South Africa has all legislative and policy tools for land redistribution – politics, patronage and governance paralysis have made it impossible so far

King Goodwill Zwelithini ka Bhekuzulu arrives at the Chief Albert Luthuli Hospital in Durban and is received by Deputy President David Mabuza, who is the Chair of the South African National AIDS Council (SANAC), KwaZulu-Natal Premier Willies Mchunu and the Minister of Health Dr Aaron Motsoaledi during the World TB Day Commemoration held in Durban, Kwa-Zulu Natal. The event forms part of the global World TB awareness activities aimed at raising public awareness about tuberculosis and the efforts made to prevent and treat the disease. This year's Commemoration is held under the theme: "Unite to end TB & HIV - South African Leaders taking action".

By Marianne Merten

5 Jun 2018

There is much noise around land expropriation without compensation, including from the self-serving bands of politicians gearing up for the 2019 elections. The blunt reality is that the legislative and policy tools for land redistribution, restitution and reform to redress landlessness and inequality have existed for most of democratic South Africa. That little, if anything, has taken root has more to do with competing political interests, patronage networks and governance paralysis.

Land is complex. It is a vortex of deep-seated lingering pain among black South Africans arising from colonial and apartheid dispossession and loss – and the fundamental need for social justice alongside constitutional imperatives of redress – but also power politicking and patronage. It is steeped in clashing economic interests, with those already holding power, be they white farmers or traditional leaders, enjoying a leveraged position to maintain privileges, and also the blunt reality of 21^st century financial services based on loans against assets, mortgages and lasting liabilities.

The governing ANC, coming from its land consultative workshop in late May 2018 into a subsequent National Executive Committee (NEC) meeting that approved the workshop resolutions, acknowledged that more needed to be done, and it should be done immediately.

That in itself is an appreciation that the necessary tools are there. But that recognition is not only tempered by political power broking – security of tenure for some 17 million South Africans living on communal land where traditional leaders hold sway has again been kicked for touch – it also is steeped in political sophistry.

And so there was a call for the speedy passing of legislation that simply does not exist even on a drafter’s notepad in some departmental back office – the land redistribution law. Yet redistribution is an established, and funded, policy dating back to the 1997 White Paper on Land Reform. The rules of governance mean that once policy is adopted by Cabinet, it can be, and is, funded from the national coffers. No law needed.

That’s why South Africa between 1998 and 2000 had (The Settlement Land Acquisition Grant) SLAG, then The Land Redistribution for Agricultural Development (LRAD) and since 2006, Proactive Land Acquisition Strategy (PLAS). That these land redistribution programmes did not yield the aspired levels of redistributed acreages is intrinsically enmeshed in governance paralysis, including agricultural extension officers’ inability to provide the legislated support, and the ANC’s ideological mutation, despite the pro-poor and dispossessed political rhetoric, moved the focus on economic agricultural activity. Initially, SLAG provided a grant for the poorest of rural residents. But LRAD and PLAS farmed out grants and subsidies to encourage black emerging and commercial farming on redistributed land. These subsidies frequently provide instead a field day for unscrupulous, politically connected, often urban-based business people.

Also funded from the national purse are subsequent other land redistribution policy initiatives like the 50/50 policy so farmworkers could co-own farms with the current owners, have a say and share profits. Officially called the Policy Framework on Strengthening the Relative Rights of People Working the Land, it dates back to 2014, and has clocked up mixed results.

A one-stop-shop type piece of land redistribution legislation might be nice to have. But the range of issues involved in redistribution mean the law the ANC is now talking about could turn out a beast of scores of pages – once drafters get down to putting pen to paper. And given the governance track record, it could take several years from the first departmental draft to the presidential signature into law.

Realistically speaking, the horse has bolted. The deadline set to receive any new draft laws for Parliament to process these before it rises ahead of the 2019 elections was 31 May 2018. And so it’s a political, and procedural, pipe dream for the ANC to think that the urgency of the land issue, and its numerical dominance in the national legislature, might provide a different outcome. Co-incidentally, parliamentarians are on a two-month extended constituency period, effectively called for electioneering, and will return only in mid-August.

The only plausible motivation for calling for such a land law: elections. It has happened before: land restitution became a 2014 election issue amid promises of another window to lodge such claims by black South Africans dispossessed because of racially discriminatory laws since 19 June 1913, when the Natives’ Land Act came into force. The first claims window under the 1994 Restitution of Land Rights Act closed on 31 December 1998, with subsequent persistent complaints that many had missed the deadline, or of claims being lost in the process. Just before the 2014 elections Parliament passed the Restitution of Land Rights Amendment Bill and it was signed into law by then president Jacob Zuma a month afterwards, opening the new lodgement window from 1 July 2014.

Some 170,000 new claims were lodged, but these fell into limbo after a successful Constitutional Court challenge in mid-2016 over the inadequate public consultations. The court gave Parliament two years to fix this defect.

Governance paralysis meant the private members’ Bill the ANC introduced in 2017 to fix the legislative defects has gathered dust in Parliament since. When in July 2018 the court deadline for the national legislature to remedy the law expires with action still pending at Parliament, all new lodged claims will lapse.

