/ 27 October 2020

Does the Expropriation Bill muddy the land question even further?

Safrica Crime Agriculture Politics
A member of the Economic Freedom Fighters (EFF) (C) gestures during a confrontation with farmers in Senekal, South Africa, on October 16, 2020, ahead of the appearance of suspects in the Senekal Magistrates Court for the murder case of 22-year-old farm manager Brendin Horner. (Photo by MARCO LONGARI / AFP)


‘Look at the racists in their eyes and say to the racist, toe-to-toe, ‘This is our land. This land we will defend it with our blood. This land we will defend it with our bodies; we are prepared to die for South Africa’.”

Those are the words of Economic Freedom Fighters leader Julius Malema in an address in an address to supporters at the Senekal upheaval following the murder of a farm manager earlier this month. A few days later, the Democratic Alliance hit out and laid criminal charges against EFF MP Mbuyiseni Ndlozi for inciting violence through song. 

“Thousands of hectares of land have been on fire and destroyed in the Free State,” said DA chief whip Natasha Mazzone. “And while the cause of these fires are still unknown, we do know that a politician sang songs calling ‘the fire brigade’ to ‘burn these Boers’ and that this was followed by large scale destruction.”

Twenty-six years into South African democracy and the unanswered land question is beginning to fester. Too often it has been reduced to a political prop, with rhetoric favoured over solution, and the country’s people continue to labour under the injustices of the past with little sign of reform

In recent years the government’s ambivalence to the land issue has grown increasingly untenable. The rise of a left-wing threat has pushed the ruling ANC to confront the land question; forcing it to adjust its policy to retain support.

This month we got one of the first tangible products of the new commitment. The expropriation bill was gazetted on 9 October after a two-year consultation process and thousands of public submissions. It is now up to parliament to interrogate the proposed legislation before it is passed into law.

But does the bill represent a meaningful change to our existing legislation? And how does it fit into the greater argument over South Africa’s land?

What is the land expropriation bill?

The bill is set to replace the expropriation act of 1975 and details the circumstances under which expropriation can take place. 

It arrives courtesy of the land reform inter-ministerial committee, set up after President Cyril Ramaphosa committed to taking real action on land redistribution during his maiden 2018 State of the Nation address. Chaired by Deputy President David Mabuza, the committee was informed by a Ramaphosa-appointed panel designed to give a “unified perspective” on the matter. 

Ultimately the panel found that because the 1975 act preceded the 1996 constitution, it does not align with the constitutional values and should be replaced.

“The publication of this important bill is a cogent indication that government is indeed at work to realise redress and fulfil the aspirations of the people to have an equitable society,” Mabuza said when the bill was gazetted. “It is a recognition of the urgency required to address the injustices of the past and restore land rights in a responsible manner, while ensuring that food security is maintained, that equitable spatial justice is achieved, and that continuation of investment to expand our industrial base is secured.” 

One of the primary purposes of the bill is to underline precisely when expropriation can take place without compensation. The constitution states that compensation for expropriation must always be “just and equitable”. What the bill does is determine the circumstances in which it is just and equitable to pay no compensation. These are, but are not limited to:

* “Where the land is not being used and the owner’s main purpose is not to develop the land or use it to generate income, but to benefit from appreciation of its market value;

* “Where an organ of the state holds land that it is not using for its core functions and is not reasonably likely to require the land for its future activities in that regard, and the organ of state acquired the land for no consideration; 

* “Notwithstanding registration of ownership in terms of the deeds registries act of 1937 (Act No. 47 of 1937), where an owner has abandoned the land by failing to exercise control over it;

* “Where the market value of the land is equivalent to, or less than, the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land; and

* “When the nature or condition of the property poses a health, safety or physical risk to persons or other property.”

The bill does not require that owners will not be compensated in every case. The courts will be called upon should an agreement between state and rightsholder not be reached. As Patricia de Lille, the minister of public works and infrastructure, made clear: “Local, provincial and national authorities will use the legislation to expropriate in the public interest for valid reasons that seek to among others promote inclusivity and access to natural resources.”

Should we be afraid of the bill?

There are few words in the South African lexicon that are able to generate as much concern as “expropriation”. It is a term that has been politicised to the fullest extent. The imagery it provokes is that of land owners being arbitrarily stripped of their title deeds and the economy plunging into darkness. “We will become the new Zimbabwe,” goes the common refrain. 

