Sunday, August 31, 2008

Whose land is it? Your's or the state's?

Wits University and the Weekender have hosted some marvelous debates over the last couple of months (see QPQ’s coverage of earlier events which include the meaning of Barack Obama for Africa and the role of the media in the changing fortunes of Zuma and Mbeki). This week Tues 26th August 2008 debate raged over the implications of the controversial Expropriation Bill.

Thankfully, on the way to the university I heard on the radio that Thandi Tobias-Pokolo, the chairwoman of the public works committee in Parliament has shelved the Bill after a number of sticking points in the legislation could not be resolved. She also cited the need for further consultation with “relevant stakeholders” before passing such a far-reaching act saying that existing “public participation may have been insufficient to see the Bill through.” The Bill will no longer be considered during this parliamentary cycle.

However, an interesting caveat appeared in the Business Day on Thursday which problematised the “shelving” of the legislation. It noted that despite the celebrations by opponents of the Bill, “it was not clear if this meant that it would be redrafted or if, after further ‘consultation’, it would simply be reconsidered.” Whatever, the fact that the Bill has not been withdrawn is sufficient evidence to believe that the government wishes to extend its powers of expropriation.

The all-male cast of speakers were:
  • i.) Thembeka Ngcukaitobi – Partner, Bowman Gilfillan – involved in drafting the Expropriation Bill.
  • ii) Leon Louw, executive director of the Free Market Foundation
  • iii) Patrick Craven – National spokesman, COSATU
  • iv) Andile Mngxitama – activist for land rights since 1997

The four were presented with several questions by Frans Cronje of the South African Institute of Race Relations (which co-hosted the event). Rather than recording the minutia of the talk I will summarise each gentleman’s position on the Bill.


Thembeka Ngcukaitobi

i.) Thembeka Ngcukaitobi, who was one of the architects of the document, spoke about why it had been put on hold. There were two reasons: political and technical.

On the political front Ngcukaitobi echoed the statements of the portfolio committee which said that given the significance of the Bill it needed to be canvassed more extensively and opened to further hearings. People had complained that there was not enough consultation, he said.

Technical reservations were also raised related to specific clauses in the proposal, Ngcukaitobi said. It was felt that certain sections were not consistent with the constitution. Given these considerations it was decided that Bill should be shelved. “Is there a chance it will be re-instated?” he asked “Unequivocally - yes. It has to be done that way.”

“In SA we live in a country governed by the constitution. The constitution has limited power to expropriate property. The real question is how should this be done in a manner which is sustainable?”

“Expropriation is no panacea for land reform,” he said, “it is one of the mechanisms. You have to recognize that it exists within these limits.” He added that we should take steps to mitigate against the “unintended consequences” of the legislation.


Leon Louw

Although QPQ does not share Leon Louw’s market fundamentalism, he certainly made some astute points about the rule of law and the importance of maintaining a coherent system of private property ownership, something which he argued the Expropriation Bill threatened to undermine.

Louw opened by saying that in actual fact this Bill would have done more to undermine the aspirations of the lower income strata from acquiring property in that their ownership of such property in future might be jeopardized. The rich are good at protecting themselves, he noted, and they probably would have been able to insulate themselves from the harmful effects of this law had it been passed.

What is ironic, Louw remarked, is the complete reversal of racial roles if you consider how blacks’ property rights were systematically undermined under the apartheid regime. When whites were in power whites expected the state to abuse that power on their behalf. “Blacks today feel the same and that’s very sad,” he mourned.One of the consistent themes in Louw’s discussion was that countries which scored higher on property rights indexes were usually wealthier. It is to these countries that poor people take flight at high risk to themselves. The rich are unaffected by and large.

Louw elaborated on specific problems in the legislation. “In this Bill you have no recourse to the courts. The state can literally confiscate any form of property.” There are no countries in the developed world that do this, he noted. Louw also added that it was not just land, but any property that could be expropriated for the public interest. This could have devastating consequences.

“The problem comes in when you entrust bureaucrats with omnipotent powers.” Surely in the 21st century we have now gotten over this myth, he exclaimed.

On the question of food security, Louw observed that trying to establish broad subsistence-based farming among the majority of people was to miss the point. What you do as a country to feed yourself is you get rich and the food problem takes care of itself. Look at Gibraltar, look at Malta – they are rocks, they don’t produce their own food. People who depend on what they produce are insecure. They are subject to the whims of the weather, land, etc.

