The area in Blue Hills where land grabs are taking place on March 17, 2018 in Midrand, South Africa. Several areas in Gauteng, including Blue Hills in Midrand and Olievenhoutbosch in Centurion have seen land invasions following Parliament's adoption of a motion to review the Constitution to allow for land expropriation without compensation. (Photo by Gallo Images / Rapport / Deon Raath)
One of the biggest land reform failures of the past 25 years is the state's inability to pass legislation pertaining to communal land to secure the land rights of the millions of people living on the land, writes Elmien du Plessis.
The opening paragraph of the Constitution proclaims
that "[w]e, the people of South Africa, [r]ecognise the injustices of the
past […] and [b]elieve that South Africa belongs to all who live in it".
This sense of belonging, of being South African, is one of the undercurrents
entangled in the land conversation.
study found that 68% of black people agree that land must
be returned to blacks in South Africa, regardless of the consequences for the
current owners or the political stability. 91% of white respondents in that
study disagreed. While the study found that land was not a priority issue for
most people, it did warn that if it is not resolved, land grievances will grow
and become a more prominent issue that can be exploited by politicians.
The land issue is likely to remain with us for a
fairly long time. It is therefore no surprise that most parties pertinently
addressed the land issue in their manifestos. While the land issue has been
divisive and has the potential to be even more divisive if land reconciliation
is not addressed, there is a surprisingly great amount of overlap between the
parties' official stances.
manifesto promises a "sustainable land reform program",
that redresses historical injustices, unlock growth and promote socio-economic
transformation. The focus is on addressing productive assets for people, unlock
agricultural productivity, secure food security and address spatial separation.
To do so they will support the amendment of Section 25 to make clear the
limited conditions under which "expropriation of land without compensation"
can take place (with the caveats that this must be done in a way that supports
economic development, agricultural productivity and food security). There are
promises of working with agribusiness to develop support and to include
small-scale farmers. They also seek to accelerate the transfer of title deeds
to rightful owners and the use of state land to use for affordable housing.
The DA in their manifesto notes the
corruption and elite capture in land reform, the lack of political will and the
lack of training and capacity. They stand for (private) property rights (with a
focus on ownership) for all South Africans, that needs not come at the expense
of existing property owners. They state that expropriation without compensation
will violate private property rights, and as such are against an amendment of Section
They are for land reform as a means of redress, but
also as a "powerful tool for economic development of individuals and
communities". Their plan is, amongst others, to roll out titling to
housing beneficiaries and people on communal land, support emerging farmers,
prioritising land reform in the budget and making use of state-owned land for
land reform and housing.
starts by promising an amendment of Section 25 to allow for expropriation
without compensation (without any caveats), in order to ensure equal
redistribution immediately. To do this, they propose a custodianship model –
where private ownership of land will be discontinued, and instead be owned "through
the principle of progressive state custodianship of land". This will be
done through a People's Land Council that will manage the distribution, and a Land
Ombudsman who will ensure that the rights are not abused by state officials and
The EFF manifesto guarantees the rights of people
living in communal areas (specifically mentioning Xolobeni), with no one having
the authority to dispossess the right to land. Communal land rights will be
recordable, and traditional leaders will play no role in the allocation and
redistribution of land.
prioritises the allocation of unused state land, and support modern agriculture
and other developmental initiatives in order to redress imbalances of the past.
For this agricultural training, schools are proposed. Communal land will remain
in the hands of the people, with traditional leadership the custodians of the
land. They are for expropriation of
land, but with compensation.
Plus recognises the emotional element of land reform, and
that it cannot merely be viewed through a commercial lens. They are for land ownership
for all South Africans. They are strongly opposed to expropriation without
compensation, and requires full market value compensation in the case of
expropriation. With enough land available, the focus must be on distributing
state land and to ensure that failed land reform projects be used for
redistribution rather than targeting private land. The power to expropriate can
only be with courts.
