A constitutional amendment will not solve the issueApr 25th 2019Print edition | Special report
SIGNED INTO law by Nelson Mandela in 1996, South Africa’s constitution is one of the world’s great liberal documents. It enshrines the basic rights of all South Africans to equality before the law, regardless of race, gender or sexuality. It insists on citizens’ rights to education, health care and shelter. Mandela said that it showed, “We are at last maturing to become a normal society.”
One section has, however, remained controversial. Section 25 outlines the law on land and property rights, prohibiting the “arbitrary deprivation of property”, while limiting expropriation to cases in the public interest, for which landholders would receive “just and equitable” compensation. Since its founding in 2013 the Economic Freedom Fighters (EFF), a hard-left black-nationalist offshoot of the ANC, has called for this section to be ripped up. It wants Zimbabwe-style seizures, with all land passing to the ownership of the state. Though this policy would be the fast-track to economic ruin it has proved attractive to some frustrated voters.
The ANC long opposed changes to Section 25. But last year, fearing that the EFF was eroding its base of black voters, and keen to make life difficult for Mr Ramaphosa, the left wing of the party persuaded it to support “expropriation without compensation”. The government is now committed to amending the constitution.
Though Mr Ramaphosa vows that any change will not hurt the economy, many people are worried. Opponents say it is just one of more than two dozen initiatives launched since 2007 that jeopardise property rights. A further assault, they say, would undermine a fragile environment for investment.
Any discussion of land in South Africa must reckon with the unequal legacy of white rule. It must also recognise that since 1994 the ANC’s approach to land has involved administrative incompetence and widespread corruption. That has meant the poorest, landless South Africans continue to suffer.
There were wars of conquest in southern Africa before Dutch settlers arrived in 1652. But white rule changed the nature of conflicts over land. Superior weaponry meant the taking of land was a one-way occurrence. And whites legislated for, and codified, dispossession in a way that was also new. In 1913 the Natives Land Act reserved 90% of the country for whites, who then made up 21% of the population. Under the formalised racism of apartheid 3.5m blacks were forcibly moved to isolated reservations called “homelands”. These were often far from places of work, so men would have to travel and stay in single-sex hostels (like Glebelands). Thus apartheid not only deprived black South Africans of the ability to own property, but also broke up family units. Today much of the most concentrated poverty is in the former homelands.
Mr Ramaphosa calls the displacement of black people South Africa’s “original sin”. When the ANC took office in 1994 it pledged to tackle historic injustices. It promised restitution to those removed from their land after 1913, funding for the broader redistribution of land from whites to blacks, and strengthening of property rights for the black majority. It set itself the target of transferring 30% of white land to black ownership by 2014.
Today more land is under black ownership. Although there is no comprehensive audit of land based on the race of owners, a paper by Wandile Sihlobo and Tinashe Kapuya estimates that 17.4m hectares (43m acres) have been transferred from white ownership since 1994, equivalent to 21% of freehold farmland. This includes land bought by the state or by individuals on the open market. “Land reform, with the assistance of the market, has, therefore, moved us closer to the 30% target than what is commonly believed,” the authors conclude.
That more has not been achieved is primarily the failure of the ANC. More than 90% of land bought and redistributed by the state lies fallow, much of it turned over to subsistence farming or squatter camps. Commercial farming is a complex, capital-intensive business. But few black farmers were given the skills or capital to help them pursue such projects. The government spends more money each year on security for VIPs than on land redistribution.
Progress in the area of land restitution—compensation for those known to have been disposessed—has been similarly slow. Nelson Mandela’s government said that all claims would have to be submitted by 1998. But the complexity of the cases soon overwhelmed the bureaucracy. Rather than fund the process properly the ANC let the cases pile up. Then in 2009 there was a “catastrophic shift”, says Glenn Farred of AFRA, an NGO that campaigns on behalf of the landless. After Mr Zuma became president he allowed new claims to be filed, and prioritised the often dubious cases of powerful tribal authorities.
And yet this is not even the biggest failure of land policy. Under apartheid most black citizens had no land titles, which meant they had no ability to borrow against their property or to sell land for market value. The ANC promised that it would secure tenure for the landless. But, as William Beinart, Peter Delius and Michelle Hay argue in their book, “Rights to Land”, most people’s property rights are “probably weaker and more uncertain” than in 1994.
These include the 60% of landowners who have “off-register” titles, where their property is not part of a formal register. Then there are the roughly 20m South Africans in the former homelands, who have next to no property rights. In theory the land is owned “communally”. In practice it belongs to local leaders. And, says Aninka Claassens of the University of Cape Town, since those leaders are useful for getting out the vote, and for providing kickbacks, the ANC has joined with them in “extraordinary levels of corruption”.
At best the desire for land reform is an understandable reflection of the enduring inequalities caused by white rule. At worst it is a cynical tool that risks hurting the economy and thus the poorest citizens. Either way it threatens to undermine confidence in Mr Ramaphosa’s economic policies. Like any politician, the president has to take into account the dynamics of his party. But a truly reformist president would not just meekly accept a needless change to the constitution. He would properly fund land reforms. And he would insist that the millions of people left landless by apartheid and the ANC finally get title to their own piece of earth.