As a land reform practitioner of several decades, my first reaction to the news that the department of agriculture, land reform and rural development was intending to release state-owned land on the basis of long-term leases was one of incredulity.
I am not opposed to leasehold as a matter of principle, but South Africa has a long history of leasing state land, going back to the bad old Bantustan days. The results over time show that leasing agricultural land to emerging black farmers – in the context of South African history and land redistribution – does not work.
My reaction was nevertheless tinged with hope that the land in question is indeed unclaimed and unoccupied and may benefit from investment by lessees. Perhaps one should give it the benefit of the doubt, although doubt weighed heavily on my judgement.
My second reaction upon the release of the official record of properties to be made available by the state was one of shock. I identified some of the farms with which I am familiar that have been listed in the Eastern Cape.
Leasehold on state-owned land seems to have lacked traction in the South African context of land redistribution, although there are exceptions. We learnt a lesson from the apartheid government’s largely failed attempt at this.
Furthermore, the adjudication of qualifying or successful lessees is usually skewed in favour of the well-connected rather than the deserving.
My reaction of shock was a result of my knowledge of state-owned farmland in the Eastern Cape, where I conducted extensive research in several districts in the early 2000s. My research was part of an official programme on “state land disposal”, which was policy at that time.
It was aimed at allocating state land to people adjudicated to be the legitimate claimants or users, and was very much part of the early redistribution policies and grants of the 2000s.
My research revealed that this land was not only beneficially occupied in most cases, but was subject to intense contestation between restitution claimants, occupiers and farmers (particularly those labelled lessees), most of whom were long-term occupiers.
Most of the occupiers had/have legal rights to the land in terms of the Interim Protection of Informal Land Rights Act, 31 of 1996 (IPILRA). Some of the farms I identified on the official list of those to be advertised for leasing were held by occupiers with legal rights. Thus, if I was correct, advertising these farms would amount to a form of illegal dispossession by the state, as, in terms of IPILRA, these rights cannot be infringed upon short of expropriation (with compensation).
Returning to my first point that leaseholds do not work as part of a land redistribution strategy in South Africa: we have proof of non-payment of rentals for large blocks of land that were “given” by the apartheid state to the former Transkei as part of its consolidation package, and to provide the final enticement to Kaiser Matanzima to take the bait of “independence” and become the homeland’s first “president” in the 1970s.
Leasehold on state-owned land seems to have lacked traction in the South African context of land redistribution, although there are exceptions. We learnt a lesson from the apartheid government’s largely failed attempt at this. (Photo: Supplied)
George Matanzima, Kaiser’s brother, was given a farm in the large block of land known as Gwatyu. The block of Gwatyu farms comprise 38,000ha in the south of the former Transkei, adjoining the former districts of Cofimvaba, Queenstown and Cathcart.
Another large farm was given to the chief of the AmaTshatshu (for the long and complex history of the AmaTshatshu, see The House of Tshatshu: Power, Politics and Chiefs North-West of the Great Kei River c1818-2018, by Anne Kelk Mager and Phiko Jeffrey, UCT press).
The other farms were leased out, with most being farmed by the former workers who remained on the farms after the expropriation of this land from white farmers in the 1970s.
The failure to pay lease fees by many of the lessees – and the unfair distribution of the farms to the elites employed in the then Transkei civil service – caused these leases to be scrutinised by the Heath Special Investigation Unit in an attempt to root out corruption.
The summonses issued to many lessees to appear before judicial enquiries, and efforts to expose corruption in state land lease deals, bore very little fruit in terms of ending dubious state land allocations.
In 2000 I conducted an audit of Gwatyu land block to assist the Eastern Cape government in the allocation and “disposal” of the land. My colleague Monty Roodt and I conducted the audit through farm-by-farm field visits, interviews and documentary research to understand both the current occupation and use of the land, and also the evolution of the farm occupancy over time in a historical and social context.
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The Gwatyu audit included interviews with occupiers of each of the farm units in the Gwatyu block. There were 66 units, as the original farms had been informally subdivided by the former Transkei department of agriculture, which required us to draw a map of the new boundaries.
We recorded the farms according to permanent occupiers living on the land, absentee lessees, land use, authority system, leasing or beneficial occupation and details of farming practices, including number of livestock per family or per farm unit. We also took note of labour and dipping practices and other investments.
We recommended the allocation of each unit of land according to the policies of land redistribution and tenure at the time, based on adjudication of rights and uses as well as an assessment of investments, effective beneficial occupation and protection of occupiers in terms of the law.
Among our findings was that the farm dwellers had invested in livestock (mainly cattle) with an estimated value of R12-million (at 2000 values), and were completely committed to a life of active farming. By way of contrast, most of the lessees were absentee farmers who often relied on outside labour (including from Lesotho, in one case I was aware of) to herd their stock.
We concluded:
“Researchers observed no differences in the way the land is being farmed and livestock marketed between farm dwellers and lessees. Attempts by the state to commercialise the farms based on ‘commercial units’ and lease agreements with the outside beneficiaries has thus not been successful, and it is questionable to what extent this method will be successful in the future. This raises serious questions about arguments for disposing of the land to ‘outside’ selected beneficiaries, since there would appear to be no reason to regard lessees as having more potential to become ‘emergent’ farmers than the farm dwellers.”
Our recommendations included a fair distribution between lessees who were investing and actively farming, and farm dwellers who were actively farming – in other words, based on an assessment of legal tenure based on beneficial occupation and IPILRA, farming and investment.
The idea of beneficial occupation has to be understood in the context of evolving land law. In the time leading up to constitutional democracy, new legal frameworks for land tenure saw the emergence of new categories of legally occupied land. Farmworkers on state land such as Gwatyu were recognised as “beneficial occupiers” in terms of IPILRA.
