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Phuhlisani NPC (Phuhlisani)

Non-profit organization

Phuhlisani began as a consultancy started by a group of people who wanted to support emerging farmers who obtained access to land through land reform programmes in South Africa. In 2015, after 12 years in operation as a Closed Corporation, the members of the company decided to convert Phuhlisani to a Non-Profit Company which took place in October 2015.

Phuhlisani NPC provides comprehensive services and support for sustainable land reform and rural development including:

The Land Portal is a Foundation registered in the Netherlands in 2014.

The vision of the Portal is to improve land governance to benefit those with the most insecure land rights and the greatest vulnerability to landlessness through information and knowledge sharing.

In February 2018, South Africa’s National Assembly passed a resolution to establish an ad hoc Constitutional Review Committee to explore and debate the need for a constitutional amendment to allow for the expropriation of land without compensation in the public interest.

Many serious commentators have argued that the focus on land expropriation without compensation is a diversion from a focus on the failures of the land reform programme to improve equitable access to land and the lives of the majority of poor South African households.

Since the passing of the Parliamentary resolution the term "land expropriation without compensation" has been used over 25 000 times in South African media, leading the Pan South African Language Board to designate this phrase as South Africa’s word/phrase of the year for 2018. However in the process, public debate on land issues has been muddied by the generation of streams of deliberate misinformation on social media platforms. This obscures key issues and challenges for which we need to find collective solutions.

This moderated online dialogue facilitated by Phuhlisani NPC in association with the Land Portal is in search of solutions. Contributors to the dialogue will discuss and debate the content of a pro-poor programme of land reform that can:

  • Actively promote equitable access to land in rural and urban areas to tackle spatial and economic inequality

  • Provide tenure security for 60% of South African citizens whose property rights remain off-register

  • Grow and support small producers and contribute positively to the livelihood security of marginalised rural and urban South Africans

  • Address the current shortcomings affecting existing restitution, redistribution and tenure reform programmes        

Ten core questions
The 10 questions below will provide the primary focus for the online dialogue. They will be supplemented by other related questions as the conversation develops.

  1. What is land reform for?
  2. How exactly can access to land support the livelihoods and wellbeing of poor people in South Africa?
  3. What has been relationship between the costs and benefits of land reform to date?
  4. What has worked with land reform in South Africa: where and why?
  5. What needs to be done to get closure on land restitution and accelerate rural land redistribution?
  6. How can we improve access of the urban poor to well located land in the city and tackle the effects of spatial inequality?
  7. What can be done to secure the land rights of an estimated 60% of South Africans whose land rights remain off register in rural and urban areas?
  8. How do we deal with the politicisation of land reform, and its connection with the national and the colonial questions?
  9. How do we obtain reliable open data to better understand who owns what and monitor the performance of the land reform programme?
  10. What should be the key elements shaping land policy and a land reform framework law to ensure that land reform benefits poor South Africans and does not become a vehicle for elite capture?                      

Comments

Welcome the online South African land debate. I am Rick de Satge - Director of Research and Collaborative Learning at Phuhlisani - a non profit company with a long involvement in land issues in South Africa. My colleague David Mayson and I will be working to monitor the flow of the debate, periodically summarise the discussion and introduce new questions and perspectives as we go.

The debate will be anchored around the ten questions which are set out in the background section above. To get the process started we would like to explore your perspectives on two foundational questions:

  1. What is land reform for?
  2. How exactly can access to land support the livelihoods and wellbeing of poor people in South Africa?   

The Bill of Rights in the Constitution provides the foundational guarantees for property and land rights. Section 25 — the so-called “property clause” — requires the state to take reasonable legislative and other measures to remedy the impacts of past racially discriminatory laws and practices which dispossessed people of their land and houses and rendered their rights in land insecure.

Sections 25(5), (6) and (7)

(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

These three clauses link land redistribution with tenure security and the right to restitution of property, alternative land and/or compensation.

While the Constitution provides the legislative mandate for the land reform programme there are many different perspectives on: 

  • why land reform is important,
  • what the programme is for 
  • how exactly access to land in rural and urban areas can actually make a difference to the lives and livelihoods of the majority of poor South Africans.  

We would like to start the conversation here - with the broad politics, economics and meanings which will help to identify the different framings and often fundamentally contested understandings of the land question in South Africa.  From there we will focus on a range of specific and practical issues. 

You can contribute by adding your responses to the Land Portal discussion thread below. Or if you prefer you can participate by adding your ideas to the shared Google doc, making use of the link sent to all registered discusssants by email. The discussion facilitator will upload your comments from the Google doc into the Land Portal discussion space as part of the public record. 

So to get things started we are exploring different perspectives on: 

  • what land reform is for?
  • how exactly access to land can support the livelihoods and wellbeing of poor households in rural and urban settings in South Africa?

Land reform can never be a one size fits all.  It can never only be about either rural or urban land, or about residential land, land for smalholders or farm dwellers or land for commercial farming.  There are a variety of needs that have to be catered for and we need a variety of instruments to do so. We need to utilise our spatial planning instruments better as a country and we need to decide what land should be reserved for which kind of land use. In doing so, we need to clearly understand that the impact of certain kinds of land use are irreversible, such as mining or large scale residential developments, so careful planning and zoning is important. We need to have a better understanding also of what the needs are.  The biggest need is probably for housing in towns and cities and if that is the case, that needs to be prioritsed.

Access to land in itself will not necessarily improve peoples' livelihoods - a more holistic approach should be taken in creating better lives for our people.  In my view, the NDP takes such holistic view of development and land reform. 

We seem condemned to produce mounds of documents - visions, strategies and plans which do not get implemented.

As Scott Belsky has observed:

The easiest and most seductive escape from the project plateau is the most dangerous one: a new idea. New ideas offer a quick return to the high energy and commitment zone, but they also cause us to lose focus. As the new star rises our execution efforts for the original idea start to fall off. The end result? A plateau filled with the skeletons of abandoned ideas.”

That said the NDP is not a plan - maybe an approach or a framework which has to be interpreted in space. How to do this remains the challenge. At the beginning of the municipal Integrated Development Planning (IDP) process the conception was the IDP would provide a window into the operations of the state and its partnership with industry and civil society within unique muncipal spaces as it responded to local and national development priorities. For a period the DRDLR experimented with area based planning for land reform at district and local municipal scale but this was abandoned in favour of rural development plans. Currently we seem to lack a coherent methodology to gather relevant baseline data, profile, proritise, plan, budget, implement and monitor at local and district scale taking into account the particularities of local needs and amking use of local knowledge.

 

What is land reform for?  My field is the narrower spectrum of land reform that relates to land tenure security, particularly security for the most vulnerable within that spectrum - usually women and children.  https://www.michalsons.com/focus-areas/information-technology-law/land-i...(link is external)  The kinds of documents that you collect for a land information system, and the processes you choose, can go a long way towards securing the tenure of vulnerable members of society.  My 2017 book Pro-Poor Legal Practice: Subsidized Housing and Household Rights in Southern Africa used my experience in a housing department.  https://juta.co.za/products/pro-poor-legal-practice-household-rights-and...(link is external) Working with the document base made me realize that there are actually many opportunities to secure rights in a more functional way through proper record keeping alone.

There seems to be an ignored issue regarding land reform in Southern Africa. When the issue is viewed from the context of post-land-appropriated colonization, it becomes clearer. The meaning of land in "post-land-appropriated colonization" needs to be understood to grasp the way forwards. As you read below, please forgive my many brackets (it is difficult for me to write land reform discourse without many parentheses). 

 

What do I mean by "post-land-appropriated colonization"?

Different countries in sub-Saharan Africa underwent various forms of colonization. For instance, Ghana experienced colonization that did not end in a post-colonial land annexation by the colonizers. Countries like Zimbabwe, Namibia and South Africa underwent post-colonial land-occupation by the colonizers. So, by "post-land-appropriated colonization," I mean situations where the colonizers occupied the land they annexed during the period of colonization at the end of the colonial period (and continued to live with the colonized as "equal" citizens). This is the case of South Africa or Zimbabwe (to mention a few).

 

A misconception about post-land-appropriated colonization experience (e.g., Zimbabwe)

Although this post is about South Africa, the illustration of how post-land-appropriated colonization affects an understanding of land reform is best illustrated in the case of Zimbabwe. It is common to read about how the Zimbabwean reform failed. When scholars discuss this "failure," instances of the "failure" is always viewed from an economic perspective. However, other aspects tend to be ignored. For instance, what was going on in the mind(s) of the reformers when they decided to take the "horrendous" and "racist" that was to be termed a reform in Zimbabwe. The answer looks all in the face - the reformers simply wanted to take land away from the colonizers (or their descendants) and return the land to the indigenes or all citizens. By doing this in Zimbabwe, the reformers and their supporters considered the reform a success -irrespective of perceived (and realistic) failures from the lens of human right, economy, etc. What this says is what many of us already know but choose to downplay -that land in Africa has a "spiritual" (appeasement of ancestors) and "prestige" (historical, heritage or people-ego) aspects. (Different from the legal, social, political, environmental, economic dimensions of the concept of land.)

So, why the macho leadership of Zimbabwe went celebrating that they were able to take a "property right" away from their oppressors (or descendants of their oppressors), restored it to their people (irrespective of who took immediate occupation or possession. (After all, someone has to take individual ownership -so far it is not the feared oppressors - for colonial repossession to happen).

To the reformers (Former President Mugabe & friends), they thought themselves heroes (and so did many Zimbabweans) for taking the shame off the people. The shame (or if you like the guilt) of living in a country where another occupies your ancestral land without your permission. To them (the reformers), it brought back "lost prestige" and expected joy in the minds of their defeated ancestors (from the past). Choose to ignore this, and you will neglect a critical dimension of the concept of land in Africa -the sociocultural, historical, heritage and spiritual aspects.

 

Back to South Africa

I think that just as Zimbabwe returned the land to all citizens to be held by the state, South Africa is trying to return the land to all citizens (with focus on those citizens who do not have or those from whom the land was initially taken away from their ancestors). The South African approach is a tactical one as the country is taking lessons from Zimbabwe... but the idea of applying "without compensation" as a condition to the process makes think about the sociocultural, heritage and spiritual dimensions of land.

 

Concluding

What is my point? Land reform in South Africa is first and foremost, about returning the land to landless black population, and then expecting (or if you like, wishing) that they would gain empowerment through repossession or redistribution. This is my understanding os what the proposed reform is mainly about.

"Land reform in South Africa is first and foremost, about returning the land to landless black population, and then expecting (or if you like, wishing) that they would gain empowerment through repossession or redistribution". 

Thank you for an excellent and provocative contribution to the debate. You highlight what is frequently ignored. Karl von Holdt has observed that the foundations of our constitution obscures the founding violece of South African society:

It is important to note that in recognising and protecting property rights the constitution ratifies the outcome of over three centuries of colonial and apartheid violence – conquest, dispossession, and the Land Acts of 1913 and 1936, as well as the successive labour regimes of slavery, forced labour, migrant labour and cheap rightless labour on the basis of which capital accumulation took place. Not only was the constitution born in violence, in this sense it obscures the founding violence of South African society. More perhaps than in most societies this constitution is a ‘founding fiction designed to disguise the act of lawless violence which is the basis for the establishment of law’ (Bourdieu 2000, 168).

- I agree with Max Du Preez: “It will benefit the landless as well as those fortunate citizens who already own land, urban and agricultural land, because it will lower the levels of anger and resentment and make South Africa a more just and stable country”

- It will only benefit a few as most land will either not be suitable for any form of agriculture (size/availability of water, etc.) and because there are not enough resources and support available. This is an emotive issue and access to land will not financially support livelihoods but will contribute to their wellbeing. Services will however be a major problem and may cause more problems than ever before

In the early 1990's the ANC, which was not yet in government, started to articulate its thinking about land. In 1992 the ANC National Conference released a policy document entitled Ready to Govern which stated that:

The property rights of the majority have been systematically ignored and violated by apartheid. A new system of just and secure property rights must be created, one which is regarded as legitimate by the whole population.

The Bill of Rights shall establish the principles and procedures whereby land rights will be restored to those deprived of them by apartheid statutes. A land claims tribunal, functioning in an equitable manner according to principles of justice laid out in legislation, will, wherever it is feasible to do so, restore such rights. In doing so, it will take into account the role of compensation to be paid by the state to those whose existing titles are affected. Provisions relating to property rights and compensation will have to be applied in such a way that they are not manipulated so as to frustrate a national land reform programme.[1]

The document noted that:

The state will play a key role in the acquisition and allocation of land and should therefore have the power to acquire land in a variety of ways, including expropriation in accordance with the provisions set out in the Bill of Rights.[2]

The document also pledged to fundamentally change the spatial geography of apartheid and make available serviced land for housing ‘close to towns and cities and to places of work’.[3]

In a bid to address spatial inequality the document stated that:

The ANC rejects the privatisation of land supply for low income housing and believes that it is the state’s responsibility to ensure that low income households have easy access to well located, affordable land. The state or state organs will play an active role in land acquisition and in curbing land speculation. Some of the measures we will consider using to curb land speculation are the application of high municipal rates on well located undeveloped land, a capital gain tax on land transactions and the use of legal arrangements and tenure forms which take land (and housing) transactions out of the market and guard against downward raiding by more affluent groups.[4]

With regard to tenure security the ANC advanced the view that ‘people should have security of tenure which does not necessarily mean individual ownership of both land and the dwelling unit. The document undertakes that ‘provision will be made for different forms of tenure’[5].

In 1992 the ANC released its policy on land restitution stating that land reform would combine restitution to restore land lost as a result of forced removals and redistribution which would address land hunger. The policy document noted that:

It is important that the restitution process be as speedy as possible. Many of those dispossessed are in a desperate position and need urgent relief. The sooner this is achieved, the sooner a basis will be laid for a secure system of property rights for all South Africans. Those dispossessed by apartheid must now receive justice without further delay.[6]

So land reform was intended to address the violation of the rights of the majority to property and to begin to address the mass dispossession as a consequence of colonialism and apartheid. It had both rural and urban dimensions. 

Section 25 of the Bill of Rights in the South African Constitution contains three clauses that provide the legal imperative for the land reform programme.

Sections 25(5), (6) and (7)

(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

These clause link land redistribution with tenure security and the right to restitution of property, alternative land and/or compensation.

The notion of a right of “equitable access to land” establishes property rights for those without property. This constitutional framework imposes a positive obligation on the state to provide suitable land and housing for the landless and homeless, empowering them to press their claims, and shape the behaviour of state officials to facilitate a responsive land reform Ruth Hall

From the perspectives outlined above there were enormous expectations that the land reform programme could:

  • rectify dispossession and historical injustice,
  • restore property and dignity,
  • address stark structural inequality and poverty.

The current debate around the expropriation of land without compensation makes it clear that land issues have not been effectively addressed since 1994. 

At a recent roundtable on expropriation without the compensation Jeremy Cronin, the Deputy Minister of Public Works reviewed the land reform context and status quo in South Africa. See an extract from his presentation below:

He made an important observation about popular narratives associated with land restoration which advocated 'a return' -a rewinding  history to redress past loss. He noted that while we cannnot forget the past we need to recognise that we cannot somehow engineer a return to a "better past".

