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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.)
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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.)
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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.
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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).
