The structure of our South African socio-economic landscape is largely a reflection of its apartheid past with high levels of economy and land ownership concentrated on a minority populace. The Constitution of the Republic of South Africa was a key primary policy instrument designed by the post-apartheid government as a mechanism to transform the socio-economic dynamics of the constitutionally dispensated South Africa. For instance, the adoption of the provisions of Section 25 of the Constitution sought to ensure that government is able to expropriate land for a public purpose in the public interest.

In its more than 23 years of existence, the adoption of Section 25 of the Constitution has had little impact in transforming the socio-economic dynamics and in the land redistribution/reform programme. By way of example, many of the expropriation cases that have come before the courts have centred on the quantum of compensation as contemplated by Section 25(2) of the Constitution. To date, very few expropriation cases have been successfully negotiated (quantum included) between the “willing seller” (white minorities) and the “willing buyer” (the state). As a result of this poor track record, the socio-economic landscape remains largely untransformed and land ownership remains highly concentrated.

One of the issues identified by civic society organisations and other commentators, as impending the successful land redistribution/reform programme is the government’s policy of ‘willing seller’, willing buyer entrenched in the Constitution, and although there has been a plethora of debates on this in the past, these have not gone far enough to result in consensus and pragmatic solutions to address challenges in the successful implementation of land redistribution at an accelerated pace. In particular, the slow process is embedded in the Constitution and the enabling statute – the Land Restitution Act – and the resulting bureaucracy.

The desired transformative changes – which have now become more urgent and imperative – do not suppose the violation of the rule of law and human rights – and are certainly not overstepping on constitutional property rights – but seek to remove legal and constitutional impediments for the extension of social and economic rights (which include access to land) to the people of South Africa as a whole – after all, this is what a constitutional democracy mandates. To this end, the facilitation of the land redistribution/reform programme effectively and efficiently without compensation, will ensure that the majority of the black South African population have access to social and economic means of production.

Thus, in essence land reform – the redistribution of land from the rich to the poor – is a key and logical policy objective. Broadly speaking, it includes regulation of ownership, operation, leasing, sales and inheritance of land (indeed, the redistribution of land itself requires legal changes). In an agrarian economy like South Africa – with great scarcity and an unequal distribution of land coupled with a large mass of the rural population below the poverty line – there are compelling economic and political arguments for land reform.

The most obvious argument in favour of constitutional amendment is equity. To reiterate a point mentioned above, in a country where a significant section of the rural population live below the poverty line, the case for ensuring that everyone has access to some minimum amount of land seems compelling.

But there remains a series of questions that we need to answer: which land should be redistributed, how should land be reclaimed and redistributed, and who should get land. Ultimately, land reform will play in the broader restructuring of the economy and society, and certainly what is more clear is that when we weigh the options of whether to maintain the status quo or rock the boat, the need for urgent land redistribution tips the scale.

In answering the first and second questions, I argue that two approaches must be followed in the planning of acquisition of land: land meeting certain criteria in an area would have to be prioritised by the state, and specific properties would have to be designated and owners informed that the state wishes to acquire their land without compensation (they would only be receiving any monetary compensation if needs be) – on a reasonable market value basis – only for significant structures constructed on such land (this is not the same as expropriation subject to compensation whereby the state pays the market value of the land, and not structures, such as a building, constructed on such land).

Once either specific properties or a certain category of properties has been identified as needed for redistribution, an important strategy would then be to explore what consensual methods can deliver and, where these do not produce results in a given time frame, to move on to more coercive measures. This could include the state expropriating the land anyway by evicting the landowner. This should be used where needed, but should be preceded and complemented by consensual options.

The state has the ultimate power to make land available to meet demand by using its power of “eminent domain” and expropriating land. Using the amended provisions of the “property clause” in the Constitution, the state would be empowered to expropriate property for a public purpose or in the public interest – including for land reform purposes – without compensation.

Under the “new dawn” regime, information about who owns what property would be a precondition for the above proactive methods of dealing with the supply of land for redistribution. In the first instance, the state would have to conduct land audits on private land to ascertain who owns what and how it is being used, and to identify unused and underutilised land that could be prioritised for “speedy” acquisition without compensation. This information would then have to be made publicly available at a local level both to communities who may have land needs, and to municipalities.

In answering the last question on who should get land; local municipalities could be tasked with inviting people to submit their names for land needs lists, indicating what they need land for and where – this is one of the ways to define land needs. These needs could then be matched with land as it becomes available. Local municipalities could map out restitution claims in their jurisdictions using geographical information systems. This would provide an overall picture of where people have expressed demand for land by submitting land restitution claims or labour tenant applications.

I can only hope that the President’s advisory panel tasked with devising solutions to this critical issue of land form will seriously consider whether it may be worthwhile to have a dedicated institution at a local level to drive land reform (instead of leaving the task squarely on the hands of municipalities). This said institution would need to work with landless people, and “stakeholders”, to make and implement a district-based land reform plan. In particular, this agrarian agency would work with citizens to assess and specify land needs, conduct public and private land audits, designates land required for redistribution, negotiates with landowners, identifies land for expropriation, oversees transfers, manages leases and contracts on state (including commonage) land, engages in land use planning and co-ordinates agricultural extension and infrastructural support. Is this the blueprint the advisory vanguard may consider for effective land reform?

The jury is out on this one. DM

Sphesihle Nxumalo is a practising attorney. This article was written in his personal capacity, and the views expressed herein do not represent the opinions of his employer or any organisation whatsoever with which he is associated.