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.
A 2009 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.
The ANC's 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 25.
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.
The EFF 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 mining companies.
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.
The IFP 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.
The FF 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.
The Black 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 the room
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 areas.
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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