Introduction
‘Expropriation without compensation’ (EWC) is a politically potent and simultaneously ambiguous term. It is politically potent not despite but precisely because of its ambiguity, in that it signals a radical departure from a land property regime that is patently illegitimate and unjust while obscuring how it is to be changed. It centres exclusively on the acquisition of land – thus on the nexus between the state and landowners – rather than on the distributive agenda – and thus on the nexus between the state and landless citizens. In this way, the EWC narrative sidesteps foundational questions of who should get which land, on what terms, for what purposes, where, and any wider agrarian reform agenda. These questions, which I have summarised as ‘who, what, where, how, why’, constitute the real politics of land reform and have been the focus of intense political negotiation, public debate and policy deliberation since the start of the political transition over three decades ago (Hall, Reference Hall2010, Reference Hall, Cousins and Walker2015). Their scale and complexity have frequently been contracted into ‘the land question’.
The promotion of EWC as the purported silver bullet to ‘the land question’ is relatively recent, arising from mounting factionalism within the ruling party after its 52nd National Conference at Polokwane in 2007, the emergence of an opposition party to the left of it in Parliament in 2014 and culminating in a parliamentary motion on EWC in 2018. This, in turn, birthed two distinct and overlapping processes driven by the legislature and executive, respectively: a parliamentary constitutional review committee to review and propose whether amendment was justified, and a Presidential Advisory Panel on Land Reform and Agriculture (PAPLRA) to advise on precisely the same matter, as well as a broader spectrum of policy questions. I characterise these processes as a form of ‘political theatre’ in that, while they addressed real issues, they were acted out performatively, for purposes and in ways quite distinct from what was being claimed, and primarily as a substitute for action rather than a precondition for it (Death, Reference Death2011). In this sense, the EWC debate that dominated much political discourse for a four-year period, while failing to yield any tangible outcome, legally or practically, arguably produced distinct political benefits. As a concept, EWC deftly obscures profound political differences and has been used to refer to a spectrum of measures ranging from the nationalisation of all land (as in the Economic Freedom Fighters’ (EFF) initial formulation) to state custodianship (in the EFF’s later formulation) or to selective case-by-case property acquisitions (as proposed by the African National Congress (ANC)).
The well-known story of how EWC moved to the centre stage of South African politics in 2018 is outlined in the Introduction to this volume, and here I rehearse only its headline features. Following the EFF’s motion in Parliament to review the property clause, the ANC amended the motion by adding several caveats about the rule of law and national food security, and together they mustered a majority and passed it on 27 February 2018. Parliament then set up a Constitutional Review Committee (CRC), which conducted mass public hearings around the country and received over 600,000 written submissions – more than at any time since the constitutional consultations in 1995. The bulk of written submissions objected to any constitutional amendment, while the overwhelming majority of those attending the hearings supported amendment – this distinction largely correlating with race in a predictable manner. The Committee, reporting in November, concluded in favour of amendment ‘to make explicit that which is implicit’, namely that EWC is permissible (CRC, 2018: 34). EWC, it affirmed, is a justifiable objective, which is already provided for, but amendment should nonetheless be pursued.
In response, Parliament mandated a new parliamentary ad hoc committee on section 25 (the property clause) to propose and consult on such an amendment. This inter-party committee, predictably hampered by the continued deadlock, took more than two years to propose new wording. The two-stage parliamentary process proved effective in separating the in-principle debate on EWC from its content: hearings provided a cathartic public spectacle as a foil to the political theatre among political parties in Parliament, and the technical work of developing an amendment which followed was out of public purview and drew less interest, allowing the political momentum to recede. A further bifurcation was achieved by establishing the parallel PAPLRA (see section on PAPLRA below). It all ended with a whimper, rather than a bang, with the amendment bill failing to secure the required two-thirds of the votes in the National Assembly on 7 December 2021 – four years after the EWC debate had emerged as part of the king-making deals across ruling party factions which had secured Cyril Ramaphosa’s presidency at the ANC’s 54th elective conference in December 2017.
Expropriation is one means by which land can be acquired to be made available for redistribution or restitution. Even once the legal framework is fixed, and policy is developed to determine when expropriation should take place and how compensation is to be addressed in diverse situations, the questions as to who this will help, and how, remain. The popular imagination has been seized by a polarised debate between those blaming the 1996 Constitution of the Republic of South Africa (the Constitution) for the failures of land reform, and those defending it (and incorrectly interpreting it as requiring compensation). But there was a third position, which several academics, lawyers and activists tried to develop and communicate throughout this process. This chapter sets out this third position: that the ‘property clause’ provides a powerful mandate for transformation and an under-developed right of equitable access to land for landless citizens. In this sense, the question of EWC occluded the question of redistribution. Now that the constitutional amendment bill has failed and this red herring lies dormant for now, a more productive conversation could address as its central concern the question of the ways by which and terms on which people can gain access to land.
Actors on the Stage
Who were the protagonists in the EWC debate? The EFF and the Democratic Alliance (DA), for their own respective political reasons, consistently equated section 25 with a requirement of compensation for expropriation. On that, they agreed. The DA considered any deviation from a compensation-based approach to expropriation, and therefore any amendment, as tinkering with the terms of political settlement reached in the 1990s and vociferously opposed it (Democratic Alliance, 2018). A spectrum of business interests and think tanks, such as the Institute for Race Relations and Centre for Development and Enterprise, expressed similar sentiments, warning of mass disinvestment and financial collapse. Yet in my numerous encounters with international financiers, South African banks, foreign embassies and trade missions during this period, my distinct impression was that they could absorb possible losses associated with the forcible confiscation of specific parcels of land, which could be factored into risk calculations, and therefore absorbed. Rather, their concern was about predictability: what they sought was clarity as to when compensation would be paid, when it would not and how this would be determined. This is the clarity that the ANC refused to provide.
The EFF, for its part, depicted the property clause as being the primary impediment to meaningful transformation of land relations and the culprit for the perpetuation of the legacy of colonial theft – a political manoeuvre that, paradoxically, allowed the ANC to abdicate from responsibility for its own failure to use the constitutional provisions to expropriate in the interests of land reform. It called for nationalisation as a decisive reversal of colonial land theft – the term ‘expropriation’ being misleading, as, in fact, what it meant is confiscation of all property, later clarified as a form of state custodianship. In its view, the Constitution has a presumption of compensation: ‘The Constitution as it is currently written does not allow either for expropriation without compensation or for the narrow, piece-meal expropriations advocated by liberals’ (EFF, 2018: 15). In their interpretation that the property clause presumes, even assures, compensation, then, the DA and EFF agreed. In contrast, the ANC’s perspective can only be described as incoherent. Combining some Constitution-blaming with investor-reassuring, its responses to the evolving debate could be described as ‘Talk EFF, walk DA’.
Actors in this public discourse not only took different positions on EWC but also meant different things by it. The ostensible convergence, when the ANC and EFF voted together in Parliament in February 2018, was illusory; they were not agreed on what EWC means, let alone how it would be applied. The ANC resolution at its 2017 conference declared that EWC should be ‘one of the key mechanisms available’ to government (ANC, 2017: para. 15). It did not say that the property clause would need to be amended to achieve this. It had not called for any change to the Constitution, nor did it say why EWC was needed or what problem it would solve. It insisted on caveats such as that land reform must not damage agricultural production or food security and specified unused and under-utilised land, or land held speculatively or indebted, as targets for EWC (ANC, 2017: paras. 16–17) but omitted any mention of expropriating productive farms or urban land.
The ‘property clause’ is a mandate for transformation. By this, I mean that it affirms the rights of individuals, communities and society at large to the transformation of property relations through constitutionally mandated land reform and related reforms. This is not to say that it is sacrosanct or could not be improved. Indeed, a compromise was certainly struck over property rights in the 1990s, but this is most starkly evident not in the new Constitution, but rather in the interim Constitution of the Republic of South Africa, Act 200 of 1993. It is worth returning to these moments where the parameters for the status of (inherited) property rights, and the terms of their taking, were established. It was in this early period of negotiations that the ANC rapidly shifted course and abandoned its (always ambivalent) promise of nationalisation. Questions of land justice were framed on the one hand as being central to transitional justice and simultaneously as a shared responsibility of the whole society, with the costs to be carried by the wealthy, including property owners, via the tax system and the national fiscus.
The Compromise in the Interim Constitution
The status of property rights under a new dispensation was among the most contentious issues in negotiating the terms of political transition in the 1990s. The 1993 ‘interim’ Constitution (Act 200 of 1993) protected existing property rights through the time of the first democratic election while providing for land restitution, paving the way for a Restitution of Land Rights Act shortly after the first democratic elections. In July 1991, the ANC’s National Conference adopted guidelines developed by its Land Commission which rejected any constitutional protection of property rights (Klug, Reference Klug2000: 127; see also Klug, Chapter 11, this volume). Yet a mere few months later, when formal negotiations commenced, the ANC had abandoned nationalisation as a policy goal, acceded to compensation being paid for expropriated property and considered options to fund a programme that would now involve substantial capital costs to the state (ANC, 1992; Hall, Reference Hall2010). A proposed tax on landowners to fund a ‘compensation account’ earmarked for land reform purposes was quickly abandoned (Klug, Reference Klug2000: 128).
Back in the early 1990s, as the details of the interim Constitution and Bill of Rights were debated (and again four years later in 1995 when debating the final Constitution), divisions between the ANC and the National Party (NP) government centred on whether expropriation of property should be allowed for public purposes only or also in the wider public interest; whether or not compensation would be set at market value and whether it would be defined by a court; and the status of the right to restitution of property rights (Chaskalson, Reference Chaskalson1995; Klug, Reference Klug2000: 132–33). The NP argued for unconditional protection of all private property, while the liberal and business-aligned Democratic Party (DP) agreed with the ANC that this should be tempered with the right to expropriate property not only for public purposes (such as infrastructure) but also in the public interest, including for land reform, subject to the payment of compensation as determined by a court (Klug, Reference Klug2000: 127).
By February 1993, the ANC had acceded to the payment of ‘just compensation’ for land acquired by the state based on an equitable balance of public and private interests and subject to legal review – and therefore to the principle that the costs of land reform would be largely carried by the state. Unlike its earlier guidelines, the ANC’s proposals for the interim Constitution drew no distinction between personal and corporate property. The debate on property rights at the Convention for a Democratic South Africa (CODESA) focused on the mines and industry, together with land, a conflation of forms of property that again proved convenient in 1995 for the farming lobby, which was less influential in the negotiations than big business (DolnyFootnote 1 interview, 2005; own observation). As Mandela told businessmen in London, ‘[w]e have issued an investment code which provides there will be no expropriation of property or investments. Foreign investors will be able to repatriate dividends and profits’ (Kimber, 1994, cited in Hall, Reference Hall2010: 153).
As part of its ‘Back to the Land’ campaign in June 1993, the National Land Committee (NLC) supported a protest march of 500 rural community representatives, drawn from all provinces, at the CODESA negotiations, demanding the removal of the property rights from the draft interim Constitution and the confirmation of a right to restitution. This did not work. Agreement on the property clause on 26 October 1993 was the last item on which the interim Constitution turned, in lengthy and late-night debates described as both fierce and chaotic (Chaskalson, Reference Chaskalson1995). The final agreed text set out an explicit right to property – a positive freedom for landowners to acquire it, hold it and dispose of it. No such right exists within the final Constitution, which instead opens with only a negative property right to govern the way in which those holding property may be deprived of it.
In all the contestation between rural community groups and the ANC, the focus was squarely on the right to restitution and securing the tenure of farm workers and labour tenants (Klug, Reference Klug2000: 133). Throughout this period, the constituency for wider land redistribution was not clear. While landlessness was a popular topic at workshops and central to the rhetoric of land non-governmental organisations (NGOs), it lacked a clearly defined constituency. The NGOs worked with communities that had been forcibly removed or threatened with forced removals in the preceding period. From 1993 onwards, as the restitution process was separated from the development of policies for land redistribution, the claims process was taken forward by the Centre for Applied Legal Studies (CALS), the Legal Resources Centre (LRC) and the Land and Agricultural Policy Centre (LAPC)Footnote 2 in a technical approach that favoured the input of lawyers. Dolny (interview, 2005) observed that, by the early 1990s and with the start of formal negotiations, ‘this was a legal liberation struggle’. Its corollary, of course, was that the shaping of land redistribution policy and agricultural policy, in particular, became the domain of agricultural economists, largely the ‘verligte’ (enlightened) academics working for state institutions who favoured small-scale farming options but within a deregulated and liberalised economy and were contracted to the World Bank (Hall, Reference Hall2010). This bifurcation between lawyers and economists continued to beset land reform.
The Mandate for Transformation
The ‘final’ Constitution (Act 108 of 1996) mandated land reform, setting out rights for the dispossessed, landless and those with insecure tenure. In relation to each property right – the right to access on an equitable basis; the right to restitution; and the right to secure tenure – the duty-bearer is the state (s. 25(5), (6) and (7)). The state is empowered to expropriate property, including land, in the public interest as well as for public purposes (s. 25(2)), and a special status is given to those expropriations carried out in pursuit of ‘the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources’ (s. 25(4)). Expropriation is subject to the payment of ‘just and equitable’ compensation, taking into account five criteria, of which market value is one, the others being the history of its acquisition, past state subsidies in its development, its current use and the purpose of the expropriation (s. 25(3)).
As in the negotiations at CODESA, the question of property rights again became one of the ‘unresolvable lightning rods’ in the Constitutional Assembly (Klug, Reference Klug2000: 134). At stake was whether property – already regulated through statute and common law – should be given constitutional protection in a Bill of Rights and, if so, how the powers of the state to enact land reform and the rights of citizens to claim land rights would be balanced against the rights of existing property owners. When the NP failed to garner support for any form of group rights (such as a veto for whites or other minorities on certain kinds of legislation), it focused on the defence of individual rights, specifically property rights, as the last bastion of white protection against the redistribution of wealth (Klug, Reference Klug2000).
At hearings on property rights in August 1995 held by Theme Sub-Committee 6.3, three options compiled by the Working Group on Property Rights were presented and debated: two draft versions of a property rights clause and the option of not including a property clause in the Constitution (own observation). Among those who opposed the inclusion of a property clause at the hearings were academics and lawyers who, drawing on experiences in Canada and New Zealand, argued that embedding property rights in the Constitution would ‘insulate’ property owners from redistribution efforts and so ‘institutionalise or entrench imbalances and injustices in the distribution of property’ (Constitutional Assembly, 1995: 26–55; own observation). The most vociferous objections came from the Pan Africanist Congress, based on its own alternative policy vision, rather than from the ANC (Van der Walt, Reference Van der Walt and McLean1999: 112). Although the debate was framed as one about land and land reform, the provisions would extend to all types of property. Arguments for the constitutional protection of property rights came not only from farmers’ associations and political parties representing white interests (the NP and the DP), but also big business and the mining houses, some of which had brokered ‘talks about talks’ with the ANC in the 1980s (own observation; Klug, Reference Klug2000). As a postgraduate student writing my first thesis on land reform, I attended sessions of Theme Committee 6 and was struck that the vociferous demands for a clause to insulate private property from expropriation came not only from the farming lobby but from mining companies. The insistence on property rights did not turn exclusively or, perhaps, even primarily on questions of agricultural land.
The compromise proposal to the Constitutional Assembly for a way forward was that the Constitution should provide for expropriation for land reform purposes, alongside support for all land reform measures. Whereas the interim Constitution’s limitation of expropriation to public purposes meant that land reform could proceed only with the cooperation of existing landowners, this was not the case with the final Constitution of 1996. What Lahiff (Reference Lahiff2007) has termed a ‘landowner veto’ has persisted in practice due to the policy choice not to expropriate – leading to deadlocks in negotiations over price. This veto is a core feature of market-based land reform as a policy paradigm. And yet, later, while mineral rights were indeed nationalised under the Minerals and Petroleum Resources Development Act 28 of 2002 and, similarly, water was nationalised under the National Water Act 36 of 1998, land was not.
A Right of Equitable Access to Land
The ANC’s proposed constitutional principles included explicit protection of property rights subject to certain limitations, among them provision for the taking of property in the public interest, according to legal prescriptions and subject to payment of compensation. The notion of a right of ‘equitable access to land’ was the least debated of all the clauses. It originated from a small group of ANC-aligned lawyers who argued in favour of a regime of ‘property rights for the property-less’ to counterbalance:
the property rights debate [which] centres on the right of those who hold property, to retain it … A constitutional package would place the landless and homeless in the position where they could make a claim of right rather than a petition for largesse … The only way to achieve a true balance between … the rights of property-holders and property-less is to weaken existing property rights, as a matter of deliberate policy.
In this way, even among those who had argued against a property clause, the idea was born of using a constitutional rights framework to impose a positive obligation on the state to provide suitable land and housing for the landless and homeless; it would empower them to press their claims, and shape the behaviour of state officials to facilitate a responsive land reform. The ‘property clause’ would grant limited safeguards to existing property owners while mandating transformed property relations between the landed and the landless and between owners and tenants. Agreement between the political parties was reached at midnight on 18 April 1996, and President Mandela signed the final Constitution into law in December of that year.
A right of equitable access to land is not, of course, an unfettered right to land. But it is a right to have the state demonstrate that continued denial of access to land is the necessary outcome of a fair and reasonable policy and implementation mechanisms that weigh up the competing needs of and interests in land. In other words, the state is answerable to the landless. Like the right to restitution, the right of equitable access should be able to trigger an expropriation when the rights of the landless directly contradict and are impeded by the exercise of the property rights of the propertied. Where this is the case, the imperative of equitable access takes precedence. I argue this on the basis of two clauses, read together: first, what I characterise as the ‘national interest’ clause refers to ‘the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources’ (s. 25(4)(a)), and second, what I characterise as the ‘override clause’ confirms that ‘[n]o provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination’ (s. 25(8)). This latter clause is the oft-ignored trump card, which – should the other provisions impede the state – explicitly exempts land reform from the constraints of any other clauses.
