One of the
reasons that could have led to flared tempers at the recent ANC congress when
the matter of land reform was discussed is the frustration at the slow speed at
which the ANC government is implementing land reform policy. Land remains a
crucial means of production in South Africa. Those who have had land have had the
opportunity to create wealth and historically, Black South Africans (meaning
Black African, Coloured and Indians) were denied the right and opportunity to
create wealth.
Some Historical Background
Since 1913, when
the Native Land Act was promulgated and long before the emergence of apartheid,
Black South Africans were robbed of their rights to own land. The Native Land
Act of 1913 and its variant, the Native Trust and Land Act of 1936 ushered in the
policies aimed at disenfranchising Black people. These laws stipulated that Black
people would live in special demarcated areas which made up a mere 13% of South
Africa’s total land area while the small White population had rights to own
land in the remaining 87% of the land that was not owned by the state. These
policies, including those which came after them during the apartheid years, specifically
the Group Areas Act of 1950 and the enhanced Group Areas Act of 1966 served to
entrench racial segregation in South Africa. But even worse, the policies lead
to South Africa having one of the highest levels of poverty and one of the
highest gini coefficients in the world. Over the decades, Black people became
poorer due to lack of access to land while White people used the land as a
means to become richer.
To be sure, apartheid
was a system aimed at breaking down the psyche and moral of black people and
therefore there were a myriad of apartheid laws put in place to systematically disenfranchise
Black people. However, the land policies of the apartheid era played a central
role in the disenfranchisement process.
The ANC
Government
Since coming
into power, the ANC government has had the un-enviable task of developing land
policies aimed at reversing the damage caused by the pre-apartheid and
apartheid land policies mentioned above. In a sense, the ANC faced the same
challenges that former British colonies faced after independence regarding land
redistribution. Making land available to Black people on a mass scale has the
potential to transform the structure of South Africa’s economy and could lead
to a narrowing of the gap between the haves and have-nots. However, in order
for that to happen, the ANC government needs to develop land policies which
strike a balance between being aggressive enough to ensure that change takes
place while not being too aggressive to be infringing on the rights of current
White land owners.
In my opinion,
the current land reform policy, especially that outlined in the Restitution of
Land Rights of 1994 does not stroke this balance well enough, as shall be
outlined later.
South Africa currently
has a land policy strategy which is grounded on the principles of restitution,
redistribution and land tenure. Each one of these principles is important
however, the one that tends to attract the most attention is restitution. The
Restitution of Land Rights Act of 1994 and its amended variant of 2014 outlines
various ways in which land which was taken away from Black people through
forced removals or where land was bought at below market value rates can be
restored to Black people.
Wily, Chapagain
and Sharma (2008) argue that successful land reform policies, especially those
which focus on land for agricultural use, share a number of characteristics, among them are that such policies tend to: be implemented with great speed, coupled
with uncompromising enforcement, leaving no room for landlords to maneuver;
provide sufficient support (technical and financial) to enable beneficiaries to
be independent and ensure that beneficiaries avoid involuntary sale of their land.
The ANC can do
more
While South
Africa’s Restitution of Land Rights Act of 1994 contains some elements of the
success characteristics which are listed by Wily, Chapagain and Sharma (2008)
the Act does not go far enough to ensure proper redress. The one area where I feel
the ANC government could do more, is the
criminalisation of acts aimed at undermining the aims of the Act. This however seems
to have been addressed in the Restitution of Land Rights Amendedment Act of
2014. The question now is, will the ANC government have the political will to
implement with speed and urgency the amended 2014 Act?
Based on past
experience, the answer to the question above is that unless ANC government
inserts a sense of urgency in the implementation of the land reform policy then
the new amended Act will not make a difference in terms of outcomes. Evidence of the lack of will and
poor sense of urgency is that government has failed to meet its land
restitution targets as set out in the 1994 Act. According to the Restitution of
Land Rights Act of 1994, government ought to have restored 30% of commercial aggricultural land to Black people by 2014. By some accounts, as at the writing of this
piece, a mere 10% of the land had been either restored to its rightful Black
owners or compensated for.
What about
Expropriation without Compensation
There a number
of reasons that can explain why the ANC government has failed to meet the land
restitution targets, chief among these is resistance by White commercial
farmers to reforms and ANC government’s own poor enforcement of the Restitution
of Land Rights Act of 1994.
To digress, some
of the White farmers who resist efforts by the State regarding the transfer of land
argue that Black people will not make the land as productive as it has been
under White ownership. That may be true and Wily, Chapagain and Sharman advise
that governments can address this concern by providing support (technical and
financial) to Black beneficiaries to ensure that at a minimum, they maintain
the level of productivity of the land as they found it (where productive land
is being transferred) or make the land productive, where the transferred land is
laying fallow or idle.
Some argue that expropriation without compensation should form part of government policy on land reform and that this would increase the speed of land reform implementation. The problem is that expropriation without compensation would lead to certain rights of White land owners being infringed upon. Some would argue that Whites who own and occupy land which was taken away from Black people, do not have any rights to that land in the first place. My personal opinion is that expropriation without compensation is an option but only under certain circumstance as outlined below. Indeed, expropriation without compensation, under any circumstances has risks.
One of these
risks is that of potential flight of foreign capital as investors could see
this as an act to remove or limit security of tenure. Criminalising acts which
seek to undermine the aims of the land reform policies is a much more powerful
approach that government should apply to ensure compliance. However, this needs
to be followed up with strict and uncompromising enforcement. One way to
enforce criminalisation would be to create a land reform criminal courts (separate
or as part of the existing Land Claims Courts) where people who contravene the
various land reform laws are tried and if found guilty sentences should be
harsh and punishment once, a case has reached the courts, can and should include
expropriation without compensation. This way expropriation without compensation
is put on the table but as a deterrent rather as a matter of course.
Given the vast land
resources that South Africa has at its disposal, we can and we should be able
to use land to eradicate poverty and inequality in our society. However, this
requires strong political will.
Our Politicians
must show political will to create effective government !!!
