The Land Question in South Africa: 25 years later-Thoko Didiza
By Thoko Didiza
“There are few in our country who would contest the fact that dispossession of black South Africans of their land contributed fundamentally to the impoverishment and disempowerment of the majority of our people...” President Cyril Ramaphosa, 20 February 2018
The land debate in South Africa continues 25 years after independence. Many commentators have written on the successes and challenges of land reform in South Africa.
Some questions have been raised as to what the impediments are, despite the constitutional provision in Section 25 of the South African constitution that allows the state to undertake land reform based on the Land Restitution Act of 1995 and other statues that have been passed since the advent of democracy.
Beyond attempts by government and social movements on this fundamental question that is key to healing the divisions of the past, as highlighted in the Constitutional preamble, inequities in land ownership remain.
Divergent views have emerged over the years as to the reason for the lack of speed in the equitable redistribution of land through resources and legal framework exists.
Some views blame the principle of “willing buyer, willing seller” that had been employed over the years. The African National Congress in its 2012 Mangaung Conference resolved that this principle should be removed and replaced by “just and equitable’ as found in the constitution. It is important to note that this “willing buyer willing seller” principle is in the 1997 White Paper on Land Policy and has been applied in the implementation of land reform programmes, but it is not in the constitution or in major land reform legislation.
Others have argued that section 25 of the constitution is a challenge and called for its review or amendment. The perceived or real impediment of the constitution will, therefore, be tested in the work of the Constitutional Review Committee that tabled its report to parliament in November/December 2018 following the adoption of the motion on land without compensation adopted by parliament in February 2018.
It must be noted, however, that concerns on the pace of land reform, the cut-off date and the move for its opening, foreign land ownership, access to land for black farmers are not new in the land discourse in South Africa.
The Landless People’s Movement and other Non-government organisation in the early 2000s mobilised claimants as well as communities from former homelands who were affected by the betterment schemes to and led the campaign for fast-tracking land reform in South Africa.
A people’s Assembly was convened side by side the Racism Conference in Durban. Some of the concerns raised by the communities where the exclusion of betterment schemes from restitution as well as the cut- off date of 1913, which communities argued was unjust as land dispossession had started long before the legal framework of 1913 Native Land Act.
In 2005 a Land Summit was convened by the Department of Land Affairs involving all stakeholders and came up with a range of resolution that sought to improve the situation. Amongst the resolution was an administrative process for the resolution of claims where there was no dispute and contestation, as well as the consideration of land tax for unused land. This led to the amendment of the Restitution Act. The access to land for labour tenants and their burial rights was equally highlighted.
The governing party, the African National Congress resolved in its 2012 Congress in Mangaung that willing buyer willing seller principle must be replaced with “just and equitable”. Expropriation of land without compensation on land acquired through unlawful means or used for illegal purposes having due regard to the Constitutions. The resolution further called for the reopening of the lodgement date of 1913 in order to accommodate the Khoi and San descendants, heritage sites and historical landmarks.
The Economic Freedom Fighters in their Local Government Manifesto raised the issue of expropriation of land for allocation for housing and other needs. There was no explicit reference to the expropriation of land without compensation.
In December 2017, the African National Congress at its Congress resolved to undertake land expropriation without compensation without negatively affecting production and the economy. On the 27th of February 2018, the Economic Freedom Fighters moved a motion in parliament on land without expropriation.
This motion was approved with an amendment from the African National Congress, ensuring that a Constitutional Review Committee must allow for representation from the public and report to Parliament in August 2018. Subsequent to the parliamentary motion the land debate has once again been placed firmly in the national discourse.
The African National Congress has held its Land Summit with a view to look at the implementation of its resolution as well as canvassing views for its representation at the Constitutional Review Committee.
The outcome of the Constitutional Review Committee was interesting in that it recommended to Parliament that Section 25 of the Constitution must be amended in. The National Assembly in December 2018 adopted a motion to set up the Ad-hoc Committee whose mandate was to amend Section 25 of the Constitution in order to make clear what is implicit.
The Ad-hoc Committee commenced its work in February 2019 laying the foundations for such an amendment. Interestingly the Committee held a view that it was necessary to have various experts and practitioners in make presentations on the possible areas of Amendment. It is important to note that the work of the Ad-hoc Committee generated interest in society on two fronts, namely:
a) The process to be undertaken given the timelines relating to the term of office of the fifth (5) Parliament.
b) How the Committee will manage the process given that the country was going for the National and Provincial Elections.
The Ad-hoc Committee agreed on the work program of work within the limited constraints of the parliamentary program. Clearly, from the program outline, it was evident that the process of amending section 25 of the Constitution could not be concluded in the term of the 5th parliament.
Having had regard on this reality, the Committee was of the view that presentations from experts were important in order to assist the committee in developing a policy framework that will guide the drafting of the legislation that amends the relevant section as mandated by the National Assembly.
The Presentations were received from those who were the drafters of the Constitution who felt strongly that the conversation of land reform in South Africa was necessary given the 25th anniversary of the democratic state. Their presentation gave the committee the perspective on the rationale for making the property clause to be in the Bill of Rights and created in the way it reads currently.
The presentation from two legal experts indicated that the State had not used the provisions provided for in the Constitution to undertake land reform such as section 25(6) and section 25(8).
Faced with the current discourse in society and the debate on the adequacy or not of the provisions of the constitution in section 25, the experts were of the view that it may be necessary to amend certain sections in order to make explicit what may seem implicit in the current provision.
The office of the valuer-general was of the view that amending section 25 (3) will assist them in their work in valuing property in order to determine the “just and equitable” value as espoused in Section 25.
Some practitioners were of the view that there should be more focus on redistribution in order to address land hunger for housing, economic use and livelihood. These inputs enriched the work of the ad-hoc committee in its deliberation. Given the timelines, the Committee gave an interim report to the National Assembly in which it recommended that:
a) That the National Assembly notes that the work of the Ad-hoc committee cannot be concluded by the 5th parliament as evidenced by the program of the Ad-hoc committee.
b) That the National Assembly resolved that the 6th Parliament should proceed with the work of the Ad-hoc committee.
The report of the Ad-hoc committee was adopted the National Assembly on the 20th of March 2019 through a vote.
There can be no doubt that this matter will remain on the agenda and it is likely to be one of those contested during the elections campaign as South Africa prepares itself for the National and Provincial General Elections in 2019.
The already tabled Political Party Manifestos include the land issue and how parties outline how they will address it. If there was an issue around which South Africans have cohered, it is on the need to address land inequity in the country. The differences are in the approaches and policy on how the matter will be addressed.
Interestingly, even if the debate was not prompted by societal frustration on the pace of land reform, or the political parties’ views on the matter, the land question was bound to emerge as it can be seen in the Xholobeni matter which relates to mining and its impact to the land rights of communities.
As the 6th Parliament designs its program for the term, it will be informed by the legacy report of the 5th parliament which will include the report of the ad-hoc committee. Given the public discourse on the land matters as well as internal conversations amongst political parties, one appreciates that the land matter will still inform the policy and legal framework of the new administration.
Land restructuring in society is an ongoing process because at any given point societies are faced with challenges that may require a relook in land ownership or administration. Some of these may be as a result of environmental matters such as degradation as well as congestion due to population growth.
Thoko Didiza is a former Chair of the Adhoc Committee on Land Reform and member of the National Executive Committee of the ANC, she writes in her personal capacity.