The government is planning a “constitutional revolution” to fast-track land reform, including considering expropriation without compensation.
The ruling party also wants land reform to include restitution for “precolonial dispossession” before the 1913 Native Land Act came into force, and a cap on the amount of land an individual can own.
With most South African land still in white hands, the failure to fundamentally change ownership patterns continues to be a sensitive issue and a point of weakness for the ANC.
Current data shows that the state owns 14% of the country’s land, with 79% being in private hands. Although there is no conclusive data to show how much of the private land is owned by black people, Rural Development and Land Reform Minister Gugile Nkwinti said preliminary findings showed that it was “very little”.
In an exclusive interview with the Mail & Guardian this week, Nkwinti said the governing party would also push for the immediate freezing of land purchases by foreigners until the Regulation of Land Holdings Bill, which seeks to restrict foreigners to leases of between 30 and 50 years instead of ownership, is signed into law later this year.
ANC national executive committee (NEC) member and Minister of Small Business Development Lindiwe Zulu told the M&G in a separate interview that the ANC government could no longer be held to ransom by investors at the expense of citizens’ needs.
“The bottom line is that we are in trouble. We need to fast-track the decisions we took. We just need to bite the bullet, in my view,” she said.
Nkwinti, also an NEC member and head of the government’s economic cluster, said the ANC has been soft on the issue of land for way too long and that he was happy about the intensified approach the party had resolved to take.
“Just remember, the ANC has always been careful. The ANC is serious about not messing with the lives of people, even to its own detriment. Now people say: ‘You are too slow,’ and the ANC says: ‘We’ve heard you; we are going to accelerate the pace of the constitutional revolution.’”
The government would align itself with the ANC’s radical stance on land reform that was adopted this year, and would explore the possibility of expropriation without compensation, Nkwinti said.
He added that the government would approach the Constitutional Court to understand the meaning of the constitutional provisions on “fair discrimination”, and whether they could be used to allow for land to be expropriated for redress without compensation.
“Does that mean that you may compensate people in a fair and just manner which is provided for, but at the same time what do you say about people who lost land under unjust circumstances?”
When asked how the ANC government proposed to address the constitutional requirement in section 25, which requires compensation for expropriation, Nkwinti said: “It is still too soon to determine without a clear understanding of a practical legal meaning of ‘fair discrimination’. A court declaratory [judgment] would clarify that. Once that clarity is obtained, a firm action decision will be taken.
“We will not act outside of the Constitution,” he said.
Last week the ANC’s lekgotla outlined the steps it wanted Nkwinti to pursue to fast-track land reform.
The first was to finalise an audit of state-owned land. The second was to put in place a single piece of legislation on land reform that would outline the practical meaning of fair discrimination, taking into account the manner in which people were dispossessed, once the Constitutional Court had been approached.
Section nine of the Constitution, called the equality clause, prohibits unfair discrimination on a number of grounds, including race, gender, sex and religion. Discrimination on the listed grounds “is unfair unless it is established that the discrimination is fair”.
Section nine also says: “To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”
The equality clause has been used in the implementation of affirmative action policies. Now the government wants to establish whether it could also be used for land reform.
As criticism of the slow pace of land reform increases, the Economic Freedom Fighters’ radical approach to expropriate without compensation has reawakened discussions on the matter, potentially putting the ANC under pressure.
President Jacob Zuma has yet to sign the expropriation Bill into law, which will not rely on the willing-seller, willing-buyer principle but does require compensation to be paid.
Setting a compensation amount would take into account market value and the history of how the land was acquired, the state’s contribution to the land and the purpose for acquisition, before setting a fair and equitable price.
Unlike the existing Expropriation Act of 1975, the new Bill requires the state to give the landowner prior notice and detailed reasons for expropriating a particular property, as well as an opportunity to submit objections.
Although the intention behind the radical approach is to speed up land reform, Ruth Hall of the University of the Western Cape’s Institute for Poverty, Land and Agrarian Studies said resistance to expropriation efforts would probably result in further delays in the transformation of land ownership.
“There’s likely to be some expropriation, but it’s not likely to radically speed up reform. We can expect to see more court action,” she said.
Nkwinti said the government accepted the major risk of increased litigation, particularly in the event of land being expropriated without compensation, but said the plans would still go ahead.
The radical stance will also involve banning the foreign ownership of agricultural land. The Regulation of Land Holdings Bill, which Nkwinti expects to be passed before September, will restrict foreigners to long-term leases of 30 or 50 years and impose a ceiling on land ownership by locals, to ensure there is enough land to go around.
The draft version of the Bill allowed for land ownership of up to 12 000 hectares in some sectors but, Nkwinti said, he was advised to decrease the threshold to 5 000 hectares. Meanwhile, the minister will submit a memorandum to the Cabinet to freeze land purchases by foreigners until the Bill comes into effect later this year.
The South African Property Owners Association has warned that forging ahead with the Bill will reduce foreign investor confidence.
Land redistribution has additional complexities for farmland. The government has set itself a target to ensure that all farms redistributed between 2014 and 2019 remain productive, but new landowners encounter difficulties in, for example, securing water rights for irrigation. The water and sanitation department issues licences to individuals and not for the land itself.
The duration of the handover process has also often seen land lie fallow for years, leaving it unworkable for those who take it over. These factors have often led to new landowners reselling the farms because of financial strain.
To address this, Nkwinti said part of the plan would also involve transforming how government institutions collaborated with each other to co-ordinate redistribution.
“We’re talking about institutional transformation, which is really very subtle. This is really where it matters most because if you don’t embark upon institutional transformation, you run into a situation where we’re in now.”