The national and property question in South Africa: Land reform and expropriation

19 April 2018

Colonial conquest, dispossession and apartheid rule in South Africa, all based on capitalist exploitation, have left the historically oppressed and proletarianised majority with either no land at all or almost nothing.

As the Communist Party resolved at its annual national conference held in January 1929, ratifying a resolution that was first adopted by the Communist International, the foundation of the South African revolution was the national question. The practical core of the national question was and still is the land question. The agrarian question was at that time paramount. However, around the agrarian question the issue of minerals, of finite resources, has become increasingly important.

At the centre of the problem is the fact that the African people were dispossessed of their land. They were left with close to nothing. But it was not only the land as an object in itself which was expropriated. The means of production and the wealth that were tied to the land and its productive use were expropriated with it. Property relations in South Africa have since been articulated on a capitalist basis through the exclusion, from ownership, of the historically expropriated, marginalised and exploited.

The economy of South Africa remains primarily land based. Mining, agriculture and farming have always taken the centre stage. All other industries and the development of finance capital were linked directly with mining, agriculture, farming, and then with the mining and agricultural value chains. Private capital accumulation based on our mineral resources remains the decisive factor in our economy and dominates most of our social and political decision making. This despite the promulgation of the Minerals and Petroleum Resources Development Act in the early 2000s nominally transferring ownership of mineral and petroleum resources to the people as a whole.

We cannot by any stretch of the imagination assert that the people are in control of the mineral wealth of our county or even receiving a reasonable share in its benefits. The role of the state has become that of the facilitator of mining rights for private capital accumulation.  The Act as it is at present, though its promulgation was a step in the right direction, is simply a curiosity for future historians.

Land is valuable in many ways.  Land reform must be driven by the imperative to develop, diversify and raise the levels of national production. This must not be limited to farming, agriculture and mining extremely important as they are. South Africa must think about the whole sphere of productive land uses, including transformation of landed property relations and human settlement patterns. The reproduction of apartheid human settlement patterns since 1994 must not be ignored but must be attended to and eliminated through land reform.

It is important to be vigilant throughout the process of land reform. For instance there are those who would like us to believe that de-racialising capitalism by advancing the interests of the aspirant, emergent and other sections of Black bourgeoisie will resolve both the National Question and the Land Question. De-racialisation is important. So is the transformation of gender relations. Both these two national imperatives must find profound expression in land reform. But capitalist production is not the answer to the national, gender and land questions.

Liberation and complete social emancipation are impossible under the auspices of capitalist production. There will be no liberation and complete social emancipation for so long as the exploitation and domination of one person or social group by another exist, for so long as the class inequality on which both are based exists, for so long as its consequences such as unemployment, poverty and social insecurity exist. Changing the colour of the exploiters will not emancipate the exploited and the inequality between the exploiters and the exploited.

Expropriation without compensation

Let us now look at the important issue of land reform from the point of view of our Constitution, in particular with regard to the contested question of expropriation with or without compensation.

On the one side, there are conservatives, those who do not want any change altogether, or those who stand firmly behind capitalist market based compensation. Then there are neo-liberals. The latter emphasise the so-called willing buyer willing seller “principle”. This neo-liberal argument is also conservative in so far as its results include the preservation of the status quo, a direct result of colonial dispossession and apartheid rule.

In particular, the 24 years of our history since our April 1994 transition from apartheid to the current democratic dispensation proves that there have been very few if any willing sellers. At most, instead of land reform, the capitalist property market has made matters worse for the working class and poor. Land has largely shifted from private hands to private hands, to those few private corporations and individuals who have the astronomical amounts of money demanded by those who place it on sale. The private property market is thriving while land reform and land restitution are negligible.   

On the other side of the expropriation divide there are those who are calling for expropriation without compensation. Most of them have no conception of how the mechanism will work and which land should or should not be expropriated.  Another group are urban based “business people” who would like to add a farm or two to their business portfolio. Meanwhile, the majority of the descendants of the formerly dispossessed have become urbanised  and are too busy fighting the dispossession of the houses which they have now purchased or are trying to purchase in the cities to worry about the dispossession which happened to their grandparents. There is a deafening silence coming from both government and romantic radicals on the continuing daily dispossession of the working class by the major banks and criminal syndicates involved in property fraud.