Given the above, the question: 'What is land reform for?'  is of great importance. It asks what we can and can't expect a land reform programme to achieve. Is it about restitution and redress? Is it about securing property rights? Is it about agriculture? Supporting 'smallholder farmers'? Access to the city?  

Whatever the answers they initiate related important 'how' questions: How can access to land improve the livelihoods and wellbeing of poor people in rural and urban settings in South Africa? 


[1] ANC, Ready to Govern: ANC policy guidelines for a democratic South Africa adopted at the National Conference (1992), (http://www.anc.org.za/docs/pol/1992/readyto.html#E) accessed May 2018.

[2] Ibid., n.p.

[3] Ibid., n.p.

[4] Ibid., n.p.

[5] Ibid., n.p.

[6] ANC (n.d), Policy on the restitution of land rights, http://www.anc.org.za/content/policy-restitution-land-rights

 

Land reform plays two quite different roles:

(1) Firstly, land reform plays a political role: one of its aims is to address the felt historical legacy of colonial dispossession and Apartheid forced removals. This is essential for ensuring national stability and the legitimacy of our Constitutional order: the very possibility of the existence of South Africa as an inclusive political order that belongs equally to all who live in it requires that some way is found to address the question of how the descendants of those who originally dwelt here can live peacably as fellow citizens with the descendants of settler colonists.  This works two ways: any attempt to address the land question needs to be informed by an understanding of the national question; at the same time, the creation of a viable sense of shared membership of the national political community is impossible if the historical legacy of the land question -- and present day feelings of disenfranchisement -- are not addressed. 

(2) On another level, it needs to support the purposes of national development and economic growth, and should enable forms of pro-poor, inclusive development that provide economically marginalised people with some kind of 'foothold.'  This is NOT the same as supporting high growth, modernist agricultural development highly integrated into the core economy - that is a model that entails high levels of competition and full exposure to the stresses created by the macro-economic environment.  It is more about providing resources that can support the complex, fragmented livelihoods that people have (not only part time and subsistence farming, but also other economic activities that need a base on the land) and to sustain the informal networks of social reciprocity on which the poor and marginalised survive.  Land, in other words, serves for the poorest of the poor as a cushion, a safety net, and to some extent as a bulwark against the risks and costs of full incorporation into capitalism, and to ameliorate the power relations that ensure that so many people are adversely incorporated into the economy. 

While these questions are closely linked, they are not the same, and answers to them are not automatically aligned and can indeed be at cross purposes.  

I agree with Andries that Land Reform has two different roles. I want to also say we are having this conversation on two different levels, and it seems that sometimes we have a communication gap.

 

On the one hand we are re-assessing the 1996 Constitution and the form of justice on which it rests. Why, if we have chosen a specific path, did we not succeed in what we set out to do, on a justice level. This provides the normative framework, the forward-looking framework, imagining what we CAN be (or could have been) as a nation. That is a delicate conversation, and one we often shy away from. But it is also important for practical reasons: if our Constitution is build on a type of restorative justice (as I would like to argue), then we need to see what the requirements are for that to succeeed. Then we can look back and assess on that level. In the more narrow compensation conversation, this also plays a pivitol role. If we have restorative justice, then current owners cannot be punished by very little compensation. But, it also requires an apology, and restitution to make good the apology.

 

On the other hand this conversation is very practical. And this is often where the economic arguement also features. Some poeple thing that economics and society are two seperate entities, but it is not. Our economic choices shapes society (and then, linked in with the justice question, is the “society as we imagine it to be”). But, the practicalities are JUST as important. There is justice in a healthy, working economy that uplifts the poor and does not create more poverty in the process. 

 

In this category the compensation question is more practical. WHEN do we foresee no compensation? IF compensation is paid, how are we going to calculate it? And then, once the state acquired the property (after the expropriation), what then? This what then question is on this level almost more important than the compensation conversation.

We should not underestimate the psychological role of land reform.  Just seeing that government is doing something to redress would by and on its own go a long way in nation building.

Something that has struck me is the assumption that there are still people who will move onto land reform farms or land and i wonder if this so - much land reform in KZN has been for already resident people who are there but insecure. Where there have been farms that people had historically been moved off --nowhere to date have the communities moved back en mass - they sent children or tenants and often just grazed cattle on the now extra commonage.

There is of course land reform for buisness but this often does not entail residence.

 

In one sense land reform is about redressing an imbalance. Due to specific conditions - such as colonialism and apartheid in our context, or conquest/war in others - or due to simple buying and selling, land ends up being held disproportionately by some, while others lack it. The 'some' and the 'others' can be categorised in all sorts of ways - racial, gender, ethnic, degree of wealth, etc. For a range of reasons we know that such disproportionality is not good, and it needs to be undone. Hence the well-known Biblical practice of the Jubilee Year, with the return of the land to its 'original' owners/holders.

It seems that this is to a large extent what we are now embarking on in SA. For most of the proponents of expropriation without comsenation (EWOC) the idea is that land must be 'given back' to those from whom it was taken (echoes of the Jubilee). So far, so good. Land was illegitimately taken and, to the extent that it is practically possible, it should be given back. But what then? Even if we (miraculously) achieve some ideal scenario, with the land allocated in a way that remedies historical injustices, while at the same time accommodating the imperatives of food security, investor confidence, economic growth - a circle that Cyril assures us can be squared - surely it is only a matter of time before the familiar forces get to work. Some people sell their land to others; cultural or religious practices lead to gender imbalances in land ownership; politically ascendant groups acquire ownership/control over land at the cost of other, less influential, groups. Pretty soon, we need another land reform programme.      

As long as land has a marketable value it will be treated as a commodity, and it will be bought and sold; and as long as it is bought and sold some people will accumulate it and others will lose it. Imbalances will always arise, and since the supply of land is finite, increased production is not an option for the redressing of the imbalance (as it is for many other commodities whose supply is not finite - houses, education, food, etc.) So we need a way of de-commodifying land; or, to put it another way, of reducing its value to zero. And the only way of doing that, short of full nationalisation - which in any case would just place all the value of land in the hands of the state, rather than completely devaluing it - is to tax it. 

So, if land reform is about finding a way of permanently redressing imbalances in the ownership of land, rather than just changing the look of the people who happen to own it at any given moment, it must cease to be a commodity; and a land tax is probably the only way to do it.  

Mike can you explain how a land tax can permanently address imbalances in the ownership of land? This seems to fit with the proposal call made by the Davis Tax Committee in 2017 to identify various forms of wealth tax including a land tax. A brief prepared by Charles Collocott for the Helen Suzman Foundation provides more background on this. It identifies a number of potential issues while also noting that:

A new land tax, which creates an additional liability for owners, reduces the market price of affected land by the expected present value of the taxation stream. Nonetheless, land taxes have their disadvantages. Implementation of a land tax would need to be carefully considered, as the downside risks may outweigh the potential benefits. 

As the HSF brief says, the price of land is reduced by taxing its value. Say I buy a piece of land in the expectation that its value is going to rise, as people are doing right now along the planned route extensions of the Gautrain. If I know that I will eventually walk away with a lovely windfall profit when the land values rise as a consequence of the Gautrain's economic benefits, I (and other speculators) will be prepared to pay a premium for that land - and its price will rise accordingly. But if I know that whatever profit I eventually make will be taxed, I (and the other speculators) will be less inclined to pay a high price for it - and its price will not rise very much. In fact, the more the eventual profit stands to be taxed, the less the purchase price will rise. If the profit is taxed at 100%, the purchase price will not rise at all. It becomes an asset with a zero return - it is good for what you can do with it (plant crops, build a factory, lay out a nice garden) but no good as an investment.

If you tax the value of land on an annual basis (also called 'capturing the land rent') you keep its price down, thereby facilitating entry. No one is unable to afford a piece of land. This is of course the prescription of Henry George - see http://sacprif.org/2016/10/27/the-single-tax/ 

It's interesting that people continually argue that land taxes 'have their disadvantages' without actually specifying what they are. A land tax is not an additional tax, but a replacement tax - income tax and VAT gradually fall away. It does not increase production costs. It cannot be evaded or avoided, since the tax applies not to a person but to a piece of land. And for the few people - mostly elderly people living on valuable land - who cannot come up with the cash to pay the annual tax, a defferral system can easily be implemented: the tax is paid from the owner's estate when he or she dies.   

So a land tax effectively de-commodfies land. There is no point buying and selling it, speculating in it, holding it off the market while you wait for its value to rise. And all that results in lowering the barriers to entry - and in preventing the imbalances in land ownership patterns from arising. 

 

This is definitely a subject which needs to be opened up, land rates and taxation.  The entire regime needs to be relooked, not in a narrow functionalist sense, but with a view to ensure that we have a national functional system for generation of revenue from land.  Instead of thinking of a land tax in isolation from the wider context I think we should reconsider this matter as part of repurposing land administration.

Thanks for the very clear explanation. As this is a discussion and a debate, and having come across this line of argument fairly regularly over the years, it seems compelling as a potential way of fundamentally restructuring land ownership in the long term and altering how the market currently works in the short to medium term. But I'm left with questions about how a country would transition to such a system, and wonder if there are compelling examples of where this transition has happened at scale and then stuck. For example:

a) governments may promise to replace other taxes with this kind of tax but realise that this is counter productive and gives rise to other unexpected consequences as the wealthy and all citizens manoeuvre to reduce their tax burdens (e.g. increases in salaries would be taxed less, and then instead of investing disposable income in property which would not be as lucrative any more, simply shift investment into another area). Another example of an unintended consequence is that people hide the real value of real estate by making it appear less valuable as people already do in countries where you only start paying property taxes when a building is complete - people make sure never to complete their houses. People also avoid death taxes by breaking up property holdings before death.

b) There are relatively high transaction costs in SA in moving house, so in Cape Town in the last ten years there are many cases where pensioners cannot afford the market related property rates nor can they afford to move. At that time of life they would want to downsize but don't have the means. You would need to address transaction costs or reduce friction in residential mobility as a concomitant intervention with a shift to a Georgist world.

c) if land development and the production of rentable space has been driven off cross subsidisation from increases in land value for so long, in a Henry George world what would drive (pay for) the supply of infrastructure, and the cost of building. These are expensive exercises and developers and investors do these sums all the time. If increases in land value were taken out of the equation, all of these up front capital costs would need to be recovered from rent to the final occupants. So what is the alternative mode of production? 

The ideas of reducing profits, avoiding concentration of wealth in the hands of a few, and recouping some of the value that is created from public investments are all very important. What I am raising here are rather questions of the mechanisms that would need to be deployed if one moved from the current situation where land is indeed a commodity to one where this component was largely taken out of the equation. 

Perhaps part of the answer lies in setting out the ultiamte objective first, as the implementation of the taxation is not an end in itself. so what level of equity is required and how much of this is acheivable through changing the proficatbility of land in the market. So the transition isnt necessarily a complete 180 or 360 but possibly only a 45 degree or a 90 degree combined with other tools. And then what might be lost can be measured by the expected gain. And who gains and loses. 

I am certainly not an expert on land tax, but I can offer a few answers to your points, Mark. The key idea, I think, is that it would be levied on bare land values only. So an acre in Clifton with nothing on it would be valued equal to a similarly situated acre with a four storey mansion on it. Effect: pointless holding land for speculation, good idea to build/improve, thereby creating jobs, economic growth, etc. Who actually values the land? SARS, or some other government agency such as a valuer-general. You can have an appeal process and so on, as we have for municipal property rates, but ultimately it is a public process, carried out by public authority. There is thus no way of making your land appear less valuable - the valuer-general tells you what it's worth, no matter what you may think about it. Same goes for breaking up property portfolios before death (or after death for that matter) - break them up all you like, each erf will be assessed for its value, and a tax levied on it. It makes no difference who owns it today, or who owned it yesterday. For the same reason, it makes no difference whether the piece of land is occupied by an owner or a tenant - in the latter case the tax will be built in to the rent the tenant has to pay.

What drives the supply of infrastructure and pays for the cost of building? Second question first: If you and I both own similar plots (makes no difference where) we will pay the same annual land tax. If I build flats on mine and rent them out; or I plant crops; or I sink a shaft and extract ore, and you do none of these things, we both still pay the same tax on the land value. But I get a nice (untaxed) income while you get nothing. Pretty soon, you'll start building/planting/mining. (And if it happens that the best thing to do with my piece of land is to keep it pristine - because obviously we don't want every bit of land to be developed, and we value wilderness and bio-diversity, etc., - it doesn't take much for a nominal and compensatory value to be attached to such a decision.)

Infrastructure? Almost all infrastructure is publicly funded. Local authorities, state agencies, SOEs and the like will have an interest in creating and maintaining infrastructure, since that (along with natural endowments such as views, rainfall, soil fertilty, and the like) is largely what drives land values - and thus land value taxes - up. If government has to rely on land taxes for its income, it has to make sure that it does what is necessary to ensure that land values are preserved, or increased. Hence, it works hard to keep infrastructure in good nick.

Pensioners and others who lack the liquidity to pay the tax on their valuable land can be accommodated quite easily by deferral or, in some cases, sub-division. What we need to avoid at all costs is the current situation where children inherit vastly valuable land from elderly parents, having done nothing to create that value, and having no obligation to share it with the community which has, in fact, largely created the value.

In essence, the idea is that land is always, by its nature, a public good. Barring a little reclamation here and there, it cannot be created. Along with air and the spectrum, it is the ultimate finite resource, the most inelastic of goods. If you happen to hold it, whether as owner or tenant or investor, you must compensate everyone else whom you exclude from holding it - and you do that by paying tax on it.            

Thanks Siyabu, Lisa and Mike for sharing your thoughts.

It is quite a compelling argument, and I hadn't before fully grasped the separation between land value and what is built on it. A few disjointed thoughts:

a) South Korea and some cities in India have a government driven land valuation system. These are expensive to run and keep up to date, but mean that the state can exert a lot more leverage on the kinds of development they want to see happen

b) the move to this kind of land value tax is quite a fundamental shift, and I would still like to know if any country has tried it to any significant degree in the last hundred years

c) what I have found interesting watching development over the years in Tshwane is that I see parts of the city where it is very likely that there will be demand for much higher value land uses in future being bought up and developed at the lowest level feasible for the area until the right time comes. So land interests often do not leave the land vacant, but under-develop it with relatively cheap buildings. Examples are vast areas of car showrooms in Hatfield and in Menlyn that have been there for the last 15 to 20 years, and land values are about to reach the tipping point where it will be worth demolishing and building medium to high rise. Small businesses and some larger interests buy up houses in Hatfield and Arcadia for office space, until the time is right. The best one is a largish plant nursery covered with potted plants and a shed, right near to Menlyn Maine. I've heard that warehousing in the South of Johannesburg has been following a similar pattern over the last 15 years, although that is more complex with the rise in demand for storage and logistics. 

So I guess I'm saying whatever new system of taxation or regulation is put in place, there will be a response from those with powerful vested interests. But that's no reason not to try for the principles that you have outlined above and which make a lot of sense.    

 

(Anton Rabe is indisposed after a back operation but requested that this point be included)

Land reform is not only focused on agriculture but it also needed to provide land for housing in both rural and urban settings.

You raise an important point Anton. Land reform should also be about identiying land for settlement in a wide variety of settings.  The new website under development by Phuhlisani NPC highlights how South African cities face enormous challenges and that despite the provision of more than two million houses and associated services the fundamentals of the apartheid city remain intact. 