Parliament’s High Level Panel
The question of equitable access to land, and the role of expropriation in making it possible, was considered in the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (HLP, 2017), established by the speakers’ forum of the National Assembly, National Council of Provinces and provincial legislatures, and chaired by former President Kgalema Motlanthe. In our commissioned report on land redistribution for the HLP, Thembela Kepe and I made the point that there was no framework to trigger expropriations in the public interest to make possible access to land on an equitable basis (Kepe & Hall, Reference Kepe and Hall2016). But few expropriations had been attempted even in cases of restitution, where the constitutionally recognised rights of the dispossessed to specific parcels of land could not be realised due to the effective ‘landowner veto’ that the state’s refusal to expropriate ceded to the current owners of claimed properties.
Three points from the HLP merit emphasis. First, the law is insufficiently developed: the Provision of Land and Assistance Act 126 of 1993 is an insufficient guide to give effect to section 25(5), as it empowers a Minister to acquire and/or allocate land but does not prescribe the rationale or manner in which this must be done. Predating the Constitution and considering redistribution as a matter of ‘largesse’ rather than ‘right’, to use Budlender’s (Reference Budlender1992) terms, it is permissive rather than prescriptive. Second, eligibility, prioritisation and selection are among the parameters left unspecified. To align with the right of access to land on an ‘equitable basis’, legal or policy prescription is needed to indicate:
(a) who should benefit;
(b) how prioritisation of people should take place; and
(c) how rationing of public resources should take place.
Third, the categorisation of applicants needs to be linked to a baseline survey and longitudinal studies to track change over time to show the benefits of land redistribution to people’s livelihoods.
The meaning of section 25(5) has not been interpreted legislatively or judicially. The vast majority of South Africans are eligible for land reform, but very few are actually getting access to land. Based on delivery data to date, and prospects for scaling up, even a very substantially expanded land reform programme would be likely to benefit only a minority. The question, then, of who should be selected as beneficiaries and what they are eligible to get is of central importance. On the one hand, ‘decision-making about who actually gets land through redistribution is opaque’ (HLP, 2017: 212), and on the other, there is growing evidence of elite capture by the wealthy, non-farmers and politically connected (Hall & Kepe, Reference Hall and Kepe2017; SIU, 2018; Mtero et al., Reference Mtero, Gumede and Ramanstima2019).
The legal provisions for making a claim for restitution clarify to whom the state is responsible for the realisation of the right – the claimants – and what manner of state action would constitute adequate realisation of the right – the content of the right. But for land redistribution, the holder of the right is not specified beyond ‘citizens’ and the content of the right of ‘access … on an equitable basis’ is not defined in any way. The HLP, therefore, concluded in favour of a Land Reform Framework Bill (or Redistribution Bill) to spell out the nature of the right of equitable access and to provide the basis for citizens to pursue their claims against the state for access to land as a constitutional right. An ‘indicative draft’ of such a Bill was even appended to the HLP report.Footnote 3 Yet the bulk of the far-reaching implications of the HLP proposals were studiously ignored amid President Zuma’s forced resignation, Ramaphosa’s ascendancy and, just a fortnight into his tenure, the EFF proposed its motion in Parliament to review section 25 of the Constitution, which the ANC supported, amending it with several caveats to placate critics. Four years elapsed without any official process towards further development of this proposal.
The Presidential Advisory Panel on Land Reform and Agriculture
While the Constitutional Review Committee was embroiled in hearings, President Cyril Ramaphosa constituted the PAPLRA. The terms of reference covered largely the same terrain as the HLP yet were broader, including the question of EWC along with agricultural development and farmer support, institutional arrangements and financing. The composition of the Panel was a feat of political engineering, bringing together ten South Africans: five women, five men; seven black, three white; two lawyers; two presidents of national farmer associations; two individual leading farmers (one young black woman and one older white man); two agricultural economists (both men); and two interdisciplinary social scientists (both women).Footnote 4 In many respects it must be considered a success in establishing a process that would hold at bay the political demands in an election year and keep some momentum within the presidency, as opposed to the parliamentary process, at a time when the EWC issue served as a proxy for internal factional battles within the ANC.
The formation of the PAPLRA followed a frantic period from March to August 2018, during which a sequence of internal ANC processes attempted to enlist allies from outside the party – including groups traditionally excluded and cast as government critics. A set of related strategies, both explicitly articulated and implied, emerged during this period among a network of land activists, academics and lawyers. The first was to support the call for the state to override the interests of property owners for the benefit of land reform by using its expropriation powers. The second was to affirm the principle that compensation should not be presumed and, indeed, that no compensation is an acceptable principle. The third was to draw attention to the scope already available within the Constitution – and, therefore, to the centrality of the political choices made by the state rather than the Constitution itself being the binding constraint. Fourth was to offer the option of a ‘compensation spectrum’ as a way of operationalising the ‘just and equitable’ requirement, recognising that people affected by expropriations are not, and will not always be, wealthy or privileged – indeed the state regularly and mostly expropriates the property rights of poor people, even if these are not rights of private ownership. Fifth was to use this rare opening of space into party and government processes to foreground other neglected and urgent issues, including tenure rights for farm workers and former labour tenants, communal tenure, restitution claims and communal property associations, and agrarian reform. What also became clear was that the message carrier mattered. The ANC clearly wanted academics and lawyers who would affirm the first two points, not least to quell the reaction in the international media and among investors and to give credence to its position that EWC could be done responsibly and was respectable in global terms, while also wanting authoritative, especially black, voices to undermine the EFF’s position.
From the outset, as a Panel, we conducted a reality check: in contrast with the proclaimed importance of land reform, redistribution had ground almost to a halt, making all proposals moot. Expropriation had been effected in respect of twenty-seven land claims – but not in redistribution. The Office of the Valuer-General (OVG) explained that its adopted practice was to take an average between ‘market value’ and ‘current use value’ as the level of compensation, ignoring the other constitutionally specified criteria.
In our first allocation of work packages in the Panel, we allocated matters of land acquisition, beneficiary selection and land allocation to Advocate Tembeka Ngcukaitobi and myself. Together we wrote an initial outline position which was debated within the Panel, later refined and presented at colloquia held in December 2018 and March 2019, and the gist of it incorporated into the final report (PAPLRA, 2019). We suggested a compensation formula on a sliding scale across four categories that would require definition as part of a spectrum of ‘just and equitable’ compensation: zero compensation, partial compensation, market-related compensation and above-market compensation. We emphasised that the purpose of EWC was not primarily to speed up land reform – indeed, as we conceded, it would likely be slower, at least initially. And while it may have the advantage of limiting the cost of acquiring land, it would probably not be entirely free. In our view, the decision not to compensate for expropriated properties was a matter of principle; the question was, therefore, when this principle should apply – a consideration on which the courts had not had the opportunity to rule. Du Plessis’ contribution to the Panel, which we summarised, clarified that a deprivation of property – via nationalisation or state custodianship – would be distinct from an expropriation and would not attract compensation (PAPLRA, 2019: 73–75). The requirement of compensation was, therefore, only a consideration if EWC were enacted on a case-by-case basis rather than through a systemic change in property regime. Ironically, this meant that despite being the primary proponent, the EFF’s proposals did not require a constitutional amendment.
Our proposal within the Panel was for an expedited, primarily administrative process, with recourse to the courts and with the rapid development of a body of jurisprudence as a guide. The extent of compensation is not the only consideration. Section 25(3) requires not only that the amount of compensation is just and equitable but also that ‘the time and manner of payment must be just and equitable’. In Haffejee,Footnote 5 the Constitutional Court held this does not mean that compensation must be determined and paid prior to expropriation. Yet the determination of the amount could occur after expropriation. In Latin America, government bonds offered a mechanism to provide some compensation while deferring the cost (Cliffe, Reference Cliffe2007). The anticipated delays pending court challenges would otherwise stymie reform and incentivise landowners to drag out disputes. Expropriation can, though, proceed separately from the determination of compensation, which in turn would be ‘bifurcated’: initially, compensation should be administratively determined by a state valuer by applying a formula defined in policy and, if the property owner was dissatisfied with the compensation, this could be appealed and a court could review and approve or set aside the compensation – but without stopping the expropriation from proceeding.
The PAPLRA proposed ten circumstances where EWC may be considered: abandoned land; hopelessly indebted land; land held purely for speculative purposes and a clarification of what constitutes ‘speculative purposes’; unutilised land held by state entities; land obtained through criminal activity; land already occupied and used by labour tenants and former labour tenants; informal settlement areas; inner-city buildings with absentee landlords; land donations; and farm equity schemes (where the state has purchased equity and no or limited benefits have been derived by worker shareholders). These were more expansive than the categories in the draft Expropriation Bill and would be subject to review and determination by the courts. The two white commercial farmers on the Panel, AgriSA President Dan Kriek and Nick Serfontein, distanced themselves from all our recommendations on expropriation and compensation, among other matters.
The majority view of the Panel was that the Constitution is ‘compensation-based’ in that its provisions entail a presumption that compensation of some kind must be paid. At the same time, during our deliberations, Parliament voted to amend the Constitution and appointed a committee to develop a proposal to amend section 25. Cognisant of the political imperative of an amendment ‘to make explicit that which is implicit’, and drawing on Du Plessis (in PAPLRA, 2019), we offered a suggestion for a constitutional amendment to clarify that compensation does not need to be paid in each case, and insisted that framework legislation is needed to guide compensation, among other matters. We proposed this addition to the property clause: ‘(c) Parliament must enact legislation determining instances that warrant expropriation without compensation for purposes of land reform envisaged in section 25(8).’
In contrast to outward appearances, EWC was not the most controversial or difficult matter debated within the Panel, or at the consultations we convened to engage more broadly with people. The main sticking points were the purpose of land reform, the nature of agrarian reform and the class agenda of land reform. In our consultations, most contested were the powers and roles of traditional authorities in general in land administration and specifically the status of the Ingonyama Trust. (On this see Mnisi Weeks, Chapter 7, this volume.) Skirmishes also emerged over the rights and entitlements to land of farm workers and dwellers, climate change and the notion of a ‘just transition’ towards a low-carbon future.
Insights from Cases on Redistribution and Compensation
An irony throughout the EWC debate has been the privileging of the question of acquisition over that of redistribution. Acquisition might be a precondition for redistribution, but the state has consistently shown that it is more proficient at the former than the latter. Whether acquiring land through the market or compulsorily, the state has been unwilling and/or unable to redistribute it effectively, in a coherent manner and with secure tenure rights. A range of situations have been documented: redistribution beneficiaries who have been unable to acquire either title or long-term leases to their land, even a decade or more after acquiring permission to occupy (Hall & Kepe, Reference Hall and Kepe2017); the poor capacity of the state to collect rents owed by its tenants on state-owned land (Auditor-General reports); and many others (Mtero et al., Reference Mtero, Gumede and Ramanstima2019). An illustrative example is Rakgase,Footnote 6 in which the High Court found that the state had failed to comply with the Constitution by not converting the tenuous land rights (under a long-term lease) of a black farmer, David Rakgase, into ownership when it was able to do so and he qualified for a grant; this, it found, constituted a breach of a constitutional obligation. This failure of administrative justice flags the limitations of state trusteeship in the absence of capacity to redistribute rights to citizens. Trusteeship was patently no guarantee of access to land on an equitable basis, as required in section 25(5).
If completing the work of redistribution involves securing tenure, the initiation of redistribution requires serious engagement with demand for land; between the two sits the question of how to get the land. The PAPLRA’s report urged that the most urgent needs for land be prioritised, to resolve the outstanding land restitution claims, to give the land that the state has and to identify much more effectively privately owned land needed for redistribution. Resolving the chaotic, conflictual and insecure tenure arrangements on redistributed land requires either state capacity to manage leaseholds or an exploration of alternative models. The state’s ongoing attempts to extract rents contradict the proclaimed intention of EWC: under the current leasehold model, beneficiaries are to pay rent to the state for fifty years, before being given an option to purchase the ‘redistributed’ land. So, even if the state were to acquire it without paying compensation, this does not translate into its being given out for free. The ‘market-based’ approach remains in the broader conception of land reform, as being about redistribution for production for the market and payment of a rent. The irony is that some of the political formations that promote state trusteeship have also been fighting against the state for evicting people.
One labour tenant case illustrates both the legal possibility of using the constitutional parameters to drive down compensation for land reform – though whether this could extend to no (or ‘nil’) compensation was not tested. Acting in Msiza at the Land Claims Court,Footnote 7 Ngcukaitobi set compensation at a level 16.6 per cent lower than the estimated market value, using the criteria of section 25(3). Mr Msiza and his family had, from 1936, resided on and farmed land in KwaZulu-Natal, but never owned it. Owners had come and gone, taking with them the rising value of the land over the intervening sixty years, and even after Msiza’s claim was lodged, the property had again changed hands. As Ngcukaitobi observed,Footnote 8 the appreciation in the value of the land should have accrued to Mr Msiza and his family. Had the state better executed its obligations, they would have been the owners by the time the Trust had acquired the farm, several years after the claim. And further, had the LCC been deploying the constitutional criteria of ‘just and equitable’ compensation as set out in section 25(3) over the past twenty years or so, and determining compensation on this basis in diverse cases, a body of jurisprudence would by now be established.
Overturned in the Supreme Court of Appeal,Footnote 9 the time allowed for a further appeal to the Constitutional Court elapsed, and the opportunity to test ‘just and equitable’ compensation in court was lost. Inadequate precedents exist precisely because, by choosing not to use these powers or to test the constitutional requirement of ‘just and equitable’ compensation, the state has over time created a situation in which the meaning of this phrase remains uncertain. When compensation should be set below market price and under what circumstances it could be zero has never been determined by a court, except in Msiza. Deputy Chief Justice Dikgang Moseneke admitted in 2018 that it was a matter of disappointment for him and others on the bench that no cases had been brought to test these provisions.
Beyond the Caricature: Land and Inherited Privilege
Certain contradictions and paradoxes arise, some of which are distinctly uncomfortable. First is the question of the land as a signifier of privilege as opposed to being the repository of privilege. While it is arguably the most potent signifier, ‘land’ is not the main repository of wealth or privilege. Substantial wealth is of course still bound up in land, including but not primarily agricultural land, but much of the wealth built up and accumulated on the land, from conquest, through settler colonialism, to segregation and grand apartheid, has since migrated off the land. The land is no longer the repository of all the wealth that it produced. Yet, unlike Bantu education, cheap labour and the suffering of separated families, the land remains a relic, a physical remnant of what was lost and can conceivably be restored. The equation of landed property now with inherited privilege is both correct but also incomplete, given the extent to which the capital accumulated through cheap land and labour is now held in urban residential property, in financial instruments, on the stock market, in global financial markets and in intergenerational investments in education, rather than in the land.
A second angle is that, while most property owners are white South Africans, the vast majority of the nearly 5 million white South Africans do not own agricultural land – which is the focus of the call for EWC. The majority of the approximately 30,000 commercial farming units are owned by South Africans, overwhelmingly white, yet even by generous calculations, these landowners likely constitute less than 0.6 per cent of the white population. This also raises the question of the beneficiaries of colonialism and apartheid and how those who benefited should contribute to transformation and redress.
Third is a temporal dimension, given the lapse of so much time not only between dispossession and a constitutional democracy but also between a constitutional democracy and the realisation of rights to redistribution, restitution and security of tenure. Between 1995 and 2008, over 5 per cent of agricultural land was transacted through the market annually (Aliber, Reference Aliber2009: 13). And given the significant restructuring in the sector through the 1990s, triggered by deregulation, drought and trade liberalisation, the majority of private property owners holding agricultural land parcels by 2018 had not owned these properties in 1994. As a corollary, the vast majority of white South Africans who had owned farms in the early 1990s no longer did so. The very limited intergenerational transfers of commercial farms, the active land market and rising property prices during the late 1990s and especially the early 2000s, prior to the crisis of 2008, meant that a certain generation of white farmers were able to sell properties acquired and developed with state support, realising the full improved prices for these, and invest the proceeds elsewhere.
In view of this, a striking silence in the debate about the property clause is any discussion of the expropriation of property other than land. Of all the forms of property that underpin inequality and injustice, land has been singled out, although even the category or categories of land that should be subject to EWC have been rather limited in the arguments of many of the protagonists. The EFF, for instance, started by calling for the nationalisation of all land, but later clarified that EWC should apply to farmland only and not to residential land, after an outcry from within its support base. Expropriation of intellectual property or financial assets have been largely undiscussed.
Further, the determination of compensation has to date been highly discriminatory, with an asymmetry between the calculation of compensation to the dispossessed and compensation to the possessors. Land restitution claimants opting for cash compensation have not received the current market value but rather a historical value inflated to current values using a consumer price index. Almost invariably, this discounts the difference between general inflation and property values; it also ignores the forgone opportunities of having been denied property rights for the intervening period. To the extent that compensation is treated differentially, then, it demonstrates a system of affirmative action in favour of the current possessors of property rights over those dispossessed in the past, and in favour of private title holders over those holding informal property rights.
Conclusions
The insistence on a constitutional amendment and blaming the Constitution for the failures of land reform runs far deeper than any literal reading of the law. Instead, it is a political act – in part political theatre, in part restorative dignity-claiming. The call for the decolonisation of landed property relations deserves wider debate, as does what it means to dismantle the hierarchy between property owners and the landless. Missing in the debate so far has been the crucial question of the commons and of defending and expanding access to land as common property, alongside or instead of redistribution within the private ownership or private leasehold model. Attention to the property clause is productive only insofar as it spurs on this broader debate, rather than fixating on the Constitution as the site of resolving the intransigence of the state.
The core problem is not the state’s powers to acquire land – which are well established, if seldom used – but rather the ability of citizens to claim access to it on an equitable basis. Any battle that targets the state’s expropriation powers in isolation from the question of the onward redistribution of the land that the state acquires in this manner is likely to yield a Pyrrhic victory. Rather, the ‘redistribution’ clause in section 25 provides the basis for precisely this: a framework to guide how citizens can make claims on the state and in whose interests the state should expropriate. While a ‘redistribution bill’ and ‘area-based planning’ for ‘inclusive people-driven land reform’ and other models and guides have proliferated, missing among these initiatives are organised formations of landless and land-poor people making their own plans for which land and where should be redistributed to whom, for what and on what terms. A right to land for the landless, on an equitable basis, in both urban and rural areas, and for diverse purposes and with flexible tenure, throws open more useful and more liberatory possibilities than the convergence of neoliberalism and authoritarian populism that we have seen to date; it could serve as a strategic focal point for socio-legal activism, urban and rural social movements, human rights lawyers, NGOs and allies in academia.
