Sense of Frustration

The Various Aspects of Land Reform

The ANC has since managed to seize the initiative on the issue of land reform. Since February 2018 when Cyril Ramaphosa took over from ex-President Jacob Zuma, who was suspected of corruption, the party has struggled to regain lost confidence. Zuma is accused of ‘state capture’: appointing politi­cal allies to government posts for his own financial gain. A commission is currently investigating the allegations. Many South Africans now believe that the former lib­eration movement has betrayed its ideals and now prioritises enriching itself eco­nomically.

Their frustration is reflected in the increasing numbers of those not voting. Voter turnout has been steadily declining since 1994. In 2014, 43 percent of voters either did not register at all or were reg­istered but did not vote. As a result, the ANC gained only 35 percent of all eligible votes in South Africa, down from 54 per­cent in 1994.

The programme of land reform was greeted by concerns both at home and abroad that it might be accompanied by violent expropriations. However, to date, steps taken by Pretoria indicate a democratic and orderly process. In December 2018, a committee presented the results of a ten‑month consultation process that asked groups across the country for their opin­ions on land reform. That same month, the South African Parliament confirmed it would implement the committee’s key recom­mendations.

These recommendations include an amendment to paragraph 25 of the South African Constitution which explicitly de­fines under what conditions land can be expropriated without compensation. In fact, this possibility is already provided for in the South African constitution – as it is in many other constitutions. It has, how­ever, hardly been used at all in practice. Concerns that concreticising paragraph 25 could lead to large-scale expropriations with­out compensation appear to be un­founded. According to political scientist Ruth Hall, one of ten experts on Cyril Rama­phosa’s advisory panel on land re­form, paragraph 36 of the constitution would also have to be amended for this to happen. While it does allow rights restric­tions under certain conditions – such as the right to own property – it requires that such restrictions are “reasonable and jus­ti­fiable”. Amending paragraph 36 would require a 75 percent majority in Parlia­ment – which is unlikely even after the 2019 general election.

In December 2018, Parliament decided to set up an ad hoc working group comprised of representatives of the various parties and additional persons. It is expected to report back to Parliament with a draft proposal to supplement paragraph 25. The supplement is to contain an explicit formulation for cases where expropriation is possible, thus legitimising it. Experts expect it to specify the criteria under which compensation can be paid out. In their opinion, expropria­tions without compensation will only occur in very few cases, for example if land is used as a speculative commodity. However, they complain that the problems of high-grade social inequality cannot be solved by merely redistributing land.

Ultimately, it is not simply a question of making land available but also about its use – South Africa needs to find solutions to a complex problem which extends beyond the issue of expropriation without compensation. Currently, at least three aspects of the problem form the core of the political debate. Firstly, what mix of policy instruments is needed to achieve a fairer distribution of land and resources without harming agriculture? Secondly, it is a mat­ter of ensuring legal security for the people who live on communal land – land that is administered by traditional elites and locat­ed predominantly in rural provinces. And thirdly, the more equitable distribution of housing in cities plays an important role.

Historical Inequality and Land Ownership

The unequal distribution of land in South Africa was cemented by a series of policies and laws enacted before and during apart­heid. The Natives Land Act of 1913, which provided for a redistribution of ownership in South Africa, designated areas exclusively for Whites. As a result, Blacks were expel­led from their land. This structural inequality was promoted under apartheid from 1948. The apartheid regime not only divided the population into different racial groups, it also physically separated these groups.

Between 1960 and 1980, around 3.5 mil­lion black people were forcibly (and often violently) resettled in the ‘homelands’. These rural areas were under the administration of the traditional elites, that is, representatives of tribal ruling structures and dynasties, such as chiefs, who had in place the administrative structures of tra­ditional authorities. Under apartheid, mem­bers of those traditional authorities enjoyed a special status due to their ad­min­istrative powers and were thus able to distinguish themselves from the rest of the black popu­lation.

Other black South Africans, officially known as ‘Africans’, were prohibited from engaging in their own economic activities and from acquiring land. As part of the Bantu Education system, black people were educated to carry out orders; they were not trained to learn how to become self-em­ployed. Members of the black population were mostly employed in agriculture and mining as workers for white owners or as domestic staff in white households.

