Minister Thoko Didiza has returned to her old portfolio, as the minister responsible for land affairs. In her first tenure, she developed a reputation as a steady hand in the land space. This time, however, it is not steadiness but imagination that will determine her success.
Policy wise, the land space is occupied by two loud currents. On the one hand are empty slogans,posing as left-wing radicalism. On the other is a market-based fundamentalist dogma that refuses to accept the plain truth that the present land dispensation makes no economic sense.
Contrary to popular belief, section 25 of the Constitution does provide a legal basis for the policy interventions necessary for a fundamental shift in land relations in favour of the dispossessed, who remain without land and without property.
It is the key to bringing about the radical changes necessary for a sustainable land framework in rational terms, where the rule of law remains central. How this constitutional promise should be translated to enforceable policy requires further fresh insights into the mechanics of land reform and the Constitution.
Land reform faces further constraints. Its institutions are not working. Three stand out. The first is the department itself. Over time, it has been hollowed out of crucial managerial and administrative capacity. It is also hobbled by the perception of maladministration and corruption. Land reform should not only be effective, it must also be credible. If overseen by incompetent and corrupt bureaucrats, it will lose credibility.
Another is the Commission on Restitution of Land Rights. The commission was once known for the quality of the research reports it was producing, confirming legitimate claims and sifting out the bogus ones. Over time, that capacity was depleted,with little or no investment in its research capabilities. But it suffers from a structural design flaw as well:there is duplication of functions and its mandate overlaps with that of the department.
Moreover, the commission’s powers are limited by legislation. It has no power, for instance, to resolve land claims. It must ask the minister for endorsement for uncontested claims and the land claims courts for the disputed ones, so its primary function is purely investigatory. It is arguable, then, whether a commission of this kind is necessary, or whether the investigative role shouldn’t be re-allocated. If it is to exist, it should have decision-making powers.
Finally, the land claims court deserves attention. The failure to fill in vacancies in that court is largely the result of delays with the legislative processes at the department of justice and constitutional development. But if its capacity is to improve, its mandate also needs to shift. South Africa urgently needs a land court, far more than a land claims court.
Although compensation for land reform has always been contentious, it is a little-known fact that the government does not have a compensation method to be applied in instances of land acquired by the state for land reform purposes. The consequence is a series of random, haphazard and ad hoc decisions taken by each new minister and each official about how much money is to be paid per land claim. The attempt at uniformity through the office of the valuer general was a dismal failure, and the incompetence of that office resulted in the polarisation of positions between landowners and the state.
The key then, lies in section 25 of the Constitution. It explicitly rejects market-based approaches to compensation for land reform. Its formula is imprecise, using the term “just and equitable” compensation, which is reflective of the balance to be struck between the public interest and the interests of those affected.
Yet section 25 is not self-executing. The ultimate interpretation of the Constitution falls in the domain of the judiciary,but the primary interpretation is the function of the executive. To fulfil its own constitutional mandate to implement the Constitution, the executive must first interpret it, which must be through executive policy. Executive policy is also important,becauseit avoids guesswork and fosters a culture of rational decision-making.
To apply section 25, the executive must domesticate it, through policy. Property owners must know upfront the state policy on compensation. The Constitution provides the baseline. Yet certain policy pronouncements remain to be made. Such policy might include the following elements. First, an explicit rejection of the“willing seller-willing buyer”. Second, embracing a no-compensation approach, not on a blanket basis, but for certain targeted categories of property. Third, creating a flexible regime, which might in appropriate cases allow for the use of market value as a basis for compensation. Fourth, delinking expropriation from payment of compensation. Constitutional Court authority already exists that provides ample justification for the view that property vests in the state at the time of expropriation, not when compensation is paid. Fifth, instating clear administrative procedures when compensation decisions are to be made. And, finally, outlining the judicial review function for disputes about compensation.
Yet the design of a compensation policy requires further thought. The overarching legislation on expropriation is the Expropriation Act, 1975, which is administered by the department of public works, not land affairs. This is reflective of past practice, where the custodian of all state property was the public works department.
Under apartheid the tool of expropriation was primarily used to acquire land and property for state ownership. The new Constitution changed this. Now, expropriations are also a state instrument to acquire property for ownership by third parties, especially in the land reform context. The Constitution acknowledges this by drawing a distinction between “public interest” and “public purpose” expropriations, with the latter being expropriations for state ownership and the former being expropriations for the general public interest.
This change signifies the need for a redesign of the Expropriation Act, including its political location. Rather than fixing the old Act to render it applicable for expropriations in the public interest, it must be accepted that a new Act is necessary, specifically focused on expropriations and land acquisition for land reform. The Expropriation Act must remain the legislation used for acquisition of properties for state ownership, rather than in the general public interest. Thus viewed, the mandate creep and policy duplication between the land and public works ministries can be avoided.
Policy interventions aside, Didiza’s pre-eminent function is a pronouncement of the state’s commitment to the transformative impulses of the Constitution. The Constitution is a mandate to the government to implement thoroughgoing social, political and economic change.
The commitment in the preamble that “South Africa belongs to all who live in it” is a meaningless assertion when the majority are without land and property. Without land, the promise of equality is an empty gesture. Section 25 was also designed with this end in mind. Hence the section rejects the “right” to private property and grants the state the power to take private land in the general public interest. It is time to dust off section 25 and put it to use in the interests of all.
Tembeka Ngcukaitobi is a human rights advocate and the author of The Land Is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism (Penguin)