sustainable development, or by allowing a secure agricultural tenant (more on such agricultural tenancies below) to buy land from her landlord in certain circumstances where that landlord is in material breach of a court order or an award made at arbitration.

Land reform can be about facilitating a change of ownership, but this land reform statute does far more than that. There are important changes that aim to make land reform a more permanent feature of the legal landscape, particularly a new non-party body called the “Scottish Land Commission”. When it is fully staffed and mobilised, the Commission will have a role in ensuring land reform stays in the foreground of Scottish policy, whilst maintaining proper oversight of the various measures that have been introduced. Further innovations include the promised “land rights and responsibilities statement”, which will be a standard against which landowners will be measured in future, and guidelines for engagement with local communities when important decisions are made by landowners.

A matter sometimes related to community engagement is whether a community knows who to engage with, as there have been occasions when an entity owning land in Scotland might not be entirely transparent (an issue which resurfaced with the recent “Panama Papers”). One part of the 2016 Act is designed to boost transparency. Together with a drive to complete the map-based Land Register of Scotland by 2024, new rules relating to the disclosure of who has a controlling interest of a landowning entity might mitigate such issues in future. Completely unrelatedly, but potentially leading to a similar effect, the UK Government has recently announced an anti-corruption push which will similarly lead towards transparency of landowning entities.

What else does the 2016 Act do? There is the already mentioned fiscal step towards land reform, changing the treatment of shootings and deer forests – or, to be exact, removing a relief that was conferred in the 1990s. Evidently this could have the effect of steering landowners towards a different use, depending on whether landowners are able to pay the rates, although some businesses may be able to benefit from other reliefs (such as those for small business) if they are eligible.

Deer management will also be affected by a regulatory as well as a fiscal change. Large areas of Scotland are given over to deer, which just about explains why deer feature in this newest of land reform statutes. An important ecological consideration is the lack of any natural predator, which necessitates human management of deer populations. Amongst other things, the new law will allow for the imposition of deer management plans in certain circumstances and will provide a power for the relevant authority to request information about a landowner’s planned management activities, rather than simply report on what has taken place (as was previously the case under the Deer (Scotland) Act 1996).

What if you want to go for a walk in an area where deer are found, or indeed anywhere else in the great outdoors? You still can. There are some technical reforms to the rights of access introduced by the 2003 Act also included in the 2016 Act, but these largely leave the existing rights as they were. (Incidentally, walking through an estate where legitimate deer management activities are taking place is probably not to be recommended.) There is also a technical reform to the regulation of “common good land” by local authorities, aimed at averting one of the issues that arose in relation to a new school in Portobello (analysed in this Edinburgh Law Review contribution (PDF)).

The last point to mention about the 2016 Act relates to its effect on the law of leasing, or at least two technical areas of rural leasing. The first affected area will be small landholder legislation, something of a niche area of landlord and tenant law. There is a commitment to review that legislation, with no indication yet of what changes might follow for Scotland’s relatively few remaining small landholders. Much more importantly, and in some cases controversially, there are a raft of reforms to the agricultural holdings regime.

Agricultural Holdings Reform

For many years, tenants with a certain type of agricultural lease have enjoyed something called security of tenure. This allows the tenant (and, in some cases, a successor or a transferee of an original tenant) to keep the lease of the rented property even after the original contractual term has finished, provided they have paid rent when due and generally maintained the property properly.

There has been a perception for a number of years that this system has not got the balance between the interests of tenants, landlords and indeed society as a whole quite right. The regime has contributed towards an environment where landlords often seek recovery of “vacant possession” of the land whenever they can, and traditionally this might have happened when there is a “break” in the succession of a lease. Aware of these issues, the Scottish Government appointed a specialist group to consider agricultural holdings legislation, which reported in 2015. The work of the group is reflected in the 2016 Act, which introduces two new types or rural leases – the repairing lease and the modern limited duration tenancy – and reforms the law relating to matters like rent review, assignation (transfer) and succession (inheritance).