The regime continued to pursue its policy of segregation in the cities. The Group Areas Act came into force in 1950 and provided for cities to be subdivided according to racist criteria. Large parts of the urban population were forcibly and violently moved to urban areas designated for their use only. The different city dis­tricts were allocated resources, such as road construction or access to electricity or water, based on a racist hierarchy. Areas where Whites lived were afforded special privileges, while Blacks were forced to live in miserable conditions. There were also gradations between Indians, Coloureds and Africans; these groups were also physically separated from each other.

The uneven distribution of infrastructural resources is still visible today; one consequence of segregation is the dysfunctionality of some areas.

It is precisely these structural differences for Blacks and Whites promoted by the apart­heid regime that the ANC promised to overcome after the end of apartheid. After the first democratic elections in 1994, it began implementing land redistribution programmes. However, the ANC eventually decided to forego a comprehensive and pro­found programme of land reform and the resulting expropriation of land owned by Whites.

The ANC has three programmes aimed at improving the situation for black South Africans:

• The purpose of the redistribution pro­gramme was to redistribute land formerly owned by Whites in order to eliminate the country’s structural inequality. The programme is based on the principle of ‘Willing Buyer, Willing Seller’, as described above.

• The restitution programme provided either for the restitution of land or finan­cial compensation for those who were forcibly expelled from their land as a result of racist legislation. Beneficiaries are not necessarily entitled to the territory they lost, but to substitute areas or alter­natively to financial compensation. This should ensure that productive farms and other businesses are not affected by the land being returned to its rightful own­ers.

• The tenure programme aims to provide legal certainty for those who continue to live or work on communal land (in the former homelands) or as tenants on land (usually) owned by Whites. Various laws should ensure that these individuals can­not simply be evicted from land, even if they were not its legitimate owners.

Given the ANC governments’ poor record on redistribution, the effectiveness of these programmes is now being called into ques­tion. By calling for blanket expropriations without compensation, the EFF have made it clear that, in their opinion, land redistri­bu­tion can only be achieved through ex­propriation. However, an evaluation of South African land policy since the end of apartheid indicates that it is not absolutely necessary. The report argued for greater use of this option if, for example, the land is not being used productively.

This was the result of a commission set up by parliament in 2016 and led by former President Kgalema Motlanthe. By October 2017, it had dealt comprehensively with issues of distributive justice in South Africa. According to the commission, the reasons for the sluggish redistribution of land are not necessarily down to flaws in the way existing programmes have been set up, but instead due to their poor implementation. In particular, the government is taking far too long to process redistribution applications. One key challenge is the rampant cor­ruption and the resulting inefficiency of government agencies in South Africa. This appears to be the source of delays to pro­cessing applications.

It also undermines the legal security of black South Africans living in the former homelands and in the province of KwaZulu-Natal. This is compounded by clientelist legis­lation and illegal practices by the tra­ditional authorities which still hold sway in some regions.

If greater equity is to be achieved in the distribution of land, there is a need for a change of direction in various areas. In Sep­tember 2018, Cyril Ramaphosa appointed ten experienced experts to the aforementioned panel (see p.3) to advise him on fur­ther steps. However, the South African gov­ernment is primarily confronted with the political question of whether it dares to dis­empower the influential traditional author­ities.

Communal Land and Clientelism

Originally, the ANC had wanted to abolish the administrative structure described above, in which traditional authorities were responsible for administering former home­land areas, after the end of apartheid. But it never happened. Then, in the 1990s, violent conflicts broke out between the ANC and the Inkatha Freedom Party (IFP), which was committed to representing the Zulu ethnic group. The ANC compromised in order to bring these conflicts to an end. This has resulted in the traditional authorities now enjoying special status.

In South Africa, 17 million people out of a total population of 58 million live in the former homelands. According to South Afri­can law, traditional authorities are sup­posed to manage the land for the benefit of the communities living there. Decisions about land use are supposed to be taken jointly after intensive consultation.

One concession made specifically to the group of Zulus in KwaZulu-Natal was the establishment of the Ingonyama Trust (IT), which administers around three million hectares of land in KwaZulu-Natal. Zulu King, Goodwill Zwelithini, is the sole trus­tee of the fund, with a total of nine other members of traditional communities sitting on the board.

