To understand how a phenomenon will unfold in the future, a good starting point is to look to how it developed in the past, and how it manifests in the present.
For close on two years, the big political question has been the future of property rights, with the African National Congress (ANC) seeking to introduce a policy of Expropriation without Compensation (EWC). It is a matter of grave importance for the country’s economic prospects, as well as for the future of constitutional governance. Both in South Africa and abroad, observers watch this tensely.
The assent given by President Ramaphosa to the Traditional and Khoi-San Leadership Bill may be an important signpost of what is to come.
This legislation has been widely criticised as a betrayal of millions of South Africans living under traditional authorities – essentially denying them their full constitution-conferred citizenship, and replacing it with subjecthood.
A noteworthy point of contention – and revealing for property rights – is Clause 24. Entitled ‘Partnerships and Agreements’, it empowers traditional councils (these are bodies established to assist traditional leaders in their duties, and in the management of customary law) to conclude agreements with local governments, government departments and ‘any other person, body or institution’. It is this power to contract that has prompted particular concerns.
This has the effect of granting a small group of elites the right to cut deals on behalf (and over the heads) of the communities over which they preside. True enough, the law does try to qualify this with requirements for consultation and for such agreements to ‘be beneficial to the community represented by such council.’ In practice, it is unclear what this will mean, and whether it will have any substantive teeth.
Foremost among the problems this may throw up is land allocation. Land is important for accommodation, and, for people who are dependent in some measure on farming, it is central to their livelihoods. A prime fear is that traditional councils could alienate the land of their subjects from under them, with very little regard for their interests – but perhaps with very much regard for the interests of traditional leaders and their associated notables, as well as favoured business or political interests.
As social worker and commentator John Clarke has remarked: ‘This is where an ominous legislative agenda is still being pursued that undermines the property and citizenship rights of 18 million South Africans, making them vulnerable to dispossession by traditional leaders acting in collaboration with foreign and local companies.’
The thrust of policy has an uncomfortable symmetry with both the distant and recent past. Most black Africans were excluded from freehold ownership of land by the various white regimes that predated democracy. This was justified largely on the basis that Africans needed a culturally appropriate and legally distinct system of landholding.
The report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, under former President Kgalema Motlanthe, put it thus: ‘This opened the way to the approach that saw black people as perpetual tenants on the land they occupied and used; their land rights were of “second-class status”. These rights were generally subservient, permit-based, or “held in trust” by the government or the South African Development Trust.’
Very little has been done since 1994 to alter this. And, for this reason, landholding and property rights for millions of South Africans – especially those in the domains where this legislation will operate – remain distressingly insecure and untransparent.
The Financial Mail recently ran a cover story about the Ingonyama Trust, which holds some 2.9 million hectares of KwaZulu-Natal in the name of the Zulu monarch. It sets out a picture of the Trust’s indifference towards (and outright abuse of) those who live on its lands. A new leasing regime – through which the Trust has sought to replace the old ‘permissions to occupy’ – has been especially contentious, for it has imposed rental obligations on the residents. Failure to pay carries the threat of eviction. For this, the residents receive little: in 2018, the trust spent 95% of its budget on administration, and less than 1% on rural development and land management combined. In addition, there have been claims of harassment, of sweetheart deals with businesses and connected insiders, and even of the Trust asserting its authority over land that did not belong to it. Protests to government seem to have been ineffective.
Yet the Trust regards itself as an expression of African customary law, and as providing necessary protection of the land’s residents from themselves. With ownership, they might use their land for collateral and lose it, claims its chairman, former judge Jerome Ngwenya. The reasoning, here, echoes that of the past…
The new legislation is likely to entrench this state of affairs. Not for nothing has it been described as a ‘Bantustan Bill’.
What does this tell us about the future? It indicates that proper, secure property rights – and certainly in the sense of proper, titled ownership – is off the table for millions of South African citizens. This in turn gives good reason (if any is still needed) to doubt government’s assurances that its EWC drive is about enhancing ‘the property rights of all South Africans, not just a few’. Here, in legislative form, is firm evidence to the contrary.
All of this should be read alongside the government’s Land Lease and Disposal Policy (which retains ownership of redistributed land in state hands); its dogged defence of its abrogation of an agreement to sell successful black farmer David Rakgase the land he was working (for ‘Black farming households and communities may obtain 30-year leases, renewable for a further 20 years, before the state will consider transferring ownership to them’); and the remarks of several senior figures in the ruling party and government that the state should take ‘custody’ of all land in the country.
A disturbing vision of the future emerges.
This is one in which the state has established itself as the country’s sole landholder, along the model of water or mineral rights. This, as we at the Institute of Race Relations have long warned, is a very real policy option. It also appeals to many in the country’s political elite for reasons of both ideology and raw power. It would give the state some strong-arm leverage on farmers, businesspeople and homeowners. Traditional leaders, holding an element of state responsibility, would be relatively unaffected. This is a constituency the ANC is eager to keep onside, and whose interests it has pledged not to harm. So in political terms, it’s a neat solution.
There are those within the ANC, it must be said, who understand these problems, and have expressed exasperation over the denial of property rights to those under traditional authority. Last year, the chair of the Parliamentary Committee on Rural Development and Land Reform, Phumuzile Ngwenya-Mabila, took the Ingonyama Trust to task: ‘What we would like to see is the conversion of the informal ownership to title deed, to give our people the dignity that they own the land they are living on. They are not tenants, they are owners.’
It is tragic that her sentiments do not reflect government policy.
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