Parliament on 27 February 2018 adopted a motion to start a process to consider amending the Constitution to allow for the expropriation of land without compensation. The motion was supported with a vote of 241 in support, and 83 against with the DA, Freedom Front Plus, Cope and the ACDP voting against the motion.
Following the motion Graeme Codrington, a South African author, futurist and strategy consultant, wrote the following post on Facebook. In it he asks especially white people to rather listen and then calmly contribute to the conversation to find a solution that helps everyone.
He also asked that, before a person comment on the issue, they read the preamble of the motion put to Parliament and tell him how they would respond to the fact that the government land audit has found that less than 7% of land in South Africa is owned by private black individuals.
His post went viral and were shared many times over and commented on by many Facebook users. President Ramaphosa in Parliament even referred to the post when answering a parliamentary question on land reform and expropriation.
The debate on his post was generally well conducted and people from all sides and background commented. I came to the debate late but nevertheless took Codrington seriously and engaged the motion carefully and in detail and would like to offer the following critique of some of the aspects of the motion.
NOTE – Let me for the record say from the onset and before I’m unfairly accused of being an Apartheid denialist, that I fully support the principle of land reform and that even though considerable progress has been made in this regard the current patterns of land ownership is still unsustainable.
I do however feel strongly that the process going forward should not be based purely on emotion or incomplete or unreliable land audits and findings or the loose or one-sided interpretation of history or be based on historical facts that are simply not true or on double standards especially if it pits Black versus White rather than focussing on the end goal – giving all South Africans access to land for productive and wealth generation purposes.
I’m also not convinced that the answer to the land issue lies in expropriation without compensation when the governments own high level panel as recently as late last year found that the main constraints to land reform are the lack of political will, the lack capacity and increasing corruption and especially if one looks at the danger of this approach harming the South African economy and threatening food security, which threat are supported by recent historic evidence which the author of the following article Fast-tracking land reform could create a crisis, warns Zim activist pleads that South Africa take cognisance of:
Back to the motion adopted by Parliament, I have added my comments in Italics after each section of the motion below:
“The House –
(1) notes that South Africa has a unique history of brutal dispossession of land from black people by the settler colonial white minority;
Firstly, why the use of the words ‘settler colonial white community’ and then not by some populist politician, but by those duly elected as our representatives? I though as per the Preamble to our Constitution and in the words of the Freedom Charter, South Africa belong to all who live in it, Black and White, united in our diversity?
The words settler indicates to White people that they don’t belong in the country of their birth. Gregory Stanton, the CEO of Genocidewatch.org, and anti-Apartheid activist, recently said that the first step towards genocide is the dehumanization of a group of people often by calling them settlers followed by subtle calls for them to be killed. How often are the White community not called settlers and then you have the words of populist like Julius Malema who just last year said that they, the EFF, are not calling for the slaughtering of White people, for now.
These are actions and words that if left unchallenged, are laying fertile ground for a situation to escalate into a genocide. I would have expected our duly elected public representatives to be more circumspect than to use a word that is as emotionally loaded such as settler.
Secondly, it might be an uncomfortable truth, but fact is that not only Black people were the victims of land dispossession in our recent past, White people also suffered dispossession. Also, the perpetrators of dispossession were not exclusively White people, but Black people also dispossessed their fellow Blacks.
The article Land-restitution demands driven by the pain of the ‘colonial wound’ linked above highlights but one of the instances in which the White community, in this instance the Afrikaner, was disposed in a violent way from their farms –
“A version of this model was used to instigate a much more calamitous event, the Anglo-Boer War. It ended in by far the largest and most intense land grab in SA’s history (my emphasis), through martial law.
“Rebel” Boer farms were seized, and their inhabitants sent to the century’s first concentration camps, where 40,000 people of all races died. In an orgy of slaughter as part of a scorched-earth campaign decried in the British parliament as using the “methods of barbarism”, livestock and improvements were destroyed.”