Those who believed the land restitution 2014 election promises remain empty-handed.

Also left empty-handed are some 17 million South Africans living in traditional communal areas, vulnerable, without tenure security. In rural areas, one instrument of power is land, and traditional leaders have made much of this.

It’s a political pickle for the ANC, which counts traditional leaders amid their core support bases, particularly in elections. The ANC consultative workshop decided on what’s called “further engagement” on communal tenure security.

Although communal tenure reform has been a central land reform policy for the past 22 years, it took almost a decade after the democratic transition to produce a law, the 2004 Communal Land Rights Act (CLARA). In 2010 the Constitutional Court declared it invalid on procedural issues as at the time – lower courts had upheld communities’ arguments that giving traditional councils land administration rights undermined living customary law – as the then land affairs minister told the Constitutional Court the law would be redrafted in any case.

That has not yet happened, despite then Chief Justice Sandile Ngcobo’s injunction in the 2010 judgment:

“The core problem created by colonial and apartheid geography is that millions of African people were forced into labour reserves that were distant from employment opportunities, impoverished and overcrowded. The repressive machinery of apartheid, from the pass laws to forced removals, evolved in a way that restricted those affected to these impoverished zones.

“African communities were uprooted from their land and dumped onto foreign land. They were denied secure tenure in these areas. While the deep sense of humiliation and untold suffering cannot be fully compensated, at the very least, lost dignity can be partially restored by providing for security of tenure.

“Land restitution and security of tenure must be given priority. We are mindful that Parliament’s legislative plate is overflowing. These matters have, however, now become pressing and should be treated with the urgency that they deserve.”

Eight years later, and after a 2013 initiative that essentially vested land administration with traditional councils like the (invalid) 2004 Act was dropped, another legislative effort remains incomplete.

The July 2017 draft Communal Tenure Bill is still in the departmental public comment stage. It has yet to go to Cabinet for approval before it can be tabled in Parliament. And again it has not let go of being in charge of land in communal areas. These councils, headed by traditional leaders, are one choice for a community vote of no less than 60%. Community property associations, frequently disliked by traditional leaders who see these as rival power centres, or “any other entity”, are the other options.

Meanwhile, the Ingonyama Trust, which owns large swathes of land in KwaZulu-Natal, has started converting traditional tenure rights, usually formalised though “permissions to occupy”, to leases carrying a 10% annual escalation. Essentially this is a commercialisation of historic land tenure rights for the benefit of the trust.

King Goodwill Zwelithini ka Bhekuzulu arrives at the Chief Albert Luthuli Hospital in Durban and is received by Deputy President David Mabuza, Chair of the South African National AIDS Council (SANAC), KwaZulu-Natal Premier Willies Mchunu and the Minister of Health Dr Aaron Motsoaledi during the World TB Day Commemoration held in Durban, Kwa-Zulu Natal. (GCIS)

The only recourse for anyone opposed to this is the 1996 Interim Protection of Informal Land Rights Act. Passed to provide legal protection in terms of Section 25(6) of the Constitution to those without secure tenure rights, this temporary measure is basically the only one, 22 years on, for millions of vulnerable South Africans.

Meanwhile, the romanticised view by many in the ANC, and other others, like the IFP, that traditional leaders act as custodians of the land owned by the people, is blown to smithereens by research and grassroots testimony, also in Parliament, of how traditional leaders without consultation, or with limited consultation, determine how land under their control is used, often evicting people to make way for others, including mining companies.

In the North West platinum belt communities have been left broke as mining royalties have disappeared; the public protector’s probe into the D-Account goes some way towards uncovering this. In Xolobeni, on the Eastern Cape’s Wild Coast, the pro-mining traditional leaders and the community, which is advocating for sustainably agriculture and tourism, remain at odds. The dispute – in 2016 Amadiba Crisis Committee community activist Sikhosiphi “Bazooka” Radebe was killed, his murder still unsolved – is now in court.

Photo: The late 'Bazooka' Radebe. (Photo supplied)

As a law that could secure tenure, and a real say in rural land use, for a third of South Africa’s 52-million strong population remains steeped in politicking, democratic South Africa also has yet to get constitutionally compliant expropriation legislation.

It’s not for want of trying. In 2008 the Expropriation Bill was withdrawn when Public Works declined to fix what parliamentary law advisers pointed out as a constitutional defect – lack of recourse to the courts. After revision, the Expropriation Bill was re-tabled in 2013, and passed by both of Parliament’s Houses in 2015. But it was returned to Parliament in February 2017 by Zuma, due to concerns over consultations, particularly with the National House of Traditional Leaders.

That was done. But the Bill, while on the National Assembly legislative calendar, remained unattended, in no insignificant part because of the factional policy proxy battles in the run-up to the ANC December 2017 national conference.

The ANC NEC’s call following its consultative land workshop, that the Expropriation Bill should speedily be passed, creates parliamentary and legislative headaches. As the draft law is before Parliament, Public Works can no longer simply amend it to capture the most recent ANC call for action, particularly in urban areas: expropriation of unused buildings – actually, that’s already possible by getting a court order – land held for speculation, or unused land.

