Opinionista Susan Booysen 23 May 2018

Constitutionalise, legalise, catch the shifting land target

The African National Congress and government are embarking on a process of legalising and constitutionalising de facto, already-existing urban land policy. Such policy has been asserted frequently by South Africa’s urbanising citizens when desperate need for residence and livelihood has dictated.

The ANC is therefore catching up. There has been much citizen self-liberation on land, claiming and occupying undesignated land in metropoles, cities and towns. While the state’s tardy policy ship is now gearing into action, much of the land transformation and expropriation process is already in overdrive elsewhere, but for the threat of occasional legal action.

The last few months’ and in particular this week’s resolutions through the ANC Nasrec conference, Parliament, last weekend’s ANC summit and probably the pending NEC congregation are likely to help the ANC and the DA to govern in line with needs for transformation. The legal-constitutional details that the ANC land summit helped flesh out also help direct the future pace of land redistribution and expropriation without compensation.

With these frameworks there is now a chance that governments and governing parties will again be in command of land-directed socio-economic change. If the anticipated momentum on updating land policy is maintained, they may again lead rather than follow the people.

Policy change, in particular on urban land, has been effected largely bottom-up, by migrating feet on the ground. Urbanisation by 2016 in South Africa, according to StatsSA, stood at 65.3%. There has been a mixture of successful land occupations (albeit some still under legal dispute) and contested occupations in which the migrants have again been taken off land that was occupied illegally.

A significant part of such land quakes has been unfolding across South Africa; unauthorised urban land settlement is ingrained in socio-political behaviour, notwithstanding the lack of legality. The stream of migration into urban areas, linking land to the need for housing and services, has included, for example, the actions by the Landless People’s Movement and the National Land Committee of the early 2000s, Abahlali baseMjondolo, that has been claiming tracts of urban land since 2005, and the ongoing Food Sovereignty Campaign.

The case of the Marikana informal settlement in Philippi, Cape Town (as also detailed by GroundUp), provides a tangible illustration of the unfolding dynamics of ingrained practice versus the lagging political and legal dimensions. The case could help clarify government’s evolving policy on urban land, including expropriation without compensation.

Marikana (Philippi) has been described as South Africa’s biggest urban land grab of recent times (with bulk settlement in 2013). The area covers 28 hectares and is home to up to 60,000 people. The Western Cape High Court ruled that the City of Cape Town had to buy the land, on different conditions from one private and two corporate owners; had to get financial help from national and provincial government, and had to consider expropriation if the preceding steps failed. The size of the community, the fact that they settled there out of desperation and the fact that they had nowhere else to go informed the judgment. Owners have appealed, because occupation had reduced the value they had come to attach to the land. The case now rests with the Constitutional Court.

Marikana is but one of a multitude of recent occupation-settlements around greater Cape Town and the Johannesburg-Midrand-Pretoria-Ekurhuleni axis, all absorbing large numbers of in-migrating citizens. Among the specific areas are Orange Farm, Kagiso, Olievenhoutbosch, Blue Hills and Gugulethu. As in new and expanded city formations the world over, new South African cities are taking shape in the process.

This year’s acceleration in ANC momentum to formalise and constitutionalise existing processes has possibly helped add new settlement momentum, although earlier peaks have been evident too. Gauteng’s David Makhura has noted, for example, the 2016 pre-election peak of 63 new occupations in roughly seven months, compared with the total of 45 in 2015 and 16 in the months after post-election months of 2016.

Much of the momentum had been despite the likelihood of oppressive state responses – arrests (even if fleeting), demolition of structures and especially removal back to the previous point of new urban residence. Backyarders have been a notable part of an urban in-migration process; one day and with much luck they may “even” become shack owners on a piece of land of their own.

The recent ANC initiatives have helped legitimate, in essence, the movement for new urban settlements. ANC debates and resolutions, the parliamentary resolution and review process, and constitutional test measures have provided several declarations of intent. Going forward, sustained and fast action is required.

The ANC’s movement towards more effective redistribution and development of the expropriation option, introduced in a terrain of pre-existing practice, will need meticulous management. The authorities’ fall-back position of oppressive action, including Red Ant and police enforcement action, is diminished.

The focus next will turn explicitly to who owns the land on which new claims emerge, plus what had been paid for it originally, how it is used currently, the values before and after occupation, and what parts of government have available what budgets. These factors will help weigh the ANC’s pending tests on section 25 of the Constitution, the envisaged expropriation bill, and the Constitutional Court’s verdicts on test cases and the new legislation. They will also open multiple sites of detailed contest. DM

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