The conditions for such struggles to find purchase and for claims to have traction are many and will doubtless continue to be debated and tested in practice. They will stand a better chance if, in the interim, the state is claim-ready with a new Expropriation Act, a revived and capacitated Land Court and a Compensation Policy that operationalises the criteria in section 25(3) of the Constitution. But such measures should not be confused with moving ahead with land reform; they are just yet more mechanisms, illusory until used. While the state steadfastly refuses to instigate significant (let alone pro-poor) land reform ‘from above’, such legal and policy reforms cannot be seen as advancing land reform in themselves. However, they could serve as frameworks against which political movements, communities, families and individuals might at times assert their claims ‘from below’.
Introduction
These are the bleak and regrettably timeless words of the catchy maskandi ‘protest’ song released by Phuzekhemisi NoKhethani in 1992. This music of the people (of KwaZulu-Natal, at least) spoke to the democratic aspirations of millions of South Africans in the countryside who had experienced the imposition of traditional leadership and deprivation of secure rights – mainly to what was characterised as ‘tribal’ land in so-called communal areas – as a profound aspect of apartheid’s oppressive design. Their hope was that with democracy would come ‘freedom accompanied by full citizenship [and] equal rights’ (Mnisi Weeks, Reference Mnisi Weeks and Campos Galuppo2015: 124). Those dreams are yet to be realised.
More than a quarter of a century after the struggle for equality under the law technically succeeded with South Africa’s entrance into democracy in April 1994, and the finalisation of the Constitution of the Republic of South Africa in 1996 (the Constitution), land reform and redistributive justice continue to elude the majority of South Africans (Ntsebeza & Hall, Reference Ntsebeza and Hall2007; Zenker, Reference Zenker2014; Cousins, Reference Cousins2016; Beinart, Kingwill & Capps, Reference Beinart, Kingwill and Capps2021). This is especially true if one takes a gendered view of the many challenges and poorly used opportunities to realise equitable land reform that rural women have experienced since South Africa’s establishment as a constitutional democracy. With this in mind, this chapter approaches the much-debated, alleged need for amending the Constitution from the perspective of rural women (and, by extension, children)Footnote 1 living under traditional governance; how have their hopes for land reform and redistributive justice fared in South Africa as a purportedly constitutionally transformed democracy? Although that is the focus, the chapter situates women’s struggles within the wider context of the insecure land rights of rural communities generally (involving men as well as women) and thus sheds light on broad concerns with rural democracy and governance and how they impact land matters. The chapter therefore asks, with reference to land and rural people’s social and economic security, how significant local political rights are for redistributive justice in the former bantustans.
The Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) was passed to temporarily defend the rights and interests of people ‘beneficially occupying’ land to which they did not have formal rights (that is, they were openly occupying land in rural areas as if owners but without permission or the exercise of force). The expectation was that IPILRA would shortly be replaced by legislation – such as the Communal Land Rights Act 11 of 2004 (CLARA) – that would provide permanent tenure protection to informal rights holders (Zamchiya, Reference Zamchiya2019; Tlale, Reference Tlale2020). However, the Constitutional Court duly struck down CLARA in 2010,Footnote 2 while IPILRA has continued to be renewed annually. It has now been over a quarter of a century since South Africa gained its independence, yet legislation to strengthen tenure security and related institutions in the former homelands is yet to be implemented. The Communal Land Tenure Bill (BX-2017) (Department of Rural Development and Land Reform (DRDLR), 2017) has yet to make its passage into law and is likely to meet the same fate as its predecessor. As the World Bank (2018: 44) correctly summarises, ‘[a]t the heart of the long-standing stalemate regarding tenure reform in communal areas is the significant power given to traditional leaders’.
The uneasy fit between customary conceptions of land and the cadastral property system, as well as between customary law and state law systems, has been extensively canvassed in the literature (Kingwill, Reference Kingwill2013; Cousins, Reference Cousins2016; Beinart et al., Reference Beinart, Kingwill and Capps2021). Less thoroughly explored are the ways in which IPILRA tried to get around these dissonances by taking a bottom-up approach to decisions pertaining to land occupation, use and access under the Constitution, grounded in vernacular normative conceptions and the unused opportunities that it presents for inclusive land reform. The ways in which IPILRA’s objectives have not been realised articulate with the reasons why transformative constitutionalism and its lofty ambitions have been limited in their effect in rural South Africa.
This chapter asks whether the ‘transitional justice’Footnote 3 arrangements in the Constitution, professed to be deeply transformative, positively yielded (especially gendered) restorative and redistributive justice on the ground. Answering in the negative, the chapter demonstrates that the problems of ongoing tenure insecurity and the misappropriation of people’s land rights in ‘communal areas’ may not lie predominantly with the Constitution per se, or with the way the constitutional and other courts have interpreted section 26(6) and (9) as well as legislation such as IPILRA. Rather, they appear to lie mainly with the ruling party’s turn towards an interpretation of ‘tradition’ and ‘customary law’ that entrenches the undemocratic governmental powers of traditional leaders at the expense of rural people. Hence, this chapter goes beyond concerns with the property clause to highlight the centrality of political rights, especially in local government, thus emphasising that the quest for redistributive justice certainly includes, but also extends well beyond, rights to land.
The chapter thus highlights the complicity of traditional leadership institutions in historical and contemporary land dispossession as evidenced by the residential lease programme of the Ingonyama Trust Board (ITB). It also reflects on how this complicity may sometimes put vernacular law in conflict with itself: on the one hand, some traditional leaders elevate to the level of (official) customary law self-serving values such as the centralisation of land ownership and control vested in the institution (which is rhetorically conflated with the traditional leader as an individual), in order to aid in their personal enrichment (Buthelezi et al., Reference Buthelezi, Skosana and Vale2019; Ubink & Duda, Reference Ubink and Duda2021; Wicomb, Reference Wicomb2021) and, on the other hand, this centralisation campaign is vehemently defended against the ‘alter-Native’Footnote 4 values embodied in living customary law (that is, vernacular law) that argue in favour of the necessary diversification and diffusion of land-holding and decision-making power (Mnisi Weeks & Claassens, Reference Mnwana2011; Tlale, Reference Tlale2020). Perhaps surprisingly to some, as potential levers, these values offer greater chances of achieving widespread poverty reduction in communities that desperately need it.
The backdrop is the recognition in the Constitution of the status of customary law (ss. 39(2) and 211(3)), rights to property (s. 25), political participation (s. 195(e))Footnote 5 and access to justice (s. 34). In this chapter, the transformative impact that these protections were meant to have is read alongside the provision in section 211(1), that ‘[t]he institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution’, and in section 212(1), that ‘[n]ational legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities’ (Nkhwashu, Reference Nkhwashu2019). The valorisation of the institution of traditional leadership independent of a democratic following, which is what has been produced by the legislature’s interpretation of the latter provisions, is explored through two recent cases that have clearly revealed the threat that uncritical and unbridled, government-backed traditional authority and power have yielded for South Africa’s constitutional promise. The first is Ingonyama TrustFootnote 6 and the second is Maledu.Footnote 7
The Preamble to the Constitution articulates the lofty vision of ‘the supreme law of the Republic’, undergirding the striving of ‘[w]e, the people of South Africa’, to:
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
Yet the cases of Ingonyama Trust and Maledu show that the cumulative impact of the socio-economic and politico-legal realities in post-apartheid South Africa have yielded limited land rights protection for traditional peoples and, consequently, not altered the conditions of material and social precarity that affect these groups. The fact that the recognition and development of customary law has to pass constitutional muster has been largely ignored (Budlender, Reference Budlender2021).
Two Cases in Point: Ingonyama Trust and Maledu
Following the release of the Report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (HLP) in October 2017 (HLP, 2017), former President Kgalema Motlanthe publicly observed that the ITB in KwaZulu-Natal (KZN) was taking advantage of residents on land registered to it. In the lead-up to the report, Motlanthe had heard hundreds of rural South Africans, especially in mineral-rich areas like the Platinum Belt in the northern territory and land under the ITB’s jurisdiction, testify to their experiences of land confiscations, insecurity and destitution. At a May 2018 land summit, he said of the ITB, ‘[p]eople who have lived there for generations must pay the Ingonyama Trust Board R1,000 rent, which escalates yearly by 10%’ (Nhlabathi, Reference Nhlabathi2018). This was after the ITB had advertised to the people in its jurisdiction (many of whose families had lived there for generations) that they have insecure tenure and should ‘upgrade’ their apartheid-era ‘Permission to Occupy’ (PTO) certificates by entering into long-term leases with the ITB.Footnote 8 This, it was claimed, would provide them with the proof of residence needed to register to vote, open bank accounts, register cellular phones or obtain rural allowances from employers.
For instance, in November 2017, the Ingonyama Trust advertised in a number of KwaZulu-Natal newspapers saying it was ‘inviting’ PTO holders to come to the ITB ‘with a view to upgrading these PTOs into long term leases in line with the Ingonyama Trust tenure policy’. Contrary to the Trust’s claims, the PTO certificates held by many of the people who ‘voluntarily’ took the Trust up on its widely publicised policy-based offer (some of whom were later to become the applicants in the case against the Trust and ITB), were in fact upgradeable to ownership in terms of the Upgrading of Land Tenure Rights Act 112 of 1991. Alternatively, for those who did not have PTOs, their informal land rights established by long-term occupation were likely to be considered customary ownership and thus entitle the people to compensation under IPILRA. The ITB had thus deceived people holding rights that are more akin to ownership into trading them in for the status of tenants and then going on to extort escalating annual rents from them.
At the time that Motlanthe was speaking, the ITB was allegedly continuing to issue this solicitation via its Facebook and Twitter accounts and advertisements, despite the fact that in March 2018 the Chair of the Portfolio Committee on Rural Development and Land Reform had directed the ITB to stop this practice, and a senior official of the Department had confirmed that the Trust’s income-generating scheme was unauthorised and violated both the Constitution and the Public Finance Management Act 1 of 1999. These flagrant and defiant actions were what ultimately led to the lawsuit against the ITB and the relevant Minister, to which discussion I now turn.
The Ingonyama Trust Case
Ms Hletshelweni Lina Nkosi was one of several thousand women stripped of their land rights by a traditional leadership institution. Following the Ingonyama Trust’s 2007 launch of its ‘PTO Conversion Project’, she was notified by Trust officials that her PTO certificate no longer had validity in law. IPILRA says that ‘[t]he holder of an informal right in land shall be deemed to be an owner of land’ for various purposes (IPILRA, s. 1(2)(b)). By contrast, the Trust told community members that to have a more formal and secure title deed under the Upgrading of Land Tenure Rights Act, they had to sign a lease agreement with the Trust, which resulted in a downgrading of their property rights to those of rental.
Ms Nkosi was led to believe that she had to sign the lease. Yet when she tried to sign the agreement, she was further informed that single women were not permitted to do so. Fearing eviction and the loss of her home, Ms Nkosi co-signed the Trust’s lease with her partner. These allegations formed part of the application brought against the Ingonyama Trust, the ITB and the Minister of Rural Development and Land Reform (the Minister) by the Legal Resources Centre (LRC), acting on behalf of the Council for the Advancement of the South African Constitution (CASAC), the Rural Women’s Movement (RWM) and seven informal land rights holders. In this case, CASAC and RWM were acting in the public interest; Ms Nkosi and the other six informal land rights holders represented a class of people whom the Trust had swindled.
The applicants requested that the court declare the actions of the Trust unlawful and in violation of the Constitution. The ITB persisted in arguing that the leases it had fraudulently persuaded the parties to enter into provided stronger tenure rights than those they already had and would help the residents secure financing from banks and enable them to establish businesses. The truth of the matter was that converting their strong informal land rights into formal but weak land rights under the guise of leases would diminish their tenure security.
On 11 June 2021, Madondo DJP (with Mnguni and Olsen JJ concurring) issued a landmark decision in the applicants’ favour. As the LRC had argued,Footnote 9 the unlawfulness and unconstitutionality of the Trust and ITB’s actions lay in concluding, under false pretences, residential lease agreements with residents on the land held in trust – some, if not all, of whom had PTOs or other informal rights protected by IPILRA. Thus, the resultant leases over ‘residential land or arable land or commonage on Trust-held land’ were invalid, and the Trust or ITB has to refund all money received pursuant to these invalid agreements to the people who had made lease payments.
Given the Minister’s assigned responsibility to ensure adherence to property rights,Footnote 10 she was in breach of her duty by ‘failing to exercise, or failing to ensure the exercise by her delegate, of the powers conferred by chapter XI of the KwaZulu Land Affairs Act 11 of 1992 and the KwaZulu Land Affairs (Permission to Occupy)’. The decades-long failure of the DRDLR to ‘implement an alternative system of recording customary and other informal rights to land of persons and communities residing in Trust-held land’ necessitated the implementation of PTOs under chapter XI of the KwaZulu-Natal Land Affairs Act in the interim. The Minister was therefore ordered to report to the court on how her department had fulfilled this obligation.Footnote 11
The Maledu Case
Nearly three years prior, the Constitutional Court had confronted a different yet similarly predatory assault on rural residents’ ‘informal’ customary land rights in the Maledu case. The first applicant of thirty-seven in this case was Ms Grace Masele Mpane Maledu, a resident of Lesetlheng village, which formed ‘a community-based organisation consisting of persons claiming to be owners of the farm’ in the Rustenburg district of the North West Province (para. 10). She and the other applicants asserted occupancy and ownership of the farm on which they conducted farming operations following their forebears’ purchase of the land in 1919, in accordance with a decision made by their community in 1916 (para. 12).
In 2004, the Department of Mineral Resources (DMR) granted the first respondent, Itereleng Bakgatla Mineral Resources (Pty) Limited (IBMR), a prospecting right over the farm. Later, on 19 May 2008, the DMR awarded IBMR a right to mine for platinum group metals and associated minerals on the same farm. IBMR then contracted the second respondent, Pilanesberg Platinum Mines (Pty) Limited (PPM), to do the actual mining. IBMR applied to the DMR to excise from its mining right the Sedibelo-West portion of the farm which IBMR was to cede to PPM. In 2014, IBMR and PPM began preparations to undertake full-scale mining operations on the farm, which the applicants resisted by applying to the courts. IBMR and PPM challenged them on the grounds that the Lesetlheng Community were not the owners of the land and had not been entitled to special consultation, consideration or consent.
However, the reason joint ownership of the Lesetlheng village farm had not been registered in the purchasers’ names was the existence of pre-1994 racist legislation. The farm was registered as held in trust by the designated Minister. Furthering the Lesetlheng Community’s legal disadvantage and dispossession was the fact that the community was not legally ‘recognised as an autonomous and separate entity by the government of the day’. Instead, the farm’s title deed ‘reflected that the Minister held it in trust on behalf of the entire Bakgatla-Ba-Kgafela Community’, of which the Lesetlheng Community was a subunit (Maledu, para. 12). This was not an unfamiliar scenario. The drafters of IPILRA had pre-empted such situations resulting from apartheid’s messy history. While the Lesetlheng Community could legitimately fall under IPILRA’s definition of a ‘community’,Footnote 12 the government entirely disregarded the law and its statements on the nature and interpretation of vernacular law pertaining to land ‘held on a communal basis’ (Maledu, paras. 12–13).Footnote 13
The Court answered the crucial question, ‘did the surface lease deprive the applicants of their informal land rights?’, quoting section 2(2) and (4) of IPILRA, which provides the consultation requirements as follows:
(2) Where land is held on a communal basis, a person may, subject to subsection (4), be deprived of such land or right in land in accordance with the custom and usage of that community. …
(4) For the purposes of this section the custom and usage of a community shall be deemed to include the principle that a decision to dispose of any such right may only be taken by a majority of the holders of such rights present or represented at a meeting convened for the purpose of considering such disposal and of which they have been given sufficient notice, and in which they have had a reasonable opportunity to participate.
In response to the applicants’ claim that the kgotha kgothe – the traditional meeting of the Bakgatla Ba Kgafela – had deprived them ‘of their informal land rights in terms of the customs and usages of the Bakgatla’, the respondents sought to show that the resolution adopted by the Bakgatla Ba Kgafela at that same meeting fulfilled these requirements (Maledu, para. 108). However, given that ‘this resolution does no more than merely indicate that it was adopted and signed by Kgosi Pilane and a representative of Barrick’ (para. 108),Footnote 14 the court found that ‘there is no shred of evidence to substantiate the respondents’ assertions that the applicants were deprived of their informal land rights in conformity with the prescripts of section 2(4) of IPILRA’ (para. 108).
It was central to the Constitutional Court that the rightful owners of the farm – albeit as ‘informal’ rights holders under IPILRA and thus, by extension, under the MPRDA – were not consulted and did not give approval for any of these undertakings. Even though they were evidently the active occupiers and users dependent on the property, they were dispossessed and stripped of their primary source of livelihood and subsistence by the signature of Kgosi Pilane, following the approval of whoever had gathered to approve the transaction on behalf of the Bakgatla Ba Kgafela Community as a whole. The disregard of the requirements stipulated in IPILRA was used defensively by the applicants to ensure appropriate recognition and advanced protection of the rights of customary residents such as Ms Maledu, although these requirements were actually intended to be used proactively by bodies such as the DMR and the DRDLR.
From these two cases, it is evident how the higher courts have applied the Constitution to protect and advance customary rights to land in the face of the clear determination of the government and traditional authorities to shield and/or push the interests of traditional leaders. The political economy and land reform challenges that are revealed are that the ITB is more interested in rents than the productive use of the land or the security of its dependants, while the Maledu case is fundamentally about the traditional institutional leaders’ focus on extracting profits from mining. This tells us that land is a primary site of politico-economic contestation between ordinary people and their leaders – contestations that centre on the control of assets and the extraction of value from the land on which rural people (and especially women) depend for their material security or, in the case of traditional leaders, their prosperity.