Does this bill represent the realisation of those fears? Unlikely. The bill lists the conditions under which property can be expropriated for no compensation; flourishing commercial farmers appear to not have to worry that their business will be taken from them. 

Trepidation is misplaced among the rich, according to Leon Louw, policy adviser and co-founder of the Free Market Foundation. Rather, we should be most concerned about the poor with this bill. 

“There’s a perception in the media that this is about taking rich white people’s homes,” he says. “I don’t know why that paradigm dominates the discussion. 

“The Ekurhuleni council [made] the first announcement of any expropriation without compensation that I’m aware of. And what is it? It’s not some rich person’s speculative land but the Delport and Marathon informal settlements. The poorest of the poor; people living in tin shacks. It just amazes me that people aren’t aware of the fact that the victims will be the poor.”

He adds: “You try take away some rich person’s property in Bryanston or something and the government will be tied up in court for years. But you take five million poor black people’s property and none of them have the resources or even knowledge to resist.”

Another facet of the bill that is often ignored in the land reform rhetoric is who precisely will be responsible for deciding what property is expropriated. The dystopian vision suggests a grand Maoist strategy in which the state strings together a five-year plan, but the reality is far less glamorous. 

According to the bill, it will be officials at organs of state who will have the power of beginning the process to acquire property. 

Louw envisions serious problems with this fact. 

“The assumption is that [Ramaphosa] will be involved. He won’t. He will have nothing to do with it. The people who expropriate are the parks manager of Pofadder and the roads department of Aansluit … the municipal officials of every town or village. The people who expropriate are thousands of lowly officials. Whose land do you think they’re going to expropriate to extend a park or build a clinic? The answer is not Farmer van Tonder’s land. It’s the people living in low-income housing.” 

A recent commitment by the government adds credence to that viewpoint. Shortly before the gazetting of the expropriation bill, the minister of agriculture, land reform and rural development, Thoko Didiza, announced that 700 000 hectares of land would be redistributed — an eye-opening figure that, at face value, is a legitimate pledge towards the principles of land reform. 

How it will work in practice is another matter.

Katlego Ramantsima, of the Institute for Poverty, Land and Agrarian Studies at the University of the Western Cape, has argued that the promise raises more questions than answers.

She wrote in the Daily Maverick: “There are also questions about how the government is going to support all those new farm applicants, given the stark decrease in the supplementary land reform budget. Many are asking: where is the budget for training, recapitalisation and the other costs involved in the redistribution process going to come from? Or could this announcement be just another political strategy to win the people’s favour for the next elections?”

Much of the 700 000ha is already owned by the state. No hectares have been selected for redistribution in Gauteng and Western Cape — the capitals of private land ownership. Business Day reported this week that about a third of the 700 000ha demarcated property is held by black residents and farmers.

 Mala Mala, one the most prominent cases of land restitution, is an example of the complexity and problems that can beset land reform initiatives.

In 2014, the government paid R1.1-billion for the land and handed it over to the communal property association (CPA), made up of 960 claimants who had been forcibly removed during apartheid. 

The Mail & Guardian previously reported that as part of the land claim settlement, the Mala Mala Game Reserve pays an annual lease fee directly to the CPA, which is responsible for distributing the money to the households. Mala Mala’s guests pay a community tourism levy into the community trust for education, training and development projects.

But the settlement has been beset by mounting problems, including court battles pitting different factions and the CPA against each other, accusations and allegations of corruption amounting to millions of rands, nepotism and a lack of transparency.

 One report estimates that only 250 people have benefitted from the payments that are due to them.

Expropriation in Marikana, Western Cape 

In Cape Town’s Marikana informal settlement, home to some 60 000 people, section 9(3) of the housing act was used to enable the city to expropriate the privately-owned land that people had settled on.

The case is documented in new research by the Socio-Economic Rights Institute of South Africa, titled Claiming Water Rights in South Africa. Because the city saw the Marikana residents as “land invaders” they were given temporary services. This meant people didn’t have regular, clean water and toilets — things the state is constitutionally-mandated to provide. 

People settled on the land in 2013. At first the city’s Anti-Land Invasion Unit and police demolished some of the homes. Then the city was granted an interim interdict that prevented further occupation of the property. Shortly after this, the high court in Cape Town ruled against the city. 

More people moved onto the land and the owners sought an eviction notice. The residents launched a counter-application and proposed that the state could buy, or expropriate, the land. Their case rested on section 9(3) of the housing act, which allows the state to expropriate land to develop state subsidised housing.

