Everyone knows about the moves to expropriate land in South Africa, but few know that the biggest expropriation bill of all has just been passed by Parliament, and it targets millions of poor people.
It was a quiet announcement, involving a low-profile law, and it passed virtually unnoticed in the media.
Parliament on Tuesday passed the Upgrading of Land Tenure Rights Amendment Bill, ostensibly to correct various deficiencies in the Upgrading of Land Tenure Rights Act (ULTRA) identified by the Constitutional Court.
This law was passed by the old National Party government in 1991, and was intended to confer full ownership rights to land occupied by millions of black South Africans in townships and rural areas.
Under the Act, anyone who occupied land and was listed in a township register as having lawful tenure could, at the stroke of a pen, obtain title deeds to that land from the Deeds Office. The same applied to land outside townships that had been surveyed under any law.
It was under this relatively obscure law that the Free Market Foundation (FMF) established its Khaya Lam project, which has to date helped 11 046 tenants of the state obtain title deeds to their land and homes.
This turns their property into living capital (as opposed to dead capital), which incentivises owners to make improvements, and enables them to sell, mortgage or otherwise use their property to get a foot on the economic ladder.
Economic prosperity is closely tied to the security of a country’s property rights regime, and ULTRA extended property rights to many millions of poor tenants who had been dispossessed by the Apartheid system.
However, according to Parliament’s statement, the Constitutional Court had found that the Act discriminated against the rights of women to independently own property, and that a provision for registering title deeds to properties was invalid in territories formerly belonging to the homelands, Transkei, Ciskei, Bophuthatswana and Venda.
Travesty of justice
It is unclear how the Act actually discriminates against women, since nothing in the act limits its application to men. It could, at worst, perpetuate male ownership if land tenure rights had previously been registered in the name of a male member of a household.
The amendment to ‘correct’ the Act resolves this issue by inserting the words, ‘the person who is, according to a register of land rights of the township, the holder thereof, or could have been the holder thereof but for laws or practices that unfairly discriminated against such person’.
It goes much further than correcting past gender discrimination, however, and in doing so, commits a travesty of justice.
Instead of being able to assert ownership simply by approaching the Deeds Office with proof of land tenure rights, it now requires tenants of township and other state land to apply to the Minister of Agriculture, Land Reform and Rural Development to convert their land tenure right into full ownership.
Such an application sets in motion a bureaucratic process in which a notice is published in the Government Gazette, the matter is opened for public comment, and if objections are received, a person is appointed to investigate the facts of the case. This means that the conversion to full ownership is not automatic, as it used to be, but takes time and effort, and ultimately occurs at the discretion of the minister.
‘Serf’s cottages’
Trade journal Engineering News was one of the few publications to pick up on this, quoting Janine Myburgh, the president of the Cape Chamber of Commerce and Industry as saying that this reduced township properties to ‘serf’s cottages’, and that the amendment ‘sets out to prevent the poor from gaining private freehold title to land, offering instead a government permit to occupy it’.
She said that the Bill was a ‘clarion call announcing that we intend to march swiftly back to a tribal past or, as it will probably be presented, to dance towards a socialist future’.
The ANC provincial spokesperson for Agriculture, Patrick Marran, accused Myburgh of fearmongering and spreading fake news, pointing out that the Bill ‘aims to among other things provide for the institution of inquiries to assist in the determination of land tenure rights; to provide for an application to a court by an aggrieved person for appropriate relief; [and] to provide for the recognition of conversions that took effect in good faith in the past’.
That much is true, but it obscures the fact that the ownership conversion will now become a complex process at the discretion of bureaucrats acting for the minister. This makes it harder for people to obtain legal ownership, and paves the way for patronage politics and corruption.
Subjecting fundamental rights to the whims of government officials has no place in a free and democratic society.
Dead capital
The FMF has also sounded the alarm, saying that the amendment ‘will cause land dispossession on a huge scale’.
FMF executive director Leon Louw says: ‘Millions of people could lose their homes. The Bill proposes a gigantic act of expropriation without compensation from the poorest and the most vulnerable – people deprived of resources with which to defend themselves.’
Louw continues: ‘Had ULTRA been implemented as intended, there would be thriving land markets in predominantly “black” areas with more black land-owning households than the entire white population. A trillion rand of dead capital would have been liberated into the hands of newly empowered and enriched families, and, through them, into the economy. Millions of destitute people would have been enriched and bankable.’
He also says that the new process is not justified to rectify past gender discrimination, since the claims of female land owners are already being recognised, and the gender split over the past 10 years has been about 50/50, as one might expect.
Louw argues that the Bill is likely in violation of Section 25 – the property clause – of the Bill of Rights, although it would be constitutional if that section were to be amended to permit expropriation without compensation.
‘It is ironic in South Africa that the biggest expropriation without compensation … is to be implemented against poor black households, and not against rich white farmers or property owners in rich areas,’ he told the media. ‘Five or six million houses owned by black people in poor areas will be the victims of expropriation without compensation.’
Forced to beg
Secure property rights is not an issue that affects only the rich, or only white people. A dynamic, growing economy requires secure property rights at all levels of prosperity.
Economic development in townships and rural areas was held back by Apartheid laws that curtailed private property rights, not only in land and housing, but also in formal businesses. Black people were denied access to capital, and what capital they had in their homes was impotent without full legal title.
Re-introducing such a regime by making land ownership subject to the pleasure of government bureaucrats will only serve to perpetuate the economic deprivation of the people living in these areas.
As Louw says: ‘It is time for the government to abandon the patronising apartheid-era notion that black people should not enjoy full land rights. The poor should never be forced to beg for what is rightfully theirs.’
[Picture: Marc St on Unsplash]
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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