About-turn — Land Reform Minister Nyhontso explains why he aborted pledge to scrap section 25 of the Constitution

Mzwanele Nyhontso (PAC President) during the PAC Election Manifesto Launch at Orlando Communal Arena on March 02, 2024 in Soweto, South Africa. The manifesto launch provided a platform for the Pan Africanist Congress of Azania (PAC) to outline its plans for the 2024 national and provincial polls. (Photo: Gallo Images / OJ Koloti)

By Siyabonga Goni

10 Oct 2024

After almost 100 days in office, Land Reform and Rural Development Minister Mzwanele Nyhontso has confirmed that he has shifted his stance on scrapping section 25 of the Constitution.

Land Reform Minister and Pan Africanist Congress of Azania (PAC) leader Mzwanele Nyhontso is no longer hell-bent on pushing to scrap section 25 of the Constitution.

Asked if he was still pursuing this, as pledged days after being sworn in as minister, Nyhontso said this week: “No, it’s not the case.”

Instead, he says that since taking office on 3 July he has consulted legal minds and had been persuaded that section 25 could be used to access land. Among those whom he had engaged with was land expert and advocate Tembeka Ngcukaitobi.

Nyhontso – who was speaking with Daily Maverick to mark his 100 days in office – had also stated in an article in the Sunday Times, that he is not seeking constitutional reform.

Elaborating, Nyhontso told Daily Maverick: “I don’t want to come up with a process that will spoil the whole process of giving back [land] to our people. A process that will take us years trying to get it passed. It did not pass when the ANC had a majority, how much more when it is… by one person from PAC.”

However, “if PAC had won elections we would be talking a different language”.

Immediately after taking office in Cabinet, Nyontsho vowed to scrap section 25 because he saw it as a hindrance to resolving the question of land redistribution. He told Daily Maverick at the time: “Section 25 suggests that through the court processes or mediation some parcels of the land can be tested judiciously for transfer of ownership. They are aimed at the post-1913 Land Act and the apartheid-era forced removals matters. This is unjust and false, and it limits an historical colonial theft of land and dehumanising pieces of legislation aimed at the indigenous people, thereby leaving a festering settler-colonialism matter to be scrutinised unfairly in the courts.”

The new minister had suggested the proposed scrapping of section 25 be put “before a plebiscite for the people to approve or reject”.

Read more: New land reform minister, the PAC’s Mzwanele Nyhontso, vows to ‘use all available means’ to amend Constitution

Section 25(1)(2) of the Constitution states that no one may be deprived of property except in terms of law of general application, and that no law may permit arbitrary deprivation of property, and that property expropriated may only be done for public purpose or interest, and that if it happens it must be subject to compensation.

Speaking to Daily Maverick, Ngcukaitobi elaborated that section 25 was the constitutional mandate for land reform, if interpreted and applied correctly. He advised that the minister enforce the Restitution of Land Rights Act, which gives persons who were dispossessed of land the right to access their land.

“The programme has been hobbled by administrative challenges, many of which had to do with the institutional capacity of his department. If he focuses on making his department to function optimally, he can achieve the constitutional mandate,” Ngcukaitobi said.

Read more: Join the debate on Section 25 of ‘The Property Clause’

According to Ngcukaitobi, the country is in dire need of post-settlement support to beneficiaries of land reform and these issues do not require a legislative change as such.

However, one area that did require a statutory amendment is the programme of redistribution permitted in terms of section 25(5). “The country needs an overarching statute to give effect to this provision. In fact the minister should be championing the introduction of this statute. Overall, nothing requires tinkering with section 25. What we need is to enforce it,” said Ngcukaitobi, who has served as an acting judge in the Land Claims and Labour courts and is also the author of two books on land.

Resolving backlogs

During the 100 days interview, Nyhontso said he is focused on making sure land claims are settled and the backlogs cleared. A total of 5,700 claims are in the process of being settled, according to a Constitutional Court order. These were lodged in 1998.

“There are 130,000 claims that were lodged in 2014 that we must still go back and settle. The Constitutional Court said we must settle the old ones and then deal with the new ones,” he said, adding that he plans to engage with the finance minister to access funds to support the fast-tracking of land claims.

“I want us to settle these 5,700 claims in three years. We are able to know that if we’re settling these claims with money. We need around R60 or R80-billion.”