Another dimension is represented by the progressives and revolutionaries who stand a chance to put the way forward to the front.

What does our Constitution say about land and expropriation?

Our Constitution prohibits arbitrary deprivation of property. Instead, it provides for expropriation of property FOR A PUBLIC PURPOSE and in the public interest but only under law of general application. The points about a PUBLIC PURPOSE and in the public interest are interesting. A public purpose is obviously not a private purpose. In other words, at least in so far as this provision is concerned, you cannot expropriate property from one set of hands using it for a private purpose to another set of hands that would also use it for a private purpose and then claim that you are acting constitutionally.

Nonetheless, by public interest the Constitution expressly states that it includes a national commitment to land reform and to reforms to bring about equitable access to all South Africa’s natural resources. It further makes it clear that its definition of property is not limited to land. However, in the Constitution expropriation is categorically subject to compensation. But this is not a complete story. Before we return to this point let us look at where the power to determine the amount, time and manner of payment of the compensation rests, and at the other Constitutional provisions regulating expropriation.

The Constitution is categorical that those affected by the expropriation must agree to the amount of compensation and the time and manner of its payment. If they do not agree, a court of law must either approve or be the one to take the decision on the three questions of the amount, time and manner of payment of the compensation.

The Constitution further prescribes that the current use of the property; the history of its acquisition and use of the property; THE MARKET VALUE OF THE PROPERTY; the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and the purpose of the expropriation must be taken into account when the decision on the amount, time and manner of payment of the compensation is made. The decision must, on that Constitutional ground, accordingly be just and equitable. Further, according to the Constitutional provision, the decision must reflect an equitable balance between the public interest and the interests of those affected. 

The Constitution compels the state to take reasonable legislative and other measures, within its available resources, to foster conditions which enable South African citizens to gainaccess to land on an equitable basis. It further entitles a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices either to tenure which is legally secure or to comparable redress – on condition that the measure is – and to the extent – provided for by legislation (“an Act of Parliament”).

The Constitution further entitles a person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices – to the extent provided by legislation (“an Act of Parliament”) either to restitution of that property or to equitable redress.

The duty of Parliament

To the extent the Constitution calls for legislation (i.e. “an Act of Parliament” or a series thereof) or “law of general application”, Parliament is required to pass that law.

Some of the above provisions, but in varying degrees, have been implemented since 1994. The question, in order to move forward, is first and foremost an evaluation of the extent of their implementation, the challenges encountered and the pace of progress. There have certainly been problems.

It would be naïve to suggest that the total amount of money required to ensuring full delivery on the national commitment of land reform and equitable access to land has not been a problem. On the contrary, it has been a serious problem, in particular, when viewed from the narrow lenses of the market value of the property that, among other conditions, must be taken into account when a decision is made about the amount, time and manner of payment of compensation.

The fact that there must be public money budgeted for private compensation is itself an influential factor that does weigh heavily on the pace of progress. That there are many other, and for that matter also pressing priorities that public finances must pay attention to.

The money issue is a serious problem in many ways. It is definitely part and parcel of the factors that have led to South Africa’s extraordinary slow pace of land reform. Take for example provinces such as Gauteng and metropolitan municipalities where a mere stand, a few tens of square metres sold under the private property market can cost over a million rands if not more.

The unfulfilled Constitutional duty   

An examination of the Constitution and the reasons behind the snail’s pace of land reform in South Africa suggests that there is at least one main provision under the property clause or section 25 of the Constitution that has not been implemented since 1994. This is the second last provision, subsection 8 of the clause, which provides thus:

NO PROVISION OF THIS SECTION – i.e. section 25 or the property clause of the Constitution – MAY IMPEDE THE STATE FROM TAKING LEGISLATIVE AND OTHER MEASURES TO ACHIEVE LAND, WATER AND RELATED REFORM, IN ORDER TO REDRESS THE RESULTS OF PAST RACIAL DISCRIMINATION, PROVIDED THAT ANY DEPARTURE FROM THE PROVISIONS OF THIS SECTION IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 36(1).