 There is a damaging spatial divide between where most people live and where jobs and resources are located. The economy is much more concentrated geographically than the population, resulting in extensive unemployment and poverty for people living in the periphery, and imposing an imposing extra cost on their mobility (an ‘Apartheid tax’?) – Turok, I., et al. (2017).

South Africa’s cities and towns, after 22 years of democracy, are still characterised by spatial inequality and racial segregation. The evidence is clear:

  • most jobs and economic activity are concentrated around “urban cores”
  • a predominantly white urban elite lives in well-located and serviced city cores, close to economic activity and social amenities
  • the majority of black urban dwellers live on the urban peripheries in dense and poorly serviced dormitory settlements, requiring long and costly commutes to work and economic opportunities.
  • A number of factors make urban spatial inequality and the legacy of the apartheid city difficult to reverse:
    • colonial and apartheid planners purposefully designed a racially segregated urban form and cast this in concrete, complete with networks of highways, rail links and land use zoning schemes to create physical buffers between population groups;
    • post-apartheid housing policy has prioritised mass delivery of individually titled housing built on cheap land in peripheral locations. This has entrenched rather than disrupted existing patterns of spatial inequality.
    • well located state owned land in metropolitan areas has not been used to reintegrate and desegregate the city;
    • a strong urban property development lobby organises to protect its interests.

In the democratic era, housing policy makers assumed that providing people with subsidised houses would contribute to poverty reduction, but in practice this has had little impact (Sarah Charlton and Caroline Kihato. 2006). A Department of Human Settlements evaluation published in 2015 noted that subsidised housing units are sold “well below capital investment values” and that “poor location of projects in relation to employment opportunities and to socio-economic opportunities remains the most serious problem associated with the Housing Subsidy Programme”. The evaluation also reported that “fully subsidised government housing has had a negative effect on municipal finances” (Centre for Development Support. 2015).

The persistence of spatial inequality means that the focus is on well located land for low income housing. This land is expensive and the only way to affordbaly acquire such land would be to make use of state owned land in the City. In Cape Town it has been suggested that use of unutilised land owned by Transnet and the SANDF could eliminate the housing backlog at a stroke

Phuhlisani NPC with the Laborie Initiative and a range of industry, civil society and labour actors developed a submission calling for a policy and programme review of farm worker housing noting that farm workers have been poorly served by housing policy:

  • The pattern of casualisation and externalisation of labour, which has come to characterise labour intensive sub sectors within the agricultural industry, is displacing workers off farm.
  • Many displaced workers have no alternative but to enter informal settlements in small rural towns where local municipalities are already struggling to address housing and service backlogs.
  • Apartheid era subsidies and tax incentives designed to encourage owners to invest in improved living conditions and social infrastructure on farms were withdrawn without effective alternatives being introduced.  
  • The Farm Residents Subsidy introduced as part of the National Housing Code has failed to attract a single subsidy application. There is currently no coherent national policy on farm worker housing.

 

I do wonder though why we are not more assertive about land reform being about restructuring / transformation. In the current context of a severely unequal society and a market driven economy trying to operate in a globalised economy and in particular a global agrofood system, can we afford to think we can find solutions with land tied up in the current Property structure ( affecting access to land in urban and rural areas, and access to affordable housing, and livable human settlements) and within the current structure of agriculture ( an almost unregulated , unprotected, or unsupported sector exposed to a highly vertically integrated agrofood industry)? 

Unfortunately our Constitution mixed up the need for some kind of land access (as suggested by Andries du Toit's  input) with the property system as a whole.  Is Section 25 about land access or about property?

Now we tend to conflate land reform, land access, agriculture and property issues causing very confused debates. 

Land Reform, I feel,  should have a brief targetted restructuring and transformation purpose towards serious wealth ( in its broadest sense)  equity, whilst we develop a long range land access policy for South Africans on the back of a repurposed property system that meets our socio-economic development needs. At the same time acknowledging that this restructuring of the property system be done within the broader inesacapabale context of market driven economies. If we could separate out and develop appropriate property systems for each type of land use and for each type of asset and consumable commodity in our economy we might enable a more relevant and flexible land reform and land access and tenure security arrangement for all South Africans facing vastly different problems in our unequal system. 

 

 

 

I am not sure that the Constitution mixed up the need for land with the property system as a whole. The Constitution tries to strike a balance between the interests of existing property owners and the interests of society as a whole. It makes it clear that property is not limited to land and firmly locates land reform as being in the public interest and extends this to bring about equitable access to all natural resources. This implies that access to water, forests, fisheries and mineral resources are also in need of reform to promote equitable access. Can you clarify how you envisage separating out and developing appropriate property systems for each type of land use? 

 

However, closely I read S25 of the Constitution or any other section I d not find a clause that says all South Africans have a right to a piece of the countries land or that we all have a right to a property right in the current property system. Surely this should be an objective of land reform? 

It does talk about the right to redress or restitution if you can show you lost a right or if you can show your rights are insecure (legally) due to past discriminatory practices. It does talk about equitable access to land but does this mean to rights in the property system as it currently exist. Do these rights include the new ones afforded to people under PIE, IPILRA, ESTA, LTA, CPA's etc? As far as I can see the courts are interpreting these so called property rights as ones that prevent you from being arbitrarily evicted, very little more than that.  So are these rights to be regarded as ones that are part of the existing property system but are just types of rights that have a smaller bundle ( maybe 1) right? If over 70% of our land is tied up in the current property system is there any other way to give people access to land except through this system?

My thoughts about differentiation would include different levels and types of tax on different land uses to manage / regulate how it is treated as a commodity or speculated with eg residential second homes taxed differently to primary homes, public, industry, business, agriculture etc.  Also giving different types of rights in differnt types of land uses and possibly different land admin systems to support each. essentially creating a situation where we can treat land as having an imporant social value that should not have to compete with economic values. 

Perhaps some focus should also be given to the the financial institutions asset porfolio's and reducing their investment (?) in property through mortgages and loans. 

 

 

 

 

 

Lisa, you raise an interesting point. Section 25(1) says that no-one may be deprived of property. Is this the same thing as granting everyone a right to property? If you can't be deprived of property, the assumption is surely that you already have property? And I note that property here isn't limited to land or housing. By contrast, Section 26(1) says that everyone has the right to access adequate housing. Are these so-called negative and positive rights respectively? If there are any lawyers engaging in this debate, please clarify for us! Perhaps amendments to Section 25 (if they go ahead) should include changes that make this clear, i.e. amend 25(1) to grant everyone the right to access to land? Note that the right to land is not an internationally recognised human right. See e.g. Gilbert's article on the issue: https://www.researchgate.net/publication/272305198_Land_Rights_as_Human_.... There is the very real issue (more relevant in some countries like Singapore than others like Australia) where there simply may not be enough land available for everyone to have a piece. But the right to access land should be recognised.

I am not sure about this approach of a right to a right in property/land. I think that becomes complex in the reality – how big is the property, where is it located, what kind of right, for what purpose, etc. I think the constitutional approach of ensuring equitable access to land provides the push to the state to ensure that it happens – of course struggle is going to then determine the issues of purpose, size, location and most importantly whether it happens or not.

Prof Sam Rugege notes that

There is no specific or direct right of access to land in any of the international human rights instruments. However. there are other fundamental rights from which a right of access to land can be implied. These include the right to food and the right to housing. Without land, the majority of citizens of Africa who live in rural areas would not be able to feed themselves and their families or provide shelter.

He continues:

Section 25(1) is a negatively phrased right to property. It does not directly guarantee a right to acquire land or other property. It provides 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.' However, the Constitutional Court has indicated that the negative phrasing of the right does not detract from its efficacy. The court noted that there is no universal formulation of the right to property. It confirmed that the negative formulation in the South African Constitution protects the right to acquire and hold property, albeit implicitly:" 

Given the above this is why Section 25(5) is so important 

The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

This provides the basis for the proposed Land reform Framework Act discussed below.

I suppose the question must be then "what is the measure of equitable access and how will we know that we have an acceptable level of equity in access?" It is noteworthy that the Constitution says access to land and not to the property system or to rights to live on or use a piece of land. While I hear the responses that suggest that the Constitution says enough I would argue that it simply does not or we have not yet developed enough of a critical mass of interpretation of the clauses in favor of transformation, social needs and equity. And the evidence is in the way in which legislation like ESTA, LTA, PIE, IPILRA, which are the types of property rights that the majority of citizens still live with, are continuously contested in and out of court. The content of that basic right to equitable access is still very open to debate and contestation. Is this an acceptable "condition" under which or through which people are enabled to gain equitable access? 

The idea that people should have a fundamental right to "be" in a country where they are a citizen should surely have a pratical basic land access or land right interpretation. It is also hardly surprising that it has not been declared a human right yet, when one looks at the battles and debates globally around the interpretation of the land indicators in the SDG's.  I dont think we should underestimate the global  continued pervasiveness of the arguement that our market economies need land to be a tradeable property/ commodity, with exclusive and secure use rights.  When such an understanding of property is also steeped in ideas of Utility then it is very difficult to give practical expression and meaning to ideas of equity, democracy and human rights around land. But it is important to remember that these are a contestation of ideas/ interpretation. The structure or property is not a given, the interpretation of property rights are contestable because fundamentally property systems exist to manage peoples relationship over things - to balance the individual/ private with society.

My view is that we must revisit the Constitution and how those clauses are interpreted - how private rights are or should be balanced with social needs and social welfare? how to enable and protect essential / basic access to land (physical space) for a citizen to excercise essential activities to flourish? 

Land reform is intended to redress the injustices of the past. Section 25 lays down the vision, which is restitution, tenure reform, and redistribution. Anything else is peripheral and we should stick very closely to these 'first principles' when we discuss land reform.

Issues of food productivity and economic empowerment should inform how we go about land reform. These concerns provide a caveat to land reform, but they are not land reform issues. Land reform is: giving people back what was taken from them (or comparable redress), securing people's land tenure, and ensuring an equitable distribution of land in the country.

I'm over-simplifying things, of course, but my point is that land reform is bogged down by the details. I think that the cart is too often put before the horse, and we get caught up in the nitty gritty and lose sight of what the original intention was. There is no question that land reform is complicated and emotive, but the answer to the first question should be a simple one.

The purpose of land reform has historically been a shifting target since the transition to democracy.  In exile the ANC which happens to be the ruling party defined it as the land question.  During this period much of the emphasis was placed on rewriting the history of dispossession as a justification for land reform.  How the land reform was to be implemented and what purpose it would serve was very vague.  Came the transition period which was marked by the ANC developing concise policies as part of demonstration of readiness to govenen.  This period was largely dominated by the ideals embedded in the Reconstruction and Development Programme.  In theory land reform was seen as an instrument to eradicate poverty and for justice.  This period is marked by the conceptualisation of land reform with three legs, redistribution, restitution and tenure reform.  I have serious doubt in my mind that these legs of land reform were fully comprehended and appreciated.  The restitution program was sometimes interpreted as synonimous with land reform.  In this process land tenure reform was either not understood or unappreciated, and it became the stunted triplet.  The vagaries and complexities of translation of policy to reality soon surfaced, and both redistribution and restitution were seriously challenged, as a result of a whole host of known reasons.  Thanks to hind sight.

In the midst of GEAR macro-economic policy and also in the process of trying to fix policy implementation there were a range of policy shifts away from the poor.  Land reform was in the dominant paradign seen as an intrument to buiild an inclusive economy, without changing the fundamentals.  To fast forward a long story, came the Zuma administration which was marked by the state capture phenomenon.  It is my contention that the veil of secrecy and lack of openness in the state has given rise to a phenomenon of elite capture of land reform.

The High Level Panel made important proposals to counter the shift in which land reform moved away from its pro-poor goals to serving those with resources and political connections. These included a draft National Land Reform Framework Bill. The aim of the law is not to substitute for existing legislation, but to  "establish core principles” to align and bring consistency to the various land reform programmes. The proposed bill aims to:

  • operationalize ‘equitable access’ and provide a transversal framework for all aspects of land reform;
  • establish in law the guiding principles for redistribution, restitution and tenure reform;
  • set legal criteria for beneficiary selection; land acquisition and the choice of land for redistribution;
  • provide measures to ensure transparency and accountability;
  • establish integrated, district-level committees of local stakeholders to ensure more direct participation by people on the ground to balance the power of officials
  • make provision for the subdivision of agricultural land to enable people to access smallholdings 
  • provide for commonage land in cities and towns;
  • enable allocation of secured long-term use and benefit rights;
  • provide for alternative dispute resolution and a Land Rights Protector.

In my view this was one of the most important recommendations emerging from the HLP process. It is at the centre of the Section 25 initiative driven by the Alliance for Rural Democracy and supporting organisations

I like your comment above Lisa.

I like to approach this question of what is land for from thinking of how to address the needs of people in different contexts and in the process deal with justice factors and economic transformation factors.

Drawing from some work that Michael Aliber and I did a number of years ago, there are different categories of people (who have agricultural land use interests besides other land interests – residential) in different situations which land reform has to address and in so doing address both justice and economic transformation aspects. We identified five different categories:

  1. Category 1: landless households – those who have no space even for gardening. Anticipated more than 2 million rural households.
  2. Category 2: commercial-ready subsistence producers – those who wish and are capable of having a more commercial focus but need land and support, mostly on part-time basis.
  3. Category 3: expanding commercial smallholders – This includes those farmers who have already been farming commercially at a small-scale and with aptitude to expand, but are constrained by land and other resources.
  4. Category 4: well-established black commercial farmers – This addresses those who have been farming at a reasonable scale, but are disadvantaged by location and other circumstances, and with real potential to become large-scale commercial farmers.
  5. Category 5: financially capable aspirant farmers - This addresses the needs of those individuals who have the financial capacity, who do not have farming experience but who have a real aspiration to engage in agriculture at a commercial level. Such potential farmers must demonstrate their business capability, their theoretical knowledge of farming, and must have close linkages to experienced people in the sector in which they want to farm – a mentor, a contract with a company which also provides support and so forth.

We then identified “situations” in which such categories of people were found and whose “situations” needed to be addressed by land reform - in reality these categories are not homogeneous, in the sense that they might be pursued in significantly differently contexts – differences in who are the target beneficiaries and how they are identified, what mechanisms are used for identifying and securing land, which other government departments might need to be involved, the intended outcomes, etc. We looked at the following situations:

Categories 1 and 2

  • Situation 1 – Densely populated communal areas, i.e. where land is acquired nearby to allow for ‘lateral expansion’; interventions aimed at this situation are expressly meant to assist with ‘decongesting the former homelands’
  • Situation 2 – Farmworkers and former farmworkers to be accommodated in agri-villages
  • Situation 3 – Housing and other land needs on the outskirts on towns, using two options, i.e. i) with individual houses and plots, and ii) with house plot and separate area with allotments
  • Situation 4 – Provision of productive land adjacent to existing communities, e.g. through allotments or commonage, but without provision for settlement.

 

Categories 3, 4 and 5

  • Situation 5 – Part time farmer on well-located land, i.e. close to where beneficiaries currently reside
  • Situation 6 – Full-time farmer; the main difference is that the land does not necessary have to be located near where the beneficiaries reside, i.e. they should be prepared to move
  • Situation 7 – Strategic partnerships, wherein ‘mentors’ can also initiate and facilitate partnerships.

