Introduction

The African National Congress government's approach to the land question in South Africa, and much of the broader debate around it, is seemingly governed by two percentages. The first is, as President Jacob Zuma put it in the ANC's "January 8th statement" earlier this year the claim that the 1913 Natives Land Act "dramatically robbed the indigenous people of our country of 87 percent of their land, and turned them into pariahs and wanderers in the land of their birth."

The striking discrepancy in land allocation between black and white is mentioned in the Road to South African Freedom, the 1962 programme of the South African Communist Party, and the founding document of much of contemporary ANC ideology. This document stated that "87 per cent of the land is reserved for White ownership... The eleven million Africans, two-thirds of the population... have been robbed of their ancestral lands. The thirteen per cent of land set aside for African occupation - the so-called Reserves, or ‘homelands' - are grossly overcrowded and the soil exhausted."

The second, that the ANC had committed itself, as President Zuma put it in the same speech, to "transfer 30% of the 82 million hectares of agricultural land which was white-owned in 1994 to black people by 2014." This objective was contained in the ANC's 1994 Reconstruction and Development Programme which committed the new government to redistributing within five years "30% of [agricultural] land through redistribution and restitution." This deadline was subsequently extended to 2014.

The failure of the ANC government to come close to reaching the 30% target next year - "given the slow pace of land reform" - was used by President Zuma to justify the replacement of the "principle of ‘willing buyer; willing seller' which has not sufficiently addressed the problem, with the ‘just and equitable' principle when expropriating land for land reform purposes."

The following two articles will seek to revisit the land question in South Africa. The first by looking at the 1913 Land Act through the lens of the 1916 report of the Commission that was set up to delineate Native and non-Native areas in South Africa. And the second by re-examining the record of government post-1994 in redistributing land through restitution and redistribution.

The racial division of the land in 1913

The racial distribution of South African land ownership before 1994 was fixed for decades by the 1913 Natives Land Act and its successor the 1936 Natives Land and Trust Act. At the time the 1913 Act was drafted the total population of the Union of South Africa was, according to the 1911 Census, 5 973 394 persons; of whom 4 019 006 (67.3%) were "Natives", 1 276 242 "Europeans" (21.4%), 525 943 "Coloureds" (8.8%) and 152 203 "Asiatics" (2.5%).

Section 1 of the 1913 Act placed a prohibition on the inter-racial "purchase, hire, or other acquisition from a person... of any such land or of any right thereto, interest therein, or servitude thereover" between Natives and persons other than Natives - except the permission of the Governor General. It also stated that from the commencement of the Act "no person other than a native shall purchase, hire or in any other manner whatever acquire any land in a scheduled native area", without government approval, and no Native could do the same outside of them.

The Act thus restricted both the purchase of land by Natives and, perhaps more importantly, tenancy or sharecropping. The Act defined the hire of land as the occupation of land in return for the payment of rent in money or the rendering of a "share of the produce of that land, or any valuable consideration of any kind whatever other than his own labour or services or the labour or services of his family."

The provisions of the Act did not initially apply to the Cape Province - to the extent to which they interfered with the workings of the non-racial franchise there - and were also put on hold, as they related to the hire of land, in Natal and the Transvaal, pending the findings of an inquiry. The Act also did also not affect existing title to land. The Act did however have an immediate and devastating effect on many independent sharecroppers in the Orange Free State, as movingly described by Sol Plaatje in his Native Life in South Africa.

The Act required that the Governor-General appoint "a commission whose functions shall be to enquire and report" on what areas "should be set apart as areas within which natives shall not be permitted to acquire or hire land or interests in land" and "what areas should be set apart as areas within which persons other than natives shall not be permitted to acquire or hire land or interests in land."

It added that for the purposes of establishing such areas the government may acquire land. If no agreement could be reached with the owners of the land then they may expropriated according to the prevailing provincial law on expropriation for public purposes. If there was no such law in a particular province then the provisions of Proclamation No. 5 of 1902 of the Transvaal, as amended, would apply. This essentially required the payment of market-related compensation - as determined by two valuers one appointed by the government and the other by the owner.

The Natives Land Commission report

The Natives Land Commission, chaired by retired Judge Sir William Beaumont, submitted its report in 1916. It found that the various forms of Native-owned (including mission owned) land covered some 11 million hectares (8.9%) of the total area of the Union of South Africa. Overall 15 249 246 hectares (12.5%) were occupied exclusively by Natives. Unoccupied Crown-lands (i.e. state owned land) constituted a further 12.5% of the area of South Africa and European-owned or leased farmland 74% (see Table 1 and Table 2 below.)

