Nkanyiso Gumede is a researcher at the Institute for Poverty, Land and Agrarian Studies (Plaas) at the University of the Western Cape. Michael Clark is Head of Research and Advocacy at Ndifuna Ukwazi. Plaas and Ndifuna Ukwazi will be hosting two more public dialogues on equitable access to land. For more information, visit https://www.plaas.org.za.

Twenty-seven years after the end of apartheid, South African cities, towns and villages are still marred by the historical legacy of racial and spatial segregation brought about by centuries of colonialism and apartheid. This segregation is visible in the extreme poverty of families living in the former homelands and the isolation and desperation of the majority of urban residents who are forced to live in inadequate conditions in the informal settlements on the outskirts of our cities and towns.

It has created disparate worlds, in terms of which some people thrive by virtue of their access to basic services, employment opportunities and social amenities, while a significant portion of South Africans in rural and urban areas remain trapped in a cycle of poverty.

Economists believe that the about 17 million people living in the former homelands have persistently been burdened with “significantly higher levels of deprivation and poverty than the rest of South Africa” – with people in these areas not only struggling with the lowest income levels, but also the highest levels of deprivation in relation to non-monetary dimensions including lack of material possessions, employment opportunities, decent housing and access to basic services.

In fact, of the most deprived wards in the country (the bottom 20% of wards with the highest levels of deprivation), more than 90% were located within the former homelands. Most of the estimated 12.5 million people living in poorly located informal settlements on the peripheries of our urban areas face similar challenges.

The spatial inequality imposed by colonialism and apartheid is therefore still a defining characteristic of many poor and working-class people’s everyday lives – and a key contemporary driver of this inequality is the state’s ongoing failure to rectify the skewed patterns of access to land.

It is in this light that over 200 land and housing activists, land reform beneficiaries, representatives of civil society organisations, academics and journalists from across the country came together on 9 September to attend a virtual public dialogue on how to broaden equitable access to land. 

The public dialogue, which was hosted by the Institute for Poverty, Land and Agrarian Studies (Plaas) and Ndifuna Ukwazi, is the first in a three-part series of dialogues that aims to grapple with the challenges in South Africa’s land reform programme, with a specific focus on bringing together people from urban and rural struggles for access to land to find novel approaches to give effect to the constitutional right of equitable access to land.

With Parliament engaging in a legislative process of amending section 25 of the Constitution to explicitly provide for land be to expropriated without compensation for the purposes of land reform, the public dialogue opened with an address by influential author and activist Advocate Tembeka Ngcukaitobi on the issue of determining compensation and instances where it will be just and equitable to expropriate land without compensation.

Ngcukaitobi criticised the way in which the issue of compensation has been handled during the post-apartheid era, and especially how the market value of land has been privileged over the other criteria listed in section 25(3) of the Constitution when land is acquired for land reform purposes simply because it is easily quantifiable. He argued that this approach has resulted in “overcompensation” of land owners unnecessarily, which has “eaten” from the dwindling resources allocated for land reform.

He said that even the courts under apartheid recognised the limitations of market value as a method for determining compensation, as there is no open market during instances of expropriation but rather a dual transaction between the state and the landowner. Ngcukaitobi proposed a contextual approach to determine compensation that considers the history of how land was acquired, the amount of state investment in the property, the purpose and impact of expropriation, and whether any free labour was provided to the landowner (as a direct or indirect form of state investment). 

“Free labour on the farms persisted until the 1960s,” Ngcukaitobi said. “That is direct and indirect investment.”

He said his contextual approach to compensation also takes into account the circumstances of the people involved, noting that many poor and marginalised occupiers living with informal land rights are particularly vulnerable during expropriation processes.

“The key problem in this country is we pay too much for land when we take it from white people and we pay too little for land when we take it from black people,” he said. Expropriation without compensation should not be a default position, but there should be instances where even above-market price compensation is paid for land which is expropriated from those who are poor and for whom land is central to their livelihoods, as well as in cases where land is used for more than economic activities such as cultural and other uses.

He argued that compensation policy is needed to give protection to those who may not have access to legal representation, such as the poor, who have been expropriated without compensation and are still a target of expropriation. Policymakers must formulate a compensation policy, which judges should adjudicate on its merits. Touching on restitution, he argued that restitution has failed to restore people’s dignity and proposed that the state needs to establish a reparations fund because restitution has not delivered the intended outcomes.

