TEMBEKA NGCUKAITOBI: Cyril Ramaphosa’s ANC speech misses crucial issue in land reform

In a speech that ran more than 17 pages, President Cyril Ramaphosa devoted only one paragraph to explain the progress made by his government in achieving land reform. Recalling resolutions adopted by the ANC, about five years ago, the President extolled the achievements of his government “since the advent of democracy”. The government, he noted has “transferred over 4-million hectares of land through restitution and over 5-million hectares through redistribution”, which accounts “for nearly 11% of commercial farmland”. Yet he noted that this was “far below the initial target of 30% by 2014”.

Before we examine the constitutional significance of these claims, some preliminary observations are warranted. First, we do not know how much land — if any — has been transferred since 2017, when Ramaphosa became president, which is the immediate period under review. Second, the President conflates land acquired by black people through the restitution programme and with land falling under the redistribution programme.

This explains why he can assert that the two combined account for nearly 11% of commercial farmland, which he then tests against the “initial target of 30%”. Although restitution is an aspect of land reform, it must be accounted for separately from redistribution. While there are areas of overlap between the two programmes, their focus are distinct and separate. Restitution seeks to restore rights in land, where a claimant can prove that such right were lost through racial discriminatory laws and practices, after June 19 1913.

Redistribution, on the other hand, is not concerned with the restoration of land rights, which were lost after 1913, but with the creation of new rights to the land, based on the need for equitable access to the land. So, when these two programmes are conflated, there is a risk of distorting the true effect of the state’s land policies. Finally, a correction should be made. Since the President’s speech focusses on “the advent of democracy”, the correct “initial target” is not 30% by 2014, but 30% by 1999 — the “first five years of democracy”.

Factual inaccuracies aside, the larger question must be directed at the constitutional significance of the President’s account on land reform. Two policy documents produced by the ANC in the early 1990s provide a basic framework through which land reform can be studied. While restitution was viewed as essential to addressing the historical legacies of the Natives Land Act of 1913, it was never perceived to confront the landlessness of Africans.

Colonialism and apartheid were not only political programmes of the European invaders: they had both economic and social dimensions too. In the hands of Africans, land had economic, social, cultural and spiritual value. Large-scale forced removals disrupted entire modes of living, rendering Africans dependants on the wage economy created by white settlers. The mining economy did not end the exploitation in the rural farming economy, but entrenched it by commodifying labour on an industrial scale.

Addressing this economic and social wreckage could not be left to a programme of such limited magnitude like restitution. Land redistribution was essential precisely because it was addressing land shortage, without the trappings of arcane debates about who settled first, where, which have hobbled the progress on restitution. A third feature of the land reform agenda was how to resolve the rights of Africans to settle, use and benefit from the land — tenure. Apartheid left many laws which deprived Africans their rights to access the land and use it for their benefit.

Tenure security was not mentioned by the President. Yet for most of his first five years, it was the heartland of disputes between traditional authorities, communities and the state. Take for instance the debates around the Ingonyama Trust. If anyone could provide political direction over the place of communal land and the relationship between the chiefs and the people, it is the ANC. Its strategy, however, has been to avoid, evade and ignore the conflicts over communal land.

A proposed law in regard to communal land was declared unconstitutional on procedural grounds in 2010. But its weaknesses were in the substance: the law’s premise were the boundaries created under apartheid for black authorities. The constitutional promise, as such was not to reform these boundaries but to destroy and reconstruct them. The ANC’s inability to address communal land has been a betrayal of the promise in section 25(6) of the Constitution.

To return then, to the mainstream of land reforms, restitution and redistribution. The restitution programme has run its course. No new land is available for restitution. All possible claims have been lodged. What remains is finalising the processing of the existing claims. What this means is that restitution cannot be the engine for land reform. This has been an old problem. The largest number of land claims settled took place during the years of President Nelson Mandela.

But strikingly, the President’s address made no mention of the actual claims settled during his tenure in office. That too can be forgiven. But what betrays the President’s commitment to land reform is his failure to address redistribution. Redistribution of land carries the greatest promise for land.

It is entrenched in section 25(6) of the Constitution, as a mandate of the state. There is some hope, however, that when the ANC conference finishes, it would pay attention to redistribution. A redistribution bill, focusing on enabling the state to acquire land on just and equitable terms, and distribute it, based on the principle of equitable access, prioritising the needs of the landless over the already privileged. That may signal the radical change we need to make headway on land reforms.  

• Adv Tembeka Ngcukaitobi is based in Johannesburg.