Katherine Atkinson

On Tuesday 27 February, the majority of South Africa’s Members of Parliament voted in favour of amending the Constitution to allow land expropriation without compensation. The vote came after the EFF presented Parliament with a draft amendment and argued for an ad-hoc review committee to be set up by the National Assembly to initiate the process. The EFF argued that section 25 of the Constitution has made it impossible for those dispossessed of their land during the apartheid era to get justice. The Constitutional Review Committee will now “review and amend section 25 of the Constitution to make it possible for the state to expropriate land in the public interest without compensation”. According to News24, the National Assembly has given the Review Committee until 30 August to report back on its work. News24 reports that it is unclear whether the ANC will transfer all land to the state after expropriation, but if they adopt the EFF’s policy then this would be the case. However, the ANC’s conference declaration says that they intend on expropriating land without destabilising the agricultural sector, without endangering food security and without undermining economic growth, therefore, it seems that the ANC might “focus on specific pieces of land that will be used for land reform projects” reports News24.


Political dynamics and Section 25
Roland Henwood, a political scientist, commentator and lecturer in the Department of Political Sciences at the University of Pretoria, doesn’t believe these events show EFF influence over the ANC, rather it says more about parliamentary procedure and process than influence. Henwood points out that land redis­tribution was part of the ANC’s plan, as stated in their December conference. He also says that “[any] party can introduce a motion, that motion must be tabled, and if accepted, it is debated and then voted on and that’s what the EFF did”. Henwood notes that the “EFF can turn this issue [of land expropriation] into a very powerful position for themselves if they monopolise” it.

Parties who voted against the Constitutional amendment, such as the DA and Freedom Front Plus, say that the expropriation of land without compensation would undermine property rights. The DA’s website says that it “is clear that it is not Section 25 that is standing in the way of land reform” but rather “the government’s implementation of what is provided in Section 25.” Henwood says that it must be deciphered whether this amendment is an “attack on the constitution and what the constitution represents” or if it is “an honest attempt to address a pressing issue”.

Section 25 of the constitution states that no one “may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.” Property may only be expropriated for public purpose, such as building a road, or in the public interest, such as land reform. Expropriation is only approved if it is met with “just and equitable” compensation and the “time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.” Section 25 continues to say that a person who has been “dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices” is entitled “to restitution of that property or to equitable redress”.


What does the ANC mean by land expropriation?
Henwood notes that thus far there is “no clarity on what land expropriation implies”. He says that the Ramaphosa presidency has been one of “continuous consultation and engagement” which is good. However, the ANC’s goal to expropriate land without impacting the economy does not seem possible and this is where confusion sets in. According to Henwood, Kgalema Motlanthe’s November 2017 report of the High Level Panel “provides a bit of a guideline from within the ANC” as to how they will tackle expropriation. Henwood says that the report points out existing problems such as “inaptitude [sic] and lack of capacity in government,” the lack of reliable land ownership statistics, and corruption which allows elites to appropriate land. In the report, Motlanthe states that the ANC should apply the already-existing constitution and should learn from the 1936 Land Act and not implement it in a different manner. Motlanthe believes we should “start differently,” “act differently,” and “revamp a lot of legislation that underpins land use and ownership” as well as considering “what we plan to do with land in future,” says Henwood.


The possible outcomes
Theo Boshoff, Wandile Sihlobo and Sifiso Ntombela, researchers at the Agricultural Business Chamber (Agbiz), released a paper which debates four possible outcomes for land expropriation without compensation. The paper takes into consideration economic and legal variables and states that the first outcome is the self-help scenario which is legally and economically a bad option. Hypo­thetically speaking, this is when citizens would take matters into their own hands thereby disregarding legalities and misinterpreting political statements. This could result in the escalation of illegal land occupation and farm invasions. The paper says this would make the agricultural sector non-functional and unproductive, violate human rights, escalate unemployment, increase imports and lead to high levels of food insecurity.

The next alternative is the gradual decline scenario which is a good option legally, but a bad option economically. This means that section 25 would be amended and there would be expropriation without compensation at government level. Although this would be mostly positive legally as it paves way for land reform, the legal negatives include that it requires a Constitutional amendment and the weakened protection of property. The paper says that “from an economic point of view the outcome is negative, as the reduced recognition of property rights leads to disinvestment and consequently a gradual decline in the agricultural, agro-processing and financial sectors”.

