South Africa


Fudging, obfuscation and misdirection hobble the route to the nitty-gritty of expropriation

Farmland outside Greyton. 15 March 2018. Photo: Leila Dougan

The expropriation without compensation debate, and parliamentary public hearings on a constitutional amendment for this, have shone a harsh spotlight on 24 years of land reform failures in democratic South Africa. With the approaching 2019 elections, and under pressure from the deftly mobilising EFF, the governing ANC not only has confused issues, but also revealed it has no new thinking in the pipeline.

If the parliamentary public hearings have shown anything, it is that the failure to ensure equitable access to land by black South Africans and secure tenure rights has left a lingering and festering pain for millions of citizens.

In 34 public hearings, across nine provinces over six weeks, Parliament’s constitutional review committee heard of flailing land reform that has let down both small-scale and emerging commercial farmers, restitution ensnared in red tape for two decades, redistribution that left beneficiaries without support on the newly allocated land – and lack of tenure security, be it in communal areas, or for farmworkers and labour tenants on farms.

Expropriation without compensation emerged as synonymous with redress. The EFF had successfully mobilised at all public hearings and got their view across – nationalisation of all land to be held by the state, even if details were scarce. And from Sekhukhune in Limpopo to Cape Town in the Western Cape, that compensation-less expropriation was linked to the 2019 elections, with several speakers arguing it must be in place before the vote, or politicians would face punishment at the ballot boxes.

It’s not something the ANC, which has seen declining election support over the past decade, could ignore. And so at its lekgotla in July, and this week’s National Working Committee (NWC), the 26-strong committee in charge of everyday operations had to take a turn that’s more to do with politicking and electioneering than anything else.

The ANC’s position is that, although the Constitution does not preclude expropriation of land without compensation, it should be amended to make this matter explicit,” said Tuesday’s official NWC statement, reiterating what the party’s July lekgotla arrived at.

But if it’s not broken, why fix it?

That (decision) was informed by our discussions in the lekgotla of the ANC – they were very thorough – including listening very carefully around the country to the inputs that were being made, by and large by black South Africans (at the public hearing),” ANC Deputy Secretary-General Jessie Duarte told a post NWC media briefing.

The ANC would not do anything outside Parliament, said Duarte, but the ANC like other organisations wanted to be allowed to implement its conference resolutions, which for the past three conferences had talked of expropriation.

That’s a bit disingenuous with a dash of rewriting history.

Before December 2017, the conference was marked by the radical economic transformation factional battles by policy proxy, ANC resolutions focused on grassroots ANC opposition to the “willing seller, willing buyer” principle. It was increasingly seen as delaying land reform and redistribution and extracting a huge cost though overinflated prices.

But that “willing seller, willing buyer” approach never was part of any law or the Constitution. It was an ANC Cabinet decision that could have been overturned relatively easily by Cabinet on the back of the governing ANC’s own resolutions. That it wasn’t for just over a decade talks to governance incompetence, political elite paralysis or vested interests, or a combination of those.

The 2007 Polokwane land-related resolutions called on the state and its entities to “exercise their legal right to expropriate property in the public interest for public purpose. Compensation shall be awarded in accordance with the Constitution with special emphasis on equity, redress and social justice…”

Stating that market-driven land reform should be jettisoned, and willing-seller, willing-buyer reviewed, the 2007 resolution requires “a more equitable distribution of land… to undo the injustices of history as well as to ensure higher productivity, shared growth, employment and sustainable livelihoods”, in an approach that included “planned acquisition and distribution, expropriation and demand-driven market transactions”.

At the 2012 Mangaung national conference, the resolution got more blunt to call for the replacement of “willing-buyer, willing-seller” with the “just and equitable” principle of the Constitution when the state acquired land for land reform and to allow for expropriation without compensation on “land acquired through unlawful means or used for illegal purposes”.

The 2017 conference resolutions in a last-minute decision took this a step further, listing compensation less expropriation as “among the key mechanisms available to government to give effect to land reform and redistribution” to be pursued so as to “not undermine future investment in the economy, or damage agricultural production and food security … (and) not cause harm to other sectors of the economy”.

The focus falls on “government-owned land and prioritise the redistribution of vacant, unused and under-utilised state land”, alongside land held for speculative purposes and “hopelessly indebted land”.

That’s more detail than ever before in an ANC resolution, but it does not fundamentally shift the let’s-not-rock-the-markets approach to land reform, and the more than a decade-old focus on black commercial farming interests, rather than equitable access as the Constitution outlines as part of redress imperatives.

Yet the programmes put in place by successive ANC administrations not only seem to work against equitable access, but also against supporting sustainable black farming.

In July 2018, the Sunday Times reported on a group of uMkhonto weSize (MK) veterans whose Kokstad, Eastern Cape, farm government had paid R46-million for, fell into disrepair due to lack of support. Central was the R480,000 needed to settle Eskom’s and other bills government had not paid as part of the project deal, and an official refusal to allow some of the grazing land to be sold.

Beneficiaries are left without the means to access independent loans, funding and support as the state retains the rights to the land acquired by the state on behalf of beneficiaries. This includes farmers under PLAS, or Proactive Land Acquisition Strategy, or farmworkers in equity share projects like the Strengthening the Relative Rights of People Working the Land, or the 50:50 Policy.