We don’t produce many trousers in this country, he joked. Under this hysterical definition we suffer from trouser insecurity. “I don’t want to see what happens when we all stand up!”


Patrick Craven

iii.) In a response to Cronje’s question about the hyperbolic reaction from corporate South Africa, Patrick Craven noted that every country in the world has a provision for private property expropriation. Even in successful market economies, such provision exists, he said. “Do we need a law to solve this particular problem? Yes. But how are we going to implement it in a way that will allay the fears of those concerned?"

Craven insisted that there was a great need to re-think land reform strategy. Zimbabwe is a classic example of how not to distribute land, he said. “We need to avoid extremes and we need to avoid land distribution that goes from the hands of rich whites to the hands of rich blacks.”

Similarly, he claimed, one cannot set up subsistence farmers for failure. At the moment far too much land is not being used productively and that needs to change.

We should definitely bring the Bill back. In many areas land reform efforts are blatantly not working, he said. “Willing buyer, willing seller is not working. Farmers can hold government to ransom because of [the government’s] limited budgets. We need to bring it back to break through the logjam.”


Andile Mngxitama

iv.) Andile Mngxitama, who was certainly the most voluble of the speakers, exclaimed that it was the “anti-land reform lobby which has actually won here.” Sense was prevailed upon the government by the banks and corporate sector. The Bill is clearly part of the radical posturing of post-Polokwane politics, but no clear indication of change, he said

Mngxitama was quick to lambaste the ANC government as neo-liberals who had sold out the revolution.

“Expropriation is seen as a stick.” But this is land that is held by the few, he continued, which is actually stolen property.

He was equally scathing of the status quo of ownership which is still dominated by whites.

“The cheapest way to achieve food security is to get people to support themselves.” SA agricultural industry is an evil one. It is characterized by the violence of farmers against black people and against the environment. Agriculture is not based on people’s needs, but based on profits.

“Black people don’t have private property to protect.” He exclaimed, turning to Louw “We don’t have the money Leon because of the history. Black people don’t have the money to protect themselves.”

Most troubling was Mngxitama’s view of the land reform strategy in Zimbabwe. “In the early years of liberation, the problem wasn’t addressed; you had 4000 white guys with all of the land.” The Zimbabwean land question, the colonial question, has been resolved.

In response to Mngxitama, QPQ thinks that such concentration of ownership in settler hands was surely undesirable, but I echo Craven’s view that this strategy of mass distribution would be unsustainable. Also the violence and recrimination with which the Zim expropriation took place was clearly something we should avoid at all costs in South Africa, and not just because we don’t want to see our land going fallow. More than this, one of the most basic principles of liberal democracy is that we resolve our conflicts through non-violent means, violence by the state included


  1. Thank you David for an excellent summary, which I shall be circulating widely. In fact, it is the best one I have read sofar - very clear and concise.

    Vera Beljakova

  2. Dave, one of the things that concerns me (having done work on land reform and been on site at land reform projects) is the way in which abuse of power by white farmers is dreadfully prevalent. We observed people who had put in a tenancy application for land, but been threatened with death, chased off land at gunpoint and, as they were no longer 'resident' on the land, unable to continue the application formally. More has happened since.

    However, government is incredibly inefficient too. Projects that should have been resolved up to a decade ago have not been resolved. I observe a project in which a white family was literally trying to give land away to families who had been labour tenants. They didn't want money for the land, but they wanted to donate it. They have been waiting for years to get adequate responses from the regional DLA.

    Combine the two effects and you have a recipe for disaster. For the first you need greater defence of the defenceless, which might, of necessity require confiscation clauses in order to constitute a credible threat. However, this MUST be complemented by improved efficiency of government with improved training and education of land claimants and monitoring.

    The system is just broken imho.

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  6. Latest government information is that 50% of the commercial land redistributed by the state to claimants is now barely supporting the most basic sustenance farming, which is dreadful news for South Africa's food security. No wonder SA needs to IMPORT FOOD, while commercial arable land now lies fallow or is underutilised for family consumption only. It appears that the government now wants to reclaim such under-farmed land and re-lease it to more productive farmers. Interesting development here in Africa. Yoyo of good intentions.
    Vera Beljakova - Parktown