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Land reform processes in South Africa — Ten years of democracy

Zakes Hlatshwayo

is a former director of the National Land Committee (NLC) and a very active participant in the Landless People’s Movement.

South Africa’s land question stands at a crossroads today, in the year 2004: the continuing racial maldistribution of land will either be resolved through a fundamental restructuring of the government’s land reform programme, or it will be resolved by a fundamental restructuring of property relations by the people themselves. Which direction the country follows depends to a large degree on the urgent and immediate responsiveness of the government to the needs and demands of the country’s 19 million mostly poor, black and landless rural people.

The past few years have given some disturbing indications of the government’s intentions in this regard, from the narrowing of the redistribution programme — the main vehicle for reversing the racially-skewed landscape inherited from apartheid — to targeting the creation of a small African commercial farmer elite instead of the large population of poor landless Africans, to the laissez-faire attitude towards the growing demands of landless people and their civil society allies for a Land Summit to address the country’s land crisis.

The past few years — and particularly 2001 — have also given some indication of the resolve of the landless to obtain land irrespective of the government’s willingness and ability to assist them. Encouraged by the events in Zimbabwe, but primarily motivated by the failure of land reform, growing numbers of rural and urban landless people have moved to occupy vacant, unused, or simply legitimately claimed, but unreturned land. Landless communities in rural and urban areas have also increasingly organised themselves — or sought alliances with other organisations — to stage protests at local, provincial and national levels. The formation of the Landless People’s Movement (LPM) in July 2001 by leaders of provincial and regional formations of landless people marks an important development in this regard, especially given the historical difficulties of rural organisation in South Africa.

Both attitudes — that of the government, and that of landless people — are responses to the fact that the land reform project in South Africa is in a state of escalating crisis. This crisis was born during the era of colonial and apartheid land dispossession, which confined black South Africans to 13 percent of the land and reserved the remaining 87 percent of land for white farmers and the State. The birth of democracy in 1994 raised expectations that this crisis would be resolved through government land reform processes. Almost ten years later, however, very little has been done to undo the apartheid legacy in land distribution, and after a period of hopeful patience on the part of the landless, the crisis has begun to escalate.

It is worth remembering now that the gravity of South Africa’s land question was widely recognised as early as 1993. As early as October, 1993, Cyril Ramaphosa, then Secretary-General of the African National Congress, told the Land Redistribution Option Conference: “The massively unequal distribution of land is not just the unfortunate legacy of apartheid, it is the totally unacceptable continuation of apartheid.” The same year, the World Bank report Options for Land Reform and Rural Restructuring in South Africa warned that without radical land reform the new South Africa would face the danger of rural violence, or even civil war, and called for a “major restructuring of the rural economy centred on significant land transfers”.

The negotiated roots of SA Land Reform
It was against this backdrop — and amid growing concerns about the need to inspire the confidence of foreign investors in a rapidly globalising world economy — that South Africa’s multiparty constitutional negotiators approached the thorny question of whether, and if so how, to reverse the centuries old racial maldistribution of the country’s 122 million hectares of land.

The challenge was tremendous: on the one hand, the African National Congress government-in-waiting needed to fulfil its 1955 Freedom Charter promise to reverse the apartheid landscape which had put 87 percent of land in the hands of 60 000 white farmers and the state while millions of black people eked out a living in overcrowded conditions on the remaining 13 percent. On the other hand, transforming the rural landscape (and the racially-separated urban settlement patterns) while ensuring continued food self-sufficiency, creating an investor-friendly environment, promoting economic growth and fostering national racial reconciliation, presented multiple and interlinked challenges. The balance of forces at the time of the negotiations nevertheless ensured that the fledgling Constitution that emerged from the multiparty talks contained a series of exacting state commitments to the country’s landless. These included three fundamental rights clauses on land reform, as follows:

  • Section 25 (5): The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis;
  • Section 25 (6): A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress; and
  • Section 25 (7): A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

While the enforceability of Section 25 (5) on land redistribution would be open to challenges on the basis of an “available resources” determination, Sections 25 (6) and (7) granted secure legal entitlements to the intended beneficiaries of the remaining two legs of the government’s land reform programme, namely land restitution and land tenure reform.

