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The Constitution mandates a land reform process to provide equitable access to land (S25(5)), security of tenure (S25(6)) and restitution (S25(7)). No provisions of the ‘property clause’ may impede the state from taking measures to achieve these commitments.

Overall, it is evident that apartheid patterns of land ownership remain largely intact, despite more than two decades of land reform. It is not entirely clear precisely how much land reform has contributed to changing this picture. As of 2017, the Department of Rural Development and Land Reform (DRDLR) reported that around 8% of commercial farmland has been transferred through all aspects of land reform together. At the same time, some private purchases of land have contributed modestly towards changing the racially-skewed character of landholdings in the country. Land restitution has been slow, and the reopening of the land claims process in 2014, for a further five years, has massively expanded the state’s obligations in a context in which many thousands of ‘old claims’ lodged before the end of 1998 had not, and still have not, been resolved. Estimates indicate that resolving existing claims may well take more than 140 years into the future. Amidst slow progress, there is also growing evidence of elite capture of land reform, by state-connected elites and traditional authorities, often in partnership with corporate interests.

Land expropriation without compensation is possible, the Constitution says so

At the same time, nobody knows who owns what land in South Africa. While the historical divide between approximately 13% of the land being designated as Bantustans or ‘homelands’, and the remainder being white commercial farmland, state land and urban centres, it is clear that these figures no longer reflect reality. But what is the reality now? Despite promises since the 1990s of a comprehensive land audit – including all public and private land – this has not been forthcoming. An inaccurate and incomplete audit of state land, by province, was released b the Department of Rural Development and Land Reform (DRDLR) in 2013. Following this, two further incomplete and unconvincing ‘national land audits’ – first by commercial farmer association AgriSouthAfrica and then by the DRDLR – have failed to clarify the situation. The former used guesswork to assign race to the deeds registry and conflated ‘black’ ownership with ‘state’ ownership. The latter could only identify ownership of 31% of land, as most properties are owned by companies and trusts, the nationality, race and gender of which is invisible at this stage.

Budget allocations have posed a binding constraint on land reform for several reasons. First, the choice to pay market price means that available budget constrains how much land can be acquired. Second, the internal allocation of budget across competing priorities – eg. land acquisition, Recap, 50/50 policy and Agriparks – means that even given a certain budget envelope, redistribution is limited by the diversion of funds to other purposes. Third, the capacity of the Department to implement its programmes is constrained by operational budgets. In addition, the way in which land redistribution has been designed is unnecessarily cost-heavy, as it is both bureaucratic and market-dependent, requiring professional services – usually outsourced to private service providers – in relation to each project.

Staff vacancies in the DRDLR have long been a challenge in terms of the institutional capacity to embark on land reform. While the Department’s overall vacancy rate is just over 10%, the empty posts in the Land Reform programme stand at 26.03% and in the Restitution programme at 21.16%.

The national budgets for land reform and restitution have been in decline for more than a decade now, and have not recovered yet to the peak of budgetary provision which was in 2007/08. Not only have budgets declined in both real and even nominal terms, but also there has being growing diversion of available budget away from acquiring land. One option to improve delivery of land reform while limiting the burden on the fiscus would therefore be to end the diversion of land reform budget to non-land reform purposes: abandon the ill-informed Agriparks programme and remove it from the land reform budget, along with the National Rural Youth Service Corps (NARYSEC) programme and other non-land reform initiatives that are depleting the funds available for acquisition and development of land. This alone would more than double the available funds for land reform, even in the absence of an increase in the budget over the MTEF.

Alternative budget allocation

Total budget allocation for all aspects of land reform from 1995 to 2017/18 has been approximately R62 billion. This is what has paid for both capital budgets (for land acquisition and associated post-settlement support) and current budgets (for staffing national, provincial and district offices) that have enabled the acquisition and/or transfer of 8% of commercial farmland. Arguably, to scale up to transfer of a cumulative total of 30% of commercial farmland by 2030 would require a fivefold increase in the pace of land reform, alongside plugging the holes of ‘beneficiaries’ subsequently losing access to land, and corrupt deals with ‘strategic partners’ and other elites in which ‘beneficiaries’ do not benefit at all. That would suggest that land reform could escalate from an average of 0.36% redistribution and restitution per year, to something more like transferring 1.8% of commercial farmland per year. This need not necessarily entail a fivefold increase in the budgetary provision, if the state is to drive down compensation to landowners.

Legislative and policy change

To realise constitutional rights relating to land, land reform, tenure security and restitution, budgetary changes will not be enough. There is urgent need to halt regressive legislative changes that are underway, and to promote new legal and policy frameworks. The High Level Panel, chaired by former President Kgalema Motlanthe, provides specific recommendations of the key steps that need to be taken to give effect to constitutional provisions.

Priority legislative and policy changes that need to be pursued are:

  1. The development of a Land Reform Framework Bill to give effect to S25(5) and to provide framework legislation for the interpretation and operationalisation of all land-related laws and policies;
  2. The development of a Land Records Bill to create a robust land administration system across tenure types, to provide the basis for realising S25(6) and its requirement for measures to be taken to provide tenure security;
  3. Calling a halt to Parliament’s processing of all pending legislation related to land, in view of the recommendations of the HLP – including the Communal Land Tenure Bill, Communal Property Associations Amendment Bill, Extension of Security of Tenure Amendment Bill, Traditional and KhoiSan Leadership Bill, Regulation of Landholdings Bill, Preservation and Development of Agricultural Land Framework Bill;
  4. The pursuit of further consultation on the Expropriation Bill, to pave the way for its adoption and signing into law, to bring legislation in line with constitutional provisions on expropriation of land for land reform purposes, subject to ‘just and equitable’ compensation;
  5. The development of a new Restitution Amendment Bill to provide clarity as to the processing and status of ‘old’ versus ‘new’ claims, in accordance with the Constitutional Court’s ruling in July 2016 which provides two years for Parliament to adopt legislation to ensure that restitution is implemented in an equitable manner;
  6. Amendment of the Interim Protection of Informal Land Rights Act to make it permanent as a basic level of protection of people holding informal land rights, including 30% of the population living in the communal areas of the former Bantustans;
  7. Clarification of the future of the Ngonyama Trust in order to recognise residents’ de facto ownership of land and the repeal of the Ngonyama Trust Act and reorganisation of governance of land in the communal areas of KwaZulu-Natal to meet the requirements of tenure security in S25(6).