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02 Mar 2018 09:00
In 1992, the ANC produced a document titled Ready to Govern, containing the party’s ambitious vision to govern South Africa.
Yet, after the party seized state power through democratic elections, South Africa was atypical in that there would be no transfer of political power among members of the same ruling elite.
Here, the assumption of state power by a party of revolution implied, by necessity, the obligation to transform society.
But how to do it in a neocolonial country ruled by apartheid, where the chief occupation of state power was the dispossession of land and the rigid control of an entire people?
The answer was to be found in a set of constitutional principles, whose historical pedigree was firmly entrenched in the ANC.
First, the principle of the rule of law, which guarantees equality for all, would apply. Second, the primary duty of the state would be transformative. Finally, a Bill of Rights, enforced by an independent judiciary at the apex of which was the Constitutional Court, would be necessary.
If transformation was the ultimate purpose of constitutionalism, how would this be achieved? The Ready to Govern document envisaged first and foremost a thoroughgoing land reform programme, based on three pillars — restitution of land, security of land tenure and land redistribution.
These principles found their way into section 25 of the Constitution, known as the “property clause”. Contrary to popular perception, at its heart the property clause does not calcify existing property relations but records the mandate of transformation in the area of property rights.
It instructs the government on the modalities for achieving the transformation of property rights. It does so in three important respects.
First, it requires the state to guarantee the security of tenure of people with legally insecure holding over land.
Through obnoxious pieces of legislation such as the Natives Land Act of 1913, white governments undermined the security of tenure of black people living in “native reserves” or on farms taken over by white people. Black people, for instance, could only hold property through white intermediaries such as missionaries.
When the Native Administration Act was passed in 1927, it recognised the British governor general as the “supreme chief of all natives”, with the power to order the expulsion of any black person from any part of the country.
Arising from decades of precarious occupation of land by black people, section 25(6) of the democratic-era Constitution specifically required of Parliament to enact legislation to guarantee black people “either … tenure which is legally secure or … comparable redress”.
The Extension of Security of Tenure Act put in place land tenure protections for those living on farms. But the first attempt at bringing such legislation into effect for people residing on communal land went up in smoke at the Constitutional Court in the 2010 Tongoane case, because of the government’s failure to properly consult affected communities.
As things stand, no effort has been made by the government to bring about a fresh piece of legislation to guarantee security of tenure for people living in communal areas. Yet security of tenure faces multiple and growing threats, ranging from traditional leaders to private landowners.
Furthermore, the restitution of land is constitutionally mandated. But its ambit extends only to those who can prove dispossession on grounds of racial discrimination from June 19 1913, the date when the Natives Land Act became law.
As explained in Ready to Govern, those prioritised for restitution were victims of forced removals and former labour tenants “with a long association with particular pieces of land”.
The failure of restitution has embodied the story of the failure of land reform. Reliable academic indicators have proven that the ANC government’s initial target of restituting 30% of land in its first five years in power since 1994 was not met. In fact, only about 6% to 7% of claims have been successfully settled to date. Allied to the mandate of restitution is the power of expropriation, subject to compensation that is just and equitable.
In the 21 years of the Constitution, the power of government-led expropriation for land reform purposes has hardly been tested. No reasons have been publicly advanced for this timidity.
Now that compensation is to be abandoned as a default rule of any and all expropriation schemes, the government will have to confront the uncomfortable facts about the failures of land reform.
Weak institutions, corruption, bureaucracy and the government’s willingness to pay land prices far in excess of the constitutional standard of “just and equitable” compensation are the key explanations for the collapse of the land restitution programme.
The case of Mala-Mala, in which the state paid close to R1‑billion for a single claim days before the case was to be heard by the Constitutional Court, typifies the problem of land reform.
The final leg of the Constitution’s transformative mandate is redistribution. Its chief aim, as articulated in Ready to Govern, is to deal with “landlessness and land hunger”. But what land is the subject of redistribution? The concern of Ready to Govern is the “productive usage of land”.
It aimed to ensure the “immediate attention” to legislation imposing a ceiling on land ownership and multiple ownership of farms, as in the case where one owner has many farms.
But not every piece of ground would be the subject of redistribution. Only “vacant, unused and underutilised state land suitable for residential and agricultural purposes shall be made available for redistribution”.
Although published nearly 30 years ago, Ready to Govern is a relatively recent policy statement in ANC terms. In it lies the origins of the framework for compensation in cases of compulsory acquisition of land. Its contents have largely been forgotten and its goals abandoned.
When the Economic Freedom Fighters placed land back on the national agenda by means of its parliamentary motion of expropriation without compensation, it refocused the ANC’s vision to acknowledge one of its cardinal pillars: the struggle against land dispossession.
There will inevitably be a pushback, with opponents invoking the spectre of economic and social instability.
But, as the Constitutional Court ruled in the Bato Star case, “transformation cannot be sacrificed at the altar of stability. It must be carried out responsibly and its adverse impact must be minimised.”
Nowhere is this judicial counsel more appropriate than in the area of land reform.
Tembeka Ngcukaitobi is a human rights lawyer. He is the author of The Land Is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism (Penguin)
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