Roger Fisher and William Ury point out in their 1991 book Getting to Yes that “people tend to assume that whatever they fear, the other side intends to do”. The president announces that the ANC has decided that section 25 of the Constitution must be amended to make the possibility of land expropriation without compensation more explicit. Many of those who fear this assume that a wholesale raid on private property is intended and that, without secure property rights, the financial system will be at risk and individual liberty may be undermined. Many assume that those who sound these cautionary notes intend to hang onto privilege and frustrate the development of a more just and cohesive society.
Now the president has to balance the equation: to honour the commitment to accelerate land reform and to attract investment, expand the economy, create jobs and build a more cohesive society.
It can’t be done, some would say. But perhaps it can, if certain conditions are met.
First, expropriation without compensation will require careful management by the state. It will need to:
- Limit expropriation without compensation to land reform;
- Apply it in defined circumstances to, say, land acquired by illegal means or with state grants and subsidies;
- Make compensation subject to judicial oversight, based on the principles of justice and equity, accepting that compensation may be zero in particular cases; and
- Subject the process to regulation that sets out procedures, powers of the state, rights of landowners and beneficiaries. This, too, should be subject to judicial review.
- There will be a need for broader social agreements to produce the results that constitutional change can’t achieve. This will require:
- Landowners to negotiate with government and prospective new owners for the finalisation of land claims, the redistribution of land not under claim and the establishment of partnerships to develop the land;
- Financial institutions to negotiate terms on which to finance land reform properties and stump up working capital for new landowners;
- Traditional authorities, government and people to negotiate the land rights of families living in former homelands;
- Government to take steps to increase the resources available for land reform, release state land for development, streamline procedures for processing restitution claims and make the process of redistribution more transparent;
- Municipalities to negotiate the transfer of title deeds to homeowners and release new land for housing; and
- Farmers, aid agencies and nongovernmental organisations to improve post-settlement support for land reform beneficiaries and smallholder farmers.
How might this play into land reform in South Africa and the building of a more cohesive society?
In 2016 a diverse group of South Africans was convened to think about the future of land reform. Four “land reform futures” scenarios were developed:
- The first story of “connection and capture” unfolds as the ruling party tries to shore up support ahead of the 2019 elections. They seek new allies by making concessions to traditional leaders,allowing the politically connected to capture land reform for their own purposes.
- The “market power and concentration” story develops as the government seeks private-sector partners to accelerate land reform. By 2030 black South Africans own half of the commercial farms, but the structure of agriculture is unaffected.
- The “occupation and confiscation” scenario fore shadows the debate on expropriation without compensation. Leaders in various sectors blame one another for South Africa’s woes rather than developing a viable strategy. Countrywide land invasions follow. The ANC sides with opposition parties to allow confiscation without compensation — but still loses the elections — and the constitutional framework for dealing with land is lost.
- The “hard bargaining and compromise” scenario is triggered by rising pressure and declining resources. The government reconceptualises land reform as a pro-poor initiative with incentives designed to channel the resources of the private sector and civil society into the programme. By 2030 land ownership is more widely spread and small-scale commercial farmers are developing alongside larger farming enterprises.
Earlier this year a further set of scenarios was produced for South Africa 2030. Centred on the key question of social cohesion, the Indlulamithi South Africa Scenarios 2030 try, like the giraffe after which they were named, to see above the trees and ask what the prospects are that by 2030 South Africans will be more conscious of what they have in common instead of their differences. Three possibilities were considered:
- The first scenario is an “enclave, bourgeois nation” in which those in the enclave are okay but social divides deepen and South Africans feel less and less part of one nation.
- The second scenario paints a more hopeful picture of “a nation instep with itself”. Economic expansion, enhanced civic values and social compacts connect people and produce improvements in education, entrepreneurship, housing and healthcare. Employment increases and lives improve because citizens take charge of their own destinies.
- In the third scenario, the nation stumbles after “a false dawn”. Capacity is eroded, economic growth is stunted and unemployment remains high. Social cohesion declines as trust in one another, the state and social institutions is eroded. As 2030 approaches a new woman president is elected and hope is reignited.
These scenarios were produced by teams using different methodologies and for different purposes. But the underlying themes resonate and point toward what will be required to meet the land reform challenge in a way that builds a more cohesive society.
They consider the consequences of maintaining a broadly democratic constitutional framework for problem-solving, or giving up on that and resorting to extralegal means. They point to the possibility of social compacts and the bargaining and compromise that these will require.
All imply that progress means avoiding the trap of assuming “our” worst fears are “their” intentions.
If we can heed that advice in the way we tackle land reform, we will have not only a viable land reform programme but also a more cohesive society. — Brian Whittaker,director of the Vumelana Advisory Fund, convenor of the Land Reform Futures scenarios team and a core participant in the Indlulamithi South Africa Scenarios