By: Tembeka Ngcukaitobi
Land distribution is vital to address the injustices of colonialism and apartheid, but we need a transformative vision of the Constitution and political action guided by the law.
If expropriation of land without compensation is to be state policy, it must take its place within the larger programme of land reform, rather than displacing it. For its part, land reform is not about the crude land confiscation from the whites for its “return” to blacks.
Rather, land reform seeks to reconcile three intersecting and overlapping currents: correcting historical wrongs; confronting the present social and economic inequities; and securing an equality-based future for all. If land reform is unable to meet these goals, it will be a failure. We must first of all accept that the state’s current programme for the restitution of land is in disarray.
And there are many reasons for this. The cut-off date of 19 June 1913 failed to provide an anchor point around which past dispossessions could be forgiven, and a new future forged. The cut-off date has aggravated and entrenched dispossession. Claimants who believed in the historical legitimacy of their claims to the land were soon disappointed when they learned that their claims fell “outside” the land restitution process because the law says there are no restitution claims for those whose land happened to have been lost on the 18th, rather than on 19 June 1913.
For those with legally valid claims there were problems of “proof”: with the passage of time, records are lost, memories fade and witnesses with direct experiences of the dispossessions die. Even the most iconic of cases which evidence dispossession as recent as the 1960s, like the District Six case, experiences the same difficulty. People who were there at the time are slowly dying out. In this climate of complexity and confusion the “experts” – historians, advocates, attorneys, anthropologists, property valuers – have displaced the landed and the landless as the central players in the struggle for the return of the land.
Structural problems aside, the programme of land reform is bedevilled by gross incompetence and corruption. Public funds allocated for the promotion of the public good by paying land holders in exchange for availing land to the claimant categories, who are often descendants of the indigenous people, have gone to waste. About a year ago, it was disclosed that some R54 billion had been spent on land reform since 1994. Yet it is hard to show the value for the spending, especially when one considers that less than 10% of agricultural land has passed from whites to blacks since 1994. All of this explains the mistrust in the ability of the state to “deliver” on the land promise.
Where to begin
Amid the public discontent about the failure of land reform, a sense of directionlessness prevails within the bureaucracy, although the new Minister of Land Affairs, Thoko Didiza, is injecting much-needed vision and institutional reorganisation. Yet she faces the old challenge of what to do first. Recent policy activity on land reform has created a policy congestion, which she must first clear. Take for instance the Ingonyama Trust land: despite the government having been advised by at least three research-based bodies that the correct approach is to redistribute that land directly to the communities occupying it, there is official reluctance, yielding to pressure from izinkosi.
The introduction of the office of valuer-general, which was intended to bring about clarity to proper terms of land valuation, has added to the confusion. Cases are stuck at the Land Claims Court over disputes about the legal validity of the land price determinations of the valuer-general. Not only is there a pervasive sense of policy uncertainty, claims are also simply not being processed because of disagreements about money. Hence the notion of “expropriation without compensation” notwithstanding its attendant definitional complexities has emerged as the “solution” to the perceived crisis. But let us return to conceptual questions about how the achievement of freedom, equality and human dignity through restoration of land rights can be attained. I propose a redistributive model, but under certain conditions.
The redistributive model
The redistribution of land to those in need is emerging as a viable focal point for the advancement of the goal of access to land. And for sound reasons too: while not eschewing historical claims to the land, the redistribution of land connects the past with the present; it recognises that the conquest of the people of this country was not a single event, characterised by a once-off taking of the land. Rather, it was gradual and totalising in its design. The conquest of the land was supportive of the entire colonial project, concentrated on the extraction of cheap African labour, the destruction of the political autonomy of African communities and the deliberate disruption of African modes of being. In sum, the taking of the land was only an instrument in the total cultural, social and economic domination of black people. If that legacy is to be undone, the return of the land should be restorative of African humanity. Transactions about the “return” of the land are incomplete without restoring the dignity of those from whom the land was taken.
But what land should be redistributed? Some commentators have focused on state land. Yet South Africa’s land surface is 121 million hectares. Out of this, only 18 million are state owned. But importantly, about 2% of the land owned by the state is suitable for redistribution. Hence only by focusing on privately owned land can we address the legacies of the past and undo present inequities.
If privately owned land is the general category, how do we move to the specific? How does the state choose which privately land owned should be earmarked for state taking to promote the public good? The moral justification, embodied in our Constitution, for the compulsory taking of private land, still lies in history: if present ownership is directly linked to morally questionable acquisitions, such as conquest, state interference with private property is justified. But as Robert Nozick suggests in Anarchy, State and Utopia, the primary principled justification for state interference with private property fades into irrelevance once the historical injustice has been addressed. This proposition itself generates further questions about the type of state he had in mind. How can society right the wrongs of the past without creating new patterns of injustice? So, beyond the complexities of history and moral justification, practical questions about the productive use of a finite resource like land must come to the fore. Thus, any redistributive model should start with the premise that land will not be available forever and is to be productively used for the benefit of society. And land is an inheritance for future generations.
The priority for the compulsory state taking of the land for redistributive purposes must be the private holders not currently using it productively. Specific categories can be developed to carry this out. Farmland lying fallow, hijacked buildings, abandoned buildings fit the class of properties in the category. But the important point is that the main justification for the compulsory taking of the land is its non-productive holding. Reversing structural inequality is therefore not only about access but includes the use of the land.
