The implementation of the property clause in South Africa’s constitution: problems and proposals

The first chapter “How the Land was Lost” serves more as the context and environment in which, against all economic and political odds, Alfred Mangena, Richard Msimang, Pixley ka Isaka Seme, Nqcubu Poswayo and George Montsioa gained access to British law schools.

For the record, the book’s namesake The Land Belongs To Us by Peter Delius is about the land struggles of the Sekhukhune descendants of Sekwati. It derives its name from their war cry for the land.

Against the background of the belated interest in revisiting the “property clause” in South Africa’s 1996 Constitution, it is befitting and timely to note that the compromise on the matter of land reform has its origin in the compromise made in the “African Bill of Rights for South Africa of 1923”.  The explanation provided by the author is that “Rather than resorting to law in spite of the military occupation of the colonial era, they resorted to law because a military option was not available to them”.

Central to the organising principle of the African National Congress (ANC), in which most of the pioneer black lawyers actively participated, was equality before the law. Inter alia, the 1943 Bill of Rights included “The right to own, buy, hire, or lease and occupy land”.

The struggle against apartheid recognised the hierarchy of injustice or justice as race, class and gender. This is reflected in the 1996 Constitution. Land and gender are not accidentally provided for in the same chapter on the Bill of Rights. The principle of equality is the obvious attempt to deal with apartheid and inequality.

But, as the secret deals made between the liberation movement on the one hand, and capital and the apartheid government on the other, have become open, the notions of equality and economic justice are an illusion for the landless majority (Terreblanche, 2002, 2012).

The chorus that showers the constitution and the rule of law with praise, does not rhyme with the fact that five administrations and five ministers later, there is a general agreement that South Africa’s land reform is going at a slow pace. There is even an acknowledgement that certain consequences of land reform have been unfavourable. These include low productivity and underutilisation of land; conflict among land claimants and beneficiaries of land reform; and bank foreclosures. These should not be termed unintended consequences, because they are direct consequences of the land reform policies.

From the perspective of land reform implementation, the problem is rooted in the constitution, the land reform policies and the legislation (Letsoalo and Thupana 2004, 2013, 2015). This view is also held by the general public and intended beneficiaries of land reform, as reflected in especially the 2005 and 2014 land summits. Particularly the 1913 cut-off date for land restitution and the market value, remain the sore spots.

The alternative view that the problem lies with implementation is held by mostly, the propertied class including authors of the property clause, white landowners, politicians, lawyers and media commentators. For them the country has the best constitution. The latest rejection of the review of the property clause is from the celebrated 2016 High Level Panel of Parliament. Significantly, members of this panel are the authors of the policies and legislations that were the focus of examination.

About the so-called best constitution, careful consideration needs to be taken of a negotiated settlement. Lest we forget, the ANC members fought vigorously against the market value. The other four factors in the terms of compensation were only included as a compromise with the National Party, whose leader de Klerk, had earlier promised the whites that freehold titles were non-negotiable.

The need to amend the property clause

The authors of the property clause, section 25 of the 1996 Constitution of South Africa, ensured that white property is protected. This, when the expectation was for land reform to be enshrined in the constitution that abolished apartheid. Few scholars have highlighted the anomaly wherein everything in the Bill of Rights is introduced by “Everyone”, except the right to property, which starts with “No one may be deprived”. The property clause is not only controversial in the vocabulary, but particularly in content.

The most commonly referred to category of land reform in South Africa is land claims, which is entrenched in section 25(7) of the 1996 Constitution: “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.”

The legal instrument for land claims is The 1994 Restitution of Land Rights Act No.22 (Restitution Act) as amended in 1996 by the Land Restitution and Reform Laws. It is noteworthy that none of the indigenous languages, Nguni or Sotho, have an equivalent translation of “land rights”. They all refer to “land”. But, the law is specific about rights, not just land.

The property clause singled out dispossession after 1913. The victims of this category of the population were estimated at about four million. This, despite the fact that all Africans in South Africa were excluded from land ownership through military and legal dispossession. All those who were forced to live in the Bantustans and on white-owned farms were the face of apartheid.

