Advisory Panel Report Rich In Suggestions, But Thin In Detail

The report of the Advisory Panel on Land Reform and Agriculture has again emphasised the transitional nature of South African society as the country grapples with conflicting traditional versus modern values within a legacy of a post democratic versus a pre-democratic dispensation. The 132 page report deals with a wide range of issues that relate to rural and agricultural land reform, agrarian reform, land tenure rights, the role of women, biodiversity, climate change, communal land, beneficiation and post settlement support, land run by traditional authorities and the Ingonyama Trust.

The report identifies a number of historical issues that necessitate redress through land reform and land restitution, as well as post-1994 shortcomings that have resulted in what is now regarded as a failure by government to deal effectively with the constitutional obligations in this regard. The colonial and Apartheid history of South Africa is well researched, as are some aspects of the pre-colonial history that is mostly excluded in discussions about land. There is much consensus around the necessity for historical redress, which amplifies the necessity to rather focus on finding lasting solutions to current problems facing the country.

The most prominent problems in our current dispensation relate to poverty, unemployment and inequality that, in both appearance and reality, still display the racial disparities that are a remnant of South Africa’s history. Discussions on how best to deal with these issues should include how the country plans to position itself in the Fourth Industrial Revolution, how to deal with a growing urban population, mitigating climate change and ensure food and water security. Within this context, urban and rural land allocation and usage is critical. The Panel correctly states that allocation of land for urban residential and commercial development should be linked to access to services, security of tenure and greater transparency. Urban special planning and development issues are politically interlaced with administrative issues relating to rural agricultural land.

The Panel is correct in its assumptions that a weakened state and failures of government are responsible for failures of both urban and rural land reform and restitution. In this respect the Panel states: “At the heart of the problem is the poor capability of the State which is characterised by deficient coordination, limited and misaligned allocation of resources (both public and private resources, particularly the finance sector), and further complicated by corruption”. Regarding the administration by government, the Panel indicates that: “…state land administration is excessively fragmented and disjointed, and in some contexts broken down completely”.

The capacity of the state and government to effectively and efficiently draft, coordinate and implement policies and legislation that deal with the constitutional imperatives regarding redress lies at the heart of the problem. It has also become a tendency of the ANC to use crises caused by a weak state and inept government to justify ideologically based interventions. The implementation of the ANC’s cadre policy has entrenched corruption, nepotism, ineptitude and mediocrity in government. Furthermore, every crisis caused by cadre deployment has been abused by the ANC to introduce radical proposals based on the National Democratic Revolution. Examples of such proposals include the National Health Insurance, nationalisation of the Reserve Bank, the continued bailout of State Owned Enterprises and expropriation without compensation. Such proposals only serve to place stress on the economy that further exacerbates poverty, unemployment and inequality. Even though the Panel identifies the failures of both the state and government, these important political and ideological reasons for these failures are conveniently ignored.

While requiring considerably more detail, and if implemented effectively, some of the Panel’s proposals regarding the issues that they investigated could contribute to finding lasting solutions to some of the issues that they covered in the report. This will require prior administrative and bureaucratic restructuring and a vast improvement in coordination within government. Other issues that the Panel dealt with, such as those relating to security of tenure and the role of women in areas governed by traditional authorities, will require both political and social interventions.

Current issues relating to water, climate change and the agricultural value chain are not less important than others regarding land usage practices, but for the purposes of historical and political clarity should be separated from the issue of land redistribution, land restitution and land tenure reform.

In this respect it is important to note that the Panel was instituted as a result of political and legislative discussions around expropriation without compensation. While other issues emanating from the report will hopefully receive similar attention, this issue remains the political hot potato. Hidden among various other recommendations in the report, are the Panel’s controversial recommendations that the draft Expropriation Bill, that would replace the current pre-1994 Expropriation Act (63 0f 1975), should increase instances of expropriation that may be just and equitable for nil compensation from five to ten. This would require an amendment to Section 25 and in all probability other sections of the Constitution.