Discussion
In the remainder of this chapter, I argue that the Ingonyama Trust and Maledu cases show that the cumulative impact of the socio-economic and politico-legal realities in post-apartheid South Africa has yielded limited land rights protection for people in traditional areas and, consequently, the conditions of material and social precarity that affect them have not been altered. The main reason for this failure is the disproportionate power given to traditional leaders in our democracy. As intimated by Phuzekhemisi NoKhethani, the maskandi musicians quoted in the introduction to this chapter, these powers are exercised under the guise of ‘tradition’, in ways that further deprive an already impoverished ‘subject’ population, with land tenure the primary site of contestation.Footnote 15
Land as Primary Site of Contestation
In terms of section 25(6) of the Constitution, ‘[a] person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress’. Section 25(7) goes on to prescribe that ‘[a] person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress’.Footnote 16 In 2004, in Alexkor v Richtersveld Community (paras. 36–37),Footnote 17 the Constitutional Court affirmed that traditional communities’ land is included under section 25 (paras. 50–64).Footnote 18 That being so, ‘Parliament must enact the legislation referred to in subsection (6)’ of section 25 of the Constitution (ending tenure insecurity). The government also bears the obligation, under section 25(5), to ‘take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis’. However, as described in the brief discussion of IPILRA, CLARA and the CLTB earlier, the government has not fulfilled this constitutional obligation.
A detailed look at the land distribution statistics for the country demonstrates the persistent impact of apartheid’s discriminatory land policies. In 2019, the Presidential Advisory Panel on Land Reform and Agriculture (PAPLRA), which drew on the 2016 Agricultural Households Survey by Statistics South Africa and the DRDLR’s Land Audit of 2017, reported that white people owned 72 per cent of South Africa’s individually owned farming and agricultural land – precisely 26,663,144 hectares of the total 37,031,283 hectares (PAPLRA, 2019: 43). People classified as ‘coloured’ owned 15 per cent, Indians 5 per cent and the African majority owned the smallest amount of this land, at 4 per cent. The DRDLR’s Land Audit (2017: 2)Footnote 19 also found that men owned 72 per cent of the total farm and agricultural land it audited, in marked contrast to the mere 13 per cent owned by women. A 2022 report by Statistics South Africa, Women Empowerment, 2017–2022, confirms the gender imbalance, noting that in 2007 and 2018 South African men ‘recorded the highest percentage of owners who farm for themselves full-time or part-time in both years (80,9% and 79,5%) compared to their female counterparts’ (Statistics South Africa, 2022: 59). Yet while the extent and persistence of racial inequity are well established, the gendered dimensions are less so, this imbalance complicated by the fact that there is an assumption that men are the farmers and their female partners not, even though the latter may be very active in the actual farming on male-owned land.
Of course, individual land ownership is not the only consequential category of private ownership, since some land is also owned by communal entities such as community-based organisations (CBOs) and trusts. Referring to doctoral research by Donna Hornby (Reference Hornby2014), the Institute for Poverty, Land and Agrarian Studies (PLAAS) described what appears to be a ‘successful redistribution project at Besters in KwaZulu-Natal, where 21% of the district’s commercial farmland, along with tractors and beef cattle herds, have been redistributed to 13 Communal Property Associations made up of 170 former labour tenant and farm worker households’ (Hornby, Reference Hornby2014, cited in PLAAS, 2016: 28). Yet still, the rate of delivery in land reform is far from satisfactory. Indeed, by March 2017 less than 10 per cent of commercial farmland had been redistributed, well short of the government’s proposed target of delivering 30 per cent of this land by 2014. According to a 2018 World Bank report, ‘[a]lthough 80 percent of land claims had been settled by 2016, the amount of land transferred is still small. The target of transferring 30 percent of arable land to black landholders by 2014 was not achieved, and there is limited information on the current level of transfer’ (World Bank, 2018: 43–44; but see also Sihlobo & Kapuya, Reference Sihlobo and Kapuya2018).Footnote 20
As the World Bank accurately notes, IPILRA continues to govern tenure security in South Africa. Although when it was passed a quarter of a century ago it was envisaged as stop-gap legislation, it has since had to be renewed annually. IPILRA is aimed at securing ‘the rights of people occupying land without formal documentary rights, such as rights to household plots, fields, grazing land, or other shared resources’ (World Bank, 2018: 44). However, its effectiveness is limited by the absence of a robust, supportive land administration system that is run by a well-staffed department whose employees enable extensive community consultation. Rather, based on the prevailing presumption that only consultation with traditional leaders is required, the formal administrative processes needed to identify and record rights properly and resolve disputes are currently lacking. This is despite the fact that the Department of Land Affairs (as it was named at the time IPILRA was passed) has internal policies aimed at clarifying the process for systematically documenting rights and thus preventing disputes, as required under the Act. These policies are not often implemented. Given the scale and public nature of the Ingonyama Trust and Itereleng Bakgatla land rights violations, this leads one to suspect that the political will is wanting.
Like the World Bank, Songca (Reference Songca2018) concludes that the unresolved apartheid-instituted role of traditional leaders in rural land holding and management is also part of the problem. The World Bank aptly observed that ‘[a]n important provision of the act [IPLRA] is to ensure proper community consultation in cases where external investors wish to access communal land’ (World Bank, 2018: 44). The fact that the DRDLR has mostly failed to enforce these protections (due to an apparent lack of political will, a shortage of trained personnel and the absence of comprehensive legislation) has led to some external investors violating them, especially in the case of the exploitation of mineral resources by extractive industry. The World Bank also describes the ‘best’-case scenario, where some potential investors have declined to invest due to uncertainty on how to negotiate leases on communal land or a lack of confidence that they can trust that the arrangements will be respected.
As demonstrated by the Maledu case, the violation of communal land rights protections can be observed from internal investors too; after all, the IBMR was an entity established by members of the Bakgatla Ba Kgafela traditional community. Indeed, as the Parliamentary Monitoring Group reported following a parliamentary committee briefing by the Deputy Minister of Mineral Resources on 14 November 2018: ‘The Ingonyama Trust and Itireleng [sic] Bakgatla Mineral Resources cases have been challenging because the traditional rulers played double roles. DMR is working on how the Ingonyama Trust and local chieftaincies affect land but it has to be thorough.’ The flagrancy of the persistence of ‘chieftaincies’ with their exploitation of the informality of ordinary rural people’s land rights, even ignoring multiple warnings, was striking – but so was the government’s relative inaction when it came to protecting these rights and people. In the end, it was a lawsuit that got the government to adopt a just position in both Ingonyama Trust and Maledu. In both cases the government seems to have left the options it had available to it, especially in terms of IPILRA, all but entirely unimplemented. This is despite the abundant encouragement and advice it has been offered on how to do so.Footnote 21
Traditional Leaders Stand in the Way
As the Ingonyama Trust and Maledu cases show, some traditional leaders have exploited the weak regulatory and enforcement environment to acquire more land through the further dispossession of the already dispossessed people in their areas. In his comments on the ITB situation of May 2018 quoted earlier, Motlanthe was speaking in his capacity as a member of a team established by then still new President Ramaphosa to ‘clear existing confusion’ on the African National Congress’ (ANC) position on ‘the land question’ (Madia, Reference Madia2018). Motlanthe’s remarks received some negative attention, particularly from traditional leaders (Staff Reporter, 2018; see also Friedman, Reference Friedman2018) as well as allies of traditional leaders such as Mangosuthu Buthelezi, who criticised him for making the following comments:
The people had high hopes the ANC would liberate them from the confines of the homeland system. Clearly now, we are the ones saying land must go to traditional leaders and not the people. … some [traditional leaders] pledge their support to the ANC. Majority of them are acting as village tin-pot dictators to the people there in the villages.
Motlanthe’s comments were, of course, not unwarranted, and not only with reference to the ITB. The fundamental issue is who owns the land. Is customary land owned by the traditional leaders and/or kings or by the people who have lived on the land (burying their ancestors, grazing their cattle, gathering grass, wood and water), often for generations? As Motlanthe boldly observed, thus far it appears that – whether by commission or omission – the ANC has come down on the side of traditional leaders in this debate. One measure of this is that the legislation passed on governance and land tenure since the ANC took over in 1994 has been built largely on the foundations of preceding apartheid-era legislation. The ANC has thus preserved structures that were invented by the Native Administration Act 38 of 1927 and the Bantu Authorities Act 68 of 1951 and then branded ‘tribal’ by South Africa’s past segregationist regimes. The rhetoric of the government and traditional leader lobby seeks to persuade the public that these legislative actions are protecting and continuing ordinary rural people’s culture and traditions. However, close examination of the evidence reviewed by the courts in the Ingonyama Trust and Maledu cases clearly shows that they are not.
‘Citizens’ with No Consultation and No Choice are ‘SubjectsFootnote 22
While the rights claimed by traditional leaders over so-called communal land are allegedly premised on a version of customary law, they are based on a distorted and/or opportunistic version. Within a dominant political economy framework that privileges individual and exclusive forms of ownership and decision-making over property, this version exploits the fluidity and ambiguities of customary law’s distributed power model and its system of nested and overlapping land rights (Cross, Reference Cross1992: 305–31; Okoth-Ogendo, Reference Okoth-Ogendo, Claassens and Cousins2008: 95–108). This results in communal land tenure processes that, especially at the intersection between informality and formality in South Africa’s pluralistic legal system, effectively amount to ‘no consultation and no choice’. The consequence is that people who are already vulnerable are left even more tenure-insecure than they were previously. As the hunger for the commercialisation of land and minerals in traditional areas grows, the dehumanising processes and dispossession of property that follow set up what can be experienced as an intimate relationship between selling land and selling people (many of them women) – in the haunting words of one elderly woman featured in This Land (2019), a documentary about the struggle of black, rural people to protect their rights on communal land in KwaZulu-Natal: ‘They want to sell us.’Footnote 23
The practical implication is that the oft-repeated aphorism Inkosi iyinkosi ngabantu or Kgosi ke kgosi ka batho, which can be translated as ‘a traditional leader is a traditional leader in, through and because of the people [who follow him]’, is effectively replaced by a problematic inversion. This says that ‘a community is a community because of having a senior traditional leader’ or, even more troubling, that ‘people are (a) people in, through and because of (being under) a senior traditional leader’. In this way the process is not just one of dispossession but also one of dehumanisation.
Given that Inkosi iyinkosi ngabantu is part of the popular discourse of most South Africans, one might think that it would form the foundation of the recognition accorded traditional leaders in legislation. However, the Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA) disregarded it. Its replacement, the Traditional and Khoisan Leadership Act 3 of 2019 (TKLA), also does not describe ‘traditional’ structures as dependent upon consultation with the people who are to be governed by them.Footnote 24 With this legislation in place, the government has ensured that the holders of informal land rights on rural land need not be consulted on issues involving their land (Manona, Reference Manona2012; Mnwana, Reference Mnisi Weeks and Claassens2014: 21–29; Beinart et al., Reference Beinart, Kingwill and Capps2021; Ubink & Duda, Reference Ubink and Duda2021). The power granted by the government to traditional leaders – converting cultural and political power into economic and legal power, encapsulated as ‘Ethnicity Inc.’ by Comaroff and Comaroff (Reference Comaroff and Comaroff2009) – is demonstrated in both the Ingonyama Trust and Maledu cases described earlier.
The insistence of the Portfolio Committee on Justice and Correctional Services on embracing the recommendations of traditional leaders in its deliberations in 2017 on the Traditional Courts Bill (B1D-2017) must be read against this background.Footnote 25 Specifically, the Committee insisted that permitting people to opt out of the jurisdiction of traditional courts would undermine the power of these courts, thereby dangerously re-enacting apartheid’s repressive principles of depriving rural residents of choice – choice that sections 30 (on ‘Language and culture’) and 31 (‘on Cultural, religious and linguistic communities’) of the Constitution assure them. The Portfolio Committee’s direction to the Department of Justice to remove the explicit right of people to opt out is a rejection of the fundamental customary law principle of Inkosi iyinkosi ngabantu/Kgosi ke kgosi ka batho. Implicit in debates on traditional governance has been the question whether ordinary rural people are, in the words of Mamdani (Reference Mamdani1996), ‘citizens’ or ‘subjects’. This move highlighted the extent to which they remain subjects (women even more than men).
IPILRA tried to stake a claim for ordinary rural people as citizens worthy of consultation in all matters pertaining to the land that they ‘occupy’, ‘access’ or ‘use’, arguably with consent required in the case of land which they ‘occupy’. However, this was completely ignored in the case of Maledu and fraudulently violated in the case of the Ingonyama Trust. The result is the exacerbation of rural poverty.
Poor Democracy Makes Vulnerable People Poorer
In the most unequal country in the world, poverty remains strongly racialised and gendered. Ninety-three per cent of the 30 million South Africans declared poor (55.5 per cent of the total population) are black (Sulla & Zikhali, Reference Sulla and Zikhali2018). The 2019 General Household Survey found that 16.2 per cent of rural residents had inadequate access to food and 12 per cent experienced severe inadequacy (compared to 11.7 per cent and 6.4 per cent, respectively, in urban areas) (Statistics South Africa, 2021: 92). The rural figures are based on ‘an under-representation of poor rural households’ (Statistics South Africa, 2021: 93), meaning that the extent of rural poverty is likely greater than they reflect. Against this backdrop, women, in rural areas especially, have remained at a substantial disadvantage, even as rural men (especially those in traditional provinces) have experienced significant hardship as well. While roughly 41.6 per cent of South African households were female-headed in 2021, the prevalence of female-headed households is highest ‘in provinces with large rural areas such as the Eastern Cape, KwaZulu-Natal, Free State, Mpumalanga and Limpopo’ (Statistics South Africa, 2022: 14). These households have seen a slight reduction in very high unemployment rates (56.2 per cent in 2021 versus 57.6 per cent in 2017), but a higher proportion of female-headed than male-headed households continue to be without a single employed household member (Statistics South Africa, 2022: 13–15).
Women’s labour force participation is highest in Gauteng and the Western Cape and lowest in the rural provinces with substantial traditional leadership presence (Statistics South Africa, 2022: 20–21), while men’s labour force participation rates are generally higher than those of women (Statistics South Africa, 2022: 22). This is explained by the reality of differentiated responsibilities and concomitant obstacles, specifically: ‘childbearing, lack of affordable childcare, gender roles and work–family balance’, resulting in ‘[l]abour force participation rates by sex and the presence of children in the household … showing a linear relationship between the number of children in the household and participation rates irrespective of sex’ (Statistics South Africa, 2022: 21). In sum, unemployment rates for women are higher than the national average and increase with the number of children in the household (Statistics South Africa, 2022: 34).
While COVID-19 worsened every group’s unemployment and poverty rates, once again the rural provinces (especially Eastern Cape, Limpopo and Mpumalanga) were generally hardest hit (Statistics South Africa, 2022: 48). In both 2017 and 2021, women’s primary sources of income were social grants and remittances while men’s were business and ‘salaries/wages/commission’ (Statistics South Africa, 2022: 47). Nearly double the proportion of women in rural areas (51.8 per cent) depended on social grants than in urban areas (26.9 per cent), reflecting the higher ‘unemployment rate in rural areas and the fact that women are more likely than men to be unemployed’ (Statistics South Africa, 2022: 47).
Looking at the facts of the Ingonyama Trust and Maledu cases (which demonstrate material dispossession without informed consent and due consultation), one might justifiably argue that the two problems of endemic poverty and impoverished democracy for traditional communities are deeply related. Both reveal how traditional leaders’ and institutions’ relatively unchecked powers are depriving poor, rural people of resources, resulting in deepening poverty for the most marginalised people in society. The impoverishment of democracy is enabled by prevailing legislation. Traditional communities are still defined by apartheid boundaries while the TLGFA’s ‘transitional arrangements’ extended recognition to pre-Constitution traditional leaders, ‘tribes’ and ‘tribal authorities’, subject to democratising conditions that have not been fulfilled.Footnote 26 The historical continuities with the apartheid era are further entrenched by the ‘transitional arrangements’ set out in section 63 of the TKLA of 2021. This provides for the continued recognition of the ‘traditional leaders’, either by the TLGFA, prior to its repeal, or ‘in terms of any applicable provincial legislation which is not inconsistent with the Framework Act, as the case may be’, ‘subject to a recommendation of the CTLDC, where applicable’.Footnote 27 The TKLA gives these same structures another two years to comply with requirements (in s. 16(2)) that their councils be reconstituted to include elected representatives (40 per cent of members, as against the 60 per cent appointed by the leader), and for one-third of their members to be women.
Conclusion
In this chapter, I have shown the intimate relationship between impoverished democracy and the material poverty of vulnerable rural people that began under colonialism and apartheid and persists today. As the chapter has sought to demonstrate, the main reason for the failed transformative and redistributive impact of the country’s democratic Constitution in the realm of land tenure security and gender equality is the disproportionate power given to traditional leaders.
My argument is that IPILRA has provided the tools to address both these issues simultaneously and that utilising them would likely result in positive effects in traditional communities in both the political and economic spheres. Indeed, as demonstrated in the Ingonyama Trust and Maledu cases, fidelity to IPILRA would have gone a long way towards shoring up both the physical and the cultural survival of the affected communities. The corollary is also true: the government’s failure to enforce IPILRA is costing lives and denying communities their tenure security. These two cases show the cumulative impact of the socio-economic and politico-legal realities in post-apartheid South Africa that have yielded limited protection of land rights for people living under traditional governance. This has left the conditions of material and social precarity that affected these groups under apartheid fundamentally unaltered and, in some instances, even worse than before.
It would be possible to enact legislation that secures people’s customary rights in land and extends rights to women where these are being denied without having to resort to a constitutional amendment. The enforcement of already existing legislation such as IPILRA would accomplish much the same result. This chapter has detailed these missed opportunities that are in keeping with the Constitution. It therefore contends that amidst the sensationalist deliberations about expropriation without compensation of white-owned land, the opportunities for effectively advancing tenure security as well as other redistributive justice objectives that are already present in the Constitution have been obscured. Ultimately, it is essential for the public to pay keen attention to, and effectively address, the politics of traditional leadership and the transactions taking place concerning land that is already beneficially occupied by ordinary rural people, a majority of whom are women and children. This is because these politics and transactions have thus far renewed the very foundations on which apartheid was built. They are thus essential if largely ignored dimensions of the substantially failed efforts at land reform in South Africa.
