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Land question: what is the answer?

3 Aug 2018
The Mercury

It is up to us, in academia, civil society and social movements, to produce transformed land relations, writes Professor

IN 1993, PRESIDENT Cyril Ramaphosa, who was then the secretary-general of the ANC, spoke at the Land Redistribution Options Conference in Joburg, where a future plan for land reform was being thrashed out. He said in his opening remarks: “The massively unequal distribution of land is not merely an unfortunate legacy of apartheid; it is the totally unacceptable continuation of apartheid.”

Whereas there were 60 000 commercial farmers in the mid-1990s, with policy changes and agricultural deregulation, this number has now shrunk to only about 35 000, says the writer. Looking back now, from 2018, this statement stands as a damning indictment of the ANC’s track record in government, because we can still say that this unacceptable situation has continued.

Public hearings have exposed the extent of division and grievance:

The public hearings process that is under way, convened by Parliament’s constitutional review committee, has exposed the extent of division and grievance on questions of land.
Land is simultaneously a material issue about poverty and inequality (who owns assets in our economy) and a symbol of identity, home and citizenship.
We need to acknowledge that the land question is not just a matter of farming, or the economy.
It is something visceral and raw, and what we have seen in recent weeks and months is that South Africans are deeply polarised – and this is overwhelmingly along racial lines.
We see, time and time again, white, mostly male, farmers arguing against expropriation without compensation. We see, time and time again, old black women and men speaking of the hardship and pain of land dispossession, and of what it has meant in their lives.
And young black women and men talking about how this loss continues to affect them and how the poverty it produced continues to shape their lives, even when they have moved to the cities. We are talking past one another.
There is anger, and there is fear. But there is also some hope of something different to come. What is that something?

We must acknowledge our intergenerational inheritances:

Let’s start with this: what can we agree upon? Land dispossession is a basis of racial inequality that has been inherited, and continues to be perpetuated, across generations.
There has been an intergenerational inheritance of poverty for those who lost land and also livestock, homes and opportunities, and who were forced into demeaning and exploitative migrant labour and Bantu education.
The effects of all this are still felt by our current generation. There has also been an intergenerational inheritance of privilege, by those who got land, accumulated wealth, invested in education, got good (and protected) jobs, and amassed wealth, now often far away from the land itself.
Giving the land back by itself will not automatically undo all of what has been passed down to us by these generations. But land reform must happen. This surely is our common ground, and not in dispute.
The disputes are elsewhere, and later I will identify seven questions on which we might well disagree.

What is the government’s track record on land reform?

What was land reform meant to do and what has actually happened? Coming into government in 1994, the ANC promised to start by redistributing 30% of commercial farmland within the first five years, but by 1999 less than 1% had been redistributed.
Here we are, 24 years later, and about 9.7% of commercial farmland has been acquired or redistributed (though there are some doubts about official statistics; the real figure could be lower). There has been no national monitoring programme to say what the outcomes have been, but from scientific case studies as well as media reports and anecdotal evidence, we know that many of those getting land have been unable to use it effectively to improve their lives – for two reasons. One is the imposition of inappropriate business plans that have attempted to replicate a commercial model of farming, and the second is an absence of appropriate support, itself the result of the dismantling of the institutions – marketing co-operatives and funding institutions – that built up white capitalist agriculture over the past century.
The problems relate not only to the pace of reform, but also its inadequate outcomes and wider policy context.
The high-level panel of 20162017, appointed by Parliament and chaired by former president Kgalema Motlanthe, found that the state has mismanaged land reform; there has been poor policy and leadership, weak institutions, low budgets, and corruption. It explicitly found that the Constitution was not to blame for all this. But as we now know, the popular view is that there should be a change in the Constitution.
Most people have not read or engaged with the report. The report depicts a state hostile to the interests of poor; shoring up private ownership and chiefly powers over the interests of the majority, and in violation of the Constitution.
The budget for land has never exceeded 1% of the national budget, and now land reform accounts for just 0.4% of it. Bear in mind that a large proportion of the budget is not for buying land, but for operating costs, including paying the salaries of civil servants. Political priority must mean an increase in the budget.

The pace of land redistribution has declined from about a half million hectares per year at its zenith in 2007/08, to one-tenth of that in
The problems relate not only to the pace of reform, but also its inadequate outcomes and wider policy context
2015/16. This has nothing to do with the Constitution; it has been a political choice to dismantle land reform over the past 10 years.

Society has been changing:

Meanwhile, society has been changing, and one of the great changes has been urbanisation. We now are 62% urbanised. So, the land question is no longer a purely rural or agrarian issue, but of course also an urban one.
Change has been under way in the rural areas, too. Whereas there were 60 000 commercial farmers in the mid-1990s, with policy changes and agricultural deregulation, this number has shrunk to only about 35000, and now there are more companies than individuals owning farms.
Further, more than half of all farmland in South Africa has been transacted since 1994. This means that while some who own the land got it through colonialism or apartheid, most did not.
A lot of the new owners are companies rather than white families. Multinational companies, pension funds and others are among the growing owners of farmland.

We are moving backwards:

So, doing more of the same is not going to be the solution. From available data, we estimate that the scale of forced evictions of poor and black people from the land is greater than the scale of land redistribution – and of course those being evicted and those getting land are normally not the same people.
In the first decade of democracy, more than 2million people were displaced from farms, of whom 940 000 people were forcibly removed from farms. Overall, this means that we are moving backwards in terms of black people’s access to land.
In reality, as a society, we are engaged in an anti-agrarian reform. And an anti-land reform. Fewer, richer people, mostly big companies, are coming to own most land, while workers continue to be expelled from farms.