 

Given these “situations”, some of this land would be drawn out of the current property system and into a state leasehold arrangement, into the current communal areas under chiefs (and then subjected to the same processes in the future once it has been clarified what to do about those areas), or into a new form of property system to suit the “situations”. In the other situations, the nature of the current private property regime could remain although with some modifications as suggested in other posts in this debate – to allow access to higher levels of credit so as to bring in private sector funding of land reform success, etc.

 

Andries du Toit has argued above that:

“Land reform should enable forms of pro-poor, inclusive development that provide economically marginalised people with some kind of 'foothold.'...It is more about providing resources that can support the complex, fragmented livelihoods that people have (not only part time and subsistence farming, but also other economic activities that need a base on the land) and to sustain the informal networks of social reciprocity on which the poor and marginalised survive.  Land, in other words, serves for the poorest of the poor as a cushion, a safety net”.

To address the question about what land reform is for it may be helpful to think about all the different settings in which people experience the need for land, or for increased security of tenure to protect their land rights and make use of the land that they already have:

Cities and towns

As noted in an earlier post access to poorly located land for housing on the urban periphery does little to support livelihoods and wellbeing and is more likely to entrench urban poverty. Land needs to be well located, but there are many barriers preventing access to well-located land by the urban poor. Well located land is expensive and the way the land market currently works is unaffordable. The land tax discussion initiated by Mike Pothier above provides valuable perspectives on the implications of this and proposes an alternative.  

What is often missing from the urban space is recognition of the need for land for urban agriculture. In South African cities and towns there are thousands of livestock which are informally raised, grazed and slaughtered catering for local ceremonial markets. Small informal household producers remain largely invisible in urban and agricultural policy frameworks. An earlier land reform focus on the acquisition and management of municipal commonage appears to no longer be a priority.

On the farms

Commercial farmland comprises 67% of the total land area of South Africa. 2,7 million people, comprising more than 750 000 households (5.28% of South Africa’s population), live in farm areas throughout South Africa, according to the 2011 Census. These include labour tenants in the three provinces. Access to land for grazing and cropping for farm workers, dwellers and labour tenants does not form part of current policy. Evidence suggests that levels of food insecurity, poor nutrition and childhood stunting remain high on farms.Farm workers and dwellers live on land owned by others and their pathway to acquiring secure rights in land and housing remains blocked.

Former homelands and reserves

There are some 17 million people living in the former “independent” and “self-governing bantustans” which were reincorporated into the nine new provinces following the democratic transition in 1994. Eighteen years after the democratic transition, the South African state has failed to pass permanent legislation to secure the land rights of people in the former bantustans. People residing in these areas comprise more than half of an estimated 60% of South Africans whose property rights remain undocumented and off-register. Land administration in the former bantustans is virtually non-existent. Permission to Occupy certificates (PTOs) are no longer issued and, with the dissolution of the homeland administrations, the majority of these land records were lost or destroyed. The only legislative protection those living in the former bantustans for rural people’s land rights is currently provided by the Interim Protection of Informal Land Rights Act (No. 31. of 1996) (IPILRA) which, as the name suggests was intended to be a temporary law which has to be renewed every year. There is widespread agreement that IPILRA has not been widely promoted or effectively enforced. This has made residents in the former homelands vulnerable to land grabs, particularly in relation to mining deals.

 

In KwaZulu-Natal the Ingonyama Trust was established through a deal between the National Party and the Inkatha Freedom Party just before the democratic transition in 1994. The Trust was established to manage 2.8 million ha of land owned by the former homeland government of KwaZulu. Evidence indicates that the Ingonyama Trust Board has been converting the original PTOs into lease agreements with a 40 year term. A number of onerous conditions appear in the lease agreements:

  • lessees have to pay site rentals to the ITB with rents escalating by 10% per annum

  • lessees are to fence their property within six months and to obtain written permission to build or make improvements

  • failure to pay the rent may trigger cancellation of the lease and enable the ITB to take over any building or structures on the land when the site is vacated.

There are 23 rural areas in four provinces (Western Cape, Northern Cape, Eastern Cape and Free State) where land historically reserved for people of mixed Khoisan and European descent is held in trust by the Minister of Rural Development and Land Reform. Residents in these areas do not hold title deeds to their residential plots. Legislation has been passed which enables land to be transferred to municipalities, or to a land-holding entity like a Communal Property Association controlled by the members. The Act sets out processes which must be followed to clarify and establish the different land rights of recognised members of these communities. However the process has been very slow to implement the Act

 

Land acquired through land reform

Land has primarily been purchased by government through the restitution and redistribution programmes. Much of this land has been transferred to beneficiaries although a significant portion remains in state ownership. By 2016/17 4.7 million ha had been acquired through redistribution and 3.4 million ha through restitution, totalling 8.13 million ha or 9.9% of commercial farmland.

For a significant portion of land acquired through land reform, title has been transferred to land holding entities such as Trusts and Communal Property Associations, while the remainder acquired under Proactive Land Acquisition Strategy is held by the state:

  • by 2010 a total of 1 383 trusts had been established to hold land purchased through land reform

  • according to the DRDLR registrar of Communal Property Associations, there were 1 526 registered CPAs in 2017.

Land holding entities face many problems which reflects state failure to adequately support and resource them. This has meant that for the membership in the vast majority of these land holding entities there is insufficient clarity on land rights and no system to record and certify  household and family rights and legally recognise social tenures. Consequently, there has been a reluctance to invest in the land.

Clearly there cannot be a 'one size fits all' approach to land reform which has to tailored for different settings and particular needs

Thanks for this clear summary. I want to pick up on your closing remark, that there is no one-size-fits-all approach and land reform needs to be tailored to suit different contexts and needs. To me, this is a missing key to successful land reform: start with the end in mind. There needs to be a country-wide needs-assessment, asking people "What do you need from land?" You could imagine a variety of answers:

  • somewhere to bury my ancestors and to which I and my family can return for generations to come.
  • an economic asset to invest in and sell for profit.
  • somewhere to grow crops and graze cattle.
  • somewhere to build a home and raise a family.
  • a place to grow my business.

The list could go on. Such a needs-analysis should form the starting point for land reform. Once needs are identified, we could look at how they relate to the three pillars: restitution, redistribution, tenure reform. And then policy should follow that addresses the needs. Such an approach brings together the top-down, state reform imperatives and the bottom-up, grassroots needs.

Access to land will not support livelihoods and wellbeings in South Africa except the state puts a focus on using the land reform to boost livelihood options and the state of living conditions of people. This is only possible by exploring economic, environmental and socio-cultural dimensions of development as key aspects of the land reform.

 

There is a need to (re)define access in the context of local realities in South Africa

Access to land should be viewed beyond mere physical (re)possession, occupation or ownership (of rights or privileges). It should be backed with a capacity of those who gain access to put the land to specific and enforceable use by the state. 

 

Land access can support livelihoods and wellbeings if women are prioritized as the beneficiary groups

Prioritizing women as beneficiaries will be key to ensuring that land access directly supports livelihoods and wellbeings. Women stand at the core of socioeconomic development (at the local level) in South Africa. Targeting women (without neglecting men) implies ensuring that the usual paradigm of gender-unequal land access is avoided in the redistribution process.

 

Women are not a homogenous group - a differentiated approach is necessary to reach good outcomes

Targeting women can mean giving women a priority in the order of redistribution. It is important to always remember that women are not a homogenous group. It is important to always remember that different women (e.g. widows, rich, poor, single, unmarried, married, divorced, head of households, politically empowered, literate, educated, etc.) have different potentials in attaining positive livelihood and wellbeing through land access.

I will speak of poor people living on privately owned farms, either as farm dwellers or former labour tenants as one category of people that should be targeted for land reform. For this category of people, access to land coupled with post settlement support would support their agricultural livelihood strategies. In this regard, a one-size fits all approach should be avoided at all costs, this means the nature of support should take gender, class and generational considerations. In addition, the location of the farm, the type and scale of production currently taking place, the number of people that should benefit and their various needs for land should all be considered. For example, for livestock farmers grazing land is a priority and this should be clearly defined and properly fenced to prevent animals from roaming and possibly destroying crop fields. In addition to fencing, water infrastructure is crucial.

Of course it is not all the farm dwellers and former labour tenants that want land for farming, for others it is about belonging and having a home without any threats of eviction and that is equally important as accessing land for agricultural purposes. So in summary, for this category of people who already live of the farms, land reform should deliver on two things primarily i.e. (i) give secured access to land for agricultural purposes, and (ii) ensure tenure security. On the second one, the concept of ‘’ownership’’ should be defined and contextualised, as some people speak of ownership to express that they too belong in this country and in this particular farm/land.

We are going to open up the debate by opening up all the remaining questions simultaneously to enable discussants from different different disciplinary backgrounds and specialised interests to become engaged. Participants can also add new questions for discussion if the ten core questions dont capture what you see as important. Please post your responses as replies the appropriate question so that we can create and follow a more coherent discussion thread. The facilitators will post summaries of key issues arising from the discussion at regular intervals.

Land has primarily been purchased by government through the restitution and redistribution programmes. Much of this land has been transferred to beneficiaries although a significant portion remains in state ownership. By 2016/17 4.7 million ha had been acquired through redistribution and 3.4 million ha through restitution, totalling 8.13 million ha or 9.9% of commercial farmland. 

The impact of land reform can be considered in different ways (Michael Aliber. 2018):

  • How many people/households are benefitting directly from land reform?
  • What is the nature of these benefits?
  • To what extent has land reform contributed to a change in the racial ownership pattern of land in South Africa?
  • What is the contribution of land reform to agrarian reform?

I am constantly puzzled in an unresolved way about the disconnects between the literature and political argumentation about land reform and food security in South Africa on the one hand, and the literature I read about sustainability and sustainable development in the light of international concerns about climate change, deforestation, loss of biodiverstity etc. We all read both of these sets of literatures but I never see the two brought into the same plane, and which consider the costs of current land use and commercial production AND land reform production in terms of these 'social environmental' issues. So on the one hand I have a vegan daughter and I read all the literature she alerts me to on the devastating impact of livestock farming for meat consumption on environmental degradation and escalating climate change, while in SA we promote the expansion of livestock farming which has huge socio-cultural traction in SA; admittedly starting off with small holders and not the kinds of herds that contribute mostly to the problem, but nevertheless in principle there is a strong push for redistribution that will allow for expansion of livestock farming, and people will develop over time from small scale to commercial to large scale; then we promote agricultural extension that usually promotes increased use of pesticides and fertilisers, which in the other discourse we frown upon; similar disconnects around GMO etc. I have no judgement or answers, I am simply raising my own curiosity and confusion about how to integrate these discourses focusing on principles as well as statistics.  Here are two really useful sites to help us navigate: 

https://www.sustainabledevelopment2015.org/AdvocacyToolkit/index.php/ear...

https://www.stockholmresilience.org/research/planetary-boundaries/planet...

Much of the recent debate in South Africa has focused on inequality of access to and ownership of land. The broader issues relating to the sustainability of our current land uses and food system tend to be obscured. Once of the most useful primers which I have found that sets out these issues clearly and accessibly is the 2015 WWF farming facts and futures review: Reconnecting South Africa's food systems to its ecosystems.

This notes that only 1% of South Africa has the right climate and soil combination for rain fed crops, only 3% of the country has truly fertile soils, only 13% of the land is good for cultivation while 69% is only good for grazing making livestock farming the largest agricultural sector. These ecological limitations need to be foregrounded as part of this debate.

Ecological constraints also characterise the urban landscape researchers such as Mark Swilling have long highlighted the disconnect between the public policy approach underlying infrastructure provision and the sustainability of the ecosystem services that urban infrastructures depend on. Back in 2006 it was calculated that Cape Town's ecological footprint was 4,28 ha per capita requiring the equivalent of 2,3 planets.

What examples can we identify where land reform has been succesful in effecting redress and meeting social and economic development needs? What accounts for this success?

Most of land reform in South Africa has been a failure – motivated by pushing for targets of hectares than successful, sustainable land reform initiatives. This has been for the following as well as other reasons:

  • Increasingly, it is undertaken by individuals who don’t understand land reform and who don’t understand agriculture (where agriculture is the focus of the land reform) – in my experience incompetence of state officials and complete siloed approaches to their particular departmental or branch mandate has aggravated all other reasons for failure;
  • The non-integrative manner in which implementation of land reform happens and the lack of a coordinator or coordination function;
  • There was decreasing adherence to the 1997 White Paper, which provided an overarching view of the objectives of land reform and since 2011, the Green Paper, and so land reform is done without any broader, clearer policy and objective;
  • The lack of a nuanced understanding of the different needs of land reform and how to work out ways of dealing with those – the “situations” I refer to in my post above. And so no subdivision of land where this is necessary, dogged adherence to keeping the current production systems the same, etc.

So what has worked in the limited contexts that there has been some success – there has been as improvement in people’s contexts and opportunities:

  • Land reform integrates a whole lot of components, depending what is involved in each context, and so it is important to ensure integration and coordination of initiatives: dynamisers, “implementation support agencies”, project managers etc. Without these roles, land reform initiatives are disparate and most often end up being suboptimal in implementation (regardless of the objectives in a particular situation). Such roles have been included in many of the implementation plans or settlement agreements in land reform initiatives but have rarely been used in the implementation.

In the Khomani San situation in the Northern Cape, the settlement agreement of 2002 included an agreement that the state would support the implementation process for a number of years after the transfer of the land. The CPA which received the land was put under administration soon after the land was transferred (for various reasons) but the state did not systematically provide administration until the community declared a dispute and there was a settlement in 2014 which included the appointment of an “administrator”.

Since then there has been a slow process of integration, of formalisation of processes, of pushing the different departments and private sector initiatives. Success is limited though because again primarily because of state incompetence - even if the local officials understand what needs to be done the broader state systems are not geared up to support such initiatives.

But this is a slow and expensive process in those large restitution situations which involve housing, small holder farming, larger scale commercial farming, tourism, etc.

Is this sustainable? Each situation will require different levels of support and coordination – A range of measures will need to be designed to assist large numbers modestly (in categories 1 and 2 in my post above) and small numbers copiously (in categories 3-5 above).

  • Farmworker equity schemes have apparently generally not had a significant impact on farmworkers lives but in certain circumstances it has resulted in important improvements:
    • In one set up where I work the farmworkers and owner have gone into a joint venture through buying an adjacent property. It is on the Orange River and there is a reasonable allocation of water to the farm. The commercial partner is an extremely good farmer and over the years the farm has shifted from producing grains and lucern to producing grapes and Pecan nuts.
    • For the workers that are now shareholders in the company the following has changed – they are earning significantly more than other farmworkers in the area and it is likely that this is going to further increase in the future; they have been able to access land in the local agrivillage (municipal) and start to build their houses; they are more involved in the business through being informed about the business decisions and for those who are directors, are involved in the business decisions.
    • Could it be better – certainly! It is an employment scheme so once they leave the employment they lose the benefits although they sell their share; their land rights are not on the farm and they lose the right to the house on the farm when the employment is terminated; the worker directors remain junior directors and do not carry much power; etc.
    • Our involvement in this initiative is meaning that the benefits or components of success are being expanded – we are able to push the boundaries by ensuring worker directors obtain greater information so as to participate in decisions, that the shareholder agreements and arrangements are refined and improved, that issues of long land rights are addressed, that current conditions on the farm are addressed, and so forth. We are able to do this cause the funder of further developments on the farm has put these developments as part of the conditions for the funding.
    • The question is whether these share equity initiatives should be discarded or entered into and the limits pushed in all aspects so as to make the greatest change possible in each situation. The big question of course is who will do this?
  • More to come….

