SPEECH BY DAVE STEWARD, EXECUTIVE DIRECTOR OF THE F W DE KLERK FOUNDATION TO THE CONFERENCE ON THE GREENPAPER ON LAND REFORM STONE CRADLE, PRETORIA, May 31 2012

THE 1994 CONSTITUTION AND THE GREEN PAPER

My objective this morning is to consider the manner in which the interim constitution of 1993 and the final constitution of 1996 address property rights and land reform - and the degree to which the Green Paper on Land Reform complies with the requirements of the Constitution.

There can be no doubt that comprehensive land reform has consistently been one of the central goals of the ANC's National Democratic Revolution. The Freedom Charter calls for the land to be shared by those who work it.

More than this: the question of land ownership is one of the emotional mainsprings in the ANC's historic world-view.

• The Draft Policy on the 2007 Expropriation Bill commenced with an analysis of white deprivation of black land, beginning with the arrival of Jan van Riebeeck in the Cape in 1652. It quotes Autshumato's question to Jan van Riebeeck: ‘if the country is too small, who has the greater right, the true owner or the foreign intruder?'"
• It is clear also from the Green Paper on Land Reform that despite 360 years history in South Africa whites are still regarded as "foreign intruders." According to the Minister of Land Reform and Rural Development, Mr Gugile Nkwinti, "all anti-colonial struggles are at the core about two things, repossession of lost land and restoring the centrality of indigenous culture. Fundamental land reforms were therefore a key catalyst in the ANC's mission to resolve inherited race and class contradictions".
• Indeed, ownership of the land is regarded by the Green Paper as being so pivotal, that it affects the national sovereignty: "...the debate about agrarian change, land reform and rural development" should begin with national sovereignty - since national sovereignty is defined in terms of land.

The implication is that national sovereignty will not be restored until a sufficient amount of land has been repossessed by black South Africans. In the Green Paper's view this ‘fundamental assumption' should supersede all other considerations, including "talk of effective land reform and food sovereignty and security."

This fundamental assumption is, however, profoundly unconstitutional since it implies that whites and others who do not belong to the 'indigenous culture' are peripheral - and actually are not part of the national sovereignty.

It was factors such as these that informed the approach that the ANC adopted to land reform and property rights during the constitutional negotiations.

It is important to understand that the ANC's approach to negotiations was quite different from those of its counterparts. It viewed negotiations as another terrain of struggle in which maximum advantage should be secured within the framework of the prevailing balance of forces.

Nor did the ANC believe that the agreements it reached should necessarily be of lasting duration. They were seen, instead, as tactical concessions that could be discarded when the balance of forces had shifted sufficiently in its favour.

According to Pallo Jordan's analysis in 1999

"...the elections of April 1994 entailed a degree of compromise, some concessions and postponements, many of which took account of the enemy's real strength and untapped power.

The ANC's cynical attitude is best illustrated by Jordan's description of the agreement that the ANC reached just before the election on the possibility of a "Volkstaat".

"Among the tactical options the ANC was compelled to consider was that of accommodating the demand for a Volks chamber on the part of the White ultra- Right. I submit that it would be utterly wrong to interpret this as some form of recognition of the right to self-determination on the part of the Afrikaners.

The crucial point is that the ANC's approach to solemn agreements was that they had little or no long-term or intrinsic value. They could be discarded when the balance of forces had shifted sufficiently to allow it to resume its unimpeded march toward the goals of the National Democratic Revolution.

According to Pallo Jordan

"... national liberation movements have, in many cases, been compelled to postpone aspects of their programme and policy in the light of an intractable tactical conjuncture. The retreat, in other words, is undertaken in order to prepare for a more coherent and better planned advance.

One such retreat was the concessions that the ANC made on property rights during the constitutional negotiations. The ANC's opening position on land and property was set out in its draft Bill of Rights. According to this

".. the land, the waters and the sky and all the natural assets which they contain, are the common heritage of the people of South Africa who are equally entitled to their enjoyment and responsible for their conservation. The system of property rights in relation to land shall take into account that it is the country's primary asset, the basis of life's necessities and a finite resource."

However, the Bill also laid the basis for the ANC's acceptance of key principles that were subsequently included in Section 28 of the interim Constitution:

The Bill stipulated that

(4)" The taking of property shall only be permissible according to law and in the public interest, which shall include the objectives of the Constitution" and that

(5) "Any such taking shall be subject to just compensation which shall be determined by establishing an equitable balance between public interest and the interest of those affected."

The question of property rights was dealt with during the negotiations in the Ad-hoc Committee on Fundamental Rights. Sheila Camerer, the NP representative, and Tony Leon on behalf of the Democratic Party favoured the inclusion of a strong property clause. Their primary opponents were Halton Cheadle of the SACP and Penuell Maduna of the ANC.

Agreement was reached only toward the end of the process in October 1993. It was inevitably a compromise: the NP and the DA succeeded in ensuring the inclusion of a property clause. They also obtained agreement that although expropriation could take place to promote a national purpose, compensation determined by a court would have to be paid. The ANC, on the other hand, won the point that compensation would not necessarily have to be determined by market value.

The agreement was embodied in Section 28 of the Interim Constitution which reads as follows:

• Every person shall have the right to acquire and hold rights in property and, to the extent and the nature of the rights permits, to dispose of such rights;
• No deprivation of any rights in property shall be permitted otherwise than in accordance with a law;
• Expropriation would have to be for public purposes only and would be subject to payment of agreed compensation. If agreement could not be reached compensation would be determined by a court of law as just and equitable, taking into account
  • the use to which the property is being put,
  • the history of its acquisition,
  • its market value,
  • the value of investment in it by those affected and
  • the interests of those affected.

The key question of property rights was not included in the 34 immutable principles within which the final constitution would have to be drafted.  Instead, property rights were regarded as one of the rights that would be included in the new constitution, after ‘due consideration' had been given to the fundamental rights in the interim constitution - which, of course included the property rights in section 28.

Although some of the points in section 28 of the interim constitution re-emerged in section 25 of the final constitution, other important elements were diluted or scrapped. 

• Section 25 contains no specific recognition of the right to acquire, hold and dispose of property rights;
• It expands the notion of expropriation for public purposes into the much broader notion of expropriation in the public interest;
• It specifically recognises that "the public interest includes the nation's commitment to land reform and to reforms to bring about equitable access to all South Africa's natural resources" and that "property is not limited to land"
• It calls on the state to adopt measures to enable citizens to obtain access to land on an equitable basis.
• It makes provision for security of tenure and for land restitution and gives the state broad powers to "achieve land, water and related reform in order to redress the results of past racial discrimination."

It is accordingly difficult to understand why the ANC is so unhappy with section 25. On 10 May this year former Chief Justice Arthur Chaskalson expressed the view that given the provisions of section 25 and the broad fiscal power of the state, "a legitimate land reform policy can be developed within the framework of the existing Constitution. The problem is not the Constitution; it is that the powers given to the state under the Constitution have not been invoked."

The main protection that section 25 still affords to property holders is the requirement that expropriation is subject to "compensation the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court."

The other protection is that compensation must be "just and equitable, reflecting an equitable balance between the public interests and the interests of those affect" having regard to a number of circumstances including the market value of the property.

It was precisely these provisions that the government attempted to circumnavigate when it presented its Expropriation Bill to Parliament in 2008.  

How then does the Green Paper on Land Reform measure up to the requirements of our constitutional accord?

In the first place, it is perhaps premature to comment on the constitutionality of proposals that have not yet been cast into legislation.  However, the Green Paper already raises the following fundamental problems:

• Its inflammatory historic analysis is irreconcilable with the Constitution's goal of "healing the divisions of the past".
• Its implicit characterisation of white farmers as ‘colonialists' comes close to hate speech;
• Its statement that "all anti-colonial struggles are, at the core, about two things: repossession of land lost through force or deceit and restoring the centrality of the indigenous culture" violates the fundamental values of equality, non-racialism and human dignity that lie at the heart of the constitution. It is absolutely unacceptable to state that any cultural group is more central than any other.
• It is difficult to view the Green Paper as anything less than a document of racial mobilisation against white farmers.

Other provisions that raise problems include

• The powers of the proposed Land Management Commission to invalidate individual or corporate title deeds and to seize or confiscate land gotten through fraudulent or corrupt means."
• The usurpation by the proposed Valuer-General of the role of courts in section 25 in determining financial compensation in cases of land expropriation.
• The fact that the Green Paper would be implemented in conjunction with the Land Tenure Security Bill, 2010. The provisions of the bill are so onerous for farmers that they could be regarded as constructive expropriation of an undefined part of their property.

However, the main problems with the Green Paper do not lie in their constitutionality but in the impact that they would have on commercial farming; food security; domestic and foreign investment; and race relations.

Our experience during the successful campaign against the Expropriation Bill showed that the assurance of property rights do not depend solely on the Constitution. There are other cogent factors that government must also consider when contemplating the expropriation of property in pursuit of its ideological purposes:

• The first is the impact that any such action might have on economy - and particularly on prospects for future foreign and domestic investment;
• The second is the practical consequences. 90% of all the farms that have thus far been transferred to black South Africans have failed. This has nothing to do with the race of those involved. It is simply a reflection of the truth that successful farming requires a great deal of capital; a great deal of experience and training; and often, a great deal of luck. It would be the height of foolishness to embark on a land reform policy that would destroy the ability of our farms to feed our people.
• Finally, if we wish to retain any hope for reconciliation and national unity, it is essential that all South Africans should be treated fairly. It would simply be unfair to deprive people against their will of land which they and their ancestors may have owned and developed for generations.  It was unfair for whites to do this to black South Africans under apartheid - and it would be equally unfair for blacks to do so to white South Africans in pursuit of their ideology of the National Democratic Revolution.

It is also unnecessary.

• There is no constitutional obstacle to a fair and equitable process of land reform;
• 5 % of agricultural land comes onto the market every year.
• Government already controls 25% of the land in South Africa.
• Organised agriculture has repeated time and time again its willingness to co-operate in a fair and effective process of land reform;

Despite its shortcomings , the Constitution, remains the foundation for our new Society.  Its key provisions and values cannot simply be discarded when one of the parties unilaterally decides that they are no longer convenient. When it contemplates the next steps in its land reform process the government would do well to consider President Mandela's remarks after the adoption of the 1996 Constitution:

"We stand today before our people and humanity to present this our new basic law of the land, whose founding principles of human dignity, non-racialism and non-sexism, and whose commitment to universal adult suffrage, regular elections and multi-party democracy are immutable.

"This is our national soul, our compact with one another as citizens, underpinned by our highest aspirations and our deepest apprehensions.

"Our pledge is: Never and never again shall the laws of our land rend our people apart or legalise their oppression and repression. Together, we shall march, hand-in-hand, to a brighter future."

Source: FW de Klerk Foundation.

Click here to sign up to receive our free daily headline email newsletter