I wrote this article in response to a question posed by researcher Nkanyiso Gumede of the Institute for Poverty, Land and Agrarian Studies in his piece, “New land law seeks balance between rights and reform“, published by agriculture news site Food for Mzansi on 4 February. The piece was offered to, but not used by, Food for Mzansi.
Writing [in early February], researcher Nkanyiso Gumede of the Institute for Poverty, Land and Agrarian Studies poses the question: will the Expropriation Act lead to equitable access to land?
Unfortunately, he fails to answer this question. This is a pity, as it has driven much of the advocacy in favour of the Expropriation Act over many years. Time and again, proponents of the legislation have claimed that it is a critical mechanism for expanding “equitable access to land”.
First, it is necessary to clarify what is meant by “equitable access to land”. Gumede writes that “equitable access [to land] extends beyond land occupation to include the rights granted over land.”
What other rights over land provided by the Act – apart from occupation – would constitute a successful advance in expanding “equitable access to land”?
Legally speaking, possible rights over land, beyond occupation, are the right to use, the right to control, and the right to transfer land. If occupation alone isn’t sufficient, Gumede’s suggestion is that at least some of these three additional types of land rights must be put in play for the Act to expand “equitable access to land”.
However, contrary to the overall pro-Act tenor of Gumede’s piece, the Expropriation Act weakens land rights across the board.
It makes it possible to place ordinary South Africans in a serf-like condition where the state owns expropriated land and magnanimously allows beneficiaries to occupy it. It is not the state’s policy to give the beneficiaries of land redistribution individual freehold title to the land. And even if it did, that title would be subject to the same threat of expropriation that the first expropriated owner of the land experienced.
But, as Gumede points out, merely allowing people to occupy land does not mean that equitable access has been achieved. It is also necessary to test whether the Act strengthens the right to use, the right to control, and the right to transfer land.
By granting vast powers to more than 400 expropriating authorities, particularly within a context of endemic corruption, municipal collapse and power abuse, the Act undermines the rights of use and control. And by empowering hundreds of expropriating authorities to seize land without compensation for any of the four reasons listed under section 12(3) – as well as other reasons not listed – it decimates the notion of the right of transfer, the ability to voluntarily pass ownership from oneself to another.
Minimum basis
Yet, relating to the narrower issue of right of occupation, the minimum basis for achieving equity on Gumede’s argument, the Expropriation Act contains no mechanism for extending the right of occupation to anyone except the hundreds of expropriating authorities.
Seemingly unable or unwilling to bring himself to answer his question in the honest negative, Gumede even acknowledges the Expropriation Act’s silence on broader access to land by calling for the introduction of a Land Redistribution Bill. If another law is needed to accomplish what an existing law is being praised for achieving, it stretches credulity to conclude that the existing law is a useful legislative instrument in service of said cause. After all, no-one considers a heart transplant operation a success if it fails to go beyond the incision stage.
On Gumede’s own test of the Expropriation Act’s merit, it fails utterly. Whether in the narrow sense of extending the right of occupation only or the broader sense of additional rights that might, if extended, in Gumede’s view, meet the threshold of equitable access to land, the answer to the question whether the Act can “truly unlock equitable access to land” is an unambiguous “no”.
The obfuscation that has enabled many of the Expropriation Act’s proponents, like Gumede, to proclaim it a mechanism to effect land reform cannot go unchallenged.
This is a law that fails to meet constitutional muster, both in terms of the process for its adoption and its considerable substantive deficiencies and legal uncertainties. The parliamentary process of public participation was shoddy at best, and the law itself contains contradictions on the role of the courts, as well as the open-ended list of grounds for expropriation of land without compensation in section 12(3). It is a law that weakens the ability of all South Africans to own securely what is rightfully theirs. It is a law that risks extreme abuses of power in a country already painfully familiar with such abuses, from the lowest levels of petty coercion to the highest extortion.
Cowed property owners
This Act risks the creation of a vicious new expropriation mafia that will leverage the threat of expropriation to extort payoffs from cowed property owners. It is a law that disincentivises job-creating investment – from the level of individuals spending their time working on and nurturing their property, to the level of South Africa’s attractiveness as a destination for fixed capital formation and pro-growth industry.
Proponents of the Expropriation Act glibly brush aside these substantive warnings with the hollow assurance that it will satisfy, at last, the mythical need for “equitable access to land”. Yet the Expropriation Act is a law that fails even to deliver the land, as promised by people like Nkanyiso Gumede.
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