Expropriation without compensation: implications of ANC policy

By Lungisile Ntsebeza | Amandla! Magazine | April 2018

King Zwelethini is up in arms over threats to his Ingonyama Trust, just two months after endorsing ANC policy.

This is an edited version of a slightly longer article published in Daily Maverick on 11 March.

ANC position today

The recent motion for land expropriation without compensation in the National Assembly was brought by the Economic Freedom Fighters (EFF) and supported with an amendment by the African National Congress (ANC). It was overwhelmingly adopted.

After years of supporting a market-led land reform programme and not heeding criticisms of this policy, the ANC leadership has suddenly changed gear, at least at the level of rhetoric, to advance a radical thesis of expropriating land without compensation.

Expropriation without compensation was endorsed as policy at the 54th conference of the ANC in December 2017. Three weeks later, on 7 January 2018, Cyril Ramaphosa, the new President of the ANC who is now also the President of South Africa, visited the Zulu monarch, King Goodwill Zwelithini, at his Osuthu Palace at Nongoma to introduce the top six members of the ANC’s National Executive Committee (NEC).

He conveyed to the monarch the newly adopted policy of the ANC in these terms: “Taking land should not be equal to destroying our economy. Taking land should be equal to making our economy grow, and farm production grow.” He went further: “In fact, it is possible for us to begin a process of working the land and improving agriculture – making it a very successful factor in our country.”

Ramaphosa made an undertaking that the ANC would build on the “enormous potential of agriculture to promote industrialisation, create employment and transform our economy”, an economy that would be open for business and investment.

Ramaphosa did not give details as to how this ambitious and seeming contradictory project would be achieved. We are, as I write this article at the beginning of March, still awaiting these details.

King Zwelithini is reported to have endorsed Ramaphosa’s position, indicating that he looked to Ramaphosa “to act … with speed”. It was reported that this was followed by an exchange of “gifts of cattle.”

It is interesting to note that hardly two months after endorsing the ANC policy, the monarch is up in arms, seeing the policy as a threat to his Ingonyama Trust which owns the rural land of the former KwaZulu Bantustan.

Colonial and apartheid legacies

The ANC-led government inherited an extremely skewed, race-based distribution of ownership, access and use of land. This was as a result of brutal and violent dispossession of the land of the indigenous people of what is now South Africa by Europeans who decided to settle in the land.

By 1913, when the Natives Land Act was passed and enforced, the immense majority of the indigenous people, the Africans, were restricted to “Reserves”, which constituted a mere seven percent of the land. They were given rights of occupation.

The turning point was the discovery of minerals, especially gold, and the subsequent need for cheap labour. For this to be achieved, the defeated Africans were to be starved of ownership and access to land. Black farmers and peasants that were emerging in the late 19th century were discouraged by being denied land and support.

Without adequate land and support, Africans were forced to sell their labour, cheaply, in the mines, on farms and in the emerging white controlled towns and cities.

More than 80% of South Africa’s agricultural land was in the hands of white commercial farmers, who received enormous support from the state in the form of extension officers, marketing strategies and state subsidies – all of which were denied to their African counterparts. There were about 55,000 white commercial famers in 1994. The number has dropped to about 36,000.

This in broad strokes is what the ANC inherited in 1994. It did so under conditions of a compromise, with the ANC clearly a junior partner in the control of the economy in particular.

ANCs land reform programme and its features

Soon after taking over, the ANC adopted a land reform programme which has three components:
• land restitution for those who lost their rights in land on and after 19 June 1913;
• land redistribution to redress racial imbalances in ownership of commercial land
• land tenure to protect the rights of farm workers and dwellers, labour tenants and those residing in the rural areas of the former bantustans.

The goal of the ANC in 1994 was that 30 per cent of agricultural land would be transferred from white to black hands.

A feature of the ANC land reform programme was that the land would be purchased from white commercial farms. The ANC government even went so far as to commit itself, unforced, to a willing seller, willing buyer policy.

At present, the land reform programme has only transferred about 8% of the land to black people.

Performance

The land reform programme has been a dismal failure. Less than 1% of land had exchanged hands by 1999. This prompted the ANC, now under Mbeki, to change the date to 2014.

As things are, only about 8% of the land has been transferred to black hands under the land reform programme.

Rise of the EFF

The emergence of the Economic Freedom Fighters, and specifically their demand for expropriation without compensation, clearly put pressure on the ANC. The EFF’s policy appeals especially to the youth in urban areas who need land for mainly residential purposes. The EFF was clearly capitalising on so-called service delivery protests, which have been a feature of South Africa since the turn of the century under the Mbeki Presidency. Further, the EFF rise occurred in the context of deep divisions within the ANC and loss of confidence in the ANC, seen in the results of the 2016 local government elections.

It is, against this background that we should understand the ANC about turn on the land question.

Zuma set the ball rolling

Zuma might have seen the land question as yet another instrument at his disposal that would extend his lease of life in the ANC. He expressed his intention as early as January 2017 when he delivered the ANC’s anniversary statement:

It is time to return the land to our people. Our land reform and land redistribution programmes have shown measurable success … We must show courage and determination to ensure that the land is returned to the people … The Constitution allows for the expropriation of land for a public purpose and in the public interest. This year, we shall begin to utilise the Expropriation of Land Act to pursue land reform and land redistribution, with greater speed and urgency, following the prescripts of our Constitution.

He took up the issue of expropriation in his State of the Nation (Sona) address on 9 February 2009, when he admitted that: “It will be difficult if not impossible, to achieve true reconciliation until the land question is resolved.”

