In the light of a land reform programme whose progress has been described as tardy at best (Hall & Kepe, 2017), to a total system failure at worst (High Level Panel, 2017), the ANC decided late last year to acquiesce to pressure from the EFF and move towards land expropriation without compensation. This decision was ratified by newly elected President Ramaphosa during the State of the Nation address in February 2018. But expropriation without compensation is considered unconstitutional, so a Constitutional Review Committee has been established to investigate whether and how the Constitution should be changed.

In keeping with constitutional obligations, the Constitutional Review Committee has called for comments on the necessity of and mechanisms for expropriating land without compensation. In particular, the committee is tasked as follows:

• to review Section 25 (and other sections as necessary) of the Constitution to make it possible for the state to expropriate land in the public interest without compensation, and

• to propose constitutional amendments regarding the kind of future land tenure regime needed.

I reject the necessity of the first task for three reasons.

First, the Constitution is not at fault for the tardy progress regarding land reform. Second, the Constitution has not been tested regarding the provisions for expropriation. And third, the recommendations of the High Level Panel (2017) have not been addressed. For these reasons, the call for expropriation without compensation is premature.

If it can be shown that the recommendations of the High Level Panel have been seriously considered, and if the provisions for expropriation already in the Constitution have been thoroughly tested, and if the root causes of the failure of land reform are addressed, and if there is still a problem with the pace and delivery of land reform, then and only then will I support the call to amend the Constitution.

The Constitution is not at fault

The call for expropriation without compensation is a reaction to the general failure of the land reform programme to live up to expectations. It is not the Constitution that is at fault. The Constitution is being used as a scapegoat for government’s (and especially the Department of Rural Development and Land Reform’s) ineptitude in this regard.

There are (at least) two reasons for the poor performance of the land reform programme. The first is mismanagement and corruption, and the second is an inappropriate theoretical basis.

Mismanagement and corruption on the part of the DRDLR are at the heart of our current predicament (Hall & Kepe, 2017; van Zwieten, 2017a,b). From interviews I have conducted with key stakeholders (yet to be published), it is apparent that many people in positions of power are looking first to their own needs and second (if at all) to the needs of those they serve.

Farms are not being transferred to those in need but are instead going to DRDLR officials and their cronies. When farms are transferred to the proper beneficiaries, they are thrown into the deep end with no support or education (Xaba & Roodt, 2016). Many of the farms acquired for redistribution are marginal or failed commercial farms. The commercial farmers see land reform as an easy way out of their predicament. Beneficiaries are then lumped with a farm that doesn’t work, and no training or support on how to make it work.

Lastly, communities are being tasked with farming collectively. Anyone who knows a commercial farmer knows that it is an individual business. Farmers tend to be private people. Lumping a group of individuals together into a Community Property Association (CPA) and expecting them to become commercial farmers, when they don’t have sufficient training or support, and most of them don’t want to be farmers anyway (Cronje, 2015), is a recipe for the disaster we now sit with.

The second reason that it is not the Constitution’s fault that land reform is under-performing is that the underlying theory and associated methods employed by the state to effect land reform are misaligned to the context in which they are being applied (Cousins, 2016). There is an over-reliance on land titling theory (de Soto, 2000), with concepts of ownership inherited from our colonisers (Banda, 2011; Joireman, 2011). This is despite calls for decolonisation and overwhelming evidence that land titling theory does not work in sub-Saharan Africa (Platteau, 1996; Cousins et al., 2005; Cousins, 2017).

Experts speak of the ‘mismatch’ between the normative values informing development and legislation on one hand and the normative values informing local practices on the other hand (Hornby et al., 2017; Kingwill, 2017). The latter are increasingly being known as ‘social tenures’ (Hornby, 2017). These off-register rights and tenure systems should be recognised and protected in laws such as the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA). As per the High Level Panel recommendations, IPILRA needs to be strengthened and made permanent.

Before we move to change the Constitution, therefore, issues of mismanagement and corruption within the department responsible for land reform should be addressed. And the underlying theory and methods informing decisions around land reform need to be interrogated for their applicability to the South African context.

The Constitution has not been tested

The so-called ‘property clause’ was inserted into the Constitution precisely to protect against the kinds of unethical deprivations that occurred during the apartheid era. I argue that it is, therefore, a foundational principle of the Constitution. Changing it would require a 75% parliamentary majority (Mzwakali, 2018).

Section 25 reflects the spirit within which the entire Constitution was conceived and upon which our young democracy rests. To change it will strike a mortal wound to the heart of our nation. It is in this spirit of forgiveness and reconciliation that we have survived so far. The democratic government recognised the need to avoid tit-for-tat, and so Section 25 begins with the assertion that “No one may be deprived of property … and no law may permit arbitrary deprivation of property”.