PLAS, which replaced the Land Redistribution for Agricultural Development (LRAD) from 2006, is also based on grants and subsidies. That has given rise to elite capture, including the dominance of the politically connected in accessing these subsidies, as some research has indicated and is acknowledged at least in some circles of the ANC.

And while the state acquires land often in the most high value real estate and fertile areas, it’s unclear whether it is receiving value for money. While liquidation proceedings are under way in the Solms-Delta 50:50 policy project, where government invested R74-million-plus in less than two years, it’s understood the other 12 50:50 projects, which in 2017 received R680-million, are not exactly thriving either.

This financial year, some R521-million is allocated for land acquisition, according to Budget documentation.

Meanwhile, small-scale farmers find themselves in a position where, if they are successful by for example increasing the size of their herd of cattle, goats or sheep, they are penalised for that, and told to limit the number of animals. Several families have to share land, in arrangements that can lead to conflict and disagreement – another spanner in the wheel.

The restitution process remains mired in delays – now over what exactly must unfold next regarding the amendment Act that was set aside as unconstitutional after being rushed into law ahead of the 2014 elections. And tenure security legislation has been held in abeyance since 2010 when the Communal Land Rights Act (CLARA) was declared unconstitutional on a technicality, as the ANC is reluctant to regulate land which many traditional leaders regard as theirs to control.

In the December 2017 rough and tumble of a tough conference the compensationless expropriation qualified with criteria of agricultural production, economic stability and food security; this was thought to be sufficient to appease factional tempers and continue to play kick for touch. It wasn’t to be.

The EFF in early 2018 picked up the land expropriation without compensation issue in Parliament, and in February the ANC, after some amendments to the EFF motion, supported the resolution of the House that led to the recent public hearings on a possible constitutional amendment for expropriation without compensation.

Up until the public hearings, the ANC had argued the constitutional provisions would permit such expropriation. That was the outcome of the May 2018 consultative land workshop which brought together ANC National Executive Committee (NEC), lawyers, academics and researchers – and former president Kgalema Motlanthe, who had headed the High Level Panel to assess the impact of key legislation that was scathing about government’s track record on land reform and tenure security for the rural population, whether on farms or communal areas under control of traditional leaders.

Against the backdrop of the land expropriation public hearings, the ANC had its lekgotla. It’s understood ANC government officials presented detailed departmental plans on land, but also the economy and other areas, and there were “robust” discussions.

Then, in what appears to be a move to regain dominance in the public narrative, the ANC decided its president should address the nation in what is blatantly blurring the lines between party and state, as such addresses are traditionally reserved for the head of state. But rather than calling a media briefing, President Cyril Ramaphosa in a pre-recorded late night address told the nation the ANC had decided to support a constitutional amendment for expropriation without compensation.

Coincidentally, there has been nothing but silence from government following the Cabinet lekgotla of the governing ANC that finished 10 days ago.

Regardless of what Duarte and other ANC officials and leaders may say, the role of the EFF in putting pressure on a governing party that perhaps has become too used to holding forth, cannot be underestimated. Land and expropriation without compensation will be central 2019 election issues.

And that’s why the ANC is scrambling in a series of initiatives that have been more miss than hit.

When Luthuli House put out the word that about 139 farms were to be expropriated without compensation, that may well have come from the detailed departmental briefings to the ANC lekgotla, but it wasn’t the ANC’s to announce.

The expropriation law – it’s one of several apartheid-era laws still on democratic South Africa’s statute book – requires those with such powers, including ministers, premiers and mayors, to give notice, and allow for legal proceedings to unfold, if necessary.

And as it turned out, the ANC spin doctors may have got things a bit off – the proceedings against the 139 farms wasn’t so much about expropriation without compensation as testing the authority of the Office of the Valuer-General in land redistribution and restitution cases. The compensation offer by government had been rejected by the landowners, and the next step was court action, the Rural Development Department toldLandbou Weekblad.

But that’s just the kind of fudging, obfuscation and misdirection that is unfolding in the governing party.

The Gauteng ANC at its July 2018 lekgotla resolved to proceed with the rapid land release programme to make land available for site and service stands “with immediate effect”, according to the official statement on the conference:

We shall not wait for the parliamentary constitutional review process.”

Premier David Makhura, who was elected Gauteng ANC chairperson, had talked about this rapid land release programme since May when his provincial administration earmarked R653-million for the programme. This week, however, it emerged that it could take a year to identify and release appropriate land.

Also this week, ANC National Chairperson Gwede Mantashe stepped into the land debate, suggesting limiting land size and transferring hectares in excess to black farmers, without compensation, according to New24.

Such a land ownership cap is not new. Alongside barring foreign ownership of land, a three-tier land ownership system, a land management entity, a land valuer and revised deeds office structures all stem from the 2011 Green Paper on Land Reform. It was heavily discussed amid pressure to speed up land reform, but government never produced a White Paper, a government policy document.

Very little came of this process, except the Office of the Valuer-General and Spatial Planning and Land Use Management Act, known as Spluma, has been in place since 2015, but largely ignored as the tool it was meant to be to address apartheid spatial distortions.

Land reform, restitution, tenure security and redistribution are complex. The narrative that expropriation without compensation, or nationalisation, is the silver bullet is simplistic and unrealistic although the promise of a quick solution is raising expectations.

Land will be a central electioneering issue in the looming 2019 election year – and rhetoric is always easier than transformative action. DM


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