What accounts for the success:

  • Where the initiative is looked at from an integrated perspective and all aspects are understood as important dealt with (no silo approach) – so to ensure that the different components are all dealt with including land rights and tenure issues, livelihood issues, commercial initiatives, management and admin issues, residential and settlement etc.
  • Having a driver, coordinator, dynamisor who also has authority to call people to order
  • While I haven’t dealt with it in the examples above, I think it is important to try to draw out the more commercially orientated land users from a community or group held system and enable them to proceed separately;
  • Furthermore, also not dealt with here, I think it is important to acknowledge that there is going to be attrition in land reform initiatives and to plan for that – so to plan for the situation that others can take over land or rights from others than may not have been successful and for this to happen pretty smoothly. This is particularly the case in situations where the size of land accessed is smaller.
  • And more

If you look at the land tenure debate there is the well-known phrase that land doesn’t belong to people, people belong to the land.  Kinship is central to land tenure in Africa. But when you look at South African history, with apartheid and the forced removals, part of what happened was that family groups were disrupted, and households were constructed in unnatural ways. The Constitutional Court handed down a very important judgment in the Rahube case in October.  It dealt with the Upgrading of Land Tenure Rights Act, which allows old order rights from the apartheid era to be upgraded to ownership.  With many of these pre-1994 homes the record keeping revolved around a household head, typically a man.  So under the Act the upgrading to ownership would be in the name of the household head, almost always a man.  The Constitutional Court judgment declared this as unconstitutional, in violation of women’s rights.  Parliament now has 18 months to introduce a constitutionally permissible procedure for the determination of rights of ownership and occupation of land to cure the constitutionally invalidity of the Upgrading Act.

 The Rahube case creates an opportunity for a really constructive intervention, because whatever happens in the wider debate on expropriation without compensation, household formations will always underpin whatever system is used in the future.  Households over that period (and even now under the Housing Act sometimes) did not correlate exactly with the normal family law.  When women and whole categories of people drop out because of a record keeping approach it means they can’t claim their rights.  For me, this is another form of expropriation.   One of the exciting changes that I would hope to see in the future, coming out of this judgment, is the Legislature recognizing there is another category of households, who were kin in some way, but were grouped together in a particular way because of a record keeping approach.  Their rights should be seen as arising from the State’s recognition of them as a household, not from the normal family law.  The norms of straightforward family or inheritance law often can’t help some members of such households.  There is often a mismatch between the legal understanding of kin, and the actual people who were in a household – who they actually are.  

Dealing with record keeping approaches is one of the most cost efficient and effective ways of integrating rights.  I think there are tremendous opportunities for realizing the Bill of Rights’ aims of equality through looking closely at those systems.  It’s become apparent to me that Western record-keeping follows the nuclear family in a vertical genealogical stream. But when you actually speak to people in households in South Africa, and you listen to who is actually helping each other - who is actually financially supporting each other - it’s often in the horizontal line.  It’s uncles, aunts, siblings, cousins, who are helping out.  This is the real de facto situation. Because our record keeping approach has always been vertical and not horizontal, there is a considerable loss of potential support for people because the legal system sees mainly the vertical stream as relevant.  People belong to people.  Our current understanding of how people belong to people and which categories we base rights on needs more thought.  Whether rights to land are acquired through expropriation or by other means, those rights will have to be secured by a proper land information system.  Otherwise the most vulnerable recipients will be at risk of losing those rights again.

What has worked well are land occupations. Through occupations communities have met there needs and started to reshape space. This has been particularly the case in urban areas (including some rural urbanisation), but there are rural examples as well, such as an occupation I wrote about in Limpopo awhile ago https://www.researchgate.net/publication/327968076_The_right_to_land_res...(link is external).

I believe such direct actions, often not led by those who position themselves as the community leaders, are under-documented, but offer us important lessons and some hope for a more people-driven and transformatory land and agrarian reform. 

I have just rapidly read through this interesting chapter via the link you provided above. From a quick read it was not 100% clear to me who the legal owner was of the land which had been occupied. It seemed that people had occupied underutilised land owned by the state? What did strike me was the following quotation from pages 112 to 113

current government procedures for dealing with land claims and redistribution projects tend to disempower the beneficiaries, especially the poor and those with little education. Furthermore, the current paradigms sees the CRLR and DLA (DRDLR) pushing people into large-scale commercial farming. People such as those at Mahlahluvani have little interest in this form of production and few of the skills necessary for it. It is only the more educated and wealthy will have a voice space in such paradigms. Given the dominant view and the snail's pace official land reform the occupation of unused land offers poorer away whereby they can shape their own land reform initiatives and livelihood needs

You have put your finger on one of the key failings of the land reform programme – its inability to provide what the majority poor people actually want. Much of the research into land needs has highlighted requests for relatively small portions of land. It seems that this has largely fallen on deaf ears. Clearly the land question cannot be resolved by seeking to replace white farmers with an equivalent black farming class. We have to engage with the fundamentals and address what needs to be done practically, and in policy and law to promote a land reform programme which meets the needs of people you describe.

Peter Delius has noted that there are still more than 7 000 unsettled claims, and more than 19 000 unfinalised “old order” claims (claims lodged before the initial cut-off date in 1998). At the current rate of progress, it will take 43 years for the backlog to be cleared, and Treasury estimates that the cost will be R30 billion. Treasury’s modelling further suggests that the new claims will take 200 years to finalise at a cost of about R600 billion. If lodging new claims is reopened, the high-level panel estimates that 397 000 claims will be lodged that will take 709 years to finalise. Further existing evidence suggests that little, if any, economic benefit has accrued to the overwhelming majority of recipients.

Some have suggested that the Restitution programme which was originally intended to be complet within five years has been an expensive failure and ways should be found to get speedy closure on the programme and providing other alternatives for claimants including access to land through redistribution.

I might be jumping ahead on the discussion, but a question came to mind reading through the comments on Land reform for what. This is how are overlapping land rights claims dealt with in the current land reform process? My understanding is that the process of registering a claim was opened in the late 90's and again in the 2000's- both with different claim years. As such do we not see a situation emerging where there are possibilities of different parties claiming ownership on the same parcel of land?

The greatest opportunity missed with respect to fixing restitution was the process of the High Level Panel.  This panel made damning findings in respect to restitution.  Despite the findings the HLP made recomendations to continue with restitution better, without clarity how that would be possible in the current framework.  Without mincing my words, restitution needs to be euthanized, and all restitution claims dealt with within the context of a reframed redistribution program.

There are two aspects here – dealing with the old claims from 1998 cut-off; the new call for claims.

The first thing to say is that restitution is complex – in most situations it shoves a bunch of people together that have very little or no common historical experience; it shoves together people that ended up in the urban areas (and often become educated, more financially endowed, assertive) and those that remained behind in the rural areas (often on farms, uneducated or limited education, poor, unassertive); it creates significant expectations of what the land will provide which are most often not realistic and achievable; it can create a rural community in a remote place without any of the social, community, economic and other linkages which exist in other rural communities such as those within the communal areas of South Africa.

  • But the settlement of the existing claims from 1998 is a reality, so how to do it.
    • There does not appear to be a clear strategy about how to address the different claims in different contexts, so the first is to develop that.
    • Then the following could be an approach:
      • Compensation in community claims is allowed to involve different settlement options - cash compensation, or land for different individuals (so individuals in community claims must be able to take cash compensation as an option and should be actively encouraged to do so and in this way reduce the numbers). Those that take cash would need to sign a very clear undertaking that they no longer have any claim on the land, or could become part of the community (or the CPA?).
      • The individuals in the top 10% most expensive community claims are offered cash compensation or alternative land instead of restoration so as to reduce the cost of restitution (although this might not be an issue depending what comes from the EWOC process);
      • The remaining individuals in community claims are assisted in their land claims. These claims are settled in a more determined way – the “development plan” for each claim must address (and balance) individual, group and community needs and land uses – and most importantly address land rights, tenure and land administration aspects in the settlement.
      • There is not necessarily a continuation of existing production on farms acquired. The production is determined by the needs and capabilities of the “community”.
  • The proposed opening of claims is just ludicrous and I just hope that it does not proceed.

Despite the achievement of constitutional democracy in 1994, the land question is at the heart of our struggle to overcome the legacies of many years of white minority rule’’. Indigenous people are still being dispossessed and are losing the land their forefathers called home’’

Despite the end of apartheid many black people still do not own their homes, land dispossession, apartheid’s greatest travesty, still lives on. The brutal regime of apartheid has created “dead capital’’ wherein in historically black areas our people did not own the land they occupied. Even after the group areas laws and the notorious 1913 Natives Land Act have been repealed, racially discriminatory apartheid and land tenure endures.

The apartheid government used a plethora of legal instruments through legislation, resolutions, proclamations and ordinances to legitimize land dispossession to Systematically impoverish black peole. By the advent of the new SA, almost 17 000 statutory measures were in place to control land divisions, and all these had catastrophic consequences to the black majority.

To give just one example, the occupation Act 8 of 1886 decreed the acquisition of land in the Waterberg district free of charge, meaning without compensation.

Our human rights are being violated, we are being excluded, marginalized and face prosecution by the likes of Afriforum when asserting our basic rights.

Our ancestors also lost their land through the Natives Administration Act of 1927 which provided for the acquisition of land from black people on a massive scale.

 

SECTION 25 OF THE CONSTITUTION

The time has come, the time is now, let us stop pontification and do the right thing:

  1. Restore the dignity of our people
  2. Restore our people’s land rights
  3. Give our people their land back
  4. Amend the constitution to correct section 25 which is contradictory
  5. - programme director, depriving our people their property rights is not only depriving them   of their constitutional rights but depriving them of their dignity to live
  6. Poverty levels amongst black people are worsening
  7. The ultimate aim is not to expropriate land but restore land to its rightful owners
  8. Land is central to economic inclusion

In conclusion:

 

  • The land question is a historical injustice, a sin that must be eradicated
  • Security of land tenure is one of the pillars of a peaceful and progressive society
  • Freeways cannot continue to separate Santon and the filthy Alexander for ever
  • Through land ownership, black people shall be able to contribute to the economic growth of their own country
  • Expropriation of land should happen without compromising food security
  • Pass the Land Expropriation Act, without compensation, like the apartheid regime did through the Occupation Act of 1886.
  • The threat of losing investor confidence should not scare us, investors made Nigeria the largest economy in Africa despite the Boko Haram insurgency.
  • We belief that EWC will help fast track land redistribution

’EXPROPRIATION OF LAND WITHOUT COMPENSATION IS NOT A NEW THING, THE APARTHEID REGIME APPLIED IT THROUGH THE OCCUPATION ACT 8 of 1886, WE THEREFORE SUPPORT THE REVIEW OF SECTION 25 OF THE CONSTITUTION’’

‘’THE TIME IS NOW, NOW IS THE TIME, FREEDOM IS COMING TOMORROW’’

 

Mr. Lefa Barrington Mabuela

SPOKESPERSON: Limpopo CPI FORUM

State housing policy frameworks have not assisted poor people to move to where opportunities are. Critics of housing policy identified the dangers of “a prescriptive top down model of “delivering” housing and services” (South African Cities Network. 2011) and the inappropriateness of policies designed to eradicate  shacks rather than upgrade informal settlements. What needs to change and how can this happen?

 

Clearly this is quite a big question, with 66% of South Africa's population living in urban areas, and around 30% of that population being poor. However, the proportion of people in urban areas who are poor is half that experienced in rural areas. Evidence shows there are significant improvements in income for people moving from rural to urban areas in the country.  Given the growing demand for urban land, finding a place to live which has access to services, adequate shelter and is reasonably well located is increasingly challenging.

Freestanding informal settlements continue to grow in absolute terms, and rooms in backyards have been growing at an even faster rate. This is even more evident in the municipalities making up the province of Gauteng. Despite the state-led housing programme delivering fairly efficiently between 1996 and 2013, public figures show that this form of land distribution has become less efficient over time (for a number of reasons).  Mass housing supply programmes driven by the state rarely keep pace with new demand arising because, especially in SA, the supply of 'free' housing leads in itself to greater demand. A question therefore arises about whether the national human settlements programme can or should employ the direct delivery of subsidised mass housing to drive urban land distribution, or whether there may be other more effective and efficient ways of achieving more equitable access to good location. Of course the delivery of subsidised housing to needy households is designed to target poorer households that are under-housed, rather than intending to reach the victims of historical dispossession of land.

The component of the national land reform programme that addressed urban land dispossession was resolved, in most cases, by financial settlements rather than restoring land to the communities forcefully evicted, with some notable exceptions. But perhaps others know more about this than I do. 

Most of the projects funded by the state housing programme have been located on the periphery of cities and towns, as acknowledged by the state itself, therefore not significantly transforming the exclusions that were originally built in to the apartheid city geography. So the urban land question has at least two dimensions; the need for serviced land and shelter, and the need for better residential location relative to the urban opportunities that people have moved to urban areas to access.

As researchers and policy analysts the issue of well located land has been much on our minds for the last two decades. One collection of research and reflections can be accessed from the work of the Urban Land Markets Programme (active between 2006 and 2013). Some of the debate that came out of that work, plus other views, can be seen in a panel discussion hosted by the SA Civil Society Information Service in 2014. 

Based on this body of work and further work since 2014, over the next few days I'll endeavour to add some thoughts on how access to well located land might be more effectively achieved.  While these thoughts are based on research and evidence, I'll take personal responsibility for the views expressed. 

These are massive questions; some people argue that urban landlessness is a far greater problem than rural landlessness, and therefore that expropriation, with or without C, needs to happen extensively in the cities. I wouldn't want to try to answer the questions, but there is one aspect of the issue that intrigues me. We hear a lot about 'mixed income housing' as one solution - but how does this work in reality? How do you keep the 'low income' component sacrosanct? If relatively poor people buy homes in such schemes, are they then prohibited from selling them at a profit to wealthier people? If they rent them from a public authority, are they prohibited from sub-letting them at a profit? The first option seems to be quite a serious intrusion into a range of fairly fundamental rights. The second would be extremely difficult to enforce. (One hears a lot about RDP houses having changed hands without reference to the property registration system.) Are there examples of mixed income housing intiatives elsewhere that have worked well, and that have managed to sustain their mixed nature? It would be good to learn from them if they exist.    

 

Thanks for raising this set of issues Mike Pothier. You are right that one set of well intentioned actions will not always lead to the intended outcomes.  Although there are many pitfalls, and examples to illustrate them, there is also, I believe, some hope, and there are examples where it can be made to work better. 'Placing' poorer households on valuable land in a competitive market and a sea of housing scarcity does mean that anyone wanting to make a counter offer to such a household for the full or even part market value of the asset so transferred will in many cases succeed (for the wealthier buyer). It has happened so often over the last few decades of pro-poor housing developments that the term 'downward raiding' has become a common lament. But if development projects took careful account of how local markets work it could well be possible to strengthen the hand of those less wealthy households by improving their stake in the investment.   Having built this concept in some detail a couple of years ago (how to strengthen the bidding power of poorer residents and how to carve out space in valuable precincts), to be honest I am still unsure of the degree to which it can work in reality and in situations of more extreme inequality (or even when location in the urban area is really beneficial).

