Expropriation without compensation (EWC) offers no redress for past wrongs – it only empowers the state, not the individual, and will be used as a patronage tool and to deepen dependency on the ruling party.

Three recent court rulings have highlighted the extent of the government’s failures on all aspects of its land reform policy.

All three judgments also underscore why the ANC should not be trusted with yet more sweeping powers over land via the ‘expropriation without compensation’ (EWC) amendment to the Constitution it now seeks.

The first case (Rakgase v Minister of Rural Development and Land Reform) dealt with land redistribution. Here, 77-year-old David Rakgase had been fighting for 17 years to get the land department to honour its 2002 agreement to transfer to him the ownership of the farm he had long been leasing. For eight years land officials dragged their heels on the transfer. In 2010, the department did an about-face, refusing to sell him the farm after all. Instead, it offered him another lease and threatened to evict him if he failed to accept this.  In 2016, moreover, the farm was invaded by unlawful occupiers who argued that Mr Rakgase had no locus standi to evict them because he did not own the land.

In September 2019, the Pretoria High Court set aside the decision to deny him ownership as arbitrary, irrational, and unreasonable. It was unconstitutional too, the court went on. Land reform was a constitutional imperative, and Section 237 of the Constitution required ‘all constitutional obligations to be performed diligently and without delay’.

Yet Mr Rakgase was unlikely to outlive the 50-year lease (30 years first, and then another 20) he was now being offered under the State Land Lease and Disposal Policy of 2013. In addition, the department’s claim that Mr Rakgase had ‘security of tenure’ and faced no imminent prospect of eviction under these long leases ‘smacked of callousness and cynicism, particularly given our country’s historical deficiencies in dealing with land reform’.

The second case (Herbert NO v Senqu Municipality) dealt with the right to legally secure tenure which the Constitution also guarantees. Some historical background is needed here.

The process of providing secure tenure to black people – earlier denied under racial laws – began in the 1970s and 1980s, when 30-year and then 99-year leasehold were introduced, followed by freehold ownership. The process accelerated in 1991, when the National Party government adopted the Upgrading of Land Tenure Rights Act. This Act allowed people with various forms of insecure tenure to obtain ownership of the land they occupied. The statute applied primarily in township areas, but also covered (under Section 3) ‘any right to the occupation of tribal land granted under…indigenous law…or custom’, among other things.

When the Upgrading Act was adopted in 1991, it extended to the six self-governing homelands but not to the four nominally ‘independent’ ones: the Transkei, Bophuthatswana, Venda, and the Ciskei (the TBVC states). After 1994, the statute could easily have been extended to the entire country, but the ANC government delayed doing so until 1998. Even then, Section 3 was excluded from this extension. This barred people in the former TBVC states from the ownership benefits available under the statute.

In August 2019, the Constitutional Court ruled that the exclusion of Section 3 was unconstitutional and invalid. Section 25 of the Constitution, said the court, gave people the right to ‘tenure that is legally secure’. Yet millions of black people still living in the former homelands ‘continued to have the insecure land rights which were afforded to them during apartheid’. In particular, ‘many of them accessed and occupied land through the means of a permit to occupy issued by authorities’.

However, this was ‘not in line with the Constitution’ or the state’s ‘obligation’ to ‘respect’ and ‘fulfil’ guaranteed rights. By excluding Section 3, Parliament had acted in a manner ‘at odds’ with its constitutional obligations. ‘This shortcoming was compounded by the fact that there was no good reason for depriving those in the former [TBVC states] of the benefits brought about by the Upgrading Act’.

The third case (Mwelase v Director General, Department of Rural Development and Land Reform) was decided by the Constitutional Court in August and can be seen as dealing with an aspect of the wider restitution process.

This case dealt with the land claims submitted – not by people dispossessed of their land under racial laws from 1913 onwards – but rather by labour tenants. Labour tenants generally live and work on commercial farms in return for giving a portion of their own produce to the farm owner. Under the Land Reform (Labour Tenants) Act of 1996, labour tenants were given the right to claim the land they had long been using.

Some 19 400 labour tenant claims were submitted before the 2001 deadline laid down in the 1996 Act. However, as the Constitutional Court describes it, ‘administrative lethargy’ then set in and ‘the great majority of labour tenant applications were simply not processed’.

A complaint about slow progress went first to the Land Claims Court, which in 2014 ordered the land department to provide it with updated data on the status of these claims. But this was still not done, seemingly because the relevant records were ‘non-existent or shambolic’. In 2016, the department finally acknowledged that nearly 11 000 labour tenant applications still needed to be dealt with.

Commented the Constitutional Court: ‘Over nearly two decades…the department has manifested and sustained what has seemed to be an obstinate misapprehension of its statutory duties. It has shown unresponsiveness, plus a refusal to account to those dependent on its cooperation… And, despite repeated promises, plans and undertakings, it has displayed a patent incapacity or inability to get the job done.’

In response, the court confirmed that a special master should be appointed to oversee the processing of outstanding claims and remedy ‘failing institutional functionality of an extensive and sustained degree’.

All three judgments underscore the ANC’s callousness towards the vulnerable and marginalised. All three also underscore the ruling party’s inability to execute even simple and narrow land reform tasks.

The land department refused to honour its 2002 contract with Mr Rakgase and provide him with the ownership to which it had agreed. It delayed in extending the Upgrading Act to the entire country and then excluded a vital clause. It also failed over many years to deal with some 11 000 labour tenant claims, even when instructed to do so by the Land Claims Court.

The ANC nevertheless now wants to amend the Constitution to give itself the power of compensation-free expropriation. It also wants custodianship over all land in the country, as senior land official Masiphula Mbongwa stated at the World Economic Forum’s meeting in Davos in January this year.

But a government that cannot manage 11 000 labour tenant claims, a simple legislative amendment, or the transfer of ownership of a single farm to a deserving beneficiary cannot be trusted with such vast powers over land.

The Rakgase case shows too that the ANC has no intention of transferring the land it acquires via EWC into the individual ownership of black South Africans. Instead, its declared policy – as set out in the State Land Lease and Disposal Policy (SLLDP) of 2013 – is to confine land reform beneficiaries to leasehold tenure for 50 years or more.

The SLLDP, compounded by Mr Rakgase’s plight, shows the fraud at the heart of current land redistribution policies. That same fraud is intrinsic to the EWC idea. EWC offers no redress for past wrongs. It empowers the state, not the individual, and will be used by the government as a patronage tool and to deepen dependency on the ruling party.

Dr Anthea Jeffery, Head of Policy Research at the IRR, is the author of People’s War: New Light on the Struggle for South Africa, now available in all good bookshops and as an e-book in abridged and updated form.

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