Notes by Professor Muxe Nkondo on the land question, the law and economic justices in South Africa hosted by the National Heritage Council at UNISA, Pretoria.
1. Introduction
The title of my notes comes from the Freedom Charter and the Bill of Rights. Its multiple applications should duly emerge. Lest they proliferate too wildly or, worse, fail to emerge at all, let me offer a few loose guidelines. Notes ought to be loose. The audience and readers have their work to do.
This is not a long, discursive exposition of the land question in South Africa, although it implies one, but a triptych of interrelated ideas on the land question in our country as it has appeared over time in the fields of policy, legislation, institutional arrangements, and regulations. Notes are not supposed to be overkill. I am after a socio-economic rights perspective.
2. Guiding Notes
1. At the core of the land question in South Africa, is the question: how can large-scale redistribution of land provide redress for centuries of dispossession while contributing to the economy and the elimination of poverty?
a) Key questions addressed in the literature include:
· What are the goals of land reform in South Africa (redress of historical imbalances, black economic empowerment, and poverty elimination)?
· Who should be its primary beneficiaries (the rural poor, women, farm dwellers, rural entrepreneurs, a new class of African commercial farmers)?
· What are the appropriate mechanisms to acquire and redistribute land (willing seller willing buyer transactions, land taxes, limits to family households, state purchase, resettlement, and appropriation)?
· What role can a rights-based land restitution programme play in changing patterns of land ownership?
· What kinds of post-settlement support services do land reform beneficiaries require, and who will provide them?
· What wider transformations of the structure of the agrarian political economy are required to reduce structural poverty and inequality, and what policies can promote such transformations?
b) Perspectives on the Land Question
i. Knowledge of our burdensome past can help to emancipate us from the burden of systemic exclusion (Sampie Terreblanche,) A History of Inequality in South Africa 1652 – 2002 (See Part 1: Power, Land and Labour, Chapter 1).
ii. One of the key challenges facing the post – 1994 South African state, is how to redress racial inequalities in land ownership resulting from colonial conquest and the violent dispossession of indigenous people of their land. (Ruth Hall and Lungisile Ntsebenza, “Introduction,” The Land Question in South Africa: The Challenge of Transformation and Redistribution (HSRC, 2007).
iii. “Historically, white settlers in South Africa appropriated more than 90% of the land surface under the 1913 Native Land Act, confining the indigenous people to reserves in the remaining marginal portion of land” Ruth Hall and Lungisile Ntsebenza, The Land Question in South Africa.
iv. Forced seizure of land led to the disintegration of the African social and economic fabric. See Colin Burdy (1998) The Rise and Fall of the South African Peasantry and Govan Mbeki, The Peasant Revolt.
v. The provisions of the Glen Grey Act in 1894 by Cecil John Rhodes, compelling Africans to become wage labourers, were incorporated in the Native Land Act of 1913. The Act forbade Africans to buy and own land outside the 7% of the land that was reserved for their occupation. See Colin Burdy, The Rise and Fall of the South African Peasantry.
vi. The Native Land Act of 1913 has resulted in what Thabo Mbeki has called a country with “two economies”: a developed core that is well connected to the international economy and a periphery of informal urban settlements and rural areas. The latter are characterized by weak local economies, low-wage casual and seasonal work, low-income self-employment, and hunger.
vii. In the same vein, Harold Wolpe (1972) has argued that the development of mining capital in South Africa was “inextricably linked” with the reserves, the so-called subsistence and informal economy of Thabo Mbeki’s two economies. See Harold Wolpe (1972), Capitalism and Cheap Labour in South Africa: From Segregation to Apartheid, Economy and Society.
viii. These considerations raise the following question: is there a role for land in the struggle against poverty in South Africa, especially given the inability of the urban economy to create jobs?
