Pathways to land reform

There are genuine reasons for anxiety about expropriation without compensation (EWC), among them proliferating land invasions, nervous international investors and vulnerable financial institutions. But policy contests tend to fade over time as citizens tire of the complexity of setting the world to rights. There is every chance that the heat will have left the expropriation issue before the end of May 2019.

EWC started out confusingly  due to mixed messages in the ANC’s Nasrec conference resolutions. That confusion has now been deepened by the creation of overlapping processes for deliberating on the modalities of EWC.

Parliament’s joint constitutional review committee has solicited public submissions on how to facilitate expropriation. President Cyril Ramaphosa has created an interministerial committee on land reform to provide political oversight and “co-ordinate, integrate and ensure accelerated implementation of the recommendations of the joint committee”. In addition, the presidency has appointed a broadly conservative advisory panel to review and research implementation models.

The ANC leadership’s message has been that section 25 of the constitution should be amended for essentially political reasons, regardless of the necessity of such an amendment. Both Ramaphosa’s statements and the terms of reference of the committees and advisory bodies limit discussion to land reform and so exclude other asset classes or property types.

Both the constitution and international agreements to which SA is party require appropriate compensation in the event of expropriation. A broad range of relevant factors can be invoked, including “market value”; how, or whether, the land is currently used; how it was acquired; historical state subsidies; the purpose of the expropriation; and levels of investment by owners and consequent indebtedness.

Speaking at the Cape Town Press Club on Tuesday, Prof Ruth Hall, a member of the expert advisory panel, suggested that consensus may be emerging about a model for graduated compensation, which would systematically weigh these relevant factors. If this is true, the ANC will go into national elections having met its commitment to make EWC possible, but before the constitutionality of its compensation model has been tested.

Ramaphosa can throw in additional promises, such as agricultural assistance for smallholder farmers, transfers of agricultural land to black farmers, and title deed initiatives in urban areas.

Such an approach would place considerable pressure on the main opposition parties. The EFF’s proposed “expropriation of everything” does not enjoy popular support. The red berets may find it politically costly either to support or to reject more modest ANC proposals.

The DA’s likely opposition to reforms will be presented by the ANC as motivated by selfish donors in agribusiness, commercial farming, and property development. Defeat of an ANC constitutional reform proposal will harm the opposition parties that have blocked it far more than it will harm the ANC.

After the elections, there will be tough decisions to take, and these will have to be taken regardless of the outcome of the constitutional process. Ramaphosa cannot continue with two government departments — agriculture, forestry & fisheries, and rural development & land reform — that advance dramatically different land reform policies. Since land reform will clearly not succeed without the active co-operation of commercial farmers, he will also have to embrace a partnership model.

Traditional leaders who deny their subjects control over their own land will have to be confronted, for electoral as well as developmental reasons. The attempted reverse takeover of the ANC by these conservative actors has presumably come to an end.

Land in SA is largely an urban and peri-urban issue. Most people do not want to farm but rather to make a home close to urban employment. Making a real difference here will require institutional reforms: an expanded mandate for the department of human settlements or an empowering of metropolitan authorities. It will also require a sustained drive to overcome legal obstacles to pro-poor land-use planning. There must also be a programme to exploit strategically located land controlled by government departments and parastatals.

None of this will be easy to accomplish. But the prospects of success are very little affected either by leftist doctrines of expropriation or by liberal preoccupations with the defence of the constitution.


• Butler teaches public policy at the University of Cape Town.

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