Ominous signs for property rights

The dispensation of land property rights and usages in South Africa seems to be heading for one of the greatest constitutional crises in the country since 1994, as an ominous new perspective comes to the fore with former Minister of Agriculture and Land Affairs Lulu Xingwana’s personal eviction last April of a tenant from a Gauteng farm. At best, ideological disarray in the governing alliance is causing huge confusion. At worst, a process of nationalisation of land rights by stealth seems to be in progress.

In the latest move on this front, the Department of Rural Development and Land Reform has mooted a plan, to be detailed in a Green Paper for the Cabinet during April this year, to amend the Constitution to turn “all productive land” into “a national asset” leased to farmers. The implication is clear: As had happened with mineral rights, “productive land” becomes the property of the state; and in a modern variant of the Middle Ages feudal system, farmers are turned into tenant farmers.

The difference with land is that, unlike the case with mineral rights, it is not the interest of mostly big corporations or mining houses that are at stake, but the rights of individuals. Land and the right to it is probably the most important element of people’s sense of belonging, a key measurement of wealth, intimately coupled with issues such as food security – and by its very nature, highly emotionally loaded.

Although she most likely did not mean it in a literal sense, Xingwana’s choice of words on 8 April 2009 when confronting the tenant on the Gauteng farm, becomes even more telling in the light of the latest developments: “Do you know who I am? I am the Minister of Land Affairs and this is my house. Pack your bags and get out of my house right now.”

The implication is that land purchased through the land redistribution programme, in conflict with the stated aims of the land reform policy, remains the property of the state and only transferred to beneficiaries for use, and not ownership. Against this background, it also is telling that over the years, the failure to hand over title deeds to beneficiaries has been a serious bone of contention between them and the department.

Some commentators at the time already raised the red flag that so-called redistribution of land might be managed in a way that is little more than simply a ruse for effective nationalisation – at a price to the taxpayer.

If this assessment is correct, it also would create the danger of a short step toward a situation where cronyism takes over and land effectively is handed over to the friends and families of the ‘well connected’.

One of the reasons for this situation may be found in the lack of a central philosophy about the role of the state as expressed in its institutions of government. Is it the role of the government to act as arbitrator to balance the rights of individuals and groups in society and to support development, or is the government the owner and custodian in final instance of all assets within the boundaries of the state?

Fact is that land reform thus far largely has failed mainly because of the failure of the state to provide adequate support to the beneficiaries of the programme. The present Minister of Rural Development and Land Affairs Gugile Nkwinti said earlier this month at a parliamentary information session that about 90% of the 5.9 million hectares of agricultural land acquired by the state since 1994 is not being farmed productively at present.

Again, he threatened that so-called emerging farmers who do not succeed to farm productively, would be chased off these farms. At the same time, however, it surfaced that emerging farmers on average wait 33 months after being given land before they receive capital to develop it.

It is, however, not only around the issue of traditionally commercial agricultural land that a crisis is brewing. A controversial law that seeks to reform communal land ownership in the former homelands is also under attack in the Constitutional Court.

The Communal Land Rights Act’s constitutionality is being challenged by the Legal Resources Centre (LRC) on behalf of four rural communities. They claim that the Act is essentially only an extension of the Black Administration Act of 1927 and Black Authorities Act of 1951.

Several sections of the Act already were declared unconstitutional by the North Gauteng High Court last year, rendering it inoperable. The LRC is asking the Constitutional Court to uphold that decision and declare the entire Act unconstitutional.

The particular Act affects about 50% of South Africa’s entire population and seeks to convert millions of hectares of communal land to freehold tenure. But critics claim it is too costly and complex to implement and would entrench the land allocation powers of unelected traditional leaders.

It is clear that the emotional issue of land is heading for a major crisis unless some clear leadership intervention is shown soon. In this regard, the traditional organised commercial farming sector is most likely not without blame. Very little has happened since 1994 to engage the government in a positive and proactive way to assist with the redress of inequities and injustices of the past.

The sort of intervention that is required, is most likely something such as a national convention seeking a way forward for land and land use in a consensus-building way. But in this regard, all involved would do well to depart from the understanding that on a highly contentious and emotional issue such as this, at best consensus would be “equality of discontent”.

If there are going to be ‘winners and losers’ at the end of the process, the most likely final result would be only losers.