Ronald Lamola
In line with the Freedom Charter that the "people shall govern", the ANC has listened to the voices of the people that came from all walks of life and made their views known during the public hearings of the Constitutional Review Committee, that the Constitution must make it explicitly clear that you can expropriate without compensation – in other words, remove any doubt.
At the core of the land question in South Africa is the question of how large-scale redistribution of land can provide redress for centuries of dispossession while contributing to the economy and the reduction of poverty, both rural and urban. The ANC's land reform policies are responding to these challenges.
The ANC's policies on the land question are in direct response to land dispossession and derived their roots from the communal land ownership of the indigenous people. To us in Africa land was always recognised as "belonging to the community". The land question is therefore not only an agrarian issue, but also a critical social question.
One of the difficult questions in South Africa, is that unlike in other countries where the peasants were the obvious beneficiaries of land reform, the answer to who should be the primary beneficiaries of land reform is not straightforward due to the history of land dispossession and colonial conquest.
People may have forgotten that the ANC was formed in response to the very issue of the dispossession of indigenous people's land in 1912. The formation of the ANC was in direct response to the Glen Grey Act of 1894, the provisions of which Cecil John Rhodes used to compel Africans to become wage labourers. The Glen Grey Act was eventually incorporated in the Native Land Act of 1913. This was meant to address the need for labour in the mining industry. The act forbade Africans to buy and own land outside the 13% of land reserved for their occupation.
When Rhodes introduced the Glen Grey Act in support of an argument for a hut tax to obtain labour for the mines, he said:
"You will remove them, the natives, from the life of sloth and laziness, you will teach them the dignity of labour, and make them contribute to the prosperity of the state and give them some good return for our wise and good government".
As a result, the majority of South Africans were converted into wage labourers. Forced seizure of land led to the disintegration of the African social and economic
The Native Land Act of 1913 has resulted in what has been called "a country of two economies" – a developed core that is well-connected to the international economy and a periphery of informal urban settlements and rural areas. The latter is characterised by weak local economies, low-wage, casual and seasonal work, low-income self-employment and hunger.
The ANC's policy on the land question evolved from the beginnings of our movement through to, amongst other key policy perspectives, the 1923 ANC Bill of Rights, the 1943 African Claims, the 1955 Freedom Charter, the 1991 Constitutional Guidelines and the 1993 Ready to Govern document developed on the eve of the ANC's assumption of state power.
Since its founding, the ANC has been committed to the struggle for the return of the land of Africans taken through colonialism, as exemplified by the following revolutionary proclamations from the 1923 Bill of Rights: "that the Bantu inhabitants of the Union have, as human beings, the indisputable right to a place of abode in this land of their fathers (and mothers)." And furthermore "that all Africans have, as the sons (and daughters) of this soil, the God-given right to unrestricted ownership of land in this, the land of their birth".
Consistently through this policy evolution, driven by active struggles, was the appreciation that the "land question" was a key pillar of our national democratic struggle. The ANC intentions on land reform have always been very clear from the onset that it is to redress the past injustices by redressing the 87% that was reserved for white people through the 1913 Land Act.
The Freedom Charter stated the following:
"THE PEOPLE SHALL SHARE IN THE COUNTRY'S WEALTH!
The national wealth of our country, the heritage of all South Africans, shall be restored to the people; The mineral wealth beneath the soil, the banks and monopoly industry shall be transferred to the ownership of the people as a whole.
THE LAND SHALL BE SHARED AMONG THOSE WHO WORK IT!
Restriction of land ownership on a racial basis shall be ended, and all the land re-divided amongst those who work it, to banish famine and land hunger ... All shall have the right to occupy land wherever they choose."
On the eve of the 1994 democratic breakthrough, Ready to Govern stated:
"Property rights of the majority have been systematically ignored and violated by apartheid. A new system of just and secure property rights must be created, one which is regarded as legitimate by the whole population. Property rights should not be in conflict with the public interest."
Further to the above the ANC position was articulated in the ANC Bill of Rights for a new South Africa. In terms reminiscent of the Freedom Charter, Article 12(1 &2) unequivocally stated:
"The land, the waters and the sky and all the natural assets which they contain, are the common heritage of the people of South Africa who are equally entitled to their enjoyment and responsible for their conservation. The system of property rights in relation to the land shall take into account that is the country's primary asset, the basis of life necessities, and a finite resource."
The ANC's 54th national conference contributed to this ongoing ANC policy development in its resolution to use, among other tools, expropriation of land without compensation to accelerate land redistribution to the people.
The ANC has always viewed the land as a means of production that all South Africans should have access to. There can never be a non-racial society without economic equality. It is clear from the above that the ANC policy on land reform has always been about redistribution of the land to the people.