As the Tongoane case reminds us (in para. 79), rather than being complicit with apartheid-era structures and processes that, while labelled ‘traditional’, were re-engineered as instruments of domination and dispossession (Mandela, Reference Mandela1959; Luthuli, Reference Luthuli1962: Mbeki, Reference Mbeki1964), it is essential that laws promulgated to regulate customary communities take seriously the ‘living’ laws that predate them. These include fundamental principles of governance such as Inkosi iyinkosi ngabantu/Kgosi ke gosi ka batho, which give expression to democratic values and rights to choose that are also protected in the Constitution. That is partly what IPILRA sought to achieve. Although it has been ignored, it tried to ensure that the processes of consultation and consent that are embedded in vernacular law are respected in rural communities that were previously dispossessed under apartheid, in ways that are expressly inflected by the protection of rights enshrined in the Constitution. Of course, IPILRA is not enough on its own. Yet adherence to it might at least curtail the ongoing undermining of the slight gains that ordinary rural people have made through the country’s transition from apartheid to democracy. The failure to do so is preventing both transitional and restorative justice from being realised in South Africa’s traditional areas.
This chapter offers a pragmatic approach to land reform in South Africa that prioritises production, rural livelihoods and partnerships, together with gradual redistribution of land. My vantage point is not that of an agricultural economist or practitioner but a historian who has been studying agrarian change and rural society in the country for nearly fifty years. The chapter attempts to understand and interpret evidence about recent changes in agricultural production and offer ideas about their implications for land reform.
Land reform remains important to address past injustice. Black people were legally prevented from owning or purchasing land in much of the country under apartheid. But in a context of economic stasis and persistent poverty, income is central for rural households, as is economic growth for the country – especially after the COVID-19 pandemic. The report of the Presidential Advisory Panel on Land Reform and Agriculture (PAPLRA), perhaps the most significant recent policy overview, argued that ‘the success of land reform must be linked to South Africa’s productive and sustainable use of land, and the vibrancy and competitiveness of the economy, open to all to participate and benefit at all levels’ (PAPLRA, 2019: 6). A Treasury document of the same year reinforced the point that ‘land reform must be oriented around growing the agricultural sector to foster economic development, and not purely be an endeavour to transfer land’ (National Treasury, 2019: 39). My aim is to explore a few developments that are aligned with this approach, which may facilitate production. While cautious about increasing the pace of land reform, I suggest an increase in state expenditure from which beneficiaries can generate income, and improved support for partnerships between the state and private sector.
In the space available, this chapter has a limited focus. I do not discuss historical injustice, the meaning of land, or land tenure, water and environmental issues. Expropriation without compensation is analysed in other chapters. Urban and peri-urban issues, which should be considered in the same frame of discussion as agricultural land reform, will also not be addressed here, except to say that given the continuing movement from rural areas to cities and towns, provision of secure rights to land and housing in urban and peri-urban areas is a priority. Land reform should follow the people.
Context: Economic Stasis and the Current Scale of Land Reform
The context of land reform has changed after a decade (roughly 2012–2021) in which economic growth has stalled, corruption has become endemic, divisions have immobilised the African National Congress (ANC) and inequality seems to have become intractable. The country experienced something close to economic stasis during the five years from 2015 to 2019, with growth averaging less than 1 per cent a year (Macrotrends, n.d., citing World Bank data).Footnote 1 Recent socio-economic travails have been framed by COVID-19, with a nearly 7 per cent gross domestic product (GDP) contraction in 2020 – perhaps recouped by the first quarter of 2022 (Macrotrends, n.d.). The civil disorder in KwaZulu-Natal (KZN) and parts of Gauteng in July 2021 directly reflected both political tensions in the ANC and the inequalities exacerbated by COVID-19.
Figures differ but it may be fair to say that GDP per capita peaked briefly at $7,500–$8,000 in 2010–2011, after a period of rapid economic growth during Thabo Mbeki’s second term as president, and then declined to about $5,500–$6,000 in 2020–2021 – the same level as 2004 (World Bank, n.d.). Most South Africans, including the poorest, experienced significant growth in their standard of living during the first decade of the twenty-first century. However, this has since been reversed, and it is likely that the poorest, and women especially, bear the brunt. Perhaps two-thirds of jobs lost were lost by women in the early phases of the pandemic (Spaull et al., Reference Spaull, Casale and Posel2020). Unemployment increased to about 34 per cent in 2020 – and considerably higher according to the expanded measure and for younger people. In early 2022 it remained at this level. South Africa fell in global GDP rankings from about twentieth in 1960 to twenty-sixth in 1994; some tables now place it around thirty-sixth (Wikipedia, 2023). In this context, income generation for poor rural people in South Africa is a priority.
Figures on the area of land transferred from white owners to black occupiers since 1994 are difficult to find and interpret, especially in light of the range of agricultural potential in different areas. The PAPLRA (2019: 12) recorded that by March 2018, 9–10 per cent of agricultural land had been transferred through state schemes of redistribution (around 6 per cent) and restitution (around 4 per cent). This amounted to 8.4 million hectares or 350,000 hectares per year. In addition to further transfers during 2018–2019, the Department of Agriculture, Land Reform and Rural Development (DALRRD) accelerated the distribution of state land, aiming at 700,000 hectares in 2020–2021. Some of this, however, was probably occupied already. In a recent calculation, Sihlobo and Kirsten (Reference Sihlobo and Kirsten2021a), two of the best-informed commentators, reckon that 17 per cent of agricultural land, or 14.5–15 million hectares, were transferred, including by private purchase, by 2021. Government figures are not released for the extent of land transferred through the market.
The issue of ownership further complicates the picture. Initially, beneficiaries acquired land ownership through the restitution and redistribution programmes. With regard to rural land, this has usually been collective title through trusts and, after 1996, Communal Property Associations (CPAs). But following the Proactive Land Acquisition Scheme (PLAS), introduced in 2006, and especially since 2011, the state has given leases for most redistribution land, with an option to purchase at a later stage.
It is thus very difficult to arrive at a clear estimate of the total extent of black land holding in South Africa because the forms are so diverse. If the roughly 14 per cent area of the former bantustans is added, then it would amount to well over 30 per cent of agricultural land, but this is by no means all ‘owned’ in private tenure. A majority is in the wetter, eastern half of the country. While whites probably still own over 65 per cent of agricultural land, a substantial area has been transferred – a significant achievement by the state and unusual on a global scale. Zimbabwe’s ambitious and relatively successful land reform programme in the twenty years before the ‘fast-track’ (1980–2000) resulted in the transfer of less than half this amount of land.
Agricultural Production over the Last Decade
Establishing large white-owned farms was a central and violent project of the settler colonial and apartheid states as well as white ruling groups. The question is: Would a rapid unravelling of the relatively large commercial farms now be economically destructive? I will look at evidence about production on commercial farms and smallholdings to suggest that it would. My initial motivation for engaging directly in this debate was, in part, the result of calls for more radical action in South Africa, which did not seem to take sufficient account of the difficulties faced by smallholders (De la Hey & Beinart, Reference De la Hey and Beinart2017; Beinart & Delius, Reference Beinart and Delius2018). Different, sometimes linked, prescriptions were offered: a fast-track land reform, emulating Zimbabwe after 2000; nationalisation of land; and an end to the ‘willing seller, willing buyer’ policy through expropriation without compensation (see Introduction to this volume). A related concern has been the future of land tenure in the communal areas, especially in light of the ANC’s increasingly sympathetic approach to chieftaincy (Beinart et al., 2017; Buthelezi et al., Reference Buthelezi, Skosana and Vale2019).
Commercial Agriculture
Despite the uncertainties resulting from land reform policy and public debates about expropriation, large-scale commercial agricultural production has increased significantly in value and volume, especially over the last five or six years (DALRRD, 2021). Maize remains the most important crop in the Southern African region as a whole, still central to consumption for poorer people. The last six years (2016–2021) have seen four of the six largest maize harvests on record in South Africa, and the downturn in 2017–2018, largely because of drought, was less severe than in earlier years (Figure 8.1). Gross value reached R40 billion in 2020 (DALRRD, 2021) and has probably increased because of a sharp rise in international prices. Commercial farmers have widely adopted genetically modified seed, and an increasing percentage of maize is irrigated – marked by large circular fields. This expansion has been reflected in unusually high demand for new agricultural machinery over the last two years.
Maize was outstripped by poultry in 2020, with a gross value of over R60 billion, including eggs and smallholder production (DALRRD, 2021). This represented nearly 20 per cent of the value of agricultural production as a whole, supporting domestic consumption of by far the most popular meat. Livestock and animal products have grown rapidly in value, but so too has a wide range of crops: soya, grapes, deciduous fruit, citrus, avocados, macadamias, vegetables and berries. Sugar and wheat have contracted, but even the latter, which fell after subsidies were removed in the 1990s, has picked up over the last couple of years. Larger-scale commercial agriculture is increasingly diverse.
Citrus is an important indicator of investment and diversification. Tree crops that require high start-up costs and long-term commitment may seem counterintuitive ventures for landowners because of uncertainties in climate and policy. Nevertheless, the area planted expanded by about 9 per cent in 2020 and 5 per cent in 2021, with similar predictions for 2022. Exports, juice processing and domestic consumption are all increasing. Well-capitalised and innovative farmers are alert to new cultivars that extend the season and meet shifting global market demands. Although around 65–70 per cent of the crop is exported, which is most profitable for growers, expansion also provides cheaper fruit for juice and local consumption. Citrus provides over 120,000 jobs (though many are seasonal), and is the single biggest agricultural export commodity, at about R25 billion for 2021 (Citrus Growers Association, 2022).
The gross value of agriculture, growing at over 2 per cent per annum in recent years, increased 10 per cent to R308 billion in 2020 (DALRRD, 2021) – more rapidly than the economy as a whole so that, unusually, agriculture’s contribution to GDP may be climbing. Generally, it is given as around 2.6 per cent of GDP, but this figure is narrowly defined to include only the value of farm products or ‘primary agriculture’. Some estimates that extend the figure to agricultural inputs, downstream products, processing and transport go up to 9.3 per cent for ‘Agricultural Food Systems’ (Meyer, Reference Meyer2021) and higher for all ‘secondary agriculture’ (PAPLRA, 2019: 84). This is similar to the contribution of the mining industry.
Land prices have generally increased over ten years. Agricultural employment has declined since 1994, when it was over a million, but remained stable since 2015, when the measurement was altered, at around 800,000, and increased in 2021 (Sihlobo, Reference Sihlobo2022). The number of farm dwellers, however, declined as landowners attempted to evict tenants and families (PAPLRA, 2019: 49). Most large farms in South Africa are white-owned, but an increasing number are corporate or black-owned. Commercial agriculture is still vulnerable to many uncertainties relating to rising input costs, markets, environmental issues and climate; certainty in respect of policy would be valuable. Skills and capital are being kept on the land, and they can provide the spine for new initiatives.
Smallholder Agriculture
It is more difficult to analyse smallholder agriculture, either in the former homelands or on recently transferred land, because the government does not provide adequate figures – a major omission, given the importance of land reform and post-transfer support. Government figures published on the web for ‘non-commercial’ maize production show a declining area of cultivation, from an average of 380,000 hectares in 2013–2017 to 332,000 hectares in 2018–2022, but an increasing yield per hectare (Figures 8.2 and 8.3). According to these estimates, production of ‘non-commercial’ maize nevertheless declined a little, from about 635,000 tons (average for 2013–2017) to 600,000 tons (2018–2022) – although the last two years show promising growth. According to these government graphs, smallholders contribute less than 5 per cent of national maize production with yields of about 1.8 tons per hectare, compared with 6 tons per hectare on commercial farms.
Figure 8.2. ‘Non-commercial’ maize: area planted, South Africa, 2000–2022.
Figure 8.3. ‘Non-commercial’ maize: production, South Africa, 2000–2022.
These figures combine local surveys to record output and digital maps that allow an estimate of area cultivated. In one respect, they appear reasonably convincing. Village-based surveys, particularly in the Eastern Cape, indicate that cultivation of arable fields in the former homelands has diminished sharply in the last two decades (Manona, Reference Manona2005; Hebinck & Lent, Reference Hebinck and Lent2007; Brooks, Reference Brooks2017; Blair et al., Reference Blair, Shackleton and Mograbi2018). In Mbotyi, a high rainfall area on the coast of former Transkei, villagers largely ceased to use their fields in a fertile alluvial plain (Beinart & Brown, Reference Beinart and Brown2013; De la Hey & Beinart, Reference De la Hey and Beinart2017); this finding was confirmed in the nearby village of Cutwini (Hajdu et al., Reference Hajdu, Neves and Granlund2020). Recent fieldwork in KwaZulu-Natal suggests a similar process even in communal areas with rainfall of 1,000 mm. Land reform farms in the same area around Weenen, they note, ‘are now large-scale, extensive cattle and goat farms, with very few, if any, cultivating crops. They are rapidly undergoing bush encroachment related to climate change’ (Alcock et al., Reference Alcock, Geraci and Cousins2020: 1).
Many reasons are recorded in these surveys. Smallholders see the costs and risks of dryland farming on 1–2 hectares, without irrigation, as high relative to the benefits when staples such as maize, ready for cooking, can be purchased. There are bottlenecks for ploughing – few households have sufficient cattle to use ox-drawn ploughs, and they are dependent on the small minority with tractors. Families are smaller, and it is difficult to find sufficient labour; both women, who used to do most of the cultivation, and the youth are reluctant to prioritise such work. Access to child labour has diminished, particularly for herding, and as a result, some livestock are left to themselves for periods during the day. As one informant noted: ‘[T]he major problem that is affecting the people when they are growing mealies is the cattle. The cattle are just walking about everywhere … There is no control … You will be planting for the cattle’ (De la Hey & Beinart, Reference De la Hey and Beinart2017: 762). The layout of most betterment villages, where homesteads are separated from the fields, diminishes control and creates opportunities for theft.Footnote 3
Government figures likely reflect this process on the arable fields. However, they may underestimate the extent of cultivation in smaller gardens adjacent to residential homesteads, recorded in studies mentioned above, of both maize and vegetable production. In the Eastern Cape, Mtero (Reference Mtero2014) found the proportion of village households with gardens to vary from 25 to 75 per cent, even in neighbouring villages. Brooks (Reference Brooks2017) found that about 50 per cent of 120 households cultivated an average area of about 400 m2. This is substantial for vegetables and green maize, yielding perhaps 20 per cent of household maize and more of vegetables. The significance of gardens, difficult to record, suggests that government figures for smallholder production may be underestimated. Vegetables have increased in importance, although markets may have been temporarily restricted by COVID-19 (Wegerif, Reference Wegerif2022). But even if 2 million households planted this much in gardens, which is unlikely as many live in dense settlements, it would amount to only 80,000 additional hectares, or another 20 per cent in smallholder maize output.
Resilience is also evident in the smallholder livestock economy. Sihlobo and Kirsten (Reference Sihlobo, Kirsten, Oqubay, Tregenna and Valodia2021b) estimate that while black farmers contribute 4.7 per cent of the value of maize, they account for 34 per cent of the value of beef. Livestock is the major enterprise on transferred land, and it may be that black people now own over 40 per cent of cattle, a figure last recorded in the 1930s. Some of these are slaughtered and consumed in villages or sold in informal markets for customary ceremonies. Poultry, pigs and goats are also widespread in villages, while the gathering of wild plants and fruits, including exotics such as prickly pear as well as plant medicines, make some contribution to rural livelihoods (Mugido & Shackleton, Reference Mugido and Shackleton2019; Leaver & Cherry, Reference Leaver and Cherry2020; Beinart & Wotshela, Reference Beinart and Wotshela2021).
It is difficult to calculate the value generated by smallholders through informal markets and local consumption overall, but the evidence is that a rapid transfer of land from large-scale farms will likely result in a substantial loss of agricultural production. The key issue for smaller-scale grain and horticulture in customary areas and on transferred land is not primarily a lack of land but a lack of capital, investment, support and access to adequate water.
Zimbabwe provides some evidence of the possible consequences of fast-track land reform on overall output (Figure 8.4).
It is clear that fast-track land reform from 2000 had a major impact on maize production and food security for over fifteen years. The average for 1991–2000, around 1.7 million tons, was similar to that for the previous decade and included an exceptionally poor drought year in 1991. Production was maintained over a period of twenty years in which about 30 per cent of the large farms were transferred to smallholders in schemes that were generally well-supported. This was a relatively successful gradual land reform and could have been sustained. The average for 2001–2010, during the fast-track expropriation of most remaining large farms, was probably less than half at around 0.7 million tons annually.
Production of maize in Zimbabwe is now largely in the hands of smallholders, with some recovery in output. This did not, however, reach pre-2000 levels in the subsequent decade (2011–2020) or even in the five years from 2017 to 2021, which included a big harvest in 2021 (average of 1.6 million tons). By contrast, total South African production increased from an average of 8.5 (1991–2000) to 15 million tons (2017–2021). Malawian maize, largely grown by smallholders, provides another valuable comparison and has more than doubled since the 1990s (Figure 8.5). A major reason was the introduction of input subsidies in 2006, which enabled the country to recover from near-famine conditions in the early years of the twenty-first century and achieve relative food security (Chirwa & Dorward, Reference Chirwa and Dorward2013).
It is worth noting that Malawi is about the same size and has roughly the same population as the former South African bantustans but is producing six times more maize than these areas and double the quantity of maize produced in Zimbabwe, which is far larger. If South African smallholders residing in the former homelands and on transferred land produced the same amount of maize (or alternative crops) as Malawi in 2021, the value generated, at international prices, could have been in the region of R12 billion, equivalent to half a million pensions. Clearly this, together with the associated economic activities, would make a significant difference in South Africa’s rural areas. There are important environmental and social differences between South Africa, Zimbabwe and Malawi that help to explain such figures, but input subsidies and effective extension are part of the picture.
The same point may be drawn from the resurgence of tobacco in Zimbabwe (Mazwi et al., Reference Mazwi, Chambati and Mudimu2020). Before 2000, tobacco was largely grown on commercial farms, and production dropped from an average of 220 million kilos in 1996–2000 to lows of 60 million kilos after fast-track land reform. In 2006, a Chinese company established an input, extension and purchasing scheme for smallholders; British companies also invested. Connectedness to capital, inputs and markets made the difference, and by 2019, about 160,000 growers rivalled the output of the best earlier years. The value of Zimbabwe tobacco rose to about R10 billion and accumulation from this source led to investment elsewhere in the rural economy, including food crops. Zimbabwean smallholder tobacco exports were nearly half those of South African citrus in 2019, bringing perhaps an average of R50,000 to producers. This is an important base for rural recovery in Zimbabwe – again, it could have been achieved without fast-track land reform because tobacco does not take a great deal of land. Malawian tobacco fetched R7.5 billion in 2019.
