ROCHELLE MAPHOTO: What does the Expropriation Act mean for labour tenants?

The president has signed the Expropriation Bill into law. Will this help labour tenants and the Special Master in their quest for land justice?

The role of a Special Master in addressing SA’s unique challenges is a new but helpful phenomenon. By unanimous agreement of parties, the Land Claims Court sitting in Randburg appointed the first Special Master in SA on December 10 2020, for an initial five-year term. The term of the incumbent, Richard Levin, has since been extended for a further five years.

The court's decision was preceded by an arduous and protracted legal battle brought by a handful of Hilton labour tenants residing at the back of Hilton College in Pietermaritzburg. Litigation was initially brought on their behalf but later became a class action, with general systemic relief sought for all labour tenants wanting relief from the department. They were assisted by the Association of Rural Advancement (Afra), an organisation that has, over the years, carved out a special place in the hearts of rural farm dwellers through championing advocacy and protection of land rights against violation.

The Land Claims Court devised a one-of-a-kind transformational remedy to enable rapid referrals of labour tenant claims to the court. However, this extraordinary move was heavily criticised in legal circles as “judicial overreach” and “grandstanding”. The Supreme Court of Appeal eventually ruled that the Land Claims Court’s order amounted to “a gross intrusion by a court into the domain of the executive”. Prof Levin’s appointment heralds new inventive methodologies and remedies to hold the executive and similar authorities accountable. The question remains though — what does the passing of the Expropriation Act mean for labour tenants?

This was exactly what labour tenants needed — legislation that will give effect to their rights. However, a few hurdles remain beyond the expropriation legislation, so the euphoria is likely to be short lived. The issue with land reform is not the absence of legislation but conflicting rights, for instance the constitutional entrenchment of existing individual property rights over other rights to land. The entrenchment of the protection of existing individual property rights in section 25 of the Bill of Rights in the context of necessary reforms remains an endless judicial weighing-up exercise.

The other major setback is the lack of political will, political synergy or political buy-in within the ANC, on what should constitute national land reform policy. The ANC structures seem not to be singing from the same hymn book. The confusion also extends to the public at large. SA has a preoccupation with finding “best practice” solutions, and that is not helpful given our socioeconomic and political peculiarities.

Solutions should be sought from South Africans through extensive bottom-up policy development, rather than by imposing policy from above. Notwithstanding class conflict in SA, we are not incapable of finding a lasting solution to the land question. SA needs a “with the grain” approach, which does not embrace a search for “optimal policies” or “laws” but emerges from a point of departure that says a country’s economy, polity and society, and the institutions that underpin each of these, are embedded in a complex network of interdependencies. Therefore, reforms cannot be re-engineered from scratch but need to be aligned with these realities. The realities of landlessness and deprivation should guide us and should ideally be the starting point.

The signing of the Expropriation Bill into law should not be seen as cheap political point scoring. Land reform is a matter of national importance and goes into defining the soul of this nation. Political leaders should refrain from racial populism, as doing so will result in class agitation, which risks destabilising and delegitimising constitutional institutions and eventually putting us on the precipice of turmoil. The signing of the bill into law is welcome, but a great deal of care needs to go into educating stakeholders about the implications thereof, as opposed to embarking on unnecessary, protracted litigation over the new act.

The other major hurdle is the foundational fragility of the text of the constitution, especially the property clause, owing to the historical environment within which it was negotiated and passed. This contributes to policy inconsistency, ambivalence and fragmentation. The constitution was passed at a time when political tension in the country was high and SA was in a fragile state. Leaders representing all sides opted for an overly legalistic land reform programme as a result.

Land reform through the application of market framework (market value consideration) for compensation is a self-inflicted limitation and is inconsistent with natural demands for equity. We hope judicial pronouncements in the context of the Expropriation Act will strike a balance on issues of just compensation.

The ANC-led government should not have looked to the markets for solutions — the ultimate consequence of that decision has become too costly for the fiscus and in turn unduly enriched landowners.

• Maphoto is a land reform specialist with the national department of agriculture, land reform and rural development.