More than constitutional change is needed to accelerate land reform
The process will have to be regulated by expropriation legislation setting out procedures, powers of the state, rights of landowners and beneficiaries and it will have to be subject to judicial review
Meeting South Africa’s land reform ambitions poses a serious challenge. Implementation is slow, policies are confused and legislation is unhelpful. Resources are inadequate, public institutions are weak and information and skills are scarce. The political response has been to blame the Constitution.
The debate about changing the constitution surfaces starkly different perceptions. There are those who argue that expropriation of land without compensation (EWC) will erode property rights that are the foundation of individual liberty and that if property rights collapse so too will the economy. Those who hold this view warn that a third of the money borrowed from banks in South Africa is borrowed against the asset value of farms and if that is threatened loans will be withheld, investment will dry up, production will slump and food prices will rise. The fact that unjust, illegitimate and undemocratic colonial and apartheid governments took land from people without compensation is not a justification for a just, legitimate and democratic government to behave in the same way.
The majority of South Africans however, have an entirely different lived experience to those who make the economic arguments against EWC. They have a long memory of brutal subjugation by colonial authorities and generations of forced removals without compensation handed down by oral tradition, borne out by the historical record and engrained in the culture of millions of people. Many continue to live in extreme poverty. They see through those who make the economic argument that they should now be reasonable for their own good. Why should they fret about declining investment or protecting the food supply and the financial system that remain under the control of people who have a scant appreciation of their needs in a world in which the lion’s share of investment is captured by those who always have controlled the economy?
On the one hand, there is an attempt to move forward by ignoring our past. There are those who believe that we can’t make progress by looking backwards. They feel that we need to move on, protecting what has been created and using it in the interests of all.
But for those who 24 years into democracy see little benefit from investment in their lives, it is easy to conclude that a piece of land may provide a chance to improve their lives and that expropriation without compensation will provide that chance. If this risks damaging an economic system that has produced so little for them they may conclude that they will be no worse off than before.
In the face of these sharply different views, parliament has set itself the task of introducing EWC without damaging the economy. How can that be done and how can we all help?
If the Government is to square the circle on making expropriation without compensation more explicit while also honouring the commitment to do so in a manner that does not undermine productivity, food security and other sectors of the economy, it will have to do this in a measured way. Such expropriation will have to be limited to land reform (not all forms of property) and applied in defined circumstances such as in respect of land acquired by illegal means or with state grants or subsidies. Compensation will have to be subject to judicial oversight, based on the principles of justice and equity accepting that just and equitable compensation may be zero in particular cases. The process will have to be regulated by expropriation legislation setting out procedures, powers of the state, rights of landowners and beneficiaries and it will have to be subject to judicial review.
All of this means that when expropriation without compensation makes its way into law, perhaps through the introduction of a revised Expropriation Act, with or without an amendment to the Constitution, the impact on the pace of land reform will be limited.
The introduction of expropriation without compensation in a manner that provides a signal to those who are looking for more radical land reform while protecting the economy will have to be backed by a package of reforms to produce the results that constitutional change alone can’t achieve. Thrashing out these reforms will require hard bargaining and compromise to secure the concessions that will be needed to make rapid progress. But we can all make a contribution if we are committed to doing so. Landowners can review their land holdings and commit to working with reinvigorated District Land Committees to identify land for redistribution. Those with land under claim can work with the Commission on the Restitution of Land Rights to finalise claims and build partnerships with land claimants. Financial institutions can work with Government to make available investment capital for the development of land distributed under the land reform programme and working capital for new landowners. The government can increase the resources available for land reform and release state land for urban and rural development. Traditional authorities can work with government and communities to secure the land rights of families living in former homelands. Municipalities can transfer title deeds to homeowners and release new land for housing. Farmers can work with the department of agriculture to support the development of smallholder farmers. The government can streamline procedures for processing restitution claims and make the process of redistribution more transparent. Government, farmers and aid agencies can work with NGO’s to improve post-settlement support to land reform beneficiaries and smallholder farmers.
None of this will proceed easily or simply. But there is more goodwill than the fractious debates about land may indicate. A “land pact” hammered out through a process of hard bargaining and compromise could ignite a spirit of cooperation in South Africa, form a cornerstone of a new “Thuma Mina society” and contribute to greater social cohesion.
Peter Setou is chief executive and Brian Whittaker a director of the Vumelana Advisory Fund.