His presentation was followed by that of Mandisa Shandu, an attorney and the executive director at Ndifuna Ukwazi. She highlighted the centrality of land to people’s lives by sharing a quote by Petros Nkosi (that appeared in the Daniels v Scribante case):

“The land, our purpose is the land; that is what we must achieve. The land is our whole lives: we plough it for food; we build our houses from the soil; we live on it; and we are buried in it. When whites took our land away from us, we lost the dignity of our lives: we could no longer feed our children; we were forced to become servants; we were treated like animals… But in everything we do, we must remember that there is only one aim and one solution and that is the land, the soil, our world.”

She indicated that despite land being an important resource, land reform, particularly in the urban areas, has not been accelerated in a way that ensures dignity and equality for all. Spatial inequality still persists, as well as land hunger. She reminded all that “land is more than market value. It has historical value, social value, transformative value, and to treat it in that light is critical”.

She identified an exclusionary and inaccessible land market as one of the contemporary drivers of inequality and an impediment to addressing spatial inequality. The state has also failed to deliver state-subsidised housing at scale and in well-located areas, with housing delivery slowing to a glacial pace.

Hegemony of private property power in determining how public land is used should also be contested and it must be ensured that the public at large is involved in such processes. The state must also make financial resources available to enable equitable access to land and to basic services.

Drawing from the landmark Western Cape High Court judgment in Adonisi v Minister of Transport and Public Works, Western Cape, in which Reclaim the City and Ndifuna Ukwazi challenged the Western Cape provincial government’s sale of the strategically located Tafelberg property rather than utilising this public land for the development of social housing, Shandu argued that to achieve equitable access to land in urban areas would require the state to release strategically located public land for the development of affordable housing. 

Hegemony of private property power in determining how public land is used should also be contested and it must be ensured that the public at large is involved in such processes. The state must also make financial resources available to enable equitable access to land and to basic services.

Land reform in South Africa has had a rural bias, but according to Dr Farai Mtero, senior researcher at Plaas, this has not led to equitable access to land despite the dictates of the Constitution in section 25(5). It has, however, been captured by elite beneficiaries including predatory agribusiness, strategic partners and service providers. Government spending on land reform has been consistently low – below 1% of the total national budget. Evictions continue on state land with the Auditor-General’s report estimating that claims against state unlawful evictions are likely to reach R2-billion in the 2022/23 financial year.

He also highlighted that women have been underrepresented as land reform beneficiaries, making up only 23% of the land reform beneficiaries. Group schemes have also not done well and there has been an absence of appropriate and adequate support for smallholder farmers.

One other impediment to land reform has been its design, which fails to acknowledge other land needs. Land reform has privileged economic success and large-scale agricultural production and neglected the diverse and multiple livelihoods that are important for the poor, such as access to land for household food security. 

“This has been a major challenge for land reform beneficiaries who wanted to use land for purposes other than commercial production. In one case, land reform beneficiaries wanted to use land for smallholder production for their own consumption, but the strategic partner wanted land to be used to produce olives,” said Mtero.

This productionism has also influenced who gets selected as land reform beneficiary, which has resulted in “fittest” beneficiaries, or those with resources, the elites, being preferred over the poor, who cannot be able to maintain production on the farms. Mtero argued that land reform should be about enabling access to land to all, particularly the poor and those who are without access to land. It must also consider different land needs both in urban and rural contexts.

He criticised the narrow policy focus on expropriation of land without compensation, which, although important, “is just one method of acquiring land”.

“We need a new law that will guide the implementation of land reform from beneficiary selection, land identification, production support and tenure security. The current legislation does not go far enough and is an ineffective mechanism for broadening access to land.” 

He also emphasised that when we think about land reform, it should be beyond just production and consider other land needs and access to other natural resources such as water. It should also contribute towards equitable access to land for women, and also enable access to land for smallholder farmers who can benefit from subdivision in instances where it is feasible to do so.

Central to the discussion – from the speakers and participants – was a sense of urgency for the state to advance access to land for poor and working-class families. The devastating economic fallout brought about as a result of the Covid-19 pandemic and the social unrest that gripped many parts of our country a couple of months ago, reveals how inequality, poverty and deprivation drive desperation.

After decades of inertia, politicians and policymakers cannot risk ignoring the issue of access to land any longer. The speakers and participants were clear: the state needs to radically break from the past and embrace the largely unexplored constitutional provisions that promote equitable access to land – and, in doing so, recognise the transformative potential of land. DM