Another example is the Boer Republic of Natalia with its capital Pietermaritzburg. The area was ceded by the Zulu king Dingane to Piet Retief and his followers in 1838 but the British simply annexed the territory in 1843, dispossessing the Boer citizens, to establish the Colony of Natal (NOTE – although Dingane and three witnesses on both sides signed the document, there is some contestation if Dingane fully understood what he did by signing the treaty with the Voortrekkers before he killed Retief’s whole party, but fact remains he signed a document giving ownership of some land to the Voortrekkers).
During Apartheid many White farmers were dispossessed of their property by the National Party government in their attempt to consolidate the territories of the former homelands. This left many of them bitter, but this is nowhere mentioned or acknowledged in this section of Parliament’s motion.
Coming to Black people dispossessing Black people the best and well-known example is the Mfecane (isiZulu) also known by the Sesotho name Difaqane or Lifaqane (all meaning “crushing, scattering, forced dispersal, forced migration”. This was a period of widespread chaos and warfare among indigenous Black communities in Southern Africa during the period between 1815 and about 1840 that did not just displace many communities and dispossessed them from their ancestral land, but led to the deaths of hundred of thousands of people
NOTE – Some historians questioned, not that the Mfecane happened, but what caused it, for example Professor Cobbling who argues that apartheid historians had mischaracterised the Mfecane as a period of internally induced black-on-black destruction rather than that the roots of the conflicts be found exclusively in the labour needs of the Portuguese slave traders operating out of Delagoa Bay, in modern-day Mozambique. Critics assert that revisionist theories such as Cobbing’s placed too much weight on environmental factors and ignored the key roles played by dynamic human agents such as the Zulu King Shaka. The historian Elizabeth Eldredge challenged Cobbing’s thesis on the grounds that there is scant evidence of the resumption of the Portuguese slave trade out of Delagoa Bay before 1823, a finding that undermines Cobbing’s thesis that Shaka’s early military activities were a response to slave raids.
Irrespective of its underlying causes, the fact remains that during the Mfecane, Black people dispossessed fellow Blacks of land through force, a fact that is not mentioned in this section of the motion.
(2) further notes that land dispossession left an indelible mark on the social, political and economic landscape of the country, and has helped design a society based on exploitation of black people and sustenance of white domination;
Yes of course it left an indelible mark, just like the dispossession of Afrikaner of their farms and the wanton destruction of these farms and the livestock on it during the 2nd Anglo-Boer War, left the Boer community in abject poverty and misery after the war. And yes, just like the Mfecane left an indelible mark on Black community following years of fighting that lead to famine and abject poverty.
(3) acknowledges that the African majority was only confined to 13% of the land in South Africa while whites owned 87% at the end of the apartheid regime in 1994;
Maybe it was just a bad choice of words (which I would seriously not expect from our elected representatives), but this section clearly is factually incorrect. Firstly, by the end of 1994 the African majority were not confined (or then restricted or kept) to 13% of the land as stated, in fact by far the majority of Africans were living by 1994 outside of the homelands and on the so called 87% of land earmarked for Whites.
Secondly, even the Nationalist government during the 1980’s acknowledged the importance of home ownership to create a Black middle class and started a concerted process to transfer ownership of the matchbox houses to the people that have been living and renting them for decades from the state. I worked in the townships at the time and thousands upon thousands of Black people took advantage of this opportunity to become first time home owners. It’s to the ANC’s shame that today some 32 years later they have not concluded this process started by the National Party government.
Thirdly in the 1980’s the Nationalist government for the first time allowed private housing developments in the townships. Again, thousands upon thousands Black people bought houses and property from such developers and it transformed the urban landscape in the townships from only state-built matchbox houses to a mix of private middle class residential areas and matchbox houses.
Point I’m trying to make that is that surely it can’t be factually correct to say that by 1994 the % of Black ownership of land was still 13% as it was in 1913 and as this section of the motion argues.