Later policy documents and statutory laws drafted by the new government, including the 1994 Reconstruction and Development Programme (RDP) and the 1997 White Paper on South African Land Policy, further committed the government to redistribute 30 percent of agricultural land and complete the adjudication process on land restitution claims in the first five years of South Africa’s democracy (1994-1999), and to a land reform programme that would address “the injustices of racially-based land dispossession of the past; the need for a more equitable distribution of land ownership; the need for land reform to reduce poverty and contribute to economic growth; security of tenure for all; and a system of land management which will support sustainable land use patterns and rapid land release for development”.

While welcoming these commitments as an important step forward, the National Land Committee (NLC) and other progressive land sector stakeholders warned that other underlying commitments — to market-led, willing-seller-willing-buyer, demand-driven land reform — would hamstring delivery by making land reform too costly for the state, while failing to effectively identify the poorly-articulated demands of rural people. The colonial and apartheid states had played a central role in the creation of the existing grid of white-owned private property and black property exclusion, and the post-apartheid state needed to intervene to change this, the NLC and other critics argued.

Almost ten years later: The crisis of failure
The RDP promise to redistribute 30 percent of agricultural land should have seen more than 25 million hectares redistributed from white to black by 1999. By late 2001, however, less than two percent of land had changed hands through the entire land reform programme:

Land Restitution
The Restitution programme had managed to resolve only 28 claims between 1994 and mid-1998, prompting the National Land Committee to demand a policy review process. This review led to several key interventions, including a shift from a legalistic process requiring Land Claims Court approval to an administrative ministerial approval process, and the integration of the Land Claims Commission with the Restitution Directorate of the Department of Land Affairs. These changes saw the programme pick up pace significantly, so that by late 2001, about 12 678 claims had been settled. However, this improvement is overshadowed by the fact that less than 20 percent of the 68 878 claims received have been resolved to date.

The settlement statistics are also deceptive, because the 12 678 resolved claims have benefited fewer than 40 000 predominantly urban households — a total of fewer than 200 000 people — and more than 40 percent have received monetary compensation instead of land restoration. While monetary compensation is one form of redress, it is not land reform because it does not involve the transfer of land rights. The urban bias of restitution delivery also means this programme has so far done little to transform rural property relations, with most rural restitution claims still outstanding.

More disturbing are estimates that at current budgetary allocations, it will take more than 150 years to complete the restitution process — especially since the scarce available resources are spent predominantly in paying compensation (of as high as R13 million) to white landowners, while claimants encouraged to accept monetary compensation receive as little as R17 000 to R40 000. This is the result of the current wording and interpretation of our Constitutional private property clause.

Land Redistribution
Between 1994 and 1999 the Land Redistribution programme — operating through the provision of R16 000 Settlement and Land Acquisition Grants to households or groups to purchase land from willing sellers — also proceeded at an exceedingly slow pace, and resulted in poor quality land reform. At its delivery peak, between 1997 and 1999, the programme transferred an average 220 000 ha annually. A programme to meet the RDP promise would have needed to transfer roughly five million hectares annually, but by 31 March 1999 — the last statistics published by the Department of Land Affairs — less than half a million (480 400) hectares had been redistributed to 45 454 households.

Everyone agreed that the programme needed to be streamlined, and a review process had begun to address some of the problems ahead of the 1999 elections. The appointment of a new minister after the elections, however, resulted in a dramatic shift in the process, and a moratorium on new projects was imposed pending a lengthy period of internal policy development marked by a total absence of public consultation. When the Land Redistribution for Agricultural Development Programme (LRAD) was finally launched in August 2001, it clearly targeted “full-time farmers” and required beneficiaries to make a minimum R5 000 contribution.