An example of the many well-documented cases of land claims excluded by the property clause is the famous Makgoebaskloof (sic) area, which belonged to the Makgoba tribe [[1]] until 1895 when, following the dramatic decapitation of Kgoshi Makgoba, the tribe became scattered among other tribes. The Makgobas insisted that they did not want to buy their land through the Redistribution Programme as was suggested by the government. They categorically told Geoff Budlender SC, then the head of land reform implementation, that they wanted to be treated as a special case and/or that the constitution be amended.

Land summit after land summit gave the impression of adherence to democracy and consultation. However, none of the resolutions got to be acted upon. Politicians and civil servants continued to argue against the reopening of especially the 1998 application and 1913 qualification cut-off dates. Arguments included issues of pragmatism; investor confidence; so-called tribal claims; and even the slow pace of restitution.

Lest we forget, the 1913 cut-off was the brainchild of the de Klerk government: “The government is of the opinion that a programme for the restoration of land to the individuals or communities who were forced to give up their land on account of previous policies or other historical reasons would not be possible. Apart from the vast potential for conflict inherent in such a programme, overlapping and contradictory claims to such land as well as other practical problems would make its implementation impossible.”(South Africa, 1991, p.6)

The question is why the South African government has not only failed to address the land question, but continues to rewrite the original wrong policies and pass legislation that do not differ significantly from the ones being amended. The example of The 2014 Restitution of Land Rights Amendment Act, which retains the 1913 cut-off date and only includes exceptional cases; and the latest Expropriation Bill passed in February and May 2016, which retains the controversial terms of compensation as provided in section 2(3) of the property clause: “The current use of the property; The history of the property; The market value of the property; The extent of the direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and The purpose of expropriation.”

Many commentators have correctly stressed that the property clause provides for not only market value. It is important to note firstly, that it is very difficult if not impossible, to apply all the measures in the terms of compensation in one land transaction. Otherwise, director general Geoff Budlender SC and then minister Derek Hanekom would have implemented all five terms of compensation in the first post-1994 administration.

It can be said on good authority that the Limpopo Provincial Land Reform officials successfully used the production value before the landowners insisted on market value and mostly, even more than the market value. The Land Bank also stopped determining the production value, abandoning the process to commercial valuers. Valuation is not an exact science, and several projects are aborted in so-called negotiations. Even a general valuer will face the same problem.

Secondly, in the light that to date the country does not have expropriation legislation, instead of blaming implementation, the good justices should consider the minimal land restored or redistributed unconstitutional. It took from 2008 to date to process a very important legislation and the end is not in sight, judging by the contestation from especially the Democratic Alliance and Freedom Front parties.

Lastly, the denial of justice through the delay from 1996 to 2018 means that the controversial market prices have skyrocketed. Land reform, even by the conservative controversial instruments, will become unaffordable until the real Zimbabwe scenario is reached. Lest it be forgotten, it was when the promised money to compensate white landowners failed to materialise, that the people took the land without compensation.

Further north in Kenya, writing on Obstacles to Uhuru, we were reminded: “Our government’s land policy was hobbled from the start by wrong policies inflicted on us during the negotiations for independence. The country’s Bill of Rights, negotiated as part of the Constitution, contains the key clause on property rights which obligates us to pay compensation for settler farms.” (Oginga Odinga, 1967/1984, p. 259) Forget about some South Africans claiming to have come up with the property clause in the 1990s.

In the original Bill for Restitution of Land Rights, farm workers and labour tenants were covered. However, the only change that was made before the Bill was passed into law, reversed that. Instead of “shall” in the Bill, in the Act they “may”. Needless to say that the change was the result of threats and pressure from white organised agriculture.

The farm workers and labour tenants, a category of Africans denied land and the backbone of white agriculture, are now the targets of the ever-changing policies and legislation as provided for by section 25 (5 and 6) of the property clause. The Extension of Security of Tenure Act of 1997 (ESTA), The Labour Tenants Act of 1996, The Share Equity Schemes Policy, and The Strengthening the Relative Rights of People Working the Land Policy, have all been a subject of discontent for the intended beneficiaries and a nightmare for the implementers.

