“Beware the magic trick!”, warns a recent publication of the South African Cities Network following a series of urban land dialogues held in several cities.

“Focusing on expropriation without compensation is a mirage, an illusion, where you are asked to focus your attention on one spot, when the real action is happening elsewhere.”

Indeed. The hyped-up focus on one marginal dimension of the nonetheless critical task of advancing deep-seated and sustainable land reform is everywhere in evidence. This is how the parliamentary Joint Constitutional Review Committee is, of course, focused. Or take the heated and confused debate around the Ingonyama Trust (IT). Defenders of the trust managed to conflate the recommendations of former President Kgalema Motlanthe’s High Level Panel (HLP) with a threat to change the Constitution to expropriate land without compensation in the former KwaZulu “homeland”.

Worse still, some ANC leaders in KZN then reassured the Zulu monarch that the ruling party’s land reform focus was entirely on commercial land in the 87% of land outside of former bantustans. In making this hurried reassurance, they were flouting an important part of the ANC’s December Conference land resolution which committed, as part of land reform, to “democratise control and administration of areas under communal land tenure”.

The multifaceted nature of a progressive, radical land reform programme is obscured. Land reform is reduced to little more than expropriation without compensation. In turn, the constitutional requirement of compensation is assumed to be the major reason for the unacceptably slow pace and the generally pitiful outcomes of land reform since 1994.

A populist blaming of the Constitution is a useful distraction from the real reasons for our thoroughly unsatisfactory land reform outcomes thus far. These include a lack of political will; policy confusion; the complexity of restitution; elite capture of redistributed land, and, in many cases in mining areas, a triad of corrupt officials, venal traditional leaders and mining capital (old and new) actively confiscating without any compensation the land rights of local black communities established over many generations.

There is also focus confusion. There is a tendency to overplay agrarian challenges, which are, of course, absolutely important. However, the dominant land question is now urban, the imperative of affordable and relatively well-located settlement that will transform our persisting dysfunctional, inequitable and unproductive apartheid urban spaces.

The public debate is all too often truncated. And yet the Constitution, the High Level Panel recommendations and, indeed, the ANC’s own December conference resolution on the land all point substantively in the right direction.

All three emphasise the imperative of radical land transformation. Section 25 of the Bill of Rights does not, as is sometimes argued, entrench existing skewed racial, class and gendered patterns of property ownership. Instead, it is a powerful mandate for transformation with its call “to bring about equitable access to all South Africa’s natural resources”, and its related qualification that “no provision” of the property clause “may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination”.

But how do we go forward? Again, the Constitution, the High Level Panel and the ANC’s conference resolution all correctly affirm three pillars of land reform – restitution, redistribution and security of tenure. In the early 1990s, it was redistribution and security of tenure rather than restitution that enjoyed prime emphasis in ANC policy. However, since the mid-1990s, for some reason, it is restitution that has dominated attention, currently taking up around half of the Department of Rural Development and Land Reform budget. The restitution programme has had some successes, but we need to acknowledge major, perhaps intractable challenges.

The High Level Panel estimates that at the current rate it will take at least 35 years to finalise old order claims. New order claims already lodged in terms of (the now repealed) Restitution of Land Rights Amendment Act (2014) will take another 143 years. If this Act is re-introduced and claims reopened, the expected avalanche of some 400,000 claims will take over 700 years to complete. Clearly, simply improving institutional efficiencies and a larger budget will not do the trick. A major rethink on restitution is required.

The over-focus on expropriation without compensation helps to obscure the multiple challenges restitution is facing. The processing of many claims is proving to be extremely complex and often riddled with conflict. Many claims require expert inputs from an array of anthropologists and customary law experts, or documentation that either does not exist or which has long disappeared. A family of seven or eight, brutally removed from their home in the 1950s, now probably numbers many families. Children have become grandparents, their children are now aunts and uncles, and their children in turn are now many adult cousins. To whom is the claim to be awarded? To the most deserving? And how is that determined? Or do we simply apply problematic patrilineal succession principles?

Herein lies the source of many conflicts within families, and across communities. Land restitution, intended to restore some dignity to the lives of those oppressed in the past, can have unintended and perverse effects. There is also the spectacle of claim-driven retribalisation. But transcending narrow tribal identity was the very problem the ANC was formed to address back in 1912. In addition to all of these problems, many successful restitution claimants opt for monetary compensation which is, at least, a small bit of restorative justice, but it doesn’t serve to transform our skewed racial, class and gendered patterns of land use and ownership.

The problems we are encountering with much of restitution reminds us of the impossibility of going back to a “better past”. We must never forget the genocidal impact of colonial and white-minority rule land seizures. But we cannot overcome their horrible legacy in the present only in reverse gear. A much more transformative and sustainable approach needs to shift emphasis from restitution to a more forward looking land redistribution programme.

