24/05/2018 05:15 BST | Updated 24/05/2018 12:05 BST

'It's Time For The ANC To Get Land Reform Right'

"Compensation for expropriation is not actually about compensation – perhaps not even about land."

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Placing the ANC presser in the land-reform context

In 2011, the department of rural development and land reform's green paper on land reform already diagnosed the problem by stating: "There is a strong view that the real problem in land reform in general... may be that of a total system failure." That strong view was, in fact, a strong reality — one that created an opportunity for populism to grow, and for groups on both sides of the extremes to hijack the narratives.

At a press conference on May 21 this year, Enoch Godongwana presented a press release explaining that what happened at the weekend was a workshop to provide the national executive committee (NEC) with ideas for a way forward.

But what did the ANC say, and is it still in line with the legal position and constitutional framework as it stands?

Siphiwe Sibeko / Reuters

The press release started by stating that the ANC would defend the values of the Constitution with the transformative impulses and democratic intentions that they hoped would be strengthened and clarified in the constitutional review process. This is positive, as it situates the conversation within the realm of the (transformative) Constitution.

The ANC announced that it will immediately use section 25 of the Constitution to press ahead with expropriation of land without compensation as a test case. This can trigger the owner or interest groups to take the case to court, for the court to announce on. The fact that the presser uses the words "in certain circumstances" indicates that expropriation without compensation is not a blanket approach, but a contextual question. In the case of Nhlabathi vs Fick, this possibility was alluded to, although the court did not rule on it.

So, what circumstances might these be? In the explanation at the presser, reference was made to "labour tenants". The 22,000 mentioned in the press release refer to the labour tenants who submitted valid claims in terms of legislation and still await finalisation of the claims. Ramaphosa also indicated this in his state of the nation address.

Labour tenants are people who have lived on the land for generations. But more than farm workers, labour tenants farm on the land in exchange for their labour. These are farmers who want to utilise the land for farming and who can already farm — and as such effecting land reform in that context will not interrupt food security.

Siphiwe Sibeko / Reuters

When the labour tenant is awarded the land, that piece of land is expropriated. The question is whether compensation should be paid in these instances. "The Constitution requires "[t]he amount of compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interest of those affected". In other words, when we calculate compensation, we need to balance the right of the landowner with that of the public (in land reform) and the labour tenant. If that balancing exercise results in R0 compensation, then that is still within the Constitutional framework. But that, of course, is a contextual question.

The other suggestion was to pass the Expropriation Bill and the Land Redistribution Bill. While this suggestion is laudable, one would think that if the state could stagger along without finalising the Expropriation Bill since 2008, it might as well wait another few months to see if the public participation process does not perhaps suggest adjustments to the Expropriation Bill before enactment.

In a change from the Zuma era, the summit also noted that the Motlanthe high-level panel suggested engaging with traditional leaders and communities living on communal land. In the explanation, it talked about the "democratisation" of communal land. This is an important point, as the people who have most been expropriated of their land rights without compensation in South Africa to date, are people living on communal lands. The legislation to protect communities are not adequate, and communities are sometimes at the mercy of the whims of traditional leaders, especially those who conclude deals with mining companies.

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Urban land

Perhaps underplayed in the general discussion on land reform is the issue of urban land redistribution. This has been a pressing issue for years, with most people forced to live on the outskirts of cities, spending much time and money commuting to and from their employment. Recent protests in Cape Town showed the dire need for mixed-income housing in the city centre. In the city of Johannesburg, Mayor Herman Mashaba started talking about expropriating hijacked buildings for low-cost housing.

This is a step in the right direction, although it must also be approached with caution regarding people already living in these buildings. These are urgent problems that the state and municipalities must give attention to, as the inertia of the past 20 years will no longer simply be tolerated — as the 400+ illegal land occupations last year signalled.

In the agricultural context, where this debate has mostly been situated, the ANC called for an agrarian revolution as a key component of land redistribution, in which smallholder farmers are promoted, working together with emerging and existing farmers.

This will indeed require a rethink, taking into account the complex nuances and accepting that there is not a "one-size-fits-all" solution in agriculture. Promoting smallholder farmers should arguably include post-settlement support that also enables those farmers to enter the value chain in farming. Agricultural unions such as AgriSA and funds such as the Vumelana Advisory Fund have been experimenting with different models of collaboration that can be built on to include the private sector. But often what is missing is official government recognition

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Another element in the agricultural sector is the promise to secure the rights of farm workers and protect them from eviction. Farmers can evict farm workers in certain circumstances, but must do so in terms of legislation. A report found that 99 percent of evictions do not take place in terms of the act. The basic minimum in this regard, therefore, needs to be enforcement of existing legislation and ensuring that farm workers have recourse to law in cases where evictions are unlawful.

The upside of the whole constitutional review process has been the way in which it brought the land debate into the public realm, where think tanks and cross-sector conversations helped distilled the core issues, but also, more importantly, suggested creative ways forward. The general consensus is that the problem in land reform does not lie in the obligation to pay compensation, but rather a system failure fuelled by the lack of political will to drive the process.

My diagnosis is that the conversation about compensation for expropriation is not actually about compensation, and perhaps not even about land. It is about missed discussions on reparations, an incomplete restorative justice process, and national identity and cohesion. And those conversations also need to take place somewhere.

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The problems are being identified; lines are being drawn. People in South Africa will in the next few months participate to highlight their plights. It is time for the ANC to listen to the voices of the people.

The ANC stated that this is "a call to action". A breakaway, if 24 years later, from the past. To build a South Africa that belongs to all.

It is time for the party to act on its promises. We will wait, cautiously optimistic that this time it will get land reform right.

But we will not believe that the ANC is addressing the land reform issue, that they have jumped into action, until they do.