Improving land reform through CSR : a legal framework analysis

Abstract

In reaction to the unequal land ownership brought about by decades of apartheid, the first democratically elected government embarked on an extensive land reform programme - a programme consisting of the three constitutionally protected pillars: restitution, redistribution and tenure reform. The aim of this programme in not only to provide for restitution to persons who lost their land as a result of racially based measures, but also provide previously disadvantaged South Africans with access to land in order to address the unequal land ownership. This research focuses on the restitution and redistribution pillars of the land reform programme. The progress made in terms of both these sub–programmes has been disappointing. With reference to redistribution the government has set the target to by 2014 redistribute 30% of white owned commercial agricultural land to black persons. To date, less than 10% of this target has been achieved and all indications are that the overwhelming majority of land which has been redistributed is not being used productively or have fallen into a state of total neglect. The state of the redistributed land can be attributed to a variety of causes, with the main cause being the government’s inability to provide proper post–settlement support to land reform beneficiaries. Against this background it is clear that alternative options have to be identified in order to improve the result of land reform. This research identifies corporate social responsibility (CSR) as one alternative and asks the question: How can land reform be improved through a legal framework for CSR? Through their CSR companies in the private sector, amongst other, accept responsibility for their impact on as well as upliftment of the society in which they function. Companies in the agricultural sector is strategically positioned to, through their CSR contribute to the success of land reform. Since CSR is not currently supported by a focussed CSR legal framework it is recommended in this study that CSR should be regulated through a framework Act. The purpose of this framework Act is to position CSR within the wider legal framework and to compel businesses operating in South Africa to get involved in CSR initiatives through compulsory CSR contributions. The proposed framework Act consists of sections which amongst other include a preamble that not only confirms the government’s commitment to CSR but also highlights the role that the private sector plays in improving social conditions. The proposed Act also makes provision for the creation of a Committee for Corporate Social Responsibility that would be held responsible for the implementation of the proposed Act. The framework Act further identifies various CSR themes where businesses can become involve in. One of the identified themes which are of national importance is land reform. Included in the proposed Act is a requirement that businesses should, based on their annual turnover spend a percentage of their taxable income on CSR programmes. Failure to make the required contribution is a contravention of the Act which is punishable in terms of the Act. Finally the proposed Act requires businesses to annually report to the Committee for CSR on the nature of their CSR contributions together with the business’ CSR policy and strategy.