Smaller parties like the Land Party
(7074 votes), born out of frustration with housing issues in Hermanus, focuses
mainly on urban land. The Constitution will be amended to strengthen private
property rights, and they stand for the transfer of full title of homes to the
poor. Social rentals will be provided for poorer people.
Land First (19 915 votes) calls for the nationalisation of
all land without compensation, to be equitably redistributed among people.
Impact of land
on election marginal
What role did the land question play during these
elections? Without data and interviews asking people why they voted the way
they voted, any answer is a tentative observation.
The issue might have had some impact on the EFF and
FF+ numbers, but for the rest of the parties the impact was probably marginal
with decisive local impact at places.
The EFF's proposals for land reform suggest a complete
system overhaul, and as part and parcel for ascribing to such a system overhaul,
land might have played a role.
For the FF+, it was part and parcel of "minority
rights protection", that included land, but also language and cultural
rights. Minority groups feeling under pressure, the land issue was just the
last straw, rather than the main issue, threatening their sense of belonging.
As indicated above, there is a great degree of overlap
between the parties' approach to land (except for the system overhaul of the EFF),
with only the ANC and the EFF supporting "expropriation without
compensation" – the EFF for wholesale expropriation, and the ANC in
limited instances that will be clarified in legislation.
The elephant in
Where the parties do
differ remarkably, is on the issue of traditional leadership and communal land
rights – the elephant in the room. We know about the criticism of traditional
leadership's role in land use decision-making in the High-Level Panel Report and
its recommendations that will mean that some assets will be removed from the
Ingonyama trust. We know little attention has been given to the report. We know
that Ramaphosa wooed King Zwelethini and told him that Ingonyama Trust land is
safe, but that Kgalema
Motlanthe called traditional leaders "tin-pot dictators"
who think they have a rightful claim to the land.
One of the biggest land reform failures of the past 25
years is the state's inability to pass legislation pertaining to communal land
to secure the land rights of the millions of people living on the land. People
on communal land lack substantive protection of their rights through
legislation, and often have to go to court to assert and define their rights,
relying on an outdated 1996 Interim Act that provides limited protection, but
not substantive rights. There is, and always has been, pushback from people
living on communal land against the passing of the so-called Bantustan Bills.
Communities are constantly practicing democracy in
deep ways by holding the government accountable, by making it clear that within
the communities are subjects of their own rights, rather than objects of
legislation and policy that is negotiated amongst political elites. Voting is
just one tool in this strategy of ensuring a place in "we, the people".
On the one hand it can explain the surge in support
for the IFP in KwaZulu-Natal, where the dismantling of the Ingonyama Trust is
on the cards. On the other hand, in the area of Xolobeni, community members
have been fighting against the granting of mining rights to mining companies that
negotiated with traditional leaders about the land without their consent, the
voting pattern shifted remarkably. In 2014 the ANC won with 98,57% of the
votes. In 2019 the community came out strongly against the ANC, with the result
of 50,44% for the EFF and 43,86% for the ANC. A similar local victory based on
issues of land went to the Land Party that took over a couple of wards in Zwelihle in Hermanus.
Other than this, unemployment, crime, service
delivery, education and corruption seem to be more of an immediate concern to
most citizens than land. It does not mean that the land question is
unimportant. If unaddressed, land grievances will grow, and has the potential to
become a volatile issue, especially in the hands of politicians, if they can
effectively mobilise around the frustrations – both nationally and in communal
My wish for the sixth Parliament is that we move away
from the thought patterns of yesteryear – in the limiting way we regard
property rights, and what we regard the role of traditional leaders to be when
it comes to land. The Constitution forces us to do so. The rights in the
Constitution should work together to achieve the constitutional goals as set
out in the preamble and the founding provisions, and should not be viewed as opposing
or conflicting. Rights should be promoted and protected alongside one another.
We want a society that looks different from the one
predating the Constitution, and to do so will require thinking differently. Any
form or reform will require sacrifices and have limitations, and we need to be
honest about that. It is a prerequisite for the concretisation of "[w]e,
the people of South Africa".
- Elmien du Plessis is associate professor in Law at the North-West University.
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