For me, part of the answer is more significant numbers of working class housing units in better locations in urban areas, so that that form of housing is not so exceptional in the vicinity that it is almost immediately downward raided in one way or another. Many pilot projects fall victim to this because they are exceptional in the neighbourhood, and so demand for such units is out of proportion. 

There is also a broader debate about whether housing can be both a both good investment and remain affordable

Someone in a workshop last week said that the only way to keep well-located social housing available to less wealthy households (in SA) is to keep it as rental stock. Well-located units targeted at lower income households and that are owned products often lead to a situation, this person said, of a large, once-off asset transfer to the households. This stock cannot thereafter easily remain in circulation as affordable housing. Assuming that people move through rental stock in well located units, then that housing, if well managed and maintained, should remain an affordable option.  

There is a good body of work on the SA state's IRDP projects (mixed income, mixed use residential developments with a components of 'RDP housing, rental housing where relevant, mortgaged housing etc., all sponsored partly by the state's Integrated Residential Development Programme).  A series of good case studies was commissioned by the Department of Planning, Monitoring and Evaluation, with many lessons about how it is possible in practice to achieve mixed income housing. As you point out, keeping it accessible and affordable remain a major challenge. 

I agree that indefinitely prohibiting a household from selling an owned unit or sub-letting a rented unit is not really a viable nor an enforceable way to go. Understanding and working with the market is more the approach I would recommend. This has worked in other countries where the proportions of wealthy to poor are the reverse of South Africa's but, as said, if the market is so skewed, social demand for housing is so great, and access to information and institutions are so asymmetrical, then getting this system to work on a project by project basis is really challenging.

That's why some of us (refer Stephen Berrisford's chapter in the book, Trading Places) have come to support a position where long-term land use approaches should protect lower value land for the use of less wealthy people. And where significant supply of accessible land and housing in this sub-market should take the edge off scarcity. 

My last comment may sound a bit weird but given actual experience in a number downtown areas in SA cities through from the 1950s until now, the other quite feasible approach is of course to use times of economic boom to produce large quantities of stock for those middle class people who can afford it, and then to wait 20 to 30 years until it degrades to the extent that the rents become affordable. This may sound cynical but it is also necessary to find development models that allow the production of robust housing stock not all paid for directly by the state, and then to work out how this can become more accessible over time. In the last two decades, the boom in production of suburban town housing might well eventually go this route, depending on how the market values and rentals change over time.  

This is all about using the cycles of property markets to create opportunities in the long term. 

 

Accessing land is one thing and holding legally secure and enforcebale rights to land is quite another. At present the land rights of 60%of South Africans are estimated to be off register. There are heated debates about the best way to secure land rights. There are those who advocate titling and those who provide evidence that such an approach will be unworkable. Ben Cousins has noted that:

The global literature suggests strongly that policies to secure land rights should begin by incrementally improving security within existing systems, rather than attempting to replace them. Agencies such as the UN Food and Agriculture Organisation now argue that pro-poor land policies should support systems in which property rights are shared by members of families, as well as by larger groups."

What are the pragmatic solutions available to provide legal protection to rights holders in ways which are affordable and which enable to rights to be transferred and updated at low cost and with high levels of transparency?

Until the scale of a task is known it remains difficult to plan. Current plans often aim at a formal solution based on today's situation and a vision for the future, but we don't really know what the future holds. Let's just assume we are fortunate to live in a time of peace and take full advantage of it.

National housing assistance plans require data as evidence for implementation and the Western Cape Government (perhaps also other agents of state) has actioned a number of enumeration projects as a data gathering exercise as part of the Informal Settlement Support Programme. The per household descriptive survey takes 15 minutes to gather on a smartphone and profiles individual family and tenure status for all residents linked to their homes.

This data enables residents to receive an address, a letter of residence and proof of occupation; critical steps towards formalisation and citizenry. Although it does not meet all the legal requirements for ownership of land it constitutes a body of evidence that acts in favour of incremental tenure and assists with settlement planning. The same tool can be used to record backyarders in 'formal' settlements or occupants of untitled erven.

Keeping the data current post-enumeration remains a challenge and requires community and state support and co-operation. Enumerations we worked on in 2011 and 2013 have been kept up to date by volunteers in those communities and remain useful.

Finding the landless, those we seek to serve through reform, is not that hard. Listening to their needs and stories will show a way forward.

I think although it would be good to see where homes are and get a spatial overview -one might be able to do this with some coding into google earth where you recognise huts and homes. The larger rural problem is what people use the land for and how to show or see this- this includes homestead fields, dryland fields and grazing areas which are often vast - goats walk 4 to 6 kilometres daily -this 'used' land is what is going to be claimed in the future land claim as de facto your home is yours

Working with StatsSA livelyhoods data its clear that a question saying which do you live on -

land reform farm

traditional land

privately owned land

would make us better understand the three lumps of land and start planning a future for each- it would also contextualise their relative wealth in land and livestock- wew could pull out things like of all farmers with herds bigger than 100 cattle what percentage is where. 

 

Agree with both Chris Berens and Rauri about evidence! With regard to maintaining records, we need to have a long view of Land Administraiton and property law reforms. We need to collectively as civil society to develop a Vision for a South African Cadastre that works for diverse rights.  I cut and paste here what I wrote in reply to Simon Hull in answer to Q8 about politics and Land reform. We should advocate for a separate institution to promote Land Administration reform [and develop, with civil society, a Vision for a future cadastre and LA in SA]. This is where 'the devil lies in the detail"  and moves us from rhetoric to concrete plans ... . Fully agree with Simon [Hull] this should be a twenty-year trajectory with carefully planned steps. It is imperative that Land Governance and Land Administration gain prominence in Land Reform discourses and policies (urgently!) and have been proposing that LA is added as a fourth leg of Land Reform. I agree that we need a dedicated institution, and wherever it is, it must definitely be outside the DRDLR!. Siyabulela Manona proposed the Law Reform Commission should be reengineered into a permernent institution to clean up the holy mess of land laws, and I agree, but arguing elsewhere that it could be an Interministerial Commission or a Chapter 9 institution that goes beyond law reform and develops a political Vision for unified land governance and LA, with an appropriate cadastre in South Africa. The content and trajectory should be informed by evidence gathered in a series of pilots that may culminate in a Land Administration Framework Act and a new law to guide land rights adjudication that takes into account customary law and ultimately the development of a digital system of land records that can be maintained. We are advocating (in various platforms) for pilots that test new aproaches to land tenure, data collection and maintenance of records, using new social and technological tools and data system. There is considerable interest in this. It is important that we avoid rushing to the legislature with more laws before we have gatthered widespread evidence in the field to guide law reform. 

Much of my working life has in one way or the other focussed on improving access to land and tenure security for everyone, both urban and rural. The “60% problem” in South Africa is interesting because the one thing that South Africa did inherit in 1994 when there was a transformation into a democratic society, was a fairly robust capability of running the formal cadastral system. Of course, the problem was that that system had been explicitly designed to exclude the majority of the inhabitants of the country, keeping different groups apart and reserving the best land for the descendants of the colonizers. Thus, it worked pretty well for those who were inside the vision of who belonged, and it was very discriminatory for those who did not. While there have been some changes in the ownership patterns, much of the unequal apartheid spatial legacy remains to this day.

 

With this we inherited an established basis for pursuing the aspirational ideal of a wall-to-wall cadaster in which everyone has (or can be given) their plot of freehold land, somewhat along the lines of the de Soto vision, and any many ways this is still being articulated. With a history in which people were systematically denied their place in this ‘sun’, who can argue against the ideal of a freehold plot for everyone. However, I think that South Africa’s land reform efforts since the 1990s have illustrated that with even with that institutional and technical foundation, and the best of intentions, the conventional land administration vision cannot really provide for everyone, simply in terms of demographic numbers. I would risk a guess that even if our State institutions had not been compromised as much as they have over the past decade (due to what has become known as ‘State Capture’), the ideal would have remained out of reach. It is and will remain very challenging. We are learning the lesson that, even where poorer residents achieve the ideal of a title deed to property that is fully surveyed and registered, a number of factors count against them being able to sustain ownership, ranging from the inability to afford the associated rates and taxes, and the transactional costs associated with buying, selling an inheriting. And the system in any case struggles to deliver at the rates required – as demonstrated at the slow rates of regularizing and upgrading informal settlements. From the perspective of both the state and many communities, it is unaffordable to manage, and the transactional costs are too high in this system, at least if it's run the way the ideal portrays. So w are faced with the paradox that the ideal falls into redundancy even before it started, even while it cannot catch up with the needs of the majority of the population.

 

I presently work in the Secretariat of the Global Land Tool Network (GLTN), a network of over 75 international land actors, which developed alternatives to the dominant focus on individually held private property, and land tools to implement them. However, it’s not always an easy sell, for many reasons including vested interests in maintaining the conventional. It is important to recognise that land is much more than simply an economic asset or commodity, Land also has deep social, cultural and environmental value, and should be managed and administered as such. Understanding this leads us to a much more inclusive conception of land tenure. New more inclusive ways of recognising, recording and protecting these different forms of tenure have to be found, and some great work has been done in South Africa on this, although thus far the different actors have yet to find a common vision language to articulate their vision and strategy in achieving this.

 

This led to the more inclusive approach of recognising a plurality or a continuum of land rights in which you do not give primacy to one particular form of tenure, you rather try to achieve tenure security for a range of legitimate tenures (whether formal or informal, de jure or de facto), though legal, administrative and other means. I think this is a very pertinent message for South Africa. Interestingly, the high-level panel report on the assessment of key legislation and the acceleration of fundamental change released at the end of last year includes a recommendation on “recognising a land rights continuum consistent with international trends”. This challenge is evident throughout the world, but it is particularly acute in Sub-Saharan Africa, where more than 60% of urban dwellers are living in informal situations, and many rural dwellers are facing threats to their customary tenure systems.

South Africa is trying to catch up from a terribly skewed colonial and apartheid legacy of dispossession, which has persisted in spite of the land reform efforts of the post 1994 democratic government. It was always going to be difficult. Today there is pressure and the stated intention of the ruling party to change the Constitution. Perhaps this is necessary, perhaps not. Personally, I think there is more than enough in the Constitution and the laws for us to have delivered substantially on land reform by 2018. A huge problem is that governance in general in the country went awry and was captured by vested interests in different forms. There is no way that land reform would have succeeded in this context. Fix the Constitution by all means, if indeed it needs to be fixed, and at the same time implement the recommendation referred to above. But also realize that so much more has to be done to actually deliver the desired outcome. Responsible, clean and properly resourced land governance should in my view be much higher on the list of priorities.

 

A challenge is that there are so many different cross-cutting trajectories in the land sector. Consequently, it is very difficult to find the way. For me, if I were asked to focus on one particular area to make a real difference, my suggestion would be to open up what the vision of land tenure security is and can be, and use the entire menu of mechanisms available to implement it, at all levels of government. But this has to run alongside fixing governance in general. Delivery of services for people who are poor is part of a composite situation that makes just looking at land reform a bit simplistic, because there are so many interconnections. This does not mean that it should not be done, but it means that it has to be part of a bigger project that looks at getting governance in general sorted out. The ultimate test is what happens to those who are poorest in our society.

 

I don't get drawn into discussions asking whether the Constitution be changed, but I recognize that there has to be a clear message from the ruling party that it really wants to do this for the people, and that we are genuinely going to go back to a real programme of general social upliftment. Having said this, in this programme of social upliftment, land is absolutely crucial and fundamental. If people don't have a measure of security on the edge of a city, then they won't invest when they get there. They will behave in particular ways because of that insecurity. They will be vulnerable to groups who dominate those areas. They may be vulnerable to people charging them exorbitant amounts to stay there. They won't be protected if they need the police to come or if they need the fire department to come.

 

At the GLTN we did a project on the continuum of land rights practice in 5 sub-Saharan countries. South Africa was included. We have to understand that fundamentally land is there for everyone - for security and economic development, but not just for development. It is often the last place of refuge. Homes are places where people live. They need to be safe. Their children need to be able to see when they're trying to study and not to be accosted or even raped when they walk out the door. Security is something we have to get right, and land plays an important part. If we can get it right so a family can live in safety, children can study properly and not cut their feet or get assaulted on the way to the toilet or burn their eyes because they are trying to study by kerosene lamps, or if you have a crisis and can count on the police or ambulance or fire brigade to come, this will be a massive development in the future. This has a huge value compared to the simple value of a piece of property. The collateral that society gets out of this kind of security is enormous. This is my construction of how land reform should be looked at. Land is our leverage of how people can get a leg up in society and then live in safety and focus on what they really should be doing, being productive and living meaningful lives. Many of the people who arrived and the edges of cities are arriving there because the economies of the places where they come from have been decimated. If one looks at it from both rural and urban angles and looks at the social and economic aspects, not just one of the other, then we will get somewhere.

Land reform has become highly politicised:

Issues like access to land, the right to fish, the need for work and the desire for justice are all hot button issues, strongly tied to deeply held values and eliciting powerful emotions. When these are at stake it is easy for facts to be thrown out of the window and for politicians and activists to seek simplistic solutions or gratifying answers. (Andries du Toit)

How do we disentangle the land question from the colonial and national questions? How do we explore complex and uncomfortable realities and find sustainable solutions?

 

At least it gets us talking about what we need to talk about. 

The CRC hearings were a good start. We need another round of those (maybe two, maybe three, and many more per province...), but instead of speakers facing the parliamentarians and having their backs to the crowd, the crowd needs to speak to the crowd, ordinary people need to speak to one another. It's extraordinary how little real, thoughtful contact there is between different types of rural people, eg black and white. From my (very) limited experience, the boardrooms in corporate SA are much better. In rural areas - ok, in 'my' rural area - white people seem to know black people as farm staff or business clients, and black people know white people as the ones with all the property and money. 

My worry is that we're already missing the moment. We're trying to find the technical solutions to our failing land reform, which is good, but our failing land reform is not really the main problem we need to be addressing. 

Certainly we don't think that the call for expropriation without compensation is about speeding up land reform, it expresses an idea of what is just. Technicising the discussion (eg defining what land can be EWOC'd, the procedures for identifying it, how to deal with the debt...), will get us nowhere.

 

 

A well-cited paper by Oliver Williamson, published in 2000, gives some useful insight. He provides a diagram of the Economics of Institutions containing four levels arranged according to the frequency of change. At the first level, he has things like culture and religion, which take centuries to millenia to change. At the second level is the institutional environment, which includes the economics of property rights. Change at this level occurs over decades to centuries. The third level contains governance structures, including the institutions of government. Change at this level occurs every decade or less.

The problem with politicisng land reform lies in the disjuncture between the time frames envisaged at levels 2 and 3, as highlighted by Land Equity International. Land reform occurs at level 2 and should take decades, whereas the politicans driving change exist at level 3 on election cycles of the order of 4 - 5 years. To stay in power and to show the results of their efforts, land reform project durations are hence typically under 5 years. Land Equity attributes the succes of land reform in East Asia (Thailand and Indonesia) to the fact that the projects were planned over a 20-year timeframe or more with thousands of personnel deployed (implying a healthy budget).