Groundup has reported that only 11,422 out of 20,523 claims (55%) in the Land Reform Department database have been finalised, a slight improvement from 10,992 in 2022.

In September officials at the Department of Land Reform and Rural Development revealed that only 11,422 claims submitted by labour tenants have been resolved. Graphic: Daniel Steyn

The department aims to resolve an additional 268 claims by 2024/25, but at the current pace it would take more than 30 years to address all cases.

‘People are opting for money not land’

The minister has observed that claimants are opting for money, not the land. “I think there’s a lack of education that we are doing as a government. I feel I must address it with them [claimants].

“If you opt for land, we’ll give you your land back and give you what we call post-settlement support, which is money to produce the very same land, meaning you have land and the money at the same time,” he said.

“But if you opt in for money, it means in 30 days you won’t have money because, as you know, I can give you R1-million now, you’ll buy a can of drink, [and] you are no longer a millionaire.”

His mission was: “Firstly, giving 50% of farm allocation to women, 40% to the youth, 6% to people living with disabilities and military veterans. Make sure that they get support, the farms become productive, the farm creates jobs, the farm contributes to revenue, and then the typical use of African people is restored.”

Job creation in rural areas

A priority for the minister, who is from Centane in the Eastern Cape, is to develop and create jobs in rural areas, and “stop the influx of our young people from the Eastern Cape to the so-called big cities in search of jobs”.

He aims to meet various ministers to devise ways to improve rural life. “We speak about water, I must talk to the Minister of Water and Sanitation Pemmy Majodina. I talk about electricity in the rural areas. I must meet with the minister of electricity… We are telling people, don’t lose hope, we’re going to develop your areas.”

In his short time in office he has visited Newcastle in KwaZulu-Natal to deliver 26 title deeds, covering about 20,000 hectares. On 26 October he will visit Limpopo to hand over 127 deeds.

MPs’ views on land minister

Daily Maverick spoke to members of Parliament’s Portfolio Committee on Land Reform and Rural Development to rate the minister’s first 100 days in office.

The DA’s Mlindi Nhanha said he hasn’t worked with the minister closely because the committee meetings on Wednesday mornings coincided with Cabinet meetings and his deputy had generally been the representative. However, “he strikes me as someone who prefers to keep to himself but remains confident of his abilities. I think he doesn’t have a public relations machinery to help him communicate his vision and some of the successes during the 100 days and beyond whilst in office.”

He added that the minister was given this responsibility because of his strong views on land issues. “This is his opportunity to drive the agenda of land reform and rural development in an orderly and constitutional manner.”

The Freedom Front Plus’ Wynand Boshoff said the minister has been friendly and approachable, adding that, “because he is a member of the PAC some people were concerned that he might be very aggressive in his approach, [but] he is very approachable”.

Nthako Matiase of the EFF said the minister is respectful, responsible and humble: “Minister Nyhontso can be described as an underdog and represents the best interests of rural working-class poor people. He understands his mandate is to service, sacrifice and suffer for the common good.”

However, “he [minister] hasn’t articulated a strategy to outmanoeuvre tight neoliberal fiscal regulatory framework, budget cuts, austerity measures”.

Engaging with the people

The acting director of the Institute for Poverty, Land and Agrarian Studies, Ruth Hall, said it is encouraging that the minister is engaging with people in rural areas. “The minister has the responsibility for rural development and this has always been an underdeveloped area that has tended to fall between different spheres of government.

“What’s really needed is a big ambitious plan for infrastructure, for creating links between small-scale farmers into wider parts of the economy, transport, and opportunities for people to have assets and derive livelihoods in rural areas,” she said.

“The priority for engaging with the minister will undoubtedly be the unresolved question of the status of the rights of people who have informal and customary land rights and the need for strengthening these rights in law and in practice so that people can no longer be dispossessed of their rights, as has been done in the past and continues now.”

How the PAC leader became a Minister

The PAC joined the Government of National Unity after the ANC fell short of 50% in the May 29, 2024 elections. The party secured one seat in Parliament, with Nyhontso being a surprise choice for the land reform portfolio by president Cyril Ramaphosa, who separated this responsibility from what had previously been combined with Agriculture. DM

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Politics

Resolving backlogs

‘People are opting for money not land’

Job creation in rural areas

MPs’ views on land minister

Engaging with the people