FIRST DRAFT

Associate Professor Lungisile Ntsebeza
Department of Sociology, University of Cape Town

Paper presented at the Harold Wolpe Memorial Trust conference “The land question in South Africa: The challenge of transformation and redistribution”, held at the V&A Hotel, Waterfront, Cape Town, 25-27 March 2004

BACKGROUND

A key challenge facing the post-1994 South African state is how to reverse the racial inequalities in land resulting from colonial conquest and the violent dispossession of indigenous people of their land. The broader historical context is well known to this group, but it is worth highlighting the following:

Starting from the seventeenth century, white settlers in South Africa appropriated more than 90 per cent of the land surface, a process that was formalized with the passing of the notorious 1913 Natives’ Land Act. This Act confined the indigenous people to reserves in the remaining marginal portions of land. Chronic shortage of land and overcrowding gradually converted the indigenous people from successful farmers to poorly paid wage labourers. Compared to other countries on the Continent, the extent of land plunder in South Africa was extraordinary.

While colonialism and apartheid systematically undermined African agriculture, white farmers on the other hand benefited from substantial state subsidies. There are currently about 55 000 white commercial farmers in South Africa, with varying degrees of concentration of land holding. These are the major beneficiaries of past apartheid policies and their continued control over the vast expanse of South African arable land lies at the heart of the enduring black exclusion and deprivation. Apart from the state subsidies, white capitalist agriculture has flourished as a result of the availability of a captured cheap black labour.

Although the liberation struggle in South Africa was not overtly fought around the land question, as was perhaps the case in Zimbabwe, there was always the expectation that unravelling centuries of dispossession and oppression would be among the priorities of a democratic South Africa. Indeed, the ANC’s Freedom Charter had promised that "(t)he land shall be shared by those who work it" and will be "re-divided among those who work it, to banish famine and land hunger".

However, when the ANC launched its election manifesto, the Reconstruction and Development Programme, in 1994, there was a fundamental reversal of the Freedom Charter’s call for the nationalization of land. The RDP document committed the ANC, albeit cautiously to a market-led land reform programme. Two years thereafter, the ANC-led government formally embraced conservative neoliberal economic policies in the form of GEAR (Growth, Employment and Redistribution). The justification for the shift is often couched along similar lines as elsewhere where these turnabouts have been made: "there is no alternative" (TINA) to global capitalism. But analysts such as Marais, on the other hand, have commented that this marked a victory for the more conservative, capitalist inclined forces within the ANC, thus suggesting that the ANC and most definitely the Tri-partite Alliance of the ANC/SACP/COSATU are not unanimous on this issue. On her part, Gill Hart has lamented: "GEAR sits uneasily astride the emancipatory promises of the liberation struggle, as well as the material hopes, aspirations, and rights of the large majority of South Africans" (2002:7)

The framework for land policy in South Africa is provided in the 1996 Constitution of South Africa. This policy is based on three components of the government’s land reform programme: land redistribution (to enable equitable access to land); land tenure reform (to eliminate tenure insecurity) and land restitution (to compensate for land dispossession). The Constitution also contains a property clause which effectively protects existing property rights of landowners. This clause in the constitution has prompted Fred Hendricks to ask the question: Does the South African Constitution justify colonial land theft?

Indeed, a fundamental contradiction exists in the South African Constitution between the objectives of protecting existing property rights on the one hand and a commitment to redistributing land to the dispossessed majority. The two objectives cannot be achieved at the same time simply because the bulk of land outside the former Bantustans is under private ownership and consequently safeguarded by the Constitution. In this regard, a declaration that land will be made available to blacks is rendered void for the simple reason that whites privately own most land. As commentators like Mafeje would put it, the declaration eschews the land question and in so doing confirms the pre-1994 situation.

Thus, the real challenge confronting us today is whether land redistribution within the current market-led approach will happen at a pace that will lend popular legitimacy to the state and encourage economic growth. What is the evidence?