Various studies have shown how illegal practices committed by those administering the fund violated the rights of people living on the communal land. They own Permission to Occupy Certificates (PTOs) that guar­antee them the right to live on communal land. However, people living on communal land still require a proof of residence from the traditional authorities. This proof of residence allows them to sign contracts and, for example, open a bank account.

The trust exploited the dependency en­gendered by this situation. In October 2017, it placed an advertisement that prom­ised to give people a proof of resi­dence for an address if they converted their PTOs into a lease. However, the organisation failed to mention that additional costs were in­cur­red. A few weeks later, in addition to the lease contracts, many people were also sent an invoice for the payment of rent. Moreover, IT concluded contracts with third parties, such as mining, agricultural or other com­mercial enterprises, which wanted to use the areas it administered. By entering into lease contracts, IT sought to avoid consultation with the communities.

The Motlanthe report finds that the under­mining of the rights of people living on communal land, for which the traditional authorities are responsible, has become the rule rather than the exception. According to the report, the practice is par­ticularly widespread in KwaZulu-Natal, but also occurs in other regions of South Africa.

However, Aninka Claassens, a researcher at the University of Cape Town and mem­ber of the Motlanthe Commission respon­sible for land distribution, does not blame only the practices of the traditional author­ities for the violation of rights of the rural population. According to her, in the 2000s, the South African Government adopted vari­ous bills which increased the scope of the tra­ditional authorities to conduct com­mer­cial transactions. As a consequence, it be­came easier for them to bypass consultation processes. The government also ben­efitted from this practice when it concluded con­tracts, for instance with mining com­panies, without consulting the population. Al­though this was increasingly practiced under Jacob Zuma, it had also occurred during the term of his predecessor, Thabo Mbeki.

Another aspect comes into play here: South Africa has pursued a policy of Black Economic Empowerment (BEE) since 2001. The policy states that a certain percentage of black people must be represented in the administrative structures of firms and enter­prises. Every economic cooperation thus brings advantages for an aspiring black elite – an instrument to counter the injus­tices of apartheid. In practice, this elite is often closely interwoven with the ANC. Offi­cials from South Africa’s Department of Mineral Resources (DMR) are said to have advised firms to negotiate directly with the traditional authorities about contracting because this avoids the need to consult with the communities – making deals far easier to conclude.

Cyril Ramaphosa began to tackle these abuses as soon as he took office. Since Feb­ruary 2018, the DMR has undergone a fundamental restructuring. One of Rama­phosa’s key promises is to curb corruption in South Africa’s government agencies.

The debate about on how to respond to the practices of the traditional authorities is highly politically charged. The EFF have called for the Ingonyama Trust to be fully nationalised in order to then make the land available to the population. The Zulu king then publicly stated that he was prepared to go to war should the fund be expropriated. During a visit by the king, Cyril Ramaphosa kneeled before him in a symbolic act. The President assured him that he would con­tinue to take seriously the rights of the traditional authorities.

Ramaphosa’s gesture was largely mis­understood. It was sharply criticised by those parts of the population that long for a departure from the traditional adminis­trative structures. The ANC, on the other hand, aims to avoid any renewed conflicts with the traditional authorities where pos­sible, not least because they have powerful political representatives.

A conflict with the traditional authorities in KwaZulu-Natal would be an awkward development before the elections, especially for Ramaphosa. KwaZulu-Natal has long been the thorn in the side of the ANC be­cause it is home to the Inkatha Freedom Party. Jacob Zuma was given political sup­port in the province because he himself is a Zulu and had powerful allies. When he was forced to resign by the ANC in 2018, there were protests from ANC supporters in the province. Since taking over the office of ANC leader, Ramaphosa has had to fight for the full support of his party. It is, however, unlikely that the ANC will be able to effec­tively reduce the power of the traditional elites even after the elections and it will depend on how much support they can muster. Nevertheless, the Trust will have to answer for its actions before a South African court.

Living and Working in Urban Centres

The challenge of creating and allocating urban housing has become at least as im­portant as the redistribution of rural land in South Africa. In 1980, around 43 percent of the population lived in urban areas, com­pared to 60 percent in 2015. And UN fore­casts point to steady growth – up to 80 per­cent of the South African population could become city dwellers by 2050. Given the growth in urban areas, the population will require more housing in future.

