At a time when debate about land reform and property rights is raging throughout South Africa, Parliament appears to have shelved the detailed report and recommendations of the High Level Panel (HLP) headed by former president Kgalema Motlanthe.
The report is the outcome of two years of public hearings in all provinces on the assessment of key legislation. It includes commissioned reports on all aspects of land reform by a wide range of experts and numerous roundtable discussions with stakeholders, including government officials.
It presents a devastating analysis of what has gone wrong with land reform over the past 24 years, and reflects the fury and deep sense of betrayal of the ordinary people who flocked to the public hearings in their thousands.
The report, which was commissioned by the Speakers’ Forum and drafted by a panel of eminent South Africans, also includes detailed recommendations to fix the problems identified – down to the level of indicative draft laws.
National Assembly Speaker Baleka Mbete said when she and provincial Speakers received the report on 22 November last year that its recommendations should be submitted to MPs and provincial legislatures for urgent consideration. She asked the 15 panel members to submit draft legislation to deal with crucial challenges.
“We concur with the HLP that drastic measures are required to fundamentally alter the trajectory of our society’s development,” Mbete said. Now, however, Parliament has voted for an extended recess from 18 June to 14 August, leaving time only to debate and pass departmental budgets before parties start campaigning for elections next year – or possibly sooner.
There has been no announcement of the promised plan to submit the High Level Panel’s report to committees. Instead, Parliament appears to be intent on processing several deeply flawed laws that the Panel warns are dangerous, and should be put on hold.
The National Assembly has already passed the Traditional and Khoi-San Leadership Bill and the Traditional Leadership and Governance Framework Amendment Bill, which are now before the National Council of Provinces. These bills, which are amongst those that the HLP said should be shelved, further undermine the already tenuous security of tenure of the 17 million South Africans living in the former homelands.
They are consistent with the resolution at the ANC’s December conference that land in the former homelands “must be transferred to the institution of traditional leaders”, but contradict resolutions adopted at the same conference about giving title deeds to black people and the need to democratise the administration of communal land.
The legislative proposals that the Panel makes to give effect to securing land rights and democratising decision making in communal areas seem, on the other hand, to be on hold until after the 2019 elections.
Despite the current hysteria about what ‘expropriation without compensation’ will mean for the title deeds of white people, it is the property rights of black people that continue to be systematically undermined. Current policy is that new black farmers will lose their land if they don’t perform to the satisfaction of state officials.
People at the public hearings spoke scathingly about the role of state officials and politicians in land reform, describing them as vultures who steal the little that people have left after decades of oppression and forced removals. They named names on camera and gave detailed descriptions of the problems they face, including the violent attacks suffered by land activists in mineral rich areas.
The Panel points to the stubborn legacy of spatial inequality in South Africa. It records that the deepest poverty remains starkly concentrated in the former homelands where, as in the urban shack lands, people have no recorded rights to their land. This makes them vulnerable to eviction and exploitation. It also makes them invisible to the formal economy and reliant on intermediaries to prove their addresses when they want to vote, or apply for ID documents or social grants.
South Africa has always had state ownership of land for black people, and still does in relation to the former homelands and redistributed land. But people want and need property rights to be able to defend themselves against those such as mining companies, state officials, the “Red Ants” who enforce evictions, and, in some cases, traditional leaders, who as one speaker said, ‘treat us as nonentities with nothing’.
The Constitution, in section 25(6), promises tenure security to all those whose current insecurity derives from past racially discriminatory laws or practices. This promise encompasses virtually everyone living in the former homelands, and with established occupation rights in urban areas. An early land-reform law, the Interim Protection of Informal Land Rights Act (IPILRA) of 1996, seeks to effect that pledge by providing that the holders of informal land rights may not be deprived of their rights without their consent, except by expropriation.
Another crucial source of property rights, particularly for rural people is customary law. The Constitutional Court has recognised customary ownership to be ownership, not merely ‘akin’ to ownership as the Supreme Court of Appeal had earlier ruled in the Richtersveld case. Customary law ownership is extremely significant for people who were systematically denied statutory or common-law rights of ownership on the basis of race.
There is a widespread misconception in South Africa that title deeds are the only valid form of property rights. This is not the case. Customary law allows for inclusive and overlapping forms of ownership that privilege claims of need, such as those of single women, who, increasingly since 1994, have won land rights for themselves and their children within customary systems of land rights.
One of the key recommendations of the High Level Panel was for a Land Records Act to record existing informal land and property rights through technologies such as GPS and block-chain. The report recommends a number of other far-reaching interventions such as a law to measure whether we are achieving ‘the equitable access to land’ promised by the Constitution.
But its most urgent recommendation is that existing laws that protect informal land rights must be properly enforced. The Mineral and Petroleum Resources Development Act, for example, must explicitly be made subject to IPILRA, as must the Traditional Leadership and Governance Framework Act.
The Speakers Forum, by putting the HLP report on a back burner, also has deprived MPs of the opportunity to grapple with the explosive issue of consultation and consent in relation to mining on communal land during the run up to the 2019 elections. That does not mean the issues will go away. Violent protests and court battles will continue and Parliament, if it ignores the evidence available to it, is likely to end up with egg on its face yet again if laws are rushed through to fulfill pre-election promises.
One committee has, however, taken the lead in showing how a seemingly intractable land issue can be confronted and neatly resolved by reference to the rule of law and the Constitution. The Rural Development and Land Reform portfolio committee called the Ingonyama Trust Board of KwaZulu-Natal to account for its advertisements in November advising people to ‘upgrade’ their existing customary rights or Permission to Occupy certificates into lease agreements, which generate substantial revenue for the Trust. The Trust was advised that its actions had not been authorised by the Department of Rural Development, that they undermined constitutional rights and amounted to a programme of renewed dispossession. The Trust was warned to stop issuing residential leases and, instead, to consult the people directly affected and the Department about the desirability of such leases.
It is notable that since that meeting there have been no further threats from KwaZulu-Natal in relation to the recommendations of the High Level Panel.
So why does it appear that the Panel’s report has been shelved at the very moment of its greatest relevance to the land debate? Perhaps the problem statement about state failure and increasing corruption does not sit well with the build up to elections? But if the hope is that talk of ‘expropriation without compensation’ will bedazzle voters into forgetting what has gone wrong with land reform, and who has paid the price, the public hearings about amending the Constitution are likely to provide a salutary wake-up call.
Now is not the time for ambiguous and confusing slogans, but for the hard work of confronting how and why land reform has failed, and fixing it.
This article first appeared in Business Day on 5 April 2018.