“In politics there always exists an ensemble of possibilities more or less open, depending on the issues, but rarely completely closed.
"It is here that what we call ‘prescriptions on the state’ can take root.
"To prescribe to the state is to assert as possible a different thing from what is said and done by the state.”
Sylvain Lazarus, quoted by Michael Neocosmos in Thinking Freedom in Africa, Toward a Theory of Emancipatory Politics
Rural communities have, in many ways and for some time, been part of visionary politics and engagement with the state.
They have had significant successes in their resistance to laws that dispossess them of meaningful citizenship and their inalienable rights to land.
They have pushed back the state-defined imposition of customary law centred on traditional leadership.
Many of these struggles and victories remain unknown because, even in 2017, few are able to imagine poor people possessing agency and capable of rebellion.
This is true of politicians who think that pandering to traditional leaders will placate rural voters.
It is also true of many members of the urban-based middle class, who think that rural struggles do not merit serious analysis.
Despite its patronising treatment of rural-based citizens and the urban poor, the ANC is aware of the strategic importance of people who live in economically marginal communities.
This is evidenced by the frantic rhetoric on land expropriation without compensation.
A fundamental character of populist politics is the ability to capture the imagination of the public based on a legitimate issue, as is the case with land, and pervert it to suit a limited political agenda.
The report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, released in November, confirms what many rural and urban poor people knew and have said all along.
The panel notes that the slow and unsatisfactory pace of land redistribution and land reform is not due to constitutional constraints.
Section 25(3) of the Constitution provides for expropriation powers.
The panel further notes that all categories of “positive rights”, as enshrined in sections 25(5–7) regarding redistribution and restitution, have been implemented in a manner that is highly unsatisfactory.
“These rights are not being adequately promoted, enforced and protected.
"Instead, they appear to be under attack from policies and practices that redirect the benefits of land reform to potential political alliances with specific elites,” the report’s authors write.
For example, the budget for land reform is only 0.4% of the national budget, with less than 0.1% for land redistribution.
Consequently, even if there were to be expropriation without compensation, the allocated amount would be severely inadequate for land reform.
Recipients of redistributed land require financial and technical support.
Problems
Land redistribution has been beset by a number of problems, including lack of control and meaningful ownership, as evidenced in the arrangements of strategic partnerships with mostly white ex-farmers hired as consultants and mentors.
In reality, this has converted recipients of redistributed land into tenants.
If the problem is neither the Constitution nor funding, then what is it?
The answer relates to lack of political will, incompetence, cronyism and poor translation of the Constitution into and implementation of policies.
Laws and policies are enforced selectively, mainly to benefit the political, neo-traditional elite and mega projects of the private sector.
From the platinum belt in North West to KwaZulu-Natal’s iron ore and coal mines, the extractive industry has operated with little regard for rural communities.
The cost of environmental degradation and dislocation is borne by rural citizens.
They live in wastelands where they cannot grow crops and are affected by acid mine drainage and excessive drilling (from mining), which leaves the walls of their houses cracked with compromised foundations.
Reading the report of the panel, I remembered, with great shame, a community in Mpumalanga which has been waiting for more than 19 years for land restitution.
There are 19 000 land claims which have not been settled.
Such backlogs create tensions between claimants. There is no mediation process which helps people resolve these tensions.
I also remembered the events of January 2014.
A few weeks before the Mala Mala case was to be heard in the Constitutional Court, government decided to settle out of court and paid R1bn.
On the eve of the ANC’s 101st anniversary, President Jacob Zuma announced the R1bn settlement.
Reports of conflict of interest about former SanParks CEO, David Mabunda, surfaced.
As expected, these petered out and eventually faded into irrelevance.
Institutional failure
The land tenure programme has seen massive institutional failure. Neither rural-based citizens nor farm dwellers have security of tenure.
For rural-based South Africans, the legislative programme mirrors that of the apartheid Bantustan era, with rights severely curtailed.
They are partly citizens of the Republic of South Africa and partly subjects of their traditional authorities.
Their status is based on rigid geographical location and unimaginative legislative and policy development, which mirrors apartheid spatial design. This is not unique to South Africa.
Many postcolonial societies seem to struggle to reimagine geographic design that breaks with colonial legacy.
The panel notes the vacuum created by lack of overarching legislation and policy on land.
As lived experience shows, without a common vision on land ownership, it is impossible to undertake meaningful structural transformation.
“No law currently exists to give meaning to or set standards for measuring whether land reform enables citizens to gain access to land on an equitable basis,” the panel’s report reads.
“This law will provide guiding principles and definitions for terms such as ‘equitable access’.
"It will also provide for institutional arrangements, requirements for transparency, reporting and accountability and other measures to ensure good governance of the land reform process.”
Reproduction of apartheid spatial geography and logic sounds abstract, until one is hit with this basic reality.
Rural-based citizens are making the best out of what they did not choose, half citizens and half subjects.
They contest the nature of differentiated citizenship, which makes them non-rights-bearing citizens.
For almost a decade, these people have fought and many have risked filial bonds, life and limb for the right to be seen and treated as full human beings and full rights-bearing citizens.
Land is not just about land.
It is a metaphor for freedom, belonging and security.
Both arms of government, the executive and Parliament, have failed to grasp this fundamental fact. This cannot be addressed by one or two departments alone.
The panel’s report provides a basis to revisit the land and agrarian reform project in South Africa.
This requires deeper analysis and translation to legislation, policies and programmes.
Populist fantasia is not going to address these fundamental questions.
- Gasa is adjunct professor at the School of Public Law and senior research associate at the Centre for Law and Society at the University of Cape Town. She is a researcher and writer on politics, land, gender and cultural issues