Except for hardboiled party loyalists, there is wide acceptance today that the pace of land reform in South Africa is painfully slow. At a memorable People’s Land Tribunal that was organized by the Trust for Community Outreach and Education (TCOE) in December 2003, the Deputy Director General, Mr. Glen Thomas admitted, after listening to some witnesses about the problems they encountered in their bid to access land through the land reform programme, that he "would like to say that I understand perfectly their frustration. I think sometimes it is justifiable. There are issues that also as a Department that we need to deal with, which are not easy issues to deal with. There are very difficult issues that we have to deal with". Mr. Thomas went so far as to make a shocking admission that it was "a dream to put 30 per cent in five years". His premises for the claim were based on the budget and the constitutional constraint in the form of the property clause.

Another government representative, a Member of Parliament and a the Portfolio Committee on Land Affairs, Mr. Manie Schoeman, also conceded that the land reform programme was not "good enough".

For the record, Mr. Thomas testified that as at the end of 2003, a mere 2.7 per cent of the land had been transferred. This is a far cry from achieving even the current conservative target of 30% over 15 years. Ruth Hall’s paper, I believe, will deal with the issue of delivery to date.

While there may be a general acceptance that the South African land reform programme is "not good enough", there is no agreement on the reasons for the slow pace. The People’s Land Tribunal held in December 2003 that I have already referred to provide a good example. At this Tribunal, there was a clear disjuncture between the testimonies of the two government representatives on the one hand, and the various witnesses, including two of the three expert witnesses. Both Thomas and Schoeman agreed that the fundamentals in terms of policy were in place and they had no problem with policy, including the willing-seller-willing-buyer condition. The issue, according to Thomas was "whether government has sufficient resources to buy land when there is a willing seller at a price at which the willing seller wants to sell the land". He was adamant that the "land market is there. There’s no scarcity of land that could be bought, but the question is at what cost, at what price? That’s the point".

When the Chairperson clarified his point to Mr. Thomas, that the key issue raised by the witnesses was that of principle: "it’s not so much the scarcity of resources, but the commitment to the principle of willing-buyer-willing-seller", Mr. Thomas replied: "what we can’t do is to confiscate. Because by confiscating we shall be depriving certain people of their rights as reflected in the Constitution". Mr. Thomas did concede, though, that "there is a perception – justifiably – that the willing buyer/willing seller approach is problematic". Having said that, he was quick to point out that "government is also constrained" and it "cannot be government itself that starts to violate the Constitution".

On whether it was possible to amend the constitution, Mr. Thomas indicated that it is "the people of this country" who can make the amendment possible by putting "that case forward to our political representatives and tell them that this is what the country needs". He however to the Tribunal that their intention as a Department was "to engage within government and outside government with all the relevant stakeholders that we can think of ... to start a process or facilitate a process, which will lead to a national collaborative implementation strategy for land reform". Part of that strategy could involve drawing the government to the need for a constitutional amendment. He further conceded that the "question of the property clause" is "one issue that this country needs ¼ quite an intensive discussion at all levels. It’s quite important. Because I know there is a school of thought which says there’s nothing wrong with Section 25 of the Constitution. Okay. There is another school, which says no, no, no, there are problems with Section 25. And I think we need to get into some discussion here. The land issue in this country is an important one, it’s an emotional one and it’s a difficult one. But I think it’s important that it be placed on the agenda, and all South Africans debate the issue rationally and thoughtfully at all times".

Mr. Manie Schoeman by and large agreed with Mr. Thomas on the fundamentals in policy being in place. But he was less inclined to an opening of discussions on the possibility of making some constitutional amendments to do away with the property clause. He preferred to restrict himself to the present policy of the "ruling party" which endorses the property clause "as it is". Although it could change, he thought that "the guarantee of ownership of property is also fundamental to a democracy". However, although he thought that the 1913 cut-off date was "done in much wisdom in the interest of reconciliation", he conceded that "it doesn’t take away the obligation from the whites in this country to acknowledge that they acquired property or their forefathers did in an irregular basis and that we don’t have an obligation to rectify that process". Mr. Schoeman did not elaborate on what he meant by rectifying the process.

On their part, witnesses saw things differently. The only area of agreement was that land reform was proceeding at an unacceptable pace.

· The majority of the witnesses, including experts (apart from Dr. Michael Aliber), questioned the existing policy framework, in particular its market-led mechanism based on willing-seller-willing-buyer condition and the property clause in the constitution

· The testimony presented to the Tribunal showed that, while there may be willing white sellers, this cannot be generalised, and that in some places, white farmers were unwilling to sell to blacks, in particular where groups were involved.

