A thought-provoking, bare-knuckled look at the failures of South African land reform

First published in the Daily Maverick 168 weekly newspaper.

In Land Matters: South Africa’s Failed Land Reforms and the Road Ahead, Tembeka Ngcukaitobi has pulled many of the threads that have become entwined on this issue and woven them together in a narrative that is thought-provoking and, at times, bare-knuckled. Core to his overarching thesis is the failure of market-based approaches such as “willing seller, willing buyer”. This will make it a discomfiting reading for some.  

But Ngcukaitobi is not pushing some EFF or Zanu-PF kind of agenda. A highly respected advocate whose previous book The Land Is Ours offered a penetrating look at the evolution of constitutionalism through the lens of South Africa’s pioneering black lawyers, he is welded to the concept of the rule of law.

But laws in his rendering must embed justice and correct the past while securing the future. One supposes few would argue with that take in the abstract. But on the issue of land reform, many would also remain on a path that thus far has produced few results. Ngcukaitobi is not wrong in pushing the view that something has to change. If it ain’t working, it might be time to break it.

Ngcukaitobi takes an unsparing look at South Africa’s history of land conquest and dispossession. This includes a fascinating chapter titled “About the Stolen Cattle”.

Cattle have historically been, and remain, a key source of wealth to many African societies. From the 17th century, the Dutch East India Company embarked on a strategy whereby the cattle of the Khoikhoi “could be systematically taken away by a combination of theft, unfair terms of trade and direct dispossession”. Fast-forward to the 19th century, and cattle confiscation played a key role in the Frontier Wars in the Eastern Cape as well as the British campaigns in Zululand and the Boer conflicts with the Pedi and others. This was cattle rustling on a grand scale, which impoverished communities and, in many cases, led to proletarianisation.

Ngcukaitobi’s wider point here is that theft and dispossession do not just involve land. They also involve the wealth and life forces the land sustained.

The book deftly moves from apartheid’s crimes and political economy to the challenges presented by the land issue. Take the issue of the largely rural relics of apartheid that were the Bantustans. The Ingonyama Trust is “a continuation of chiefly authority being imposed from above, in much the same way as the apartheid state had done for decades”. Ngcukaitobi goes on to say that its key tenets stem from a 19th century British colonial version of Zulu law: “the stripping of land rights from individuals and families; the concentration of power in chiefs; and the dilution of customary norms”.

This is a scathing criticism of an institution that often cloaks itself in the garb of Zulu traditionalism. Among other things this – and other chiefly arrangements in the old homelands – give rise to conflict between communities and mining companies that have cut deals with tribal authorities.

This state of affairs also often prevents women from accessing land in meaningful ways. Ngcukaitobi relates the moving story of the “Marikana women” who supported their men during prolonged strikes by sending money from the Transkei to the mine workers, thus reversing the usual flow of household capital that was an entrenched part of the migrant labour system. This was the fruit of a farming project launched in areas where some of the Marikana miners hailed from by the women-owned investment company Wiphold in 2012, which makes use of communal land in innovative ways.

“While the land was communal, they did not require a title to put the land to productive use. Undisturbed control over the land, with secure rights, and access to capital and some technical assistance were the key ingredients to making a success of the project,” Ngcukaitobi writes.

The problem of course is that these ingredients seldom blend together. The result has been hardly fertile ground from which to seed proper land reform initiatives.

On the issue of title deeds, Ngcukaitobi makes the point that they are not the panacea that some have claimed, notably the Peruvian economist Hernando de Soto and his concept of “dead capital” – the notion that if you don’t have a formal title to property you cannot use it as collateral to access finance.

“The key risk factor that banks take into account is the possibility of non-repayment. Income is what matters, rather than pieces of ground,” Ngcukaitobi writes, again with reference to the Wiphold initiative. This is probably true to a point. But outright ownership of land is still in many cases no bad thing. One suspects that more outright home ownership in South Africa would be a good thing.

In an objective manner, Ngcukaitobi wades through the debates around “expropriation without compensation”, something that has sent shivers down many a spine, including whether or not a change to the Constitution is required.

“[P]roperly interpreted, the Constitution does not prohibit the expropriation of land without compensation. Rather, the target is for any expropriation to be handled proportionally and without imposing undue hardships,” he writes.

He also explores the issue of when compensation should or should not be paid.  

“If compensation is paid at full market value, it can be seen as a reward for an unjust holding of the land,” he says. In all of this he is objective, making the perfectly reasonable observation that this “can be seen as unfair”. Which it is certainly is in certain quarters.

Ultimately, Ngcukaitobi concludes that it is “post-liberation politics” and not the Constitution that has led to the debacle that has left most of southern Africa’s productive land in the hands of white owners. DM168



This story first appeared in our weekly Daily Maverick 168 newspaper which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.