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07 Feb 2019 00:00
Although both manifestos begin with an endorsement for an amendment to Section 25 of the Constitution, the solutions they propose are starkly different. (Paul Botes/M&G)
Both the ANC and the Economic Freedom Fighters (EFF) will support the expropriation of land without compensation and propose the amendment of section 25 of the Constitution to achieve that end. But that is old news.
It will be recalled that the EFF had supported a motion towards a possible constitutional amendment, which the ANC largely endorsed.
Extensive public consultations were held, resulting in a formal parliamentary decision to amend the section.
The details about the contours of the amendment remain murky, but the principle remains: both parties (wrongly) perceive section 25 as a stumbling block towards the achievement of the principle of expropriation of land without compensation.
The first is the proposed text of the constitutional amendment itself.The ANC’s proposed amendment is worded in tentative and conditional language, arguing that the amendment “should be done in a way that promotes the economic development, agricultural production and food security”. By contrast, the EFF views the point of the amendment as the “equal redistribution and use” of the land.
Framing the discourse, as the ANC does — in tendentious terms — exposes the embedded assumption that any expropriation of land without compensation conflicts with economic development, agricultural production or food security. Yet we do not ask whether or not South Africa is food-secure at present. Nor do we ask whether the over-concentration of land in a few families and commercial entities does not constrain economic development.
And so, what paradigm of “economic development and agricultural production” are we talking about? South Africa’s agricultural and food security patterns remain overwhelmingly white and to the exclusion of Africans.
Speaking about food security without addressing the structure of agriculture that ensures that the ability to produce food remains in the hands of the few only superficially answers the problem. For land expropriation to work, the paradigm must shift. At the heart of food production, agricultural productivity and economic development must be in the interests of those who work the land but nevertheless remain locked out of its economic benefits.
Unless the base of those who benefit from the agricultural supply chain is radically reconfigured and expanded, the purposes of expropriation of land without compensation will be defeated before it even begins.
What about land beyond expropriation without compensation? The ANC’s offering promises a regime that will “work with the established agribusinesses” to increase their contribution to export earnings, “greater support for emerging and small-scale farmhouse[s]”, investment in agricultural research and smart new technologies, working with “like-minded countries” for a just agricultural trade regime and developing sustainable agricultural strategies.
In simpler terms, the current few agricultural monopolies will be retained.
We can expect that these monopolies will, with the support of the state, multiply their profits, while giving a “helping hand” to the poor. No structural shifts. More of the same. Large agricultural entities, it seems, will be “nudged” to support emerging and small-scale farmers.
We have heard this before. And we are in a land and agricultural quagmire because these policy ideas — repetitions of the staple diet — have not worked. The ANC promises to perpetuate the exclusion and marginalisation of farming communities and small-scale farmers.
The truth is that the development of small-scale farmers cannot be left to the generosity of large businesses. The ANC promises to “address the domination of agricultural inputs by big business and the monopoly domination in agri processing and food retail”. Precisely what this means is unclear.
Left out of the account is primary agriculture, where the cycle of exclusion is most entrenched. Africans drive tractors on farms, but do not own them. The promise to “consolidate all government support provided to small-scale farmers” might be a positive step, but in the absence of targeted institutional reforms, such as the change of the mandate of the Land Bank, they ring hollow.
Small business routinely complains about lack of access to finance. In 2002, the ANC changed the mandate of the Land Bank so that, for all practical purposes, it operates like any ordinary commercial bank. In section 26 of the Land and Agricultural Bank Act, the bank’s mandate is to provide land and agricultural finance “against security”. It can be safely assumed that the persons who need Land Bank finance the most have no security.
Without a commitment to change the mandate of the bank so that it is truly development oriented, no “government support” to small-scale farmers will alter the landscape to advance these farmers.
Although the ANC raises concerns about wasted or underused land, its solution is lacking in substance. If the goal is optimum use of land, no clear answers are given for why the principle of “use it or lose it” cannot be explicitly spelt out in the manifesto. Land and property are expensive. But it is no answer to speak of “introduction of measures to address” the high prices of land and property, when the office of the valuer general exists, but has proven utterly inefficient in driving the prices of land to reasonable levels and facilitating speedy transfers of land.
A surprising feature of the ANC’s manifesto is its adherence to title deeds. Many developing economies across the globe have now accepted that title deeds do not constitute the magic wand to the problem of insecure tenure to land. But the ANC’s manifesto repeats the mantra to “accelerate the transfer of title deeds to the rightful owners”. Families, communities and societies routinely dispute entitlement to small and inhabitable houses.
Title deeds do not solve the problem, and in some instances compound it. The problem, of course, is not about title, but about the shortage of land. Addressing that through the “recognition” of rights of long-term occupiers in communal areas is simply short-sighted.
Communal areas constitute a small portion of all available land in South Africa. This is not a surprise. The balkanisation of South Africa by the establishment of independent homelands and the Bantustans consolidated the organisation of “native people” out of the urban areas into rural areas; their primary purpose was not to serve as centres of agricultural production but as labour reserves.
Granting security of tenure to persons living in what are still in effect labour reserves hardly scratches the surface of the land issue. A refocusing to the urban areas, where the greatest need for land is felt, is what is needed.
Curiously, the ANC manifesto refers to women and land only twice. The first is women’s rights to land in communal areas, and the second is a rather strange clause that is aimed at “advancing women’s access to land and participation in agriculture and rural economies”.
