FREQUENTLY ASKED QUESTIONS ON LAND EXPROPRIATION WITHOUT COMPENSATION

WHAT IS THE LAND QUESTION ABOUT?

1. The land question in South Africa relates to the reversal of a centuries-old systematic and structural process of land dispossession through which African people were dispossessed of their land for the benefit of a tiny minority of white people.

2. This systematic process of land dispossession from Africans was unequalled anywhere in Africa. In Zimbabwe, for instance, colonialists appropriated just over 50% of the land surface in that country for themselves. In South Africa, they took about 87% of all the land surface from black people through colonial dispossession and legislative mechanisms.

3. The land question is therefore about the resolution of this great land dispossession injustice and seeks ways to ensure that the large-scale redistribution of land contributes to the redress of colonial and apartheid injustice, the transformation of the economy and the reduction of both urban and rural poverty.

WHAT IS THE HISTORY OF LAND DISPOSSESSION IN SOUTH AFRICA?

4. In 1652, Jan van Riebeeck established a Dutch settlement at the southern tip of the African continent on behalf of the Dutch East India Company. Over time, the Dutch seized the land from the Khoi and from the San in order to increase their land for grazing.

5. Deprived of the land from which they derived their livelihood, the Khoi and the San were forced to work for their dispossessors for low wages.

6. The British took over governance of the Cape Colony in 1795 and again in 1806, and began a rapid and brutal process of colonial expansion. This colonial expansion process was underpinned by a system of dispossession which they had already started implementing elsewhere in the country.

7. The British-led colonial wars all but decimated the Xhosa- speaking population in the Cape Colony and affected every corner of the country, sowing seeds of terror and murder. The consequence was that by the beginning of the twentieth century, African people in this country had very little land to call their own.

8. Following the defeat of the Africans through these wars of dispossession, the colonial regime began to develop legislation to cement forever the subservient role of African people in their own land.

WHAT WERE THE COLONIAL AND APARTHEID LAND LAWS OF DISPOSSESSION?

9. Glen Grey Act of 1894: This Act introduced a labour tax for young African men who were not working, with the sole intention of forcing them to work on white farms and in the mines. It was implemented first in the Glen Grey area (Lady Frere and Queenstown) and later extended to large areas in the Cape Colony. It also developed the idea of African native reserves. Cecil John Rhodes called it ‘a Bill for Africa’, and the purpose was to limit Africans to tiny pieces of land so as to force the rest to go work for whites in the mines and on the farms.

10. Natives Land Act of 1913: This Act confined the African majority to only 7% of the land in South Africa, that is, only about nine million hectares of land. It effectively banned Africans from buying and owning land anywhere other than in their designated reserves, which with time became degraded as a result of overcrowding. It furthermore banned squatting, thereby undermining the capacity of the African peasantry to sustain themselves.

11. Urban Areas Act of 1923: This Act forbade the further granting of freehold property rights to Africans on the grounds that they were not permanent urban residents and 'should only be permitted within municipal areas in so far and for so long as their presence is demanded by the wants of the white population’.

12. Natives Trust and Land Act of 1936: This Act was later renamed the Bantu Trust and Land Act, or Development Trust and Land Act of 1936. The Act added another 6% to the land in the reserves, resulting in approximately 13% of the land being allocated to Africans, although this concession was traded for the voting rights of Africans in the Cape, for instance. The Act also provided for the establishment of the South African Native Trust. This Trust was tasked with acquiring and administering land in the reserves. The Trust soon became a repressive mechanism for Africans in that it tightened even further the conditions under which Africans were allowed to stay on white farms.

13. Group Areas Act of 1950: This Act prohibited different races from living in the same area. Large numbers of black people were subsequently removed from the areas they inhabited where those areas were demarcated as exclusive white enclaves under the Act. It is estimated that over 3.5 million people were dispossessed of their land due to the application of this Act between 1960 and mid-1983.

SO NOW, WHO OWNS THE LAND IN SOUTH AFRICA?

14. The total land surface in South Africa consists of about 122 million hectares.

15. The Department of Rural Development and Land Reform has undertaken two land audits. The first phase of these audits was to determine how much land is owned by the State and how much by private owners.

