THE EXPROPRIATION BILL NOT A PANACEA FOR SOUTH AFRICA’S LAND REFORM.

“‘Any man who afflicts the human race with ideas must be prepared to see them misunderstood” – H.L Mencken

Introduction:

South Africa’s struggle for national liberation was founded on the land question across the political spectrum. The land question was the Achilles’ heel that prompted liberation movements to take up cudgels against the apartheid regime. The political pulse of the national struggle was dictated by the land question. Most political leaders and activists were murdered, jailed, and others fled into exile as a result of the land question. The paramount item on the agenda of the African National Congress in its conference in Kliptown, Johannesburg in 1955 was the land question. At the heart and belly of the contestation on the issue of land is that land depicts the sovereignty, identity, economic prosperity, sustainable food growth and security, and property ownership and wealth of the nation. The above-mentioned factors bear testimony to a long, painful, and protracted national democratic struggle in South Africa. Land is an emotive and thorny issue because of its indelible and inherent value on human lives. There is no nation that can survive without land. In South Africa, the skewed patterns of land ownership where the white minority owned 70% of the land and the black majority only owned 13% of the land are still a thorny issue even thirty years into constitutional democracy.

Post-Apartheid Land Reform Programme Discourse:

The African National Congress (ANC), as the governing political party post-apartheid, mollycoddled the issue of land in addressing the apartheid historical injustices. It introduced deficient and inadequate land reform which fell short of addressing historical injustices. South Africa’s land reform programme, which constituted land redistribution, restitution of land rights, and land tenure, dismally failed to decisively and efficiently address the land question. Instead, the land reform programme manifested teething problems and pertinent questions. Land redistribution failed to transfer the target of 30% commercial agricultural land to black people within the stipulated time frame of five years from 1994. The large bulk of the commercial land is still in the hands of white people. Thus, in the 2024 national general elections, the land question is still a pertinent issue.

Restitution of Land Rights:

The restitution programme is one of the components of the land reform programme which dismally failed within the 30 years of constitutional democratic discourse. In the Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces [Lamosa] in 2016, it was revealed that 80,000 additional land claims had been lodged with the Commission on Restitution of Land Rights. In 2019, the Presidential Advisory Panel of Land noted that approximately 19,000 land claims had been resolved by the Commission. The Panel further noted that it will take 35 years to resolve all old-order land claims at the rate at which the Commission was dealing with the land claims.

Professor de Villiers cautioned about the underlying core basis of South Africa’s land claim in the following manner.

“A claims-driven process is difficult and even impractical to sustain as the sole basis for land reform. While the restoration of rights is important, the emphasis should also be on development, sound justice, and alleviating poverty, in other words, development issues.” Professor de Villiers’s proposition also came from the backdrop of the failure of the land redistribution programme. The failure of land redistribution was attributed to the unavailability of land and the unwillingness of some landowners to sell the land at reasonable prices. The Food First Information and Action [FIAN] argued that the willing seller, willing market-related approach to the land reform programme failed in the following terms.

“In societies in which the distribution of land is highly unequal, it rather contributes to the further marginalization of landless peasants, indigenous people, peasant women, and other groups that are extremely poor.”

Expropriation Bill not a panacea for skewed patterns of land ownership:

In its further attempt to mollycoddle South Africa’s land reform programme, the South African Government introduced the Expropriation Bill with the desired hope to reconfigure the fundamental skewed land ownership. The Expropriation Bill was hoped to be an effective and efficient instrument to alter the fundamental skewed patterns of land ownership. But, in essence, it fell short of both the legal and political courage to effect any fundamental changes to alter patterns of skewed land ownership. More importantly, the Expropriation Bill is cut and paste or lifted directly from the Expropriation Act of 1975. Like the Restitution of Land Rights Act No. 22 of 1994 and the Extension of Security of Tenure Act [ESTA] 29 of 1997, it is riddled with stringent legal procedures and odious legalese which have the effect of suffocating the desired land reform. It is a delusional piece of legislation that will have no desired effect in fundamentally reconfiguring skewed patterns of South Africa’s land ownership. Advocate Thembeka Ngcukaitobi articulated well when he said that ‘the Expropriation Bill is convoluted and has cumbersome procedures that undermine its transformation intent”. The Expropriation Bill, in its current form, will not alter or go beyond section 25(1) of the Constitution to unblock the undesirability of provision to bring about fundamental change in land ownership patterns. The desired progressive effect to bring about fundamental changes to close the gap of inequalities, alleviate poverty, and land ownership would not be achieved in the distant future. The characterization of South Africa by former President Thabo Mbeki as a country of two nations will remain a stain on South Africa’s future without fundamental changes to skewed patterns of land ownership. In 1998, former President Thabo Mbeki characterized South Africa in the following terms.

“One of these nations is white and relatively prosperous, regardless of gender or geographic dispersal. It has ready access to developed physical, economic, educational, communication, and other infrastructure. The other nation was black and poor, with the worst affected being women in rural areas, the black rural population in general, and the disabled.

The Expropriation Bill to address apartheid historical injustices and bridge the gap of inequalities and alleviation of poverty would never be achieved without any fundamental reconfiguration of skewed land ownership in South Africa. South Africa’s political elite lacked the political courage to alter fundamental patterns of land ownership.