Land reform must not flout property rights
The rhetoric of “expropriation without compensation” is a rallying cry for African nationalists,but, at the same time, it directly challenges progressive African liberals. Significantly, it makes a promise to the electorate that the ANC cannot hope to keep.
Implicit in “expropriation without compensation” is a clear suggestion to those millions of citizens who feel dispossessed of land that they personally stand to benefit.
Once a demographically appropriate proportion of that land is transferred to black ownership, even allowing for subdivision where possible, the ownership of South African land will still overwhelmingly be in the hands of a tiny minority.
The reality is that the great majority of South Africans will never own land outside the cities and towns. Only a very small proportion of chosen and privileged black South African families can hope to benefit from land reform.
The call for orderly land reform in South Africa cannot be made loudly enough. As a result of our colonial legacy and the systematic dispossession of land from black South Africans over centuries, productive farm land is disproportionately in the hands of white families.
Our journey towards establishing a modern democratic state in which we, as one South African nation, can claim an identity rooted in social justice and human dignity demands that the demographic representation of land ownership changes dramatically without delay.
But is it just and right to expropriate land without compensation?
Property in the hands of the overwhelming majority of current landowners was acquired either by relatively recent purchase at market prices or through inheritance. Our law explicitly protects property rights and this is central to our rights and freedoms, part of our national vision for the future, and is enshrined in section 25 of our Constitution.
There is a strong moral argument that white landowners acquired their land by means of a land grant in colonial times, and should therefore not enjoy the protection of modern property rights — the land was “originally acquired illegally”.
Although a powerful philosophical argument, this approach pivots on punitive measures linked to the race of the owner. Typically it suggests that the issue of “compensation”, in particular, is determined by the owner’s race.
It attaches not to the land but to the race of the owner, and involves withdrawing the fundamental constitutional rights of some South Africans purely on the basis of their race. It crosses a legal and a moral boundary we cannot afford to cross.
In a modern South Africa, this is not who we are; this is not our vision for the future; nor is this the democracy we are striving to strengthen. In 21st-century South Africa, we don’t believe in arbitrary discrimination and withdrawal of legal rights based on skin colour. That belongs to a brutal and barbaric past.
The law as it exists on expropriation for the purpose of land reform takes a line that attaches to identified land itself, and not to the identity or race of the owner. In simple terms, it says that if a piece of land is needed by the state for land reform, irrespective of the race of the owner, then that piece of land can be expropriated by the state for what could be termed “fair value”.
Fair value can be decided either by agreement with the owner or by the courts. In terms of section 25(3) of the Constitution, it must take into account a range of factors, including the purpose of the expropriation and the history of the property.
The importance of payment is that it maintains the integrity of a fair process of property transfer for the common good, which must, if we are to move forward, be morally defensible and cannot be seen in any way as stripping rights from citizens based on arbitrary factors such as race.
Land reform is a messy business. The solution was never going to be ideal. But the purchase of land with funds from the national fiscus at fair value (typically below market value), and the redistribution of that land, by means of its sale to identified beneficiaries at subsidised prices, must surely be the most elegant solution.
The laws are already in place to do this; why the ANC government has, since 1994, not pursued this strategy more vigorously is a mystery.
Indeed, by now there should be infrastructure in place to facilitate the efficient processing of land transfer: there could be a dedicated land court, a commission to facilitate soft loans for the purchase of land by identified beneficiaries, or the identification of funding, which could be channelled through the South African Land Bank. (It already has products designed to support soft loans for startup farmers from disadvantaged backgrounds). It is disappointing that we see so little of this.
Land can be expropriated at any time by the state for the common good, and land reform is formally recognised as a common good. But it must take place in a process that acknowledges the rights of all South Africans equally, including their property rights. — Michael Watermeyer, Cape Town