Facilitating Smallholder Production: Partnerships and Joint Ventures
Input subsidy strategies have also been developed in South Africa, and I will focus on these as one potential route to facilitating connectivity and agricultural output. Since Thoko Didiza first took over as Minister of Land Affairs in the Mbeki presidency of 1999, the government departments dealing with land reform have increasingly recognised the problems of production on transferred land. Their strategy, though not uni-dimensional, has been to shift away from transferring land to multiple beneficiaries and towards assisting a more restricted number of ‘emerging farmers’ who may be able to succeed as commercial producers. The original formula for assisting redistribution, through the Settlement/Land Acquisition Grant (SLAG, 1994–2000), favoured communities that could pool their grants to purchase land through trusts and CPAs. This was largely replaced by the Land Redistribution for Agricultural Development (LRAD) from 2000 to 2006 and then increasingly by the PLAS, which tended to award bigger farms to those with business plans in the hope that they would establish successful agricultural enterprises.
In all of these schemes, as well as in restitution awards, inadequate post-transfer finance and support have been a problem. PLAS has been criticised for favouring relatively few beneficiaries with land and recapitalisation funds and abandoning the redistributive aims of the early land reform projects (Hall & Kepe, Reference Hall and Kepe2017). Gugile Nkwinti, then Minister, reckoned in 2010 that production had declined on 90 per cent of transferred farms, which was one reason for the departmental focus on PLAS. But outcomes on PLAS farms have been uneven, as have government attempts to facilitate production on highly capitalised restitution land (see below).
Large-scale commercial agriculture, dominated by white farmers, was initially defensive and attempted to keep land reform at bay. But some of the key commodity organisations, such as the South African Sugar Association (SASA) and National Woolgrowers Association (NWGA), have worked with smallholders since the 1990s, and an increasing range of non-state agencies have engaged with the issues. The resulting outgrower and partnership schemes are highly diverse in their form, involving existing and new individual smallholders and new collective owners in CPAs. They have drawn on farmers, private companies, commodity organisations, agricultural consultants and NGOs, as well as government departments. Most have been organised around specific commodities such as sugar, wool, forestry, dairy, beef, maize and fruit. I estimate that over 80,000 smallholders have participated overall, perhaps more than 100,000, but not all have been active at the same time.
Sugar
The sugar scheme launched by SASA and milling companies in KwaZulu-Natal in the 1970s was perhaps the first, and for many years the most ambitious, outgrower scheme, providing credit, inputs, extension and marketing (Dubb, Reference Dubb2016, Reference Dubb2020). They had multiple motivations: to keep marginal mills going; to maintain or expand production on land being bought for homeland consolidation; and to develop political links with the KZN government, which facilitated the project through its development agency. Small-scale growers were also supported at the Nkomazi irrigation scheme in Mpumalanga. Around 50,000 growers were registered by the end of the twentieth century.
Large-scale South African sugar producers relied on protection in the domestic and regional markets because they found it difficult to compete internationally, and they came under pressure after the political transition. Complex new marketing arrangements in the early twenty-first century dampened sugar production as a whole, which fell 20 per cent from an average of 21.5 million tons in 2001–2005 (with a peak of 24 million tons in 2001–2002) to 17.1 million tons in 2015–2019. Some major companies, in part, moved their operations northwards to countries where costs are lower. Smallholders, particularly in Zululand, bore the brunt of the decline, from about 4 million to about 1.8 million tons; registered small-scale producers have declined to about 18,000, with 12,000 actively producing (https://sasa.org.za/facts-and-figures/; Dubb, Reference Dubb2020).
However, production as a whole has stabilised at 19 million tons over the three years since 2019, with a value of R11 billion in 2021. SASA reports that 24 per cent of cane is now delivered by black producers (Department of Trade, Industry and Competition, 2020: 4), a higher percentage than for any other major agricultural commodity except perhaps for beef (which includes non-marketed consumption). They are, however, differentiated by the size of the undertaking. Milling companies that used to be major growers have transferred land to medium- and large-scale African owners; some have benefited from the PLAS scheme that capitalises new producers. African contractors, who have been important in facilitating smallholder schemes, assisting in inputs and planting, also produce sugar themselves. Those with irrigated plots, largely men, achieve better returns and profits. A survey of 127 growers at Nkomazi found that they averaged 201 tons on 6 hectares – to a value of perhaps R80,000–100,000 per annum (Metiso & Tsvakirai, Reference Metiso and Tsvakirai2019).
Small-scale growers were recorded as delivering a substantial amount, 11 per cent of cane in 2021, worth about R1 billion. They also get support – for example, from Tongaat-Hulett, in association with the KZN government, in a scheme of over 2,000 members supported by extension officers. But Dubb (Reference Dubb2020) suggests that those at the lower levels can barely break even and depend on subsidies. Over 60 per cent of growers with non-irrigated plots on customary land are women with little education. Typically, a grower on 2 hectares might manage 30 tons, which would fetch R15,000 before costs. Nevertheless, a significant number of smallholders find it worthwhile to remain engaged with sugar, and an additional R225 million subsidy was being distributed to black growers in 2022 (SA Canegrowers, 2022).
Wool
A similar scheme was started in 1997 by the National Wool Growers Association for sheep owners in communal areas in the Eastern Cape. It was funded by the Wool Trust (which inherited the assets of the old Wool Board), by the provincial government and with occasional donor money (Kenyon, Reference Kenyon2020; De Beer, Reference De Beer2019; Mbatsha, Reference Mbatsha2019). The central aim was to improve the quality of wool produced by smallholders based in the former Bantustans and to provide access to formal markets. The NWGA decided on a strategy of releasing stud rams, purchased from white farmers, on a mass scale – reaching 3,000 a year and perhaps 50,000 in all. In a context where it is difficult to control breeding because grazing lands are largely communal and rams cannot be segregated, this seemed the most effective route for reaching the widest number of small-scale owners. The NWGA also provided an extension service, training, wool sheds in villages and channels for marketing. Wool is very largely exported, about 70 per cent to China.
By 2018, income through this scheme had increased to R383 million, about 8 per cent of the value of the national wool clip. With 25,000 participants, this amounted to an average of R15,000 per owner. Prices peaked in 2018 and then gradually fell so that overall income declined to below R300 million over the next two years. Stock theft has also reduced income, and the number of stud rams released has declined because the Eastern Cape Department of Agriculture curtailed its subsidy for ram purchase (De Beer, email 16 February 2022). This is a small investment for the state, contributing to demonstrably high returns for rural communities, but the government is concerned about long-term subsidies. A levy of 4 per cent on wool sales from participants would fund the purchase of rams.
The scheme is open to all sheep owners; income is highly variable, depending on wool clips by individuals, with some earning more than R50,000 a year, well over the average. Proceeds as a whole come initially to those living in rural villages and are widely distributed. A detailed survey in 2020 showed that in addition to the average income of R15,000 for wool, participants made a similar amount from other agricultural sources, particularly meat (NWGA, 2020). On average, about 50 per cent of household income came from agriculture, considerably higher than in other recent rural surveys (Hajdu et al., Reference Hajdu, Neves and Granlund2020).
With sugar peaking at 50,000 participants and wool at 25,000, participant numbers have been high. Forestry and citrus organisations and companies run similar programmes. They are, in some respects, more like outgrower schemes than partnerships; the commodity organisation or company involved has the major responsibility for making the rules and for providing input subsidies, extension services and marketing routes. The benefits have been highly variable, but that is also because they have encouraged relatively wide participation. Both sugar and wool, it should be emphasised, have at various stages drawn on state funding, and most of the extension officers in the NWGA scheme moved from government employment (De Beer, Reference De Beer2019; Mbatsha, Reference Mbatsha2019). The Zimbabwean smallholder tobacco initiatives provide a linked example, reaching an even wider range of participants and focusing on inputs, training, connectivity and marketing.
Perhaps there could be lessons for South Africa if, as now seems government policy, dagga (cannabis) cultivation is to be made legal. Thoko Didiza (Minister again) announced a Cannabis Master Plan in 2021, and President Ramaphosa thought this sufficiently important to mention in his 2022 State of the Nation speech (SAnews, 2021). But the shape of the scheme seems to make it difficult for the many existing smallholder growers to participate. Growers will have to be registered and regulated, apparently with a particular focus on medicinal supplies. If this is to benefit smallholders, then the state should work with the private sector to set up input supply lines and marketing routes.
Dairy and Fruit
There are many smaller-scale projects that more closely resemble partnerships. The Grasslands Development Trust, near Jeffreys Bay, was generated by an experienced, successful dairy company with twelve farms (Elliot, Reference Elliot2019). They extended their production model to an additional 485-hectare farm, purchased under the LRAD formula, with the state subsidising 35 per cent of the original transfer to forty-nine black dairy workers. The latter are 100 per cent owners through a trust, and therefore in a position to sell. Farmworkers retained their jobs, and the trust also received a 60 per cent share of profits; the company, as share-milker, gets the rest but supplies cows, certain inputs, skills and labour, as well as access to the market. Each trust member gained a share of profits, in addition to wages from farm employment. Beneficiaries of the trust are restricted to retired or present employees of the company, Grasslands Agriculture. In recent years, the members, now reduced to thirty-five, have received around R150,000 a year, with variations. This kind of partnership clearly requires a large-scale enterprise to provide capital, expertise and a secure marketing route. Grasslands wanted to expand the relationship with another group of workers but could not secure government assistance for the land purchase.
A different form of joint venture was developed at Ravele in the Levubu valley, Limpopo (Manenzhe, Reference Manenzhe2015; Nematswerani, Reference Nematswerani2020). This was rooted in the restitution in 2005 of a number of intensively developed sub-tropical fruit and macadamia nut plantations. Ownership of the farms passed to seven CPAs or Trusts, and the state attempted to set up partnerships with private sector farming companies to maintain production. The first arrangements were poorly conceived and failed, leaving the department to bail out the communities that found themselves in debt. But the government decided to recapitalise the farms because it was committed to the success of this flagship restitution programme. Ravele CPA, in particular, secured a workable new arrangement with an experienced white manager, who also ran his own farm growing similar tree crops. In 2012, Mauluma Farming, the operating company, was awarded a prize for its macadamia nuts. They were able to expand turnover and secured a series of profitable years, reaching R9,700,000 in 2016.
CPA members, numbering about 300, decided not to move back onto the farm so that it could be focused on agriculture. The great majority had re-established themselves in surrounding settlements. They derived their main benefit from employment at Ravele, making up 70 per cent of the 193 full-time employees (Manenzhe, Reference Manenzhe2015). Nevertheless, they have faced major decisions about reinvesting or redistributing profits. All CPAs involved in production face similar dilemmas in that members hope that restitution will bring them some income. In this case, redistribution of profits could have resulted in a payment of around R30,000 to members in 2016, but they decided to reinvest (Nematswerani, Reference Nematswerani2020: 35). The Ratombo CPA, which – after similar financial travails – found a stable management and mentoring arrangement in 2015, also resisted payouts (Kirk-Cohen, Reference Kirk-Cohen2020).
A linked tension at Ravele resulted from the role of the local chieftaincy, which lodged the initial land claim on behalf of the community. At first the chief’s family dominated the CPA committee, and in 2012 a group accused them of receiving unfair benefits and favouring their relatives for employment (Manenzhe, Reference Manenzhe2015). These tensions were partly resolved in 2015, but recent reports suggest that they still simmer (Nematswerani, Reference Nematswerani2020). They have been partially contained by separating the farming enterprise into a different company and by the relationship of trust that has developed between the community and the farm manager, ensuring that the bulk of revenues are reinvested.
A further example of joint ventures originated in the deciduous fruit farming areas of the Western Cape. A land transfer in 2006 by a local farmer to farmworkers, subsidised by the Department’s LRAD formula, established a partnership. The farmer provided infrastructure, mentorship and marketing routes, while the farmworkers, with shared ownership, provided the work and operational farming inputs. This was followed by a more ambitious project at Donkerbos Estates in 2012, a large mixed farm with 200 hectares of irrigated land shared between a company and a worker trust (Staal, Reference Staal2019).
In 2014–2015, the Witzenberg Partnership in Agri Land Solutions (PALS) was formalised to expand such private sector land transfers with the backing of major fruit farmers in the area, administered in part by a local legal firm (Van Vuuren & Van Staden, Reference Van Vuuren and Van Staden2022). The model has developed in different forms and shares, generally around the provision of land to a small group of farmworkers with a maximum of ten beneficiaries. Financing has largely been from the private sector, relying on donations and loans to buy land and establish crops, with profits used to pay off the interest. The partnerships involve close mentorship by established fruit farmers, who remain as part owners. PALS believes enterprises are more likely to succeed if the farmers retain ‘skin in the game’ (Van Vuuren & Van Staden, Reference Van Vuuren and Van Staden2022). Government funding has been drawn on for some projects, such as R40 million from the Jobs Fund to develop 100 hectares of new citrus orchards.
The majority of the around thirty projects by 2021 involved new plantings of fruit rather than a share in existing orchards. As irrigation is essential, this also involves negotiation with the state for water rights and sometimes construction of farm dams; applications are more likely to be successful if they involve black partners. Access to water is an underlying theme in a range of joint ventures. The key element in the PALS approach is to build successful agricultural enterprises that can achieve export and ‘Woolworths’ (high-end supermarket) quality in such fruits as nectarines and apples that flourish in the area. They see themselves as operating on ‘business principles, solid legal structures, mentorship, and training’ (Van Vuuren & Van Staden, Reference Van Vuuren and Van Staden2022). In addition to a share in the profits for the black partners, the PALS project promises wider employment and, for those who do not become co-owners, employee share schemes. PALS has wider ambitions in leading private sector land reform, with projects in other provinces (Van Vuuren & Van Staden, Reference Van Vuuren and Van Staden2022).
Elsewhere, many other developments have been launched, some on customary land, some on restitution land, some on land subsidised by LRAD and PLAS redistribution grants, and some – as in the case of PALS – focusing on privately funded transfers. It is difficult to get a national overview, but other organisations include Amadlelo in dairy; Wiphold in maize and vegetables; Sernick in beef; Old Mutual Masisizane Fund in crops; ZZ2 in tomatoes and other vegetables; Westfalia in avocados; Vumelana in providing funding and inputs; and Casidra in project management in the Western Cape.
The variety and scale of these developments have not, to my knowledge, been adequately recorded and analysed (see Mabaya et al., Reference Mabaya, Tihanyi, Karhaan and Van Rooyen2011; Okunlola et al., Reference Okunlola, Ngubane, Cousins and Du Toit2016). There are many unfavourable outcomes, including some of the Trusts and CPAs involved in the Limpopo restitution transfers of fruit farms (Kirk-Cohen, Reference Kirk-Cohen2020; Newatswerani, Reference Nematswerani2020). Solms-Delta, a wine estate in the Western Cape that planned to devolve land and production to an additional farm run by workers, is often cited as a failure. Here a great deal of capital was invested in social welfare and educational projects that could not be sustained by the income from wine (Spaull et al., Reference Spaull, Casale and Posel2020; Payi, Reference Payi2021).
The state has limited funding and capacity for mentorship and knowledge transfers. Outgrower schemes and partnerships offer the opportunity to leverage private sector funding, knowledge and skills. From the vantage point of commercial farmers and commodity organisations, they have an interest in maintaining production, winning support for private land ownership and private enterprise, as well as including former farmworkers in a thickening web of relations around shared enterprises and income generation. Belatedly, they are attempting to open up ownership across boundaries of race and class.
Some Concluding Points
The overview and examples presented illustrate diverse processes and new networks that are developing in the agricultural sector. The gains that can be made to rural livelihoods in outgrower and partnership schemes may seem quite limited when compared to incomes generated from wages in other sectors. The agricultural minimum wage was increased to about R45,000 per annum in 2022, but mineworkers get at least four times that amount (SA Facts, n.d.). Nevertheless, amounts that accrue through some of the schemes discussed, ranging from about R15,000 to R50,000 a year (and probably more in some dairy and fruit projects), are significant for people living in impoverished areas of the country with limited employment opportunities. Many rural families are partly dependent on grants, sporadic remittances and informal sector engagements. The state pension, a significant contribution to the income of households in the former bantustans, is a little under R24,000 a year (August 2022). In this context, amounts from agricultural intensification are valuable.
I have focused on relatively successful projects, mostly led by commodity organisations and the private sector. The evidence is that non-state agents are taking an increasing variety of initiatives in land reform and smallholder agriculture. I have not seen an overarching attempt to quantify such developments, but it is possible that these now engage more people than state-led projects. This is not an argument against the state, not least because the state is still a major instrument of finance and land transfer; many partnerships involve both public and private funding. Nor is it an argument against other routes of facilitating production. Rather, my emphasis is on how best to generate investment in agriculture and rural livelihoods. The examples presented above suggest some promise in diverse partnerships between state agencies, private sector interests and rural communities. These potentially take the pressure off state finances for all the costs of land reform and address some of the weakest elements of state-led land reform – implementation and agricultural skills.
Partnerships are not without tensions. White farmers, commodity organisations and associated agencies sometimes frame their engagements within a critique of the failure of the state. They also perceive economic and political gains, including a conviction that an intensive, technologically innovative, commercial agricultural economy is in the national interest; they hope that such strategies will win more general support nationally among black as well as white, and desire to defuse local tensions in their districts. In some cases, partnerships can contribute to meeting government policy. The NWGA scheme initially grew out of a requirement that the financial resources inherited from the Wool Board in part be committed to redistribution; elsewhere, a sector code called AgriBEE has been developed for black economic empowerment (BEE) in agriculture. Some projects can involve (a relatively small) self-imposed tax, which has socio-economic purposes as well as a political rationale.