16. The table below of State-owned versus privately owned land was extracted directly from the Department’s land audit report:

17. The 2013/14 land audit found that 79% of South African land was privately owned, 14% was owned by the State, and 7% was unaccounted for. The latter was likely land that had not been surveyed at the time.

18. The second phase of the audit, completed in 2017, dealt only with privately owned land. It found that individuals, companies and trusts had a combined ownership of 90% of the total land audited.

19. The land audit also revealed that white people owned 72% of the land, followed by coloured people at 15%, Indians at 5%,Africans at 4%, others unidentified by race at 3%, and co-owners at 1%.

20. This inequitable distribution of land is a direct consequence of colonial land dispossession and forced removals during apartheid. The democratic State has been unable to undertake a thoroughgoing land redistribution programme to reverse the inequitable distribution of land.

WHAT IS THE CURRENT NATURE OF THE SOUTH AFRICAN LAND REFORM PROGRAMME?

21. Land reform is a purposeful intervention to change the manner in which land is held and to redistribute it to the landless and the land-hungry. Land reform can basically take place in two ways: through a revolution, or through laws proclaimed by the government.

22. Land reform in South Africa was not a product of revolutionary change. Rather, it is a constitutionally enshrined imperative, provided for by section 25 of the Constitution, the so-called property clause.

23. Subsections (5), (6) and (7) of section 25 make provision for a three-tiered land reform programme: land redistribution, land tenure reform and land restitution, respectively.

24. Section 25(5) obliges the State to take ‘reasonable’ legislative and other measures to enable citizens to gain access to land. This is called land redistribution.

25. Section 25(6) obliges the State to provide protection to people whose tenure to land is legally insecure. This is called land tenure reform and applies to farmworkers and farm-dwellers, township dwellers who have never had a title to their houses and people who live in the former homelands whose claim to land is not premised on titling, among others.

26. Section 25 (7) grants people who were dispossessed of their land after the application of the Natives Land Act of 1913 a right to lodge claims to get their land back or entitles them to equitable redress. Equitable redress may take the form of an alternative plot of land or monetary compensation. This gave rise to the land restitution programme.

27. The State had initially planned to transfer about 30% of the land back to African people by 1999 by using these various forms of land reform.

28. To date, only about 9% of the land has been transferred back to black people through the land reform programme. The State has paid billions of rands to white land owners to obtain land for land reform purposes.

29. As a consequence, colonial and apartheid forms of land holding still persist. This is due to a number of reasons, chief amongst which are State incapacity and a restrictive Constitutional framework that draws a moral equivalence between the rights of the dispossessor and the rights of the dispossessed.

WHAT DOES THE CONSTITUTION SAY ABOUT EXPROPRIATION?

30. Expropriation is a legal mechanism through which the State takes over property owned by other entities, be they private individuals, companies, trusts or community-based organisations.

31. The expropriation of property is currently provided for in the

South African Constitution, under section 25(2), provided it is done through a law of general application and for one of two reasons, namely for a public purpose or in the public interest. ‘Public interest’ is defined as the nation’s commitment to land reform, while ‘a public purpose’ would cover, for example, the building of dams, the erection of power lines and the construction of rail infrastructure.

32. Section 25(2)(b) unambiguously says that expropriation is subject to compensation: either in an amount agreed upon by the expropriating party and the person from whom the property is to be expropriated; or in an amount decided upon by a court of law.

33. In calculating the amount of compensation, a number of factors, listed in section 25(3) of the Constitution, must be taken into account: (i) the current use of the property, (ii) the history of acquisition and use of the property, (iii) the market value of the property, (iv) the extent of direct State investment and subsidy in the acquisition and beneficial capital improvement of the property, and (v) the purpose of expropriation.

34. The Constitution as it is currently written does not allow either for expropriation without compensation or for the narrow, piece-meal expropriations advocated by liberals or the broad- based expropriation advocated by the EFF.

35. Taking into account all the factors to be considered in determining compensation, it is clear that the only quantifiable factor is the market value of the property. Records of direct State investment with regard to land dating back to the time of dispossession have been lost, and the quantum of judging what is ‘just and fair’ compensation in a neo-colonial set-up such as ours is not clear.