This is why one of the recommendations I made during the Land Governance stream at AfricaGEO was for the agency responsible for the cadastre and land administration to be (semi)-independent of the state. There are drawbacks of this - funding being the most obvious - but the benefit is that land reform is removed from the politicsed arena that sees each new Minister coming up with their own new schemes. Instead, a long-term vision can be set with clear, realistic milestones that can be reported to the public as the project progresses.

While I think politicisation is unavoidable in the context of SA historical legacies, I agree that we should advocate for a separate institution to promote Land Administration reforms, as this is where 'the devil lies in the detail', and the details are what tend to be sacriificed when the only discourse is the 'politics' of the land question (which will of course always animate the debates). Fully agree with Simon this should be a twenty-year trajectory with carefully planned steps. It is imperative that Land Governance and Land Administration gain prominence in Land Reform discourses and policies (urgently!) and have been proposing that LA is added as a fourth leg of Land Reform. I agree that we need a dedicated institution, and wherever it is, it must definitely be outside the DRDLR!. Siyabulela Manona proposed the Law Reform Commission should be reengineered into a permernent institution to clean up the holy mess of land laws, and I agree, but arguing elsewhere that it could be an Interministerial Commission or a Chapter 9 institution that goes beyond law reform and develops a political Vision for unified land governance and LA, with an appropriate cadastre in South Africa. The content and trajectory should be informed by evidence gathered in a series of pilots that may culminate in a Land Administration Framework Act and a new law to guide land rights adjudication that takes into account customary law. We are advocating (in various platforms) for pilots that test new aproaches to land tenure, data collection and maintenance of records, using new social and technological tools and data system. There is considerable interest in this. It is important that we avoid rushing to the legislature with more laws before we have gatthered widespread evidence in the field to guide law reform.

The Land Portal argues that:

Making land data available as open data provides numerous public and societal benefits. Open data surrounding land transactions increases accountability and transparency, while reducing corruption. Open data technologies enable mapping and access to information on land rights

This can lead to more protection for all land rights holders and make an important contribution to a pro-poor programme of land reform. What does this mean in practice? How do we get from where we are now to where we need to be?

This question is a constitutional imperative rather than a nice to have.  The preamble, of the SA Constitution, it makes reference to South Africa as  “open society” and in various sections s36(1), s39(1) (a), s59(2), 72(2) and s118(2)refers to South Africa as  “open and democratic society”, commiting to values of open government.  Chapter 10 of the Constitution of the Republic of South Africa deals with matters of public administration. Section 195(1) (f) and (g)  commits to a public administration that is underpinned by basic values and principles

(f) Public administration must be accountable.

(g) Transparency must be fostered by providing the public with timely, accessible and accurate information.

There is no doubt that s195(1)(f) and (g) is  committing South  Africa to  and Open Government data.

 Notwithstanding that the the Constitution is the supreme law of the land, SA's commitment to move towards a Open Government Data has been rather laclustre. This is a matter which is a reflectionn of a praxis in the civil service, where we are booked into Hotel Opennes, but we have at best been sluggish at checking out of Hotel Secrecy. We have failed to put in place appropriate statutes and institutions that would propel the country in the ddirection of Open Government Data. I am saying this fully aware that legislation and institutions are necessary but not suficient. We need a change of culture in the civil service in which civil servants see themselves as being in the spce of providing information as a service. This would require a fair amount of retraining and capacity building. Lastly we would need to rationalise our national land data ecosystem and move towards a national land data infrastrure/s.

 

In response the prescript s32(1) of the Constitution, reads;

Every person has the right of access to all information held by the state or  any of its organs in any sphere of government in so far as that information is required for the exercise or protection of any of their rights.

The reports of the High Level Panel published in November 2017 observed that that ‘recent land policy is being driven by opportunities for political alliances and elite enrichment (particularly in mineral-rich areas) rather than focusing on the structural drivers of enduring inequality in ownership and control over land’.

Land policy has degenerated into a theatre for party political manoeuvre and position. It has become divorced from attempts to frame and address the difficult questions: As du Toit has observed:

[W]hen South Africans consider the future of our farmlands, we tend to ignore the realities of rural de-agrarianisation, corporate control, and small farmer marginalisation. Rather than asking searching questions about how our agricultural and food system should be managed to ensure livelihoods and food security for us today…[q]uestions of equity tend to be framed as questions of restorative justice (how to redress the wrongs of the past) rather than question of distributive justice (how to ensure that everyone gets a fair share now).

How can policy and law be formulated to enable everyone to get a fair share now?

 

From a property law perspective, the hierarchy of rights in property, upheld by court's interperation of the common law, poses a risk especially when the courts need to adjudicate on matters or interpret legislation. In this hierarchy, ownership is the most complete right a person can have in property. In practice, this can play out in a scenario that an owner's right always trump other rights. This uphold unequal land holding and strengthen ownership rights in property (and can be a barrier to entry). 

Our courts are moving away from this, mostly in eviction judgments, where the court will often require from an owner to either endure on an infringement, or otherwise make it impossible to exercise ownership rights because there is another right in the land. Of course, this will have to mimic the balancing that section 25 requires, but to acknowledge that in some instances ownership wil just not trump automatically, is an important step into challenging the system of property rights. 

 

This is particularly important for rights in communal lands.

This contribution has been posted by the facilitator on behalf of Ben Cousins. It is an op-ed which appeared in Businesslive on 3 October 2018. Peter Delius and William Beinart published a reply which WillIam revisits in his post below

The politics of land is boiling over, bringing immense dangers but also opportunities. Amending the constitution to allow large-scale confiscation of land without due process could lead to huge disinvestment and declines in production and employment. Rather, we should make land reform a higher priority, give it a larger budget, rethink failing policies and renew the institutions responsible for their implementation.

It is clear that new policy frameworks must include a focus on urban land. These must aim to enable sound planning for human settlement and deal with the apartheid geography still evident in our towns and cities. But the largest area of land affected will be rural, and clarity is urgent on who will acquire rural land and for what purposes. The answers are key to determining the degree to which rural land reform can help reduce unemployment, which is arguably our single most intractable problem.

Key subsectors in which smallholders can be competitive include vegetables, subtropical fruit and nuts, sugar and extensive livestock production.

President Cyril Ramaphosa believes that revitalised land reform can underpin growth and job creation. He is not alone in this; the National Development Plan (NDP) suggested a target of 1-million new jobs in agriculture and linked off-farm sectors by 2030. This would require a huge increase in the area under irrigation, investment in labour-intensive crops, bringing moribund land reform farms back into production and supporting agricultural development in communal areas.

We should re-examine these proposals, assess their feasibility and debate their implications for land reform policy. In my view, agriculture does have such potential but only if large areas of farmland are redistributed to smallholder farmers. In my estimation, 1.4-million jobs and livelihood opportunities can be generated over the next 15 years through a combination of government support for agriculture and the redistribution of 48-million hectares. This is 60% of commercial farmland.

From the total, I deduct 200,000 jobs potentially lost through mechanisation and displacement of farm workers through land reform, so the net gain would be 1.2-million jobs.

Key subsectors in which smallholders can be competitive include vegetables, subtropical fruit and nuts, sugar and extensive livestock production. Livestock is crucial, because most of SA is arid or semi-arid and unsuitable for cropping. Resilient small stock species such as goats and sheep survive droughts better than cattle. They are sold in large numbers in ceremonial markets in rural areas but have the potential to supply consumers in urban markets too. Wool farming by smallholders in parts of the former Transkei is increasingly profitable.

Stats SA suggests that about 200,000 market-orientated smallholders supply informal agricultural markets at present. If we include occasional livestock sales the number is probably larger — more like 500,000. These farmers should be the key beneficiaries of rural land reform. They have the potential to begin to accumulate “from below” and over time begin to challenge the dominance of white commercial farmers.

The panel must advise Cyril Ramaphosa on how to execute land reform in a way that redresses past injustices without sacrificing economic growth and food security

Opening up export markets for citrus and other labour-intensive crops could generate another 152,000 jobs. Enhancing livelihoods through communal area agriculture could benefit 194,000 people. (These estimates are based on those in the National Development Plan, but scaled back because water experts dispute its assertion that an additional 500,000ha hectarescan be irrigated. I assume another 200,000ha.)hectares.)

A problem facing smallholders is that value chains of formal sector food processors and retailers are both concentrated, andtightly integrated and difficult to penetrate. Government procurement from smallholders could play a role, together with policies to support local, informal markets.

Bakkie traders who link farmers and consumers in the informal economy already exist in large numbers and could play a key role in efforts to invigorate the informal economy. Municipalities could provide space for food markets supplied directly by farmers as well as bakkie traders. Supermarkets in rural towns could also purchase fresh produce from such markets.

This line of argument cuts against the grain of conventional wisdom. There is a deep vein of scepticism in SA about small-scale farming. The dominant view among white farmers, bankers and agricultural economists, and perhaps ANC leaders and government policymakers, is that the beneficiaries of rural land reform must be black commercial farmers.

But this is a blinkered and narrow view, and potentially dangerous. Blinkered because it sees only large-scale commercial farming as “real farming” and ignores evidence of the productivity of small-scale black farmers. This view informs assessments of the “viability” of land reform projects and business plans, which are mostly drawn up by consultants, often retired or unsuccessful white farmers. Unsurprisingly, these plans always recommend commercial farming systems, never those practised by smallholders.

It is a view that is narrow in its strong focus on labour-saving technologies and in its disregard for informal agricultural markets (even though commercial farmers dispose of some of their produce in such markets). It is thus blinkered in its inability to understand smallholder production and livelihood systems on their own terms.

It is also a dangerous view. If a rural land reform plan aimed at deracialising commercial farming fails to deliver, it could gift the “land question” to populist politicians. By the 2025 elections, when youth unemployment is likely to be even higher than now, the constituency for this kind of politics will have grown considerably. The likelihood of short-sighted confiscation policies without an economic logic being adopted will be that much higher.

Of course, aspirant black commercial farmers deserve all the help the state and private sector can provide, including access to more land. But they face huge obstacles, especially in relation to finance and markets. To illustrate, the Land Bank is struggling to recover its loans to black commercial farmers. We should not underestimate the difficulties they face in attempting to enter a technologically sophisticated and competitive sector that is highly concentrated.

This means it is unlikely that much land can be redistributed to black commercial farmers over the next 15 years. If there are 5,000 such farmers at present (a generous estimate), and another 5,000 each acquire a farm of 1,500ha through land reform or market purchase by 2033, this will amount to 7.5-million hectares, a mere 9% of private agricultural land in SA. At double that rate, only 18%.

The problem with a rural land reform aimed at supporting only black commercial farmers is that the numbers simply do not add up. It is not a sustainable solution to an explosive political issue. To be clear, I am not arguing that we should try to recreate the African peasantry. We must look forwards, not back. But against all the odds, something like 200,000 small-scale, entrepreneurial farmers already exist.

Targeting such farmers as the key beneficiaries of rural land redistribution is the only way to square the circle of a land reform that achieves both its political and economic objectives.

Agriculture and food production is not the only reason for land reform, but it is very important for succesful land reform, improved rural lives and achieving the right to food for rural and urban people. Tracy Ledger, in her excellent book "An empty plate", shows clearly how liberalisation post 1994 has turned the terms of trade against farmers and eaters. Farmers are getting less and less share of the value of what they produce and eaters are paying more and more for the food they need just as the supermarkets have taken a bigger and bigger share of the value of food sold. Even with the improved minimum wage for farm workers, won through struggle in 2012, two adults working full time on a farm and getting child grants for their two children, cannot afford an adequate diet. At the sametime many of the farms would not be economically viable if they paid much higher wages. Meanwhile the supermarkets and the property companies owning the malls they are in have been making enormous profits for their shareholders and executives. It is the farm workers who get squeezed, producing food for wages that don't enable them to buy enough food to eat. The bigger picture is that no redistribution of land is going to succeed or change the current crisis of hunger, poverty and inequality without dramatically transforming the wider agri-food sector.

Originally we planned to close the debate on the 30th of November. It has now been extended by a week.  It would be great if all the participants as well as those who have been observing the exchange could log in and make your closing comments. The key focus needs to be on Question 10. If things have gone wrong what does it practically require to fix them? Your ideas about a way forward would be very valuable.

With an election next year, and with all the political parties having found themsleves needing to take positions on the land question, however ill-considered most of those postions are, we should resign ourselves to a period of much hot air, rhetoric, and juvenile militancy. The 'land question' will be exploited for all it is worth, while very little will actually be done to resolve it. The debate around EWOC, and constitutional amendments, will take up all the media space, but it won't advance the matter more than an inch or two. In this sense, the land question is thoroughly politicised and there is no point bemoaning the fact. 

This is natural, and OK. It is also where civil society comes in. There is no reason to expect that professional politicians should be able to resolve as complex and wide-ranging a question as that around land. They are far too conflicted and self-absorbed for that. The resolution lies in the hands of the people who grapple daily with the problem; and in the hands of the communities they form and the organisations they bring into being. (Some of those organisations - or their representatives - have taken part in this dialogue; few, if any, of the communities seem to have done so.) Civil society needs to keep finding ways of helping to articulate the views of those most deeply affected by the land question, and to try to amplify those views above the present political noise. Hopefully, working with the communities, we can also develop solutions, or part-solutions, and offer them to the politicians. (And if afterwards the politicians think that they actually came up with the solutions, so much the better...)    

Your comments about how the debate as whole and how it could have been better organised or facilitated are also welcome

Policymakers ensure that the land reform has strong elements of pro-poor action plans

In answering the above question, I would suggest that the policymakers ensure that the land reform has robust features of pro-poor action plans. Making it pro-poor entails taking into account the needs of the many South Africans people living in poverty. It means treating everyone equal but ensuring that the poor benefit like everyone else. The reason that the poor are vital to its success is that if the poor do not benefit, then it fails (because the status would not change). It does not mean neglecting the rich. To capture the needs of the poor, people living in rural areas, those living in urban slums, disadvantaged people (such as women and the youth) need to be empowered by using the reform to offer them access to land, land related services.

Some points on the "how-to" aspects of the reform 

In summary, I suggest that the following be considered in the implementation of the reform:

  • The timeline for the reform process has to be realistic. This will imply that it should not be too long or too short. An 8-12 year timeline (a ten-year plan may be most ideal) could be put in place. The problem with having long-term (20-30 years) timeline is that it can lead to demotivation in the process. Poverty is a problem that demands urgent action.

  • Ensuring gender equity in the reform would demand to capture women's needs.

  • Apart from the timeline, other steps in the action plan of the reform should include: building political alliances in support of the reform (the ANC and others have to work together). Co-design workshops would help in developing initiatives/programs in favor of the reform implementation and in capturing the poor to participate in the process. Evidence-based research on land is necessary for ensuring that appropriate decisions target issues and areas of most significant needs in the process.

 

 

 

Rights, restrictions and responsibilities relating to land obtained through land reform must be secured in the relational/social microcosm before State programmes can function smoothly in the macrocosm.  In real terms the majority of the urban and rural poor are primarily helped financially by their own kin or household, rather than the State.  When these relationships become unduly strained, this support falls away if there are no records to help dependents enforce this support.  In South Africa today there are various holes in our record keeping approaches that allow vulnerable dependents to fall through the cracks.  The relational/social obligation to help those in need is then turned into a State responsibility, often in a context where the State is unable to fulfill these needs.  Proper records supporting the right to the assistance from members of a land beneficiary's own household or family are key to the sustainabiility of pro-poor land reform.