While no-one denies the colonial origins of current legislated property rights and the lack thereof in traditional culture in South Africa, their importance in the current modern national and global economic dispensation cannot be overemphasised. Secure property rights remain an economic prerequisite for local and foreign investment in the industrial age, and conversely the deprivation thereof a source of disinvestment. Amending the Constitution to allow for expropriation without compensation, even within clearly defined and secure parameters, within a state that is increasingly unable to guarantee the rule of law and by an administratively inept, weak and corrupt bureaucracy could send the country into an economic downward spiral that will have a devastating impact on poverty, further increase unemployment and expand inequality. The government has not adequately tested the current Section 25 of the Constitution that makes provision for expropriation with compensation that is just and equitable. The catastrophic political and economic implications associated with the deprivation of property and other rights are visible in countries such as Zimbabwe and Venezuela.

A profound comment made by the Panel is that: “25 years into democratic rule, there remains incomplete information regarding the question of who owns what land in South Africa”. With this comment in mind, is unfathomable that radical legislative and constitutional amendments can be proposed.

Besides the economic discussions around this issue, a balance must be developed between the historical and political imperatives for redress on the one hand, and the rights of current property owners on the other. Coupled to this must be a lingering awareness of the possible impact of decisions on food security and local economies.

In their 1959 book “Social Principles and the Democratic State”, S.I. Benn and R.S. Peters summarise the government’s obligations regarding conflicting interests as follows: “… no interests should be so powerful that government can safely attend to them alone. Conversely, no interests should be so weak that a government could afford to disregard any convincing case it might put up”. It is within this context that an approach must be developed between a majority that remain marginalised regarding land ownership due to a historical disadvantage, and a minority who have traditionally had a historical advantage, but who have purchased and paid for properties through their own labour and efforts and contribute to local economies, employment and food security. In this respect, the Panel interestingly notes that the value of the agricultural sector has grown by almost 50% from R50,5 billion in 1996 to R74,2 billion in 2018. Primary agriculture employs more than 850 000 people and the primary and secondary agricultural sectors together contribute between 15% and 20% of the country’s GDP.

The Panel have identified many other pertinent issues regarding patterns of land ownership and usage in South Africa and have in many instances correctly identified the reasons for continued racial imbalances and gender injustices. Lasting solutions to these complex issues will not be found in the ambit of an investigation by a Panel of this nature. The Panel’s report is rich in eloquently phrased suggestions, but poor on details. The investigations of the Panel could, however, serve as a scoping process that has identified the terms of reference for further investigation, discussion and solution seeking. Drafting radical legislative proposals on the issue of expropriation without compensation for the sake of political expediency without first dealing with the identified financial and administrative reasons for land redistribution failure is putting the cart before the horse. Government should first remedy current administrative failures and then coordinate an inclusive approach to issues relating to land redistribution, usage and ownership alongside some of the other issues raised in the Panel report.

Land remains an important economic resource in South Africa that requires infrastructure, capital and expertise that is generational in nature in order to become a source of food and employment. In other contexts, Paul McMahon indicates in his book “Feeding Frenzy” that: “…especially in Africa, land has cultural, sentimental and political meaning. It is a reminder of past dispossession, a symbol of present dignity and a source of future security”.   

It is within these complex realities that South African’s will have find a lasting solution to the myriad of issues relating to urban and rural land ownership and usage. The current democratic order in the country is the product of a Constitution that was birthed out of dialogue. Any proposals regarding amendments to the Constitution should be preceded by dialogue and consensus among all affected groups of people in this country. Expropriation without compensation should not be allowed to become a short term political solution to cover up government failures, corruption and ineptitude regarding urban and rural land redistribution and tenure security. South Africa first needs to fix the government that implements legislation before the country attempts to fix legislation that was not implemented effectively by government.

  • Dr Roy Jankielsohn is a DA MPL and the Leader of the Opposition in the Free State Legislature

OPINION: Roy Jankielsohn