It’s often said that the 1913 Land Act restricted Black people to only living on 13% of the land. Again, even in 1913 this was not historically true as even by then millions of Black people lived outside of the 13% and in what was then the White Union of South Africa. The renowned demographer, Prof P Smit estimated that by 1911 nearly 12,64% of the Black population were already living and working in just the major urban centres in the Union of South Africa (as opposed to rural towns) which increased to some 42% by 1970.
Of course, the Apartheid government tried their best to turn around the tide of Black urbanisation but failed miserably, however to argue that by 1913 and through to 1994 the whole Black population were restricted to live or lived at one time only on 13% of the land is clearly factually incorrect. Despite this this inaccuracy is still often quoted extensively locally and internationally as fact, as it was done again in this section of the motion.
What is also forgotten in the 87% versus 13% debate is that in 1913 Botswana, Swaziland and Lesotho were also British colonies and for years thereafter there were talk of incorporating them into South Africa. These three territories were in truth homelands for the Tswana, Basotho and Swazi people and if these territories are taken into consideration, then in 1913 the division of land between those designated for Black people versus that for White people were more or less 50%/50%.
Last thing about the 87% versus 13% debate, those pointing out the Whites had 87% allocated to them never want to acknowledge that the full 87% was never in private White hands, in fact a large portion were in the hands of the State and companies, trusts and businesses. The argument was however that because it was a White minority government that it was fair and accurate to include and reflect such land as also in the possession of White people.
When exactly the same argument is proposed today in that some 42% of the land of South Africa is in the hand of the State and therefore under Black control given the fact that we have a Black majority government, it’s dismissed out of hand as nonsense, unfair or not logical. Why the double standards when it comes to how we view property rights throughout our troubled history?
(4) further acknowledges that the current land reform programme has been fraught with difficulties since its inception in 1994, and that the pace of land reform has been slow with only 8% of the land transferred back to black people since 1994;
So, the problem has correctly been identified. What then about a proper diagnosis to see what is in fact causing these difficulties? Did Parliament even consider when adopting this motion, the conclusions of its own High Level Panel which stated clearly that, “….. the need to pay compensation has not been the most serious constraint on land reform in South Africa to date (my emphasis) – other constraints, including increasing evidence of corruption by officials, the diversion of the land reform budget to elites, lack of political will, and lack of training and capacity have proved more serious stumbling blocks to land reform”
(5) acknowledges that the recent land audit claims that black people own less than 2% of rural land, and less than 7% of urban land;
I could have referenced hundreds of articles critical of the government’s recent land audit and highlighting its many inconsistencies and statistical inaccuracies (I have copied some of them in postscript 5 below). Given this heightened focus on the land audit, I would have expected our public representatives to be extremely circumspect when they quote from it to make sure that they don’t exaggerate the discrepancy between white-owned land and black-owned land. Guess what, they however again failed the people they are representing when framing this section of the motion.
Here is but one of the many articles critical of the audit headed Ramaphosa and the EFF’s dodgy land stats.
From the above article the actual picture of current ownership of land that should have been referenced in this section of the motion –
Urban Land – The motion states that Black people own less than 7% of urban land. The governments audit however states that 722 667 ha -22,6% of the 3,2m ha total – of erven are individually owned by 6 million people, of whom 3,32m were Black African (56%), 1,55m White (26%), 507 829 Coloured (8,46%), 414 069 Indian (6,9%) and 173 418 (2,9%) “other.” 56% is a far cry from the less than 7% referenced in this section of the motion.
Even if one look at the extent of urban land owned the picture do not come close to the 7% quoted in the section. 357 507 ha are owned by Whites (49,5%), 219 033 ha (30,3%) by Black Africans, 54 522 ha (7,5%) by Coloureds, 55 909 ha (7,7%) by Indians, 14 332 ha (2%), 14 332 ha under co-ownership (2%) and 21 365 (3%) by others. These statistics reflects the legacy of apartheid spatial planning which allocated much smaller erven to Black communities compared to White communities.
