The recent call to amend the property clause of the South African Constitution to allow for expropriation of land without compensation is one of the first bold pronouncements made by the new President of the Republic, Mr Cyril Ramaphosa; during his first state of the nation address (SONA), which was subsequently approved by Parliament. This step was taken not only as a means to redress the widening racial disparities in land ownership, but also as a necessary condition for ensuring sustainable reconciliation, healing of past wounds and justice. Although the President had explained that a credible way to expropriate land without compensation would be in such a way that agricultural production and food security are not compromised, he did not give a clear procedure on how this will be done but subjected the matter to the Constitutional Review Committee which will report back in August 2018.
Due to lack of clarity on procedure, this pronouncement sparked a heated debate amongst South Africans - in both public and private spaces; as well as in all media platforms including social media. It quickly fuelled panic and insecurity amongst the current landowners (mostly white people), and increased expressions of anger and negative racial undertones between the racial groups; with some talking about preparedness to go to war. At the core of the controversy, is the fact that currently, land owners in South Africa have a constitutional right to property, and the proposed scrapping or amendment of Section 25 of the Constitution for the purposes of expropriating land without compensation is a serious breach of fundamental individual’s rights which are protected in terms of Section 36 of the Constitution, and the International human rights instruments such as the United Nations’ Universal Declaration of Human Rights, the European Convention on Human Rights and the African Convention on Human Rights (African Charter on Human and Peoples’ Rights).
Currently, Section 25 of the Constitution of the Republic of South Africa does not make provision for expropriation of property without compensation. It provides for the expropriation of property for a public purpose or in the public interest, at prices set by a government adjudicator, subject to just and equitable compensation; and provides for matters connected therewith as in redistribution of land. For paying compensation to land owners, the state merely relies on “market value” to determine the rand amount to be paid; and considers other criteria such as the “history of the acquisition”, “the current use of the property”, and “the purpose of expropriation.” Section 39 of the Constitution further stipulates that when courts interpret the Bill of Rights, they must promote the values of an open and democratic society, which essentially allows land owners to approach the courts should they not be happy with the compensation paid. Because of this, some groups have expressed strong views on the motive behind the sudden need to amend the property clause; arguing that the problem with land reform does not stem from the flaws in the Constitution nor is it a response to land hunger; they think it is a cynical ploy used by the ANC to manipulate voter sentiments ahead of the 2019 national elections. For such groups, the problem is lack of political will, wholly insufficient budget, poor implementation and corruption; and the call for expropriation without compensation tends to institutionalise reverse racism or black domination, which flies against what Mandela stood for – the fight against both white and black domination.
Other groups, such as the economists, landowners, and those in the agriculture sector expressed concerns on how this would affect farming and food security without hitting investment and production that could lead to economic damage similar to farm seizures experienced in neighbouring Zimbabwe. Their limited thinking is that transferring land to people with no skill would damage the economy. The President allayed such fears by explaining that the process would be done within the confines of the Constitution and the law; and it would target unused or derelict land owned by municipalities and state-owned enterprises. In addition, he pleaded the current farmers to be prepared to assist the new farmers.
On the other hand, for many ordinary Africans who are poor and landless, land expropriation without compensation is an important step to redressing past injustices and redistributing the means of production to those who were dispossessed. For them, land is an important heritage resource that has both a human dimension and a cultural dimension. The human dimension is the long overdue actual expropriation of land from current owners and its appropriation to beneficiaries, which is important to the country’s political stability and the country’s future developmental prospects. However, as we all know, failure by government to deliver 30% of land to beneficiaries by 2014 has somewhat compromised the human dimension; which has made expropriation of land without compensation an urgent long overdue delivery. For many, in particular those whose forefathers sacrificed their lives for liberation including those who died fighting for land during colonial and apartheid land grabs, land has a sentimental value and must be preserved as a heritage resource for generations to come.