The evidence suggests a relatively buoyant commercial agrarian economy in South Africa, increasingly diverse and innovative, with relatively high levels of investment in both domestic food production and export commodities. The data on existing smallholders is inadequate, but despite limited arable agriculture in the former bantustans and on transferred land, there may be small increases in maize yields in communal areas, as well as expanding horticulture and some successful partnerships across a wide range of commodities. A priority for land reform should be more intensive development of existing African land holdings, including on transferred land. There is certainly scope to increase state financial support for non-governmental agencies of the kind discussed. New patterns of production and co-ownership may facilitate such developments – landowners increasingly draw on experts and consultants for a range of services and inputs.
With regard to expropriation without compensation, analysed in other chapters, my key question is whether it will act as a disincentive to investment. Commercial agriculture would greatly benefit from certainty. My focus is on promising non-governmental and private sector initiatives that include input subsidies, access to markets, as well as connectivity and knowledge transfers between established farmers, smallholders and new participants in commercial agricultural production. It would take little extra government expenditure to enhance current programmes, working with the private sector, and maintain gradual land transfer. As noted, roughly 350,000 hectares a year has been transferred in state schemes; the scale of privately funded purchases and transfers is uncertain. At present the state cannot adequately provide post-transfer support for those moving onto the amount of land it has transferred. This should be a key area of land reform.
Introduction
Land reform remains a potent challenge in contemporary South Africa, one that demands attention. This much has been confirmed by the strong passions the issue of expropriation without compensation has aroused, as well as the political currency the debate on amending the 1996 Constitution of the Republic of South Africa has gifted idealists and opportunists of all colours and stripes. The issue cannot be dispatched to the margins of public life with more commissions of inquiry or retooled business plans for the beleaguered Department of Rural Development and Land Reform (DRDLR) (now folded into the Department of Agriculture, Land Reform and Rural Development (DALRRD)). Nor can the visceral power of land as a symbol of dispossession and inequality be tempered through sober analysis alone, whether of actual land demand or changing patterns of settlement, land use and land ownership. Nevertheless, the staleness of contemporary policy debates, the extent of the political impasse in the state, and the urgency of other challenges facing the country – not least corruption and climate change – demand fresh ways of thinking about the contribution of land reform to redistributive justice in the third decade of the twenty-first century. How far fresh thinking will impact on the politics of land is hard to say; however, engaging anew with not only the discourse and practice of land reform but also the broader social–ecological contexts in which it must operate is critical for more effective policy development.
Underpinning this chapter is a concern with what I see as the overly narrow framing of current policy–political debates in terms of land as redistributive justice in South Africa, rather than land – actual land – as one plank in a larger framework for redistributive justice. I explore the need to reframe the issue from the vantage point of South Africa’s Karoo region. This large, sparsely populated, arid to semi-arid region is not commonly thought of as a land reform hotspot, but looking at land from this perch offers pertinent perspectives on land use and related matters. For one thing, the Karoo’s significant share of South Africa’s commercial farmland in terms of gross area – some 40 per cent – should give pause to those who regard the ‘white’ countryside as the main prize in the struggle for social justice. Here, land-based livelihoods are visibly vulnerable to the consequences of climate change while, against the grain of popular conceptions of this region, most residents are scrabbling to make ends meet not on farms but in small, struggling urban settlements.
The Karoo is, furthermore, at the forefront of developments that are impacting what we have come to think of as the established land order in the South African countryside. New land uses, notably major investments in astronomy and renewable and non-renewable energy, are recalibrating the significance of farming in this region in a time of major social–ecological change and, in the process, reprising old questions about social justice and the equitable distribution of national public goods in changing contexts. The Karoo is also beset with deep-rooted social problems that are not receiving the urgent, focused policy interventions they require, including extremely high levels of alcohol abuse, which can be fairly described as constituting a largely unremarked national emergency. The roots of this crisis may well lie in land injustices in the past, but much more than land reform is required to break the cycle of substance dependency and build local resilience and well-being.
In developing these points, I am not suggesting the Karoo is typical of the country as a whole – this is decidedly not a one-size-fits-all approach. Nor am I arguing that the time for land reform is past. Rather, I am using the Karoo to tease out significant issues that intersect in particular ways in this region and, in that intersection, prompt new ways of thinking about land and the land question. In a nutshell: the Karoo pushes one to scale down expectations of what land reform can deliver while foregrounding other issues that require more sustained attention.
This chapter develops that argument across five cross-cutting themes: the scale of the Karoo; its demanding – some might say stark – environment, which makes it a particularly challenging area for farming; contemporary land-use changes and the threats and opportunities they bring; the small-town character of the Karoo; and the region’s multi-layered history, a history which confounds simplistic notions of restorative justice through handing land back to its assumed original, singular and only true owners. The discussion draws on a body of research conducted since 2016 on land-use changes and sustainable development in the region.Footnote 1 It is structured as follows. The next section provides a brief overview of the Karoo that draws attention to the intersection of scale, environment and history in the current land dispensation and what this means for a land reform programme still conceptualised primarily in terms of land for farming. This is followed by reflections on the major land-use changes underway in the Karoo and then a review of socio-economic conditions in small towns and their development priorities. The following section before the conclusion provides a case study of land issues in the small Karoo town of Loeriesfontein to show how the five themes play out on the ground. Here land claimants and small-scale farmers have found themselves competing for rights to the town’s extensive municipal commonage, while investments in wind and solar farms in the municipality signal other contested development priorities nationally and hint at new possibilities for local people.
Scale, Environment and History
In terms of scale, the first point to emphasise is the significant geographical extent of the Karoo. What can be considered its core districts cover some 30 per cent of South Africa – even more, 40 per cent, if one accepts the extended boundaries that the Minister of Agriculture, Land Reform and Rural Development approved in 2020 in preparation for setting up a Karoo Regional Spatial Development Framework (KRSDF) (Republic of South Africa, 2020). Furthermore, as already indicated, the core Karoo contains some 40 per cent of all commercial agricultural land in South Africa, the land that sits at the heart of the most bitter conflicts nationwide over spatial justice, redress for the past and agrarian policy. Yet the Karoo is home to only 2 per cent of the country’s population, a very small proportion of which comprises actual or aspiring farmers. As I have noted elsewhere (Walker, Reference Walker, Chinigò and Dubow2019), the Karoo’s share of the total area of South Africa mirrors the 30 per cent target for land redistribution that the post-apartheid government set for itself in the mid-1990s. This is a provocative, if coincidental, correspondence with which to embellish my central point: that thinking about land from the vantage point of the Karoo today reveals the limits of redistributive land reform as the default remedy for past land injustices.
The Karoo is not a tightly bounded region. Its boundaries have always been porous and, as reflected in the two divergent estimates of its extent reported above, determining where its borders lie depends on how one weighs the biophysical, socio-economic and more narrowly politico-administrative considerations at play. Its arid to semi-arid environment is, however, a defining feature. Within these drylands, natural scientists have grouped smaller bioregions into two biomes, the Succulent Karoo and the Nama Karoo, which together define the ecological parameters of what can be considered the core Karoo. Severely complicating their holistic management, the two biomes straddle four provinces, with the Northern Cape having the lion’s share. However, sizable areas fall in the Western and Eastern Cape provinces, while a smaller area merges with the grassland biome in the Free State.Footnote 2 Figure 9.1 shows the distribution of the two Karoo biomes, along with an overlay of twenty-six local municipalities that fall entirely or largely within these biomes and comprise what colleagues and I have described as the ‘social Karoo’ (Walker et al., Reference Walker, Milton, O’Connor, Maguire and Dean2018).
Figure 9.1. The Karoo, showing provincial and local municipality boundaries.
In terms of demography, people classified and/or self-identifying as ‘coloured’ predominate in twenty-one of the twenty-six local municipalities in this core Karoo, with Afrikaans the predominant language in twenty-two (see Walker et al., Reference Walker, Milton, O’Connor, Maguire and Dean2018: table 1). In these respects, the Karoo differs significantly from South Africa as a whole. The national census of 2011 put the combined population of these local municipalities at just under 1 million, thus 2 per cent of the total population of South Africa at the time (Walker et al., Reference Walker, Milton, O’Connor, Maguire and Dean2018: 160). As already indicated, the great majority of Karoo residents live in small towns, many of them facing economic stagnation or decline. Poverty levels in these settlements are generally extremely high. By way of example, a household survey conducted in Loeriesfontein in 2019 found fully 59 per cent of residents had a per capita monthly income at or below the national upper-bound poverty level. State grants were the main source of income for 46 per cent of households, while 30 per cent of people with paid work had monthly earnings of R1,000 or less (Vorster, Reference Vorster2019).
This is an area where the environment cannot be taken for granted. The ecology of the Karoo sets it apart from the far more densely settled eastern and northern reaches of the country that dominate most analyses of land reform. Average annual rainfall is under 400 mm per year, decreasing as one moves west (see Figure 9.2). The past decade has seen a series of crippling droughts which brought many farmers to financial ruin (Conradie et al., Reference Conradie, Piesse and Stephens2019). An emerging consensus among climate change scientists sees the region becoming warmer overall in coming years. The west is expected to become even drier than is currently the case (with severe consequences for the Succulent Karoo’s unique biodiversity), while total rainfall in eastern districts is likely to increase. In the central Karoo, rainfall levels are likely to remain constant (that is, low) but ‘increasing aridity would still be expected owing to increasing temperatures’ (Walker et al., Reference Walker, Milton, O’Connor, Maguire and Dean2018: 171).
Figure 9.2. Distribution of rainfall in South Africa.
Commercial Farming and Land Reform
As a result of its aridity, over 95 per cent of the Karoo comprises ‘natural land’ (Hoffman et al., Reference Hoffman, Skowno, Bell and Mashele2018: 212) – uncultivated rangeland that is not suitable for intensive agriculture but can support extensive livestock farming, mainly with small stock (sheep and goats). Most of this land is dedicated to commercial agriculture on very large, predominantly white-owned farms, with land reform making an even smaller dent in the racialised ownership patterns inherited from the past than in other parts of the country. Significantly, there is no history of ‘native reserves’, hence no former bantustans in the Karoo (although there are some pockets of communal tenure in the far west, in the former ‘coloured reserves’). Currently, agricultural land outside the former bantustans amounts to approximately 63 per cent of the total area of South Africa, of which an estimated 20 per cent had been transferred to black owners/beneficiaries by 2019, mainly through the state’s land reform programme.Footnote 3 In the Karoo, however, privately owned commercial farmland constitutes an even larger proportion of the total area than in the rest of the country, and most of this land is white-owned.
Thus in the Northern Cape (here used as a proxy for the Karoo), fully 82 per cent of the province was classified as commercial farmland in 1996 (Walker, Reference Vorster and Eigelaar-Meets2008: 245)Footnote 4 while, as of 2018, just some 6 per cent of this land had been acquired by the state for land reform purposes. A third of this was through the municipal commonage programme whereby local municipalities rent the often extensive townlands attached to Karoo towns to small-scale black farmers, primarily for grazing; these townlands date back to the establishment of these towns in the colonial era.Footnote 5 The KRSDF does not provide hard data on land reform but does note that ‘much like in the rest of South Africa’ the process ‘has been restricted by slow progress and a limited reform budget’ (DALRRD, 2022: 91). Usefully, the KRSDF also highlights the challenges of land reform in this large, arid and sparsely populated region, emphasising the importance of locating projects strategically, ‘in spatial areas where the necessary social and economic support services can be accessed’ (DALRRD, 2022: 107).
The prevailing land dispensation is a consequence of the interplay of ecology and history. The history of colonisation in this region stretches back to the early eighteenth century, long before the contours of what would become the Union of South Africa in 1910 were beginning to emerge. A critical factor in the colonisation of this region is that until ways were found in the second half of the nineteenth century to tap into groundwater through windpump technology, this arid region could not support settled agriculture. The Karoo could not, therefore, sustain the larger, militarily stronger polities associated with the mixed-farming, Bantu-speaking communities of the pre-colonial and colonial highveld and eastern seaboard. Rather, the region was home to small, mobile groups of hunter-gatherers (the |Xam) and Khoekhoe pastoralists, whose collective footprint on the landscape was light (Morris, Reference Morris2018). Although there is evidence of their fierce resistance, these Khoisan societies were unable to withstand the intrusion into their lands of the colonisers – white trekboers in the main, also pastoralists but armed with guns and, in the nineteenth century, the might of imperial Great Britain behind them. By the end of the nineteenth century, the patches of farmland that remained in ‘non-white’ hands were mainly attached to mission stations (the nucleus of the subsequent ‘coloured’ reserves) or the result of colonial land grants to black settlers that were increasingly under threat.Footnote 6
This has always been a challenging environment in which to farm, a point that recent droughts have driven home. This does not make farming impossible – some districts are well suited to extensive livestock farming, and committed farmers with strong reserves and support systems, including from the state, can generally ride out periods of drought and adapt to changing conditions. But it is impossible to ignore the imperative of respecting environmental limits in farming (and other land uses) in this part of South Africa (Musakwa, Reference Musakwa2018). In this regard, the Karoo is something of an exemplar for the rest of the country.
The environmental constraints have major implications for how we think about land reform. Ecologist Tim O’Connor has calculated that at what he considers environmentally sustainable stocking rates, the two Karoo biomes together can support a total herd of a little under 6.5 million sheep or goats (‘shoats’ as he calls them collectively), which, if equitably distributed in herds of 600, could provide some 10,600 farming families with sufficient income for ‘basic survival’.Footnote 7 According to his calculations, a farming family needs a minimum of 800 shoats to support a ‘lower middle-class income’ while a herd of 400 shoats or fewer would mean the household would need a second income. Thus, assuming an average of five people per farming family,Footnote 8 the number of people able to eke out a living through livestock farming without damaging the environment on which their livelihoods depend works out at some 53,000 people – in the region of 5 per cent of the population of just under a million in the Karoo in 2011. In other words, the number of people who could benefit from a strictly equitable redistribution of rangeland in the Karoo is very low if the environment is respected.
One can argue with O’Connor’s assumptions around stocking rates, herd size and returns, and adjust the household numbers up or down accordingly. However, the conclusion is surely inescapable: assuming not only an equitable but also an environmentally and economically sustainable distribution of this land, only a small proportion of Karoo households can make an adequate living from farming in this region. Given the scale of farming land in private ownership in the Karoo, achieving land justice measured in terms of the aggregated area in black ownership would go quite some way to meeting national land redistribution targets. Indeed, if one were to redistribute all of this land, it would go all the way to meeting the target of the late 1990s. Redistributing the 40 per cent of South Africa’s commercial farmland located in the Karoo to some 10,000 or even 20,000 black farming households (with or without compensation to current landowners) would not, however – and this is the critical point – advance substantive redistributive justice for most Karoo households.
This is not to deny the potential significance of transferring this land to the direct beneficiaries, or the disruption of still entrenched racial hierarchies in the region that it would represent. It might even give the state some much-needed breathing room in which to refocus its land reform programme. But it would do little for the livelihoods and hopes for a better future of the overwhelming majority of Karoo residents, and it would do even less for the 98 per cent of South Africans living in the rest of the country. Without massive state support, the transfer of far-flung Karoo farms to aspirant black farmers could also end up tying many of them to marginal livelihoods, far from markets as well as health, educational and other services for themselves and their households, their prospects increasingly vulnerable to the environmental consequences of climate change.
It is important that the point made here is clear. This is not an argument against redistributive land reform but one about recognising the limits of actual land’s redistributive reach, particularly when tied as closely to agriculture as current policy continues to promote. It is an elaboration of my point about the limitations of focusing on land as redistributive justice, the implicit starting point for many in the debate on expropriation without compensation, rather than recognising land as just one plank in a larger (and sturdier) framework for redistributive justice. In some parts of the country, agricultural land could and should be a substantial plank – perhaps a cornerstone. In the drylands of South Africa, however – which, as I have pointed out, constitute a sizable chunk of the country – its contribution is much more limited if eradicating poverty and inequality is a serious policy goal. Insisting that the actual number and future welfare of black beneficiaries do not count, only the number of hectares redistributed to farmers who are black, is surely a variant of what Jeremy Cronin described in 2006 as ‘representative redistribution’:
‘Transformation’ has come to mean not transformation but the elite redistribution of some racial, class and gendered power … Representative individuals from formerly disadvantaged groups are the beneficiaries. Informing this politics are three buttressing paradigms – an individualistic liberal rights politics[;] … an identity politics that posits relatively fixed and pre-given identities[;] … and a paradigm of democratic transformation that tends to reduce democracy to ‘representation’. … In the new South Africa, a small number of ‘representatives’ enjoy powers and privileges on behalf of the historically disadvantaged majority. This gives us an elite politics of racialised self-righteousness.
New Land Uses
The new land uses dominating national and regional plans for the Karoo provide further impetus to the call to reassess the contribution of land reform to redistributive justice in the current conjuncture. Notable here are major investments in astronomical research (both radio and optical) and energy generation, the latter targeting not only renewable but also non-renewable sources of energy. Today, powerful external players, both state and corporate, are keen to exploit the natural resources of the Karoo for non-agricultural purposes, thereby greatly expanding the significance of long-established investments in mining and conservation in its economy. The resources being targeted now include the Karoo’s clear night skies and low population density (good for astronomy), its abundant solar and wind power (good for renewable energy), its still uncertain shale-gas potential (heralded by the Minister of Mineral Resources and Energy as a ‘transition fuel’ – see, for instance, Omarjee, Reference Omarjee2022) and its uranium deposits. The investments aimed at capitalising on these resources are not only redefining the local landscape where individual projects are being staked out but also reconfiguring the significance of the Karoo for variously constituted national and global ‘public goods’. These include the move away from coal-fired electricity and advancing basic and applied science. The latter has been the primary justification for South Africa’s participation in the globally networked Square Kilometre Array (SKA) radio telescope project, the core site of which has been taking shape since 2008 on a cluster of former commercial sheep farms to the north-west of the town of Carnarvon (on this, see Walker et al., Reference Walker, Chinigò and Dubow2019). Figure 9.3 shows the extent of these cross-cutting initiatives as of 2018.
Figure 9.3. New land uses in the Karoo: astronomy and energy (2018).
