Are Illegal Land Occupations About Justice? Nah, It's All Politics

It is political will, not the law, that stands in the way of effective land reform. In the meantime, the landless are being used in a ballot-box tug-of-war.
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The motion on the review and possible amendment of section 25 placed land reform on the table for debate and on the tongues of the people in South Africa. By now most people are slowly realising that expropriation does not mean that private individuals can occupy land, that expropriation is a process, and that expropriation "does not see colour" – it is possible to expropriate land from any owner, as long as it is for a public purpose (or in the public interest), done in terms of the law, and compensation is paid.

In terms of statistics, a picture emerges not of a land hunger for agricultural land, but rather that the real problem we are facing with regard to ownership and tenure lies in the cities and the peri-urban areas.

In the meantime, the (perceived) increase in illegal land occupation was attributed to this motion (with some media erroneously calling it "land grabs", while "land grabs" have a very specific meaning in the rest of the world). Elsewhere on Twitter people refer to the (still illegal) occupation of land as "expropriation without compensation".

But it is only the state that can expropriate property. And herein lies the trick: even if no compensation is payable, we will always have to rely on the state to acquire the land, and to transfer the land to beneficiaries. And in the absence of political will to exercise that power, there is very little one can do to enforce it. The High-Level Report, however, did not identify the problem with acquisition alone.

Linked with the issue of acquisition is: who are the beneficiaries, and how will they be supported? And what about the numerous failed projects that were captured by elites who bypassed the real beneficiaries? While expropriation is a useful tool to acquire land, it is therefore but one of the steps in the process of land reform.

The fact that the land invasions are wrongly termed expropriations does not make them less worrying, because once a structure resembling a house is erected on the land it is fairly difficult and costly to evict people. A lengthy and expensive court process may well mean that owners are eventually be forced to sell their land to the municipality, as recently happened in a case in Cape Town. But it is still not expropriation, unless the state serves an expropriation notice on the owner, and expropriate in terms of the established lawful procedures.

But political talk on land is not about legalities. It is not about uplifting the poor or addressing the issues in a meaningful, lasting manner.

In terms of jurisprudence, landowners may have to bear temporary interference with their property rights. But the courts also make it clear that it is the duty of government to provide access to housing in terms of section 26 of the Constitution. In a democracy, it is the democratically elected government that legislates on land reforms that need to be implemented too. The judiciary mediates and adjudicates. The framework must remain the rule of law. Anything outside these parameters is unlawful.

There are various options for the state in the urban setting to acquire land through expropriation. For instance, in terms of section 9(3) of the Housing Act 107 of 1997, it is possible for municipalities to acquire land for the purposes of housing development in terms of any national housing programme. There are talks of the city of Johannesburg expropriating abandoned buildings for redevelopment into affordable housing. This would then be an instance in which expropriation is used to fulfil the constitutional right to access to adequate housing.

Last week, in the call for the unlawful occupation of land, it was stated that the law of colonisers cannot be followed. Why must there be adherence to paper (title deeds) at a cost of the people (who need access to land)? These are not unfamiliar questions in the context of decolonisation of law.

However, if we want to get rid the Constitution, legislation, and the Roman-Dutch law on which land ownership and registration is largely based, surely this must happen in terms of a democratic process, and not by the decree of a person or a party?

But political talk on land is not about legalities. It is not about uplifting the poor or addressing the issues in a meaningful, lasting manner. It is all about an elite fight to see how the electorate can be used as political footballs to be kicked around until an election goal is scored. And this often comes at a cost for the poor, who are still no better off than before, and who may now have to face being criminalised for trespass and further evictions.

As far as the motion to review section 25 is concerned, my previous concerns will be reiterated. Expropriation has not really been used by the state to acquire property, and there have been so few judgments on what "just and equitable" compensation is. It is therefore impossible to lay the blame solely on expropriation as a tool.

It would be useful to start by promulgating the Expropriation Bill, and for the state to use the powers they actually have to drive land reform effectively.

It is political will, not the law, that stands in the way of effective land reform.

Elmien du Plessis is an associate professor in law at North-West University. She teaches land reform, indigenous law, property law and interpretation of statutes.