Those changes to assignation and succession do not allow a lease to be passed to absolutely anyone, and as such the landlord still has a chance of getting the land back without being subject to a lease if there is no-one suitably close (in terms of relationship by blood or marriage/civil partnership) to the outgoing tenant to take it from them. That said, late in the parliamentary process a reform was made which might allow a secure lease to be passed to someone outwith those recognised proximate relationships. This controversial, and highly complex, reform will change the law in a way that makes it more difficult for a landowner to wash land clean of a lease. The current position is being changed to a position where an outgoing tenant can effectively cash-in the tenancy. The 2016 Act does still allow a landlord to get the land back, but not for free: it introduces a mechanism for the landlord to pay a sum to the tenant to buyout that lease. Where the landlord does not wish to buy it out, the tenant can then assign the lease to “an individual who is a new entrant to, or who is progressing in, farming”. As noted, this is a complex area, so it is not possible to explore this matter fully here, and there have been indications that landowners may challenge this particular reform on human rights grounds as an unfair interference with their property rights. Scottish legislation is susceptible to challenge in court, if it is not within devolved competence, for example by not being compatible with the European Convention on Human Rights. This was witnessed in the Salvesen v Riddell case (about an earlier agricultural holdings reform, which lumbered some landowners with a secure lease without compensation in a fashion found arbitrary by the courts) but not in the Pairc case (about a challenge to the crofting community right to buy (for value) in the Land Reform (Scotland) Act 2003, which was held to be a policy that was properly within a state’s margin of appreciation). If litigation was to follow in relation to the 2016 Act, suddenly the courts would have a role in the final approval of the law, which would mean the Queen’s Royal Assent would not be the final step after all.

Perfect legislation?

The 2016 Act covers a lot of legal ground. It will make a difference to landowners, land managers, communities, tenants and Scottish society as whole. That being said, it could have covered more ground still: for example, there have been suggestions about a cap on landownership above a certain level, restrictions on landholding entities registered outwith the EU, and the possible introduction of compulsory sale orders. None of those appear in the 2016 Act.

This suggests land reform activists might not think the 2016 Act is perfect after all, but what about landowners? Land reform is not exactly the kind of thing that will always please existing owners, but the one highlighted example about agricultural holdings reform demonstrates that they do have specific concerns which might yet lead to litigation.

Regardless of who is purring at the end of all this, the promised Scottish Land Commission, the preparation and ongoing review of measures to do with community engagement and land rights and responsibilities, the post-Holyrood election climate, and a new Cabinet Secretary for the Environment, Climate Change and Land Reform are all mixed together, it is clear that land reform is not going to retreat into the background any time soon. Indeed, the recent Holyrood election campaign demonstrated that many political parties are committed to further land reform. The fact that the Scottish National Party lost majority control of the Chamber means it will be looking for support from other political parties to implement its plans, which will have implications for any further land reform legislation.

No attempt has been made to contact the Queen to ascertain whether she is purring at the prospect of all of this, but one final feline observation might be made. Surprisingly, The National was not the first newspaper to juxtapose cats and Scottish land reform. The Scotsman got there first, with this cartoon from Iain Green appearing in December 2014.

The Scotsman - Iain Green

Reports that Nicola Sturgeon has declared open season for fat cat lairds have not yet been confirmed.

Further analysis of some of the new measures can be found in this article in the Journal of the Law Society of Scotland, the professional journal of Scottish solicitors. That contribution looks at the new community right of acquisition, the framework for community engagement and the new Scottish Land Commission in more detail, but skims over deer management, the change to the fiscal treatment of shootings and deer forests, and agricultural holdings law.

Those wishing to read even more on this topic will find that land reform is something of a recurring feature at Malcolm Combe’s personal blog: basedrones.wordpress.com. He also has an article on redistributive land reform in the next issue of the Environmental Law Review, an open access version of which is available here.