The draft National Land Policy

Contents | 1.0 Introduction | 2.0 Issues and Policy Statements | 3.0 Implementation - Legislative Measures | 4.0 Implementation - Institutional Measures | Appendices

This is a draft of the National Land Policy and as such is a working document and not a formal policy document. It should not be interpreted as the policy of the Government of Swaziland or any other government ministry or department until it has been finally agreed and adopted.

Chapter 3 - Implementation - Legislative Measures

3.1 Legislative measures relating to Human Rights Policies

Re: Policy 2.1.1.a

1. Include in the new Constitution.

2. Introduce legislation to prohibit gender-based allocation and inheritance of land.

In Swazi custom, land is allocated to establish a household; in the formal legal framework, to establish clarity and certainty of title. In neither case is the fundamental purpose compromised by the removal of gender-discriminatory laws and practices. Such gender-based discrimination is contrary to the vision of this policy and is to be prohibited by law.

3. Amend the Marriage Act and the Deeds Registry Act be revised to remove gender bias.

After revision of the Marriage Act to remove the provisions instituting a wife's inferior status regarding property rights, it is necessary to revise the Deeds Registry Act 37/1968 to extract the complementary sections institutionalising gender bias. The opportunity should then be taken to make other amendments to the Act towards the better functioning of the office in particular and the property market in general.

Re: Policies 2.1.1.b & c and all policies under 2.2 - cultural issues and policies.

Revisit the Swazi Administration Order of 1998 to ensure its effectiveness in terms of enhancing the implementation of this Policy.

As part of the policy drafting process, reviewing the existing legal framework, drafting and other irregularities have been identified in this Order. These irregularities need to be rectified for the proper functioning of the Order, in particular towards facilitating the powers of the Ngwenyama in the administration of SNL.

Re: Policy 2.1.2a

Include in the new Constitution.

Re: Policy 2.1.2b

1. Replace the Acquisition of Property Act.

The Acquisition of Property Act 10/ 1961 has hardly ever been invoked, in part because of the revulsion to compulsory acquisition undertaken during the apartheid period in South Africa. However, the power to compulsorily acquire property is reserved by the state in even the most liberal of democracies. Purchase by voluntary negotiation is always the preferred option, but without such powers the state would place itself in an impossible negotiating position, and prove very expensive and obstructive to government projects. The replacing Act should allow all categories of compensation that have been upheld as reasonable in international law, and the procedures that agree with current international practices.

2. Introduce a Resettlement Bill to allow fair and unified compensation Procedures for affected citizens.

A prime consideration is that all cases of resettlement proceed along transparent and equitable lines; another, equally important, is that consistent standards of compensation are applied regardless of the ministry concerned, and that those standards ensure that the people subjected to involuntary resettlement are at least no worse off after resettlement than they were before. This Bill will need to be examined in the context of the Swazi Administration Order of 1998.

3. Research into application of Farm Dwellers Act with a view to strengthening the legislation.

The provisions of the Farm Dwellers Control Act 12/1982 as amended are clearly not being observed in many cases. The nature and extent of the problems are to be researched, preparatory to a policy declaration and subsequent statutory and administrative amendments as required.

3.2 Legislative measures relating to Cultural Policies

Re: 2.2 in General.

Revisit land-related provisions of the Swazi Administration Order 1998, including definition of roles and responsibilities of authorities and government officers.

Refer 3.1 above re: policy 2.1.1.b & c.

Re: Policy 2.2.2.a

Extend leasehold to SNL.

The 99 year leasehold concept (already being applied to SNL under the Urban Development Project) is to be extended to rural SNL. The objectives of the proposed lease introduction are to:

  • Introduce a form of tenure which is bankable and promotes investment in rural production and shelter;
  • Encourage the mobilization of financial resources for human settlements agricultural, commercial and industrial development in rural areas;
  • Improve the living conditions of people living in rural areas;
  • Promote sustainable land use management.

The 99 year lease being applied by the Ministry of Housing and Urban Development in an urban context under the Urban Development Project was drafted particularly for that context, and cannot be applied within a chiefdom without significant changes. While rural leases over SNL have already been successfully applied with large area users such as sugar estates, their application within areas under the direct control of traditional competent authorities is yet to be researched in Swaziland. However, experiences in other countries in the region such as Botswana could have application in the local context - for example, a Fixed Term Grant approach to leasehold.

