A decade after the first version of the Expropriation Bill landed in Parliament in 2007, the law to allow expropriation in the “public interest” and for “public purpose” with “just and equitable compensation” as outlined in Section 25 of the Constitution has yet to be finalised.
In 2008 the first version of that legislation jettisoned the willing seller, willing buyer principle in favour of just and equitable compensation which was withdrawn over concerns that it would not pass constitutional muster over its lack of recourse to the courts. In March 2015 a revised version finally came to Parliament, and was adopted in May 2016. But after eight months in the presidential in-tray in February 2017 President Jacob Zuma, concerned about the public consultation process, returned it to the national legislature.
The legislative journey of the Expropriation Bill illustrates the lack of clarity and determination, beyond election or party conference campaigning, of the governing ANC when it comes to land.
Like the 2005 Land Summit, held under the government’s auspices, the 2007 Polokwane ANC national conference rejected the willing buyer, willing seller principle. The ANC’s Polokwane gathering called for “strong interventions in the private land market combined with better use of state land”, and resolved: “All legislation pertaining to expropriation must be aligned with the Constitution”. This was reiterated at the 2012 Mangaung ANC conference which resolved to “replace the ‘willing buyer, willing seller’ with the ‘just and equitable’ principle in the Constitution immediately where the state is acquiring land for land reform purposes” and for “expropriation without compensation on land acquired through unlawful means or used for illegal purposes having due regard to Section 25 of the Constitution”.
This still has to happen. Instead, turning ANC conference resolutions and related government policy into law has moved at a snail’s pace.
In 2011 the Green Paper on Land Reform set out the need for a valuer-general so the state has an independent land values assessment, a ban on foreign land ownership in favour of long-term leases, ceilings on agricultural land ownership, and a differentiated system of tenure security.
Six years later, a draft Regulation of Agricultural Land Holdings Bill is now subject of public comment until May 17. It limits the size of farms dependant on local circumstances, allows the expropriation of land in excess to such ownership ceilings and bars foreign nationals from owning land.
It also proposes a land commission to register owners’ race and gender so government can know who owns what as the Deeds Office does not capture such details. In South Africa, 79% of land is privately held, while government owns 14%. The status of 7% of land could not be determined, according to official statistics following a state land audit started in 2010 on the back of a Polokwane ANC national conference resolution.
Rural Development Minister Gugile Nkwinti at a media briefing late last month indicated that drafting the Regulation of Agricultural Land Holdings Bill had been “a very sensitive matter”. Since being tabled in Cabinet three years ago there had been “lots of debate”, especially as Public Works and the South African National Defence Force (SANDF) own large tracts of land. “Hence, we decided to do agricultural land only,” he said.
Daily Maverick also understands that at least some of the Cabinet discussions dating back three years revolved around the definition of erven, and what happens when people receive state-subsidised houses, but not the title deed to those homes, or who owns the land in sectional title deeds.
Although the office of the valuer-general proposed in the 2011 Green Paper was established after Parliament passed the Property Valuation Bill in early 2014, Daily Maverick understands amendment legislation is due to remedy, for example, funding for that office.
All this talks directly to the legal and administrative complexities of land and its ownership, but which are often obscured in the political – and populist – rhetoric on land, notwithstanding the need to redress dispossession and apartheid-distorted ownership patterns. Meanwhile, much of the focus by opposition parties, liberal think tanks and agricultural organisations has been on agricultural land, often by seeking to exclude it from land reform by invoking threats to food insecurity.
Since 1994 land restitution and redistribution has been a key central government programme. Initially government set a target of redistributing 30% of land, or around 86-million hectares, to black South Africans by 1999. The deadline was extended to 2014, but missed again. Official statistics indicate a total of 7.9-million hectares have been redistributed.
The restitution process is mired in backlogs, lack of resources, challenges of co-ordination with other departments such as agriculture, environmental affairs and water and sanitation to support land beneficiaries – and politicking.
The year 2012 saw a push in land restitution-focused electioneering rhetoric – first in the ANC’s January 8th Statement, which traditionally sets the priorities for the year, then by the Mangaung ANC national conference. Shortly before the 2014 elections, Parliament adopted the Restitution Land Rights Amendment Act to reopen the claims window. The initial period closed on December 31, 1998 when around 80,000 claims had been lodged, but sustained criticism ensued as thousands of families had been left out in the cold due to lack of awareness, administrative hurdles and other issues.
While tens of thousands of new claims were submitted between July 2014 and 2016 to the Commission on Restitution of Land Rights (CRLR), the Constitutional Court suspended the processing of new applications because of a constitutionally invalid public consultation process until the outstanding claims dating back to 1998 were finalised – or Parliament passes a new law by July 27, 2018. A notice in the Government Gazette on Thursday called for public comment on such new legislation.
However, still outstanding are thousands of claims from the original claims period. According to the 2015/16 Commission on Restitution of Land Rights annual report, 2,660 were meant to be researched ahead of settlement and then finalisation, but only 2,541 were actually researched.
Elsewhere on the land reform front, aside from the proposed land commission, there is a planned community property associations (CPA) registrar and steps to strengthening communally owned property governance under a draft CPA Amendment Bill approved by Cabinet in November 2016. First raised in the 2011 Green Paper, the land rights management board advising the minister and director-general on tenure security in commercial farming areas, rural freeholds and communal areas is now part of the Extension of Security of Tenure Amendment Bill, currently being finalised in Parliament where it landed two years ago.