I recall this history as I was involved in research in the Alice district of the former Ciskei among former farmworkers on state land, and was able to provide evidence in 1998 to the then department of land affairs to make a case for beneficial occupation on state land, which needed to be distinguished from “communal” land held under trust arrangements.
The evidence was that the farmworkers were long-term occupiers of this land; were actively farming, and were occupying without the permission of the owner. The latter was a necessary condition for “prescription” to apply according to the legal time limit, and to distinguish the occupiers from formally employed farmworkers or farmers on communally tenured trust land.
We argued that the occupiers in question, and others like them, should be recognised as beneficial occupiers. It was eventually accepted into policy.
One of the first groups to be formally accorded the status of beneficial occupiers who qualified for state land called themselves “Masakane”. They formed themselves into one of the first communal property associations (CPA) and were granted the land under a subsidy scheme known as SLAG (state land acquisition grant).
The Masakane CPA took decades to be formalised due to inefficiency and prevarication in the department of land affairs, but that is part of another sad story.
Having scanned some of the numbers of the farms in the Eastern Cape that have been included in the state land leasing plan, I discovered to my horror that many of them are in the Gwatyu block of farms under beneficial occupation by the farm dwellers, and subject to decades of stalling by the department to implement our recommendations for the fair allocation of this land to the beneficial occupiers who are legally entitled to it.
Instead, more consultants were appointed after us to do another study, which I have never seen, and more recently a third audit was done that has, to my knowledge, never been released. It is referred to as a “land rights enquiry”.
The campaign by the farm dwellers organised into the Gwatyu CPA had over the years gathered steam and become emotionally fraught due to the continued contestation between various interest groups and the occupiers (with allegations of foul play) over a long period of time.
Meanwhile, with no certainty over the ownership of the land, the roads and other public and private infrastructure on the farms had fallen into disrepair.
The CPA received numerous promises that their rights to the land would be addressed by the then department of rural development and land reform under former minister Gugile Nkwinti, and the matter was raised in Parliament in 2016. It was also the subject of a ministerial task team.
Things then went quiet and the CPA assumed they would be granted some or all of the land they were claiming as beneficial occupiers. Instead, the news broke in recent weeks that the land would be advertised for leasing.
Their story was captured in an SABC3 broadcast on Special Assignment titled, “The Other Side of Eden” by producer Hazel Friedman. It provides insight into the deeply moving story of the attempts by the beneficial occupiers to gain formal ownership of the land. No one, after watching this documentary, could be left thinking that this land is empty and available for applications to lease it. Quite the opposite: the land is legally held by rights holders in terms of IPILRA and actively farmed by others named as “lessees” but who do not pay rentals and have made efforts to own the land.
Thus, putting the land up for leasing is a contravention of the state’s own land law. In the case of Gwatyu, one wonders if the government’s failure to recognise the beneficial occupiers of this land could result in regrettable repercussions. However, it will almost certainly be contested in court.
Ironically, Gwatyu had, in the 1990s, been included in the design of the first pilot land reform project as South Africa became a constitutional democracy. It was a time when land reform was regarded as one of the most urgent priorities.
The idea was to apply a district-based approach to land reform as advocated at the time by me and my colleagues in the border rural committee working with the land and agriculture policy centre (LAPC), a think tank for ANC policy at the time.
The envisaged land reform district in the Eastern Cape was designed to integrate geographically, socially and politically dismembered parts of the Border region, embracing parts of several districts that were in the two former Bantustans and the surrounding white commercial farmland.
The district approach was never implemented following new leadership in the department of land affairs, though it appears to have regained traction recently.
I am currently working on a project aimed at encouraging the development of an integrated land administration system (ILAS) based on research of lessons learnt in South Africa and the rest of Africa, as well as institutional restructuring to address land governance and rational and service-oriented public land administration institutions.
This project is being conducted under the auspices of a partnership between the Public Affairs Research Institute (PARI) based in Johannesburg and the Institute for Poverty, Land and Agrarian Studies (PLAAS) at the University of the Western Cape.
One of the central tenets of our proposals for reforming the land administration system is to introduce a system of records that would, for example, detail all the legal claims to – and ownership and occupation of – land such as that of the Gwatyu beneficial occupiers.
And more fundamentally, the foundation of an ILAS is an integrated and interoperable land information system (ILIS) that would provide ready access to detailed information of every farm parcel in South Africa, not only of land use and rights, but also layers of information on all other infrastructural, biophysical and environmental aspects so that it is possible to assess any piece of land holistically.
In cases like this, it would prevent land allocation being left to the vagaries of fluctuating policies and the officials who implement them, and which inevitably results in flooding the judiciary with claims that should rightfully be in the realm of the administration.
Section 33 of the Constitution states that every citizen is entitled to just administration. The Gwatyu case could be an example of the infringement of section 33 as well as section 25, the property clause.
We hope that the minister of agriculture, land reform and rural development will respond to our concerns about the releasing of the land in Gwatyu farm block for leasing, and to justify the advertisement for applicants to lease these farms that are already occupied by legal occupiers.
We would also like the department to release the latest land rights audit of Gwatyu that was underway in 2018, and to explain why it did not release the findings as promised in a public consultation with the beneficial occupiers before advertising these farms as part of the state leasing plan.
We will be seeking clarity on whether this has possibly been a bureaucratic error or whether it is the department’s deliberate and purposeful interpretation of land reform and land redistribution. DM
Dr Rosalie Kingwill is an independent critical research consultant specialising in land administration systems, land tenure reform and property rights. She is a research associate at the Institute for Poverty, Land and Agrarian Studies (PLAAS), University of the Western Cape and a member of the land network, LandNNES. She has published widely on issues of land tenure and property rights, and their complex manifestations in South Africa.
