Widely reported as ”the first farm expropriation”, the Commission on the Restitution of Land Rights recently announced that it had expropriated a 25 200ha farm near Barkley West in the Northern Cape to settle a restitution claim by 471 families. The expropriation notice came into effect on January 26 and the land is now vested with the state until it can be transferred to the claimants.
The move grabbed headlines around the world. ”Whites fear Mugabe-style evictions,” declared the Belfast Telegraph (February 14). Actually, no. At home, in South Africa, the news was met with a muted response: investors didn’t flee, the markets didn’t jitter, the rand didn’t plummet.
On the other hand, there was a remarkable absence of voices congratulating the government for taking this overdue step after years of prevarication. It seems many are not convinced that this step marks a significant acceleration in land reform and restitution.
Up until now, landowners have wielded astonishing power over the restitution process. The choice of whether to sell or not has, in effect, given the current owners of claimed land power of veto. The state can hardly shop around for land elsewhere when certain claimants have a legitimate historical claim to a specific piece of land. This gives owners substantial price-setting powers. And when claims cannot be settled because there is a deadlock in negotiations between the government and owners, claimants lose out.
The recent expropriation signals that the state intends to intervene, selectively, to push through claims when agreement cannot be reached. This is wholly in line with the state’s constitutional obligations to enact land reforms ”in the public interest” and the normal power of eminent domain.
Expropriating land claimed through the restitution process is part of the unfinished business of transition. What is unfolding today is the excruciatingly slow and painfully cautious process of government making good on the promises made at the Convention for a Democratic South Africa (Codesa), back in 1993, where the much-criticised compromise on property rights paved the way for democratic elections. The Codesa pact still informs our Bill of Rights, which recognises the property rights of owners and the dispossessed. Where these rights contradict one another — as they inevitably do — the state has appealed to the goodwill of owners and tried to resolve what is essentially a political problem by throwing money at it. Until now, where landowners have been unwilling to sell, the state has backed down, allowing the status quo to trump the rights of the dispossessed.
We South Africans seem enamoured with the idea of win-win solutions to deeply intractable problems. But redistributing land cannot always result in everybody winning. Until now, there has been no sign that the political will existed to drive a programme of change that, of necessity, must confront vested interests.
Of course, expropriation is nothing new; government regularly expropriates numerous properties each year for public purposes such as roads and dam construction. But the expropriation of land from one private owner to transfer it to another, in the interests of land reform, is something new.
Comparisons with Zimbabwe’s large-scale confiscation of farms, however, are spurious. There is no indication that expropriation is to be used as anything other than a method of last resort. So far, it has only been countenanced as a way to deal with restitution and not in the wider process of land distribution. And, unlike our neighbour, South Africa has the legal and institutional mechanisms to provide oversight as the state intervenes in favour of the landless to settle historical claims. We have a land claims commission, and land claimants and landowners have recourse to a specialist land claims court.
Those most likely to object — representatives of white farmers and the DA — agree that expropriation may be necessary and have no in-principle objection to it. With an eye on the interests of their members and supporters, they have called instead for market-related compensation.
Recent slanging matches between the minister of agriculture and land affairs and white farmers’ unions have centred not on expropriation, but on an aspect of what President Thabo Mbeki terms that which is ”ugly and repulsive” in South African society: human rights violations against farm workers.
Beneath the name-calling and the kiss-and-make-up meetings, there is clear continuity: a class of landowners assured that the state will protect its interests and defend its property rights. The expropriation of claimed land marks no departure from the general friendly relations between the government and landowners.
It is significant, for instance, that the government chose for its first expropriation not the owner-operated farm of a single white farmer, but a large swathe of land owned by the Evangelical Lutheran Church of South Africa. The move was announced only after the fact, and without much fanfare, suggesting that the government did not aim to use this as a warning signal to others.
Property valuation is a sticking point in many ongoing restitution and land reform disputes. Because expropriation is an administrative rather than a judicial function, landowners can contest the compensation they are offered — not the expropriation per se.
