ALL ASPECTS OF land reform are complex and emotive.
Throughout history and across geographies, people’s ties to the land
are closely linked to their own cultural identity and economic
position, and are often fraught with periods of upheaval. In South
Africa this is profoundly complicated by our colonial and apartheid
history, legacies that have always loomed large in government’s
approach to land reform.

In the early 1990s, even the
deeply divided negotiating parties recognised the importance of
addressing land ownership as a critical condition of economic and
social stability.

Land reform as a policy priority has had some successes, but also
abject failures. This partly explains the calls for expropriation
without compensation, but it is not the only reason.

Years of poor
service delivery, falling per capita GDP and widening inequality
have all contributed to extreme social frustration, but the failure to
distribute land more equitably is an obvious focal point. There is a
the political explanation, which also needs to be recognised.

The recent focus on expropriation without compensation, while
critically important, detracts from the wider issue – the severely
Land reform under new leadership – both risk and opportunity
By Marie Antelme
POLITICS
Marie is an economist
with 17 years’ experience
in financial markets.
She joined Coronation
in 2014 after working
for UBS AG, First South
Securities and Credit
Suisse First Boston.
Matters of land
APRIL 2018 7
unequal distribution of ownership patterns in South Africa is
undesirable and unsustainable, and has to change. However,
any disorderly or confusing policy directives perceived to contest
private property rights could quickly undermine both stability
and growth.

The enormous challenge for the government now is to
implement a programme of equitable land reform while containing
the manner in which this is achieved.
In this short note, we cannot hope to address all the relevant
and complicated issues that form part of the umbrella term
‘land reform’. What we do hope to achieve is a better understanding
of the context by which the ANC came to adopt land
reform as a resolution after the elective conference at Nasrec
in December last year.

We look at the history of the ANC’s land
reform programme and offer some views on the path ahead for
the new resolution.
LAND REFORM HAS ALWAYS BEEN AN ANC POLICY
PRIORITY
In the early 1990s, after a number of failed negotiations, the 26
parties of the Multi-Party Negotiating Process agreed to the priorities
that would ultimately be the framework for the national
constitution. The highly unequal distribution of land ownership
was widely recognised as a key legacy of the past, and one which
directly contributed to broader issues of wealth and power concentration,
and entrenched rural poverty.

Despite this, negotiations
were protracted and heated, resulting in intentionally vague
the wording in the final draft, which was left open to judicial and
other interpretation.
The institutional framework for land reform was entrenched
in the Bill of Rights in the Constitution in the ‘Property Clause’
(Section 25). This includes three rights to land – equitable access,
tenure security and restitution. It provides for the protection of
property rights as well as the expropriation of land for both
‘public services’ and in the ‘public interest’ for ‘just and equitable’
compensation.

Land reform falls firmly in the ‘public interest’ provision and ‘just
and equitable’ compensation takes into consideration the full
history and use of the land in question, possibly allowing compensation
from zero up to market price. The 1913 Land Act was
intentionally included as the starting date against which both
the right to restitution and the right to secure tenure were to be
measured.

Land reform was identified as a key programme to be adopted
by the incoming democratic government, with multiple objectives
of delivering restitution for dispossession, driving rural development,
creating jobs, raising income, and alleviating poverty and
inequality.

The potentially positive wider impacts of land reform
were thus strongly emphasised from the outset. The ANC government
embarked on an ambitious land reform programme early in
1994. It had three component programmes which were intended
to be complementary:

1. The land redistribution programme to broaden the black
majority’s access to land. The target was 30% of land in the
first five years.

2. The land restitution programme to restore the land to or compensate
people dispossessed of land as a result of racial discrimination
after the 1913 Land Act.

3. The tenure reform programme to secure the rights of people living under insecure arrangements on land that they did not
own, including land owned by the state (including former
homelands) and by private individuals, including farmland.
To deliver redistribution, the Constitution provides for the state
to ‘take reasonable measures’ ‘within available resources’. This is
an important condition to remember, as it informs the new policy
debate.

LAND REFORM UNDER THE ANC: SUCCESS AND FAILURE
Early progress with land reform was slow. From 1994 to 1999,
various laws were passed to build a consensus on land reform,
and restitution claims were submitted to a deadline of

December 1998. The focus was primarily on helping the poor. A
total of 63 455 land claims were lodged, about 88% of which
were by individuals or groups in urban areas. An audit showed
that some of the claims were ‘bundled’; the number of claims
was therefore revised up to 79 696 in 2007. By March 1999,
only 650 000 hectares (less than 1% of private farmland) had
been transferred under various pilot schemes aimed at funding
groups of people to enable commercial operation of transferred
farms. Some progress was made with early legislation to ensure
the security of tenure (mostly halting illegal evictions), but this then
stalled and has never recovered.

During Mbeki’s presidency from 1999 to 2009, the pace accelerated.
The focus shifted from meeting the land needs of the poor to
the transformation of commercial farming. The land redistribution
target of 30% was moved to 2014. By the end of 2009, the government
reported that 3.04 million hectares had been transferred to 185 858
beneficiaries. The restitution programme had settled 75 787 claims
by that time, most of them urban, and most of these saw claimants
compensated for property. Some 1.5 million people benefited.

However, problems dogged all the programmes. Official processes
were incredibly slow and there was poor coordination
between departments, with Agriculture and Land Affairs often
passing regulations in conflict with each other. Some of the provisions
in the regulations made both transfer and management
of farms problematic. Grants had to be pooled to buy large tracts
of land, but subdivision was not allowed. Technical support for
emerging farmers was woefully inadequate and many thriving
commercial farms failed. Corruption and collusion by both
private and public entities were rife.