Once again, the question of equity plays a role here. The apartheid regime’s housing policies and its distribution of land owner­ship cemented the structural gap between Blacks and Whites. The effects of segregation between the white centres and non-white outskirts can still be seen today.

Around three million housing units have been built since 1994, as part of a very am­bitious social housing programme. Despite this, up to 20 percent of South African house­holds are still located in traditional or informal settlements; the latter have gen­erally been built without official permits. In Cape Town, the richest city in South Africa, 81.6 percent of all households had access to legal housing in 2016. Conversely, this means that almost one-fifth of the popu­lation there lives neither in legally secured tenancies nor has legal access to services such as electricity or water.

Social housing units being built as part of the Reconstruction and Development Programme are mostly located in those peri­pheral neighbourhoods that were allo­cated to Blacks under the apartheid regime. Many South Africans are deeply rooted in their communities, the township is no longer necessarily a place of social dis­ad­vantage. Nevertheless, critics complain that building social housing in the townships, far away from economic centres, promotes segregation.

This form of segregation is riddled with a number of other problems. Many people have to travel long distances to reach urban centres. This is very costly and jeopardises their chances on the South African labour market. Many sleep on the streets in city centres or in squats during the week so they can get to work more easily because of the high travel costs and long distances.

According to a survey conducted by Sta­tistics South Africa in 2015, more than two-thirds of households who fall in the lowest income quintile spent more than 20 per­cent of their monthly household income per capita on public transport, while less than three percent of households from the highest income quintile spent more than 20 percent of their monthly household income per capita on transport.

The South African government has launched several programmes to address these problems. Under the slogan, “Corridors of Freedom”, it initiated the construction of a local and long-distance transport network to improve mobility and thus bring about economic and social equality. But, as the example of Johannesburg shows, approaches implemented so far have not been successful in eliminating social seg­re­gation. To date, it is mainly members of the middle and upper classes that use the “Gautrain”, a modern express train that links economically significant districts in Johannesburg and in Pretoria. The train is too expensive for anyone on an average income. They prefer to take buses operated by Rea Vaya which are more affordable. As before, however, a large part of the popu­lation still travels long distances on foot or uses the informal system of minibuses, which also links the outskirts of urban areas.

Today, racially segregated groups tend to mix more when black South Africans climb the social ladder and then subsequently move into formerly white residential areas. There are various efforts in South Africa to overcome segregation. For example, the City Support Programme (CSP) aims to cre­ate mixed residential and working areas that offer better mobility and more ac­ces­sible services. One challenge for urban planning is to find a balance between pub­lic responsibility, private sector investment and community participation. Above all, this requires time and patience.

However, it is already possible to set aside land in urban areas for housing at short notice. For example, the government could develop unused state housing in South African cities or improve the infra­structure in existing informal settlements. State-owned land could be made available to create affordable housing without much effort. Lastly, long-term concepts are need­ed for sustainable development in urban centres.

Potential Frustration

Analyses have clearly shown that the hotly debated issue of expropriation without com­pensation is only one element of land reform in South Africa. The assertion that South Africa’s unequal distribution of in­come could be virtually wiped out by ex­propriating land owned by Whites is merely an empty promise peddled by predominantly populist forces. Nevertheless, they have man­aged to force the ANC to change course.

The latest Afrobarometer survey highlights the importance of a fairer distribu­tion of resources among South Africans: 62 percent of respondents said they would be prepared to give up their right to vote if they had access to service delivery (such as water or housing). Widespread dissatisfac­tion has lead to an increase in the number of political protests in recent years.

South Africa is still a country with demo­cratic principles and well-established insti­tu­tions that were damaged but not destroy­ed by Jacob Zuma’s ‘state capture’. A large share of the population is critical of expro­priations without compensation: 53 percent support the principle of ‘Willing Buyer, Willing Seller’. However, the government’s consultations also show that disadvantaged groups in particular are in favour of a more radical approach and of expropriation with­out compensation.

In all likelihood, the next South African government will again be led by the ANC. It will be confronted with the task of imple­menting a land reform with fast and visible results, but which will nevertheless be car­ried out according to the rules of democracy. Renewed failure to redistribute land would compound the population’s already con­sider­able sense of frustration.