South Africa's land reforms will include issuing title deeds to small-scale farmers living on tribal lands, a senior ANC official said on Friday. This is a comment that will rile the traditional chiefs.

A key land reform lesson South Africa can take from Zimbabwe is that the country experienced record-low investment in agriculture due to land rights issues. 

Guests at the Tugela Private Game Reserve once rambled through the bush in open-air four-wheel-drives in search of leopards, elephants and other wildlife that roamed the 17,000-acre property.

In 1997, South Africa’s first democratic government published a White Paper on land reform, setting out a radical vision for how to address racial inequality in land ownership, and the stark disparities between men and women’s access to land. 

The South African Constitution sought to turn this ideal into a reality, with section 25(5) placing an obligation on the state to “take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.” 

In November 2017, the then-department of rural development and land reform published a land audit showing how little progress has been made in realising this vision. Seventy-two percent of farm and agricultural land is still held by white people, and only 4% is held by black people. The audit also revealed that women only own 18% of private land, dropping to 13% for farm and agricultural holdings. The results of the audit confirmed that the state’s current approach to land redistribution is failing. 

This failure is particularly harmful for women. The right to use and control land is central to the lives of rural women in South Africa who depend on the land to feed themselves and their families and to derive an income. Access to land creates generational wealth, food security and is a source of self-determination that contributes to women’s social and economic empowerment. The failure to change the gendered patterns of land ownership is a failure to realise women’s right to equality and human dignity.

Given the clear constitutional and political mandate for change, why has land redistribution failed to become a reality for South African women? One of the difficulties in answering this question is the lack of transparency surrounding the state’s redistribution programme – the policies governing the allocation of land are opaque and the data on land reform beneficiaries is rarely published. 

 
A rare exception to this secrecy was a report published by the then-land reform department in 2018, providing data on the outcomes of land redistribution. The report revealed that the number of women beneficiaries under the redistribution programme had been rapidly decreasing. Between 2009 and 2018 there were 8 763 women beneficiaries of land redistribution, making up 41% of the total beneficiaries over this period. However, this was mostly due to the high number of women beneficiaries between 2009 and 2011. The absolute number of women beneficiaries plummeted from 5 795 in 2009-10 to 334 in 2017-18. 

As well as falling in absolute terms, women beneficiaries also made up an increasingly small percentage of the total: in 2009-10 women beneficiaries made up 51% of beneficiaries, but by 2017-18 this had fallen to 25%. In 2013, only 1% of the total beneficiaries for the year were women. 

This disparity is also evident when evaluating individual redistribution programmes. In December 2020, in a presentation to the parliamentary committee on agriculture, land reform and rural development, the government provided information on the number of beneficiaries that had benefited from the state land lease and disposal policy (SLLDP) between February and December 2020. 

The SLLDP is the government’s most recent land redistribution policy adopted in 2013. It only provides beneficiaries with leases for redistributed land, rather than full ownership rights. It nominally gives priority to women, but with the caveat that they demonstrate basic farming skills or a willingness to acquire such skills before being considered. 

Out of the 544 people who benefited from the programme in 2020, only 116 (30.5%) were women. This distribution is even more unequal when the data is broken down into hectare allocation. Male beneficiaries received 82% of the allocated land, while women only received 17.2% of the total hectares allocated. 

    No Expropriation without Compensation in South-Africa’s Constitution – for the Time Being

 
To fully understand the inequality, it is important to understand what rights women acquired over the land. This is because access to land is not enough to transform the gender inequalities in land holding, but it is also important that the rights women acquire in the process enable them to use the land to empower themselves and their families. When considering the type of rights that were awarded under the SLLDP, further barriers to women’s access to land are revealed. 

In 2020, 83% of the women beneficiaries of the lease and disposal policy formed part of a collective, which means that they did not hold individual leases for the land but were instead part of collectives that included men among its membership. In comparison, 50% of the male beneficiaries were awarded the land as individuals. This means that in most cases, women only benefited from land redistribution under the policy if men also benefited. 

