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The Land Question Part 2: Why is Malema bent on getting the land back?

Lack of effective and swift land reform is doing nothing to bridge the huge inequality gap in South Africa. But if we know that it’s so important, why has land reform not been successful in South Africa? In the second instalment of a two-part series, The Daily Vox explores the current land reform processes in place, the problems with these and what future plans are in place to implement it.

READ FIRST: The Land Question part 1: What is land reform? 

How has government tried to right this wrong?

The African National Congress (ANC) has always supported land reform. In their first ever political manifesto in 1994, they committed to “guarantee victims of forced removals restitution, which should be carried out fairly through a Land Claims Court” and to “use state land in the implementation of land reform.”

The Restitution Act was passed in 1994 to deal with restoring land rights to those dispossessed by the Natives Land Act, to establish a Commission on Restitution of Land Rights and a Land Claims Court; and to provide for matters connected to this.

The Act has been amended twice since then, in 1998 and 2014, to allow for extensions on the cut-off dates for people to file their land claims. However, it has failed dismally.

“Since 1994, about eight million hectares of the total of 86 million hectares of white-owned farmland have been transferred to black South Africans through land restitution and redistribution. Government’s initial target in 1994 was to transfer 30% of agricultural land by 1999, but slow progress led to the target date being moved to 2014,” wrote Professor Ben Cousins in his paper: Land reform in South Africa is sinking. Can it be saved?, commissioned by the Nelson Mandela Foundation.

“Several thousand large rural restitution claims are yet to be resolved, and about 20,000 settled restitution claims have yet to be implemented. Amendments to the law in 2014 allow hundreds of thousands of new claims to be lodged up until 2019,” he added.

Why is it so difficult to implement land reform?

Dr Ernst Marais, senior lecturer in Private Law at the University of Johannesburg listed a number of ways that land reform has failed in South Africa.

“Institutions such as communal property associations and trusts, through which land reform beneficiaries hold land in common, remain poorly supported and are often dysfunctional. Joint ventures between claimant communities and private-sector partners have experienced major problems,” he told The Daily Vox.

Tenure reform has also failed, there are increasing reports of corruption by traditional leaders in areas with minerals, there is no protection of the informal economy – including markets for food, according to Marais.

“Many of the assumptions informing policy are highly problematic. A large-scale commercial farm model informs assessments of “viability” and shackles thinking about how to support smallholders. Rural households are often seen as a homogeneous category, but are in fact highly differentiated. As a result, targeting of land reform is ineffective.”

For the spokesperson of the Social Justice Coalition (SJC), Axolile Notywala, the problem lies with the lack of focus of the ruling party’s political elite.

“If you’re talking about democracy – 20 years of democracy – and nothing changes, then it’s a matter of people getting frustrated. It’s a matter of people saying enough is enough. You get issues such as state capture and if the focus is on that then the issues that need to be addressed won’t be addressed. We have a political elite that has focussed on filling their own pockets rather than addressing the issues.”

Notywala added that it is important that there are ways to hold our leadership accountable. He said that we need sound policies with checks and balances to ensure their implementation before any change can be made.

What could go wrong with land reform in South Africa?

For Marais, the worst that could happen in terms of reform is that the issue of landlessness is not addressed soon enough.

“If we do not see meaningful change within the next 10 to 15 years, the majority of the population, which does not have access to land, might grow tired of waiting and might then take the law into their own hands. What could then happen might be similar what took place in Zimbabwe, and I think we can all agree that this is not a viable long-term solution to our country’s problems.”

Marais added that the Constitution makes provision for the state to pursue active land reform.

“The property clause both protects existing property interests while also allowing the state to achieve much needed reforms. The Constitutional Court has made it clear that the property clause must be interpreted in such a way that its protective elements do not stand in the way of the change envisioned (and authorised) in the very same property clause. For this reason the state has all the tools it needs to realise true transformation of our society,” Marais said.

What’s this about an Expropriation Bill?

Earlier this year, Parliament approved the Expropriation Bill, which allows the state to make compulsory purchases of land to rectify racial inequalities in land ownership. Expropriation refers to the means to take the land from its owner for public use or benefit.

According to Marais, South Africa’s expropriation law is governed by two pieces of legislation: section 25(2)-(3) of the Constitution and the Expropriation Act 63 of 1975. The problem is that the act that governs appropriation precedes the Constitution. Marais said the current legislation is not reform-friendly.

“These provisions expressly allow expropriation for land reform and also move away from market value as the central requirement for calculating compensation for expropriation, which is the requirement in terms of the Expropriation Act. The Constitution stipulates that compensation for expropriation must be “just and equitable,” taking into consideration five factors, which are listed in section 25(3) and of which market value is but one factor.”

For this reason, Marais thinks it is necessary to adopt a new Expropriation Act that is aligned with the Constitution.

“The Expropriation Bill is currently in the process of being enacted, so as to create clarity as to how this state power works. It is my view (and hope) that once this Bill becomes law, the state will actively use this power in cases where it cannot acquire land on a voluntary basis from landowners to obtain than land so as to realise land reform,” he said.

Cousins also told the Daily Vox that the Bill could prove a useful tool for the state. “Expropriation is a useful instrument and it’s very necessary that we have a law which is in line with the Constitution so that when we expropriate land for public purposes such as schools and hospitals, but also in the public interest such as land reform – which is a definition in line with Constitution – we are enabled to acquire it, not simply to pay market value for land, but we are enabled to pay prices which reflect the history of that land, the manner in which it was acquired, the subsidies which were paid in the past and so on. We can subtract those values from the market value and thus make the expropriation more affordable.”

However, Cousins said that the Bill could slow down land reform. For Cousins, the downside to expropriation on a large scale is that landowners might pursue court action and lock the land in lengthy court proceedings.

“It will in fact slow down land reform. This is all assuming that the property clause in the Constitution remains unchanged. I personally think it is unlikely that an agreement will be reached where you can expropriate land without compensation at any point in the future,” he said.

The Bill is currently on President Zuma’s desk awaiting his attention, and needs to be signed by him before it can become law.

So will there ever be social justice in South Africa?

“It’s already taken 20 years, it won’t happen tomorrow. It will be a long struggle,” Notywala said.

Featured image by Ashraf Hendricks
2 Comments
  1. Parks says

    Apartheid was corrupt to the core. A lot of land was transferred to private hands towards the collapse of Apartheid in the late 80s and early 90s. We need Land Auditing in South Africa. Those who claim to be owning some portions of land need to show thier papers and how they obtained those portions. This will also help with recording the land which is in the hands of the foreigners and the state including municipalities.

  2. anon says

    Ahhh, more fake news from black trumpists. Look at what Justice Malala wrote about the champion of land reform in The Times this morning: http://www.timeslive.co.za/thetimes/2017/01/23/Disinformation-scandal-the-truth-behind-the-white-monopoly-capital-propaganda-assault

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