Table 1: Racial ownership and occupation of the land in 1916 (in hectares)

* Native reserves or locations, mission lands and mission reserves and Native-owned farms. + includes Crown land leased to Europeans

Table 2: Racial ownership and occupation of the land in 1916 (in percentages)

The Commission estimated that 48.6% of the Native population of 4 417 645 lived on Native-owned land and 58.7% on all Native-occupied land. A further 29.1% lived on European-occupied and owned or leased farms and 12.2% in the urban areas. See Tables 3 and 4.

Table 3: Approximate Native population on the different categories of land

* Native reserves or locations, mission lands and mission reserves and Native-owned farms. + includes Crown Land leased to Europeans

Table 4: Proportions of Native population on the different categories of land (in percentages)

As is evident from the tables above there were significant variations between the provinces in the proportions of these different categories of land and the Native population living on them. The Orange Free State (where Native land purchases had historically been prohibited) had very little Native-owned land within its borders and the vast majority of the Native population (79.4%) lived on European-owned farms.

The Cape of Good Hope had 6,6m ha of Native-owned land (this figure may have included some Coloured-owned land) located mainly in the east of the province - on which 75.7% of the Native population resided.

43.1% of the area of Natal meanwhile was either owned (30.4%) or exclusively occupied (12.7%) by the Native population. In the Transvaal meanwhile similar proportions of the Native population lived on Native-owned land, Native-occupied (but not owned) land, European-owned farmland and in the urban areas.

In its report the Commission stated that in delimiting the Union of South Africa into two classes of land - one reserved for Natives and the other for persons "other than Natives" - it was guided by two particular considerations: Firstly, "The disturbance of existing lines of occupation as little as possible"; and, secondly, "The delimitation, where practicable, of large Native areas in preference to isolated and small areas."

The Commission noted that in any delimitation of the Union into separate areas "there must inevitably be cases of European-owned lands failing within Native areas and Native-owned lands falling within European areas. It does not appear to the Commission to be practicable that a general expropriation of these particular lands as contemplated by section four of Act No. 27 of 1913, can be carried out."

It recommended then that "where European-owned land falls within a Native area, existing rights should not be interfered with until the Government decides to exercise its rights of expropriation or the owner desires to sell. In the event of the owner desiring to sell his land, and not being able to obtain a Native purchaser, then the Government shall either:  Expropriate the same, or Grant permission for its sale to an European. That similar conditions vice versa should attack to Native-owned lands falling within an European area."

Beaumont's minute

Beaumont appended an extensive minute to the main report. He noted that the report had been drawn up to fit within the limited terms of reference. However, the commission had collected extensive evidence and heard testimony from Natives and Europeans across the Union. The purpose of the minute then was to raise matters of importance, "and which require to be borne in mind when determining on the practical application of the Act, and to suggest how far and in what manner the objects aimed at by the Act may best be attained."

The two principal objects of the Act, Beaumont continued, were, firstly, the segregation of the "ownership and occupation of land by Natives and other persons, respectively" and, secondly, to "suppress the evil of what is called ‘squatting' or the unauthorised occupation by Natives of Crown and private lands."

Beaumont noted that the European view of the Act varied considerably, ranging from those who believed the "Natives should be free to purchase land where they like" to those who thought the existing "Native reserves are quite sufficient" and no more Native land purchases should be allowed. He added however that "most, though by no means all, even in the Orange Free State, view the Act as a necessity, and regard it as designed to do away with the share-system which has been so largely adopted in many parts of the Union."

Among Native opinion, Beaumont wrote, "the light in which the Natives of the Orange Free State regard the Act requires special mention, because in that province there is a considerable body of Natives who have for years - some of them all their lives - lived as independent tenants under the share-system on private lands and who are now threatened with sudden and summary ejectment. These Natives complain bitterly of the enforcement of the Act before they have had time or opportunity to consider how it is likely to affect them or to make representations respecting it to the Government." However, the "great mass of the Native population in all parts of the Union are looking to the Act to relieve them in two particulars - the first is to give them more land for their stock, and the second is to secure to them fixity of tenure."

Beaumont explained that in "defining the proposed Native areas the Commission took the scheduled reserves as the basis of each area, then, so as to link together separated reserves and to secure the total area required, it added the lands adjacent thereto, such lands being selected in the following order of preference: -

(1) Mission lands'

(2) Native-owned lands;

(3) Crown lands;

(4) Unoccupied European-owned lands;

(5) European-owned lands solely occupied by Natives, and,

(6) Lastly, where this could not be avoided, lands in actual occupation by Europeans."

Although, Beaumont noted, the Commission had wanted to frame its recommendations on broad lines - setting out large compact Native areas, as in the Transkei - it had been prevented from consistently doing so "on account of the objections which were raised to the inclusion of European-occupied farms within proposed Native areas. The nature and extent, therefore, of the proposed Native areas have been largely determined by this objection." He continued:

"It is, in fact, too late in the day to define large compact Native areas or to draw bold lines of demarcation; for reserves, mission lands, Native farms and other lands solely occupied by Natives are, with the exception of the Transkeian Territories, scattered in all directions and hopelessly intermixed with the lands owned and occupied by Europeans, whose vested interests have to be considered; and any attempt to deal with this matter in a drastic fashion, involving wholesale removals, would not only entail an enormous expenditure but would create wide-spread dissatisfaction."

