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Land expropriation without compensation cannot be justifiable – Unisa Prof

JOHANNESBURG — The land debate in South Africa has heated up this week as ANC and EFF MPs moved to give the green light to a possible amendment of the Constitution. A group of lawmakers are soon set to discuss a possible amendment with a decision set down for August this year. There has been a lot of noise and emotion around the land debate, but this below piece argues that the matter is far more complicated than meets the eye. Based on his research studies, Professor Cyril Mbatha of the Unisa Graduate School of Business Leadership weighs in on the land reform debate – here are his views on the subject. – Gareth van Zyl 

The EFF are still threatening to colonise farms. More brilliant cartoon work available at jerm.co.za.

By Professor Cyril Mbatha*

During the State of Nation Address, the President of RSA Cyril Ramaphosa said the ANC plans to have a consultative public discussion to explore the merits of the ANC conference resolution on land expropriation without compensation. Former Finance Minister Malusi Gigaba subsequently said that government would support 450 black commercial farmers with approximately R581.7 million under land redistribution over a 5-year period and finalise 2 851 land claims under restitution plans with a budget of R 10.8 billion over the medium term. The ANC and South African government are certainly focused on the land reform project. In my view however, they are not thinking in the right direction.

Firstly, regarding President Ramaphosa’s statements on expropriation with compensation, morally of course if someone’s private or communal property was stolen, without doubt it must be returned to the rightful owner/s without compensation to especially the thief or even the person who now claims it as their property. The initial challenge comes in when there is a state that legitimised the theft itself by even participating in the act of land theft. The secondary set of challenges come after the legimatisation of the process of theft by state, with further transactions down the historical line also legitimised by the state. The title deed records do not lie about the state’s liability, if not responsibility, in the actions that have legitimised current patterns of ownership of land. This is why the state is morally liable to compensate current landowners, especially owners who legally bought the land from those who would have stolen the land in the first place, and this would include the state itself in many instances. Therefore, the state cannot run away from the responsibility of its participation, even if it may not have the required funds at the moment to compensate those who lost land unjustly.

Flag map of South Africa

In South Africa, however, this is not the case; the state has allocated funds to compensate for acquired land in both land restitution and redistribution programmes. The issue could be that current land owners are reluctant to give up their land for varied reasons including inconvenience at times pure greed, and in worst cases, racism. But even those reasons do not absolve the state from its responsibility of compensating current owners, which have been legitimised under law.

Appropriate action, morally and legally, could include removing current owners from land identified by courts if the occupants are not willing to freely sell the land to the state at market related compensation prices determined by a competent Land Evaluator, those would be prices not negotiated or identified under auction processes.

The president’s speech itself had gaps regarding technicalities. It seemed to be confusing land restitution with land redistribution programmes in the land reform process. Expropriation (with or without compensation) would be appropriate as terms in restitution cases, where communities were forcibly removed, regardless of whether the communities have laid any land claims. It is the duty of the state where possible to get them back to the land. In some instances, the land may now be owned by the state itself, hence the earlier argument about the state’s historical participation or role in the stealing and legitimising of stolen land. That land should be given back wherever this is possible.

In instances where the state can no longer give back the same piece of land and reasonably equivalent compensation in the form of other land or in cash payment should be determined by the land claims courts for historical victims.

However, where redistribution is not about historical forced removals which require land claims in court, expropriation of land without compensation in relation to land redistribution programme does not make sense.

Redistribution is generally a BEE programme.  Government gives away its own land and buys other land to redistribute to previously disadvantaged community members to promote racial and gender transformation for productive and economic cultivation. As observed in Ramaphosa’s State of the Nation address, morally the government cannot tell beneficiaries in restitution programmes how to use their land or other compensation, once received. Like the EFF says, land restitution beneficiaries can use the land as they so desire, whether that be for ancestral worship, tourism, burial or whatever is collectively agreed to in communities. Government and other agencies can advise on other use options, if acceptable, to communities or individual beneficiaries. Essentially, the president cannot talk about expropriation especially without compensation, economic production, redistribution all in one message. This is muddling complicated issues.

Read also: Dear Mr Malema, if you can win my Zurich land back, I’m out of here

Nevertheless, what the government will find more challenging is expropriating land from institutions including Ingonyama Trust. Not because it is morally wrong or technically impossible, but rather because it may result in a political mess for the ANC, even when there are huge moral reasons why traditional leaders should step away from managing traditional land. Traditional land management systems have proved to replicate rural inequalities. They discriminate against female and child headed households, which are the most vulnerable groups in those settings. Morally, this should change. Technically, traditional leaders with their networks of patronage sabotage many rural upliftment programmes. It makes sense for this land to be managed by the State.  The ANC in exile knew this better, from Tanzanian experiences, for example, but came back to strike a political deal with the IFP, and in doing so selling off some of the ideals of the Freedom Charter for political gains. This is coming back to haunt the current ANC government.

Regarding Gigaba’s statements, it is concerning that such small numbers of land recipients are being planned for under current land reform arrangements. Only 450 black commercial farmers and 2 851 land claims were presented in the Budget Speech, when research indicates the following:

  • In 2005, the revised land reform target was to transfer 30% of land (about 25 million hectares) to almost 800 000 new black farmers. Lyne (2014) estimated that by 2014 a total of only 9 million hectares had been transferred since 1994, in both the restitution and redistribution programmes. This means the redistribution programme achieved only less than 20% of its revised 2005 target.
  • Fewer than expected claims had been lodged within the restitution programme by 2014. Many of those lodged before 2014 remain unsettled.
  • The Restitution of Land Rights Bill Amendment No. 15 (2014) was enacted to reopen a window for strategic claims to be lodged until 2019. The LRC (2017) reports that of the claims before 2014 approximately 11 000 remain unresolved.
  • After the 2014 Bill, the Land Commission has already received 12 464 new claims for processing.

These trends highlight the challenges faced with respect to land transfers in the land reform project as a whole. Moreover, in projects where black farmers have been resettled, there is high number of failures in terms of dropping productivity levels (Mbatha, 2017).

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

Therefore, the targets presented in the National Budget Speech (2018) by Gigaba seem far lower than those that would be required to meet such backlogs. Furthermore, the rhetoric on land expropriation without compensation and proposal for reallocation to the State of land under Ingonyama Trust, which are reactions to current land reform challenges, are also more likely to confuse the current process than assist in meeting targets, especially because they would require a constitutional revision.

Research cited:

N.C. Mbatha

‘How to understand, evaluate and influence efficient progress in South Africa’s land reform process: A typology from historical lessons from selected sub-Saharan African countries’, South African Journal of Economic and Management Sciences 20(1), a1990.

Unisa Graduate School of Business Leadership, University of South Africa, South Africa

  • Professor Cyril Mbatha, of the Unisa School of Business Leadership (SBL), has conducted extensive research on how to understand, evaluate and influence efficient progress in South Africa’s land reform process.
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