36. The approach advocated by liberal opinion-makers will furthermore lead to an excessively litigation-based land reform programme, and land owners can basically veto this programme through the courts.

WHAT IS THE EFF’s POSITION ON LAND EXPROPRIATION WITHOUT COMPENSATION?

37. The EFF wants a Constitutional amendment that would make it legally permissible for the State to expropriate land – but not other forms of property – without compensation.

38. This land must then be placed under the custodianship of the State, which will administer and redistribute it equitably to all South Africans for residential and productive use.

39. The underlying principle is that land is a common natural endowment that everyone must be able to reside or produce on, and satisfy their spiritual requirements from. What is to remain in private possession would be the manifestation of an individual’s labour, such as crops, trees and buildings – but not the land.

40. The land administration capacity of the State will be improved to ensure decentralised decision-making around the administration of land and the granting of licenses for land use.

41. The EFF’s Founding Manifesto says: ‘The EFF’s approach to land expropriation without compensation is that all land should be transferred to the ownership and custodianship of the State in a similar way that all mineral and petroleum resources were transferred to the ownership and custodianship of the State through the Minerals and Petroleum Resources Development Act (MPRDA) of 2002. The State should, through its legislative capacity, transfer all land to the State, which will administer and use land for sustainable-development purposes. This transfer should happen without compensation, and should apply to all South Africans, black and white.’

42. The Founding Manifesto further states: ‘State custodianship of land will mean that those who currently occupy land should apply for licensing to continue using the land and should clearly state in the application what they want to use the land for over a period of time. Under this legislation, no one should be allowed to own land forever, because those who have money can, over time, buy huge plots of land and use them for counter- developmental private purposes, such as using land as game farms. A maximum of 30 years can then be placed on all land leases applied for by private corporations and individuals, with the State retaining the right to expropriate in instances where the land is not used for the purpose applied for.’

43. This means private ownership of land will be discontinued, and the State will be entrusted with the responsibility of managing and administering land on behalf of the people. The State must then allocate land-use rights to the people on a fair and equitable basis, prioritising, in the main, African people, whose land this is.

44. This will demand a capable State that is able to strategically immerse itself in thinking about and directing development. It will also require a State that is decisive and intolerant of corruption.

45. The overall idea of State custodianship is not as limited as some say, however. On taking command of the economy and vesting this command in the hands of a revolutionary State, the EFF Founding Manifesto says: ‘This will happen through various and combined forms of common and collective ownership, ranging from State ownership and control to co-operatives’ and workers’ ownership and control of the key sectors of the economy. State ownership is, within this context, an elementary component which will lead to more progressive forms of collective ownership, control and benefit, and therefore not narrow State capitalism.’

WILL PEOPLE LOSE THEIR HOUSES AS A RESULT OF EXPROPRIATION WITHOUT COMPENSATION? AND WHAT ABOUT URBAN LAND?

46. No, no one will lose their house as a result of land expropriation without compensation.

47. A house consists of immovable property that is a product of an individual’s labour and, therefore, the private property of that individual.

48. The plot on which a house is built is rendered unusable for any other purpose, and because of its attachment to a house, which is immovable property, the plot becomes an accessory to the house and hence the property of the owner.

49. What this means is that while homeowners’ rights to their homes are secure, any other piece of land outside the homeowners’ plot is automatically ceded to the State.

50. The State can then directly intervene to declutter townships and ensure a balanced allocation of land for residential purposes, building low-cost housing in areas previously seen as enclaves of whites and the rich.

51. The State must also ensure provision of land for urban agricultural development and recreational areas to ensure a balanced social environment suitable for human habitation.

WHAT WILL HAPPEN TO AGRICULTURAL LAND?

52. The dynamic is quite different for agricultural land. The products of social labour are the crops, the animals and, sometimes, plantations, which are not all permanently attached to the soil. It is these that can be rightly said to be the personal property of a private individual, not the soil.

53. The State must expropriate and be placed in custodianship of all agricultural land. It must, in a developmental manner, lead the process of reforming the entire agrarian economy. This ranges from the downstream economic activities relating to the production of agricultural inputs such as fertilizers and seeds, to the point of production – properly addressing the inverse relationship between farm size and productivity – and all the way through to the point of sale, which will involve opening up marketing opportunities for everyone, particularly small-scale farmers.