"Another various serious consideration" Beaumont wrote, "is the difficulty of removing any considerable number of Natives from land occupied by them, especially if these are ancestral lands. For no matter how poor the soil or how bad the climate, Natives cling to the localities occupied by them with the greatest tenacity... Everyone is agreed that any attempt to forcibly remove Natives is inadvisable, and sure to lead to trouble."

In seeking to effect the exclusive occupation of defined areas by Natives and non-Natives respectively, Beaumont advised, it was absolutely essential that a "gradual process" be followed, probably extending over many years: There should be "as little interference as possible with vested rights and existing conditions"; the right of expropriation "should be resorted to only when the necessity arises"; and finally the "ejectment or removal of Natives from the lands they now occupy should be carried out slowly and considerately."

On the Reserves Beaumont noted that the reservation of Native areas had generally been on a "liberal scale, and adequate for the then wants of the Natives, but their number of increased to such an extent both by ingression and by natural increase that they have long overflowed these reserved areas and located themselves on Crown and private lands." In some cases though "no provision was made for some tribes or portions of tribes. Those not provided for were left on the lands they occupied, and such lands were surveyed into farms and sold or granted to Europeans, or were retained as Crown lands."

There were thus in several localities "whole tribes living on private lands which they have occupied for generations. They regard these as their ancestral lands, though they have become the property of private owners, to whom they pay, annually, large sums by way of rent.These Natives have no fixity of tenure, they are always in fear of the enforcement of the Squatter's Law, and they never know when their rents may be raised or the land sold and fresh conditions of occupation imposed."

Beaumont advised that in the newly designated Native areas tribally occupied Crown lands should be converted into Reserves, while European owned land solely occupied by Natives in such areas should be "at once disposed of for Native occupation". In the case of lands in non-Native areas which are European owned but have long been occupied by tribes "such Natives should be left undisturbed, except for the imposition of a tax or license, until such time as the land is taken up for European occupation, when the Squatters Act would apply."

On the quality of lands in the Reserves Beaumont had this to say: "The reserves in the different parts of the Union vary immensely in climatic conditions, in the fertility of the soil and its agricultural capabilities and in the supply of water. Some areas, such as the whole of the Transkeian Territories, many of the locations in Natal and Zululand, the Thaba ‘Nchu and Witzieshoek areas in the Orange Free State and portions of the Transvaal, are all that could be desired; but in the northern, north-eastern and western portions of the Transvaal, Griqualand West and Bechuanaland most of the Native lands are of poor, sandy or rocky soil, with great scarcity of water and uncertain rainfall; their agricultural capabilities are extremely limited, and large tracts are malarial."

The report of the Commission had stated that there were 7,3m hectares of Crown lands reserved for particular purposes (such as game reserves, forests, future settlement etc.) and another 7,8m hectares not reserved for any special purpose. "It might be thought", Beaumont noted, "that on these lands there would be ample scope for the creation of Native areas. This, however, is not the case, Large portions are practically waterless deserts or situated along the broken ridges of the Drakensberg, and are quite unfit for human habitation."

The delimitation of the Native and non-Native areas

In delimitating Native and non-Native areas the Commission appears to have taken a fairly cautious and conservative approach. In Natal, the Cape of Good Hope and the Orange Free State the proportions of land solely occupied by Natives were almost identical to the proportions recommended by the commission for delimitation as Native areas, though the areas did not necessarily completely overlap. It was only in the Transvaal that the commission recommended a greater proportion of land be scheduled for Native occupation (18.3%) than was currently solely occupied by Natives (15.2%).

Overall, the Commission recommended an expansion of the scheduled areas from 7% of the land area of South Africa to 12.8%. See Table 5. Again this was almost identical to the percentage of the area of South Africa the Commission believed to be solely occupied by the Native population (12.5%).

Table 5: Recommendations of the Commission for the expansion of the scheduled Native areas of South Africa

The areas which the Commission recommended for delimitation as exclusively Native areas were set out in the map below. As can be seen the great bulk of the proposed areas (in green) stretched along two bands - one in the north east of the country and the other below and along the eastern escarpment. The flat and relatively well watered regions of the Eastern Free State, the Highveld and the Western Transvaal - in the middle - were excluded mainly, it seems, as they were regarded as highly desirable by European farmers.

