Some thoughts on land policy – OPINION | Policyweb
Some thoughts on land policy
Terence Corrigan |
July 22, 2022
Terence Corrigan responds to Tembeka Ngcukaitobi’s article on ‘The Freedom Charter and the Land Question’
The Freedom Charter retains an intense emotional grip on many South Africans, often presented as something of an arbiter of what South Africa’s future should hold. This emerges strongly from the recent contribution of lawyer Tembeka Ngcukaitobi (“The Charter of Freedom and the Land Question”, July 12, 2022).
Although the Freedom Charter is an artefact of South Africa’s political and intellectual heritage, it carries no weight in law or policy. It is, however, interesting to note what Adv Ngcukaitobi had to say about the Charter’s vision for land ownership. The oft-repeated demand that the land be shared among “all who work it” and that “the restriction of land ownership on a racial basis be lifted” was not a call for nationalization. “The promise of the Charter was not to end private land ownership, but its racialization,” he writes.
If ending “racialization” means expanding opportunities for those hitherto excluded, this must be embraced with enthusiasm. Adv Ngcukaitobi has been a strong advocate – as he does in this article – for a more aggressive approach to land reform. “The great debate of our time, of course, is whether there should be expropriation without compensation, explicitly provided for in the fundamental law of the land, the Constitution.”
The expropriation bill, he says, is a “promising start”, but insufficient. His solution is a land redistribution law, described in these terms: “What we need is a forward-looking restoration program. We need a land redistribution law. We need the law to allow the state to acquire land without paying the exorbitant prices it has paid. It should provide for a fair and equitable formula that applies across a spectrum from zero compensation to more than market value, particularly where the expropriated are black.
He continues: “We don’t need to put the land back in the hands of the state. Many successful restitution claimants will simply not accept any proposal to take away what little land rights they have. What they want is more protection from the state and from the state, not less protection. They are entitled to more secure tenure, not less secure. The promise of the Charter is to subdivide the land to those who need it, not to give it to the ownership and control of state officials.
Its overall approach seems to be that this law would accelerate the expropriation of properties for redistribution (with compensation differentiated according to the circumstances, among which would be the race of the owners), while protecting the beneficiaries of this initiative from state predations.
Any assessment of such a law would require an examination of the relevant text and its specific provisions.
Whether this would be politically possible is questionable. The ANC has shown some enthusiasm for expropriation as a tool for managing land reform (at least in theory – in practice, like so many other things within the purview of the state, land reform by any means creeping glacially), but an ambiguous attitude to private property and security of tenure.
Indeed, it is difficult to look at the state of land governance and land policy and conclude that in the eyes of the government and the party, the latitude of the state to redistribute land (and many moreover) and effective control by “State officials” are intimately linked.
Ownership – certainly, if by this is meant the full ownership of property, with title deeds as affirmation – was explicitly rejected for most beneficiaries as a possibility in the tenancy and disposal policy. of 2013. (Only for those capable of farming on a substantial commercial basis, and only after decades would a sale be considered.)
The state took that line in the case of David Rakgase, who turned to the courts in exasperation and frustration after the state reneged on a deal to sell him the farm he was using. The government court documents said the existing policy was based on the “principle that black farming households and communities can obtain 30-year leases, renewable for another 20 years, before the state considers transferring ownership to them “.
Deadlines were reportedly revised to reduce the length of time in-state tenants could qualify for ownership, though this was done with little fanfare.
Indeed, during the Parliamentary debate who launched the inquiry into whether Article 25 of the Constitution should be amended, former lands minister Gugile Nkwinti made it clear that title deeds would not be on the table. On the contrary, he said that “a progressive revolutionary government should then have lands and allocate them to the people”.
(Surprisingly, Adv Ngcukaitobi has previously spoken in terms that suggest the government is all in favor of title deeds, and that they are in fact a bad idea.)
The idea that all land should be in the “custody” of the state has come up repeatedly, including as part of a 2017 land audit recommendation (a document to which lawyer Ngcukaitobi refers ).
And this is one of the reasons why the Institute has been so critical of the Expropriation Bill. Among other things, the bill’s definition of expropriation indicates that deprivation of property will not meet the definition of expropriation; the State will have to appropriate it. When he takes property as the “custodian” of the nation, this will not constitute expropriation and no compensation need be offered.
Adv Ngcukaitobi seems aware of the problems of a dysfunctional and venal state exercising power over land holdings (especially, as he implies, those held by people from behind). He seems less aware of how the expropriation bill could actually be used in this way.
He is also aware of the problems that beset land reform. The Institute offered proposals to support it in both urban and rural areas, in order to allow beneficiaries to enhance their assets without destroying real estate markets or discouraging investment.
Finally, Adv Ngcukaitobi raises an issue that has featured in official discourse from time to time: that even when restitution claims have been settled, beneficiaries have often received financial compensation. This delayed the “restoration” of land – or perhaps, more accurately describes, the move towards demographic representativeness of land ownership. (This was considered a goal in the report of the Presidential Advisory Group on Agrarian Reform and Agriculture.)
He writes: “The main promise of the Charter was that South Africa belongs to all who live there, black and white. Does South Africa in fact belong to everyone, while Africans are excluded from land ownership?
This claim is debatable. Africans were indeed unjustly deprived of land ownership rights at the time the Freedom Charter was drafted. For a combination of reasons related to the historical legacy AND to the choices made by the government since 1994, the obstacles to home ownership remain in their path. These need to be dealt with.
But it is a leap of logic to arrive at the (implicit) conclusion of this rhetorical question. Land ownership is not a prerequisite for membership or participation in a society, certainly not in the 21st century, or in a society that is two-thirds urbanized. To portray it as such is to romanticize it and alienate the problem solving from the country. (Interestingly, Adv Ngcukaitobi makes the observation that land is often used as a metaphor for other demands, such as housing – but one can’t help but think he is making a similar mistake.)
There is a considerable body of evidence to suggest that land – especially in the agrarian sense – is not a major demand. Most South Africans believe their interests are better served elsewhere. Given South Africa’s level of development, this is not surprising. We may well mourn the processes that have inflicted such damage on the African peasantry and excluded many who might otherwise have pursued a career in agriculture. But the corrective measures must be pragmatic and not ideological.
And South Africa’s future can only be found in the future, not in the past.
Terence Corrigan is project manager at the Institute of Race Relations. Readers are asked to support the IRR by texting 32823 (SMS costs R1, Ts and Cs apply).