It also means that women cannot use the land without consultation and collaboration with men. This leaves them less empowered and at risk of patriarchal constructs of land ownership that subjects women to being perpetual minors who cannot own land in their own name. 

This disparity is partly explained by the way in which the policy was implemented in 2020. Instead of redistributing newly purchased land, the department redistributed 700 000 hectares of farmland it already owned by primarily providing leases to people already occupying the land. This is not real redistribution – rather, it entrenches existing patterns of land holding. 

The current approach to redistribution also reproduces inequality due to its emphasis on demonstrated skills and experience in agriculture. The SLLDP and other national policies target women who either have basic farming skills or demonstrate a willingness to acquire such skills. It is not clear how skills and experience are evaluated when deciding who will receive land. Women in rural areas are the backbone of subsistence farming, but despite these skills, women are unlikely to own the land on which they farm and are less likely to have any formal farming qualification. The existing patterns of land ownership also mean that women are less likely to have farmed commercially or able to demonstrate that they have the skills and experience to run a commercial farm.

 
This policy approach is reflective of a shift towards a strong emphasis on commercial farming. Since 2009, more land has been allocated to fewer beneficiaries. This is largely due to the need to keep land intact for commercial farming operations. Women will not benefit from this approach. The shift has instead made redistribution vulnerable to corruption and collusion between department officials and wealthy and/or politically connected elites who have been the favoured beneficiaries.

There are a number of reforms that would improve the redistribution programme’s ability to address gender inequality in land ownership. First, the state must analyse the need for land in South Africa through a gender equity lens. Too little has been done to identify the wants and needs of women in relation to land and evidence that can be used to inform the design and implementation of land redistribution policies, is limited. This results in an approach that sets redistribution targets that do not consider the specific needs of women. 

Second, policies that are aimed at creating equity in land redistribution must be correctly implemented. What is clear is that even where targets for gender equality are set in policies, they are not met. Women benefit less from these programmes than men, despite being identified as a target group. 

Third, and perhaps most importantly, there is a need for the legislature to enact legislation that will frame the redistribution programme in South Africa and prioritise women. The current situation is largely due to a lack of a guiding legislative framework as envisioned in section 25(5) of the Constitution. New legislation must create cohesion in the redistribution process, align policy programmes and provide guidelines on how women may be prioritised considering the often-hidden inequalities in the current policy framework. It must compel the development of an agreed set of gender indicators as well as a framework that defines how data on gender equality in redistribution programmes is collected, analysed and presented. This will create more transparency and accountability in land redistribution. 

We cannot redress South Africa’s deepening economic injustices without comprehensive legislative changes that enable women to gain access to land on a substantively equal basis with men. 

The attempt last year to amend Section 25 of the Constitution represented a grave threat to whatever chances for future prosperity South Africa had.

In targeting for the first time a provision in the Bill of Rights, it set a terrible precedent by threatening constitutional protection. Some of its proponents even claimed that the Constitution in its current form would not prevent the ultimate policy goal, Expropriation without Compensation.

That the measure failed to pass deserves to be viewed with relief. But as we at the Institute of Race Relations have warned in the intervening period, this was at best a respite.

A Land Court Bill, currently before Parliament, seeks to place land (and land expropriation) matters into a specially created court. The Bill itself is intended to ‘promote land reform as a means of redressing the results of past discrimination and facilitate land justice.’  Its proposed design raises a very real danger of proceedings being loaded in favour of particular outcomes. For example, two lay assessors may be appointed to sit alongside a judge, and may overrule the latter on matters of fact. The Bill is silent on how the assessors will be appointed, and it is far from impossible that  activists hostile to land ownership would be in a position to preside over cases. On certain issues, such as whether ‘nil’ compensation should be awarded, or whether a given property has been abandoned, it is likely that the views of these assessors could be decisive.