We need an entirely new vision and plan – also for communal areas.

The plan must recognise that the land question is not restricted to commercial farming areas: people, especially women, in communal areas, have insecure rights to land.
Many people are losing their land rights because of deals between the government, chiefs and mining companies. We see this in the platinum belt in North West, where corrupt deals have been struck, over people’s heads, leading them to be dispossessed – while others harvest mining royalties. We see the same threat to the community of Xolobeni in the Eastern Cape, which is resisting forced removal.
They don’t want expropriation and, if expropriated, they want to reach agreement on compensation before being removed from their land. Here is the real politics of land in our country, in which it is mostly poor and black citizens whose property rights are under attack.
Here, in the communal areas that make up 13% of the land, there has been no land reform, only an interim law, leaving 30% of our people, 22million people, without secure rights.
Growing commercial interests in these areas have spurred corrupt deals, prompting Motlanthe to refer to chiefs as “village tinpot dictators”.

So, there is not one land question. There are multiple questions: urban and rural, and even within the rural, between the commercial farming areas and the communal areas.

The land questions broadly relate to questions of access (who should get the land) and tenure (what rights people should have).

We mean different things by expropriation without compensation:

My view is that while the ANC and EFF voted together in Parliament in February to appoint a committee to look into amending the property clause to enable expropriation without compensation, this moment of convergence was an illusion. They never agreed on what expropriation without compensation means, and how it would be applied.
The ANC resolution at its 54th elective conference in December last year said that expropriation without compensation should be “one of the key mechanisms available” to the government (see handout 2, paragraph 15). It did not say that the property clause would need to be amended to achieve this. Notice that it does not call for any change to the Constitution.
It provides no reason as to why expropriation without compensation is needed, or what problem it would solve. It insists on certain caveats, like there must be further investment in the economy, and land reform must not damage agricultural production or food security (paragraph 16).
It is also very moderate, focusing only on unused and under-utilised land, or speculative or indebted land (paragraph 17). It does not target productive farms or valuable urban land. The EFF, in contrast, has been consistent in calling for nationalisation – the term “expropriation” is misleading as in fact what is meant is confiscation of everyone’s property.
If we consider what the Constitution says, the hearings have actually asked the wrong question of the wrong people

The hearings:

If we consider what the Constitution says, and what the government has done, the hearings have actually asked the wrong question of the wrong people. The question should have been posed to the government: why have you not used your powers to expropriate land, including with no compensation? Instead, citizens have been asked about amending the Constitution.
Last Friday I was on a panel at a colloquium convened by Professor Lungisile Ntsebeza at UCT, where these issues were debated, and I agreed with Professor Fred Hendricks of Rhodes University that those of us who advance land reform should thank the EFF for putting the land question centre-stage in our politics. While the property clause might be a scapegoat and deflect from the real issues, the debate can be productive, and open up opportunities for us to re-imagine a different future.

The current conjuncture:

On Tuesday evening, the president in an address to the nation – as president of the ANC – announced that the ANC would promote an amendment to the property clause.
What was surprising was, first, the timing, in that he pre-empted the findings of the constitutional review committee process currently underway.
Second, he said that constitutional amendment was not needed, since it was already possible to expropriate land without compensation, as long as you could justify this to be just and equitable.
The Constitution is not the problem. In fact, he took responsibility for failure. Third, he went on to say that even though it was not needed, the ANC would support constitutional amendment.

One big question now is: what would a new version of a property clause look like?

We can’t have no property clause, given that it provides the legal basis for all land reform. Should it allow discriminatory law or arbitrary deprivation of property for all South Africans?

Changing the Constitution, by itself, will not make one iota of difference, given that the Constitution has not been used. The question is the politics. What alternative wording would you propose?

At the same time, our problem in South Africa is not primarily one of production; it is one of distribution. Similarly, with land, our primary problem is not how to get the land, it’s who to give it to.
None of these depend on expropriation without compensation. They have nothing to do with how the land will be acquired.

A final proposition:

Should we as South Africans think that change will come from above? It will probably come from below, from society rather than the state.
The law is an enabler, but by itself won’t produce transformed land relations. It is now up to us – as allies in academia and civil society and social movements – to do this.
Finally, I am not interested in whether or not the Constitution changes.

I am interested in what land reform we pursue. I think there are three dimensions to this:

First, building clearer rights for the state to expropriate without compensation and clarifying policy on when, where, how, why, who. A new Expropriation Bill is needed; one is currently in Parliament and should be amended and expedited.
Second, and as a counterpart to this, and because we cannot always trust the state, which must be pushed to advance the interests of the poor and needs to be held back from allowing elites to capture benefits, we need to think about building the rights of citizens to hold the state to account through a Redistribution Bill.
Third, building alliances within and beyond universities, between academics and students, civil society organisations and social movements. What could this look like? Should we have teach-ins? The role of universities and intellectuals is to add on to the anger with analysis. How do we build this together?

Or something else? Where does your politics, your intellect and your imagination, take you?

I will leave my input here, with an open invitation for you, to come back with your responses to my questions, and your suggestions as to what you think should be done.

How can academics and students have better conversations about land?

How can and must we contribute to society, and stand in alliance with society, rather than separate from it?

Hall is a professor at the University of the Western Cape’s Institute for Poverty, Land and Agrarian Studies. This is an edited version of a public lecture he gave on the land issue at the university this week.