OP-ED: LAND REFORM - PART 1

Five months and counting: what can SA expect from the presidential land reform report?

By Rosalie Kingwill 22 November 2019

(Photo: Gozha Net/Unsplash)

We now have a potentially unifying framework to build a common system of land governance, which until now has been a mess inherited from apartheid.

This is the first of a two-part review of the Presidential Advisory Panel on Land Reform and Agriculture Report submitted to the president and the public on 11 June 2019.

Love it or hate it, the Presidential Advisory Panel on Land Reform and Agriculture (PAP) report is a pivotal moment in South Africa’s fraught land reform programme. The moment is engraved in history; society demanded a change of paradigm and it got one, but not for the most publicised and emotive reasons.

When the report first surfaced it drew a flurry of responses, mostly cautiously positive but some negative and disappointed, many of which appeared on Daily Maverick’s pages [see here ; here ; here ; here ; here ; here] and on many other academic and civil society sites.

Nearly six months have passed since it was made public. Whatever is left of that historical moment appears to have been condensed into a single overblown issue: expropriation without compensation (EWC), and, to be fair, that is what triggered it. However, there is a danger that the report will become embedded in the social imagination as a single-issue commission of enquiry.

In reality, the bulk of the report deals with a range of mighty issues that provide insight into the broader context and wide range of issues that need to be tackled concurrently for a lasting and positive impact.

At a July press briefing, following publication of the report, the Minister in the Presidency announced that the Cabinet would request all relevant departments and directorates to study it over a two-month period and then respond. That period expired three months ago. Many of us in civil society, the private sector and academic institutions offered voluntary time and sponsorship of venues and expenses, and in some cases seconded key personnel to the panel itself. They – we – have a stake in how post-PAP unfolds.

We understand that the recommendations are winding their way through state institutions as we wait in nail-biting anticipation of the engagement we were promised. There are some positive indications trickling through of some momentum in government, but we are largely in the dark as to the process – other than some tentative moves regarding EWC.

Leaving aside processual issues, it is useful to briefly refresh ourselves on what the panel was about.

The report was a culmination of a short and intense 10-month period of deliberation to look into all problems concerning “land reform and agriculture” – a wildly ambitious brief. The immediate context was Ramaphosa’s ascent to power under a cloud of outrage at the failures of land reform and the potential prospect of explicit endorsement of EWC in the Constitution. Into a cauldron of competing interests and contentiousness came the PAP, constituted to help quell the rising dissonance of voices surrounding the failures of land and agrarian reform over the previous 20 years.

By nature of its brief, the PAP was bound to be tap into the contentiousness that land reform issues always generate. It was an accomplishment in itself that the panel pulled together to produce a single report. Even before it began its work, the panel’s diverse composition ensured that finding common vision would be difficult and reaching consensus close to impossible.

Two white members of the panel, representing commercial agriculture, presented an “alternative report” but, significantly, not a minority report. These authors agreed with many of the PAP’s recommendations, departing mainly around the issue of EWC and race-based redistribution – as was to be expected. They nevertheless showed interest in ongoing engagement with issues of common concern.

The wider context and implications of the report are South Africa’s complex historical and socio-cultural legacies, which the report acknowledged. These factors materially affect the way we conceptualise the building blocks of land reform: starting with existing realities rather than grand theories that airbrush uncomfortable truths from history.

Global trends form part of the bigger picture. Countless studies confirm that global inequality is growing apace. Huffpost published a graph by the Stanford Center on Poverty and Inequality, based on US income data in 2014, showing widening “tides” of inequality, a trend mirrored globally.

A recent World Bank Study on Poverty and Inequality in South Africa (2018) places the country at the top of the world’s inequality-equality gap using a range of indicators. As argued in Huffpost, conservatives like to argue that “a rising tide lifts all boats” as a justification for bolstering the capital foundations of the wealthy and emergent entrepreneurial class because the surplus generated will “trickle down”. Yet “no other boats have risen; in fact, they’re sinking”. The idea of “trickledown economics has been thoroughly debunked, even by the International Monetary Fund (IMF).

The complexity confronting the PAP and the tight time frame to deliver its recommendations were mitigated by its ability to build on the voluminous empirical record submitted to a previous panel that examined land reform at a high level— the High-Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (HLP), chaired by former President Kgalema Motlanthe from January 2016 to November 2017.

The HLP was an initiative of the Speakers’ Forum of Parliament to investigate the impact of legislation with respect to the main socio-economic challenges facing the post-apartheid state, of which land reform was a critical element comprising a quarter of the brief (see the report here).

The HLP deliberated over a longer period than PAP, allowing for deeper introspection and broader probing by researchers on various strands of land reform. It sat for two years gathering vast research-based resources — a process in which my colleagues and I participated — and conducted countrywide consultations. It came up with widely researched proposals and recommendations on all the facets of land reform, many of which have re-emerged in the PAP report. As a parliamentary process, however, the HLP was politically constrained and its findings proved difficult to integrate inside the executive.