But the Freedom Charter’s declaration is clear: “The land shall be shared among those who work it!” The bulk of persons who work the land are women, whether it is their own gardens, their own farms or simply as farmworkers. A manifesto responding to people’s needs should have placed women at the centre of land acquisition, land redistribution and agricultural production.
Beyond its stale proposal to amend section 25 of the Constitution, the EFF’s manifesto presents fresh and imaginative solutions. A concrete proposal is laid down for state ownership. Nationalisation of land has vanished from the rhetoric. In vogue is “state custodianship” of land for “equal redistribution to all”. Even that principle will not be applied overnight, but “progressively”.
The mechanics of state custodianship are to be spelt out in the proposed land redistribution and agrarian reform legislation. Perhaps one should add that before redistribution the land must be acquired, hence we should be talking about a Land Acquisition and Redistribution Act.
In addition, state custodianship would not result in state ownership, according to the manifesto. Instead, the state would distribute the land “in a manner that is democratically representative”, the primary beneficiaries of which would be women and the youth.
The EFF is insistent that foreign land ownership should be abolished. Their proposal to create an office for a “land ombudsperson” and the reconfiguration of the Land Claims Court are direct responses to the crisis of the collapse of the institutions of land reform, such as the Land Claims Commission and the Land Claims Court.
Unless those institutions are fundamentally restructured, it is impossible to embark upon a land and agrarian reform programme on an expansive scale.
Yet, granting the power of land redistribution to the state, as the people of Zimbabwe have witnessed, simply encourages corruption, arbitrary conduct and lack of accountability. Therefore, in reimagining the institutions of land reform, the most vital element is the rule of law.
In failing to install the institution of judicial review at the heart of the new proposed institutions, the EFF might legitimately be criticised for taking away procedural and substantial rights of persons likely to be affected by the land reform programme. In such systems — systems that lack a robust rule of law — the victims are always the poor. There is an answer to this in the form of the land ombudsman or, if it is to be established with the same powers as the public protector, a “land rights protector”.
Completely absent from the ANC manifesto are the rights of indigenous people potentially affected by mining. The EFF manifesto explicitly guarantees their protection. Mining legislation and mining practices have historically been the vehicle through which black people living in communal areas are dispossessed of land without compensation for the benefit of mining companies exploiting South African minerals. Legal precedent established in 2018 now asserts no community can be deprived of land for the benefit of mining companies without the community’s consent.
The ANC, via the responsible minister, Gwede Mantashe, intends to appeal the judgment, and has told mining companies that “anarchy” will result if he doesn’t. But there is no anarchy about a judgment that is simply an affirmation of an international law principle of free, prior and informed consent.
Moreover, there is a colonial and apartheid echo in Mantashe’s pronouncement. Mining houses and the state have for years displayed patronising attitudes, claiming to know what is in the best interests of communities. Now, communities assert that nothing can be done about them without them.
The judgment of Judge Annalie Basson is a potentially powerful instrument in the hands of communities. Unlike the past decisions about mining, one cannot exclude and marginalise the very people on whose behalf their land is ostensibly taken.
Post-constitutional legislation passed by the democratic government was intended to change the relationship between the people and mining houses in ways that truly empower the subalterns, so that “power belongs to the people”. Yet lived experiences have been the opposite. The axis of state, traditional authorities and mining companies has gradually eroded people’s power, entrenching the vulnerability of communities and opening up new avenues of economic and social exploitation.
Life cannot go on like this. The EFF’s explicit proclamation that communities such as Xolobeni will be protected by the state is a refreshing proposition. Equally innovative is the proposal to register and record customary rights to land so that customary rights-holders are offered “the same protection as other forms of rights over land”. The non-recognition of customary rights to land is a relic of the colonial order.Although legislation was passed for the interim phase, it is notable that attempts have been made to make this permanent.
I will end on a note of disappointment. Neither manifesto focuses on the needs of labour tenants and labour dwellers. Research shows that this category continues to be the most vulnerable. Municipalities have piled up excuses about why they cannot offer toilets, refuse removal and sanitation services to labour dwellers.
Farmworkers are among the most heavily exploited workers in the country; easily dispensable, and their accommodation is terminable upon loss of employment. Labour laws protecting farmworkers require strengthening. In the absence of legal protection that vulnerability has been worsening.
According to the University of the Western Cape’s Institute for Poverty, Land and Agrarian Studies, more farmworkers have lost their homes post-1994 than in the entire period of apartheid. We are at a point of crisis of farmworker homelessness.
Nor do the manifestos mention a word about land-related corruption. We should be taking corruption seriously. Today, corruption affects each and every aspect of society. Land is no exception. If we are to make progress with land reform, redistribution and productive use of the land, we should confront corruption.
Although both manifestos begin with an endorsement for an amendment to section 25 of the Constitution, the solutions they propose are starkly different. The ANC appears to pin its hopes on managing the concerns of large agricultural businesses, undertaking to work in “partnership” with them, without any interrogation about why these partnership models have produced no tangible results in the past.
In its alternative vision, the EFF does not perceive the relationship with agribusiness as one of partnership, but as one of regulation for the promotion of the public interest. The pathway envisaged by the EFF, inspired by popular struggles, and rooted in the need for solidarity with the dispossessed, might evoke revolutionary nostalgia for some.
Those who might be sceptical about these proposals must remember that we are living in the age of policy stagnation. New ideas are hard to come by. If lacking in practicality, the EFF’s proposals do visualise an alternative future. That is not a bad thing. We should never stop imagining that things can be better.
Tembeka Ngcukaitobi is a human rights advocate in Johannesburg and the author of The Land Is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism (Penguin)
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