The NLC and other rural sector organisations have argued that this requirement will effectively exclude the poor rural majority, marking a reversal of the White Paper’s pro-poor commitment. Although the government denies that the policy will exclude the poor, the NLC’s concern is based on the actual economic practices of poor rural people — which are based on combining “multiple livelihood strategies” that would prevent them from making the kind of single-minded commitment required to meet the demands of the new programme. A further concern lies in the fact that the new policy aims to redistribute 15 million hectares in five years, but neither subsequent budgets nor the Medium Term Economic Framework appear to provide even a fraction of the money this would require.

Tenure Reform
A further aspect of the glaring failure of land reform lies in the arena of tenure reform, where laws to protect the occupation rights of more than seven million farm dwellers — namely the Extension of Security of Tenure Act (Esta) of 1997 and the Land Reform (Labour Tenants) Act of 1995, are routinely ignored by racist rural police, prosecutors and magistrates, resulting in continuing evictions and insecurity augmenting an ongoing culture of abuse by farmers and other white rural elites. These laws are problematic in both letter and implementation. The problems of implementation relate both to the lack of funding and capacity within the Department of Land Affairs and to the lack of transformation of the rural criminal justice system — a fact consistently proved by the ongoing illegal evictions under common law and by the Land Claims Court automatic review process which often overturns evictions granted under Esta. A further problem lies in the lack of legal resources provided to farm dwellers to enforce their rights, thus denying them their constitutional right to court access.

Equally important is the lack of legislation to provide secure tenure to the 13 million people living in the former Bantustans. While progress toward the development of this legislation was achieved during a National Land Tenure Conference held in November 2001, the delays to date and the obstacles still to be overcome are of a political nature and linked to the government’s ongoing failure to resolve thorny questions on the role, powers and functions of traditional leaders. Most of South Africa’s black rural people currently live either on white farms or in the former Bantustans, so the lack of effective tenure reform for these two categories represents a further failure of government to address the needs of the landless.

The slow pace of land reform can be projected to continue, according to budgetary trends that consistently allocate about one third of one percent of national expenditure to the Department of Land Affairs (DLA). Budget analysts predict that at current spending patterns it will take 150 years to complete the restitution process, and 125 years to complete the redistribution of 30 percent of agricultural land to black people. While these projections clearly support the argument that market-based land reform will prove too expensive for the state, the consistent failure of the DLA to spend even its existing budget places it in constitutional jeopardy in respect of Section 25 (5), which requires the state to effect land redistribution within its “available resources”.

In the context of the government’s commitment to “willing seller, willing buyer” land reform, the use and allocation of resources is highly problematic. The Department of Land Affairs failed to spend nearly R1,4 billion of its budget between 1995 and 1999. The 2001/02 budget and MTEF predictions further slashed the land reform budget by R43 million last year, marking a 9,9 percent real decrease in the year the new redistribution programme — which at one stage promised to spend R5,5 billion in five years — was set to begin. The budget for redistribution is set to mark a real overall decline of 17,4 percent between 2000 and 2004. Worse still, only a fraction of this paltry budget actually goes to land reform, with the bulk of the Department’s bureaucracy dedicated to surveys and deeds and other tasks. The bulk of money set aside for land transfers is paid in compensation to white landowners, many of whom bought their land at subsidised rates and received further support from the apartheid regime. Although the Constitution provides for expropriation “in the public interest”, including for land reform, the Department withdrew its single attempt to expropriate the Boomplaats farm of Willem Pretorius earlier last year after he took them to court to increase the sale price of his farm, which was needed for a restitution claim. In the end, the government was forced to pay more for the farm.

The landless respond to the crisis
The vast disparity between the government’s 1994 commitments to land reform and the actual delivery levels to date has induced growing impatience and dissatisfaction among both the rural and the urban poor. The failure of post-apartheid land reform has worsened the impact on the nation’s poor of the ongoing unemployment crisis, the mechanisation and casualisation of farm labour, and the continuing spate of farm evictions and abuses of farm dwellers. Mine closures and retrenchments have sent substantial numbers of mineworkers back to their impoverished rural homes, adding further pressure to the competition between women and men over scarce rural resources, both within and outside the household. A dwindling of rural livelihood options has, simultaneously, continued to feed the informal settlements on the periphery of major cities and towns with an unsustainable rate of urbanisation by mainly unemployed people requiring substantial state support.

