Land expropriation without compensation is what the EFF believes is necessary to redress the great land injustice in South Africa. Mphuthumi Ntabeni takes us through what this means by examining the history of land expropriation and the EFF’s proposed way forward.
Expropriation is a legal mechanism through which the State takes over property owned by other entities, be they private individuals, companies, trusts or community-based organisations. The expropriation of property is currently provided for in the South African Constitution, under section 25(2), provided it is done through legal application and for one of two reasons, namely: public purpose or in the public interest.
Effecting national Land Reform Policy is an example of public interest, while purpose would cover things like the building of dams, the erection of power lines, the construction of roads and rail infrastructure.
Section 25(2)(b) unambiguously says that expropriation must be subject to compensation: either in an amount agreed upon by the expropriating party and the person from whom the property is to be expropriated; or in an amount decided upon by a court of law. The Constitution currently does not allow for expropriation without compensation, or for the narrow, piece-meal or the broad-based expropriation. Needless to say, the constitution also doesn’t allow for arbitrary expropriating of property.
The EFF wants some of this changed. “The EFF wants a Constitutional amendment that would make it legally permissible for the State to expropriate land – but not other forms of property – without compensation. This land must then be placed under the custodianship of the State, which will administer and redistribute it equitably to all South Africans for residential and productive use.” Hence they sponsored a parliamentary motion last February to explore this possibility by amending Section 25 of our national constitution. Their leader, Julius Malema, has been stressing, in vain if you consider media reports, that if their proposal is rejected by the majority they’ll abide by the decision.
Though the motion was supported by the ruling party and other opposition parties – except the centre right parties, like the DA, and the right wing parties, like the FFP – the motion caused a lot of furore. Most of this furore is based, deliberately or otherwise, on misrepresentation and misinterpretation of the EFF’s motion. As the counter measure of what it calls right wing propaganda, the EFF released last month a well-researched document titled; Frequently Asked Questions About Land Expropriation Without Compensation. In the document the EFF believes the land question is about the resolution of great land dispossession injustice. And so they “seek ways to ensure that the large-scale redistribution of land contributes to the redress of colonial and apartheid injustice, the transformation of the economy and the reduction of both urban and rural poverty.” The document makes a competent compendium of black of land dispossession.
The Land Dispossession History
The systematic land dispossession from the Africans in South Africa, according to the EFF, was unequalled to anywhere here in Africa. They make an example about Zimbabwe, where “colonialists appropriated just over 50% of the land surface.” Whereas in “South Africa about 87% of all the land surface was taken from black people through colonial dispossession and legislative mechanisms.” Those steeped in what became known as Frontier Wars, the colonial wars between the Xhosas and the British, which took more than 102 years complete, will know that it left the Xhosas not just land dispossessed, but devoid of self-sustenance and food security – something with clear resonance even in our era.
The EFF document briefly touches on that before explaining how it was subsequently officialised by the Glen Grey Act of 1894 – the last effective Frontier War was in 1891, though minor skirmishes still continued after. The then-Governor of the Cape Colony, Glen Grey cemented the fate of amaXhosa by introducing the laws of this act that literally reduced them into the state of pauperism. For instance, the Glen Grey Act introduced a labour tax for young African men who were not working. The sole intention of this was to force them into working on white farms and the mines. It was first ruthlessly implemented among my own people, the area they named Glen Grey area (Lady Frere and Queenstown). And my great grandfather was one of the people who fled the Eastern Cape to find work in the docks of Cape Town for semblance of freedom than to become, basically, an indentured slave on white farms and mines. The act was later extended to other areas in the Cape Colony. From there the idea of African native reserves was systemically developed. When seeking British Parliament approval for it, Cecil John Rhodes’ government euphemistically called it ‘a Bill for Africa.’ Its purpose was to limit Africans to tiny pieces of unproductive land on the peripheries, or to force them to go work for whites in the farms and mines.
From that was born the Natives Land Act of 1913. “This Act confined the African majority to only 7% of the land in South Africa, that is, only about nine million hectares of land (the total land surface in South Africa consists of about 122 million hectares.) This effectively banned Africans from buying and owning land anywhere other than in their designated reserves which with time became degraded as a result of overcrowding.”
I often hear people remember in nostalgia how clean and ordered things were under apartheid. How there was little crime and all. When we remind them that those things came at a price of oppression and no freedom for the majority some, with ingrown lack of empathy, think it was worthy price for peace and the rule of law. The Native Act banned squatting, hence there were no informal areas, not openly anyway. And the Pass Laws that followed, called the Urban Areas Act of 1923, forbade Africans from staying in urban areas without active work, and disallowed granting freehold property rights to Africans because they were not permanent urban residents. Africans were “only be permitted within municipal areas in so far and for so long as their presence is demanded by the wants of the white population;” thus as domestic workers and menial urban workers.