NOTE – The above figures ignores an obvious anomaly in the figures of ownership of urban land by White people in the Northern Cape (see the above article for more details). Excluding the Northern Cape from the figures changes the picture significantly- 0utside of this province 38.1% of individually owned erven are owned by White people, 40,2% by Black Africans, 7,8% by Coloureds and 7,9% by Indians
Its interesting to note that the figure of 7% quoted in this section was calculated by the EFF from the land audit by taking the above 219 033 ha owned by Black people and dividing it by the 3,2m ha total urban land in South Africa rather than dividing it by only the 722 667 ha owned by private individuals. Incidentally, if the same erroneous calculation used by the EFF is made for white people one could say that “only” 11% of urban land is owned by white people.
What then about the balance of the urban land (the 3,2m ha total minus the 722 667 ha in private hands)? The audit does not provide figures for the extent of erven owned by the state and parastatal corporations.
The following article however hints at an answer in which the governments own culpability in keeping land from Black ownership is evident.
The above article Can the numbers in the 2017 land audit be trusted? in its conclusion points out that according to –
“a team of academics — Royston, Cousins, Kingwill and Hornby — 30 million South African people live outside the titling system. According to this private research at least 23.5 million South African’s live on urban and rural State-owned land – 5 million in RDP houses they do not own at all; another 1.5 million in RDP houses with outdated or inaccurate title; 17 million in Communal Areas owned by the State and its proxies.
This land is not privately owned so there is little motive to invest in it and improve it in residential or agricultural terms. Thus half of the country do not own the places they live so they cannot raise credit or sell off and move to greener pastures. These numbers indicate that the real land hoarder in SA is the State. It would rather count on race-baiting than take account of its own role in immiserating half of the country. Half the country does not own the ground they sleep over because the State would rather keep all that to itself.”
If only the government concludes the process of transferring ownership to people who have rented their matchbox houses for decades (which I highlighted earlier), and address the 5 million in RDP houses that Black people do not own at all and the other 1.5 million in RDP houses with outdated or inaccurate title, the picture of urban land ownership will change dramatically to be as follows in terms of a reasonable estimation:
The number of people owning land in urban areas will increase to some 12,5 million people, of whom 9,82m will Black African (78,56% as compared to the current 56%), 1,55m White (12,4% as compared to the current 26%), 507 829 Coloured (4,06% compared to 8,46%), 414 069 Indian (3,31% compared 6,9%) and 173 418 (2,9%) “other.”
Rural land – This section of the motion states that Black people own less than 2% of rural land. Its not evident where this comes from as the percentage of Black ownership of farms and agricultural holdings as per the audit is 3.5% compared to 71,9% owned by White people. The latter figure was employed by the EFF and Ramaphosa and others during the debate on the motion, but using this figure in isolation is misleading for three reasons according to the author of the following article Ramaphosa and the EFF’s dodgy land stats.
The three reasons are the following as per the above article;
- Individually-owned rural land makes up less than a third of the extent of land in South Africa, according to the land audit itself. This means that individually-owned rural land, held by whites, makes up only 21.9% of the extent of South Africa. This is less than the extent held by the State. There is substantial variation by province with under 10% of the total extent of Limpopo and KZN individually owned by White “farm” owners, 12.6% in Mpumalanga, 15,1% in Gauteng, 17,8% in the Eastern Cape.
- It pays no regard to the agricultural potential or value of the land. A substantial majority of this individually-owned white-owned land is located in arid or semi-arid areas in the western part of the country. 43,1% is in the Northern Cape alone, 11,3% in the Eastern Cape (most of it in the drier western parts of the province), 10,14% of it in the Western Cape, and 14,1% in the Free State.