These various forms of social upheaval spanning South Africa’s rural-urban divide have coincided with the recent events in Zimbabwe. These have undoubtedly inspired many poor and desperate South Africans whose needs are simply not being met to take independent action to obtain a piece of land for settlement and/or production. The NLC had repeatedly warned the South African public and the government that land occupations — while substantially different from those in Zimbabwe in many respects — would escalate in South Africa if the failures of land reform were not urgently addressed. Thus the events of Groot Vlakfontein, Bredel, Mengete, Khayelitsha and many other sites of South African land occupations in late 2000-2001 came as no surprise to the NLC and other organisations working with the landless.

The Groot Vlakfontein case is, however, a classic demonstration of why poor and landless people are increasingly taking independent action to obtain land. The community had followed the proper channels and waited patiently for the government to process its restitution claim, but repeated broken promises and a three-year impasse when their claim failed to progress through the bureaucracy — despite the completion of the requisite validation research — had exhausted the community’s patience with the legal and bureaucratic process. One morning in June 2001 they decided to re-occupy the land from which they had been forcibly removed during apartheid. The state responded by arresting and charging the occupiers with trespassing on the land, but was also forced to complete the validation process. As a result of the community action, a bureaucratic snag that had halted the process for three years was resolved in three weeks, clearly showing that the South African government — like others around the world — responds better to pressure than to patience.

The last two years also saw a rise in organisation among landless people, including both efforts to seek the help of civic organisations, as evidenced in the Bredel saga, and efforts to stage protest actions at local levels, such as in Wakkerstroom, as well as efforts to raise the voice of the landless at a national level, through the formation of the Landless People’s Movement and its participation in protest action during the World Conference Against Racism in August 2001. A key demand emanating from disparate groupings of landless people and civil society organisations working with the landless has been the growing call for a national Land Summit to address the fundamental questions at the heart of the land crisis, namely the “willing seller, willing buyer” formulation and the commitment to market-led land reform.

The response of the government
Instead of opening a dialogue with the landless over the question of land occupations and the failure of land reform to meet any of its 1994 objectives, the government responded with the force of its predecessors. Land occupiers at Groot Vlakfontein were arrested and charged with trespassing on the land from which the government admits the occupiers had been forcibly removed during apartheid. In Bredel, private security guards destroyed meagre tin shacks erected by thousands of homeless people, and the minister of land affairs told them to “go back to where they came from”. The minister of housing dismissed the occupiers as foreigners and announced plans to amend the law to criminalise land occupiers and to imprison those convicted of such occupations for up to two years.

The government made no effort to distinguish between the character of land occupations in South Africa and Zimbabwe, nor to admit that the time had come for a fundamental review of land reform policy — or even that there was a problem with the current pace of land reform. Cornered by the Landless People’s Movement at the Landless People’s Assembly during the World Conference Against Racism, the minister of agriculture and land affairs promised to hold a Land Summit. When this fell off the agenda, the LPM protested at the National Land Tenure Conference, and the minister once again promised to call a Land Summit. The following day in a radio interview she reneged, saying she saw no need for a Land Summit.

Beyond Rights: Why land reform?
Despite the inclusion of fundamental rights to land reform in the South African Constitution, the state has exhibited a lack of political will to prioritise the fulfilment of these rights within its macro-economic strategy. This suggests that there is a need to go beyond the current rights-based discourse surrounding land reform to demonstrate the socio-economic importance of comprehensive land redistribution and rural development to growth and poverty reduction.

The South African government has committed itself to a conservative macro-economic strategy, detailed in the 1996 Growth, Employment and Redistribution (Gear) Strategy, which seeks to alleviate poverty in the long term through a growth-oriented strategy designed to inspire export-oriented industrial expansion by creating the conditions for foreign direct investment. Implicit in Gear and its associated development programmes is an urban bias in development policy rooted in the belief that modernisation brings urbanisation and that state resources should therefore concentrate on meeting the demands arising from this trend.