   How to counter the Expropriation and Land Court Bills

In addition, there is the Expropriation Bill. President Ramaphosa has declared the government’s intention to pass the Bill into law this year. Dating back in its current iteration to 2019 (but with a policy lineage that extends back over more than a decade), it would establish a new regime for expropriation of property. Among other things, it defines expropriation – and so too, any entitlement to compensation – so as to require the state to take ownership of expropriated property.

This suggests that merely depriving an owner of something – without the state’s acquiring ownership in turn, as was the case with South Africa’s mineral resources under the custodianship provision of the Mineral and Petroleum Resources Development Act of 2002 – would not qualify as expropriation. This in turn would make a mass ‘custodial’ taking of a particular asset achievable without any requirement for compensation.

Move on property rights

Simply put, despite the Constitution holding for the moment, the mechanisms for proceeding with a move on property rights are being put in place.

At the same time, there has been a chorus of voices expressing harsh criticisms of the constitutional order, in part or as a whole. These voices include tourism minister Lindiwe Sisulu, KwaZulu-Natal premier Sihle Zikalala, former cabinet minister Ngoako Ramatlhodi as well as academics Professors Sipho Seepe and Eddy Maloka.

The basic assertion is that the malaise confronting South Africa arises from a lack of radicalism, this having been constrained by a timid compromise in the 1990s and the Constitution that embodied it.

Thus, Prof Maloka says that: ‘Our approach should not be piecemeal – about land, the judiciary, or this and that. Instead, we should be bold and decisive and overhaul the entire dispensation to align it with our times.’

Prof Seepe was more direct, attacking both the ANC and the state, claiming that ‘the post-1994 dispensation legitimised ill-gotten economic gains under apartheid.’ The ANC had been infiltrated, he went on to write, to the extent that it is ‘now embraced by even the most racist among our citizens’ (does this mean that the ANC is attracting large numbers of bigoted white voters..?), and ‘a state without any revolutionary content is a threat to our hard earned democratic dispensation.’

Sisulu denounced the judiciary as ‘mentally colonised’, while Zikalala proposed replacing the supremacy of the Constitution (and the law) with Parliamentary democracy. ‘We want to issue the call for us to debate whether it is not time to move away from absolute rule by the Constitutional Court to a situation where we have a parliamentary democracy in which the voice of the people who elected is supreme to all other voices,’ Zikalala declared.

Counterproductive

In a very real sense, this is an extension of the attempt to alter Section 25. It sees the constitutional order as the problem, not the counterproductive nature or impracticability of policy or its inept implementation. This is part populism, but arguably more fundamentally ideological.

Unsurprisingly, in all of this, land is a central motif. Thus, Minister Sisulu opines: ‘The land is where it all begins. And the law of the land makes or breaks.’ Prof Seepe asserts that land is fundamental to the true revolutionary posture whose absence he bemoans: ‘Land is at the core of any anticolonial struggle. Reclaiming the land would have been the first order of business. With the loss of the ideological narrative, Africans have no control of the future.’

In a similar vein, for Mr Ramathlodi, the Constitution is the culprit: ‘The essence of the 1913 Land Act retained under the New Constitution in section 25 must be reconsidered.’ 

Contained within all of this is the notion that with a more aggressive and assertive form of political mobilisation, with the removal on the limits on the state’s powers, veritable economic miracles are possible. (In 2018, President Ramaphosa claimed that EWC would turn the country into a Garden of Eden – an attempt at allegory that fell flat.) To quote Mr Ramathlodi: ‘In this regard, the developmental state must be activist and take out scissors to perform the necessary caesarean birth.’

Lyrical though that last comment is, it is also delusional. A good part of the reason for the disappointing outcomes of land reform – and support of small business, policing, education and so on – is precisely that the state is not up to the task. South Africa’s state is not developmental, although it certainly tries to be activist. The result, in practical terms, is a mixture of some dire laissez-faire neglect in some areas, and the constraints of an intrusive and often extortionate government apparatus in others.