Of particular significance from a land-use perspective are the Astronomy Advantage Areas (AAAs) that have been proclaimed around the SKA core site and the optical South African Astronomical Observatory outside Sutherland to the south. What is not widely known is that the whole of Northern Cape Province, bar the Sol Plaatje Local Municipality around the provincial capital, Kimberley, has been declared an Astronomy Advantage Area in terms of the Astronomy Geographic Advantage Act 21 of 2007. This Act grants the Minister of Science and Innovation extraordinarily extensive powers to regulate developments in the province to protect the national investment in astronomy within its borders. The regulations are particularly stringent in the districts around the SKA core site, where three nested Central AAAs were proclaimed in 2014, encompassing some 12 million hectares (fully 10 per cent of the country). This is because of the extreme sensitivity of this radio astronomy project to ‘radio frequency interference’ that will disrupt the array’s reception of cosmic radio waves. Disruptors that require regulating range from mining and aviation to everyday items such as cell phones, petrol-driven cars and microwave ovens. One consequence is that plans for shale-gas mining have now been ruled out in the AAAs. This has not, however, stopped the continued high-level interest in fracking in the region but diverted it to the Western and Eastern Cape Karoo (Walker, Reference Malope2022).
Since 2018, more renewable energy projects have been launched while the state has concluded its major land acquisition programme around the SKA core site. The 135,000 hectares of former farmland the state now owns around the SKA was officially designated the Meerkat National Park in 2020. The primary purpose of the new park is to insulate this international astronomy project from external threats to its functionality; environmental conservation is a by-product. Individually and collectively, these cross-cutting land uses suggest very different development possibilities, as the DALRRD’s (2022) Spatial Framework for the Karoo recognises. All of them, however, raise similar concerns about who will benefit from these possibilities. A growing body of research points to the disconnect between the national gains these projects herald and local development needs. In the words of the KRSDF, ‘[w]hile the large scale current and potential future regional economic activities make an important contribution to a sustainable national economy, the challenge is to ensure greater and more direct benefit to the small and isolated communities at a very local scale’ (DALRRD, 2022: 108, emphasis in original). With reference to the SKA – which it acknowledges as a ‘ground-breaking project’ – the Framework notes:
The introduction of this development into the Karoo landscape and the promulgation of the Astronomy Geographic Advantage (AGA) Act of 2007 … has had a significant impact on the development proposals of towns such as Carnarvon, Calvinia, Kenhardt and Williston, which has hindered their economic development and growth. The SKA has also limited the future of space and technology tourism as there are concerns around the possible impact on eco and other recreational tourism forms.
For the new land uses to advance redistributive justice in the region, much more creative thinking is needed around how they can be leveraged to benefit host communities in meaningful ways. In most cases, the local jobs that are frequently touted as a significant benefit occur during the construction phase and are low-skilled and short-term. The community development projects required of investors by the state are not necessarily aligned with municipal development plans, even less with residents’ expectations of the developments they need. Projects tend to be designed by outside experts to meet quantifiable targets, with tangible deliverables, for corporate reporting purposes – computer centres, laptops, sports equipment for schools and the like. The benefits they bring are unevenly distributed and vulnerable to local elite capture. (On the SKA, see Butler, Reference Butler2018; Gastrow & Oppelt, Reference Gastrow and Oppelt2019; Vorster, Reference Walker, Wynn, Jacobs and Carruthers2022; Walker, Reference Malope2022; on the renewable energy sector, see Malope, Reference Malope2022; Borchardt, Reference Borchardt2023.)
Also telling is the disconnect between these new land uses and national commitments to land reform. Thus the highly efficient land acquisition programme of the SKA was conducted with little if any regard for state land reform objectives (Chinigò, Reference Chinigò2019). National debates on the meaning of ‘just and equitable compensation’ in the property clause of the Constitution passed this programme by. Most farmers were reluctant to sell their family farms (Terreblanche, Reference Terreblanche2020) but were reportedly reasonably to well compensated at market-related prices. Affected farm workers were not identified as potential beneficiaries of land reform projects but were offered general worker jobs with the SKA on a case-by-case basis. Gastrow and Oppelt (Reference Gastrow and Oppelt2019: 721) describe the SKA’s approach to this process as exhibiting ‘an arguably paternalistic concern’ that the workers ‘would fall into the all too familiar trap of alcohol and drugs’ once living in town. The San Council was brought from distant Upington to bless the core astronomy site, but the local descendants of those dispossessed of land rights in the very large area impacted by the AAAs were never primary stakeholders in determining how and for whom this land should be used (Parkington et al., Reference Parkington, Morris and De Prada Samper2019).
Similar disconnects can be observed around the community development projects that the ‘independent power producers’ participating in South Africa’s renewable energy procurement programme are required to undertake in their ‘host’ communities (the latter defined as communities within a 50-kilometre radius of the wind or solar farm in question). However, these projects are far less restrictive in their operational requirements than astronomy, meaning that opportunities for redistributive justice through community-based initiatives can be more readily imagined with this new land use. Wind farms can coexist with livestock farming, while solar and wind farm developers are prepared to pay lucrative rentals for land on which to site their projects – rentals that at this stage are flowing primarily to commercial farmers and local municipalities, not those most in need (Borchardt, Reference Borchardt2023). Furthermore, although current projects are locked into supplying electricity to South Africa’s embattled national grid, there is untapped potential for decentralising renewable energy generation and serving energy-poor communities via ‘distributed energy resources’ and mini-grids (GIZ & IRENA, 2020: 52).
There is also significant potential in the community development trusts that the independent power producers have established to meet state requirements for local shareholding in their projects. Malope (Reference Malope2022: 198) has noted in his dissertation on the contribution of renewable energy to sustainable development in Loeriesfontein, where two wind farms began operations in 2018, that once the two community trusts have paid off the loans that financed their initial share acquisition, they could find themselves responsible for managing capital sums of between R214 million and R509 million each – quite extraordinary amounts for a community as poor and marginalised as this one. I return to the possibilities that these funds hold for reimagining redistributive justice in this town after a more general consideration of the development needs of Karoo towns.
Urban Karoo
As already noted, today, over three-quarters of the population of the Karoo lives not on farms but in widely dispersed small to very small towns. The percentage of the population classified as urban is thus higher in the Karoo than in South Africa as a whole (around 68 per cent in 2022; Macrotrends, n.d.). Counterintuitively, then, the Karoo can be seen as at the forefront of an increasingly urbanised South Africa, once one ceases to conflate urbanisation with the major metropolitan centres. The small-town nature of the Karoo also calls into question the appropriateness of a land reform programme still measured primarily in terms of the hectares of commercial farmland redistributed to small- or large-scale black farmers.
Karoo towns developed historically as service centres for local agriculture and, in some areas, mining. The urban population of this region overtook the rural over fifty years ago, in the 1960s (see Figure 9.4). Worth noting is that the upward urban trajectory in the Karoo coincided with a downward trajectory for the segment of the population classified as ‘white’, from some 44 per cent of the total in 1911 to 12 per cent by 2004 (Hill & Nel, Reference Hill and Nel2018: 207) and still smaller today. These shifts reflect major social changes involving the upward mobility of this group in the twentieth century, as white families moved off-farm and younger members migrated to centres beyond the Karoo in pursuit of better educational and economic opportunities. This trend is continuing. In her doctoral thesis on changes in commercial agriculture in the Ubuntu Local Municipality, Charmaine Manyani quotes a livestock farmer as follows:
Technology has brought the world closer to our children. They are realising there are better opportunities for them through education that don’t require burning in the sun the whole day. This has been worsened by the variable economic pressures and consecutive droughts with little or no support from the government. All these and other factors have made farming very unappealing.
Figure 9.4. Karoo population trends, 1911–2004.
Of course, the towns of the Karoo are mostly very small settlements (dorpe), many of them facing economic decline, not growth (see Hill & Nel, Reference Hill and Nel2018: 206). Nevertheless, these settlements are ‘urban in form and social functioning, albeit on a distinctively limited scale’ (Walker & Vorster, Reference Vorster and Walker2023). In the words of one respondent interviewed in Sutherland in 2019, ‘[e]veryone knows one another and lives closely together’. Another respondent noted, ‘[p]eople gossip, but if someone dies, everyone grieves together’ (Vorster & Eigelaar-Meets, Reference Vorster2019: 52). It is this small-town environment that shapes most people’s development priorities and aspirations for the future. In response to an open-ended survey question about what could be done to develop Sutherland, the five most frequently identified needs were, in order of frequency: affordable housing; job creation; recreational facilities for the youth; tarred roads; and flush toilets to replace the pit latrines in the overcrowded, apartheid-era township where most people still live (Vorster & Eigelaar-Meets, Reference Vorster2019).
Effective investment in social services is desperately needed. Socio-economic surveys conducted in the towns of Vanwyksvlei, Sutherland and Loeriesfontein between 2016 and 2019 found education and skill levels to be generally very low and the school dropout rate among teenagers alarmingly high (Walker & Vorster, Reference Walker and Vorsterin press). Respondents in all three towns identified alcohol and drug abuse and associated crime as major problems – as already noted, rates of alcoholism and foetal alcohol spectrum disorders are extremely high in this region (Olivier et al., Reference Olivier, Curfs and Viljoen2016; De Jong et al., Reference De Jong, George and Jacobs2021). Worth noting is that these surveys did not find widespread interest in farming as a serious option, although some households expressed varying degrees of interest in accessing commonage land for grazing small herds, and a few individuals indicated an interest in land reform opportunities. In Sutherland, 7 per cent of households in the survey sample of 253 had some livestock, but most respondents did not identify land for farming as a key concern (Vorster & Eigelaar-Meets, Reference Vorster2019: 47). In Loeriesfontein, where, arguably, a stronger culture of small stock farming prevails, respondents identified only 12 individuals across 201 households as likely to want to farm full-time if given a chance (Vorster, Reference Vorster2019: 60).
There is, however, an under-appreciated need for urban land reform in these towns, one that will not make a dent in the state’s overall hectarage targets for land reform but could make a significant difference to people’s sense of belonging and ease of access to services. The Group Areas Act 41 of 1950 hit hard in the Karoo in the 1960s and 1970s, but the post-apartheid state’s investment in much-needed low-income housing is entrenching, rather than dismantling, the spatial segregation enforced under apartheid. In both Loeriesfontein and Vanwyksvlei, the rollout of new ‘RDP’ (Reconstruction and Development Programme) housing projects has resulted in tiny houses, on tiny plots, in extensions of the former group-area townships, the undeveloped ‘buffer zones’ put in place in the apartheid era to separate the town centre (die dorp) from the township on its periphery still in place.
Land and Redistributive Justice in Loeriesfontein
Given its history and current identification as a host community for renewable energy projects, the small town of Loeriesfontein (population around 3,000) offers interesting insights into the question of land and redistributive justice in the Karoo. Its municipal commonage provides a useful entry point.
The commonage covers some 20,000 hectares around the town. It consists of three colonial-era farms: the original Louries Fontein farm, which the Cape government first granted via a Ticket of Occupation to a group of fifty-nine so-called Basters in 1860, plus two adjoining leasehold farms that the state added to this land in the 1890s when the town was formally proclaimed.Footnote 9 The Baster group, who were the recipients of the 1860 land grant, were settled in the area by the early nineteenth century. From the point of view of the indigenous Khoisan groups in this area, then, they would have been settlers, much like their white, trekboer counterparts with whom they competed for grazing land but also sometimes cooperated in subjugating the Karoo’s ‘first people’.
After the land on which they had settled became crown land, the Basters petitioned the colonial government for recognition of their land rights, which was granted in 1860. In 1892, however, the land grant was revoked because of sustained pressure from white farmers who objected to their Baster neighbours, and a new town was planned for this land. Although the rights conferred on the Basters in 1860 were withdrawn, fifty-two Baster families who were identified by the colonial state as beneficiaries of the original Ticket of Occupation were given rights to ‘a building plot, a garden plot, plus grazing rights on the commonage’ in the new town.Footnote 10 In the twentieth century, this group was merged into the apartheid-era category of ‘coloured’, their second-class status in the town increasingly reinforced. In 1968, legislated racial segregation came to Loeriesfontein under the Group Areas Act; this forced all ‘coloured’ residents to live in the small area designated for them on the western outskirts of the town.
The history of the townlands in the twentieth century needs more research but it is evident that black access to the commonage for grazing and some dryland cropping was progressively curtailed. In the post-apartheid era, the local municipality reversed the town’s discriminatory commonage by-laws by entering into lease agreements with members of a Farmers’ Association representing ‘coloured’ small-scale farmers, the Loeriesfontein Opkomende Boerevereniging (Emerging Farmers’ Association). These farmers were mostly older men, including pensioners, none farming full-time but all keen to use the commonage for grazing their small herds. In 2019, the Association had between thirty-seven and forty members, ‘depending who one speaks to’ (Davids, Reference Davids2021: 68).
By this time, however, their continued use of the land was a source of tension in the town. This was because of the settlement of a land restitution claim on the commonage, which had been running on a parallel land reform track since 1996. In that year, a committee representing 240 claimants lodged a land claim over all the townlands and various residential plots. The official claim form is regrettably not in the public domain, but it can be assumed to have centred on the loss of land rights by ‘coloured’ residents during the twentieth century, inter alia under the Group Areas Act.Footnote 11 The history of the 1860 Ticket of Occupation might also have been invoked, although that predates the 1913 cut-off date and would raise difficult questions about redress for the descendants of the original Khoisan people whose rights the Ticket had extinguished.
The claim was formally gazetted in 2004, then adjusted and re-gazetted in February 2008, shortly before being declared ‘settled’ at an official ceremony a few months later, once the local municipality had agreed to transfer ownership of the commonage to the DRDLR for free.Footnote 12 It appears that the land reform potential of this land as a municipal asset was not carefully considered. Davids (Reference Davids2021: 64) notes that the Regional Land Claims Commissioner’s office praised this transfer of land to the national government as a contribution towards the state’s 30 per cent target for land reform; however, ‘the Hantam Municipality was unhappy with the lack of compensation and seemed to have been “bullied into the transaction”’ (here citing the Legal Resources Centre, a champion of the commonage programme in the Northern Cape at the time). Claimants were also offered financial compensation, raising questions about how many may thereby have formally forfeited their rights to the restituted land.
The formal settlement of the claim was followed by a protracted period of uncertainty and confusion in the town over who actually owned the commonage, who could still use it, and who was responsible for its day-to-day management. A Communal Property Association (CPA) was established to represent the claimants in 2008, but it took six years for the title to the first of the three commonage farms to be transferred to it, in 2014. In December 2019, the Minister of Agriculture, Land Reform and Rural Development acknowledged in Parliament that the CPA needed ‘regularisation’ and there were ‘disputes regarding access to the land’ (National Assembly, 2019). She put the number of restitution beneficiaries at 800. The state had still not transferred ownership of all the commonage to the CPA, and it was not clear how the new landowners intended to utilise their land. According to the list of claimants the Minister made available in Parliament, 27 of the original 240 claimants were not living in Loeriesfontein but elsewhere (mainly in the Western Cape), while 91 were deceased (meaning that their heirs needed identification). At the time, the drought was biting hard, and oversight of fences, water pumps and stock numbers on the commonage had crumbled, none of this boding well for its sustainable use.
It is a familiar story of the misalignment between promise and outcome that has bedevilled so many land reform projects since 1995. Yet as the previous discussion has brought to the fore, in Loeriesfontein other land-use options are pointing to new possibilities, along with new challenges. In addition to the two wind farms already in operation, a solar farm is under construction in the district, and further renewable energy projects are on the drawing board. Might one be considered for the former townlands? Could the local community development projects that these schemes are required to support be planned with stronger community participation and complement, rather than compete with, each other? What of the capital sums accruing to the community development trusts, which hold out such significant financial prospects not only for the town but potentially for the wider Hantam Local Municipality, provided strong, accountable institutions are put in place? Malope, for instance, has proposed that the trusts could finance direct cash transfers to households in need (thus bypassing local patronage politics) – a local dividend from the national investment in renewable energy that could be modelled along the lines of a basic income grant. (On the developmental and moral logic of a basic income grant, see Ferguson, Chapter 12, this volume.)
Space precludes discussion of the many issues to consider, but what is clear is that direct cash transfers would make a significant difference to household income and community well-being. As already noted, in 2019, before the COVID pandemic, per capita income was below the country’s ‘upper-bound’ poverty line for 59 per cent of Loeriesfontein residents. A modelling exercise that calculated the impact on household incomes of the state’s top-up to social security grants during the COVID pandemic showed what a difference even this very modest cash injection could make in the town. Working with data from the 2019 household survey, Jan Vorster has calculated that if the top-up grants were fully disbursed, a third of Loeriesfontein households trapped below the food poverty line would move into the ‘upper-bound’ poverty band while over a quarter of households in that band would be pushed above the official poverty line (Vorster & Walker, Reference Vorster and Walker2020).
Conclusion
Using changing dynamics in the Karoo as evidence, this chapter has argued that it is time to decentre the place accorded land reform in the quest for redistributive justice in South Africa – not to abandon it but to place its contribution in perspective and pay more attention to other mechanisms that are better attuned to current conditions and the challenges they are laying bare.
As the country struggles to come to terms with climate change, the Karoo provides an instructive reminder that the environment matters. So too do regional and local histories, which are usually more complex than the land restitution programme has been designed to handle. The story of the Loeriesfontein commonage shows that simply restoring land to legitimate claimants may not necessarily advance either justice or livelihood opportunities for those most in need. At the same time, the new land uses in the Karoo signal new opportunities for reimagining multiple pathways towards a more just and sustainable future. The call for a ‘just transition’ that is animating the debate on renewable energy is instructive here.
Land reform still has a place, but its limitations need to be recognised and its objectives realigned with the regionally inflected social and ecological changes that have unfolded since 1994. The extent of commercial farmland transferred to black ownership is an inadequate measure of redistributive justice in the Karoo and, given its extent, in South Africa more generally as well. The racial disparities in land ownership are particularly extreme in this region but, as the discussion has shown, land redistribution in the Karoo will not contribute significantly to reducing poverty and inequality here or nationally, despite the spatial extent of this region. Policies intended to advance redistributive justice need to be designed keeping in mind where people live and what they aspire to. In the Karoo, this means focusing far more imaginatively on prospects for small-town regeneration and how to harness the natural resources of the region to benefit its people in ecologically sustainable ways.
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