This strategy ignores the demographic profile of South Africa which, while predominantly urban (55 percent), is still significantly rural (45 percent), with strong rural-urban linkages among households. With more than 70 percent of the nation’s poorest concentrated in rural areas — many of these women, children and the elderly — further growth along this path can only exacerbate rural-urban inequalities. Increased urbanisation born of the desperation of rural poverty will further strain the already limited resources of urban metropolitan councils. The Gear strategy also importantly ignores ample economic analysis, including from the World Bank and some bilateral development agencies, which suggests that only certain kinds of growth can achieve poverty reduction, while others — particularly urban-biased, industrial-led growth in circumstances of severe inequality — tend to increase both inequality and poverty, while simultaneously slowing overall economic growth. Conversely, analysis of various developing country growth paths has demonstrated that agriculture-led growth — particularly following a redistribution of assets — can lead to higher overall economic growth, a reduction in inequality, and greater poverty reduction. This is because a more equitable growth in agricultural income — combined with the right development policies — can lead to the growth of a vibrant rural non-farm sector which lays the basis for further economic growth through industry.

The highly uneven distribution of rural incomes in South Africa is a direct consequence of land ownership patterns. Some 60 000 large-scale, mostly white commercial farmers dominate the agricultural sector. As a result, access to the bulk of the nation’s natural resources is denied to over 13 million people living in more marginal areas of the country, and to about seven million workers and tenants living on these farms. This imbalance in land holdings is reflected in gross income disparities between the two groups, and greatly impedes growth in rural incomes for poorer households, effectively stalling rural non-farm sector growth and poverty reduction.

One reason for this link between equality in land ownership and higher levels of economic growth in developing countries is the relative efficiency of farm production by large numbers of smaller farmers as opposed to small numbers of larger producers — the inverse relationship between farm size and productivity. Reducing land concentration is thus a more effective strategy against poverty than relying on agricultural growth alone. This is one important reason why the mere deracialisation of commercial agriculture — while being an important component of rural transformation — through the redistribution of land to a small number of black emerging commercial producers (as the LRAD programme seeks to achieve) will not succeed in stimulating sustainable economic growth or substantial poverty reduction.

The need for people-centred land reform
These socio-economic arguments, combined with the political imperatives which inspired South Africa’s original rights-based provisions for land reform, point clearly to the way forward: an economic growth strategy based on comprehensive rural economic transformation beginning with broad-based land and agrarian reform targeting the poor, as defined through popular participation and consultation.

The current policy focus (LRAD) of redistribution limits development in several ways: it seeks to concentrate resources in the hands of a small number of black commercial producers who are unlikely to spend much of their disposable income in the rural economy, while confining the poor majority to ongoing dependency on rural farm wages and paternalistic social relations; it limits the socially transformative impact of land reform to a small number of relative elites; and it delays the potential impact of asset redistribution on the ability of the poor to take economic risks and diversify their livelihood sources. In contrast, a genuinely participatory, pro-poor land reform policy would raise the incomes of the poor — whose marginal propensity to consume rural goods and services is high — while transforming rural social relations and improving the prospects for the rural poor to engage in sustainable livelihoods.

People’s participation (in particular people of excluded groups such as women and youth) in development must be a transforming act. Participation combined with popular education transforms people’s consciousness and leads to a process of self-actualisation, enabling oppressed people to take control of their lives. Such participation must, however, entail the achievement of power in terms of access to and control over the resources necessary to protect livelihoods.

