Research and Policy Brief: ‘Green monster’ could wreck both property rights and the rule of law - 1st September 2011.

The green paper on land reform, finally made public on 31st August 2011, is part of a new assault on the Constitution and the rule of law.

On the same day as the green paper was released, the deputy minister of correctional services, Mr Ngoako Ramatlhodi, let the cat out of the bag when he said the African National Congress (ANC) had made ‘fatal concessions’ at the time of the political transition. Given the balance of forces at the time (including the collapse of the Soviet Union), it had accepted a Constitution which ‘emptied the legislature and executive of real political power’ and ‘immigrated (sic) the little power left [to them] to civil society and the Judiciary’. [The Times 1 September 2010]

Mr Ramatlhodi seems to forget that the 1996 Constitution was drafted by an elected constituent assembly dominated by the ANC. In addition, it reflects a very wide-ranging consensus that the new South Africa should be a constitutional democracy in which Parliament and the Cabinet would have to act in accordance with constitutional principles and provisions, failing which both law and executive action could be set aside by a Constitutional Court charged with the task of upholding the Constitution at all times.

Already the ANC has white-anted the Constitution in various ways, and particularly via its strategy of cadre deployment. The green paper on land reform goes much further, for it seeks to oust the jurisdiction of the courts in two key spheres
• in determining the amount of compensation payable on the expropriation of land, a task it gives to a state official (a new valuer-general) in place of the courts;
• in deciding whether title to land should be ‘invalidated’, a job it gives to a state bureaucracy (a new land management commission).

The green paper also seeks to empower this commission to ‘seize or confiscate land gotten by fraudulent or corrupt means’. The meaning of this criterion is unclear, but the green paper perhaps supplies a hint when it suggests that land acquired in the colonial and apartheid era was lost to black people ‘through force or deceit’.

The green paper also suggests that more and more land will come under state ownership. First, by introducing ceilings on land in private ownership, it implicitly requires commercial farmers with more land than the maximum to dispense with the ‘excess’. The State could decide to expropriate ‘excess’ land at valuations decided by the valuer-general. Even if this does not occur, many farmers might find themselves obliged to divest themselves of ‘excess’ land at the same time, which will flood the market and drive prices down. Since the only buyer to whom the ceilings will not apply will be the Government, the State will be able to take advantage of artificially low prices to buy up large tracts of land.

In addition, land already belonging to the State will no longer be available for sale to private owners, while those wishing to farm on it will have to be content with leasehold tenure. The case of Ms Veronica Moos shows how insecure such tenure could be. For Ms Moos was an emergent farmer who was illegally evicted from her leasehold land by former agriculture and land affairs minister Ms Lulu Xingwana, who arbitrarily decided that Ms Moos was not using the land well enough, even though inspection showed it to be well maintained and modestly productive.

Moreover, land in communal areas will not be available for sale to individuals either. Instead it will remain in communal ownership, although people living on it may in time acquire ‘institutionalised use rights’ of uncertain content. Communal land will thus remain in public ownership, while land owned by foreigners who breach new conditions of title will be forfeit to the Government and is likely to end up in state ownership too.

The upshot is that more and more land will be owned by the Government – and that more and more people will occupy land at the pleasure of the State. Instead of helping black South Africans to experience the security of land ownership, the ANC seems intent on preventing them from ever acquiring this foundation for economic and political independence.

People outside the agricultural sector might see the green paper as posing problems for farmers alone, but this is a mistake. The green paper uses the emotive land issue to bypass the Judiciary and establish a new norm: that the amount of compensation payable on expropriation can be decided by a state official (the valuer-general) and that title to land can be set aside by a new bureaucratic body, the land management commission.

Once this norm has taken root, there will be little to prevent it being extended to mines, banks, firms, shares, or any other asset.


- Anthea Jeffery

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