In 2017, the high court found that the city had failed the landowners and the people living on the land. This March, discussions between the property owners, the city, yjr Marikana residents and the provincial human settlements department resulted in a court order that the city purchase the land from its owners. The price would be set through arbitration. 

MAKHAZA, SOUTH AFRICA – JUNE 13: City of Cape Town law enforcement officers monitor the situation as anti-land invasion unit demolishes alleged illegal structures near the N2 highway on June 13, 2018 in Makhaza, South Africa. Shack dwellers pleaded for their structures not to be taken down as the City of Cape Town law enforcement officers watched more than 50 illegal structures demolished. (Photo by Gallo Images / Brenton Geach)

Amending section 25 of the constitution

The arrival of the expropriation bill is a direct result of the commitment to amend section 25 of the constitution. With the law dating back to apartheid, it would have been necessary to update legislation some time soon.

But why now? The short answer is convoluted political squabbling. The long explanation has much to do with the rise of the EFF as an ideological and political force. Land restitution is a founding tenet of the second biggest opposition party; more so it is an issue on which it has been able to absorb swathes of disfranchised, disillusioned voters. In their relentless, unique brand of politicking, the Red Berets have been able to force the land question into the forefront of the public’s consciousness. 

Until recently, the ANC was happy to swat away their attempts at something more palpable. In 2017 the EFF tabled a motion in parliament to allow expropriation without compensation and land reform but was shot down, losing the vote with 261 against and 33 in favour. 

And yet it took only a year for those numbers to change to 83 against and 241 in favour — a two-thirds majority — in a subsequent motion. What happened in the time between the two ideals was a policy realignment by the ruling party.

The ANC entered its December 2017 national elective conference in Nasrec, Johannesburg, divided, uncertain and reeling from sustained reputational damage from the Jacob Zuma administration. With the battle between Ramaphosa and Nkosazana Dlamini-Zuma balanced on the finest knife’s edge, the former had to make various concessions to ensure he got the nod, one of which was bowing to the ANC’s so-called radical economic transformation faction on the land issue. The resolution read:

“We must pursue with greater determination the programme of land reform and rural development as part of the programme of radical socioeconomic transformation.

“Expropriation of land without compensation should be among the key mechanisms available to government to give effect to land reform and redistribution.

“In determining the mechanisms of implementation, we must ensure that we do not undermine future investment in the economy, or damage agricultural production and food security. Furthermore, our interventions must not cause harm to other sectors of the economy.”

The third paragraph is particularly important to understanding the different dynamics of ANC and EFF land restitution. The latter favours complete state nationalisation, whereas the ruling party would never accept any policy that would contradict the principles of South Africa’s free market economy. The ANC thus tabled an amendment to the original proposal

Despite vehement opposition from the DA, the Freedom Front Plus and the Congress of the People, the ANC and EFF were able to get the two-thirds majority needed to begin the parliamentary process of amending the constitution. 

Two years, thousands of submissions, hundreds of hours of public hearings and a pandemic later, the matter now sits with another ad hoc committee set up to introduce the new legislation. With a deadline of 31 December to report back to parliament looming, the committee is undertaking another round of public hearings — in Limpopo last week and the North West this week. 

There is some debate as to what extent section 25 of the constitution allows for expropriation. The idea is to change it so that it becomes unequivocal. Some observers have found it odd that the expropriation bill would be gazetted now, given that the constitution informs the laws. 

“At the moment the government is giving out mixed and confusing signals,” says advocate Tembeka Ngcukaitobi, a member of the inter-ministerial committee. “On the one hand the government is saying that the constitution does not make provision for expropriation without compensation and therefore it’s necessary to amend the constitution to make that explicit. On the other hand they accept that the constitution permits expropriation without compensation and that is why they are passing the expropriation act. 

“The reason that I can fathom is lack of policy coordination,” he says. “The ANC has endorsed, I have to believe, both the amendment to the expropriation bill as well as the amendment to the constitution. Ultimately, I think this boils down to a problem we have had in the past 25 years, which is a problem of policy stagnation, lack of vision and a lack of coordination. I think the left hand simply does not know what the right hand is doing.”

Legislation is relatively easy to change and often bends to the sentiment of the time, but the constitution is the foundation of South Africa’s democracy and is more permanent. How the process of amending the constitution plays out will be crucial to determining the approach to expropriation of land for decades to come.