It is already clear that leasehold tenure on SNL will not be applicable in all circumstances; it can never be a "wall-to-wall" solution. Even where applicable, it will not necessarily provide a complete solution towards achieving the abovementioned objectives for its introduction on SNL. Nevertheless, there are areas and circumstances where such a tenure option would provide distinct benefits, a step towards achieving those objectives both to communities and to individuals, and in such circumstances its introduction is to be permitted.

Re: Policy 2.2.2.b

1. Include in the new Constitution

2. Amend or delete section 94(2) of the current Constitution Act 50/1968 to permit mortgages over leases.

3.3 Legislative measures relating to Land Tenure Policies

Re: Policy 2.3.1.a - Security of Tenure

1. Include in the new Constitution.

2. Remove the 1988 Decree from the statute books.

Indefeasibility of title is often a precondition for significant levels of investment. Even if indefeasibility is not a precondition, higher risks mean higher returns are required to compensate for that risk, which in turn means that less potential investments are viable. The 1988 Decree, along with other legal and procedural provisions which introduce uncertainty and ambiguity where none is necessary, should be removed from the statute books ( the Deeds Registry Act 37/1968 in the case of the Decree, and other statutes and procedures that may encourage doubt and confusion for investors) .

Re: Policy 2.3.1.b

Research into application of Farm Dwellers Act with a view to strengthening the legislation.

See 3.1 above, re: policy 2.1.2.b, part three.

Re: Policy 2.3.1.c

1. Introduce a Sectional Titles Act.

This Bill has been drafted and awaits submission for cabinet approval.

2. Introduce other alternatives tenure legislation to facilitate this policy objective.

There are several alternatives, both those suggested locally and those introduced internationally, the feasibility of which require examination in a local context.

3.4 Legislative measures relating to Land Use and Land Management Policies

Re: Policy 2.4.1.a

Revise Human Settlements Authority Act, Building & Housing Act, and Town Planning Act.

This revision is to be undertaken by the Ministry of Housing and Urban Development, as part of implementing a physical planning policy towards streamlining physical planning and development control. A single Act is to be drafted to deal with all relevant development controls; it is to be known as the "Physical Planning and Development Control Act:" a National Development Code is to be developed based upon this proposed Act.

3.5 Legislative measures relating to Land Market Policies

Re: Policy 2.5.1

1. Upgrade professional standards through relevant legislative reforms (Valuers Act, Real Estate Agents Act, Engineers, Architects and Surveyors Act).

Ensuring adequate professional standards is essential for private sector confidence and dynamism. A substantial proportion of most individuals’ wealth, most bank’s lending, and most investment portfolios is held in the form of rights over real property. The credibility and integrity of property-related professionals is an essential requirement for the smooth functioning of a property market.

2. Introduce a Landlord and Tenant Act and a Residential Tenancies Act to facilitate the development of the rental market.

Confidence to enter a market is facilitated with ground rules in place. A Landlord and Tenant Act in an industrial/commercial/retail context, and a Residential Tenancies Act in a residential context, can provide such ground rules and thereby facilitate ease of market entry. In consistency with the overall policy of enabling markets to work, in neither case will any form of rental or price control be entertained.

3. Amend the Land Speculation Control Act.

The Land Speculation Control Act 8/1972 is to be amended to include all relevant policy decisions under 2.5.

3.6 Legislative measures relating to Land Administration Policies

Re Policy 2.6.2

Introduce alternative dispute resolution procedures.

ADR procedures (such as the introduction of arbitrators without legal training, and determination of disputes by experts in the field) are internationally established and relatively inexpensive alternatives to formal litigation. Internationally, they are usually appointed by mutual agreement between the disputants, often in the contexts of rental disputes or construction contracts. They have the potential to play an important role in the resolution of land-related disputes: legislation to allow their functioning in a complementary fashion to the existing legal infrastructure should be examined. Such legislation could also provide a vehicle for the recognition of the powers of traditional courts in land-related matters.

Re: Policies 2.6.1 to 2.6.8.

These policies will require a new statute for their implementation.

Re: Policy 2.6.3

Adopt such recommendations of the 1995 Report on Land-Related Legislation as are not inconsistent with the policies recommended in this policy.