In a 1996 book on South Africa’s apartheid legacy, Reconciliation through Truth, the late Kader Asmal and his co-authors made numerous assertions that can fruitfully be revisited two decades later – sadly, often with more than a touch of irony. Among these is the observation that ‘where false language has credence, incorrect action is inevitable.’

With some minor alteration, one might adapt this to contemporary circumstances: ‘where misdirected debate has credence, incorrect policy is inevitable.’ It’s hard to think of anything in South Africa’s politics that should sound that warning as much as its land politics.

For the past two years, the African National Congress and the government it leads, along with a number of other parties and interest groups, have maintained a policy push for Expropriation without Compensation (EWC). Phrased in the idiom of land reform, it has pushed the idea that enhanced powers of the state over its subjects – specifically, the right to confiscate property without paying for it – are needed to deal with skewed land distribution and to address the failings of post-apartheid land reform endeavours.

The controversy around this policy has not been confined to the borders of the country. Given that what is at stake is the country’s economic prospects, this is hardly surprising. But the attention it has garnered has extended beyond the entirely justifiable and predictable concern of businesspeople and investors, and spilled out into foreign political and media debates. Often this seems to have less to do with what is taking place in South Africa and more about the politics of other countries or about making expansive points about policy or morality.

As the end of 2019 approaches and, with it, a proposed amendment to South Africa’s Bill of Rights – its first since the constitution was adopted – it is fitting to reflect on this.

Earlier in the year, respected author and current affairs host Fareed Zakaria contributed to the debate about South Africa’s land politics in What in the World: South African Land Reform, broadcast on television channel CNN’s Global Public Square programme.

Widely noted when it was broadcast, it embodies many of the mistakes and failings made by observers in describing what is at issue.

‘Emotions about land reform run high and misinformation abounds,’ he said. His broadcast unfortunately, did little to deal with this.

The first mistake – a common one, and one that has been deliberately fostered by the political narrative in support of the policy – is to conflate land reform and EWC. The former is a positive and widely supported idea, with a moral imperative and potential benefits for the country. The latter is a policy track that empowers the state, but does nothing to deal with the problems in its land reform programmes.

In common with many observers, Zakaria appears to misunderstand this. It is EWC that is contentious, not land reform.

This leads to the second mistake, which is a failure to interrogate whether this policy is an appropriate one for the country, and whether its outcomes are likely to be productive. And while some observers have indeed tried to do so, proposing for example that  “since most current landowners are ‘land thieves’ they should not be paid”, or “giving the state increased powers will expedite the process”,  – Zakaria’s analysis is remarkably vague. He seems to try and dodge the EWC issue. He refers to the use of such mechanisms under the white-dominated governments, notably linking them to the 1913 Land Act (although interestingly enough, he does not specifically refer to the forced removals of black communities after the Second World War that did so much to highlight the callousness of apartheid). It’s not clear whether there is a subtle point that this justifies EWC today.

One would think that bad policy in the past should constitute a warning rather than a recommendation to repeat it. But in any event, even if this did create a justification of sorts, it is far from clear that this would make EWC an advisable policy for a rapidly urbanising country, one in which jobs in a modern economy rather than on ‘the land’ have repeatedly been shown to be the most popular aspiration. EWC is increasingly seen by investors as an unattractive destination. South Africa, it should not be forgotten, has suffered a downgrade to sub-investment grade by two ratings agencies and faces being so downgraded by a third in the coming months. EWC is a liability, here.

South Africa’s future prosperity would be brought about by the efficacy of its policies, not the purported moral signals they send.

The third mistake is to misread what the nature of land reform in South Africa is, and what successful land reform would look like. Here again, Zakaria is in very good company. His point of reference is that: ‘Of all the agricultural land owned by individuals across the country, 72% is owned by whites, who make up just 9% of the population. 4% of that land is owned by black South Africans, who make up 79% of the population.’

These numbers are drawn from the 2017 land audit. But land owned by ‘individuals’ makes up only 31% of all land in South Africa. The rest is owned by trusts (some 24%), companies (19%), community-based organisations (3%) and various co-ownership arrangements (a little over 1%). In addition, the state – either directly or through traditional authorities – owns or controls around 23%.

That Africans own only 4% of the 31% of rural land that is in registered, individual ownership reflects both the legacy of past practices and their continuance into the present. Key, here, is the State Land Lease and Disposal Policy of 2013, which decrees that land acquired for redistribution should be retained in state hands and not passed on to beneficiaries as their property. Millions of black people who were denied property rights in the past remain so deprived today.

Indeed, this was central to the much-publicised case of David Rakgase, a successful black farmer who has been trying for well over a decade to purchase the state-owned land he was working on. He eventually turned in frustration to the courts. The case is not mentioned in Zakaria’s commentary. (It was ongoing at the time the latter was produced, but only emerged as a significant news item thereafter.) Papers deposed by the department emphasised that the policy position flowed from the ‘principle that 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’. As Rakgase was in his late 70s, it was doubtful that he would ever be in a position to qualify.

The court judgment was scathing:

‘There is no explanation why, when the well-motivated occasion for the conversion of a right presented itself, it was shied away from and the elderly Applicant was presented with a much lesser right, being a long term lease, the end of which he will not see in his lifetime. The argument on behalf of the Minister that the Applicant has security of tenure and that there is no imminent eviction prospects on his horizon smacks of callousness and cynicism , particularly given our country’s historical deficiencies in  dealing with land reform.’

Having sketched a poor picture of what is afoot in South Africa, Zakaria makes a fourth mistake, by trying to connect (and justify) land reform in South Africa in terms of what has occurred elsewhere. His reference to successes in China and Zimbabwe are surprising, and probably rendered rather moot by his own admission of the ‘brutal violence’ and ‘unconscionable violence’ that accompanied them (not to mention the damaging impacts of accompanying choices). He is on firmer ground in mentioning South Korea and Taiwan. Frequently invoked in South Africa, too, it is a mistaken comparison. Far from expanding private property rights, as was the case in these countries, EWC is another aspect of a policy trajectory that is deeply statist in orientation.

Zakaria is, however, laudably correct in his ending comments: ‘In the end the case for land reform in South Africa is not merely a moral one. Properly and sensibly executed, land reform is also good economics and good politics.’

This is correct, but sadly not reflective of what is taking place in South Africa. As the government moves to amend the country’s Bill of Rights in order to grant itself a freer hand to intrude into private property rights, it is showing itself committed to a course of action that is not justified by the available evidence on the reasons for the sub-optimal performance of land reform in South Africa. This represents a real threat. It is most unfortunate when analysts of the calibre of Fareed Zakaria fail to understand this.

Terence Corrigan would like to note that he has enormous respect for Fareed Zakaria, whose writings on ‘illiberal democracies’ have exercised a profound influence on his thinking.

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