Although state land is scarce, some land is held indirectly by the state in various forms such as communal land under the custodianship of izinkosi. There is controversy about this category of land. But we should recall that a constitutional mandate – apparently observed only in the breach – is that the state must take measures to foster conditions to enable citizens to gain access to land on an equitable basis. The colonial state was founded on the deprivation of African land tenure. A key mode in this connection was the reorganisation of the political administration of black communities into tribal areas, native yards and Bantu reserves. In each of these, the political control was entrenched in the hands of government-selected tribal overlords, who owed no allegiance to the people but to the colonial state. Mahmood Mamdani in his Citizen and Subject, referred to these phenomena as reflective of a “bifurcated state” and the “indirect rule” of Africans. The white colonial state was for citizens, with its own rules of government, lording over African subjects, who were centrally controlled in terms of the Eurocentric versions of “native law”. The Constitution was intended to reverse this by recasting the relationship between African communities, their izinkosi and the land. Thus, for redistribution to succeed, it should uproot the colonial state and its surviving, stubborn tentacles: the people, not the izinkosi, should control the land.
Urban versus rural land
While communal land provides a measure of tenure security, tenure over urban land is much more precarious. World Bank studies show an urbanisation rate of more than 60% in the past 20 years in South Africa. The message is clear: the colonial state disrupted the agrarian society to an irrevocable degree. Access to rural or farmland will not satisfy land hunger. Urban land must be factored into the frame. But the term “urban land” might require some unpacking. If we apply the ANC’s Ready to Govern document of 1992, recognition was given first to acquisition of land. The state, it said, “should therefore have the power to acquire land in a variety of ways, including expropriation”.
Yet, expropriation could not be the sole means of land acquisition. Other policy instruments, including “land taxes which, if correctly applied, could have the effect of land being freed for redistribution” were to be considered. Land taxes are no longer within current policy thinking, which has tended to focus narrowly on acquisition through expropriation. However, land acquisition strategy can be undermined through the loss of extant rights to the land. Popular wisdom holds that land occupations detract from an orderly programme of land reform. But experience shows that often land occupations by the truly landless can facilitate a radical land reform programme, if official responses do not consist in rubber pellets and spray guns.
Domestic laws already validate “unlawful” land occupations where justice and equity demand. Extending the notion of justice and equity to situations of genuine need for land, and proven state failures to avail alternative land can bring hundreds of unlawful occupiers within the protective ambit of legislation such as the Prevention of Illegal Eviction and Unlawful Occupation of Land Act of 1997. The state should recognise that eviction is not always the answer to unlawful land occupation – resettlement often provides the correct, justice-based answer.
But a state such as ours can neither encourage land occupations nor depend on them for land reform. Proactive action is mandated by the Constitution. But where to start? As a party in government, the ANC does not start from a blank slate. Its Ready to Govern document is more illuminating than anything it has produced in recent times. Four categories of urban land were the targets of immediate redistribution when it assumed power: “land held for speculation; underutilised land or unused land with a productive potential; land which is being degraded; hopelessly indebted land”. The precise definitions are of course a matter for legislative and statutory expansion, but the point is to identify land categories that may be the target for urban land redistribution without compensation. We now know that the land legacies of the ANC in the past 25 years have been of failure and disappointment.
This should not define the future, however. If land reform under the rule of law is about the restoration of African identities lost through conquest, we should interrogate what precisely was lost in European conquest. Land is not the only asset that was lost through colonial occupation. Cattle, farming implements, labour and human potential were pillaged away. African societies were broken up, their cultures ravaged and their identities erased. The legal formulations of “restitution” or “redistribution” appear as narrow to fully capture the scope of the project of restoration.
A forward-looking reparative project is urgent. We need a new way of looking at the future. This is the debate of the ages. Narrow, legalistic conceptions of the meaning of the Constitution must be avoided. Land reform is not the problem of judges, although they no doubt should define its legal content and parameters, as Justice Edwin Cameron recently showed in the Mwelase case. And this was not the first time that he had done so. Three years ago, he set out a vision for the future amid the complexity of the past in the Salem Partycase.
Cameron’s finding in Salem that “in approaching and understanding what the historical sources tell us, we seek to find habitable means of upholding and fulfilling the statute’s restorative principles of historical justice” is a powerful statement reminding us that the law can bridge the past and present. We have much to learn from Cameron’s vision of how the Constitution can correct historical claims to justice. But there is a lot of time ahead too. An imaginative, expanded and transformative vision of the Constitution and its statutory progenies is needed.
If we took this lesson seriously enough, “transformation” of property relations might serve not to entrench the colonial property framework in its imperial guise, but to challenge and confront it. Perhaps we might also think beyond the straitjacket of redistributing land from private hands to private hands. We might also expand our vision to multiple forms of land holding. We might also accept that the primary beneficiaries of land are those who work it. Farm workers are at the forefront, not at the back of the queue. The politicians and their auxiliaries do not feature. To make the Constitution count, we should refocus it. The Constitution’s ultimate goal is to dismantle the colonial and apartheid state. The unequal land patterns are colonialism’s most enduring legacy. But it cannot be resolved by chaos and elite land grabbing, but through deliberate political action guided by the rule of law.
Article was published by New Frame, 19 November 2019
New Frame is a not-for-profit, social justice media publication based in Johannesburg, South Africa. Retrieved from https://www.newframe.com/rethinking-the-past-and-future-of-land-reform/
An earlier version of this piece appeared in the Sunday Times.