After the Bell: What would positive land ownership legislation look like?

One of the problems with journalists, I am led to believe, is that they are too negative and are not sufficiently focused on solutions. So, allow me to ask this question in relation to the whole ongoing Ramaphosa / Musk / Trump / Expropriation Act fandango: What would positive land legislation actually look like?

Tough question. 

I’ve already written about why I think the Expropriation Act is poor legislation, even before US President Donald Trump and his sidekick Elon Musk suddenly turned their respective Eyes of Sauron on to it. Since then, there has been a massive fightback campaign. 

I have to say, I do wish that the people who are now frantically defending this legislation would take the trouble to read it. A good example is the joint statement of a consortium of SA civil society organisations “In response to President Trump’s threats”. (Obviously, I'm being facetious here; I know many people in these organisations have actually read the legislation. The issue is whether the legislation is benign, as they claim, or whether it targets a racial minority, as Trump and Musk claim.).

One understands, of course, the instinct to hit back at Trump’s distortions and contortions. Yet, it seems obvious to me that there is more than a little distortion on both sides. The civil society statement makes the comment: “The recently promulgated Expropriation Act does not look to confiscate land but is an attempt to address the dispossession and removal from land that long characterised South Africa’s history and remains a festering sore in our country.”

Well, you know, actually it does look to confiscate land. This is the logic behind the act; the whole point was to introduce measures in which land could be expropriated without compensation under a racial mandate in line with the resolution passed at the ANC’s December 2017 conference. For 20 different civil society organisations not to notice is a bizarre act of political contortion. Does nobody in any of these 20 different organisations remember any of this history?

In order to confiscate land, the Constitution had to be amended. And as those of us with a little historical memory left know (either that or having access to Google), this attempt failed in 2021 because it couldn’t get support from other parties. So, the alternative was to try for land confiscation through a different mechanism, which ended up being the Expropriation Act. 

But with the Constitution still in place, the legislation had to go through some contortions of its own to escape Constitutional Court censure, so “guardrails” were introduced to notionally restrict land confiscation. And this is where not bothering to read the legislation comes in since another fallacy is that the old Expropriation Act was faulty and, you know, old. Therefore, the new Act is better, and newer and shinier. 

Just to take one example: the old Act allowed expropriation “for public purposes”. The new Act allows expropriation “for public purposes, or in the public interest”. The “public interest” is defined as “the nation’s commitment to land reform and to reforms to bring about equitable access to all South Africa’s natural resources in order to redress the results of past racial discriminatory laws or practices”. 

So, we are not talking here about expropriation to create a new road or railway line because the urgent needs of the many outweigh the rights of the few. We are explicitly talking about expropriation to achieve racial equity. All you need to do to satisfy this clause is to point to the race of the land owner and the total land ownership of people of that race. 

You can agree with this, or you can disagree. But what you can’t do is claim that this is benign or in any way comparable with eminent domain laws around the world, or that Musk is wrong to say the legislation is racially targeted. That is its whole point.  

As the myriad defenders of the Bill now point out, there are guardrails here to prevent operating and functioning farmers from getting totally screwed like they were in Zimbabwe, leading to, as we all know, the total collapse of that economy. These guardrails do not allow farmers to have their land confiscated if the land is being used productively. But what the legislation does not do is prevent their land from being expropriated. It just means they will not get no compensation at all. 

So now there are criteria where “nil compensation” may be paid. But these criteria are open-ended: the government institution just has to have regard to “certain relevant circumstances”, including but not limited to four specific situations. 

And just to give us a flavour of what the drafters are thinking about, it suggests as one of the four situations that the land is unused and the owner’s main purpose is not to develop the land but to benefit from the appreciation of its market value. 

God forbid anyone should ever want their land to appreciate in value. Honestly, I have read fewer things as stupid in SA legislation. The notion that somehow having land appreciate in value is a bad thing is to implicitly condemn new farmers from developing the crucial capital base on which to finance their enterprise. Only someone who has no clue about the way land ownership works could come up with a criterion for confiscating land so diametrically opposite to what people of all races investing in land not only want but absolutely require. 

A more sensible provision would be the exact opposite: anyone who doesn’t want their land to appreciate in value should have it confiscated on the basis that they are idiots.

So, to end at the beginning: What would positive land legislation actually look like? Personally, I would be in favour of a clause which deems land being used by someone to be their property if it is not owned and registered already. This is because about 38% of the country’s land area is under commercial agriculture, which translates to about 46 million hectares out of South Africa’s total 122 million hectares. Sadly, most of that is white-owned.

About 30 million hectares are currently under subsistence and small-scale agriculture. Happily, most of that is black-owned. By creating real, registered, individual land ownership for small-scale farmers, you could provide a stepping stone to a more equitable land ownership system in SA in the blink of an eye. Essentially, black-owned and white-owned land would be more or less equalised in terms of land mass in an instant. 

Huzzah! DM