No, Mr Manyi, the Constitution is the solution to land reform

In 1999 as part of the new draft constitution for Zimbabwe, there was an amendment to replace existing clauses with one to compulsorily acquire land for redistribution without compensation. This was put to the country in a referendum in 2000 and rejected outright.

What followed was anarchy ratified in 2005 when the government passed a constitutional amendment that nationalised farmland acquired through the “Fast Track” process and deprived original landowners of the right to challenge in court the government’s decision to expropriate their land.

The impact of this approach to “land reform” on the Zimbabwe economy was devastating and turned a primarily agricultural exporting wonderland into the beggars of Africa.

Manyi on the Constitution

Jimmy Manyi, president of the Black Management Forum and director-general at the labour department, has cited Section 25 of the Constitution, dealing with “Property” as the main obstacle to the redistribution of land.

Speaking at a BMF constitutional symposium in Craighall, he said that despite Constitutional recognition for land reform, its insistence on “fair value” in the event of expropriation was making it too expensive for the government to carry out meaningful redistribution.

“Section 25 is a clause that allows for expropriation if there are national reasons, in the public interest, and we support that. But the sting in the tail is this thing called fair value. In practice this fair value has become market value, which can be manipulated. The practice that we see is that as soon as government gives an indication that it will acquire a particular piece of land all of a sudden the price trebles.”

He said the result has been acquisition of land by foreigners at three times the rate of locals and the government only managing to redistribute 5% of the land so far.

Moreover that the opponents of transformation use the courts and Constitution to block the state and as a result “in order to move forward decisively with the land redistribution programme, significant changes will have to be made to the willing buyer-willing seller model of land restitution”.

Land reform

Without any question of a doubt land reform in South Africa is both necessary and desirable if we are to empower the previously disadvantaged communities.

Prior to the last election I made rapid land redistribution one of the main priorities of this administration.

Unfortunately since becoming a full-blown democracy in 1994 the government has failed to go about its business in this area — considered a priority by many black South Africans — with anything like the urgency or nous that this requires leaving many feeling that they have achieved political rather than economic freedom.

That is nonsense if regard is had to the fact that the government, chosen by the overwhelming majority of South Africans is in power with all the legislative and executive means at their disposal. That they have not employed it to best use yet can never be equated to being deprived of economic freedom.

Accordingly the call by Manyi, among others, for a Zimbabwe-like approach to resolve the problem, is, with all due respect, garbage.

You don’t imitate failure and destruction because of inactivity or inability on the part of those who have it within their power to legislate and enforce practical solutions.

You don’t replace laziness with stupidity.

History

The Native Lands Act of 1913 prohibited the establishment of new farming operations, sharecropping or cash rentals by blacks outside of the reserves where they were forced to live. “Land restitution” was one of the promises made by the African National Congress when it came to power in South Africa in 1994.

The land reform process focused on three areas: restitution, land tenure reform and land redistribution.

Restitution, where the government compensates individuals who had been forcefully removed, has been very unsuccessful and the policy has now shifted to redistribution with secure land tenure. Land tenure reform is a system of recognising people’s right to own land and therefore control of the land.

Redistribution is the most important component of land reform in South Africa. Initially, land was bought from its owners (willing seller) by the government (willing buyer) and redistributed, in order to maintain public confidence in the land market.

Although this system has worked in various countries in the world, in South Africa it is has proved to be very difficult to implement. This is because many owners do not actually see the land they are purchasing and are not involved in the important decisions made at the beginning of the purchase and negotiation.

In 2000, the South African government decided to review and change the redistribution and tenure process to a more decentralised and area-based planning process. The idea is to have local integrated development plans in 47 districts. This will hopefully mean more community participation and more redistribution taking place, but there are also various concerns and challenges with this system too.

These include the use of third parties, agents accredited by the state, and who are held accountable to the government. The result has been local land-holding elites dominating the system in many of these areas. The government still hopes that with improved identification and selection of beneficiaries, better planning of land and ultimately greater productivity of the land acquired the land reform process will begin moving faster.

As of early 2006, the ANC government announced that it will start expropriating the land, although according to the country’s chief land claims commissioner, Tozi Gwanya, unlike Zimbabwe there will be compensation to those whose land is expropriated, “but it must be a just amount, not inflated sums”.

Despite these moves towards decentralisation, these improved practices and government promises are not very evident. South Africa still remains hugely unequal, with black South Africans still dispossessed of land and many still homeless. The challenge for the incumbent politicians is to improve the various bureaucratic processes, and find solutions to giving more South Africans secure land tenure. (Wiki)

Section 25 of the Constitution

“25. Property

1. No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

2. Property may be expropriated only in terms of law of general application
a. for a public purpose or in the public interest; and
b. subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

3. The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including
a. the current use of the property;
b. the history of the acquisition and use of the property;
c. the market value of the property;
d. the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
e. the purpose of the expropriation.

4. For the purposes of this section
a. the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and
b. property is not limited to land.

5. The state must 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.

6. A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

7. A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

8. No provision of this section 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).

9. Parliament must enact the legislation referred to in subsection (6).

Courts and Constitution

After 16 years of South Africa’s new multiracial democracy — with a black-dominated government, a Constitutional Court that is made up of primarily judges who were part of the disadvantaged communities and a Constitution which makes it abundantly clear at Section 25 on property that “no provision of this section 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” — we are, disgracefully, still nowhere near where we should be on land redistribution.

That the overwhelming percentage of land still lies in the hands of the minority is testimony to laziness, inefficiency and a refusal to knuckle down and get the necessary clarification from our courts as to what is “just and equitable” and/or legislate areas which cannot be resolved.

As a practicing attorney of many years, with experience of our courts, I would be shocked to learn that our judiciary — charged with the task of interpreting a Constitution which calls for transformation — would not assist the government in finding a practical solution to the problems.

Moreover that our farming community — if approached to find workable solutions to assist in finding ways to achieve a way forward in this impasse — would simply refuse to budge. While the current situation persists, of course farm owners will demand a king’s ransom, that is what the courts and the legislature are there to overcome.

After 16 years of going nowhere fast we have claims from white farmers that they are the target of assassins and from the entire black community that they are politically but not economically free while the government sits on its hands.

The solution to a bad day at the office is not to blow your brains out just as an inability to progress on this issue is not the catalyst for economic suicide.

Stop pandering to the whims of landowners and idiots who claim that there is no way to redress the problem save for a Zimbabwean nightmare and get the matters through the court and legislature.

If that means farmers get less money and black farmers less land than they want in the first year, too bad.

If everyone goes home a little unhappy rather than homicidal, that is the sign you’ve done your job.

GET ON WITH IT!