The pariah must return
ANC MPs were right in upholding section 25 of the Constitution against populist opposition as it mandates land redistribution
There has been an unprecedented focus on the land question over the past few months. This not surprising, given that this question is, and has always been, the central grievance of the country’s African majority, who were dispossessed and forcibly removed from the land.
In the memorable phrase of Sol Plaatje, the ANC’s first secretary-general from 1912 to 1915, because of land dispossession, “the South African native found himself … a pariah in the land of his birth”.
In the heat of recent debates, some have suggested that section 25 of South Africa’s Constitution, which protects and regulates property rights, may be a culprit. Such arguments are plainly wrong.
In fact, section 25 provides a framework for the resolution of South Africa’s land question. It mandates land redistribution; it does not stand in its way.
The key question is not whether section 25 serves as an obstacle, but rather, whether our policies have lived up to the Constitution’s clarion call for the state to undertake programmes of land restitution and land redistribution.
As retired Deputy Chief Justice Dikgang Moseneke has so clearly explained: “The land question was foremost at the time of the formulation of the Constitution. This is displayed in the careful formulation of the property clause, which is often more maligned than carefully scrutinised … The Constitution does not protect property; it merely protects an owner against arbitrary deprivation.
“Deprivation that is not arbitrary is permissible. The property clause permits expropriation of land by a law of general application, provided it is for a public purpose or in the public interest … The property clause does not carry the phrase ‘willing buyer, willing seller’, which is often blamed for an inadequate resolution of the land question.
“The state’s power to expropriate does not depend on the willingness of the land owner. The compensation may be agreed, but if not, a court must fix it. The compensation must be just and equitable, and not necessarily the market value of the land. Market price is but one of five criteria the Constitution lists for a court to set fair compensation.”
Furthermore, Moseneke laments the fact that: “In 20 years, our court has not resolved even one case of land expropriation under the property clause by government for a public purpose. Similarly, in the same time the courts have never been called upon to give meaning to the property clause in the context of land expropriation or to decide on what is a just and equitable compensation.
“One would have expected that a matter so pressing as land use, occupation or ownership would predominate the list of disputes in the post-conflict contestation.”
Moseneke’s is a telling criticism. The pace of land reform in South Africa has been very disappointing.
Nevertheless, it is very important that as the ANC puts policies in place to accelerate the land reform process, we must remain firm in our conviction that land reform will only be sustainable, broad-based and effective if it is undertaken in an orderly fashion, based on sound economic and legal principles.
In this regard, the ANC’s focus is not only to provide people with access to land as an economically productive resource, but for the ANC to understand land as a place to live and a place to restore human dignity.
As far back as the early 1990s, the ANC, in our Ready to Govern document, argued that we must take account of the need to maintain food supplies and to provide equitable and orderly procedures to ensure land restitution and redistribution would take place as smoothly as possible.
In pursuit of these objectives, different land types were identified for redistribution, which included: land held for speculation; underutilised land or unused land with productive potential; land which is being degraded; and hopelessly indebted land. To this list, we must add state land. It is the ANC’s stated policy that market forces cannot resolve South Africa’s land question. In fact, leaving the matter to the market would likely exacerbate current inequalities. As the ANC asserted in Ready to Govern, an equitable balance must be struck between the legitimate interests of present titleholders and the legitimate needs of those who require land for livelihood and shelter.
It would be unjust to place the whole burden of the costs of transformation on the shoulders either of the present generation of titleholders or on the new generation of owners. As such, the state should shoulder the burden of compensating expropriated titleholders where necessary.
Consideration should also be given to the fact that land reform would be accelerated if it were to be legislated that the state should have the right of first refusal in the sale of land. This would assist in making speculated-upon and hopelessly indebted farms available to the state.
Additional measures, such as tax instruments, to discourage people from keeping land for speculation and requiring them to sell unused land to the state, should also be considered.
A full audit of land holdings in South Africa would also be of crucial assistance in resolving the land question. In this regard, the implementation of policy resolutions adopted at the ANC’s December 2012 conference, held in Mangaung in the Free State, would be very helpful as these resolutions include the establishment of a Land Management Commission and the setting up of a Valuer-General’s office to evaluate land which is in the process of being sold to government.
Crucially, ANC policy encourages the productive use of the land. This, in reaction to the fact that land in rural areas and some land, secured through restitution, is hopelessly underused.
The land that has been acquired either through restitution or redistribution is, in a number of cases, degraded and in disrepair. This is as a result of the absence of support measures for the beneficiaries.
It is important that the land must be productive to maintain constant food supplies and ensure the wellbeing of beneficiaries and rural communities more broadly. Successful land reform requires an integrated approach.
A word of warning is that not only would the removal of section 25 from the Constitution be of little assistance in resolving South Africa’s land problems, its removal may also have negative unintended consequences. The negative effect on investor confidence would surely be significant.
If investment levels were to fall across a wide range of sectors, this would bring tremendous hardship to an economy already struggling with low growth. Unemployment and poverty levels would rise and reduced tax revenues would in effect cripple many of the programmes being rolled out by South Africa’s developmental state.
We should also learn from Venezuela, which nationalised without compensation a number of companies in different sectors of the economy. Some of these companies took Venezuela to the Arbitration Tribunal of the International Centre for Settlement of Investment Disputes. In almost all the cases, the ruling was in favour of these companies.
By removing section 25, we may unintentionally take power to determine expropriation disputes on the basis of a “fair and equitable” principle away from our courts. In fact, we may risk handing judicial authority to external bodies, such as the international centre for dispute settlement mentioned above, to determine our land valuation disputes simply on market principles.
In observing the recent debates on land reform and the simplistic, counterproductive suggestions that are being raised by certain opponents of the ANC, it is obvious that South Africa is not immune to the growing global phenomenon of populism.
We need to think carefully how we respond to such populism to most effectively neutralise it.
The Latin American economist, Andrés Velasco, warns: “Anti-populists … must come to terms with the reality that bad policies pay off, both economically and politically, long before they become toxic.”
In other words, it will not be enough for the ANC and South Africans at large to simply label ideas as “populist” and then assume they will be defeated.
The best way to defeat populism is rather to develop economically and legally sound programmes that have the potential to radically address the needs of the majority of the population.
It is this vision that informs the ANC’s commitment to a programme of radical economic transformation.
When applying such thinking about radical economic transformation to the current debates on land reform, we are required to base our interventions on three important pillars.
Firstly, we must work within the mandate and the progressive, redistributive framework of section 25 of our Constitution, or the unintended negative consequences for the welfare of our people may be significant.
Secondly, as a nation, we must give our own meaning and substance to the notion of fair and equitable compensation, in order to replace purely market-based valuations such as the so-called willing buyer, willing seller approach. If we give up our self-regulation of such matters – for example, by removing section 25 from the Constitution – then we risk losing our policy sovereignty as such disputes may come to be decided upon by foreign-based arbitration bodies.
Thirdly, for the sake of sustainability, food security and economic progress, land reform must be combined with effective programmes to increase the productivity of land use in many parts of the country.
For all of these reasons, ANC MPs were 100% correct when they chose recently not to vote with an opposition motion to abolish section 25 of the Constitution.
Perhaps they could have argued the case more forcefully, but ANC MPs should be applauded for their steadfast commitment to existing ANC policy on the land question, as well as to South Africa’s Constitution, to good governance and to true radical economic transformation in the face of meaningless, self-serving, populist slogans from parts of the opposition.