Are we a Zuptoid or a Constitutional democracy? – Free Market Foundation

When it comes to the land question, the government either holds the Constitution in thinly veiled contempt or is legally short-sighted. That has to be it, if the argument made here by the Free Market Foundation’s Martin van Staden, is to be accepted. He says the new provisions in the latest bill regulating agricultural land holdings are based on redistribution and not restitution – pivotal when it comes to the relevant Constitutional provisions. Nowhere, says van Staden, does the Constitution arrogate the right of redistribution to the State. Nor does it take away the rights of foreigners owning land in South Africa. Instead of going down the by now well-degraded and hugely abused road of court challenges, the government should look to giving state-owned land (which the bill in an accompanying memorandum addresses) to the poor – and proper restitution. It has no idea of how much land it even owns (an audit is currently underway), yet is going ahead with statutory gender and race requirements for our already beleaguered farmers under the current proposed law. By all means, give back the land to those whom it was taken from – but don’t chop up the country’s farmland piecemeal and re-dish it out. That’s unconstitutional. – Chris Bateman

By Martin van Staden*

The Free Market Foundation (FMF) says that new land reform provisions contained in the Regulation of Agricultural Land Holdings Bill, 2017 render the Bill unconstitutional, is an exercise in redistribution rather than restitution as required by the Constitution, and demonstrates government’s refusal to consider far more appropriate and effective measures to achieve land reform. This is the basis on the FMF’s submission to the Department of Rural Development and Land Reform on 13 April 2017.

The Constitutional Court of South Africa

Under the Bill foreigners may not own agricultural land in South Africa and obliges all agricultural land owners to self-classify themselves along racial and gender lines in a national registry of land ownership. Another flaw is that the Bill gives government the right of first refusal when any agricultural land owned by foreigners is being sold.

FMF legal researcher Martin van Staden said, “The Bill discriminates unfairly against non-South Africans by disallowing them ownership of agricultural property. This violates section 25(1) of the Constitution, which provides that anyone, foreigners included, may own property. The language of the Bill of Rights differentiates in various sections between “citizens” and “anybody”, meaning a different application was intended. In the case of the property rights provision, “nobody” may be deprived of property except in the delineated circumstances”.

Read also: Land Bill’s political value: Is President Zuma trying to capture the Zulu king?

The Constitution provides a roadmap to address the consequences of Apartheid, which requires restitution rather than redistribution. “Redistribution is not mentioned or implied anywhere in our highest law yet this is the approach taken by the new Bill. Land that was taken by the Apartheid regime without the wilful cooperation of the legitimate owner must be given back to that owner or his descendants. This, ‘restitution’, is distinguished from government simply picking and choosing land, which might be legitimately owned by the current occupier, and ‘redistributing’ that to others or being held in state hands,” said Van Staden.

The FMF has been at the forefront of advocating substantial land reform since the late 1980s, especially for the urban poor who continue to live on council-owned property, which they cannot put to their own economic benefit. The Peruvian economist Hernando de Soto wrote in 2000 that a house is not a ‘mere shelter’ or ‘dead asset, but that property is “an economic concept about the house.” De Soto argues that property rights have enabled people “to produce surplus value over and above [their] physical assets. Property representations enable people to think about assets not only through physical acquaintance but also through the description of their latent economic and social qualities”.

The FMF advocates that land reform for rural South Africans could be resolved by the simple yet highly effective policy of distributing the vast amounts of land held by government to the poor. Apartheid land laws such as the Subdivision of Agricultural Land Act continue to disallow the poor and small businesses access to agricultural land without having to move through bureaucratic mazes rife with backlogs and corruption.

The one redeeming feature of the Bill, contained in its accompanying memorandum, is that government recognises that a thorough audit of government land is required to paint a holistic picture of land ownership patterns in South Africa. The FMF has always supported such important initiatives as first steps in ensuring redundant government land is transferred to the people in full ownership.

In its submission, the FMF recommends ways in which the Bill can be rescued from unconstitutionality, however, continues to promote the that government must change its approach to land reform entirely to deliver a people-centric instead of state-centric process.

  • Martin van Staden is Legal Researcher at the Free Market Foundation and Academic Programs Director of Students for Liberty in Southern Africa.
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