Actually, in this respect Prof Seepe is partially correct when he says of the ANC that ‘instead of using the state as an instrument at the service of the poor, it does the opposite.’ But he fails to note that much of the blame for this can be placed squarely at the door of the ANC’s conscious decision to politicise the state administration in the 1990s, thereby preventing a meritocratic, professionalised civil service from emerging. In so doing, it destroyed the prospect of a developmental state.

Broad ideological thrust

Such actions were, however, in keeping with the broad ideological thrust of the ANC and with its National Democratic Revolution. One might describe them as the natural outgrowth of the revolutionary impulse.

South Africa’s future needs a good deal less ideology, and a good deal more pragmatism. This is readily apparent to anyone who cares to look, but is unfortunately not entirely clear to our political and intellectual elites.

The disparaging of the constitutional order is intrinsically a threat to property rights, and to land ownership, both on the part of those who own and those who aspire to do so. Indeed, a successful land reform programme holds value for all of us – but it will not be delivered by the ideologues and venal individuals who are using it to frame their arguments.  

The EWC agenda, and all that surrounds it, remains very much in place, and the present is no time for complacency.

On the first day of his five-day Summer School course, Professor Lungisile Ntsebeza painted a grim picture of how the country's laws have been used to empower, and conversely, disempower South Africans regarding land.

The Expropriation Bill of 2019 was published in December last year for public comment. People might be surprised to find out that we had an Expropriation Bill in 2008 that was shelved, that there was a lesser known attempt in 2013 and that the 2015 bill that was published, went through four negotiated versions, and was almost passed before it was sent back to the National Assembly due to presumably concerns about public participation on provincial level. 

This was one of the agreements reached at the conference on “Resolving the Land Question: Land redistribution for equitable access to land in South Africa,” held at the University of the Western Cape earlier this month.

It is a great pleasure and great honour to be here to speak at the launch of the Southern African Agricultural Initiative. For years, we at the institute of Race Relations have taken a keen interest in the fate of the farming sector – both out of concern for its own sustainability, and for what it signifies for the country as a whole.

One cold morning, Stefan Smit, a white farmer in South Africa’s stunning wine region, woke up to find his vineyard under siege.

SOUTH Africa’s prolonged land reform programme, if not resolved now, will soon be likened to deadly United States atomic bombs dropped over the Japanese cities of Hiroshima and Nagasaki during World War II in 1945.

The Minister of Agriculture, Land Reform and Rural Development Thoko Didiza delivered her department’s budget speech for 2019 in Parliament on Tuesday, and she’s charged with negotiating the future of South Africa’s biggest hot-button issue: Land expropriation, and the necessary reforms to make it a reality.

A number of countries in Africa have in the recent past reformed their cannabis regulations – moving it away from being a prohibited drug to a source of income as an exportable commodity.

FNB agriculture information and marketing head Dawie Maree appears relaxed about the land reform debate that has been a millstone around South Africa’s economic neck for the better part of two years

Through intensive research, the Agricultural Research Council’s Institute for Agricultural Engineering has developed a framework to improve water efficiency in agricultural irrigation systems in South Africa, which reassesses the methods traditionally used to measure a system’s efficiency and investigate sources of unnecessary water losses.

Parliament’s ad hoc committee dealing with the bill focusing on expropriation without compensation has decided to refer it to the National House of Traditional Leaders.

The Constitution Eighteenth Amendment Bill which seeks to amend section 25 of the constitution to provide for expropriation of land without compensation will be gazetted next week for public comment.

What can South Africa learn about land reforms from wider global and historical experiences in the 20th century?

A constitution, former Chief Justice Ismail Mahomed once wrote, reflects the soul of a nation. In the case of South Africa, he added, the Constitution records our collective vision, aspirations and reminds us never to repeat the past. If we accept this, we should accept the Constitution’s dynamism to meet the evolving society.

The challenges of climate change "may merit the development of a new agrarian reform vision" for South Africa, Agriculture, Land Reform and Rural Development Minister Thoko Didiza said .