People living on land owned by whites at the dawn of democracy in 1994 do not want to be evicted, legally or illegally, because they consider themselves owners of the land. Like all black South Africans, they were rendered landless by successive dispossessions. They became squatters and tenants on land their ancestors owned. Generations work from farm to farm and under successive owners. What makes them more vulnerable is the fact that their employers are also their landlords. Their wages include both shelter and food. And upon death, there is more than mourning as experienced in Limpopo:

“Native Life in South Africa as portrayed by Sol Plaatje around 2013 and dramatised by Maishe Maponya in 2005 highlighted the problem of landlessness through a family without a place to bury a child. At the beginning of November 2005, it is significant that landless farmworkers find themselves in the same situation.... The Department of Land Affairs sympathises with the Tshivula family for the loss of a beloved family member. We wish to say that this death and many such deaths, where people are denied the right to bury their dead, is a sad part of our history. The legislation to deal with evictions fails us when we deal with the right to bury a person. We do not have the luxury of time for lengthy negotiations. The family is distressed. Alternative accommodation seems very irrelevant for someone in the mortuary. We will provide land by all means.” (Letsoalo, 2005)

The landowner wanted much more than the market price and the price he had paid for the land. The case was lost in the Land Claims Court and the presiding judge Fikile Bam agreed to the request for appeal citing that the state lawyer could have presented the case better. However, the case is only the tip of an iceberg in the problem of implementing the property clause and land reform policies.

As indicated above, only about three to five million people were accommodated in section 25(7) of the Constitution for land restitution or equitable redress. The majority of the people formerly denied land ownership were relegated to section 25(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.”

No amount of contestation can change the fact that this provision is for “willing-seller-willing-buyer”. It was designed by the de Klerk government in 1991. The post-1994 government dutifully implemented the so-called Redistribution Programme through the 1993 Provision of Certain Land for Settlement Act (Act 126). From Settlement Land Acquisition Grant (SLAG) to Land Redistribution for Agricultural Development (LRAD) and Proactive Land Acquisition Strategy (PLAS), the government has provided funds to qualifying applicants for the purchase of land on the market.

Just how equitable is this? The Land Acts were abolished and black and white people could buy and sell land. Which black people had money to buy land? Initially potential beneficiaries of the Redistribution Programme did not want to buy land. They wanted land to be allocated to them for free. Under the Lancaster Agreement, the Zimbabwe government was the buyer of land, not the beneficiaries.

If the market value is contested for restitution, wherein the state is the buyer, then it is surely more of a burden for the landless masses who have to buy land under the misnamed Redistribution programme. This is more so for gender equity. Indeed, women being the majority of the poor, unemployed and at the bottom of the economic ladder, are the majority victims of the market-based land reform.

Arguably, the most controversial provision in the property clause is section 25(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.”

There is no explanation for the vocabulary, and the meaning of security is considered public knowledge. This is very problematic as the literature on political economy and agricultural economics attest. In South Africa, the history of the changing land tenure policies has always shown biases, myths, misconceptions and even deceptions (Cross 1991, Letsoalo 1991).

The democratic government inherited a dual regime of land or property rights for different geographic areas and racial population groups. The history of racial unequal distribution of land was accompanied by changing policies that denied the majority black population freehold tenure, and coercion of Bantustan residents to have freehold tenure in the 1980s. Significantly, at independence in 1994, communal tenure had survived the onslaught by the apartheid state. But, as the writer warned, communal land tenure may unfortunately be dealt a final blow by a black government (Letsoalo, 1994a).

The “legally insecure” meaning was finally revealed eight years after the 1996 Constitution when the aborted 2004 Communal Land Rights Act (CLARA) was passed: “To provide for legal security of tenure by transferring communal land, including KwaZulu-Natal Ingonyama land, to communities, or by awarding comparable redress,” (South Africa, 2004, p.2)

Why has the focus of insecurity become areas under communal tenure? Is it because of its association with traditional leadership? Or, is it simply because it is not associated with the freehold market security system? The undeclared decision to adopt freehold tenure for Restitution, Restitution and Tenure Reform is arguably unconstitutional. However, in the absence of an agreed definition of security in the property clause, the inferiority status of communal tenure that was promoted by the apartheid government has been endorsed by the democratic government.

