President Jacob Zuma arrives at the Old Chambers in Parliament for the official opening of the National House of Traditional Leaders. Picture: GCIS
President Jacob Zuma arrives at the Old Chambers in Parliament for the official opening of the National House of Traditional Leaders. Picture: GCIS

President Jacob Zuma’s "radical" solution to the lack of meaningful land redistribution is to assure traditional leaders the government will expedite a precolonial land audit. How this will provide land and security of tenure to shack dwellers around the cities and to people who need land in rural areas is unclear. It is also not clear how the government will pull off such an audit, given its failure to complete an audit of all the land currently owned by state institutions, despite repeated undertakings to do so.

That audit is increasingly urgent given the government’s policy to make land reform beneficiaries perpetual tenants of the state with "institutional use rights" rather than ownership.

Nor has the state completed an audit of privately owned land, despite repeated promises to do so over the past 20 years.

Under this new policy of state leasehold, the state will retain the ownership of "redistribution" land, in addition to the land it already owns in former homeland and other areas. Many, including traditional leaders, are starting to question the purpose and interests behind the super-landlord status of the state.

An audit of precolonial land occupation would be infinitely more complicated than an audit of current state and private ownership. There is evidence from the second half of the 18th century that indigenous groups often moved in search of better grazing and water sources, sometimes fighting others for control of people and cattle. This, with the so-called Mfecane, resulted in different groups occupying particular pieces of land at different times.

The proposed audit would yield very different results if it took a snapshot of land occupation at the height of Shaka and Mzilikazi’s powers, or before that. Would the principle be to try to go back to who was first in an area, as the Khoi and San would have it, or to select a specific time? Very material interests are at stake either way.

Embarking on a precolonial land audit would stir up current "tribal" enmities about past wars and elicit fierce contestation about the rightful status of particular groups and traditional leaders who were subsumed under the tribes and chiefs that were officially recognised during apartheid.

Parliament, in the Traditional Leadership and Governance Framework Act of 2003, confirmed the official status of the chiefs inherited from apartheid and their areas of tribal jurisdiction. This was despite objections from those who had been deposed or deprived of land because of their opposition to the 1951 Bantu Authorities Act and earlier actions by colonial and apartheid governments.

Kgosi Setlamorago Thobejane, president of the Congress of Traditional Leaders of SA (Contralesa), recently resigned from Parliament, saying Contralesa was reviewing its alliance with the ANC and was in discussions about forming a separate political party.

One of the reasons he cited was the unequal treatment of Zulu King Goodwill Zwelithini, who receives more than R54m a year from the state and holds more than 3-million hectares of land through his Ingonyama Trust. This trust was legislated into being during the dying days of apartheid. Other kings earn R1.03m a year.

Contralesa also accuses the government of holding on to the ownership of communal land for itself, instead of making it available to traditional leaders other than Zwelithini.

In that context, a precolonial land audit would open up a large can of worms, including in KwaZulu-Natal, where sections of significant groups such as the AmaHlubi, the Ndwandwe, the Nhlangwini, the Qwabe and the AmaNtuli deny they were part of Shaka’s kingdom and insist their land does not rightfully fall under the Ingonyama Trust.

It could be, of course, that Zuma has no intention of pursuing such an audit and is merely attempting to placate the National House of Traditional Leaders in light of Contralesa’s threatened defection.

At least twice before, he encouraged the house to put in restitution claims for past tribal dispossession when it was obvious those claims could never fly.

Practically, there was no budget increase to enable the settlement of such large claims. Legally, they could not fly because the Restitution of Land Rights Amendment Act retained the cut-off date of 1913 and virtually all "dispossession" happened before that.

The right to restitution is limited to those who can show they were actually dispossessed and their descendants. It was designed to tackle the legacy of forced removals after 1913, during which 3.5-million South Africans were forced out of their homes and land through the implementation of racially discriminatory laws such as the Group Areas Act and the Native Administration Act.

Dispossession could never be adequately tackled through an evidence-based legal process given its nature, scale and long historical duration. It requires a more direct political intervention, which is what the redistribution component of land reform was meant to have delivered.

Shamefully, the government has failed to deliver redistribution as promised and provided for in the Constitution. One of the reasons for this failure is that the budget set aside for redistribution has been diverted away from the poor and is increasingly used as a source of funding for patronage and elite enrichment.

Under Nelson Mandela’s presidency, land redistribution targeted the poor. There was a means test for getting a state subsidy to acquire land. Under Thabo Mbeki, the target shifted to building a class of black commercial farmers. The means test was scrapped and the size of the state subsidy increased commensurate with the amount the farmer was able to contribute.

Under Zuma, the Recapitalisation and Development Programme replaced all previous subsidies. It requires "beneficiaries" to have a business plan and a strategic partner. It enables large amounts of money to be paid to individuals and companies, who nevertheless remain tenants on state property.

No Selection Criteria

A 2013 report commissioned by the Department of Planning, Monitoring and Evaluation in the Presidency says that in the Free State, the average investment per person was R1.02m and no jobs were created as a result. The amounts requested per project varied between R3.2m in the Eastern Cape and R48m in the North West.

Most worrying, the report highlights that there are no selection criteria for beneficiaries or projects. It reports that some applicants bypassed provincial government officials and instead contacted senior politicians directly. It points to the disproportionate use of funds to benefit those who already have resources at the expense of the poor.

It is this sort of approach that enabled the department to buy a R97m farm for a Luthuli House staff member after the minister attended his wedding and introduced him to officials, as was recently reported in the Sunday Times. There are repeated complaints (also reflected in the report) that "strategic partners" are imposed on beneficiaries and fail to account for recap funds or distribute any benefits to them. Rumours abound of large kickbacks from strategic partners to individuals who are politically connected. politically connected individuals

Ruth Hall of the University of the Western Cape has illustrated the declining proportion of the land reform budget spent on acquiring land for redistribution relative to other purposes.

Particularly striking is the steep increase in the proportion of the budget spent on "agri-parks" relative to land acquisition. Few really know what agri-parks are, except that they are about infrastructure development as opposed to land redistribution and so will generate many tenders and thereby opportunities for patronage.

The budget for land reform remains below 1% of the national budget. This is a measure of a lack of political will and a reflection of damning reports of the dismal outcomes of land reform commissioned by the Department of Monitoring and Evaluation and the Treasury.

It is impossible to quantify who has got what from land redistribution, because of the department’s failure to produce statistics profiling the gender and income levels
of beneficiaries.

Land redistribution has failed not because of the property protection in section 25 of the Constitution but because of the government’s choice to use redistribution land and the land reform budget as sources of political patronage.

The president’s statements about precolonial land audits are an attempt to divert our attention from this reality. They attempt to turn land hunger inwards and stoke ethnic competition over land. They rely on people getting so caught up in competing versions of history that they no longer focus on holding the government to account for lining politicians’ pockets at the expense of meaningful and radical land redistribution.

• Dr Claassens is director and chief researcher at the Land and Accountability Research Centre in the University of Cape Town’s public law department

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