ix. Today the demand for land in South Africa is one of numerous survival strategies that some rural people adopt in response to the crisis of the reproduction of labour. See Benstein H. (ed.) (1996) Journal of Peasant Studies 23 (2/3), Special Issue on The Agrarian Question in South Africa.
x. Sam Moyo takes the view that land remains a basic source of livelihood for the majority of people in Southern African, who depend on land in sectors such as agriculture, tourism, mining, housing, and industry. According to him, the land question is not only an agrarian issue, but also a critical social question. See Sam Moyo (2002), “The Land Question in Southern Africa: A comparative Review,” in The Land Question in South Africa: The Challenge of Transformation and Redistribution.
xi. In South Africa, like in other countries subjected to large-scale land dispossession and settler colonialism which went through a negotiated political transition, the legacy of racially unequal land control was by and large maintained at independence in the form of constitutional guarantees such as the protection of existing property rights. See, also, Samir Amin (1976), Unequal Development and Archie Mafeje, “The Agrarian Question and Food Production in Southern Africa,” in Kwesi K Prah (ed.) Food Security Issues in Southern Africa: Selected Proceedings of the Conference on Food Security Issues in Southern Africa.
xii. But Mamood Mamdani argues that South Africa is not primarily an agrarian society, and the extent of dispossession of the land of indigenous people has been such that a large number of them were converted into wage workers. See Mamdani (1996), Citizen and Subject: Contemporary Africa and the Legacy of Late Capitalism.
xiii. Evidence of the demand for land in South Africa: the establishment of the Landless People’s Movement in 2001 and the People’s Tribunal on Landlessness that was organized by the Trust for Community Outreach and Education in December 2002, provide some pertinent examples of the demand for land. The demand for land is particularly acute among livestock owners (See Ncapayi F. (2005), Land Need in South Africa: Who Wants Land, For What? (Unpublished Master’s thesis, University of the Western Cape). This study was based on research in the Xhalanga magistrate district in the Eastern Cape.
c) The Slow Pace of Land Reform in South Africa
i. In the early 1990s, after the unbanning of the liberation movements, the World Bank convinced the ANC that 30% of commercial farm land in the former „White areas could be transferred to 600, 00 small-holders through a market-led programme of land redistribution. But this has turned out to be much more difficult than anticipated.
ii. Ten years into democracy only about 3% of agricultural land had been transferred through the Land Reform Programme.
iii. Some of the reasons cited for slow progress include institutional weakness, limited budgets, and the reactive approach to the programme, which relies on landowners offering property for sale (the willing-seller, willing-buyer transaction).
iv. Lungisile Ntsebeza argues that the property clause in the Constitution is an impediment to meaningful land reform. While it does not prohibit appropriation, current interpretation requires market prices to be paid and this still renders land reform dependent on land markets.
d) The Politics of the Land Question
The land question can be resolved only through political processes: in sustained deliberation between the landless, the farmers, agribusiness, NGOs, political parties, and trade unions.
i. During the apartheid years, a network of land-based NGO.s established the National Land Commission.
ii. The ANC.s decision to adopt the market-based „willing buyer, willing seller’s principle as the basis for land reform in 1997, over and about the advancement of the property clause in the Constitution, is largely responsible for the slow pace of land reform.
iii. Frustration led the National Land Commission to support the Landless People’s Movement which forged links with the Brazilian Worker’s Movement.
iv. The Congress of South African Trade Unions has acknowledged the importance of advancing a more progressive, rapid, and pro-poor land reform.
v. And since its Red October campaign in 2004, the South African Communist Party has called for a radical agrarian reform to replace the “willing buyer, willing seller’s ” market – led redistribution.
e) Resolutions of the Land Summit (2001)
i. The Summit was built around the theme “A Partnership to Fast Track Land Reform: A New Trajectory, Forward to 2014.”
ii. The year 2014 is the new target set by government for the redistribution of 30% of farmland to Africans. Eleven years after democracy, just over 3% of agricultural land had been transferred.