The long road to the conversion of communal to freehold tenure in chapter three of CLARA had many confusing messages. Unlike its precursor, the 1991 Upgrading of Land Rights Act (ULTRA), which categorically declared communal tenure as inferior and acknowledged tribal ownership of land, the various Land Rights Bills culminating in CLARA introduced confusing concepts such as accredited land holder structures, old order rights and new order rights.

So-called accredited landholder structures had already been introduced in the controversial 1996 Communal Property Association Act (CPS). These are the structures that replaced traditional authorities. By omission or design, the Property Clause does not refer to a tribe, but to a person or community. The democratic government, thus, endorsed the colonial notion that a tribe or traditional community is not a legal person or entity. In both The Interim Protection of Informal Land Rights Act and CLARA, the indigenous landowners are referred to as beneficial occupiers of state land.

The celebrated Bafokeng tribe in the North West province fought a battle with especially minister Hanekom to be recognised as a landowner. This, despite having bought the land. Similarly, the Mphahlele tribe in Limpopo province spent several years pleading for their land, to name only the most persistent cases. Many gave up; and many land reform implementers were bruised.

What is indeed illegal if not unconstitutional, is that communal land was appropriated and registered in the name of the various whites only governments, later Bantustans and finally the democratic government. This legal dispossession was done in the name of trusteeship. The trustee who acts like the owner, refuses to restore ownership to the legal indigenous owners, and even alienates communal tenure in the name of development (Letsoalo and Thupana 2015).

What to do with the property clause

For the past more than 20 years the government has implemented the 1996 Property Clause. The country has been lauded for abiding with the supreme law of the country. The present analysis shows that justice has been delayed and it is time to go back to the drawing board. Many an analyst have spoken in hindsight. The present writer contributed to the various post-apartheid meetings from the late 1990s. The following contribution merits repeat in considering the way forward.

“A constitutional provision is required which attenuate the right to property and enable the state to expropriate land either by imposing a forced purchase or by confiscation (The latter is most unlikely if the present fragile negotiations succeed); and to redistribute the expropriated land. Respect for property may be very ambiguous and dangerous. Ownership means different things for different groups in South Africa. The constitution must categorically refer to all types of ownership must be accorded equal status.

A land reform law passed by parliament and should cover:

Terms of expropriation

The principle of restitution will be a powerful criterion for expropriating land from which a large sector of the population (3,5million between 1960 and 1983 only) was forcibly removed. The land can be easily identified and includes both freehold and communal ownership.

A land ceiling can free much land because of the immorally large holdings of whites. There are 15 agro-climatic regions. The average varies from region to region with 664 hectares in Natal and 2175 in the Cape. An average farm yields R147 000 (about US $12 250) per annum.

Under-utilised land is difficult to define. There is an apparent link between indebtedness and under-utilisation. However, this may be marginal land and therefore not ideal to make repossession meaningful. There is a strong argument for expropriation of prime agricultural land.

Abandoned land falls under restricted information and reports of the state paying whites to occupy border farms that were abandoned for security reasons place limits on this criterion.

The emergence of agricultural monopolies has made this criterion a clear possibility. For example, Anglo American, Volkskas, Sanlam and S.A. Mutual have acquired agricultural subsidiaries; and three big conglomerates own 54 percent of the forests.

Some farmers will voluntarily offer land for land reform. This land must fall under the terms of expropriation to bring it under the terms of compensation dictated by the Land Reform Law.

There is a high incidence of absentee landownership, particularly in the N.E. Transvaal where game farms are used for as little as three weeks by ownership urban centres and even foreign countries.

Theoretically, state land will automatically be inherited by a democratic government. The land reform law must state whether the land will be subjected to divestiture or exempted. The South African Defence Forces owns four percent of the land. The National Parks Board owns seven million hectares in game and nature reserves. The state owns 30 percent (430 000 hectares) of the forests. Bantustan governments also own land that is used as nature reserves and for state capitalist agriculture. The state further has a substantial stake in capitalist agriculture through the Land Bank and the Industrial Development Corporation. The government’s strategy of privatisation (land is being auctioned in both urban and rural areas) of national assets pre-empts land reform.

The landless people may invade or summarily seize land. Such invasions have already caused violent reactions that have united white conservatives and liberals. Under a democratic government invasions may subsequently be legalised.