As part of the public hearings that are part of the legislative process, the ANC or someone else could make these proposals for MPs to take on board. Or the ANC could bring another private members’ Bill, although that didn’t really work out on the restitution legislation. But there’s time pressure: Parliament is in recess until mid-August, breaks again for the year-end recess only to return in early February, after another extended so-called constituency period, and rushing public consultations has proven a no-no.

Meanwhile, it has emerged that many ministers, premiers, mayors and others in the ANC fold did not know, or pretended not to know, they already have expropriation powers.

That law could have been used – and its use tested in the courts – even if it is tricky because it does not take into account key redress provisions of Section 25, the property clause, of the Constitution, including public interest, which is defined as part of a national commitment to ensure equitable access by all South Africans, and “fair and equitable” compensation.

Using the courts to test the law was touted as a key government strategy arising from the ANC consultative land workshop and ANC NEC.

It’s somewhat ironic.

When the opportunity arose in 2013 to test the “willing seller, willing buyer” policy in the controversial just short of R1-billion settlement deal for the Mala Mala game reserve on the borders of the Kruger National Park, Rural Development backed out and settled out of court. And by then the willing seller, willing buyer policy had been jettisoned by the ANC, as far back as its 2007 Polokwane national conference. The claim by the Mhlanganisweni community was not disputed.

Instead it was left to labour tenant Philemon Msiza to challenge the issue of compensation in a claim brought by his father who died in the over decade-long saga. And in July 2016 the Land Claims Court determined that market value was not an overriding criterion and ordered a settlement of R1.5-million for the owners, who had wanted R4.4-million.

But ignorance of the law, real or for convenience’s sake in the various power games and patronage networks, also emerges over the Spatial Planning and Land Use Management Act, or Spluma, in place fully since 2015. It is opposed by many traditional leaders because it could mean sharing their powers over land with municipalities. But it also appears to have been largely ignored by provincial and municipal governments, where it’s meant to be a tool to address apartheid spatial distortions that see working-class and social housing erected at cities’ outskirts, away from job, education and other opportunities.

The Act, in its preamble, specifies it’s there “to provide for the inclusive, developmental, equitable and efficient spatial planning at the different spheres of government; to provide a framework for the monitoring, co-ordination and review of the spatial planning and land use management system... to address past spatial and regulatory imbalances”.

It’s a legislative tool that could have been wielded in urban and rural areas across provinces for at least the past three years, as could have been the 2007 Government Immovable Asset Management Act, governing donations, leases and exchanges of state-owned land. Although it does not expressly mention State-owned Enterprises (SoEs), which often own well-situated land, it could be used. However, SoEs have rebuffed such approaches, unless their land is bought at market prices, it emerged in a Public Works pre-budget debate briefing in May.

Land is complex. And too much is drenched in politicking, power broking and patronage – and trapped in governance paralysis.

In the bruising factional ANC policy proxy battle, land expropriation without compensation was at a stalemate at the governing party’s July 2017 policy conference between those arguing it’s possible under the current dispensation and those touting expropriation without compensation as key to radical economic transformation (RET). It was an 11^th hour push by the RET lobby, accompanied by roiling tempers and fisticuffs, that led to the ANC resolution for land expropriation without compensation, qualified by references to food security, agricultural productivity and consultation.

Politics being what it is, it didn’t take long for the EFF to take advantage. Land expropriation without compensation is one of its seven cardinal pillars – and it had always promised to lend its 6% to the ANC’s 62% in Parliament to amend Section 25 of the Constitution.

In late February 2018 the ANC supported an EFF parliamentary motion for land expropriation, having successfully ensured that key amendments that effectively watered down the EFF’s push in line with its national conference resolution.

That parliamentary motion gave rise to the constitutional review committee process, which will hold public hearings across South Africa in June and July 2018. These come against the backdrop of a longstanding argument by lawyers, researchers and others that the “just and equitable” constitutional provisions would allow for a zero rand determination. The public hearings also are set to unfold amid continued politicians’ politicking over land.

The ANC now is describing this process as an assessment of whether a constitutional amendment is needed, not one determining the details of expropriation without compensation. Emphasising illegal occupation of land would not be tolerated; the governing party instead has announced “title-deed Fridays” to hand over these legal documents amid the recent call on its structures in provinces and municipalities to provide serviced sites.

The EFF has upped the ante in Parliament during the Presidency budget vote debate with chants of “Occupy unoccupied land”, before behind ordered out of the House. And it seems to be shifting its goal posts: from expropriation without compensation to what party leader Julius Malema in early May publicly described as “nationalising the land and everything that comes with the land underground‚ not these things on top”, like houses for which bonds would still be valid, though “discounted” by the value of the nationalised land.

There’s nothing to indicate the EFF would change tack. Other political parties, like the DA, which repetitively touts its track record of handing title deeds where it governs, without providing numbers, and the Freedom Front Plus with its insistence that Afrikaners and farmers could not be prejudiced, have in many ways failed to grasp this political tipping point.

Land is set to become a driving issue in the 2019 elections. But politicians’ promises at the hustings are one thing. The hard task of governance is quite another. DM

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