‘Custodial taking’ deserves attention
Your feature on land reform “Gaining ground”( Features, April 5-11) did a great service by referring to the idea of a custodial taking of land. This is an element of the land issue that has received remarkably little attention in the current debate.
Your article correctly points out that this is the position of the EFF. A custodial taking would deprive owners of many of the rights of ownership that they now enjoy, and would grant the state extensive rights to intervene in the management and disposal of individuals’ property. Interestingly, doing so could probably be achieved without the payment of compensation, since the constitutional court ruled in a 2013 judgment that a custodial taking did not count as expropriation. (The court emphasised that its judgment was valid only in respect of the case before it at the time, but the reasoning would probably be effective elsewhere.)
In many respects, the practical effect of a custodial taking on property owners would not differ greatly from expropriation. No-one, large or small, black or white, would really “own” land.
Variants of this option have, however, been floated before, and not by the EFF. Back in 2010, land affairs directorgeneral Thozi Gwanya suggested that an option to expedite land reform would be for all agricultural land to be declared a “national asset”. Farmers would lease land and pay the state rents.
The 2014 Preservation & Development of Agricultural Land Framework Bill initially included a clause to make the state the custodian of all agricultural land. This has since been removed.
The recent land audit of November 2017 proposed an overarching land law, which would “vest land as the common property to the people of SA as a whole”, clearly suggesting either outright nationalisation or “custodianship”.
While it is encouraging that there are voices within the ANC and government that have expressed opposition to this plan, it must be recognised that it remains very much on the table.
It is also important to note that the future of landholding in SA will not be governed solely by the debate around expropriation without compensation. Other proposed legislation — such as the Preservation & Development of Agricultural Land Bill, suitably revised to include the custodial clause once again — might be used to achieve these policy objectives.
This is a big issue, with many actors, objections and moving parts — we dare not lose sight of any of them.
Project manager, Institute of Race Relations, Johannesburg