AgriTech platforms and commercial farmers operating on or alongside communal land face a layered legal environment shaped by the Constitution, the IPILRA, customary law, and the ongoing land reform programme. This guide maps the framework.
The Legal Landscape
Approximately 13 percent of South Africa's surface area is held under customary tenure as communal land, principally in the former homeland areas. A further substantial proportion is owned by the State or held by entities established under the land reform programme. Commercial agriculture, AgriTech platforms, and rural development initiatives that operate in these contexts must navigate a layered legal environment that differs materially from the freehold property regime governing most commercial farmland.
Section 25 of the Constitution
Section 25 of the Constitution of the Republic of South Africa, 1996 is the foundation of the property and land reform regime. It protects against arbitrary deprivation of property while authorising legislation to provide for restitution, redistribution, and tenure security. The interpretation of section 25 has been the subject of substantial constitutional jurisprudence, and the question of expropriation without compensation remains under legislative consideration through the Expropriation Act 13 of 2024 and related instruments.
For commercial operators, section 25 is rarely a direct constraint on day-to-day operations, but it shapes the broader policy environment within which commercial agreements with communities, the State, and traditional leadership structures are negotiated.
The Land Reform Programme
The land reform programme has three principal pillars: restitution under the Restitution of Land Rights Act 22 of 1994 for persons or communities dispossessed of land after 19 June 1913 as a result of past racially discriminatory laws or practices; redistribution under various policy frameworks aimed at broadening access to productive land; and tenure reform aimed at securing tenure for persons whose tenure is legally insecure as a result of past discriminatory laws.
For AgriTech operators, the practical relevance of land reform is most acute where land identified for restitution or redistribution is also the subject of commercial farming or AgriTech deployment. Operators should monitor the publication of land claims in the Government Gazette and the Land Claims Court roll for properties on which they hold or are negotiating commercial rights.
Communal Land: The Operative Framework
The legal framework for communal land has been the subject of significant litigation and policy review. The Communal Land Rights Act 11 of 2004 was declared unconstitutional in Tongoane and Others v National Minister for Agriculture and Land Affairs and Others by the Constitutional Court, leaving a regulatory gap that successive draft Communal Land Tenure Bills have attempted to address.
In the absence of a comprehensive statute, the operative framework for communal land includes the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA), the Traditional and Khoi-San Leadership Act 3 of 2019 (which governs traditional leadership institutions), customary law as recognised under section 211 of the Constitution, and the Communal Property Associations Act 28 of 1996 where a registered Communal Property Association holds title.
The IPILRA Consent Requirement
IPILRA requires that no person may be deprived of an informal right to land without the consent of the holder of that right. For AgriTech operators seeking access to communal land for any purpose, including the placement of sensors, drones, or infrastructure, the IPILRA consent requirement must be addressed. The relevant consent is typically community consent obtained through the appropriate community decision-making process, which may involve traditional leadership, community meetings, and (where applicable) the Communal Property Association.
Traditional Leadership Engagement
Traditional leaders play a defined role in communal land matters. The nature of that role and its interaction with statutory and customary decision-making processes are nuanced and have been the subject of litigation. AgriTech operators should engage with traditional leadership in good faith and in accordance with the operative customary processes, while ensuring that any agreements reached are also supported by the broader community process required by IPILRA.
Contractual Frameworks
Commercial agreements with communities or community-controlled entities require careful structuring. Best practice elements include clear identification of the community party (the relevant CPA, trust, or other juristic entity, or the community acting through its lawful representative under customary law), appropriate authorisation evidence (resolutions of the relevant decision-making body, with documentation of the community process), defined commercial terms (lease, services agreement, royalty, data rights, profit-sharing, or other consideration), benefits-sharing provisions reflecting the substantive community interest in the venture, dispute resolution mechanisms compatible with both customary and statutory frameworks, and exit and termination terms that respect the indefinite nature of community land tenure.
Data Rights and AgriTech-Specific Considerations
AgriTech platforms generate substantial data from operations on communal land: soil sensor data, weather data, yield data, livestock biometric data, and farmer behavioural data. The legal treatment of this data raises questions that traditional commercial law does not fully resolve. POPIA applies to personal information of identifiable natural persons (including community members and smallholder farmers). Beyond POPIA, communities are increasingly asserting collective data sovereignty claims over agricultural and ecological data generated on communal land.
Operators should design their data governance frameworks with explicit provisions on data ownership, secondary use, sharing with third parties, and community access to aggregate insights derived from community land data.
Land Claims Court Considerations
Where AgriTech operations or commercial farming agreements interact with active land claims, the Land Claims Court has jurisdiction over disputes arising under the Restitution of Land Rights Act and certain related matters. Operators party to commercial arrangements over claimed land should monitor the claim progress and structure agreements to address transition scenarios on settlement.
How Mashiane Attorneys Can Assist
Our Smart Agriculture practice advises commercial farmers, AgriTech platforms, and rural development organisations on land tenure due diligence, IPILRA compliance, traditional leadership engagement, community agreement structuring, land claims monitoring, and Communal Property Association governance. Contact our team for a confidential consultation.