We’re having the wrong discussions about land reform.
So says Professor Andries du Toit, director of the Institute of Poverty, Land and Agrarian Studies (PLAAS) at the University of the Western Cape.
“Public debate has been overly concerned with the redistribution of rural land for farming purposes and has almost entirely focused on the emotive issue of changing the constitution to allow expropriation without compensation. But these are red herrings. We need to talk about what is really at stake – which is land for the security of tenure and dignified citizenship in both urban and rural contexts, and about how to realise the dream of a South Africa who belongs to all who live in it.”
He was speaking at the Open Book Festival in late March during a seminar about land reform titled ”Getting Real About Land”. He was joined by lawyer and author Advocate Tembeka Ngcukaitobi, lawyer and activist Mpho Raboeane from the Ndifuna Ukwazi Law Centre, and PLAAS researcher Katelgo Ramantsima, who chaired the discussion.
Du Toit said that the problem with land reform was not the cost of acquiring land. Rather, it lay with the fundamental design of the programme itself “The land reform programme we have at the moment is land reform for the 1%. It’s actually land reform for the 0.001%,” Du Toit said, adding that only about 10 000 black capitalists will benefit from the current land reform programme.
But the heated debate about the land that has been taking place in South Africa over the last few years requires more than land reform, he said. That debate is really a symptom of a much deeper problem: the persistence of deep racialised inequality in both rural and urban South Africa. That inequality means that most ordinary black South Africans feel like second-class citizens in their own country. Democracy has not delivered on its promises of a better life for all. This threatens the very legitimacy of our constitutional experiment.
This, Prof du Toit said, was why Ngcukaitobi’s work was so important: his books are not only arguments for land reform, but they are also arguments for the centrality of the constitution and the rule of law for any possibility of progress and emancipation.
Ngcukaitobi’s latest book, Land Matters: South Africa’s Failed Land Reform and the Road Ahead, dives into the land reform discussion picking up from where he left off in his previous literary offering, 2018’s The Land Is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa.
His work’s first theme is to “just speak the truth about the past”, Ngcukaitobi explained: “There is a lot of denial and obfuscation and evasion about what actually happened. And so as to expand the scope of what the undertaking is for the rectification of that past. And then the second (theme) is to centre the future on a constitutional framework. It’s a relevant thing these days. The book contains three chapters that criticise the attempted constitutional amendment.”
He was referring to the ongoing battle over the Expropriation Bill and the Constitution’s highly contested Section 25.
While the ANC has failed to get the required two-thirds majority to amend Section 25 – which states that no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property – Ngcukaitobi believes this section holds genuine land reform solutions.
“I still come to the conclusion that Section 25 is the mandate for transformation and what we are supposed to be doing is expanding its operation and testing its limits in order to push for a sustainable future for all.”
State custodianship of land was also on the agenda.
“These last four years have also introduced the idea of state ownership over the land. I’ve been very critical of state custodianship because it is the concentration of power on politicians again. In a population that is emerging from 25 years of state corruption, and another 40 years of the National Party corruption, notwithstanding the other 300 years of British and Dutch corruption. So what we cannot afford as citizens is another version of the concentration of political power through the land on politicians,” Ngcukaitobi said.
According to the South African government, the ‘land question’ goes back more than a century to the 1913 Native Land Act, which provided legislative form to a process of dispossession that had been underway since colonial times.
Raboeane turned the conversation to human rights abuses, both past and present. She said people’s rights should be considered during land reform discussions.
“One of the major things that we’ve come to grapple with is how historical issues of land mixed with market forces, effectively entrench the exclusivity that poor and black people are experiencing in terms of accessing well-located land,” she said.
She also suggested a greater focus was needed on urban land; currently, most debates centre on agrarian land.
“If you look at the number of people who are actually moving or migrating to urban centres, the numbers of the population that are in and around urban centres, the reform question really needs to be centralised on the urban aspect of it.
“Firstly, because it’s so intrinsically or intimately tied with the workings of the economy. There’s a lot of urban wealth tied to real estate. And that is a key consideration for people in power. So, there’s a lot that we need to unravel when we are looking at urban land, and who gets to access urban land, and who is at the heart of controlling and developing and benefiting from urban land? And I would say it’s certainly not the people who work in those urban centres, and it’s certainly not the people who actually need to benefit from those urban centres.”
Both Raboeane and Ngcukaitobi were critical of the over-focus on private property ownership as the most desirable form of tenure, seeing it as a hindrance to meaningful dialogue on land reform.
“Every policy that the ANC has passed, since its white paper on land reform in 1997, has been in pursuit of private property, yet private property places a stranglehold on proper land reform,” Ngcukatobi added.
Raboeane echoed these sentiments: “It’s private property and private property interests that help to maintain the exclusion experienced by those who are at most need in terms of accessing land, and it’s private property interests that, most of the time, are the blockages to the more imaginative alternative ways of being and occupying.”