- Thirdly, the ANC and EFF have seized on a metric in the debate that effectively ‘disappears’ both the land that has been transferred to Black hands by the ANC government since 1994, and that was already in Black hands pre-1994. Ramaphosa suggestion that despite 3,1m hectares being “restored” between 1994 and 2014 Black African people (through land restitution) “only own 4%” of individually owned land is somewhat disingenuous.
a) First-off the more appropriate figure for “restoration” is in fact 8,1 million hectares (6,6% of the extent of SA), as a further 5 million hectares of agricultural land has been acquired and transferred by government since 1994 through its land redistribution programme. (In an area covering another 2,2m hectares financial compensation was accepted by claimants in lieu of land restitution).
b) Little of this land would be shown as individually owned today as most land claims and redistribution projects had multiple beneficiaries, and furthermore since 2009 the government has held back from granting title to the beneficiaries of the land redistribution programme. In addition, government has made no effort to ensure those living on their ancestral land in former homeland areas acquire individual title to their land. It is unclear how such restituted and redistributed land was categorised by the land audit – other than as not individually owned – but it quite clearly qualifies as ‘black owned’ land, and it would have taken little to quantify it accordingly in the report.
What the article therefore in summary says is that the percentage of rural land in individual Black hands would have been much higher if most of the redistribution projects did not have multiple beneficiaries and if government back in 2009 did not decide to hold back from granting title to such beneficiaries. Such land is for all intent and purposes however Black owned and should have been classified as such in the land audit which would paint a totally different picture than the 2% quoted in this section of the motion.
In the above article Op-Ed: The land audit – incomplete information and bad policy the author is extremely critical of governments reluctance to transfer title of land in instances of land redistribution to the Black beneficiaries –
“Under colonial and apartheid rule, freehold title was typically denied to Africans. Such land as they did have access to would be held ‘in trust’ for them, by the state or by traditional leaders. This has continued after the advent of democracy. Indeed, land redistribution policy – notably expressed through the State Land Lease and Disposal Policy – is now premised on the idea that people receiving land will, for the most part, not own it.
Prof Ruth Hall of the Institute for Poverty, Land and Agrarian Studies described this in harsh but accurate terms: “This is a policy that says that black people are not to be trusted with land.”
The landholdings to which African people may have “access”, or which they may work and occupy, are certainly larger than the relatively small amount registered to African individuals. And it is a matter of profound disappointment that since 1994, so little has been done to ensure that the “assets” of African people (or, perhaps more accurately, the “assets to which they have access”) could become real “property”.”
The article also references a 2017 study by Agri SA which found, compared to the governments land audit, that Black people already own more than half of all agricultural land in two of South Africa’s most fertile provinces: The Eastern Cape and KwaZulu-Natal. It also found that landowners who are not white own 26.7% of agricultural ground and control more than 46% of South Africa’s agricultural potential and that twice as much land has been transferred to black entrepreneurs and farmers through ordinary commercial purchases than the state has managed to buy for black owners as part of its land redistribution programme.
(6) Recognises that the current policy instruments, including the willing buyer willing seller policy, and other provisions of section 25 of the Constitution may be hindering effective land reform.;
Its illustrative of the motives behind this motion that this section highlights but one aspect and then the issue of willing buyer willing seller, when Parliaments High Level Panel found that it was by far not the most serious stumbling block to land reform.
[clause 7 removed in amendment]
(8) notes that in his State of the Nation Address , President Cyril Ramaphosa, in recognizing the original sin of land dispossession, made a commitment that Government would continue the land reform programme that entails expropriation of land without compensation, making use of all mechanisms at the disposal of the State, implemented in a manner that increases agricultural production, improves food security and ensures that the land is returned to those from whom it was taken under colonialism and apartheid and undertake a process of consultation to determine the modalities of the governing party resolution.”;
This is going to be a tall order – implementing expropriation of land without compensation whilst at the same time not affecting food security or harming the already fragile economy of South Africa.
Why then even take on these considerable risks when the Constitution as it currently stands does not preclude expropriation without compensation under certain conditions as set out in the following article?
To quote from the above article There is a way to expropriate while protecting property rights –
“….it is possible for expropriation without compensation to co-exist with property and ownership rights. This is how.
At issue is section 25 of the Constitution. Section 25 (2) says: “Property may be expropriated only in terms of law of general application — (a) for a public purpose or in the public interest; (b) 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.”
In section 25(3) the criteria for compensation are set out: “The amount of the compensation … must be just and equitable, reflecting an equitable balance between the public interest and the interest of those affected, having regard to all relevant circumstances, including – (a) the current use of the property; (b) the history of acquisition and use of the property; (c) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and (e) the purpose of the expropriation.
