South Africa is a global example of how not to redistribute land. It’s a failure.
This was the sentiment that all panellists agreed on during an expropriation webinar hosted by civil society group Defend Our Democracy on Tuesday afternoon.
Three panellists were asked to engage the topic “Expropriation - The answer to South Africa’s land reform problems?”
“South Africa is a record on how not to redistribute land. It’s been a monumental failure from top to bottom, whether you’re dealing with redistribution, which has been a dead letter from the start, or whether you’re dealing with restitution,” Emeritus Professor Fred Hendricks of Rhodes University said.
Despite the few pockets of successful land transfers, Hendricks was scathing in his summation that the South African government has “failed in terms of land reform, in every aspect of land reform”.
Said SA Human Rights Commissioner Philile Ntuli: “The state has failed in addressing the issue of historical disposition of land, and as a result, the expropriation process is being conflated.”
The executive director of legal at the Institute of Race Relations, Gabriel Crouse, pointed out the failure of the Communal Property Association (CPA) Act, which is meant to facilitate land restitution and redistribution for communities, as an example of the government’s land reform failure.
“The CPA system doesn’t work very well, partly because of government intervention that is inept and corrupt, and so there are mass failures in terms of crop management, fence management, managing faults, and so the land is worthless.”
On what measures would be needed to ensure a better land reform process, all the panellists differed.
Divergent paths
Crouse was adamant that the current act of expropriation that allows for nil compensation should be scrapped as it weakens property rights for everyone in South Africa, saying a new way must be found to complete the land reform process expeditiously, “in a way that is respectful of property rights”.
He said he liked the idea that the state bought every farm under a land claim at market value, and if it allocated a budget over five years to do this, it would be able to speed up the land reform process.
“Is that going to solve every problem? No, it’s not. The biggest problem in South Africa is unemployment. Black unemployment has doubled in the last 20 years, the economy hasn’t grown since 2008,” Crouse added.
He said by scrapping the Expropriation Act, and completing land reform by ensuring property rights were protected “would go a little bit of a way to helping the economy along, and a long way to helping along the actual land reform beneficiaries and all South Africans who really rely on a strong property rights system for our banking sector, financial services sector, our ability to do trade”.
Ntuli said Crouse and others have pushed a narrative that “conflates these two concepts of expropriation and land reform”.
She added after “listening to Crouse’s submissions, [there is] the inability to appreciate the [expropriation] act for its substantive value”, including the number of procedural mechanisms it had in place.
Ntuli said the Expropriation Act, a version of which is used globally too, would primarily be used “for public purposes when property is needed for building roads and public infrastructure such as hospitals and schools”.
She added though expropriation was just one aspect of land reform in South Africa, it had been raised by the beneficiaries of unjust laws prior to 1994 to “present a view that suggests that expropriation equals confiscation of their land”.
Ntuli said she hoped that people in the webinar would leave with “an emphasis on the need to separate the two concepts, so that we are able to deal with the state failure at land reform as a separate entity to the process of expropriation”.
South Africa’s Expropriation Act: Between Legal Reform and Historical Justice
‘Catch-22 situation’
For Hendricks, a stunning and pernicious statistic is that “40 000 white farmers own half of South Africa”, saying if South Africa did not confront this “in a way which allows for a much more equitable distribution of land in the country as a whole”, democracy itself was at stake.
“It’s not a question of a lonely, individual white farmer whose land is going to be expropriated without compensation. It is a statistic that is against the fibre of a democratic country, especially because it is a racialised inequality, and that’s why it’s deeply problematic to me and needs to be addressed. Not by the way in which we’ve tried to do it,” he said.
“Conceptually, for me, I would prefer a state-driven form of land reform. But you can’t trust the state, because the state is corrupt,” Hendricks emphasised.
He acknowledged the nil (without) compensation part was at the heart of the current debate on land reform, specifically the Expropriation Act.
Echoing Ntuli’s words on procedural mechanisms, Hendricks said it was so circumscribed that it would “make it difficult to accomplish in practice, it will be mired in litigation and complex legal processes”.
Leaving land reform in the hands of the market, would not work as that would just tinker with the problem instead of addressing it. Yet, because the state was so rotten, he said, South Africa was in a “real Catch-22 situation”.
Hendricks added the approach to land reform needed to be a three-pronged disaggregation of the problem: deal with the questions of agricultural land; deal with questions of the reserves; and deal with questions of urban land.
“In conclusion, given the manner in which the entire legal framework of the state has been set up, I doubt very much that the new Expropriation Act will be effective in speeding up the transfer of land to black people.”
NS-
Land Reform Minister Mzwanele Nyhontso has defended new race classification requirements in the transfer of land as part of his department’s land audit. He told Wednesday’s economic cluster ministerial question session that government had to know who owned the land in the country and was not targeting any particular race.Nyhontso was responding to a question from the Democratic Alliance (DA), which wants him to amend the new regulation that requires people who receive land to disclose their race and gender.The DA’s Mlindi Nhanha asked Minister Nyhontso what the legal and constitutional basis was for making the disclosure of race and gender mandatory in the new requirements for the transfer of property.The DA also wrote to Nyhontso demanding that he withdraw the new race rules in the deeds offices across South Africa, calling on him to halt their enforcement.But Nyhontso said that the requirement was necessary."This regulation is not going to be used against other races. This regulation is going to be used to understand the land and to understand who owns the land, so we are able to audit the land in this country."Nyhontso also told the House that R26 billion was paid to former land owners and R27 billion was paid for financial compensation to claimants.
