What can we do to achieve sustainable pro-poor land reform in South Africa? | Land Portal | Securing Land Rights Through Open Data
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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 was facilitated by Phuhlisani NPC in association with the Land Portal is in search of solutions. Contributors to the dialogue discussed and debated 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?                      

Land Reform in South AfricaRead the report of the discussion here.

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