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Do you see how the land lies?

2018-05-27 10:24

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The ANC conference at Nasrec in December resolved on expropriation of land without compensation (of course, as we were told, with caveats).

The Economic Freedom Fighters then tabled a motion in Parliament, which the ANC supported, proposing expropriation without compensation and seeking that section 25 of the Constitution be reviewed.

And last weekend, the ANC held its land “workshop” which recommended expropriation without compensation – already a resolution of its conference. An interesting twist to the saga is the admission by the chair of the economic transformation committee that he was not aware that the “willing buyer, willing seller” provision was never ANC policy and/or that it didn’t appear in ANC documents. Sounds like a leader who doesn’t want to read, but to lead. The ANC is about discussion and policy documents. If you do not want to read, then you should not want to lead. Not even the Constitution talks of willing buyers and sellers.

The Freedom Charter envisages that restrictions on land ownership shall end. This is not just about the laws which imposed these restrictions, but everything that goes with imposing them. Therefore, the first question must be what constitutes a restriction to land ownership and, thus, what must be ended. The charter goes further to instruct that all land must be redivided among those who work it. This must have been intended to address the plight of the black workers mainly on the farms. Thus the question must be whether the party’s workshop recommended that this land must be redivided among those who work it. It doesn’t help to use fancy words such as ‘redistribution’ when simple words such as ‘redivide’ result in certainty of purpose.

One of the caveats of the Nasrec resolution was that the method of expropriation must not threaten food security. The assumption may be that those who are presently in possession of land are the only protectors of food security. The reality, though, is that only one person among those who produce the food on the land owns that land. The rest are the ones contemplated by the Freedom Charter – who work the land and therefore produce the food. That they work that land under horrendous conditions does not detract from the fact that they work it. The Freedom Charter calls this category and others the peasants who must be helped with implements, seed tractors and dams to save the soil and assist the tillers. The charter envisaged real freedom of the peasants and not mere protectionist policies against exploitation by those who own the land. So the workshop must tell us whether this is what it seeks to achieve or simply to modify the current system to provide limited protection to the peasants on the farms. In simple terms, is this land going to be redivided and the peasants assisted or not?

The charter talks of the equality of all national groups. The reality is that one national group only owns and/or occupies about 13% of all the land. Having set aside apartheid laws, have we set aside apartheid practices? Twenty-four years later, the impact of apartheid continues to be felt and the wealth of our country, including land, remains in the hands of the minority. Poverty, unemployment and hunger, which the charter instructs against, remain a reality. The workshop must have confronted these realities and dealt with them. With the increasing levels of inequality and unemployment, when will the farm workers have the same rights as all others who work, including the right to own the land they work?

It remains unclear as “recommended” by the workshop what needs to be tested regarding section 25 – which is clear that while it protects property rights, including rights to land, it equally permits redress measures. This has always been the case. The fact that people opted to negotiate to buy land for restitution purposes does not detract from the fact that section 25 never precluded adopting serious and decisive redress measures. Section 25(8) in particular is empowering to the state. It is hardly confusing or ambiguous to require any testing. The current debate regarding the proposed amendment may just be misplaced. The section must be understood in its proper context and purpose. Property rights are among those protected in the Bill of Rights. These rights enjoy special protection like all other human rights.

However, these rights may be limited. It is true that the section requires that compensation must be paid when a right to land is taken away. This provision was, however, not intended to protect those who benefited under apartheid, but those who will acquire land under the democratic government.

The section is structured to deal with three things:

. To protect the right to property in the ordinary course of events;

. To recognise and address past injustices which affected those deprived of the right to own land; and

. To provide a redress mechanism for victims of past injustices.

In as much as it envisages compensation, the section also makes provision for certain considerations which will affect the value of such compensation. It is even possible that, once all the factors provided for are applied, there could be zero compensation and/or compensation far below market value.

Then comes the question of the land owned by the state, most of which was acquired under apartheid laws. Does the state need to compensate itself for that land? When is this land going to be returned to its rightful owners and/or redivided to provide land to those who don’t have it, and/or when are those who work on that land going to be given access to it? Does this need an amendment of the Constitution?

Section 25(8) enables the state to take measures to redress the results of past racial discrimination. This section was clearly intended to prevent the hands of the state being tied by the rest of section 25. All that the section requires is that whatever right to property the state seeks to limit must be exercised in accordance with section 36, which enables the rights in the Bill of Rights.

The ANC workshop appears to have not confronted the issue of the commodification of urban land – the single most adverse factor that precludes ownership of land – and access to decent housing for the poor and middle class. As the Freedom Charter instructs, the people must have the right to occupy land wherever they choose. Did the workshop provide any options for these people? This is important, regarding the cost of land in urban areas.

The question of land under traditional leaders requires a debate of its own. To call traditional leaders tinpot dictators is insulting, to say the least. There is nothing in terms of existing law which precludes addressing abuse of power by any traditional leader, or communities from having security of tenure. The system of traditional leadership is not always based on land ownership and not all land under traditional leaders is “owned” by those leaders. In many instances, traditional leaders “own” the land by default of what the past apartheid laws created. Nothing precludes the state from restituting that land to the rightful owners without interfering with the system of traditional leadership. It must consult the people under the system of traditional leadership who must decide whether they want to remain there. The land issue must not be the tool used to do that.

The excuse that section 25 precludes expropriation of land without compensation is rather lame. The issue is not and has never been about expropriation without compensation. The issue is simply that a law compliant with sections 25(8) and 36 of the Constitution was never considered and passed to give effect to the permission to redress the results of past racial discrimination, which led to, among other things, the current land ownership problems of this country.

As long as the debate is parallel to the Freedom Charter and does not deal with what it envisages, we will remain very far from the real debate. Whichever way the debate goes, whether genuine or not, land, poverty and the economy cannot be separated.

Mannya is an advocate and former public servant.

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