South Africa Needs A Law That Says What Equitable Access To Land Is

This is a transcribed interview with Ruth Hall, a professor at the University of the Western Cape at PLAAS, which she joined in 2002. A political scientist by training, she specialises in the politics and the political economy of agrarian reform, land redistribution, and poverty.

Q: Constitutionally speaking, what is the land debate actually about?

A: The Constitution doesn't distinguish between different forms of property. The "property clause" – section 25 of the Bill of Rights – applies to all property, whether it be farmland, commercial farmland, communal land, urban residential land... It also refers to property other than land.

So it relates to any form of asset, and it doesn't provide blanket protection of property rights (private property). It does say that any deprivation of property should be done in a manner that is "just and equitable".

This motion which has gone through talked about expropriation of land without compensation, but the actual provisions in the constitution already allow for expropriation of any form of property, including land – subject to the payment of "just and equitable" compensation. Those provisions have already been there since 1996 – what is being proposed now, is that it should be possible to expropriate land without any compensation.

The EFF hasn't mentioned other forms of property, which is interesting. So they are talking about land specifically, and if you look at what the EFF has said, they are in fact calling for the nationalisation of land. In other words, the state should own all land; so all of us as property owners or holders, would be leasing property or land from the state.

I think the ANC thinks something quite different. The ANC has not talked about nationalisation of land; what they're saying is that expropriation without compensation should be among the options and tools at its disposal.

But we need to be realistic – the ANC has never shown much interest in expropriating land for land-reform purposes. In fact, even though it has had this power since 1996, it has chosen not to do so. And I think there's the widespread view that the "willing buyer, willing seller" policy is in the Constitution – and it's not. The Constitution says nothing about paying market price; it says nothing about "willing buyer, willing seller".

We are in a situation where the government has chosen not to use the constitutional provisions around property to advance land reform for all this time, and has now decided to agree to this notion of revising the Constitution.

Q: Is it practical to carry this through, with the ideological differences between the ANC and the EFF?

A: I think that the deep ideological divisions between (and within) the ANC and the EFF are going to come out to play between now and the end of August – which is the period which has been provided for the constitutional review committee to take the motion forward and to propose amendments to the Constitution.

I think essentially what we saw on Tuesday was a false consensus – what seemed to be playing out in Parliament was the ANC agreeing with the EFF, congratulating one another, saying it's high time they agreed on this, etc.

But actually, what the EFF is asking for is the nationalisation of land – and (especially under the Ramaphosa presidency) I don't think we're looking at nationalisation.

President Ramaphosa has his work cut out for him. It's going to be difficult for him going forward, holding together the ANC – which is now deeply divided on this issue – between those who actually agree with the EFF, and those who propose a more varied range of options (as Ramaphosa said) – so that you can buy on the open market, you can negotiate, you can expropriate and you can drive down compensation, or in some cases not compensate at all.

In the same breath in which Ramaphosa talked about expropriation without compensation, he said three things:

1) Any changes must promote rather than disincentivise agricultural investments;

2) They must not threaten food security;

3) They must be the result of consulting widely on this including with financial institutions.

He is going to have to take forward and enact the resolution that was taken at Nasrec at the ANC's 54th conference in December, and at the same time appease financial interest and investors, and that's going to be difficult balancing act going forward.

Q: Looking at the unfinished business of Codesa... Could this land debate undo the settlement that was made and agreed upon back in the 1990s?

A: Yes, it does potentially change the form of the settlement. Land and the nature of property rights were among the last issues that were a sticking point in the negotiations at Codesa in 1993. The interim constitution provided some protection of property rights, but the 1996 constitution really went much further in terms of advancing the land-reform agenda.

So the agreement was not that private property will be protected. The agreement was that there must be transformation, there must be land redistribution and restitution, there must be security for people who have insecure and informal rights.

The property clause that was finally agreed to in 1996 was, in fact, a mandate for transformation. It imposes an obligation on the state to transform property relations, to create greater equality in society, and to overcome inequality that has been inherited from the past.

So, we sit with a problem which is that government hasn't actually implemented the transformation. The best summary of what government was meant to do over the past two decades, versus what it has actually done, is the report from the high-level panel that was commissioned by Parliament and chaired by former president Kgalema Motlanthe. It reported that it spent 18 months commissioning studies across the country and holding hearings in every province, where ordinary people talked about these issues.

And what it found was quite devastating – there's enormous demand for land, and people are frustrated by the process. There's been corruption and patronage in the land-reform process – people don't have secure rights, farm owners have been evicted – there are a huge number of issues here.

What the Motlanthe panel argued is that the constitution has not been an impediment to land reform. The problems have been an absolute failure of political will, policy direction and institutional capacity. Those are the key issues – and an important point which was also raised within this was that the problem is clearly not only how to get the land, it's also a question of who should get it, and what for?

Section 25.5 in the Bill of Rights is a clause that mandates land redistribution, and it says that the state must take reasonable legislative and other measures to promote access to land on an equitable basis.

So what is equitable access to land? This has never been defined, and the Motlanthe panel was actually not good enough. We need a law that says what equitable access to land is. If the state has limited capacity and there are competing needs for land – what is an equitable approach, whose needs should be prioritised and how can the government even find out what those needs are?

It proposes a process and a set of criteria that should be embodied in the new law – a national land-reform framework bill that would actually ensure that the land-reform process is focused on dealing with basic needs for poor people who are landless. And not transferring large commercial farms from one owner to another or from one company to another. So that's really quite a challenge in how we see land reform – it's a much more profound challenge for government than simply the question of how to get the land.

Q: What does the road ahead look like for SA with regards to the land debate?

A: I think it needs to be broadened in a few ways. The first is I think that the debate needs to be opened up and democratised, and Parliament is going to have to be very innovative and open in terms of providing platforms for ordinary people to give their views on this issue.

The second is that we need to stop talking about land as if it is only about farmland – and address the other kinds of land needs, including land for residential purposes and the issues around urban land, informal settlements and access to the city.

We should not just talking about how to get the land, but about how different needs are to be weighed up – including questions about whether we have a programme for land reform or not. In the 1990s we officially had a land-reform quid pro quo which was focused on poor people. Only those who were earning in the lowest income threshold were eligible, and that was removed from 1999 onwards.

So the Mandela era had a quid pro quo focus that was removed in the Mbeki era and remained absent in the Zuma era. So there's a question of whether we should return to a pro-poor focus or not. I think those are just some of the ways in which we can expand the debate and ground us in core principal.

Clearly, this issue resonates so powerfully, no matter who you ask – everybody has an opinion about it. This is a huge thing for our society, and it's very important that we unpack it clearly. I also think that we need to be careful not to just bash the Constitution as an explanation as of why land reform has not been advanced.

Two things happened in the past week: firstly, the budget for land reform has been cut again - it's now sitting at half of what it was in 2007/2008, at the end of the Mbeki presidency. So the Zuma era has consistently reduced the resource availability for land reform - it clearly has not been a priority.

And on top of that, the Cabinet reshuffle removed the minister who failed to deliver for nine years, and introduced a new minister who has no experience or track record on these issues – which again suggests that it isn't a top priority.

So we need to deal with this paradoxical situation, which is that the land issue has become central to national politics and political theatre, even as the mechanisms actually dealing with it are being neglected.

A previous version of this article stated there's a question of whether we should return to a quid pro quo focus. This has been changed to pro-poor. We apologise for the error.