The definition of “just and equitable” is so generous that it is possible, and has been so since 1996, that in certain circumstances it would be just and equitable for the compensation award to be zero. Had such cases been brought before the courts, which they have not, there would by now be a tested interpretation of the “just and equitable” principle, says Adv Geoff Budlender, the first director-general of the Department of Land Affairs after 1994.”
Given the aforementioned again one cannot but question the political motives of those now aiming at a constitutional amendment that holds considerable risks to the country.
(9) further notes that any amendment to the Constitution to allow for land expropriation without compensation must go through a parliamentary process as Parliament is the only institution that can amend the Constitution; and
One section of the motion that’s spot on but given my comments on the previous section, why even embark on this route given the well-known risks?
(10) with the concurrence of the National Council of Provinces instructs the Constitutional Review Committee to –
- (a) review section 25 of the Constitution and other clauses where necessary to make it possible for the state to expropriate land in the public interest without compensation, and in the process conduct public hearings to get the views of ordinary South Africans, policy-makers, civil society organisations and academics, about the necessity of, and mechanisms for expropriating land without compensation;
- (b) propose the necessary constitutional amendments where applicable with regards to the kind of future land tenure regime needed, and
- (c) report to the Assembly by no later than 30 August 2018.
Section setting out the mechanics of implementing the motion which include the need to get the input from ordinary South Africans on the matter and I have no specific comment on this section.
In conclusion let me repeat my motivation for writing this rather long opinion piece. I feel strongly that the process of consultation on the motion of Parliament (faulty and full of inaccuracies as it may be) and arriving at a solution to the land question, must not be based purely on emotion or incomplete or unreliable land audits and findings or the loose or one-sided interpretation of history or be based on historical facts that are simply not true or on double standards, especially if it pits Black versus White, rather than focussing on the end goal – giving all South Africans access to land for productive and wealth generation purposes.
Postscript 1: I acknowledge that in order to get the EFF’s initial proposed motion on land expropriation amended with their consent, the ANC had to give and take in the final wording of the motion. Some of the above critique on the governing party may therefore seem to be harsh. Fact is however that the ANC did not require the support of the EFF to counter the EFF’s original motion with a more nuanced one, as they has sufficient votes in Parliament to have done so.
Postscript 2: What is for me more instructive of the ANC real motivation this time around is that the party in March 2017 (yes just a year back) rejected an earlier EFF motion to expropriate land without compensation. At the time the ANC said that expropriation of land should be done for public purpose and public interests, not for the EFF purpose and the EFF interests and that as expropriation without compensation is unconstitutional , Parliament need to respect and uphold the Constitution. My question is what has changed since March last year? The answer is plain for all to see – political expediency in trying to out manoeuvre the EFF a year ahead of a national election, unfortunately, in my view, at the expense of us as citizens and at great risk to the South African economy.
Postscript 3: I pointed out some of the above facts and fallacies in some of the comments I submitted as my honest attempt in contributing constructively to the expropriation without compensation debate on Graeme Codrington’s Facebook posts. He first accused me of nitpicking and later of prefacing my input in whiteness and white privilege and that I showed very little effort to see or acknowledge other perspectives. He also joked that I own the complete encyclopedia of white male talking points on a full range of topics. I found his assertion about my motivation insulting and worrying if not puzzling. I have asked him to clarify why he feel so, failing which I might consider doing a separate blog post on my interaction with him on his post.
Postscript 4: Others, including Codrington at times, accused me of defending the white position by raising criticism during the debate rather than engaging in an open manner. To this I responded that I critiqued the land policy because any government’s policy on land must be based on verifiable information that everybody trusts is an accurate picture of the status quo. That’s not being defensive, that’s good and common practice and what I would think should underpin any meaningful debate or engagement.
Postscript 5: Herewith some of the articles that have not been included in this opinion piece, on the government’s recent land audit and other issues related to expropriation without compensation –