Terence Corrigan
The Freedom Charter retains an intense emotional hold on many South Africans, often being presented as a sort of arbiter of what South Africa’s future should hold. This comes out strongly in the recent contribution from Advocate Tembeka Ngcukaitobi (‘The Freedom Charter and the land question’, 12 July 2022).
While the Freedom Charter is an artefact of South Africa’s political and intellectual heritage, it has no weight in law or policy. It is however interesting to note what Adv Ngcukaitobi had to say about the Charter’s vision for landholding. The oft-repeated demand that land should be shared out among ‘all who work it’, and the ‘restriction of land ownership on a racial basis shall be ended’ was not a call for nationalisation. ‘The Charter’s promise was not to end private land ownership, but its racialization,’ he writes.
If by ending ‘racialization’ one means the expansion of opportunities to those hitherto excluded, this is enthusiastically to be endorsed. Adv Ngcukaitobi has argued extensively – as he does in this piece – for a more aggressive approach to land reform. ‘The great debate of our times, of course, is whether there should be expropriation without compensation, explicitly provided for in the basic law of the country, the Constitution.’
The Expropriation Bill, he says, is a ‘promising start’, but is insufficient. His solution is a land redistribution law, described in these terms: ‘What we need is a future looking restorative programme. We need a land redistribution act. We need the act to enable the state to acquire land without paying the exorbitant prices it has been paying. It should provide for a just and equitable formula which applies on a spectrum from zero compensation to more than market value, especially where the expropriated are blacks.’
He continues: ‘We do not need to place land in the hands of the state. Many successful restitution claimants will simply not accept any proposal which seeks to take away the little land rights they have. What they want is greater protection by the state and from the state, not less protection. They are entitled to more secure tenure, not less secure tenure. The promise of the Charter is to subdivide the land to the people who need it, not to give it to ownership and control of state officials.’
His overall approach seems to be that this law would expedite the expropriation of properties for redistribution (with compensation differentiated according to circumstances, among which would be the race of the owners), while also protecting beneficiaries of this initiative from the predations of the state.
Any evaluation of such a law would require an examination of the relevant text, and its specific provisions.
Whether this would be politically possible is open to question. The ANC has shown some enthusiasm for expropriation as a tool for dealing with land reform (at least in theory – in practice, like so much else in the purview of the state, land reform by any means crawls along glacially), but an ambiguous attitude to private ownership and secure tenure.
Indeed, it’s difficult to look at the state of land governance and land policy and conclude that in the eyes of the government and the party, the latitude of the state to redistribute land (and a good many assets besides) and effective control by ‘state officials’ are intimately related.
Ownership – certainly, if one understands by this the holding under freehold arrangements of a piece of property, with title deeds as affirmation – was explicitly rejected for most beneficiaries as a possibility in the land Lease and Disposal Policy of 2013. (Only for those able to farm on a substantial commercial basis, and then only after decades, would a sale be considered.)
The state took this line in the case of David Rakgase, who turned to the courts in exasperation and frustration after the state reneged on an agreement to sell him the farm he was using. The government’s court papers said that the existing policy was based on the ‘principle that black farming households and communities may obtain 30-year leases, renewable for a further 20 years, before the state will consider transferring ownership to them.’
The timeframes have reportedly been revised to reduce the length of time within which state tenants might qualify for ownership, although this was done without much fanfare.
Indeed, during the Parliamentary debate that kicked off the enquiry into whether Section 25 of the Constitution should be amended, former land affairs minister Gugile Nkwinti was clear that title deeds would not be on the table. Rather, he said ‘a progressive revolutionary government ought to then have land and allocate it to people.’
(Puzzlingly, Adv Ngcukaitobi has previously spoken in terms that suggest that the government is fulsomely in favour of title deeds, and that they are in fact a poor idea.)
The idea that all land should be in the ‘custodianship’ of the state has come up repeatedly, including as a recommendation of the 2017 land audit (a document to which Adv Ngcukaitobi refers).
And this is one ground on which the Institute has been so critical of the Expropriation Bill. Among other things, the Bill’s definition of expropriation indicates that deprivation of property will not meet the definition expropriation; the state will need to take ownership to do so. Where it takes property as ‘custodian’ of the nation, this will not constitute expropriation, and no compensation need be offered.
Adv Ngcukaitobi seems alive to the problems of a dysfunctional and venal state exercising its writ over land holdings (particularly, as he implies, over those owned by back people). He seems less so to how the Expropriation Bill might in fact be used in this way.
He is also aware of the problems besetting land reform. The Institute has put forward proposals to help it along in both urban and rural settings, so as to enable beneficiaries to take advantage of their holdings without destroying property markets or disincentivising investment.
Finally, Adv Ngcukaitobi raises an issue that has featured from time to time in official discourse: that even when restitution claims have been settled, beneficiaries have often taken financial compensation. This has retarded the ‘restoration’ of land – or perhaps, more accurately described, the movement towards demographic representivity in land ownership. (This was seen as a goal in the report of the Presidential Advisory Panel on Land Reform and Agriculture.)
He writes: ‘The Charter’s primary promise was that South Africa belongs to all who live in it, black and white. Does South Africa in fact belong to all, when Africans are locked out of ownership of land?’
This statement is questionable. Africans were indeed unjustly deprived of rights in land ownership at the time in which the Freedom Charter was written. For a combination of reasons having to do with historical legacy AND the choices made by the government since 1994, hurdles to property ownership remain in their path. These need to be dealt with.
But it is a leap of logic to come to the (implied) conclusion to that rhetorical question. Land ownership is not a precondition for belonging or participating in a society, certainly not in the 21st century, or in a society that is two-thirds urbanised. To pitch it as such is to romanticise it, and to drive resolution of the country’s problems further from reach. (Interestingly, Adv Ngcukaitobi makes the observation that land is often used as a metaphor for other demands, such as housing – yet one can’t help thinking that he is making a similar error.)
There is a considerable body of evidence to suggest that land – particularly in the agrarian sense – is not a major demand. Most South Africans view their interests better served elsewhere. Given South Africa’s level of development, this is unsurprising. We may well mourn the processes that inflicted such damage on the African peasantry and excluded many who might otherwise have made a career in farming. But corrective measures must be pragmatic, not ideological.
And South Africa’s future may be found only in the future, not in the past.
Terence Corrigan is Project Manager at the Institute of Race Relations. Readers are invited to support the IRR by sending an SMS to 32823 (SMSes cost R1, Ts and Cs apply).
https://www.politicsweb.co.za/opinion/some-thoughts-on-land-policy