Property valuation to calculate compensation is going to be key to contestations over expropriation, since valuers inevitably use the techniques of the profession to serve their paymasters, be they commercial farmers or the state. Disputes over how much the state should pay property owners have centred on comparisons with recent sales, the value of top structures and the potential of existing and future land uses. This is increasingly contested, given the rate at which agricultural land is being converted into luxury developments such as golf courses and private game reserves. At Gongolo in KwaZulu-Natal, for instance, cattle farmers asked for prices based on the prospective value of the planned private mega-game reserve — even though the reserve is not yet a reality.
More important than the technical question about ”market price” is the political question of whether or not to pay it. The government is under no obligation to do so. The Constitution requires that compensation be ”just and equitable” and balance ”the public interest and the interests of those affected”, taking into account not only market value, but several other questions, such as how the land was acquired and used.
For now, it is unlikely that government will use its constitutional room to manoeuvre to drive down levels of compensation to any substantial degree, not least because of the considerable underspending of the restitution budget and the relatively small savings that it may gain. The government doesn’t want to, and it doesn’t have to.
The story that really should be told about the expropriated Lutheran Church farm is not the expropriation, but the fundamental dispute regarding what is to happen after it is restored to claimants.
This expropriation is not a case of an intransigent landowner, hostile to restitution and refusing to sell to the state. The church not only agreed to sell the land, in negotiations with the commission back in November 2005, it also agreed to the offered price of R35,5million. Delays in the purchase of the land arose because of attempts by the church to conclude a joint venture agreement with the claimants and an outside investor, in terms of which the claimants would lease out their land for 25 years, reportedly for a combination of land uses, including game farming and diamond mining. This provoked deep divisions among the claimants about whether the terms of the agreement would be to their advantage and who would stand to benefit. They disagree on how to use the land, whether to occupy and use it themselves or lease it out, and on what terms. This goes to the heart of the challenge for restitution: how to transform restored rights to land into viable development.
Nearly two years after the much-lauded National Land Summit in 2005, land reform continues to hobble along on much the same basis as before. The minister of agriculture and land affairs and her departments have launched at least four separate processes to develop a new policy, and these continue in parallel. The president’s bland comments on restitution in his recent State of the Nation speech suggest that all is in hand and the work is nearing completion, while in fact the bulk of rural restitution claims are outstanding and the process is likely to take many more years.
In the rural areas, this ”unfinished business” of transition has barely begun. What is remarkable is the enduring patience of the tens or possibly hundreds of thousands of land claimants who lodged their claims before the deadline in December 1998 and are still waiting to return to their land. The government has proceeded on the assumption that additional funds from the National Treasury and the exhortations of the president and minister will be sufficient to speed up land reform. This is not so.
Now we have a deadlock-breaking mechanism. The government is likely to expropriate selectively and strategically with the aim of inducing landowners to negotiate reasonable prices.
Expropriation solves one central challenge: how to get the land. The recent expropriation signals the expansion of land reform beyond exclusive reliance on the market, but if the state’s intervention in favour of poor and landless communities extends only to acquiring land, new owners will be set up to fail and ”the market” will soon return property to the privileged few.
The overwhelming focus on finishing up the outstanding restitution claims by 2008 is in danger of leading to an unhelpful focus on how fast this can be done, sometimes at the cost of ensuring that those returning to their land will be given the support they need to use it to improve their lives.
What remains to be addressed are the deeper problems of inappropriate business planning, over-reliance on ”strategic partnerships” where claimants lease out their land, and a chronic lack of post-settlement support. What is still needed are massive improvements in the state institutions responsible for settling claims, planning settlements and providing support to those who return. The state’s willingness to intervene where necessary to settle the claims should be welcomed, but let’s not forget that getting the land is just the start.
Ruth Hall is a researcher at the programme for land and agrarian studies at the University of the Western Cape