It remains unclear how these structures would talk to each other, if at all, and how they ultimately relate to deeds office records.
Meanwhile, legislated tenure security for millions of South Africans in communal areas remains outstanding. Seven years ago the Communal Land Rights Act (Clara) was declared constitutionally invalid over how it was processed by Parliament. It has yet to be replaced.
Communal land tenure is politically tricky as it involves the exercise of power by traditional leaders, a customary key ANC support base, and the interests of rural communities generally and, specifically, community property associations that are often viewed suspiciously by established power elites.
GroundUp last week reported that residents of Bhungeni near Butterworth, Eastern Cape, want to return to the land from which the Fingo Tribal Authority evicted them in 2011 to make way for a shopping mall development that has yet to happen. In late 2015 two landmark court rulings upheld traditional communities’ right to determine their own practices, and recognised living customary law. The Constitutional Court upheld the right of the Bakgatla-Ba-Kgafela CPA in the North West to democratically control its land restitution case after a dispute with the local traditional leader. And a full bench of the Eastern Cape High Court ruled in favour of the Cala Reserve Community in the Eastern Cape to appoint its own headman, against the opposition of the provincial government.
Land and Accountability Research Centre researcher Philile Ntuli said currently communal tenure centres on the Interim Protection of Informal Land Rights Act, a temporary measure that has to be renewed every and which was put in place in 1996 pending permanent land tenure legislation. “(The Act) is useful in protecting customary land rights, particularly in the rural former homelands, because it obliges that no person be deprived of any informal right to land without his or her consent,” said Ntuli. “Living customary law, in practice, is also an effective mechanism to protect communal land tenure rights.”
Having in mid-2013 proposed one title deed for each communal area held by the relevant traditional council, the Rural Development Department’s most recent effort at legislated communal land tenure came at its national tenure conference in September/October 2016. There it introduced the CPA Amendment Bill and a Communal Land Tenure Bill. That draft tenure legislation, according to a departmental presentation at the conference, would establish various structures for “democratic and accountable land governance”, including the recognition of communities to democratically control their common property, and strengthen tenure rights, equitable land access, food security and inclusive development.
The status of the Communal Land Tenure Bill remains unclear: neither it nor the CPA Amendment Bill, which Cabinet approved in November 2016, appear on Parliament’s most recently published record of Bills before the national legislature.
Ntuli said the state had an “increased and urgent responsibility to ensure transformation through strong legislative instruments that protect the constitutional rights of informal land rights holders” – even as post-apartheid land legislation is complex, given a neoliberalist property framework, but also a constitutional duty to protect precarious and informal rights. “Against the broader context of globalisation, informal land rights are at constant risk of deprivation and exploitation through corrupt relations between state actors, some traditional leaders, and multinational corporations.”
Yet the ANC discussion documents for its upcoming policy conference from late June hold little new on land. The economic transformation document acknowledges that the present communal land tenure system is helping reinforce rural communities’ marginal status. On expropriation, it says the constitutional commitment to just and equitable compensation for land reform acquisitions should be codified, replace market-based land valuations, and that this process “must be facilitated and accelerated by the passing of updated expropriation legislation by Parliament”.
Against this background stands Zuma’s call for expropriation without compensation in his opening address to the National House of Traditional Leaders (NHTL) on March 3, days after ANC MPs voted down the EFF’s proposal that it would give its 6% in Parliament for a constitutional amendment to allow expropriation without compensation.
“We need to accept the reality that those who are in Parliament, where laws are made, particularly the black parties, should unite because we need two-thirds majority to effect changes in the Constitution,” said Zuma then. Some three weeks later in his response to the NHTL debate, he elaborated that “the goal of radical socio-economic transformation in relation to land reform” meant an audit of precolonial land ownership after which “a single law should be developed to address the issue of land restitution without compensation”.
This approach has found support from, among others, within Zuma’s home province of KwaZulu-Natal. “Our proposition is expropriation of land with no compensation,” provincial ANC chairperson Sihle Zikalala is quoted as saying by Bloomberg. “If we don’t agree on expropriation, we will have to take a view of ensuring that we mobilise for a referendum.’’
Such fault-lines also emerged at the last ANC NEC, hence the decision for a special land meeting. A date has yet to be set, with two months to go before the policy conference.
Linking radical transformation and land is not new. The 2012 Mangaung ANC conference called for “a radical and rapid break from the past without significantly disrupting agricultural production and food security”.
Today’s expropriation without compensation as radical transformation, and land as the centre of economic power, may hit all the right political notes in some of the ANC’s fractious circles ahead of an elective conference. But the lack of meaningful land ownership transformation 23 years into democracy is firmly the doing of the ANC government’s slow pace at best, and inaction at worst, of turning policy into implementable law. Slogans now will not change that. DM
Photo: A Blackheath resident lights a cigarette during a protest in their Cape Town neighbourhood against a plan by the South African National Roads Agency Limited (SANRAL) to move families evicted from shacks in Lwandle to a piece of land in their area on Tuesday, 10 June 2014. Picture: Nardus Engelbrecht/SAPA
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