NEW LAND REFORM PROPOSALS MIGHT POSE A SERIOUS THREAT TO PROPERTY RIGHTS
The land reform proposals that were outlined in parliament last week by Minister Gugile Nkwinti, the Minister of Rural Development and Land Reform have their origin in the ANC's National Democratic Revolution which calls, among other things, for "the elimination of apartheid property relations" including "the de-racialisation of ownership and control of wealth, including land".
The ANC's 52nd National Conference at Polokwane in December 2007 called for far-reaching land reform in a resolution that was highly critical of organized agriculture. It asked the government to abandon "market-driven land reform"; to review "the principle of willing-seller, willing-buyer" and to align all legislation relating to expropriation with the Constitution. It also demanded the removal of "all institutional, legislative, regulatory and tax-related policies that create a bias in favour of large-scale, capital intensive, environmentally damaging agriculture" as well as the introduction of "a special land tax and other progressive tax measures with the aim of creating incentives for the disposal of under-utilised land and the deconcentration of land ownership."
The latest proposals, which will be published in a Green Paper at the end of April, will apparently make provision for a three-tiered land tenure system comprising state land, private land and foreign-owned land. Land is to be categorized according to its use at the level of household, small holder and commercial farming. The new system will change the present ownership of private land to "freehold with limited extent" - implying that limits might be imposed on the number or the size of properties an individual may own.
The limitation on foreign ownership of land is even more ominous and is described as "precarious tenure linked to productivity and partnership models with South African citizens." In other words, foreigners will be permitted to retain part of their interest if it suits the government and if they take on local partners. In an e-TV interview on 29 March Minister Nkwinti said that he did not think that this would discourage foreign investment, since all that foreign investors required was "certainty" about government policy.
It was also clear, from the same interview, that large farms will be a major target of the new initiative. The Minister insisted that the government should break up these ‘monopolies' even though large farms, which comprise 10% of the total, produce 80% of South Africa's food. When asked whether this would not jeopardize food security the Minister replied that these farms had not always been productive and that with the right support small black farmers could be equally successful. It would be important for white farmers to co-operate with the implementation of the new proposals to help prevent an even worse outcome than Zimbabwe.
All this was based on the novel concept that, because sovereignty is defined by land, the state actually has a claim on all land in the country. (Does this mean that all those countries that recognize unrestricted freehold property rights are somehow less sovereign?) Minister Nkwinti has nevertheless denied that this is an attempt to ‘nationalise' land and has stated that he is not contemplating a constitutional amendment.
It is, nevertheless, difficult to see how these provisions could be introduced without amending section 25 of the Constitution. The proposed limitation of freehold in respect of privately owned land would require payment of fair compensation to the extent of the reduction in the value of the property Where would the state find sufficient funds to pay compensation in a system that might affect the rights of all private property owners and seriously limit the rights of foreign property owners?
In keeping with NDR doctrine, the Minister states that "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".
Minister Nkwinti is mistaken: the struggle was not primarily about land and race, but about the establishment of a non-racial constitutional democracy based on equality, human dignity and freedom. The outcome was the adoption of the 1993 and 1996 constitutions which represented a victory for all South Africans from all our communities. The new Constitution makes ample provision for balanced land restitution and land reform while at the same time protecting the property rights of all South Africans. The fact that the government has thus far achieved such little success with its land reform initiatives may be ascribed to a large extent to its own failures and - as he admits - to the incapacity of Minister Nkwinti's own department.
The Constitution most certainly does not countenance the ‘centrality' of any single culture but proclaims unambiguously the equality of all South Africans and of all our cultures. There should be no mistake about the Minister Nkwinti's approach: what he is proposing is an assault on the property rights of sections of the population on the basis of their race and nationality. It is a frontal attack on our historic constitutional accord. Section 25 was one of the core compromises on which acceptance of the new Constitution depended. If the requirement for fair compensation for expropriated property is diluted or abandoned, the national consensus that made the constitution and the new South Africa possible, will be seriously eroded.
The Minister has committed himself to engaging rigorously with all South Africans so as to emerge with a tenure system that will satisfy the aspirations of all South Africans. We urgently need such a system, but we simply cannot afford to embark on a reform process that does not guarantee full and secure property ownership and that does not address the stark economic realities of the world in which we live.
We must await the Green Paper before we can assess the full implications of the proposed land policy. However, Minister Nkwinti's statements thus far already provide ample grounds for serious concern.
Dave Steward is the Executive Director of the FW de Klerk Foundation
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