Redistribution can help to avoid the pitfalls of going back into a tangled history. It can also help to focus more effectively on what exactly we intend to do productively with redistributed land – rather than the scattered patchwork that claims (or a willing-seller, willing-buyer approach) are likely to produce. But who is to benefit from land redistribution? The High Level Panel has wisely proposed new “framework legislation” which would clearly spell out the priority categories of beneficiaries. The current South African situation is considerably more complex than the classic, anti-feudal “land to the tillers”, reform programmes of the 20^th century that, in some cases like South Korea, underpinned a subsequent industrialisation advance. We also have the Zimbabwean reminder of the grave dangers of a demagogic and largely elite-captured approach to land redistribution.

Effectively handled with clear strategic priorities, a land redistribution programme, coupled with a range micro-economic interventions, could be more than a rights-based endeavour. It could enhance national food sovereignty and make a major contribution to sustainable rural livelihoods. It could also enhance economic productivity by progressively overcoming the crippling dysfunctional nature of our urban spaces, where working class households in peripheral locations are spending 20 and 30 percent of household income on mobility, not to mention long hours in unreliable and economically unsustainable public transport.

Security of tenure is the other critical pillar of a sustainable land reform programme. But if land expropriation without compensation is too often and unhelpfully proposed as the silver bullet to advance land reform, there is also a reductive and simplistic counter-proposal: give all households title deeds.

Douglas Gibson, in a recent article in The Star (‘Election ploy or real priority?’, 10 July) is a typical example of this alternative supposed silver bullet. He writes:

“What the debate about land reform needs is a commitment to making progress, focusing not just on agricultural land, but far more importantly recognising that although 7.5 million black people own homes, the vast majority don’t have proper title deeds.”

Citing the FW de Klerk Foundation, Gibson reckons that “anything up to 65% of black South Africans could be dramatically enriched and empowered” through providing title deeds.

This argument, which tends to reduce the constitutional imperative of security of tenure to the possession of a formal title deed, borrows from the now widely discredited arguments of the Peruvian theorist Hernando de Soto. De Soto reasoned that the homes of the millions of informalised urban poor were “dead capital”. Providing them with title deeds – that is, transforming their homes into tradable assets – would raise billions of dollars of collateral, breathing life into “dead capital” and turning the formerly poor into thriving mini-capitalists.

Neither in his home city, Lima, nor in South Africa, do things work out quite like this for the poor. Yes, indeed, for millions of middle-class, nuclear family households in South Africa located in the formal economy, a title deed is likely to be a valuable, mortgage-able asset. But many township households that do have title deeds find that, contrary to De Soto and Gibson, banks are reluctant to risk providing loans against the collateral of their homes. Moreover, when they do have employment it is often informal, while formal employment is key to mortgage financing. Equally, studies have found, many township households are, in any case, themselves unwilling to risk losing their homes to the banks by putting them up as collateral. When in need of a loan they prefer to access funding from informal lenders, even if interest rates are much higher.

For the majority of South Africans their homes, whether they are old township matchbox houses, more recent RDP houses, informal structures, or houses in former homelands, are not primarily tradable assets. Rather, they are family homes and the sites of all manner of activities (spaza shops, hair salons, creches, storage spaces, back-yard renting, cultural practices) and a precious toehold in an urban setting or an extended family safety net in rural South Africa. Where houses are used as tradable commodities in these communities, it is more often than not through informal selling and renting.

The formal title deeds dispensation is complex and out of kilter with the lived reality of a majority of South African households. A title deed requires the property to be surveyed down to the last centimetre – an impracticality in informal settlements or in much of rural South Africa (although new technologies, like geo-sat mapping and drones, will enable simpler and more relevant forms of cadastral survey to happen). There is also evidence that where RDP houses do have title deeds, these often quickly erode with the informal sale of the house which is then unrecorded in the Deeds Registry. The cost and hassles of a formal sale requiring conveyancers and others is a major reason for this.

The notion of individual (or joint spousal) ownership of a property, and, therefore, the right of an individual to sell a home, is also foreign to the lived practices of many households in South Africa. It is instructive that in a recent survey conducted by Media24, in response to the question “who should own the land on which we live?”, 51% argued households/families, versus 35 percent who argued individuals. (Only 11% felt it should be the state, and 3% traditional leaders.) (“The Land Myth”, City Press, 15 July 2018). Particularly in areas in which there are strong traditions of communal property rights, security of tenure is not just about ownership, but also about rights to use and access (to water-sources, or commonage for pasture, for instance).

Some 60% of households in South Africa are outside of the formal Deeds Registry system. None of this means that a significant extension of formal title deeding is irrelevant, but it does mean that we need to ensure that security of tenure is not entirely dependent on titling. In the words of the HLP, we need to “recognise, record and administer effectively a continuum of rights to land… too many South Africans, in rural and urban areas … have insecure tenure to the property that they occupy… Layered and interconnected property rights, as understood by communities, are not recognised… The Panel proposes [a] simpler, more accessible and wider range of rights than the deeds registry system.”

The eruption of the land debate in our country has, at least, forced all of us to focus on this critical matter around which, too often, we have tiptoed. Hopefully, in taking the debate forward, we can move beyond both the current divisive polarities and the related mirage of simplistic solutions. DM

Jeremy Cronin, deputy minister public works and SACP CC member.