54. Security of tenure on agricultural land must be provided in the form of medium- to long-term leases of approximately 25 years to producers, at a very low cost to the producers themselves. These land use rights will, however, be subject to reversion. If the land is left fallow and is not used, the State can take it back and give it to those who are able to use it productively.

55. A truly transformative intervention in the South African agrarian economy must of necessity entail the subdivision of large and unproductive farming estates, redistributing these to small-scale farmers, farm workers and farm dwellers, whose residence on farms must be given the air of permanence guaranteed to residents in urban centres.

56. The State must then develop other enabling mechanisms for the development and support of the agricultural sector in the form of support with input resources, extension services and market access. The State must also protect the industry against undue competition from cheap products from abroad, mainly from countries that support and protect their own agriculture. The principal position is that the agricultural sector cannot be properly developed without direct State intervention. This will entail the creation of an agricultural development bank, the reconstitution of agricultural product marketing boards , and targeted support to small-scale farmers in general.

57. The State must also develop a policy to place a limit on the size of land that a person may be granted land use rights on.

WHAT ABOUT THE ROLE OF TRADITIONAL LEADERS?

58. The EFF respects the institution of traditional leadership, as traditional leaders are custodians of African culture and identity.

59. However, traditional leaders do not own the land; they have never possessed the land as their private property. Traditional leaders have always been custodians of the land on behalf of the people, and the allocation of land took place based on known and respected traditional norms and practices.

60. The EFF therefore wants society to be disabused of the idea that traditional leaders own land.

61. The institution of traditional leadership ought to play a role, however, in ensuring the fair and democratic allocation of land to everyone on an equitable basis.

62. The EFF’s position on land will do away with outdated traditional practices such as the denial of women’s right to own land on their own unless they are married or have a son.

63. The process of land administration in areas where traditional leaders are present will therefore be democratised so as to ensure maximum participation by everyone, including women, while ensuring that traditional leaders have a role to play too.

WHO WILL BENEFIT AFTER EXPROPRIATION?

64. State custodianship of land will benefit the landless, the poorest sector of the South African population – the urban poor who are forced to stay in squatter camps.

65. As for those involved in agricultural production, farm workers and small-scale agricultural households stand to benefit from expropriation without compensation. This group constitutes the core of a new vision for agrarian transformation that entails the aggressive promotion of small-scale production, mainly because of its ability to utilise land for maximum production, its concern with the maintenance of a sound ecological infrastructure, and its ability to alleviate food insecurity at a local level.

66. For the urban poor, land expropriation without compensation will guarantee that there is a planned human settlements strategy that prioritises housing provision for all, closer to the areas where people work. This must entail the eradication of the class division of residential areas and ensure the aggressive development of low-cost housing closer to central business districts.

67. For the rural poor, expropriation of land without compensation will ensure a more democratised administration of land and will do away with outdated gendered perspectives of land administration as now enforced by the institution of traditional leadership. The departure point is that traditional leaders do not own the land as their own personal property; communities do, and they must decide what should happen on land that is commonly owned, without discrimination based on age, gender or sexual orientation that is premised on outdated cultural beliefs.

WHAT IS THE DIFFERENCE BETWEEN SOUTH AFRICAN EXPROPRIATION AND THE ZIMBABWEAN LAND PROGRAMME?

68. At the time Zimbabwe gained its independence, the framework for land reform was premised on a market-led land reform programme whereby the State, with the assistance of Britain, was required to purchase land from white land owners for land redistribution purposes.

69. This was based on the 1980 Lancaster Agreement, which provided that the government would not engage in compulsory land acquisition and that land distribution would take place subject to the principle of ‘willing buyer, willing seller’, whereby the government would ‘pay promptly adequate compensation’ for property.

70. This failed spectacularly, as it has failed in South Africa since 1994. As a result, ordinary Zimbabweans and people who had been involved in the brutal war of liberation took to the streets and forcefully occupied land, kicking out white farmers .

