South Africa’s tiny propertied elite heaved a sigh of relief this time last year when the government dispatched the ”Red Ants” to forcibly remove the thousands of poor and landless people who had occupied the Bredell land. Glibly accepting the state’s assurance that ”Zimbabwe-style land invasions won’t happen here because we have an orderly land reform programme”, the elite averted their gaze from the abject failure of the land reform programme in the hope that its clay foundations — the ”market-led willing-seller-willing-buyer” ethos would nevertheless, somehow, protect their security.
The clay began to crumble this week as the beneficiaries of apartheid launched a bid to remove a critically-placed brick from the shaky edifice of post-apartheid land reform. The brick — the state’s right to expropriate land for land reform — is all that stands between the promise of orderly land reform and the prospect of desperate actions by the poor and landless to secure land through their own effort.
The rights of existing white landowners were disproportionately protected by the outcome of Kempton Park negotiations on property rights, but the post-apartheid state managed to retain one tool to effect land reform. The state’s right to expropriate land in the public interest, including its right to redress the legacy of apartheid land dispossession, is guaranteed as a fundamental right under the constitutional property rights clause (Section 25). This right is given effect by the provisions of the law governing land restitution.
This week the right-wing Transvaal Agricultural Union (TAU) launched a bid to severely restrict the state’s right to expropriate, by seeking an order that confines this right to land directly under claim through the land restitution programme. This would mean that, if the exact land that was stolen from a community is no longer available, the state could not expropriate alternative land to satisfy a claim. The minister of agriculture and land affairs and the National Land Committee filed separate, but complementary, applications to oppose the TAU, with the National Land Committee filing as a friend of the court.
If successful, the TAU bid will force the state to its knees in negotiations with the country’s 60 000 white farmers. The fallacy of the assumption that these farmers represent anything approaching ”willing sellers” has already been exposed by the fact that the state has spent millions of rands from the land reform budget to obtain less than 2% of the country’s land. Opportunistic pricing behaviour by white landowners has severely limited the ability of the state to deliver comprehensive land reform.
Although the state demonstrated its reluctance to exercise this right by withdrawing its attempt to expropriate the Boomplats farm of Willem Pretorius last year, it was forced to pay dearly for its withdrawal, netting Pretorius a handsome profit. As the beneficiaries of apartheid seek to extract maximum compensation for the end of apartheid land ownership, expropriation is the only weapon available to our highly deregulated state to ensure that land reform happens.
Making matters worse, the TAU has simultaneously mobilised white landowners to resist the voluntary sale of their land to the state to satisfy the long-outstanding Lohatla land claim.
A parallel case heard by the Land Claims Court this week pitted the South African National Defence Force against the Gatlhose, Maremane and Khosis communities, who are demanding restoration of part of the land now occupied by the Lohatla Battle School. The defence force wants to prevent the restoration of any of the Lohatla land to the communities, while the latter want part of Lohatla as well as alternative surrounding private land in compensation for parts of Lohatla that are now contaminated. Either way, the claim cannot be satisfied without the purchase of private land that is not directly under claim. Efforts to find willing sellers have mostly failed due to the direct efforts of the TAU and other right-wing farmers to convince their counterparts not to sell their land to the communities.
While the TAU’s identity as an apartheid relic may lead some to dismiss its campaign against land reform as the project of a minority, the impact of a ruling in its favour will alter the terrain on which South Africa’s post-apartheid land reform unfolds.
The National Land Committee and other land sector organisations have argued since the 1993 Land Policy Options Conference that the ”willing-seller-willing-buyer” policy would prevent meaningful land reform by making it too costly for the state. Eight years and millions of rands later, the argument speaks for itself. If the state’s hands are tied further by confining its right to expropriate private land needed for land reform, the clay foundations of the land reform programme will disintegrate, leaving little hope that South Africa’s land question can be resolved outside of widespread land occupations by the poor and landless.
Zakes Hlatshwayo is the director of the National Land Committee, South Africa’s leading land rights NGO network