It is evident from this map that there were no defined Native areas in the western and north-western parts of the Cape Province. "The explanation of this" Beaumont wrote in his minute, "is that this area, originally occupied by Bushmen and Hottentots, and still partially occupied by the remnants of those races, was never occupied by any of the Bantu races and, in the opinion of qualified persons, is never likely to be occupied by them under any circumstances."

It seems that for the next twenty years the status quo remained largely intact - with little land purchased by the state to add to Native areas and few forced removals. Hermann Giliomee notes that in the aftermath of the 1913 Act "many enterprising sharecroppers in the Free State moved north into the Transvaal. By the mid-1920s more than 90 per cent of arable farming in the Western Transvaal depended on sharecropping." William Beinart that "For the most part [the 1913 Land Act's] provisions were not enforced through the courts. The government accepted that the promise of extra land for African reserves should be fulfilled before farm removals were sanctioned - a task hardly begun until the 1936 Native Land and Trust Act was passed."

The 1936 Natives Land and Trust Act established a trust to purchase additional land to add to the scheduled areas, as originally envisaged by the 1916 commission. This legislation also saw the shifting of Native voters in the Cape Province onto a separate voters roll and thereby the extension of the provisions of the 1913 Act to that province.

Racial land redistribution 70 years on

To the extent that Parliament subsequently gave effect to the recommendations of the 1916 Commission the effect was to freeze the proportions of the land in black and white hands at this particular point in time. Productive black tenant farmers on white-owned farms, particularly in Natal, the Free State and Transvaal, were prevented from securing title to the land they worked (or even aspiring to do so), while any further alienation of communal lands in the Native areas was also arrested.

Strikingly, the overall proportions set out in the 1916 Land Commission's report - for Native land (12.8%), European occupied and owned farmland (74%) and state land (12.4%) - would remain largely unchanged eighty years on. In March 1983 Minister of Co-operation and Development, Dr Piet Koornhof, reported that in terms of the 1936 Development Trust and Land Act 4 917 898 ha had been acquired by the South African Development Trust. The SADT land holdings amounted to 7 400 000 ha of land. Overall, the total area of the then homelands was 16 024 573 ha (or 13.1% of the total area of South Africa.) Koornhof also provided a breakdown of the sizes of the individual homelands. See Table 6. By that time the population had grown - according to a preliminary 1982 government estimate based upon the 1980 census - to 24,8 million people of whom 4,5m were white, 2,6m Coloured, 821 320 Indian and 16,9m black.

Table 6: The extent of the homeland areas in 1982[i]

Source: SAIRR, Survey of Race Relations 1983

In that same year the Surplus Peoples Project reported, in an exhaustive five volume report, that 3,5m people had been subjected to removals since the 1960s as part of the National Party government's apartheid and homeland programmes. The eviction of black tenants from white farms had affected an estimated 1 129 000 people, while the removal of black South Africans from black owned property in "white areas" had affected a further 674 000 individuals (see Table 6).

The project estimated that another 2 million black South Africans were at risk from forced removals. Under growing international pressure, including from amongst others British Prime Minister Margaret Thatcher, Minister of Co-operation, Development and Education Gerrit Viljoen announced the suspension of forced removals in February 1985.

Table 7: Number of forced removals according to the 1983 Surplus Peoples Project report

Source: SAIRR, Race Relations News, July 1983

Land distribution at the time of the transition

At the time of the transition then at least 13.14% of South Africa's land fell in the former homeland areas (some sources put the figure at 14.2%). And another 12% or so passed into the ANC government's hands as state land.

In 1995 the Department of Land Affairs estimated that the national and provincial governments owned 26% (or 32m hectares) of the total land area of South Africa. According to the SAIRR's Race Relations Survey of 1995/1997 "This included land owned by both national and provincial governments in urban and rural areas, but excluded land owned by local governments (which is not defined as state land)." In the Northern Cape, Free State, Western Cape and Gauteng there was little to no former homeland land. In KwaZulu-Natal, the Eastern Cape, the North West and Limpopo however the former homelands constituted around between a quarter and a third of the area of those provinces.

It is worth noting that mention of the 87/13 divide between "white" and "black" land ownership made sense in the context of the National Party government's homeland policy which sought to progressively exclude blacks from "white South Africa". During this period it was reasonable to add the land owned and administered by the white state to the white total. References to 87% of the land being in white hands post 1990, however, were actively misleading.

The 87/13 (or more accurately 74/13) differential was also distorted by the absence of any homeland areas in the mostly arid (and thinly populated) western and north-western areas of South Africa and which had not been areas of original black African settlement.

This is of importance in understanding the reasons for the failure of the ANC government to reach its 30% land redistribution target - which will be the subject of the second instalment in this series.

This article was published with the assistance of the Friedrich-Naumann-Stiftung für die Freiheit (FNF). The views presented in the article are those of the author and do not necessarily represent the views of FNF.

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