The PAP upped the ante during the changing of the guard in the ANC and mounting urgency of land reform in the making of post-Zuma societal renewal, with calls for EWC. It sat for only seven months, from September to May 2019, with limited resources. Due to the heightened stakes and expectations, it was able to generate the co-operation and sponsorship of various government departments and external agencies. In some respects, the tight time frame gave it the advantage of urgency, speed, flexibility and brevity. Located in the Presidency, it had the advantage over the HLP in being Janus-faced towards both the legislature and executive, which translates into more potential buy-in from government departments with a stake in its findings.

The process was less tied to the Department of Rural Development and Land Reform (DRDLR) than previous engagements, but nevertheless appears to have secured a degree of support from inside the DRDLR. The latter has been notoriously slow in the past in providing a coherent and co-ordinated response to the urgency of land reform, but this time some key directorates appear to be responding positively.

The report reveals a willingness by the panellists to tackle some sacred cows in policy with pragmatic and logical reasoning for the most part, which has helped to provide a rational basis to respond to the expected backlash.

A major cause for celebration in our view is the attempt in the overall analysis to come to grips with underlying structural and institutional obstacles. None of this would have been possible had the panel not been willing to engage with researchers and civil society representatives, and we believe this helped provide more nuanced understandings of underlying structural and institutional weaknesses in land reform.

The PAP report addressed “land administration” as a critical land reform issue, an issue we have campaigned for, and the subject of my second article. It is a new angle that we welcome following years of policy stumbles around rural land tenure, raising the prospect of appropriate systems of recordal and valuation of these rights, and those in informal or formalising settlements.

Land administration is a crucial element of land governance that was strongly addressed and endorsed in the PAP report. It concerns overall policy and management frameworks for the regulation and administration of land and access rights, which we often condense into the term “land administration”. Land administration is an internationally recognised bridging concept to denote the set of mechanisms that co-ordinate various facets of land management. These have become exponentially complex since the introduction of land markets and systems of registration, revenue, land use management and planning, to name a few, further complicated by environmental concerns and the climate crisis. These require co-ordinated land information systems and data management.

It is no surprise that the report has drawn praise, criticism and scepticism in equal measure given the subject matter that affects people deeply, and contention is to be expected.

The media and academia tilted towards optimism, while individuals and institutions with strong sectoral or ideological biases zoomed in on specific red flags, often redacting parts of the report or quoting extracts in ways that erased the broader context and logic underlying the issue concerned. Debates about the goals and targets of land redistribution, the optimum scale of farming operations, market priorities and protection of private property remain hotly contentious.

Different interpretations of EWC evoke a wide spectrum of response, from fear to “rooi gevaar” to euphoria, even though for its part the panel’s report took an approach of constructive pragmatism on that issue. (The Institute of Race Relations grabs onto the most tenuous shreds of terminology in ANC and related policy documents as evidence of a Marxist-Leninist second coming.)

In short, the sticking points remain sticky, but we in the civil society platform LandNNES, that I represent, are cautiously optimistic about some of the key elements that were taken on board and recommended by the panel concerning the need to focus attention on building an integrated framework for the management and administration of land. This emphasis provides a potentially unifying framework to conceptualise and build a common framework of land governance which until now has been a shockingly fragmented and incoherent mess that was inherited from the apartheid past.

There is much in the report to give hope that some progress has been made. It is also important to remember that it is not a policy blueprint, but a set of recommendations.

Undoubtedly there are weaknesses in the PAP report, with elements of incoherence and in some cases blatant contradictions. These are to be expected considering the range of representivity among the panel members and the tight time frames, but it is right to expose them.

We urge critics to pay less attention to the ideological battlefields that inevitably erupt on the production of land reform proposals, and to show interest in the evidence of genuine shifts in thinking in the PAP report that could help lever our society out of the quagmire that has become identified with the land reform programme.

We would like reassurance from government that the justification for the panel was deeper than electioneering and pacifying an expectant public. We agree with the Public Affairs Research Institute (PARI) in their appeal to government to engage with civil society and involve the people in the reconstruction of institutions that were undermined during the Zuma years. The report itself acknowledges this:

Of importance is the recognition that land reform is everyone’s responsibility, public and private sector including civil society, NGOs and communities. (p106)”

South Africa has a vibrant and creative crop of sector specialists, academics and civil society institutions (NGOs and CBOs) that have worked in the land reform sector for decades and are willing to work with government to generate sustainable reforms. DM

Part 2 looks at the positive implications of the PAP report’s support for adding land administration as a fourth plank of land reform.

Dr Rosalie Kingwill is a representative member of the Land Network National Engagement Strategy (LandNNES), a civil society advocacy platform with three planks: land administration, small farmer/fisher support and land redistribution. She is an independent critical research consultant specialising in land administration systems, land tenure reform and property rights. She is also a research associate at the Institute for Poverty, Land and Agrarian Studies (PLAAS), University of the Western Cape. She has published widely on issues of land tenure and property rights and their complex manifestations in South Africa.

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