Over the past month, land and property relations have been the focus of the Portfolio Committee on Public works, which has prioritised the completion of the process relating to the Expropriation Bill. Inevitably, the Bill, which seeks to replace the Expropriation Bill of 1975 and gives the public works minister powers to expropriate property, has generated much interest. This interest can be attributed to a genuine desire for solutions to the frustratingly slow and structurally flawed land redistribution programme favoured by the African National Congress (ANC) since 1994.

When the ANC came to power in 1994, black people held no more than 13% of the land as a result of a series of dispossessions, dating back three centuries and formalised through the 1913 Natives Land Act, which was more brutal than any of the dispossession laws that came before it. Aware of this historical injustice, the ANC hastened to design a three-pronged land reform programme and promised to redistribute 30% of the land in the country back to black people by the end of 1999. The land reform programme is premised on three distinct but interrelated programmes; the first is the switching of land tenure to secure tenure rights for those whose rights to land is insecure, which includes farm workers and those residing in the former Bantustans; the second is land redistribution, which aims to make land available to black people who want land for agricultural purposes; the third, and the most politically charged, is the land restitution programme, which directly links the narrative of loss through forceful dispossession to the narrative of restoration through returning lost rights to land to black people.

The government has to date managed to transfer only about 8% of the land back to black people through farms that were previously white owned, at a cost to the state of approximately R26-billion between 1994 and 2014 for the restitution programme alone. By the end of the December 1998, the cut-off date for lodging land claims for the first round of land restitution, about 79,696 land claims were lodged. About 87% of all the claims settled thus far entailed paying land claimants financial compensation, which can be anything between R17,500 and R50,000, and most of the land restitution projects that involved the direct transfer of land back to black people are deemed to have failed. The government has reopened the land claim process, and estimates that more than 400,000 new land claims will be lodged, which will cost the state about R180-billion to settle.

The country’s land reform experience since 1994 points to two fundamental categories of problems that even the enactment of the Expropriation Bill will not be able to deal with. These problems are both conceptual and structural. At a conceptual level, South African land reform has not clearly outlined its purpose and is premised on a half-baked historical account. The first conceptual problem is this: if land reform is intended to redress past land dispossessions, then limiting people to claiming for land they were dispossessed of only from 1913 legitimises pre-1913 land dispossessions, for which there is a compelling amount of historical evidence. The second conceptual problem is that entrenched in Section 25 (1) of the Constitution, which compels the state to pay current white land owners for land targeted for land reform purposes. In one of the Public Works Portfolio Committee meetings dealing with the Expropriation Bill, Public Works Deputy Minister Jeremy Cronin argued that the Economic Freedom Fighters was too mild in categorising apartheid and pre-apartheid land dispossession as land theft, and that the dispossession of black people from their land was of genocidal proportions. This would then mean that the alienation of black people from their land and the concentration of vast chunks of land in white hands is as a result of a gross historical injustice. Laws of natural justice dictate that the dispossessed party should never pay the dispossessor for property that was acquired through criminal acts.

The land reform programme in its entirety, therefore, is based on faulty conceptual grounds, and the Expropriation Bill offers no solutions to what I consider fundamental problems hindering progress in land reform. The problem is not with the Bill itself, but with the constitutional superstructure that legitimises land dispossession by asking the state to pay for land reform, and by secondly delegitimising all dispossessions that predate 1913.

At a structural level, the ANC government has not clearly articulated the kind of outcomes it would like to see from land reform. The approach to date has been focused on replacing white landowners with black ones, to create a class of black commercial farmers. Even this approach is not very well thought through, it does nothing to reform the structure of the agrarian economy itself and position agriculture as the next growth sector through decisive and value-adding land reform. South Africa’s commercial farming sector, comprising an estimated 37,000 members, currently produces 90% of the country’s agricultural output, with the rest coming from subsistence farming. Only 20% of the 37,000 farmers are considered productive, with the rest struggling to make ends meet. In a country where climate-soil combinations leave only 12% of the country suitable for the production of rain-fed crops, and 69% of the land surface suitable for grazing, we should be seriously concerned about who owns South African farmland, what they are doing with it, and how they conduct their farming practices in relation to the need for sustainable management of land resources for this and future generations.

So even if you replace the 37,000 white farmers with 37,000 black farmers, you’d still have an agrarian structure that is not representative, that struggles to compete, and which, over time, will struggle to produce enough food for the country. Add to this the refusal of the state to protect agriculture, exposing farmers to unfair global competition, then you have a serious agrarian crisis in your hands.

These are the challenges that the Expropriation Bill will never be able to solve. What the country needs is to rethink its approach to both the land and agrarian questions, not as separate objectives, but as two complementary imperatives. The physical loss of land, accompanied by the spiritual loss that black people attached to land, can never be replaced by the land reform programme. As an act of justice, the state should compensate all black people for their loss of land over centuries. It must then expropriate all land, without compensation. This would solve the conceptual problems of land reform as a historical redress programme. Then the state should reform the structure of the agrarian economy from large-scale, capital-intensive agriculture to an agrarian structure focusing more on small-scale, labour-intensive, family-sized farming units. This, managed properly, would more than double our agricultural productivity, increase agricultural employment, and produce more food for consumption by households, but still enough food for the export market.

This would link the historical redress ideals of land reform with agricultural-induced development, of which the country is in serious need. DM