By 2009, land reform was perceived to be in deep trouble and
public opinion plummeted. With the global financial crisis and
domestic recession, the state had also started to run out of financial
resources to fund it. A number of diagnostic investigations
suggested that government had not used ‘reasonable measures’
or ‘available resources’ to their full extent or aggressively enough
in delivering bigger transfers or finalising restitution claims.
The period from 2009 to date was characterised by a considerable
slowing in delivery as well as a substantial increase in rhetoric

8 CORRESPONDENT
and associated legislation about the importance of land reform,
not least with the emergence of the Economic Freedom Fighters
(EFF) in the 2014 elections. The raft of new regulations passed
during this time complicated the land reform programme enormously.
Importantly, a new Expropriation Bill was introduced in
2015 and approved in 2016. It aims to bring legislation governing
expropriation, currently dating back to 1975, and applicable only
to ‘public use’, in line with the Constitution.

It also gives clarity to
the ‘just and equitable’ provision in the Constitution, which may
be an elegant way of circumventing any debate about needing
to change the Constitution. The Bill has not yet been enacted.
Within this context, the ANC formally adopted land reform
without compensation as a resolution at its elective conference
in December 2017. It is very clear that 24 years after the initial
the programme started the slow pace of progress on all three programmes
has been an increasing source of frustration for many
people who are still landless, impoverished and extremely vulnerable.

The situation is exacerbated by mounting discontent
with very weak general service delivery, the very low level of
economic growth prevailing over the past 10 years, falling real
per capita GDP seen over the last five years and associated
rising inequality.

Prioritising this more populist approach to a long-held policy also
has a political aspect. First, the ANC has captured the radical
rhetoric of EFF leader Julius Malema, providing the opportunity
to both deliver on this priority and manage the way in which the
programme is implemented. Secondly, expropriation was championed
within the ANC by the losing presidential candidate,

Nkosazana Dlamini-Zuma. By formally adopting this resolution,
her backers have leverage over the president in terms of delivering
on this policy. What we do know, however, is that this issue is
combustible, and if it is not contained in a rigid policy framework,
it could have severely damaging socioeconomic consequences.

WHAT IS THE LIKELY PATH FROM HERE?

Time is of the essence. The government needs to put a framework in
a place that can deliver effectively and transparently both land
and/or title to landless people on some scale, before the process
becomes disorderly. It also urgently needs to manage the parameters
of how a new programme is communicated.
There is little concrete by which to assess the new approach to
land reform, but there are a few things we do know. The first
an issue to clarify relates to a resolution passed by parliament – in
February, the National Assembly passed a motion to review the

The constitutional provision for the expropriation of property (land)
without compensation. This was not the original, more extreme,
the motion brought by the EFF, which called for an amendment of
the Constitution, but rather a commitment to review the provision.
This was approved by 241 votes to 83. The Constitutional
Review Committee has until 30 August to report its findings and
make a recommendation to parliament.

There is a considerable legal debate about whether or not ‘just
and equitable’ compensation could already be interpreted to
include zero compensation, but it is necessary for this to be
decided once and for all. Even a recommendation to change the

The constitution may not guarantee it passes, because of an amendment
needs a two-thirds majority in the National Assembly,
which means the ANC will need the EFF’s backing. At this stage
it is clear that the two parties have very different views of how
a policy of expropriation of property should look.
Next, it is clear that any new policy will also not just be about
agricultural land; it will be about all land, public and private.
The state and state-owned entities

hold vast tracts of land that
can be utilised. Throughout the land redistribution programme,
the state has been accumulating farms (estimates suggest 4 500
to 5 000 farms are owned by the government) in addition to urban
and peri-urban land. President Ramaphosa has called for an
audit to accurately identify government land which could be
used to establish a precedent. In addition, inner-city absentee
landlord properties and private land on which there are established
informal settlements could be opportunities to invest,
improve the quality of infrastructure and establish ownership.
The government

needs to strengthen the legal framework within
which a new programme will operate. There are few judicial
precedents of challenges to compensation policies for land
transfer. Thus amending and expediting the Expropriation Bill
(2017) may provide clarity and help establish some jurisprudence.
Lastly, the process needs buy-in. Both president Ramaphosa and
ANC veteran Jeremy Cronin have committed to extensive consultation.
It is clear that many people are angry, or frightened
by the proposals, but also that the current situation is unsustainable.
Clearly stating the conditions under which expropriation
without compensation may be used, possibly on a case-by-case
basis could help rationalise the debate. Focusing attention on
assisting the very poor and vulnerable linked to other efforts to
reduce poverty might strengthen social commitment.

CONCLUSION

The critical and sensitive nature of land reform in South Africa
demands strong leadership, clear principles to follow and efficient,
consistent implementation with visible lines of accountability.
Should South Africa fail in this undertaking, it would
leave us vulnerable to the kinds of populism that can lead to
chaos.
Land restoration in practice is unlikely to be possible in all cases and
it will take competent leadership, which has been sorely lacking, to
communicate that appropriately to communities. It is important
that a moral purpose is instilled in the process, as the implementation
requires sensitivity and respect between South Africans of different
backgrounds. In many circumstances, financial settlements
are the only way to compensate people.

This compensation can
only come from the government, given that land ownership may
have changed hands numerous times over the years.
For a lasting solution, we need to recognise the different spiritual
and cultural needs of South Africans to reach a mutual understanding.
While the concept of land ownership is complex, speaking
not only to material needs but also to the spiritual significance of
specific land, at its heart, is restoring dignity and cultural rights to
our people.