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JOHANNESBURG — The ANC-led government has quietly and hurriedly been doing public participation processes on a controversial land claims process. While all the media focus has been on the public participation process to change Section 25 of the Constitution to enable expropriation without compensation, the parallel process of taking the land claim debate to the public has largely been ignored and not communicated to key stakeholders. And as Dr Anthea Jeffrey highlights below, the proposed legal changes to the land claims process are fraught with obstacles and problems that could pose a major threat to the economy. But it could also open up a flood of restitution claims, which could literally take hundreds of years to process. The timing is also interesting with less than 12 months to go before a national general election. – Gareth van Zyl
By Dr Anthea Jeffery*
The ‘method’ in the ‘madness’ of reopening a land claims process that is fundamentally flawed
While the nation’s gaze has been fixed on the expropriation without compensation (EWC) public hearings that began last week, the government has quietly been holding public hearings in all nine provinces on another key land issue – the reopening of the land claims process under the Restitution of Land Rights Amendment Bill of 2017 (the Bill).
Over the past fortnight, notes the IRR, public hearings on the Bill have been held in all nine provinces. But the process has been so rushed that not even Agri SA, the voice of organised agriculture, has had adequate advance information about the hearings being conducted.
Why the unseemly haste? In July 2016 the Constitutional Court struck down an earlier statute re-opening the land claims process – the Restitution of Land Rights Amendment Act of 2014 – and gave Parliament until 27th July 2018 to adopt replacement legislation. That deadline is fast approaching.
The Constitutional Court struck down the 2014 statute primarily because Parliament had rushed the Act’s adoption and so failed to consult the public properly. The court also handed down clear guidelines on what is needed for proper public consultation. However, these guidelines are being ignored in the ANC’s hurry to get the Bill adopted.
According to the court, the public must be given at least seven days’ notice of public hearings on any bill. People must also have a ‘meaningful’ opportunity to ‘study’ a bill and also to ‘influence’ the decisions to be taken on it. Often, however, only a single day’s notice of pending public hearings on the Bill has been given, while little or no information about the measure and its complex ramifications has been provided.
This parliamentary contempt for the Constitution and the country’s top court is a serious matter. So too is the ANC’s refusal to heed the many reasons why the land claims process should not be re-opened.
The existing restitution process has been profoundly flawed. Many claims have been wrongly gazetted, while others have been falsely inflated by officials. Overall, the process has been so inefficient, prolonged, and damaging to investment on farms under claim that Agri SA sees it as more harmful to agriculture than the Anglo-Boer War.
At the same time, 90% of successful claimants have preferred to take cash rather than have their land returned. Moreover, where land has been restored, this has done little to help people get ahead.
As the former minister of rural development and reform, Gugile Nkwinti, has acknowledged, farming has effectively collapsed on 73% of the land restored to date. Hence, the same could easily happen on land yet to be returned to new claimants. Such an outcome would do nothing to redress past injustice or to help those earlier dispossessed of land. As Business Day commented in an editorial some years ago: ‘The warm glow that comes from having your ancestral land restored fades fast when crops fail, animals die, bills start mounting, and your family is going hungry.’
The Bill overlooks this reality. Like many other ANC policy interventions, it seems to be based on the belief that providing access to land is enough to give poor people the opportunity to earn an income from farming. This is not so. In fact, land is only one out of a host of factors that are needed for success in agriculture. No less important are experience and entrepreneurship, along with working capital, know-how, machinery, labour, fuel, electricity, seed, chemicals, feed for livestock, security, and water.
To put poor people on restored land without ensuring that all these needs are met is to set them up for failure. This helps explain why (in the words of Professor Ben Cousins, chair of the Institute for Poverty, Land and Agrarian Studies or Plaas at the University of the Western Cape) ‘more than R80bn has been spent on land reform since 1994’ and yet the country has ‘nothing to show for it’.
Re-opening the land claims process will also have massive costs. The Bill fudges this vital issue, merely saying that likely costs cannot be predicted as these will depend on how many new claims are lodged and how much land they affect.
But a regulatory impact analysis conducted for the government back in 2013 estimated that it would cost up to R180bn to settle the 380,000 new claims then expected. South Africa’s slow-growth and debt-racked economy cannot afford this additional burden – and especially not when the outcome is likely to be more failed farms and worse rural poverty.
Re-opening land claims will also drag the restitution process out for hundreds more years. As the High Level Panel on Key Legislation reported in November 2017, more than 7,000 ‘old’ claims (those submitted before the initial deadline of 31 December 1998) have yet to be settled, while some 19,000 still need to be finalised. This alone is likely to take 35 years. The 80,000 or so ‘new’ claims that were lodged under the 2014 statute (before it was struck down) will take another 140 years to resolve. If the Bill is adopted and some 400,000 additional claims are lodged, the Panel predicts that it will take 700 years to deal with all of these.
This likely time scale will, of course, give added impetus to EWC. As new claims come flooding in (many of them actively solicited by officials), the ANC might well respond that the only sensible way to proceed is to use the EWC provisions it seems determined to secure to vest all agricultural land in the custodianship of the state. (State custodianship of all such land is also what a 2014 bill – the Preservation and Development of Agricultural Land Framework Bill – had earlier proposed.) The state would then be able to cut through the conflicting claims and decide how contested farm land should be allocated.
This likely outcome helps illuminate the ‘method’ in the government’s apparent ‘madness’ on insisting that land claims must be re-opened when none of the deep-seated problems besetting the process has yet been resolved.
- Anthea Jeffery is Head of Policy Research at the IRR, a think tank which promotes political and economic freedom.