Amending the Constitution will force the government to act fast on land expropriation

The ANC has made a number of public statements since it resolved in December last year at Nasrec to proceed with land expropriation without compensation. In his first public statement after his election as ANC president, Ramaphosa told the country that the ANC will increase its efforts to implement land reform and rural development, and that one of the mechanisms to achieve this will be expropriation without compensation.

He stated three important provisos: such mechanisms would not undermine future economic investment, damage agricultural production and food security or harm other economic sectors. In his State of the Nation address, Ramaphosa reiterated the Nasrec resolution, adding that a process of consultation would inform the “modalities” of expropriation without compensation, and a parliamentary committee would be set up to investigate whether the constitution needed to be amended.

By the time the president responded to the parliamentary debate in his State of the Nation speech, he had added that measures to fast-track land redistribution would not include “smash and grab” actions. He argued that the property clause in the constitution was intended to transform property relations in order to achieve greater equity in land ownership, not keep property in the hands of the few. Land reform had so far not achieved equity as was apparent in that 72% of farms continue to be owned by white people while Africans only own 4%.

Ramaphosa identified key priority groups for land reform, namely labour tenants who had legally claimed farmland and people living in informal settlements and occupying derelict inner-city buildings where the owners had abandoned the properties. He also assured people living under chiefs, particularly those on Ingonyama Trust land, that the ANC had no intention of taking land away from black people but would investigate ways of securing the tenure of the customary owners.

Subsequent statements after the ANC’s summit on the issue in May also reiterated a cautious approach to constitutional amendments while emphasising the urgent need to address persistent racial and gender inequality in access to land. Once again, emphasis was given to labour tenants and long-term farm residents, informal settlement occupiers and people living in abandoned inner city buildings – none of whom own the land they live on. Expropriation without compensation was again seen as one of a range of mechanisms to address ownership inequality and spatial equity.

Given this background, how should the president’s announcement that the constitution will be amended to allow expropriation without compensation be understood, and what are some of the consequences of this strategy likely to be?

Many South Africans have watched the constitutional review committee’s public consultations across the country with interest and either consternation or excitement. In media report after media report, the deeply racially polarised divisions on property and the constitution have become apparent.

Most white people have defended their rights to property (mainly farms) on the grounds that they bought the farms with their own resources, produce food and create jobs and asked that the constitution be left alone. Most black people spoke about evictions and abuse on farms, difficulties of getting access to land, the hardships that land deprivation had caused them and asked that the constitution be amended to give land back to the “rightful (African) owners”. However, by posing the question as “should the constitution be amended?” the public consultations have directed the solution as lying in constitutional change without proper consideration of what the underlying problems are.

This is unfortunate. Land reform has failed rural people, and it has never been an urban programme. It has failed people because it has not redistributed or restituted land on the scale promised nor has it given rural and urban people with little access to productive resources and insecure tenure what they need from land reform.

Nearly 25 years into democracy, it is a travesty that there are still people being evicted by both the state and private land owners, and who have little recourse to lawyers and the courts. The causes of land reform failure lie in many quarters, but include low budgets, incoherent and rapidly changing policy, inadequate staffing levels, the lack of political will and elite capture and corruption of land reform budgets.

Expropriation without compensation can be a tool for redistribution in both urban and rural contexts.

In urban areas, it makes sense that little or no compensation is paid where owners have abandoned properties and buildings and the state, in attempting to address social problems arising, battles to trace the owners.

In rural areas, the portions of farms currently occupied and used by labour tenants and long-term farm dwellers can expropriated with little or no compensation without affecting farm production and national food security, but with a significant impact on securing tenure for a very vulnerable category of South Africans, many of whom are children and young adults. There are farm owners already willing to make these donations, but government has so far failed to act on these gestures of reconciliation.

These suggestions do not contradict the constitution as it is currently formulated. The Labour Tenants Act, the Restitution Act, the Extension of Security of Tenure Act and the Housing Act all already provide for expropriation in rural and urban contexts. The extent to which these laws can provide for compensation that is just and equitable as set out in the constitution still needs to be tested in the courts. But we do have two gaps in our law.

The first is an overarching land reform law that specifies the conditions under which land can be expropriated for the purposes of equitable access through redistribution. The second is an updated Expropriation Act that clarifies what the Constitutional provisions of just and equitable compensation mean and the conditions under which they apply. Officials are compelled to use the 1975 Expropriation Act, which specifies that the compensation payable must conform to the price that would be obtained if there were a willing buyer.

So what can a constitutional amendment actually do? It could clarify that land reform does not have to conform to a willing buyer-willing seller principle nor to market-related compensation.

Although this is implicitly provided for through provisions that oblige the state to create equitable land access, such clarification would enable officials to use land reform to identify specific land to address spatial inequity and to support small farmers. It would also be very useful if the constitution, or an amended Expropriation Act, clarified the principles for valuing properties that are already occupied and have a changed land use (for instance, changed from agricultural to residential) as it is clear that value is affected in such situations.

Expropriation for the purposes of land reform cannot simply involve the identification of “vacant” public land, as some have proposed. It must surely consider unused private land as well. Furthermore, the racially inequitable distribution of land means that government must look at public and privately owned land that is occupied.

That this land is occupied is the strongest indicator that the land allocation processes available through the state and market have failed, and continue to fail the majority of South Africans. It is precisely this failure that has resulted in self-allocation, and in the politicisation of the land debate.

However, even if constitutional or other legal amendments do address allocation failures, it does not mean that all the problems associated with the land issue will thus be resolved. We know that in informal settlements on state-owned land people are still languishing without access to services and unclear tenure arrangements.

Their legal recourse is limited to protective laws, like the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. The problems of municipalities failing to fulfil their constitutional obligations to provide basic services, such as water and sanitation, to all South Africans is thus not a problem simply of private ownership, although some of these problems are compounded on farms and other private property.

The progressive prospects of expropriation need to be secured to ensure that the current debate is not simply about politics, and electoral politics in particular. Whatever mechanisms are adopted – including constitutional amendments and amendments to current or old laws – clarification of the details of implementation will need to be developed through court processes as well as state programmes that don’t yet exist.

This will necessarily take time. If the ANC fails to grasp this, it may have won an electoral victory, but it will be one that has little impact on the lives of the people who urgently need it. A politics of land that does not deliver the land is the real risk. DM