Less than two weeks later, Zuma changed gear and announced that South Africa was going to change its laws to allow government to expropriate land without compensation. According to him: “We are busy amending (laws) to enable faster land reform, including land expropriation without compensation as provided for in the constitution.”

Zuma repeated this call a week later, at the opening of the National House of Traditional leaders. He then took this position to the ANC’s National Policy Conference in July. He announced, in his closing remarks:

“We agree on the imperative to accelerate land redistribution and land reform. Again we had robust discussions on the modalities to achieve this. We agree that using the fiscus for land redistribution must be accompanied by other measures if we are to achieve the goal at the required pace … Where it is necessary and unavoidable this may include expropriation without compensation. The Constitution provides for legislative changes to be effected in the democratic process.”

It is important to note that Zuma made this announcement against the backdrop of the run up to the December 2017 conference. His position on land could thus be seen not as an expression of ANC policy, but as the position of his “slate”. Indeed, some members of the ANC rejected the notion of expropriation without compensation when Zuma first raised it, some labeling Zuma a populist, as land expropriation without compensation was not the party’s policy.

Analysts at the time saw Zuma’s move as “a massive ambush for Cyril Ramaphosa”, whose aim was a big win at the ANC policy conference in June 2017, “and from there to create an unstoppable wave heading for the elective conference in December” 2017.

As we now know, Zuma’s preferred candidate did not win the Presidency of the ANC. However, on the issue of the ANC policy on land, he emerged the winner with the adoption of expropriation of land without compensation as ANC policy.

The emergence of the EFF and their demand for expropriation without compensation has put pressure on the ANC.

Is the current ANC policy on land implementable?

It is not possible to expropriate land without compensation under the current constitution. Section 25 of the Constitution, is very clear that “Property may be expropriated only in terms of law of general application … subject to compensation”.

What this means is that the Constitution would have to be amended, which will not be easy. For example, a two-thirds majority in the National Assembly and six out of nine provinces are needed.

Further, there is the question as to how investors are likely to respond and also the possibility of litigation – a very costly business. There is also the threat that is posed by the Zulu monarch who is mobilising against the disestablishing of the Ingonyama Trust.

What then are the implications for resolving the land question?

Reflections

The unresolved land question in South Africa is a time bomb. An entirely different approach is required if democracy is to survive in our country.

The starting point must be an acknowledgement and recognition that the former bantustans were established in order to control the indigenous majority and to advance a racialised form of capitalist development in South Africa. Dismantling the former bantustans must be a priority. But for the ANC-led government, dismantling the former bantustans is not their priority. On the contrary, there is a perpetuation of this system in the countryside at both the level of land tenure and governance. The Ramaphosa administration is not offering anything refreshing given his attempt to woo chiefs at the potential expense of muzzling the voices of residents under the jurisdiction of chiefs.

Linked to this is the need to do research on the state of agriculture in South Africa. The main purpose would be to identify unused and under-utilised farms, as well as those which are in debt. It is these farms that should be targeted for expropriation so as to put them into production.

A concern that is often raised, whenever the land question in South Africa comes up, is that the productive capacity of agriculture will be endangered. But this concern does not take into account the reality that not all agricultural land is under production. Under these circumstances, expropriation may well lead to increase in production.

On the thorny issue of compensation, firstly there would be no need to compensate farmers that are in debt. For the un-used and underutilised land, the legal owners would have to be persuaded that they should donate the land they are not using. The key issue here is that the discussion on land would be conducted in accordance with the constitutional requirement that land reform should “bring about equitable access to all South Africa’s natural resources”. The state is required to 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”. This formulation does not give priority to the dictates of the “market”, which encourages landholders to hold back unused land.

Expropriated land would be used to address land hunger primarily in the former bantustans, but also for the benefit of farm workers and farm dwellers. Priority would be given to those who have demonstrated commitment to a land-based lifestyle and are growing crops and fruit in the gardens of their residential plots, and keeping stock. Crucially, these individuals should be organised into producer cooperatives in order to avoid monopoly of land by a few individuals.

What about governance?

Democratic governance and development structures should be promoted. We must do away with unelected and unaccountable individuals such as chiefs and, in some provinces, headmen. They should be replaced by democratically elected and accountable leaders both in development and in political initiative.

While it is important to focus on the former homelands, it is also necessary to ensure that these areas are not treated as isolated islands quite apart from the rest of the country. They remain different because of a distinctive form of land tenure and also the continued role of traditional authorities in local government. But they still form an integral part of the body politic. Moreover, the economic linkages with neighbouring areas, through labour and commodity exchanges, suggest that an inclusive approach is necessary to understand how to transcend the geographies of apartheid.

On the question of agency, purely statist and technocratic solutions, which do not take account of the struggles from below, will simply not be able to deal with the abiding problems of land. It will take pressures and mobilisation from below, with those directly affected at the heart of the struggles. Given the power of global capital, and a state that acts in its interests, organised social movements become a necessity.

Ofcourse these struggles from below are indeterminate, uncertain and unpredictable, but they hold the promise of giving ordinary people the chance to participate in the making of their own futures. Just as popular struggle from below brought formal apartheid to its knees, the ongoing and widespread protests in the country are a powerful sign of the continuing crises of poverty and social reproduction.

Lungisile Ntsebeza is NRF Research Chair in Land Reform and Democracy in South Africa and AC Jordan Chair in African Studies Centre for African Studies, UCT.