The Native Trust land was later renamed the Bantu Trust and Land Act, or Development Trust and Land Act of 1936, when another 6% was added to the land in the reserves, resulting in approximately 13% of the land being allocated to Africans. This concession was traded for the voting rights of Africans in the Cape when the Union Republic of South Africa was formed. The Act provided for the establishment of the South African Native Trust, further tightening the conditions under which Africans were allowed to stay on white farms. At seed it was what later became known as the Group Areas Act of 1950, which prohibited races from living in the same area. Large numbers of black people were subsequently removed from the areas they inhabited where those areas were demarcated as exclusive white enclaves under the Act.” It is estimated that over 3.5 million people were dispossessed of their land due to the application of this Act between 1960 and mid-1983.” It mostly cleared black areas, like Sophiatown and District Six that were situated too close to the CBDs.
There have been misleading media reports about the current land ownership in our country. The Department of Rural Development and Land Reform has recently undertaken two land audits. The first phase was to determine how much land is owned by the State and how much by private owners. The 2013/14 land audit found that 79% of South African land was privately owned, 14% was owned by the State, and 7% was unaccounted for (land that had not been surveyed at the time). The second phase of the audit, completed in 2017, dealt only with privately owned land. It found that individuals, companies and trusts had a combined ownership of 90% of the total land audited. It also revealed that white people owned 72% of the land, followed by coloured people at 15%, Indians at 5%, Africans at 4%, and 3% unidentified, and co-owners at 1%. No one can dispute that this inequitable distribution of land is a direct consequence of colonial land dispossession and forced removals of apartheid laws. That our democratic State has not been able to reverse the apartheid geography in our country is a major indictment on their part.
What is the EFF saying?
The EFF, despite its militancy on the topic of land, has chosen, for now at least, to try land reform through constitutionally enshrined imperatives that are provided for by section 25 of our national Constitution. The EFF says: “Subsections (5), (6) and (7) of section 25 make provision for a three-tiered land reform programme: land redistribution, land tenure reform and land restitution, respectively. Section 25(5) obliges the State to take ‘reasonable’ legislative and other measures to enable citizens to gain access to land. This is called land redistribution. Section 25(6) obliges the State to provide protection to people whose tenure to land is legally insecure. This is called land tenure reform, and applies to farmworkers and farm-dwellers, township dwellers who have never had a title to their houses and people who live in the former homelands whose claim to land is not premised on titling, among others. Section 25 (7) grants people who were dispossessed of their land after the application of the Natives Land Act of 1913 a right to lodge claims to get their land back, or entitles them to equitable redress. Equitable redress may take the form of an alternative plot of land or monetary compensation. This gave rise to the land restitution programme.
The State had initially planned to transfer about 30% of the land back to African people by 1999, using these various forms of land reform. To date, only about 9% of the land has been transferred back to black people through the land reform programme. Meantime the State has paid billions of rands to white land owners to obtain land for land reform purposes.” This has led others to believe that the beneficiaries of land dispossession are doubling their loot through this current system. Hence the colonial and apartheid geography and forms of land holding not only persist, but seem to be exacerbating.
“This is due to a number of reasons, chief amongst which are State incapacity and a restrictive Constitutional framework that draws a moral equivalence between the rights of the dispossessor and the rights of the dispossessed.” The EFF document concludes.
Taking into account all the factors to be considered in determining compensation, when expropriating land, it is clear that if the only quantifiable factor for land reform remains the market value of the property then we shall never achieve the goal of land redress. Also the quantum of judging what is ‘just and fair’ compensation on land that was forcefully taken, without compensation in the first place is also difficult to achieve, sometimes leading to excessive litigation against land reform programme. As things stand, land owners can easily veto the land programme, with impunity, through the courts. This, according to many – that includes the EFF – justifies land expropriation without compensation where circumstances mitigate.
The EFF argues, from the underlying principle that land is “a common natural endowment that everyone must be able to reside or produce on, and satisfy their spiritual requirements from. What is to remain in private possession would be the manifestation of an individual’s labour, such as crops, trees and buildings – but not the land.”
They want all land to be transferred to the stewardship of the State, which “will administer and use land for sustainable-development purposes. This transfer should happen without compensation, and should apply to all South Africans, black and white.” Then it can be leased to private persons, who demonstrate plans for productive development of the land, for a maximum of 30 years. The EFF is also aware that for all this to be effective a capable and visionary government that is intolerant of corruption is needed – something we obviously do not have at the moment. Like the Roman Catholic Church of Southern Africa. they also envision “various and combined forms of common and collective ownership, ranging from State ownership and control to co-operatives and workers’ ownership and control of the key sectors of the economy”.
The EFF claims that their model will not interfere with the homeowners’ rights in ceding the land ownership rights of where these houses are built. But they do not explain how this would work for those who are paying home loans to the banks, since these involve the land worth the properties are situated on. Perhaps the value of the land will be offset against the 30 year land lease? This will certainly cancel a major portion of unfair advantage from inherited wealth many countries are starting to realise is a major contributor to the scourge of our age, i.e. gross inequalities. SA.Republish