71. Mugabe was initially opposed to this popular move and only backed it when he saw how popular it was. The occupation was legalised, and small farms were marked out on the land that had been formerly owned by the white farmers.

72. A key aspect of the land reform programme in Zimbabwe is that it was not properly planned because it was sped up as a consequence of people’s impatience with the slow pace of land reform since independence. The Fast-Track Land Reform Programme was a response to the already widespread societal impatience with the unequal redistribution of land.

73. Zimbabwe’s land reform, therefore, was a redistribution from below, which was hijacked by a poorly prepared State to introduce some semblance of order. The hijacking of this movement by the parasitic State also allowed ZANU PF fat cats to acquire more farms for themselves than for the people as a whole.

74. The EFF’s position on expropriation without compensation is for a planned radical approach to land redistribution, aimed at first amending the constitutional framework for land ownership.

75. There are no ‘land grabs’ proposed, but a societally endorsed State-managed approach to redistributing land.

76. There will of course be a radical reorganisation of land redistribution, but this will be done through a sound, legal and societally driven process.

WILL EXPROPRIATION AFFECT FOOD SECURITY?

77. Currently, South Africa is said to be food-secure, meaning enough food is produced to feed everyone. However, the country is, at the same time, household food-insecure, meaning many households still struggle to put food on the table.

78. The proposals put forward by the EFF will not only ensure the nation’s food security; it will also ensure food security at a household level.

79. EFF policies will ensure improved food production and not only nationwide but also household food security. This will be done by: ensuring that all land is placed into productive use and that those who have land are supported by the State to make productive use of it; supporting and promoting small-scale farming; ensuring government institutions purchase their food requirements from small-scale farmers; and protecting agriculture as an infant industry from unfair global competition.

WHAT IS THE EFF’s AGRICULTURAL POLICY?

80. On agricultural policy, the Founding Manifesto says: ‘In line with the Freedom Charter and a new vision of agrarian revolution, the State should also provide implements and related extension services to help those who work the land to use it productively. Furthermore, the State’s procurement of food should prioritise small-scale farmers so that small-scale farming becomes a sustainable economic activity for the majority of our people. The State must buy more than 50% of the food for hospitals, prisons and schools from small-scale farmers in order to develop small- scale agriculture.’

81. This is an explicit expression of strong support for intensive small-scale agricultural production. It will also ensure maximal use of available land.

82. Currently, South African agriculture is not as efficient as it ought to be. There is no longer co-ordinated and strong support and protection of the agricultural industry by the State in South Africa.

83. In contrast, the countries from which we import most of our agricultural products do protect their agriculture.

84. All countries in the European Union benefit from what is called common agricultural policies that prioritise subsidies and the protection of their agriculture.

85. South Africa, on the other hand, has one of the least protected agricultural industries in the world. It is for this reason that the country’s poultry industry has been all but decimated.

86. On this question, the EFF’s Founding Manifesto says: ‘A structured State support and agricultural protection mechanism should be applied to all food products, including beef and other meats’ production and processing. The same applies to fruit, maize, and other essential food items produced by small-scale farmers. To boost sustainable demand domestically, the South African government should pass legislation that all the food bought by government for hospitals, schools, prisons, and the like should be sourced from small-scale food producers. This in itself will create sustainable economic activity and inspire many young people to go into food production, because there will be income and financial benefits to boost other economic activities out of it. The economy of food production needs well-structured protection mechanisms and subsidies in order to protect jobs and safeguard food security. Most developed and developing nations are doing the same.’

87. Recognising the importance of the entire agricultural value chain to the transformation of agriculture in this country, the Founding Manifesto says: ‘Food production, packaging, transportation, marketing, advertising, retail, and trade should constitute one of South Africa’s biggest economic sectors. With a growing global population and the growing capacity of Africans to buy food, South Africa needs to produce agricultural output through the provision of subsidies to small-scale farmers, and open packaging and retail opportunities for these farmers.’

88. This will require an engaged developmental State that is able to intervene and interfere in the dynamic agricultural sector to strategically direct the process of agrarian transformation.

WILL EXPROPRIATION CHASE AWAY INVESTORS?