The following resolutions were adapted:
· The state should be proactive and be the driving force behind land redistribution;
· The willing seller, willing buyer principle should be rejected;
· The state should have the right to first refusal on all land sales;
· Land reform should benefit the poor, particularly women, farm workers and youth; and
· Land should be appropriated.
iii. Shortly before the Summit, more than 20 organizations, including the former affiliates of the National Land Committee, the Trust for Community Outreach and Education, the Landless People’s Movement, Lawyers for Human Rights, Women on Farms Project and the Young Communist League came together to constitute a new consortium pressing for land reform, which they named Alliance of Land and Agrarian Reform Movement. Its stated mission is “for a people-centered rural transformation rooted in a rapid and fundamental transfer of land and the promotion of security for those living and working on the land.”
iv. The focus turned almost wholly on the mode of land acquisition rather than on issues of land use, or on the ways in which redistribution of land might be the basis for different social relations of production and reproduction in society.
f) Search for Alternatives
i. First, there is the view that the fundamentals are in place, but there is a need to fine-tune policy, to manipulate land markets to make them more pro-poor, and to improve modalities of implementation.
ii. Second, that the neo-liberal solutions are not working and this demands a rethink within a capitalist paradigm.
iii. Third, is a radical, anti-capitalist and socialist perspective, which locates land reform within the wider economy of South Africa and advocates cooperative farming and possible nationalization of land.
iv. At the Land Summit, Andile Mngxitama, a land-rights activist, at the time Land Rights Coordination of the National Land Committee, called for a democratization of land ownership that would involve a people-driven (rather than state-driven) process of land occupation of unutilized or underutilized land.
3. The Right to Work, the Right to Education, the Right to Water, and the Right to Food:
Interpretation and Enforcement of Socio-economic Rights, and Implications for Equal Access to Land Commenting on the very first socio-economic rights case to come before the Constitutional Court, the late Chief Justice Chaskalson had this to say: “We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.”
With this statement, Chaskalson urges us to construct an account of how we should think about socio-economic rights and what that will mean for our implementation of those rights.
a) Guiding notes
The following questions should guide our thinking:
· Why is it that the fundamental justification for civil and political rights is not the same as the justification for socio-economic rights?
· Why is it that socio-economic rights are conditional, and yet civil and political rights are not? And why is it that we have allowed the basic law of the country to frustrate the deep historic desire for a society where no person is left hungry or thirsty, semi-education or uneducated, homeless or living in a shack, lacking medical treatment or social assistance?
· Why is it that the Dalai Lama case has provoked more protests and outrage among human rights groups than the daily rub and grind of hunger and homelessness?
· What has made it difficult for us, since the democratic transition in 1994, to advance a nuanced and compelling account of the limitations or conditionality of socio-economic rights and a persuasive argument for judicial review of those rights?
· Why is it that after adopting the Batho Pele White Paper in 1998, we lost the passion and the conviction that we must strive to make this country a better place for all who live in it?
· Does the right to work, the right to education, the right to water, the right to decent shelter, and the right to food depend on filling the constitutional void that Chaskalson refers to?
· To what extent are all this rights limited by unequal access to land? It is vital not just to the health of our constitutional democracy, but to the actual lives of the millions that there is a robust debate in universities, civil society organizations, research institutes, and legal circles about the content and disposition of our Bill of Rights. The questions above are posed in the hope that students, academics, politicians, captains of industry, and public officials will not be satisfied with politically expedient rhetoric but will, as a matter of urgency, adopt policies and laws designed to ensure that the basic needs of all individuals are met. The questions suggest at least three things: first, the development of a politics that provides a common normative foundation for both civil and political rights and socio-economic rights; second, they have implications for the interpretation and enforcement of socio-economic rights; and third, they have important policy implications and can assist in creating an urgency and commitment towards the eradication of poverty, unequal access to land, and the elimination of social and economic inequalities.