This is followed immediately with sub-section 2, which allows for expropriation in the public interest, subject to an indeterminate amount of compensation, either “agreed to by those affected or decided or approved by a court.” Sub-section 3 calls for compensation to be “just and equitable, reflecting an equitable balance between the public interest and the interests of those affected”. Sub-section 4 clarifies that the public interest includes but is not limited to land reform.

President Cyril Ramaphosa’s assertion during the State of the Nation address that expropriation without compensation will only be done in a way that ensures food security, means there is a commitment to the public interest, because food security is in the public interest.

To date, Section 25(2) and (3) have not been tested. Let us first test the balance between public and private interests regarding compensation, before jumping to constitutional amendments. It is clear from my reading of 25(2) that where the interested parties cannot come to agreement on the amount of compensation, that a court may decide on the amount. Weighing all the evidence, the court may decide on an amount that is far below market value, or even zero. No compensation would probably be challenged in terms of 25(3), but to bring about land reform in the public interest, we may not need to go that far.

The High Level Panel Report

The Speakers’ Forum is to be commended for commissioning the High Level Panel on the Assessment of Legislation and the Acceleration of Fundamental Change, chaired by former president Kgalema Motlanthe. This was a courageous undertaking, because it has exposed many shortcomings of our government. The Panel found that, despite 25 years of democracy and extensive legislative reform, the ills of the past are being reproduced in post-apartheid South Africa.

It is the poor and marginalised living on so-called communal land who are the most vulnerable. The Communal Land Tenure Bill, the Traditional Leadership and Governance Framework Act, and the Traditional Courts Bill all entrench the feudal nature of communal rights. Again, it is not the Constitution that is at fault. The Constitution highlights the inequity of people living on tribal land as subjects of a chief, instead of as citizens of the state (viz. Section 3).

The Panel also found that weak outcomes reflect a lack of political will. Policies have shifted focus from being pro-poor to pro-elite. Again, this is not a fault of the property clause in the Constitution, but instead reflects poorly on government and especially the DRDLR. What is required is an equitable, unitary, overarching framework for land reform. There are currently too many policies and laws, some of which are contradictory (Loate, 2014; Donnelly, 2015; Weinberg, 2015). My own research points to the need for one cohesive, all-encompassing land policy that recognises and respects existing land rights and tenure systems, with associated legislation flowing from it. The Panel suggests a Land Framework Act and a Land Records Act to this effect. This was the strategy adopted in Mozambique when they drafted their Land Policy and Land Law in 1997 (Tanner, 2002). South Africa would do well to learn from our neighbours.

Future land tenure regimes

Finally, on to the second task of the Constitutional Review Committee: the only references in the Constitution to tenure associated with property are in Section 25(6):

“A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.”

As mentioned previously, there is a need to recognise and protect “social tenures”. These reflect living customary law (Bennett, 2008; Diala, 2017) and should be promoted as equal to ownership. IPILRA goes some way to achieving this, but a more overt recognition of existing rights to land will go a long way to securing land tenure for people living on, or identifying with, the so-called communal areas. This is an important concern, because some researchers estimate that these people make up at least 60% of the population of South Africa (Hornby et al, 2017).

In Section 9 of the Constitution, the principle of equality is laid down. Everyone is to be treated the same and there may be no unfair discrimination on any basis. Considering the plight of people living under tribal authorities on so-called communal land, the state is currently in contravention of this section of the Constitution. As stated above, such people are repeatedly being treated as subjects of a chief and not as citizens of the state. They are being denied the freedoms offered to those living under the formal system of laws.

So, no, the Constitution does not need to be amended regarding the kind of future land tenure regime needed. All that is needed is for existing land rights and tenure systems to be acknowledged as equal. This can be made explicit in a land policy, as was done in Mozambique. It does not need a constitutional amendment.

To sum up, it is my understanding that there is no need to amend the Constitution yet on either ground. In the first instance, there is nothing in the Constitution that is causing the poor performance of the land reform programme. Such poor performance is the fault of those in positions of power within the DRDLR and other organs of state, who are not doing their duty properly. It is also the fault of those laying down policies and laws, because they are not listening to the experts who are advising them. Such experts made up the panel of experts on the High Level Panel. Considering and implementing their recommendations for land reform is an obvious starting point to getting land reform back on track. Finally, I agree that there is a need for “future land tenure regimes” to be explicitly defined. I reserve comment on how that should be done, because that is not the intent of this letter. The question that was raised is whether a constitutional amendment is required for this, and I find that it is not. DM

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