In order to redress the results of past racial discrimination with regard to land, water and related reform, the Constitution therefore clearly provides for a DEPARTURE –including from compensation for expropriation and related provisions – as long as the DEPARTURE is in accordance with section 36(1).

What does section 36(1) say?

Section 36(1) provides for the limitation of the rights provided for in the Bill of Rights, which includes the rights provided for in the property clause. This is what section 36(1) provides:

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose.

What then must be the immediate action taken to move forward?

It is clear that Parliament must adopt legislation, “law of general application”, that is an “Act of Parliament” to give effect to the DEPARTURE provided for in subsection 8 of the property clause in order to accelerate the pace of redressing the results of past racial discrimination and conclude the process of land, water and related reform.

This is not the only option, but the possibility is that other options may take longer.

One of the other options is the amendment of the property clause without any legislative and legal test – i.e. without first adopting legislation to give effect to in particular, to theDEPARTURE provided for by subsection 8 of the Constitution.

It would however be reasonable to first and foremost fully implement the enabling provisions of the Constitution to speed up the pace of land reform, restitution, redress and advance equitable access to land before considering amending it. The rationality of the amendment could in that way derive its premise from the fact that it is a response to unresolved barriers or impossibilities inherently imposed by the letter and spirit of the Constitution – against moving democratic transformation forward – during its full implementation. It is better to avoid irrational conduct, even if it is convenient or even if one can master the support required on any matter.

In addition, any amendment of the property clause, which could of course take longer than legislation, may itself be required to be in sync with section 36(1) unless it is simultaneously accompanied by a concurrent amendment of section 36(1) in order to avoid a contradiction.

Socialisation – the sustainable future  

Land reform underpinned by capitalist private interests is not the answer. It is a problem. Moving land from one set of capitalist private hands to another will still leave the majority, now and in future, landless and excluded from land ownership. The ultimate aim of land reform and transformation of ownership of natural resources – the shared heritage of society as a whole, and of which no human being as a single individual or private company has capacity to create – must be socialisation; collective ownership; ownership by the people as whole.

On the above score – and this must be elaborated legislatively as part of the immediate tasks of democratic transformation in South Africa – land must be allocated equitably for productive use. Unused land must be allocated to those who will use it productively. However, these tasks must be buttressed by, and go hand in hand with, the Freedom Charter’s provision for the state to support – the workers, and based on redress – with material resources and capacity building. This must include education and training but must not be confined to one going to some school, college or university distant from production but should be expanded and delivered through workplace training programmes. Co-operatives development must be encourage and accordingly supported to play an increasingly predominant role.     

The same must apply, in accordance with the Freedom Charter, to ownership of monopoly industries. As part of this ultimate goal of socialisation, there must be a heavy progressive or graduated income tax to look after societal needs, with the working class as the immense majority and everyone supported to exercise their right – and responsibility – to work.

On this score, and this principle must be elaborated as an immediate task, land must be allocated.

The ultimate goal of socialisation is not opposed to private ownership. Everybody’s right to own property – other than natural resources – must be protected for so long as that is a product of their own hard work and not labour of others. The private accumulation of property from other people’s hard work, rather than from one’s own hard work, is actually an act arbitrary deprivation of property. This capitalist exploitation is in essence expropriation without compensation. True social justice and emancipation will abolish such and other forms of unjust social relations of property. 

We must now build a social movement aware not only of the racially based expropriation of the past and committed to the elimination of its legacy, but also of the desire of the black élite to act as “representatives” of the majority and thus continue to deprive them of their birthright in the name of “black empowerment”. As part of this effort it is crucial to build sufficient capacity both to withstand and overcome conservative reaction opposed to democratic transformation. This must include decisive action against those who would seek to hijack land reform in order to become the new exploiters of the masses.  

Alex Mohubetswane Mashilo is SACP Head of Communications & Spokesperson, and writes as full-time professional revolutionary, 19 April 2018