· Many witnesses felt that the constitution needed to be amended so that the property clause should be dropped.

· Witnesses showed an urgency that was not immediately evident from the government representatives. While acknowledging that targets may not be met, it was difficult for the Tribunal to get a sense that the government was deeply concerned about this and were making strenuous efforts to deal with land need as articulated by the landless and land hungry.

Towards a conclusion

There is clearly a huge gap between the political freedoms enshrined in the Bill of Rights and the economic realities of post-1994 South Africa. The land question is an important indicator in this regard. South Africa has joined the growing list of liberal capitalist democracies the world over where the political emancipatory project is not matched by any significant economic freedoms.

Writing at the height of the triumph of neo-liberalism, Ellen Wood (1995) reminded us that under capitalism, citizenship and democracy are limited in scope. Her argument is that "representative (liberal) democracy" distanced itself from the ancient and literal meaning of the term (democracy), resulting in a shift in focus "away from the active exercise of popular power to the passive enjoyment of constitutional and procedural safeguards and rights, and away from the collective power of subordinate classes to the privacy and isolation of the individual citizen". Hence the domination of the liberal principles: `limited’ government, civil liberties, toleration, the protection of a sphere of privacy against intrusion by the state, together with an emphasis on individuality, diversity and pluralism (Wood 1995:226-7). Thus, by separating `the economic and the political’, or the transfer of certain `political’ powers to the `economy’ and `civic society’, capitalism has, according to Wood, created a seemingly anomalous situation where socio-economic inequality and exploitation coexist with civic freedom and equality. In her words:

The separation of civic status and class position in capitalist societies thus has two sides: on the one hand, the right of citizenship is not determined by socio-economic position – and in this sense, capitalism can coexist with formal democracy – on the other hand, civic equality does not directly affect class inequality, and formal democracy leaves class exploitation fundamentally intact (Wood 1995:201).

It is in this sense, she emphasises, that "political equality in capitalist democracy not only coexists with socio-economic inequality but leaves it fundamentally intact" (Wood 1995:213). More recently, Abrahamsen has echoed Wood’s sentiments in these terms:

To enjoy liberty is not only to enjoy equality before the law, but also to have the capacities, the material and cultural resources to be able to pursue desired courses of action. Political equality, then, cannot be attained without a measure of economic equality, and without it democracy is likely to become a vehicle for the maintenance of elite dominance (2000:75-6).

The re-emergence of agrarian movements in South Africa since around 2001 seems to suggest a couple of things: first, that the demand for land is growing and is overwhelming; that there is growing disillusionment with the slow pace of the land reform programme, and that the land needs are diverse. However, more research needs to be done around these issues. The disillusionment with the slow pace of land reform and the struggle against poverty more broadly are taking various forms: land occupations and threats thereof, the "no land no vote" slogan of the Landless People’s Movement (LPM), violence on farms, the People’s Land Tribunal, and so on.

So far, the response of the government, politicians and some NGOs has been disappointing to say the least. From the Bredell occupations of 2001 to the recent march to Bisho which was organized by the LPM, the government and the ANC have been consistent in its response. In the Bisho case, the ANC was quick to point out that they will not ‘allow certain people to undermine the gains made by the government so far’, and that "people must respect the law of the country and those found acting outside the law will be dealt with severely". Some unnamed NGOs distanced themselves from the moves of the LPM.

Let it is be clearly understood that I am not advocating that there should be no rule of law in the country. There should, indeed be no room for anarchy. However, the overall context of land dispossession and land reform in this country should be taken into account. The claims that the poor are laying are legitimate and we should not be unduly defensive and short-sighted. There is no doubt that the market-led approach to land reform that is recognized in the constitution, including the property clause and the willing-buyer-willing-seller condition, is being challenged from various corners. Current indications are that this approach will not unravel years of colonial and apartheid dispossession.

While it is true that the inadequate budget and administrative inefficiencies contribute to the slow pace of land reform in South Africa, there is an argument to the effect that the fundamental problem lies with the very model or paradigm used to implement land reform, namely, the market-led approach. This argument calls for a constitutional amendment of the Constitution with regard to the property clause which favours existing property holders. The minimum that the poor expect is that this debate and discussion be opened up. By so doing, we may be ensuring that our fragile democracy is preserved.