Land is a primary means of subsistence and income generation in rural economies. Access to land allows rural families to put their labour to productive use in farming, while providing a supplementary source of livelihoods for rural workers and the urban poor. Land can be loaned, rented or sold in times of extreme distress, thus providing a degree of financial security. Importantly, as a heritable resource, land is the basis of wealth and livelihood security of future rural generations. Rights in land and access in land are major determinants of a household’s capacity to choose and plan its own level of farm employment. Access to land also strengthens the hand of the rural poor in their participation in the labour market, while contributing significantly to rural employment growth, both through multipliers back into agriculture and into the growth of a vibrant rural non-farm sector. Thus broad-based land redistribution to the poor can reverse the pattern of rural asset extraction which has historically stymied developing country economic growth. Land reform can also promote more equitable patterns of growth that shift income and power to the poor.

Land redistribution is inevitably a highly politicised process. However, the persistence of poverty, poor economic performance, and growing inequality makes such reforms both necessary and urgent. Land reform has succeeded in combating poverty and promoting economic growth in many developing countries, particularly several erstwhile Asian Tigers. Key characteristics of effective land reform policies include: explicit targeting of the poor; ceilings on land ownership; the existence of marketing opportunities for farm produce; the provision of agrarian support services as part of a broader rural development focus; focused, co-ordinated programmes that are sustained for long periods of a decade or more; beneficiary participation in design and implementation of programmes; and flexibly-designed tenure reforms.

Achieving these results often requires a firm political commitment by governments to overcome the entrenched power of existing landowners. While this may present an uncomfortable challenge to a reconciliatory state concerned with stability, the failure to do so, and the resulting delays in asset redistribution, may weaken the political impetus of change, further entrenching unworkable asset disparities, and fuelling increased tensions and potential for conflict. In short, for the sake of long-term political and economic stability it is better for a country like South Africa, with the highest income disparity in the world, to face the pain of a radical redistribution of assets through land reform now than to face the long-term instability which emanates from delaying the resolution of the land question.

The way forward
The South African state has committed itself both to land reform and to a macro-economic strategy which presently appears to contradict its stated commitment to land reform. Nevertheless, the right to land reform is enshrined in three fundamental rights clauses of the Constitution. These are further bolstered by the requirement of Section 7 (2) that “the state must respect, protect, promote and fulfil the rights in the Bill of Rights”, including those to land reform. A further fundamental right to just administrative action (Section 33) grants “the right to administrative action that is lawful, reasonable and procedurally fair” and requires the adoption of legislation to promote an efficient administration. This implies both that rural people receive a fair share of national resources, and that the state fulfils its obligations to the landless in a fair and efficient manner.

The state has not fulfilled this, or any other of its obligations to landless people, and this failure has resulted in an escalation of the land crisis created by colonialism and apartheid. South Africa’s land question stands at a crossroads. On the one hand lies the option of continuing on the current path, rooted in perceptions that resources should be dedicated to urban industrial-led growth on the premise that modernisation will increase urbanisation. This ignores the fact that roughly 45 percent of South Africa’s population lives in rural areas and needs land, while the problem of urban landlessness is also growing more apparent. Ignoring these needs can only lead to a further escalation of the crisis, including more land occupations by the desperately poor and landless in both rural and urban areas. It will also lead to deepening rural poverty and a further concentration of wealth in South Africa’s cities, with poverty-inspired urbanisation swamping urban housing and service backlogs and causing further social disintegration with all of its negative symptoms.

The other path leading from this crossroads is one of dialogue and a radical policy shift rooted in consultation with the landless and a participatory pro-poor land reform. This requires a willingness on the part of government — and white landowners — to admit that the current programme has failed and that the time has come for a fundamental policy review through a representative, participatory and comprehensive national Land Summit, through the opening of policy processes generally to public consultation, and through the acceptance that only urgent and radical land redistribution now can secure long-term domestic stability. As land reform analyst Robert Christiansen points out in a review of land reform programmes around the world, “(one) characteristic of a successful programme is rapid implementation. In the absence of fast-paced programmes, a combination of bureaucratic inertia, legal challenges and the power of the present is likely to render the programme ineffective.” South Africa’s programme has thus far been extremely slow and ineffective. Only by making a decisive shift now — and biting the bullet on an initial threat to property rights — can we hope to establish long-term political and economic stability.

LitNet: 2 July 2004

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