Thanks Rick for your reminder.  Others have covered many valuable points and are more immersed in some of the most difficult issues -  I dont want to repeat too much. One of the problems is priorities and funding.  Peter Delius and I wrote a response to Ben Cousins' proposal in Businesslive for 60 per cent transfer of remaining commercial/private farmland, over the next fifteen years, I understand largely in some form of communal tenure.  We disagreed with this both because of its probable impact on a relatively successful capitalist agrarian economy, responsible for the great majority food and export production, and also because we think that there are other priorities.  I also think that expropriation without compensation is unnecessary.  There is plenty of land for sale in most districts of South Africa.  If additional land purchase budget is needed it could acquired within the current constitution through taxation.  The amounts involved for land purchase (as opposed to housing, services and general support) are relatively small in relation to the total budget and they should be borne through a small progressive tax on corporations or higher rate tax payers.  Existing landowners and the banks should not have to shoulder the whole burden.

1.  As some have mentioned, a massive new urban housing programme is needed.  Follow the people, who are still moving largely to cities and towns.  In the bigger metros this will inevitably be largely for housing, although provision could be more imaginative.  In smaller towns, some of which still have commonage, or where neighbouring farms could be purchased, larger sites should be tried - say 0.2 ha, enough for gardens and other uses.  (This was, by the way, the residential site size we argued for in the proposed Isidenge valley residential scheme near Stutterheim in 1994-5, offered as part of the first pilots, but not implemented). 

2.  Urgent completion of the first phase of restitution.  This has been covered above but it involves not only resolving complex cases, but also providing far more effective post-settlement support on both old and new cases. Some that have been formally settled remain in the doldrums.  It is a major task that will require significant new investment.

3.  Innovative projects in the substantial areas that are now occupied in various ways by smallholders and CPAs. Someone suggested above that a descriptive list of successful projects (and transfers) would be hugely valuable.  'Success' will no doubt be disputed but both perceived benefit and successful production should surely come into it.   The state has not been very active, partly because of the abandonment of the idea of pilots, and the information is scattered, but many interesting projects have been developed.  Could we collectively construct a list?  And also of failures?  Can the state be more proactive around smallholder projects?  Again this will involve signficant resources.  These are still the poorest areas in South Africa and require the most resources.  We argue that the issue in these areas is not lack of land, but a range of other constraints, that have been outlined in a what is now a good literature.  But we will no doubt disagree on how to facilitiate investment of capital and labour, and provide more secure tenure.  Pilots and projects that work from below are needed urgently.

4.  Translating this onto transferred land.  Suggest well-supported projects (that probably means supported 10-12 years as noted by someone above, maybe even more) on a relatively small scale on newly transferred land.   The current betterment type layouts, with residential villages surrounded by free range grazing, which have underpinned land transfers since the homeland days, are not 'traditional' and make investment difficult.  In the Isidenge scheme we suggested smallholder farms as a second phase where families could have complete control of about 5 ha, again near town, in a high rainfall area.  The community, former tenants, were keen on titles for security.  This was not implemented and to my knowledge there have been few subdivisions into individual smallholdings at any scale.   Depending on the area there is scope for larger plots. 

But there are advantages in being near towns because of the synergies between urban and rural economies and the importance of both private and public services.  Family livelihoods are going to be diverse, at whatever scale, rather than derived from farming alone.  Being near a town provides a local market and hence less priority for insertion into formal retail value chains.  van Averbeke and others note that one factor in the success of irrigation schemes in Limpopo is closeness to an informal urban market.  In fact there is often a major market even in the rural areas where 75 per cent?,  probably more, of food is purchased.

It is also important to remember than any new settlement requires services.  Land reform should start with a school (and a clinic and a wholesale shop etc).  Rural people already pay above the average for most of their purchases, from veterinary medicines (see our book on African Local Knowledge) to manufactured foodstuffs.  Being nearer established settlements provides some chance of reducing these costs.

We are arguing for successful projects not percentages.  Even 5 per cent of new land (about 4-5 million ha) would be beyond current capacities and resources.  There will be failures, people need to be able to move on, and if possible take something with them.  Leasing is therefore not a good idea and we have strong reservations about expanding customary tenures.  (For our arguments, Rights to Land). 

5. Irrigation - as Ben notes, some of the most valuable initiatives have grown out of existing projects but resolving problems on the smallholder schemes that are not functioning well is a priority.  There have been many studies, Manona/Denison and van Averbeke seem to have reached a consensus around relatively small schemes, which dont necessarily involved dam construction and complex pumping and sprinker systems.  The east coast areas, as well as Mpumalanga and Limpopo, provide opportunities as although rainfall may be more irregular, there is (probably?) still a water surplus in some places.  

It would be a truly great achievement if the state, together with private sector and NGOs, could do all of this relatively 'successfully' in the next 15 years and could make a real difference to rural poverty.  This would require significant new financial resources and training in key Departments.

Thank you William for your thoughtful contribution. I have posted Ben's orginal piece above and included a link to the response you and Peter wrote so that other participants can follow this thread. As a practitioner I value your emphasis on the need for practical interventions. I share your caution about the efficacy of rapid large scale land transfers for a number of reasons - many of which link back to chronic incapacity and increasing capture of organs of the state, but also with the continuing attractiveness of megaprojects a perceived solutions to large scale social problems. In a recent book Vanessa Watson and I explored why these megaprojects so often fail. Our focus was on urban housing but the argument can be advanced that the same holds true in the rural sphere. There is a rich literature on the impetus for megaprojects (Flyvbjerg, Jennings, Moran and others) which is also at the heart of their frequent if not inevitable failure. I was particularly taken with Moran's concept of "policy catastrophes"  that promote "icon politics" and large scale projects "conceived for their symbolic value".   

Given that 'expropriation without compensation' is South Africa's word (phrase of the year) and that South Africa is preparing for what will be hard fought elections, the impulse to conceptualise megaproject 'solutions' to the many problems of land reform will be strong, if not overwhelming. Much of the recent national debate on land reform is a product of "icon politics" where land has become a signifier of every wrong with our deeply unequal and increasignly polarised society. In an early contribution to this debate Andries du Toit spoke about the need to secure a fair share for all. This is the task that faces us and that everyone, irrespective of where they sit, needs to focus their minds on.  

Michael Aliber has reflected on  the "high rate of shrinkage and collapse of land reform projects revealed by some studies, together with the small numbers of land grant beneficiaries residing in commercial farming areas as revealed by secondary data".

In a paper available on knowledgebase.land Phuhlisani's new website he notes that

Even while the inadequacies of the land reform programme cannot be accurately pinned down, they appear to be of such a nature and magnitude that one must call into question the wisdom of accelerating land reform until such time as more robust approaches are established.

Acceleration provides no answers here. I strongly support support your proposal to collectively develop a list of interesting projects and approaches that show signs of success as well as the need to closely document and record failure.  

Michael Aliber argues this convincingly.

One of the key findings is that, despite the fact that land reform has been implemented in South Africa for over two decades, and despite the accumulation of a fair amount of research, the status quo of land reform remains remarkably obscure. We do not have even remotely robust data, for instance, on the number of people currently benefitting from land reform, nor for the amount of land reform land actually being used versus that which is lying idle.

Industry, civil society, government and the academy need to come together to accumulate the data that we need to understand what gas happened in land reform to date, do the cost accounting and conceptualise alternatives. When President Ramphosa took over he proposed a study on to establish an accurate picture of what has happened on land redistributed to date. As far as I am aware this proposal has not been followed through. Ben Cousins was reported to have stated that current policy and programmes had no reliable data to inform them

It’s guesswork because there’s no comprehensive statistical record of what’s happening at these farms, the levels of production and what the problems are. We are in the dark.

Without this information I believe we will be irresponsible to advocate rapid acceleration of the land reform programme - by whichever means. This will be tantamount to pressing the accelerator flat while driving in the dark on an unfamiliar road. The likely outcome of such a strategy seems clear.

Where Ben and others are right on the money is their focus on the diversity of small scale land based production activities which either remain invisible and unsupported or alternatively are either ignored or criminalised. We need approaches to land use planning, extension and development support which take cognisance of the informal and what works from below and which incorporates a focus on securing land rights and tenure. 

I acknowledge the need for land reform for different purposes and to suit different needs, but I will limit my thoughts to farming. Firstly, I think we will have little success if we ignore the agro-ecological diversity across the country and the specificities of different areas and sub-sectors.

Secondly, in many sub-sectors margins are low and/or declining and where margins are high, they are often sustained by a weak currency. The low margins can be attributed to a number of factors, e.g. relatively low producer prices and high input prices, low yields, the low productivity of SA soil, drought, inefficient use of inputs, etc. My experience is that we don’t discuss the role of the growing power and concentration of buyers of agricultural commodities and sellers of inputs in the ongoing success of farming, or how difficult it is to access certain markets. The question is whether present competition legislation is adequate to address this or stem the tide.

Although there are some centres of research excellence, we need more research into low cost and resilient farming practices suitable for South African conditions. Also, in many cases where research was done, the findings are not being converted into management guidelines and communicated.

To echo William Beinart, we indeed need to be more innovative, especially in terms of support to new farmers and the farming practices we encourage. We need to consider all possibilities, however foreign they may sound to ears attuned to this model or that. Furthermore, the spectre of climate change may force us sooner rather than later to make changes to adapt to generally hotter and drier weather and extreme events. Adaptation will require a lot more collaboration between climatologists, agricultural experts and local farmers than we see at present.

Ben Cousins have investigated differentiation among smallholder farmers (https://www.plaas.org.za/sites/default/files/publications-pdf/WP16.pdf) and regularly talks about how the notion should inform our thinking about land and agrarian reform. I don’t think there is adequate acknowledgement of differentiation in the large-scale commercial farmer sector. My research in three provinces shows that a fair proportion of farmers is indeed the technologically advanced, export-driven operators of public perception, but I also found many farmers who were reproducing successfully as well as a group of struggling farmers. Depending on the agro-ecological region and the sub-sector they were involved in, I found considerable differences in terms of the size and scale of landholding and future trajectories.

This brings me to my final point, that we should be cautious of binary thinking. There is room for many different sizes, scales and styles of farming and markets.

I find your caution about binary thinking very helpful. Understanding and enagaging with differentiation amongst land users and producers, taking on board climate change and necessary adaptations required are essential.

There is a whole continuum of actors in this landscape ranging from largely invisible subsistence and local market producers in rural and urban settings all the way through to high end transnational players emerging through processes of deregulation which  have led to concentration of land holdings and contributed to the rise of large agribusiness companies.  Hall and Cousins have also chronicled the emergence of Big Food in the form of large companies providing inputs and agro processing services together with large retailers who control the system. They also point to the SAFEX futures market as an indicator of the financialisation of the agrisector and highlight the processes of investment into agriculture across the continent.

This suggests that we could benefit from trying to locate all of this in space at district, local municipality, agro ecological/catchment scales in order to map the actors and identify localised land needs. Planning for land reform - urban and rural needs to be anchored by objective - the Framework Act as well as in space to be more bottom up. It also needs to be much more data rich. As noted in earlier posts we need to know what is going on - both with land reform projects which have laready been completed, together with land and support needs.   

I don't think that land reform should only be aimed at the poor, although the poor should certainly be prioritised, especially when it comes to housing and subsistence farming.  We need to develop instruments that are needs specific.  The needs of people living in communal areas may be quite different from those living on commercial farms and those living in informal areas in cities. I understand that the Department of Human Settlements has some interesting housing models, where skills transfer is part and parcel of some of the products that they deliver. One such example is the military veterans housing programme.   The Operation Phakisa smart agri-village proposal also holds some promise for housing farmworkers and their families.  Access to land without access to services and economic opportunities is likely to be a poverty trap.  Proper spatial planning will assist in locating housing projects in a space where people will have access to opportunities and services.  The SPLUMA national, provincial and local frameworks should be developed and should cater for the different needs and be implemented properly.  The titling of houses that people already occupy in terms of 99-year lease and other less formal arrangements should be rolled out countrywide. Small farmer support should be expanded through public-private partnerships. 

To me the discussion as a whole underlines the need for a national consensus on what we want to achieve through land reform and who the programme prioritises. The Land Reform Framework Act pioritised by the HLP and discussed above could provide some certainty here. This needs to be supported by a repurposed system of land administration that starts from the premise that the current system works for the few - not the many. This as you have pointed out needs to span the whole land reform landscape.

  • on the farms
  • in the Act Rural Areas
  • In the former 'bantustans' or communal areas
    • On land held by Ingonyama Trust 
  • On land acquired through land reform held by land holding entities 
  • Land in towns and cities

People have to enjoy secure rights in land across these spaces which protect the vulnerable while enabling transactions and investment. The current land recordal and titling system is broken and needs to be remade. In the process we need to examine international perspectives on land tenure  and some of the lessons learned. An important review by Farai Mtero for the HLP critically assesses the efficacy of titling. He notes that:

Various studies in sub-Saharan Africa seem to confirm the failure of land titling and registration and the formalisation of land rights in general to bring about agricultural development.  Evaluation of titling programmes has revealed that these initiatives are not a universal panacea to agricultural development problems.   Titling programmes have been known to extinguish pre-existing customary rights to land. The multiple and overlapping nature of customary rights to a parcel of land are affected when that parcel of land is subject to exclusive ownership through formalisation processes. In addition to producing winners and losers through excision of overlapping claims to land, land titling may encourage land grabbing by the elite and other well-resourced members of the community who are more familiar with the processes of land registration.

Mtero reviews the De Soto thesis concerning 'dead assets' drawing a range of reviews which conclude that 

In many instances, land markets have not developed as a result of land titling and registration. As a result, the World Bank and other advocates of land privatisation have had to review their approach to land titling and acknowledge the continued importance of customary systems of land ownership especially in developing countries.

The way that land is held and the nature of the system for registering land rights was a sticking point within the HLP - something that requires another whole debate in itself.

In a recent blog Matt Andrews has written about how to escape what he terms the public policy futility trap. Many South Africans with close knowledge of the land sector are deeply struck within this trap. Andrews visualises this in the image below.

  

He notes that in the 2017 Edelman Trust Barometer only 15% of those surveyed trusted the government in South Africa. Andrews describes how the futility trap is created which from where I sit approximates pretty closely to our current situation. (Add systemic processes of rent seeking and capture of state institutions and processes to thicken this mix)

Policymakers in these communities keep coming up with ideas, and political leaders keep making policy promises, but no one really believes the ideas will solve the problems that need solving or produce the outcomes and impacts that citizens need. Policy promises under such circumstances center on doing what policymakers are confident they can actually implement: like producing research and position papers and plans, or allocating inputs toward the problem (in a budget, for instance), or sponsoring visible activities (holding meetings or engaging high profile ‘experts’ for advice), or producing technical outputs (like new organizations, or laws). But they hold back from promising real solutions to real problems, as they know they cannot really implement them 

Our challenge is to build on and extend the ideas exchanged over our three week discussion to help find ways to break out of this trap to advocate for and implement a sustainable pro poor programme of land reform .  

Thank you to everyone who has contributed to the discussion which has been rich and substantive. It will remain on the Land Portal as a public resource. This discussion is now closed. Over the next few days we will aim to try and distil the essence of the discussion in the form of a report which we will circulate to you all.

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