/ 21 September 2018

Land reform needs laws and imagination

About 20-million people in communal areas have had their rights to land undercut by legislation that has given power to traditional authorities and not to local and provincial governance.
About 20-million people in communal areas have had their rights to land undercut by legislation that has given power to traditional authorities and not to local and provincial governance. (Madelene Cronjé/M&G)

If there is any lesson to be learned from the past 23 years of South Africa’s trial and error experiment with constitutionalism, it is that constitutions do not change society. 

Governments do. But only when they have the political will to do so. We cannot deliver thoroughgoing transformation and decisively alter the pervasive structural inequality in society by tinkering with the law.

Nor is legal fundamentalism the answer. Change comes only through social activism and political action. Yet political action without the rule of law quickly degenerates into the rule of the strong against the weak — while the “struggle” evokes the rhetoric of “the people”, the interests of the poor can be displaced by the elite.

Constitutionalism, therefore, must focus on activism for progressive social change in favour of the poor, grounded in the rule of law.

Despite a supportive constitutional framework, land ownership patterns have not changed. Elite interests remain firmly entrenched.

But even as we recognise this, consensus on the land debate is emerging, the elements of which I wish to highlight.

The first is that narrow constitutionalist arguments will not bring about land reform. A mere tinkering with section 25(2)(b) of the Constitution simply confers power on the state. More power. But it does not address the structural and political impediments to land reform.

The state has the power to expropriate land. This has always been the law, since the days of the Union of South Africa.

Section 25(2) of the Constitution also catered for this power when it provided, in plain language, that “property may be expropriated in terms of a law of general application”. And part of the legal architecture of our Roman Dutch heritage is a little known judgment of the then Appellate Division delivered in 1915. Judge Rose Innes held that “[i]t is, of course, within the power of the legislature to deprive an owner of valuable property without compensation”.

In the era of the Constitution, a unanimous judgment of the Constitutional Court has also affirmed the principle, with the finding that “it is permissible for legislation, in the broader public interest, to deprive persons of property without payment of compensation”.

Since it is plain that the Constitution is no hindrance to land reform, and even less of a hindrance to expropriation of land without compensation, it is clear that land reform cannot be attained by altering one section of the Constitution. Politically, of course, the timing of the debate on the amendments to the Constitution is as treacherous as it is uncertain.

But even as political expediency threatens rationality, a new appreciation of the scale of the undertaking is emerging. It is now accepted that the three pillars of land reform in the Constitution — restitution, redistribution and land tenure reform — remain the only viable mechanisms for sustainable land reform.

Also accepted is that the collapse of restitution under the weight of corruption, bureaucracy and the policy dogma of the market cannot be blamed on the Constitution.

Urgently required is a shift from fixed notions of the market to the arena of justice and equity. Saying that, of course, is hardly illuminating, as “just and equitable” remain elusive concepts. Concrete work in the design of models to translate the demands of the Constitution to tangible financial models is necessary.

Sustainable land reform under the rule of law is not possible without appreciating its financial, social and political cost. When the Constitution speaks of justice and equity, the intention is not to shut down the debate, but to start it.

What we need are imaginative solutions to the complexity of the task of balancing the public interest, the demands of the landless and the interests of the propertied classes.

In its ideal form, restitution of land was intended to restore land rights taken under apartheid and colonialism since June 19 1913, when the Native Land Act of 1913 became law. It was a direct response to the historical demand of the struggle: the taking of the land of Africans by European settlers through forcible conquest.

However, its limits were evident from the onset. Restitution was limited to the period after 1913, eliding the period of actual seizure of land by Europeans by some 250 years. Restitution could not possibly resolve landlessness. Not only was the 1913 Land Act a mere ratification of the colonial land grabs, the mechanics of restitution imposed a burden of proof on landless black land claimants to produce “evidence” of“dispossession”.

Restitution failed also because of corruption and inefficient institutions.

A new land model must accept the inherent structural faultlines of restitution. Apart from the settlement of the claims to land rights submitted before the original cut-off date of 1998, restitution cannot be the answer to the problem of landlessness and homelessness in South Africa. Yet for reasons of history restitution cannot be abandoned altogether. The overall point is about shifting the focal point of land reform to redistribution.

Redistribution, too, is no magic wand. Which land? For who? How? The answers to these questions must be found through experience, not pontification. The immediate task right now is the passage of the national legislation mandated in section 25(5) “to foster conditions which enable citizens to gain access to land on an equitable basis”. Discharging this obligation necessarily compels us to answer the question of citizenship: if the majority of citizens lack equitable access to land, does South Africa belong to all, as the preamble to the Constitution asserts?

There are practical issues, too, which must be explained. Deciding which land will grant citizens equitable access requires a focus on the needs of citizens. Urbanisation rates suggest that the greatest needs for land and housing are in the urban areas, thus making access to urban land a priority.

Moreover, it is estimated that more than 20-million South Africans live in communal areas under traditional authorities. Two features of land tenure have undermined the rights of people living in communal areas.The first has been the gradual shifts in political power from the state and its elected representatives to traditional authorities.

Recent legislative measures have also concentrated power in the hands of traditional authorities away from democratic institutions such as provincial governance and local municipalities.

Another feature equally destructive of the rights of access to land by people in communal areas has been the role of mining companies. Mineral rights have been used to deprive communities of their land, as every mining right necessarily requires the displacement of people from the land.

Communal areas cannot be excluded from the scope of land reform. Nor can the state reach private undertakings with traditional leaders, insulating “their” land from reforms to bring about equitable access to the land by all citizens. Under the Constitution neither the state nor traditional authorities own the land in the communal areas. The people do. Legislation must make this clear to avoid ambiguities.

When the ANC released its Ready to Govern document in 1992, it identified state land as an obvious category for redistribution. Twenty-five years on, in the resolution on expropriation of land without compensation, the same was repeated, despite the apparent irony that for those years there had been a failure of the state to distribute its land to citizens.

Whatever class of land is identified, unless the beneficiaries are transparently and clearly identified, the risk of elite enrichment remains. And if access to land should advance social change in favour of the poor, beneficiaries must be the poor and the landless.

Precisely because land must contribute to real social progress, the state bears a duty to provide material, intellectual and financial support to any new land beneficiaries. The nature of that support might vary, but the key message lies in the recognition that access to land without ability to turn it into productive use does not advance the constitutional goals of equality and freedom.

Some aspects of expropriation itself require clarification. The first is the scope of the power to expropriate. Under section 25(2) expropriation is permissible when property (or land) is taken in the public interest or for public purposes. Most expropriations take place “for public purposes”, rather than “in the public interest”. For this reason the state cannot hope to use expropriations as the sole instrument to guarantee access to land.

Related to this is that expropriation without compensation cannot be the default position, but should be available for certain specified instances, to be defined in legislation. A power to expropriate is an invasive power — under apartheid it was frequently abused to dispossess black people of their land. The democratic government cannot use laws in the same manner that the apartheid government did.

For the democratic government the power to expropriate is necessary not to perpetrate racism, but to reverse the terrible legacy of racism. A sparing, targeted and proportional use of the power to expropriate is necessary to prevent the arbitrariness that was the hallmark of the apartheid state. Striking that balance requires a firmer commitment to constitutionalism.

Tembeka Ngcukaitobi is a lawyer andauthor of The Land Is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism