Last week my colleague Anthea Jeffery reminded us that the deputy president, David Mabuza, had said that the Expropriation Bill currently before Parliament was necessary to “address the injustices of the past and restore land rights”.
What rights then did the Natives Land Act of 1913 and the Native Trust and Land Act of 1936 actually take away? And will the current expropriation plans of the African National Congress (ANC) restore these rights?
The 1913 act did two key things. Firstly, it provided for comprehensive territorial segregation. Secondly, it subjected the land market to racial restrictions.
Prior to the act, black Africans (blacks) had been free to buy and hold land either individually or collectively anywhere in the Cape and Natal, in a small part of the Orange Free State, and, following a 1905 court case, even in the Transvaal. They were in fact doing so, to the dismay of many whites who complained that they were being “squeezed out”.
The act put a stop to this freedom, except in the Cape. It scheduled all black reserves, mission reserves, and tribal locations, as well as black-owned farms, for exclusive black ownership. Except with the permission of the governor-general (which was often given), and outside the Cape, blacks were now prohibited from buying land outside these “scheduled areas”, which amounted to some 10.73 million morgen. (One morgen equals 0.86 hectares.) Whites were simultaneously prohibited from buying land inside these scheduled areas (but for which provision blacks might have lost even more land).
When the act was passed, black Africans constituted 67% of the country’s population. It was widely recognised that the scheduled areas were too small for their populations. But it was not until the 1936 act – nearly a quarter of a century later – that another 6.79 million morgen were released for black ownership. The total of “scheduled” and “released” areas was now somewhere between 13% and 14% of the country, later collectively known as the ten “homelands”.
By 1936 black Africans accounted for 69% of the national population, although millions of blacks lived and worked in towns and on farms in the parts of the country where they had no right to buy land. One of the reasons many worked there was that black agriculture was undermined by overcrowding and overstocking in the areas where blacks could buy land. The limited carrying capacity of the homelands helped turn them into reservoirs of labour for commerce and industry, and domestic service, outside them.
The 1936 act also provided that blacks could no longer purchase land in the Cape. Territorial segregation now applied to the whole country, land ownership by blacks being confined to the homelands, where communal rather than individual ownership remains the norm.
The land “released” by the 1936 act included state-owned land and white farms. The former was vested in the South African Native Trust established by the act. The latter were to be acquired by the trust with funds voted by Parliament, with expropriation in limited cases and compensation referred to arbitration where necessary. Parliament was, however, very slow to vote the funds required. As late as 1972, some 1.42 million morgen of white farms still had to be acquired. But blacks themselves purchased some 444 000 morgen in released areas, having previously purchased or acquired 1.25 million morgen in scheduled areas.
After the National Party came to power in 1948, the policy of limiting the number of blacks living outside the homelands was applied more rigorously. Starting in the mid-1950s, between two and three million black people were removed into the homelands from the parts of the country designated for exclusive white ownership.
Those removed included labour tenants on white farms, but also occupants of 400 “black spots” comprising some 180 000 morgen of land. These were black people who had previously bought farms outside the homelands, some of them prior to the 1913 act, some where the act did not apply, and some with the later permission of the governor-general.
So although the government had waited 23 years before providing for the addition of the “released” to the “scheduled” areas, blacks themselves had not been idle. Thousands of them had been buying land outside these areas on the open market.
Where “black spots” adjoined a homeland, they were usually allowed to remain. But where they were surrounded by white farms they were gradually cleared. Tribes who owned land were generally offered alternative land of equivalent worth adjoining a homeland. Individual owners had to sell to whites or the state, or face expropriation with compensation. If they owned more than 20 morgen they could buy land adjoining a homeland. If they owned less than this, they were entitled to a free site in a closer settlement in a homeland, but without the right to keep cattle.
The ANC has had 26 years to rectify the effects of the land acts. It has persuaded many in business, including banks and some agricultural organisations, that “land reform” is an “imperative”. It has persuaded them of this “imperative” even though opinion survey after opinion survey has shown that the great majority of blacks think the provision of jobs is far more important than “land reform”. To the annoyance of the ANC large numbers of blacks entitled to have expropriated land restored to them have chosen financial compensation instead.
Most of the ANC government’s own land reform projects have failed, thanks to factors that include corruption and lack of financial and technical support for beneficiaries. Although the ANC recoils from admitting it, where land redistribution from white to black has been most successful, it has taken place via the market – blacks buying land from whites following the repeal of the land acts in 1991, just as they had done before the acts first came into operation and in the intervening years.
Enter expropriation without compensation. To “address the injustices of the past and restore land rights” the ANC plans not to strengthen but to attenuate land rights. The land acts subjected land ownership rights to the colour bar. The ANC plans to remove the colour bar, but without fully restoring the rights that previously existed. Freehold ownership rights stand to be replaced by leases in the gift of the state, thereby extending the ANC’s already extensive powers of patronage. Despite the obvious success of colour-blind market mechanisms prior to, during, and after the apartheid era, the ANC wants to impose further restrictions.
For many people, “land reform” will mean transfer of title not from white to black, but from white, or black, to the state as “custodian”. However, the expropriation bill goes further than land, since property is not limited to land. All kinds of property, from land to houses to mining rights to intellectual property rights to pensions to other financial assets, could be at risk, with no guarantee either of fair procedure or of equitable compensation or even of any compensation at all. The planned amendment of Section 25 of the Constitution will in due course no doubt further undermine property rights.
The essential point about legislation of this kind is not where it starts but where it may end. Large-scale expropriation without compensation may not happen immediately. But the key point is that legislative provision for it to be implemented will be on the Statute Book. While repeatedly proclaiming its intention to restore land rights removed by the land acts, the ANC will have taken an important step towards empowering itself to remove both land and other property rights and take them unto itself.
In short, the ANC is using the land acts as a pretext for the weakening of property rights and the further empowerment of Luthuli House.
* John Kane-Berman is a policy fellow at the IRR, a think-tank that promotes political and economic freedom. Readers are invited to take a stand with the IRR by clicking here or sending an SMS with your name to 32823. Each SMS costs R1. Ts and Cs apply.