89. No, expropriation of land without compensation will not chase away investments.

90. Investors need certainty and security of tenure. State custodianship of land will provide the strongest possible certainty and will ensure that the highest possible security of tenure is provided over the period for which the lease is granted.

91. The practice of State ownership of land, which is then leased to private companies, is already happening without much fanfare in this country. For example, South Africa has five provinces involved in the forestry industry, namely the Eastern Cape, Western Cape, Mpumalanga, Limpopo and KwaZulu-Natal. The Department of Agriculture, Forestry and Fisheries (DAFF) indirectly manages 368 505 hectares of State plantations (Category A) through lease agreements signed with four private forestry companies and the South African Forestry Company Ltd (SAFCOL).

92. The Department further directly manages 109 commercial forest plantations (Categories B and C) covering a total area of 63

114.21 hectares. Category A plantations, with a total of 71 state- owned plantations (181 185 hectares), are managed by private companies leasing the land from DAFF for a minimum period of 70 years. These companies are MTO Forestry (Pty) Ltd; Amatola Forestry (Pty) Ltd; SiyaQhubeka Forests (Pty) Ltd; and Singisi Forest Products (Pty) Ltd. In addition to this , an area of 187 320 hectares is managed by the South African Forestry Company (SAFCOL), which is a state-owned company.

93. This system of leasing land to forestry companies has not caused any damage to the forestry industry to date.

94. The same is happening in the designated special economic zones (SEZs). The SEZ in Coega in Port Elizabeth, where the land is owned by the Coega Development Corporation, has already attracted nearly R6.2 billion of operational investment. A further R16.6 billion has furthermore been secured, although it is not yet operational. At the Dube Trade Port in KwaZulu-Natal, the land is jointly owned by the ACSA and the Dube Trade Port. They have to date secured operational investment of R1.2 billion as well as further investment of R1.8 billion which is yet to become operational. The Richards Bay Industrial Development Zone (IDZ), where the land is jointly owned by the municipality and the Richards Bay Industrial Development Zone Company, has attracted some R320 billion of operational investment.

95. These figures demonstrate that the myth that State custodianship of land deters investment and business activity is not based on any solid facts. To the contrary, it shows that State-aided investment is a necessary precursor to sustainable investment.

WHERE ELSE HAS STATE CUSTODIANSHIP OF LAND TAKEN PLACE?

96. The land in Mozambique is entirely owned by the State. Companies and people are granted land use rights rather than ownership of the land.

97. The land in China is under State custodianship and is available to users on the basis of either long-term leaseholds or land use rights.

98. About 90% of the land in Botswana is either State-owned or tribal-owned. This land cannot be sold; rather, it is leased from the State or from tribal administration land boards.

99. The land in Ethiopia is owned by the State. People and companies apply for land use rights or for long-term leases from the State.

100.In Singapore, 75% of the land is State-owned and held by the Singapore Land Authority (SLA), which acts as custodian of the land.

WHAT DOES THE PROCESS OF CHANGING THE CONSTITUTION ENTAIL?

101. The process of amending the Constitution is provided for in section 74 of the Constitution. According to this section, the founding provision in Chapter 1 of the Constitution can be amended with the support of 75% of the members of the National Assembly (NA), while the rest of the Constitution can be amended with the support of two-thirds of the members of the NA.

102. The Property Clause, which we seek to change, is in Chapter 2, the Bill of Rights, and can be amended by two-thirds of the members of the NA.

103. A Constitutional Amendment Bill must be drafted and published in the Government Gazette at least 30 days before it is introduced. It must also be submitted to the provincial legislatures and to the National Council of Provinces (NCOP).

104. The Constitutional Amendment Bill must be debated and passed by two-thirds of the members of the NA.

105. After the NA has passed the Constitutional Amendment Bill, the support of six of the nine provincial delegations to the NCOP is furthermore required.

106. If all of the procedural requirements for the processing of the Bill have been met and the NA and the NCOP consent to the Bill, the amendments then become part of the Constitution. The Constitutional Court may only intervene if the procedural requirements for amending the Constitution have been perverted, but it cannot change the substantive amendments themselves.

Source: EFF https://www.effonline.org/faqs-on-land-expropriation-english, June 2018