The third scenario that the researchers predict is entitled the economic sustainability (business-as-usual) scenario which is a good option economically but a bad option legally. This would mean that the Constitution does not get amended and that the existing motion of expropriation is not used but rather the current methods of acquiring land for redistribution are continued “out of fear that a departure from these [methods] could adversely affect the economy”.

The final scenario is the hybrid approach and is the best option economically and legally. This hypothetical scenario would use various mechanisms to “speed up the pace of land reform”. Mixed financial and AgriBEE models would be used to target farmland which is “unbonded, unused and uninhabited by the owner” and to transform this land into “productive farmland.” Using ‘vacant’ land therefore reduces economic impact and legally “it achieves increased access to land, thereby promoting the objectives of section 25 (5) whilst maintaining the rule of law and respecting fundamental rights”. Those who lose out economically would include affluent individuals and companies “who bought land for recreational purposes or as investments for future development.” Although land would be readily made for settlement, much investment would be required “to make the land usable and habitable”. The paper says that ownership of “productive agricultural farms” would be “transformed using AgriBEE transactions and public-private partnership funding models, thereby minimising the disruptive effect on production and investment confidence in the sector”.


Should we be concerned that South Africa could become the next Zimbabwe?
Many are concerned that South Africa will follow the same economic trajectory as Zimbabwe. Henwood believes that this is a valid concern, saying that if “land expropriation process runs away, like it did in Zimbabwe, it is not going to only destroy the economy, it is going to cause conflict – serious conflict”. He notes that South Africa’s population is significantly larger than Zimbabwe’s. This poses a particular problem if there is no food production in South Africa and we need to depend on aid from the UN, like Zimbabwe. Henwood adds that for South Africa, it is a “totally different ball-game” as our “economic consequences” could massively impact the economy of the whole continent.

Robin Blake, a part-time lecturer at the University of Pretoria’s Political Sciences Department, argues that Zimbabwe cannot be used as an adequate example as to why South Africa should not implement land reform. Blake says that “there are many myths and legends about land reform in Zimbabwe.” He says that although it “did go wrong, as a result of certain decisions that were taken” it would be “untrue” to say that the “land reform programme in Zimbabwe didn’t work.” Blake adds that the Zimbabwean government has statistically proven that following land reform “the agricultural production was on the increase and that the land situation was stabilising”. Henwood argues that you have to “look beyond the immediate issue of land” as the Zimbabwean land reform “destroyed the economy” and “made everyone poor except the elite who became very wealthy.” Lessons that South Africa can learn from the Zimbabwean land reform include having “a very careful, considered policy,” having “the required framework of policy and legislation” and having “the capacity in government to implement and execute” this policy, says Henwood.


Land ownership and property rights
Henwood says that it is not a question of whether the state should own land, rather, whether the state can “own land and use it effectively and productively” and what the “mode of ownership” will entail. Henwood believes that the countries who have radically redistributed land have all failed.

He points to Zambia as a success story saying that ten years ago, Zambia couldn’t feed their own people, but is now suddenly a net exporter of food. Although government does not give private ownership to people they give security of tenure and have a 99-year lease. Henwood says that how you acquire land, how the process of redistribution is managed, support the people will get and who gets the right to use land are important, not necessarily ownership.

Henwood says that the “issue of land in South Africa is an emotive issue because it is a symbol of everything that’s wrong with Apartheid”. He agrees that the dispossession of land caused poverty and stripped people of their dignity. Although land redistribution is a “symbolic way to demonstrate the return of dignity,” it does not necessarily ensure the return of dignity “in a real way,” says Henwood. He argues that some “people don’t see the importance of the symbolic issue of land and others don’t see the limits of land reform in a modern-day context”. Blake argues that people “must own land because it is part of their dignity” and “it is part of the solution” to “what happened in the past and we must fix it”. Blake believes that the “requirement to restitute land is not going to go away” and although “there is going to be pain” with regard to this restitution, we “must make sacrifices” should we be “interested in the long-term.”

Karina Sevenhuysen, a history lecturer at the University of Pretoria, says that throughout history the group in power, whether white or black, have naturally sought to write the wrongs of the past. She says “[t]here is a difference between righting the wrongs and acting in a revengeful manner. Many people could see this as revenge if you look at this from an emotional and even political view. If land expropriation is viewed from a rational and economic-viable way it could be in the interest of all in South Africa.”


Illustration: Marizanne Linde

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