Public hearings in South Africa on whether it is necessary to amend the Constitution to allow for land expropriation without compensation (LEWC) recently came to Cape Town. Academic and legal opinion largely concurs that the answer is no. Section 25 of the Constitution already allows for expropriation of private property by the state in the public interest, which “includes the nation’s commitment to land reform … to redress the results of past racial discrimination”.
The LEWC issue has exposed the deep divisions within South African society, along political, class and especially racial lines. Broadly speaking, left-of-centre politicians, working class, unemployed, poor and black South Africans are in favour of LEWC. Right-of-centre politicians, middle-class, wealthy and white South Africans are generally opposed to LEWC. These fissures largely reflect interest group politics: who believes they will win and who fears they will lose from LEWC?
The ruling African National Congress (ANC) is 106 years old but is running scared of its 5-year-old infant offspring, the Economic Freedom Fighters (EFF), led by the charismatic Julius Malema. The EFF represents disenfranchised black youth and others who want to expropriate land, especially white-owned commercial farms, without compensation, now. The ANC, at its elective congress last December, voted in favour of LEWC – but they have a less radical vision than the EFF.
President Ramaphosa speech
Perhaps reflecting his business background, President Ramaphosa is cautious. He has to implement LEWC because the ANC voted for it, but he also fears the consequences for agriculture, food security and economic growth. Two weeks ago he addressed the nation with a curious double-speak message: we do not need to amend the Constitution, but we will amend the Constitution, to clarify the conditions under which LEWC will be implemented.
The President’s address pre-empted the participatory democratic process that Parliament had already launched, which has been collecting opinions from citizens in public hearings across the country for the government to consider before making its decision. Analysts agree that this was a strategic attempt by the ANC to regain control of the discourse from the EFF, and to consolidate its support ahead of next year’s general election, by reassuring its voter base about its commitment to the land issue.
Polarised political context
There is no doubt that land reform has been an area of dismal and puzzling failure by the ANC, which has done virtually nothing on this seminal issue of social and economic injustice throughout its 23 years in power. Land redistribution was a cornerstone of the ‘Freedom Charter’ in 1955 and the ANC pledged to redistribute 30% of commercial farmland within five years of the 1994 election, but by 2018 only an estimated 8-9% of farmland has been transferred through restitution and redistribution.
The ANC is implicitly blaming the Constitution for this limited progress. But a High Level Panel chaired by former President Motlanthe in 2017 found that the Constitution was not an impediment to land reform, rather a lack of political prioritisation. The Constitution is not to blame for the government’s chronic under-resourcing of the land reform department, which accounts for only 0.4% of national expenditure.
The official opposition party, the centre-right Democratic Alliance (DA), opposes LEWC and argues for defending private property rights, mainly because the DA’s constituency includes many affluent land- and property-owners. DA leader Mmusi Maimane said recently: “Don’t change the Constitution, change the government!” However, this position ignores the historic processes of land dispossession that created South Africa’s highly racially skewed current distribution of land and wealth.
Right-wing parties like the Freedom Front Plus fear that LEWC will give carte blanche to land invasions: “We will go the way of Zimbabwe!” Left-wing parties like the EFF see LEWC as an opportunity for redress of historical injustices dating back to the 1913 Land Act which dispossessed the African majority of their land, or even as far back as 1652, when the Cape of Good Hope was colonised by the Dutch.
Two big questions
Against this highly charged political context, the public hearings continued last week, even after the President’s announcement. But amending the Constitution is only the first step. Two big questions still need to be answered, and are likely to dominate the political discourse leading up to the general election next year. Whose land will be expropriated? And whose claims to land will be prioritised?
Civil society actors argue that there must be transparent, democratic and accountable mechanisms to ensure that redistributed land is not captured by politically connected elites. To date, only 13% of land reform beneficiaries are women, and the public hearings on LEWC were dominated by men. The NGO Women on Farms Project argues that women farm workers and dwellers must be explicitly targeted and fast-tracked for redistributed land. These women have a wide range of land needs – for housing, for household food production, for market production and for communal or joint enterprises.
Most importantly, farm women need tenure security, land for food and the security and dignity that arises from independent access to productive land, water, markets and other resources. “I want land that I can leave to my children.”
This blog was co-authored by Stephen Devereux, a researcher at IDS and Colette Solomon, an IDS alumna, Director of Women on Farms Project, a South African feminist NGO that campaigns for farm women’s rights to land.