Laws and land dispossession

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.

Ntsebeza heads up the University of Cape Town’s (UCT) Centre for African Studies. He holds the AC Jordan Chair in African Studies at UCT as well as the National Research Foundation Chair in Land Reform and Democracy in South Africa. With his expertise and widely published opinions, his course titled “The Land Question in South Africa” provided participants with a thought-provoking and interactive five days.

“The unresolved land question in South Africa is a time bomb and a threat to our democracy,” he said.

An entirely different approach than the one taken by the African National Congress (ANC) is needed if democracy in South Africa is to survive. But while making this point clear, Ntsebeza wanted participants to first understand the historical context.

Colonialism and the Glen Grey Act

“The ANC-led government inherited a very skewed, race-based distribution of ownership, access and use of land,” he said. This was the result of brutal and violent dispossession of land from the indigenous people of South Africa.

Dispossession became more aggressive in the second half of the 19th century with the discovery of minerals, particularly gold. Before the discovery, there existed a sizeable class of African commercial farmers, the black “middle class”.

But by the 1890s, things began to change for the worse and legally so. New mines required constant and cheap labour. The Glen Grey Act of 1894, which was spearheaded by Cecil John Rhodes, paved the way for this by restricting Africans’ access to land.

Starved of ownership and access to land, Africans were forced to sell their labour, cheaply, in mines, on farms and in the growing white-controlled towns and cities.

1913 Natives Land Act

In 1913, soon after the Union of South Africa came into being, the Natives Land Act was passed and enforced under Prime Minister Louis Botha. By this point, most Africans were restricted to “reserves” which constituted a mere seven percent of the country’s land.

With the new Act, Africans were afforded rights of occupation. What this meant was that land was, in legal terms, owned by the state and Africans were given rights to occupy the reserves on which they were forced to live.

“The land reform programme has been a colossal failure.”

But, Ntsebeza pointed out, there were exceptions. Outside of the reserves, some Africans exploited a loophole in the Act and managed to buy land. But this came to an end with the introduction and enforcement of the so-called Hertzog Bills.

1936 and apartheid

In 1936, Prime Minister JBM Hertzog spearheaded the Native Trust and Land Act. While increasing the designated land to 13%, the Act deprived Africans of what little hope there was to still live outside of the reserves. The 1913 loophole was closed.

Africans were sojourners in their native country and, regardless of where they were born, the reserves, like Ciskei and Transkei for the amaXhosa, were their home.

The areas Africans continued to occupy outside of the reserves became known as black spots and were the sites of the violent 1950s forced removals.

Throughout, and despite their proclamations that the reserves were self-governed, the colonial and apartheid regimes maintained control.

Government-appointed chiefs and headmen served as an extended arm of the state. And contrary to Ugandan scholar Mahmood Mamdani’s assessment of tribal authorities as decentralised, Ntsebeza argued that the purpose of the chiefs and headmen was to maintain control on behalf of the regime.

“They were mimicking their master,” he said.

By 1994, there were approximately 55 000 white commercial farmers in South Africa, all of whom received enormous support from the apartheid regime. This support came in the form of extension officers, marketing strategies and state subsidies, all of which were denied to their African counterparts.

Democracy and a dismal failure

“The above, in broad strokes, is what the ANC inherited in 1994,” said Ntsebeza.

He stated that, under the conditions of a compromise, the ANC was “clearly a junior partner in the control of the economy in particular”.

Admittedly, land reform was not former president Nelson Mandela’s project. His was reconciliation and stabilising the country.

“Looking at it now, it doesn’t seem such a good idea,” Ntsebeza remarked.

But, despite the emphasis on reconciliation, soon after taking over the reins of government, the ANC adopted a market-led land reform programme.

“The land reform programme has been a colossal failure,” he said, echoing sentiments he has shared for years.

The ANC-led government’s land reform programme consisted of three legs:

• Retribution, to redress racial imbalances in ownership of commercial land.
• Restitution, for those who lost their rights on or after 19 June 1913.
• Tenure to protect the rights of farmworkers and dwellers, labour tenants and those residing in the rural areas of the former Bantustans.

At the time, the ANC had set itself the goal that 30% of agricultural land would be transferred from white to black hands. But by 1999, less than one percent of land had changed hands and the ANC, under former president Thabo Mbeki, moved the deadline to 2014.

However, by the beginning of 2018, only approximately eight percent of the land had been transferred to black people under the land reform programme.

Much of the failure of the programme lies in the “willing buyer, willing seller” policy which meant land would be purchased from willing white commercial farmers. Evidently, this has not worked.

Expropriation without compensation

Having missed two self-imposed deadlines and with the added, significant pressure of factionalism and from the growing Economic Freedom Fighters party, former president Jacob Zuma began talking about expropriation without compensation.

While not yet ANC policy, the ANC began, in theory at least, to shift gears on land reform.

Zuma first made mention of this at the party’s 8 January 2017 conference, bringing it up again throughout the year, culminating at the December conference where his “expropriation without compensation” rhetoric was endorsed as ANC policy.

“For both their survival as a ruling party and the survival of South Africa, the ANC realised that something drastic must be done,” said Ntsebeza.

Soon after, current President Cyril Ramaphosa visited Zulu king Goodwill Zwelethini. Reportedly, Zwelithini gave his support for Ramaphosa who had stated that food security must not be negatively affected by expropriation.

However, a few months later, Zwelethini began to publicly oppose the ANC’s policy, which now threatened the king’s Ingonyama Trust which owns the rural land in the former KwaZulu Bantustan.

Land use not land rights

The process of amending Section 25 of the Constitution is already in motion, but Ntsebeza’s predictions for policy outcomes were grim.

He argued that, left as is, expropriation without compensation is “a timebomb and a threat to our democracy”.

But, there are ways in which the ANC can prevent or at least dull the detonation.

First, Ntsebeza argued, that contrary to the views of some of his colleagues that Africans were rendered “landless”, there is, in fact, a land shortage. Coupled with modern-day droughts and stock theft, land must be redistributed based on use.

This led to his second argument. He stated government must identify unused, underused and in debt farms for expropriation. This process, he said, will ensure Ramaphosa’s food security concern is addressed.

Finally, Ntsebeza shared his view that our idea of who is compensated must include the workers on farms, who have for decades been exploited.

“Government should look at both sides, they cannot have a narrow view,” he said.