The cultural dimension, on the other hand, has an emotional or spiritual component which was destroyed over decades by colonial and apartheid through land grabs. The reasoning is that colonial and apartheid land grabs not only damaged Africans emotionally, but also created the ‘apartheid mind-set’, which made many land beneficiaries to hate all forms of labour because for them it was involuntary. So, the reason why about 75% of land reform projects have failed is not necessarily because of lack of passion or laziness by beneficiaries, but the apartheid mind-set. Although apathy, laziness and/or relying on government handouts in some instances may be responsible for lack of progress, the government must devise a mechanism to directly confront the continuity of the colonial state and ensure that both the human and cultural dimensions of land are fully recognized, understood and accordingly addressed and reconstructed. Thus, to the poor majority, the proposed amendment to the Constitution to allow for expropriation of land without compensation is not only long overdue, but is a matter of ensuring that justice is served.
If land reform is to contribute to sustainable development for beneficiaries, there must be a rejuvenated land reform programme that incentivises investment, encourages the entrepreneurial spirit and gives new land owners the keys to success through support, financing and title to the land. After the transfer, it is important that the beneficiaries are re-socialised to the concept of ownership of land, and to the meaning of labour and profit so that they do not associate these concepts with class, race and exploitation as it was the case during apartheid. Furthermore, the government must find ways to ensure that expropriation without compensation does not leave anybody worse off. Its success should be measured by the extent to which it contributes to poverty reduction, improves the quality of lives of its beneficiaries, and enhances the economy as whole. As alluded to by Ben Cousins, the most important question facing land reform today is how it can contribute to increasing employment, incomes and livelihoods among the 55% of the population who live beneath the poverty line. Thus, as part of the radical economic transformation, the objective of land expropriation without compensation must not only be to correct racial land imbalances but also to address socioeconomic challenges.
Expropriation of land without compensation could indeed be a decisive turn around for South Africa, away from the abuses of our past; and for ensuring that justice is served. But even justice, should not be purely symbolic; land reform should not leave beneficiaries poorer, or even aggrieved for not having sufficient capacity to work the land. Similarly, expropriation without compensation must not leave the current land owners worse off after expropriation than they were before. The process must be handled in a very sensitive manner that promotes the democratic spirit and transformative intent of the Constitution, rather than just formalising existing property relations. It should be managed through proper reconciliatory measures to ensure that it is not about revenge, or the fight against white or black domination.
The government must take a leaf or two from the other countries such as Hawaii in the US and other respectable, prosperous democracies that had used other means to address the failures of the willing-seller-willing buyer approach to land redistribution. In Hawaii for an example, in order to undo the effects of feudal land tenure system which had resulted in just 72 private landowners owning virtually all non-public land, or nearly half the state; the representatives of the state used the power of eminent domain. This required the landowners to sell land to the state at fair prices, which was then transferred on a subsidized basis to former tenants. Where a fair price could not be negotiated, owners had to submit to binding arbitration which eventually gave landowners less than they wished for. Another example is Germany, which is the fourth biggest economy. After the fall of Berlin Wall in the 1980s and discovering high poverty levels in East Germany, those in Western Germany made an effort to pull up their fellow East Germans. Today, there is a strong German work ethic, brotherliness and extraordinary prowess. Although the circumstances are different, perhaps South Africans could learn something from these countries. If reconciliation is for all racial groups, then those with more land should perhaps donate some portions of their land to the state for redistribution.
It is therefore hoped that the process of land expropriation without compensation will pave way for more progressive land and agrarian reform in South Africa. Although the current procedure seems fair and transparent, as it encompasses the public interest and purpose to achieve equitable transfer of land. Instead, it tends to place the current land owners at more advantageous position to demand excessive compensation, which is against the public interest and purpose. This is what has contributed to the failure of the willing-seller, willing-buyer approach, which the current amendment of the Constitution is trying to address.
Certainly, land expropriation without compensation is a thorny issue that will open an opportunity for some rights to be gained by the majority, while some rights will be lost by the minority; but all this will be done in a very different environment of rebuilding the nation. What is important is that returning land to original owners is long overdue, and it is the right thing to do for the dignity of the nation, whether the beneficiaries have skills or not. In order to avoid a forceful resolution, “it is better for a country like South Africa, with highest income disparity in the world, to face the pain of a radical redistribution of assets through land reform now, than to face the long term instability which will emanate from delaying the resolution of the land question - Wellington Didibhuku Thwala.