Land reform mirage: ANC govt fails to take property rights seriously

JOHANNESBURG — Land reform is a hot political tool in Southern Africa and the likes of the ANC and EFF are well aware of this. Promises around expropriation without compensation have been ratcheted up particularly by the ANC as it continues to stumble on poor service delivery woes. But even if the government were to properly carry through on its land reform desires, there are still too many questions around how much land the state itself owns and whether or not title deeds will be handed over to those who take over state land in particular. Without the title deeds, land reform will then become meaningless as well. – Gareth van Zyl

By Chris Hattingh*

The poor will be mired in poverty and uncertainty until guaranteed property rights.

A new study from UWC (University of the Western Cape) and Rhodes University, focused on farms in the Eastern Cape, reveals that although poor families and communities have ‘access’ to state land (ie, ‘occupy’ it), because they are not granted title, they serve as nothing more than de facto security guards for the state. They are not free to use in just any way or improve the state land which they are supposed to own to gain any lasting benefit for themselves or their families. Until the true value of rightful ownership is recognised and realised, this is a quagmire that will continue to suck in the potential wealth of poor South Africans.

No one, no matter how talented or hard-working, poor or rich, can use their property to better their lives if their property rights are not absolute and legally enshrined as such. The research found that since 2011, the state has been buying land for redistribution and distributing it under various forms of lease instead of transferring ownership to the beneficiaries. Is government no longer concerned with the dignity of the individual?

File Image: Minister of Rural Development and Land Reform Gugile Nkwinti with Minister of Economic Development Ebrahim Patel.

The research also shines a light on the state land lease and disposal policy of Gugile Nkwinti, the Minister of Rural Development and Land Reform. Since 2013, policy has made it clear that small-scale and subsistence farmers may not become land owners but must remain tenants of the state. Big land owners, though, enjoy a degree of state protection as they have an option to buy farms if they have leased land for 30-50 years. Preventing the previously disadvantaged from owning land they could purchase does not sound like real land reform.

It is highly disingenuous for politicians to talk about land reform just to score political points and yet deny poor South Africans their real, and essential, property rights. ‘Ownership’ is devoid of meaning without title, without the actual right to the property, a right protected by a proper legal framework.

Possessing a piece of land is no guarantee that the owner will eventually become wealthy; that rests on her and what she does with it. But once she has bought it, she should be fully entitled to do with it as she pleases, to farm or start a business, or lease it, or whatever else. The possibilities are endless, but she can invest in her future only if she knows that her property rights are secure.

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When politicians, those in academia, media experts, and analysts, tell people that the state owes them land, should we be surprised by the anger that flares up when they realise those are empty promises? When people come to realise they do not have full title to the land they believe they own and have built a life upon, that it can be taken away from them at any time, can we expect the same empty talk about land reform to produce anything positive? Real land reform means the transfer of ownership of the land from the state to the people – an ownership that is protected through property rights, and recorded through a title deed.

Apartheid denied millions of South Africans their property rights. The legacy of Apartheid will live on as long as millions of South Africans are still denied property rights. When government ‘gives’ them land, it must give them a freehold title deed as well. It is time for government to deliver real, enriching and empowering land reform.

  • Chris Hattingh is a researcher at the Free Market Foundation. 

Private property is a fact of life, not a ‘Western’ creation

By Martin van Staden*

There are ‘critical’ intellectuals who question the validity of the institution of private property. They judge property ideologically, however, rather than from a factual perspective. Private property is not an idea imported from “the West”. It is a consequence of human nature.

Ownership means we have final authority over a thing. It turns things in nature into “property”. The first “things” we as human beings own are our bodies. As individuals, we have final authority over our own selves: only we can control our bodies, minds, and consciences because only we can be responsible for our actions. This exclusive control and responsibility creates an objective link between ourselves and our property right in ourselves. This is called self-ownership.  

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Land and objects are not sentient. Animals are unable to take responsibility for their actions. As things in nature, they, therefore, cannot own themselves. Human beings, however, can own things in nature. We, as lone individuals or groups or communities, acquire ownership over things – which become our property – when we establish an objective link between ourselves and the thing. That is private property.

That link is established most commonly by being the first person or persons to use the thing in question. The thing, or property, can be voluntarily transferred to another whose ownership is legitimised by the objective link of the first user and the first user’s subsequent voluntary transfer of the thing.

The link is “objective” because it is established by fact: first use, or voluntary transfer following from the first use. Any other link would not be objective as it might be based on a mere declaration of ownership or the forceful taking of the property. You cannot establish an objective link to property by taking it through force, as that would not establish final authority over the thing – the very act itself presupposes that no authority is final if taking the property through force is allowed. There would thus be no such thing as ownership or property, merely possession and things, given that anyone at any time might “legitimately” take the thing for themselves.

The comparably recent invention of so-called “public” property does not require such an objective link. In the hands of government, “public” property is the convenient tool used to claim ownership of unowned things or even already owned property simply because they are deemed by someone to be ‘in the public interest’. So-called ownership is then claimed through a fiat supported by the force of law. Many people in South Africa have made the mistake of supporting such an action because they conceive pre-colonial communal property to be essentially the same as statist public property.

Pre-colonial African communities enjoyed an objective link with their property and land, which they farmed and used daily, despite the fact that private property, as yet, was an unknown concept. The mere existence of the objective link, however, whether recognised or not, establishes private property. Communal property was, and is, private property. Public property, which is a misnomer, should be conceived of as government property; property acquired not through cooperation and peaceful means, by through force.

That communal and private property are not opposites is evident in the nature of the framework that private property provides: the owner(s) decide. Communities can be run and managed in whichever way they deem fit. If the community is the collective owner, it is unnecessary for every individual to have a title deed to a plot. Whatever the situation, what is required is that there is an objective link between the owner, or owners, and the property, and not some superficial legal instrument that “deems” the property to be owned by someone, usually government.

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Private property has been vilified and reduced by certain intellectuals to mean no more than a title deed. A title deed and the concept of private property should not be confused. Deeds do not confer private property rights. They are the administrative tools that recognise an individual or community as the owner of a property. Properly understood, title deeds do not “commoditise” land, they simply recognise an already-existent state of affairs.

Programmes such as the Free Market Foundation’s Khaya Lam Land Reform Project, that seek to assist in the titling of urban township property, are not about stealing ground to create private property out of thin air (or at the expense of communal property), but rather giving due recognition to that which already exists. The drive to establish a link to things and acknowledge a responsibility to have authority over them is part of human nature. As long as criminal or State violence is kept in control, private property will always exist.

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