Communal land will be the real headache in land reform saga
The ANC wants South Africans to focus on the nationalisation of commercial farmland (which it describes as “white land”, despite the fact that millions of black people are totally dependent on the success of these enterprises), and obviously this is the crunch area.
In some ways, though, land in traditional areas is actually more important to how South Africans really live, and it will be one of the sad outcomes of this disastrous policy choice that the focus on expropriation without compensation will take away any focus from what is called “traditional land”.
The ANC is inevitably going to have trouble controlling its ambit. And it doesn’t help that its partner in this enterprise, the EFF, wants all land, including traditional land, nationalised.
The ambit problem was very evident recently when President Cyril Ramaphosa rushed to KwaZulu-Natal to visit King Goodwill Zwelithini to assure him that the government had no intention of changing any aspect of the Ingonyama Trust, which owns about 30% of the land in the province.
“I assured him that [neither] government nor the ANC has any intention whatsoever to take the land from the Ingonyama Trust,” Ramaphosa said.
However, it’s worth noting that, technically, Ramaphosa cannot say that in all honesty because the constitution constrains him — section 25(6) specifically instructs the government to ensure that vulnerable land rights be made legally secure.
The history of this legislative space was that the pre-2009 ANC government had a white paper on the topic and proposed legislation not removing the power of the chiefs but trying to subject them to traditional law.
In 1996, the Interim Protection of Informal Land Rights Act (IPILR) was introduced, and it was supposed to be enhanced later. In the meantime, informal land rights were elevated to the status of property rights and the act provided that people may not be deprived of informal rights to land without their consent.
However, sadly for people in rural areas who were hoping for some kind of formal tenure rights, the Zuma administration came in and did an about-turn. Zuma oversaw the introduction of legislation that would not just undermine the title of rural people but erode the small gains made in the IPILR.
In 1999, Nomvula Mokonyane was appointed land affairs minister and stopped work on the draft Land Rights Bill that had sought to vest ownership of communal land with the occupiers and users of the land. Instead, she drafted the Communal Land Rights Bill (CLRB), which gave back the power to traditional leaders.
The legislation was then challenged and eventually went to the Constitutional Court. The legislation, which weakened the rights of rural people to their land, obviously contradicted the constitution, they said. The bill was duly changed and was due to be reintroduced in 2017, but even the new version is open to legal challenge and rural dwellers are still in limbo.
After Ramaphosa’s visit to the Zulu king, deputy president David Mabuza gave an interview to City Press in which the priority for the government was the 87% of land the former and colonial and apartheid administrations had held, not the 13% held mostly by black people.
IT SEEMS THE ANC IS TRYING TO CHANGE FOCUS FROM COMMUNAL LAND TO COMMERCIAL AGRICULTURAL LAND
But here is another problem. Mabuza’s numbers are politically charged and totally wrong. The amount of land involved here is not 13%, it’s about 37% of the total landmass of the country. About 8 million South Africans live on this land.
And there is another problem. One of the interesting aspects of the CLRB was that it gave the minister the power to hand over land held by trusts, something called Communal Property Associations (CPA), and individuals to the Traditional Council, that is the chief. The CPA land is particularly important because there is a lot of it – about 17 million hectares or 22% of SA. This is land that was bought by the apartheid government with the intention of handing it over to the Bantustan governments.
When democracy arrived, some had been handed over and some not, but either way it is now technically owned by the state. But to assist land reform, it was vested in 1,000 or so CPAs.
It seems the ANC is trying to change focus from communal land to commercial agricultural land. But when it turns out, as it will, that only a handful of ANC stalwarts will be given commercial farms and rural dwellers won’t even get decent rights to the land they have already, I suspect the ANC’s “bait and switch” tactic might be less convincing than the party would like. Cohen is Business Day senior editor.