Terms of compensation

The more the resources expended on land, the less the state will invest in production. Also, high compensation defeats the purpose of redistributing income. Protagonists of land reform are of the opinion that no compensation should be paid for stolen land and that victims of dispossession deserve to be compensated for loss of income, not the victims of repossession. Antagonists use the high cost of compensation to argue against land reform.

All factors considered, the Land Reform Law will make provision for cash payment for improvements and differential compensation depending on the category of land expropriated. For example, 10 percent cash and 30 years bonds for large size, corporate and voluntary sales; and 40 years bonds for the rest. The bonds may be indexated to make them worthless. Payment will be in local currency. Hopefully, no loans will be taken from the World Bank etc. as this would be suicidal.

Beneficiaries will not be expected to pay for land, as this would be a recipe for marginalising the very people land reform is purported to benefit. Affirmative action will be used to provide a supportive agricultural infrastructure, and Africans and women will be the beneficiaries.”[2]

Concluding remarks

The calls for nationalisation of land are being condemned from different quarters. The inequality wherein only the land, including minerals, of black people under communal tenure is nationalised whilst the land of mostly white people under freehold tenure is not only not nationalised, but also protected, is not recognised.

Writing elsewhere, the present author stated that, “Confiscation and Compensation are the least of the problems that will be faced in the redistribution of land by the future majority government. One issue that will have to be resolved is how to transfer the land to the landless majority population, that is, what social relations will be chosen by the people.” (Letsoalo 1994b, p. 214)

Archie Mafeje proposed that the African traditional land tenure systems, which recognise no individual ownership rights in land (freehold) but rather usufruct rights to which all members of the community are entitled, be recognised. However, he foretold that South Africa would follow other countries and commit to individual tenure because all South African Liberation movements uphold the bourgeois right ‘to buy and sell land’ (Mafeje, 1988)

The negotiated political settlement in 1994 precluded any confiscation of land. However, any postponement of the amendment of the Property Clause will render the reconciliation agenda futile. Currently the land does not belong to all who live on it.

* Essy M. Letsoalo is a Masters graduate of the University of the Witwatersrand, Johannesburg. She is the author of Land Reform in South Africa: A Black Perspective. She was the Chief Director responsible for the implementation of land reform in South Africa between 1995 and 2010.

References

Cross, C. 1991: Informal Tenure Against the State: Landholding Systems in African Rural Areas. In A Harvest of Discontent: Land Questions in South Africa edited by M. De Klerk, 63-98. Cape Town: IDASA.

Letsoalo, E.M. 1991: Land Reforms – State Initiatives. In M. De Klerk (ed) above 99-111.

1994a: The Land Issue in South Africa: Making Informed Decisions. Unpublished Compilation of Selected Papers. Available from author.

1994b: Restoration of Land: Problems and Prospects. In South Africa: The Challenge of Change, edited by V. Maphai, 202-220. Harare, SAPES.

2005: Press Statement. Polokwane, Limpopo Provincial Land Reform Office.

Letsoalo, E.M. & Thupana, M.J.J. 2004. The Injustices of Land Reform in South Africa: The Case of Limpopo Province (Published only in Italian). Archivio di Studi Urbani e Regionali, 79:49-64.

2013: The Repeal of the Land Acts: The Challenge of Land Reform Policies in South Africa. Social Dynamics: A Journal of African Studies, 39(2):298-307.

2015: Alienation of Communal Land in South Africa: A New Form of Dispossession? Occasional Paper No. 77, Cape Town, The Centre for Advanced Studies of African Society (CASAS).

Mafeje, A. 1988: The Agrarian Question and Food Production in Southern Africa. In Food Security Issues in Southern Africa, edited by K.K. Prah, 92-124. Maseru, National University of Lesotho.

Odinga, O. 1984: Not Yet Uhuru: An Autobiography. Nairobi. Heinemann.

South Africa, 1991: White Paper on Land Reform. Pretoria, Government Printer.

2004: Communal Land Rights Act. Act No. 11. Pretoria, Government Printer.

Terreblanche, S.J. 2002: History of Inequality in South Africa, 1652-2002. Durban, University of KwaZulu-Natal Press.

2012: Lost in Transformation: South Africa’s Search for a New Future Since 1996. Johannesburg, KMM Review Publishing Company.

Endnotes