Foot-dragging on land reform and hiding behind legal machinations is getting us nowhere, fast
Section 25 of the Constitution on land expropriation could have been used effectively to achieve a lot — but the state did not make full use of the law. Inexplicably, government officials chose to go the willing-buyer, willing-seller route, favouring the market approach over other options. Willing buyer, willing seller is not mentioned in the Constitution.
Shareen Singh is a Johannesburg-based freelance writer and journalist. You can follow her on Twitter @ShareenSingh8
Our future leaders across campuses are finding their voices. They are robustly questioning and debating why South Africa is such an unequal society. At universities, they are exploring ideologies and political party doctrines. Non-racialism, pan-Africanism, liberalism, black consciousness, socialism and capitalism, are par for the course.
Among the zealous voices one hears, “the Constitution has failed, Nelson Mandela ‘sold out’.” These voices of idealism mean well — they want equality in South Africa. But decades of life have taught us that whatever ideology one chooses, unless leaders and civil servants act in concert, the best of intentions fail.
Take Section 25 of the Constitution as an example — it relates to land expropriation and restitution which is a key government policy. It could make a huge difference to transformation, but successive governments failed to use it. Now it has, unnecessarily, become a punching bag and Parliament has reached a stalemate on its amendment and has asked for an extension.
It all began when political parties led vulnerable people across the country to believe that the Constitution was an impediment to progress. In a mini-referendum of sorts, most black people answered yes to the question — should section 25 of the Constitution be amended? The ANC and the Economic Freedom Fighters who spun this narrative now need to save face with their constituencies.
Ironically, the ANC fought hard for Section 25. The major opposition parties did not want “just and equitable” compensation to be included. Why then does the ANC not use Section 25 and test it to the limit — instead of dragging on with a senseless exercise to amend it?
The SA Constitution was born out of many struggles and is a transformative document that has ongoing potential to bring justice and equality. As Justice Albie Sachs recounted in his book We, the People: “It wasn’t FW De Klerk and Nelson Mandela getting into a room, doing a little deal; you give me this, I give you that. The process was robust, filled with conflict and setbacks.”
The constitutional project was begun in 1988 by Oliver Tambo when Mandela was still in jail. There was enough going on in the world to draw lessons from to create a new country. The Soviet Union had collapsed, the Berlin Wall came down and closer to home post-colonial African countries were having their own problems. In SA there were ethnic battles and thousands were dying, the state security apparatus was playing dirty games and later Chris Hani was assassinated.
Despite the odds, the drafters took guidance from historical events when they wrote the Constitution. In terms of land reform, Section 25 provides for three rights: the right of equitable access to land, the right to restitution and the right to tenure security. It allows for land to be expropriated using both market value and “just and equitable” compensation. Common law allows for land expropriation without compensation in the public interest. If these laws were used effectively by strong institutions, then land reform might have moved faster. But it was easier to scapegoat the law than human failure.
Joel Modiri, an academic from Pretoria University, asked former Deputy Chief Justice Dikgang Moseneke last year whether the Constitution has failed in delivering socio-economic transformation. Moseneke cleverly turned the question around. If one asked Steve Biko, Robert Sobukwe and Oliver Tambo what were the things that constituted a just society, their answers would not have been very different to what is in the Constitution, he said. The Constitution encompassed the highest ideals of the liberation Struggles that they stood by.
But the Constitution can only be implemented by a competent state with energetic and creative leadership. Civil society organisations have taken cases to the Constitutional Court using the Bill of Rights when the state failed to deliver, the most famous example being HIV-Aids treatment. Justice was served and the state had to make a plan to deliver.
Similarly, Section 25 could have been used effectively to achieve a lot — but the state did not make full use of the law. Inexplicably, government officials chose to go the willing-buyer, willing-seller route, favouring the market approach over other options. Willing-buyer, willing seller is not mentioned in the Constitution.
In his book, Land Matters, advocate Tembeka Ngcukaitobi reflected on post-colonial Zimbabwe and Namibia — both experiences should be lessons for SA. Zimbabwe’s Lancaster House Agreement had similarities to the SA Constitution, but both the legal and market-based approach failed — and corruption took hold. People got fed up, massive land invasions took place, the spoils went to the elite, the military got involved and the country is still reeling from the disaster.
Why did the state opt for a pure market-orientated approach when it could have used mechanisms such as “just and equitable” to get better deals on land restitution? The state paid more than R1.01-billion to the Rattray family for Mala Mala Game reserve in a land restitution claim. This family owns several prime properties in SA.
The Mala Mala claim was settled out of court and questions of governance and transparency remained unanswered. This would have been a great test case, said Ruth Hall, who was on President Cyril Ramaphosa’s advisory panel on land reform. The Constitutional Court had always considered and balanced a range of factors when making a decision. Rectifying past injustices is part of its DNA.
The urgency of land reform cannot be overstated. The Economic Freedom Fighters and a faction of the African National Congress were correct to push land reform to the top of the agenda — but it is time they stop playing politics and put the people first.
The work done by various panels and advisory committees has made valid recommendations on land reform. They pointed to creating the enabling institutions, legislation, the need for appropriate managerial and administration systems, governance, transparency and effectively using Section 25.
In the past few months, the government has started implementing some of the recommendations. Additional laws have been drafted, the Expropriation Bill, the Land Bill and the Land Claims Bill among them. It would be a huge boost to see the land court getting permanent judges and taken seriously. All the laws would need to pass constitutional muster.
Last month, Ramaphosa handed over title deeds to the Tafelkop Community in Limpopo. This community had been fighting for years to get a government lease converted. The government will support these farmers and make sure that they play a role in economic development. They can now borrow money from banks and pass on the land to their children. “We are going to correct what we have not done well,” Ramaphosa said.
The ANC and the EFF might have egg on their faces if amending Section 25 is taken off the agenda, but correcting mistakes might be better than digging oneself deeper into a hole. DM
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