The ANC NEC has reaffirmed mixed ownership of the land; that the land must be owned through the State for its use or lease to those who want to use it, communal ownership and private ownership (individuals and juristic persons). These forms of ownership are in line with the mixed economy in South Africa.
Our experience in government has taught us that taking ownership/custodianship has not transformed other sectors of the economy in which the State has done so, i.e. mining through the MPRDA and water through the Water Act. Despite State custodianship in the two mentioned sectors, they remain stubbornly untransformed. It is therefore a myth that immediate nationalisation of the land will give land to the landless. The land will be transferred to the custodianship of the State and the landless will still be landless. During this period what will happen to the properties? The vacuum will create confusion and mayhem to the economy.
The second myth is that such nationalisation will be without compensation; it is misleading the nation as such blanket expropriation and nationalisation will not pass constitutional master – it will be found wanting for irrationality. It will be difficult or impossible for the State to justify nationalising individual houses.
Since 1994, the ANC-led government has introduced various legislative instruments to drive land reform. It had envisaged that 30% of the land would have been distributed to the people through land reform programs by 2014. To date, less than 10% of the land has been redistributed/restituted.
The above distribution led to a subtraction in the 87% of the land and gave to the previously dispossessed. It is the ANC's intention to redress the 72% of the land that remains in the hands of white people akin to affirmative action.
The ANC government cannot leave an emotive social issue unattended; it is in the interest of social and economic stability that the racially skewed ownership patterns are addressed. The above graph demonstrates that while government did not promulgate a redistribution legislation as envisaged by Section 25(5) of the Constitution, it was able to redistribute more hectares of land through the land acquisition policy than with the land restitution program which has an enabling legislation and various institutions established to support restitution like the Land Claims Court and the Land Commission.
By the lodgement deadline of 31 December 1998 – 63 455 claims were lodged. Government reopened lodgement on 1 July 2014 for 5 years and over 160 000 new claims were received. The new lodgement deadline will end by 31 July 2019. Many more claims are expected. It is clear that these claims will not be settled during our lifetime. In fact, experts have argued that to complete the claims could take an estimation of 3-4 generations.
Therefore, for the ANC-led government to distribute land at an expeditious pace the NEC has resolved that redistribution legislation must be promulgated as a matter of urgency. This will enable government to satisfy the land hunger amongst the people in rural and urban areas with greater focus and determination.
Redistribution can target productive commercial agricultural land and well-located urban land. In this regard the ANC-led government will be able to assist to build a crop of emerging black farmers. With the well-located urban land government will be able to resolve the apartheid spatial planning by using such land to bring black people closer to their places of work in the urban areas (cities and towns).
For the ANC government to succeed in this regard central spatial planning needs give more teeth to the national government. This should go hand in glove with a land use management framework. It will curb the tendency of building shopping centers and golf estates in productive or prime agricultural land. It will also enable government to completely overhaul the apartheid spatial planning.
The market-based purchase of the land has slowed the process to acquire land and inflated the property market. The market-based compensation has also benefited apartheid beneficiaries other than the intended redress beneficiaries. The market-based purchase is not justifiable as it is not a constitutional requirement. The principle of just and equitable as defined by the Constitution does not mean market-related prices.
Many legal minds are of the view that the current constitutional framework provides for expropriation without compensation in certain defined circumstances through the provision of a law of general application in this regard it will be a new Expropriation Act. The just and equitable principle has not yet been tested by our courts, hence the ANC land workshop had resolved on a multipronged approach, that will test the principle of "just and equitable". The workshop also resolved to use the current ongoing constitutional review process to remove any ambiguity in this regard from the Constitution.
The ANC national lekgotla responded to the voices of the people by resolving to propose a constitutional amendment that will make it explicitly clear that you can expropriate without compensation. The resolution to amend does not mean government will abandon the process of testing the principle of "just and equitable" through test cases and the promulgation of an expropriation bill that will make it clear that you can expropriate without compensation.
It is important that government should proceed with the test cases and the Expropriation Bill as the Constitution allows for it to be done. Even if the Constitution is amended you will still need an enabling legislation. Furthermore, we still need to develop legal jurisprudence in this regard. The above will be accompanied by a comprehensive program of agrarian reform which is aimed to restructure the class relations of farming and the agricultural sector, including systems of inputs supply, production, processing and marketing aimed at overturning inherited patterns of racial privilege, deep rural poverty and spatial inequality.
The ANC-led government should use the experience acquired in the past 24 years in government to accelerate the pace of land reform. Experience has taught us to build State capacity to effectively implement this program. Without skilled and well-capacitated government officials the program of land reform will remain a pipe dream.
- Ronald Lamola is an ANC NEC member.
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