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The state should be custodian of land

2018-05-27 12:47

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In February, Parliament resolved on the Economic Freedom Fighters’ (EFF’s) motion to start a process to review and amend the Constitution to allow for land expropriation without compensation.

The motion instructed the Joint Constitutional Review Committee to review section 25 of the Constitution and other clauses where necessary, to make it possible for the state to expropriate land without compensation; propose the necessary constitutional amendments with regards to the kind of land tenure regime needed; and to report back with recommendations no later than August 30.

Parliament’s adoption of the motion with 74% of the votes of MPs was an acknowledgement that the ANC has failed to address inequality in land distribution brought about by colonial and apartheid land dispossession. It was also an acknowledgement that apart from administrative incapacities of the state, section 25 of the Constitution in its entirety is an impediment to radical and thorough land reform.

Land inequality is not a mere matter of political posturing – it affects millions of South Africans. The country has a total land surface area of almost 122 million hectares. A 2014 land audit showed that 79% of the country’s land was still in private hands, 14% was state-owned and 7% was unaccounted for owing to it not being surveyed, the loss of ownership records or because most owners may not have converted their old rights into new ones.

Last year’s audit report on private ownership of land shows that 94% of 121 million hectares is registered with the deeds office. The remaining 6% is unregistered trust state land in the Eastern Cape and Limpopo. The report also shows that 90% of the land audited is owned by companies (25%), individuals (34%) and trusts (31%). Community-based organisations (CBOs) own 4% and 1% is owned through co-ownership. The same individuals who own most of the land are beneficiaries of these companies, trusts and CBOs.

In terms of ownership of agricultural holding by race, the report revealed that whites own 72%, coloureds 15%, Indians 5%, Africans 4% and others own 3%. This signifies the extent of land inequality more than two decades after attainment of political freedom.

The concentration of land ownership is even more alarming in agriculture. The agriculture department reported that in 1993, South Africa had 57 980 farms, reduced to 45 818 in 2002 and 39 965 in 2007. The decline in the number of farms is a product of consolidation of smaller farms by wealthy large farmers, not the reduction of agricultural land. State agricultural subsidies and protection fell away from 1994, which led to collapse and takeover by largely capitalised farmers and the vulnerability of smaller farmers.

Hence the EFF argues the need for direct state intervention to restructure landholding to direct and aid processes of production strategically. This can only be done through expropriation of land and place it in the custodianship of the state.

State ownership of land and lease to private companies is already happening. South Africa has five forestry provinces and the department of agriculture indirectly manages 368 505 hectares of state plantations through lease agreements signed with four private forestry companies and the state-owned South African Forestry Company Limited.

The department also manages 109 commercial forest plantations with a total area of 63 114h. There is no evidence that a state ownership and lease system has caused damage to the forestry industry.

Coega in Port Elizabeth is on land owned by the Coega Development Corporation, a state-owned entity. There is over R6.2 billion operational investment in the zone and a further R16.6 billion has been secured. Dube TradePort in KwaZulu-Natal owns the land jointly with the Airports Company, and to date more than R1.2 billion has been secured for operational investment, with a further R1.8 billion, although not yet operational. The Richards Bay industrial development zone owns the land jointly with the municipality, with well over R320 billion operational investment.

This is to demonstrate that there are no facts to the anxiety that state custodianship of land will chase away investment. To the contrary, it proves that state-aided investment is necessary to development, hence the EFF’s call for state custodianship of all land – which will facilitate investment and equitable redistribution of land, and resolve the housing crisis. A piecemeal approach to land expropriation advocated by some in the ANC, backed by white liberal so-called experts, will not scratch the surface of land poverty and inequality.

Within the current constitutional framework, land expropriation without compensation would have to be dealt with case by case. The state must negotiate and pay compensation to the current land owner, which must be “just and equitable”, taking a number of factors such as history of acquisition, current use and market value of land, and purpose of expropriation into account. Neoliberal land experts argue that within this framework, there would be instances where expropriation without compensation would be possible, which is preposterous.

Firstly, no current land owner would agree to have their land expropriated without compensation. Secondly, the Constitution clearly states that if the state, as an expropriating party, and the land owner cannot reach an agreement, the matter must then be resolved by the court. This means the land redistribution programme will excessively rely on litigation and land owners can deliberately halt the process by going to court each time there is a case of expropriation. Therefore, any Constitutional amendment that does not give the state custodianship of all land will be inadequate.

State custodianship of all land is not unique. About 75% of the land in Singapore is owned by the state, which then leases it to those who need to use it. The same happens in China, Mozambique and Ethiopia.

In South Africa, the state is a custodian of all mineral resources. Mining companies apply for a licence to mine and explore. It is the collective incapacity and mediocrity of the ANC which has left the mining sector to be a law unto itself.

It is also cowardice of the ANC by fudging its own understanding on what needs to be done to expropriate land without compensation. But the ANC’s collective lack of direction must not let us lose focus of the big responsibility at hand. The resolution of the land question ought to have been finalised a long time ago, and the parliamentary process set in motion must be finalised as soon as possible.

- Shivambu is deputy president of the EFF

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