Public hearings on land have largely missed the nuance of this complex topic

The release of Kgalema Motlanthe’s High Level Panel report in November 2017, alongside resolutions from the 54th conference of the African National Congress (ANC) and the ultimate success of an Economic Freedom Fighters’ motion on land expropriation earlier this year, has made land reform an emotional and topical issue in South Africa.

Processes that parliamentarians and government claim will speed up land reform are in full swing, with the Restitution of Land Rights Amendment Bill (B19 of 2017), Traditional and Khoi-San Leadership Bill (B23 of 2015) and the finalization of the Constitutional Review Committee report all before Parliament following public hearings throughout the country.

Mandates for the Public Hearings

The Constitutional Review Committee was mandated by Parliament to look into the possibility of amending the Constitution to allow for expropriation of property, mainly land, without compensation. This committee’s specific mandate is to review section 25 of the Constitution, commonly known as the property clause.

The Restitution Amendment Bill is being driven by the Parliamentary Portfolio Committee on Rural Development and Land Reform. The Bill proposes certain amendments to the Restitution of Land Rights Act of 1994 that would re-open a period for people to lodge claims for restitution of their dispossessed land. The Bill also allows for lodgment of claims by those who have lost land through the betterment process in the former Homeland territories.

The Traditional and Khoi-San Leadership Bill (TKLB), currently being considered by the Cooperative Governance and Traditional Affairs Select Committee, aims to provide recognition of Khoi-San communities, leaders and councils, and to combine and adapt existing laws to create a single uniform law governing traditional leadership. Although it does not directly deal with land reform, it deals with the powers of Traditional Leaders, potentially in relation to land. Of particular interest is Clause 24 of the Bill, which says that Traditional Councils may enter into agreements or partnerships with municipalities, government departments and any other person, body or institution without giving communities the prerogative to be consulted and consent when entering into such deals. This clause entrenches the misconception that Traditional Leaders are ‘Beng ba Mabu’, loosely translated to mean owners of the soil, and often results in people losing their land rights in the name of ‘development that which benefits only the elites.

Dynamics from the hearings

The fact that land continues to be concentrated in the hands of the minority, being mostly white commercial farmers and politically connected elites, compounded by the slow pace of redistribution and the variety of challenges that impact negatively on land reform, makes organising public hearings about land a daunting and strategic task. Venues often are not centrally located and accessible, locations that are ‘hotbeds’ on issues to be discussed are ignored and information is released at the last minute to stifle potential public criticism.

In some provinces, public hearings on different issues took place on the same dates and sometimes at the same venues. TKLB hearings were conducted by the provincial legislatures, and information was not readily available. For example, in Limpopo TKLB hearings were postponed at least twice due to poor turnout by the public who were not made aware of the hearings by the provincial legislature, while the Eastern Cape also postponed some hearings due to similar problems.

Reports from two hearings in Mpumalanga indicate that they took less than an hour to conclude. For example, in Elukwatini, located in the Gert Sibande District, the public, who were attending hearings on the Restitution Amendment Bill, were asked to remain behind for about 30 minutes after the conclusion of Restitution hearings, to be presented with the TKLB. They were told that the TKLB only concerns Khoi and San communities but were still asked to support the Bill.

In KwaZulu-Natal venues were chosen to accommodate Khoi and San communities, which meant that other traditional communities who are equally affected by the Bill, would not have easy access to these venues. For example, some poor rural residents from the far north of KZN such as Babanango, Mkhanyakude and Jozini had to travel for about 340 kilometres return to attend Richards Bay hearings, despite not being able to afford transport. In response to queries about transport provisions for these residents, the province indicated that it did not budget for transport and it was unnecessary because the Bill was focused on the Khoi-San. This misconception that the 70-page bill deals solely with Khoi-San issues has also permeated at other public hearings. At the TKLB hearing in Kokstad KZN, the chairperson ostensibly shut down speakers who did not appear to be Khoi-San and who wanted to give oral submissions.

Hearings on the Restitution Amendment Bill were held a week before the Constitutional Review hearings commenced in most of the provinces. The oral submissions on restitution were robust, with people questioning how the hearings were allowed to proceed parallel to the CRC hearings. The key points of contention were about logistical arrangements, because venues changed without sufficient notice. For example, the Elukwatini and Siyabuswa hearings were swapped within days of the hearings taking place. This was a general concern across all the hearings.

Participants were not given sufficient notice of the hearings and were not given copies of the legislation to enable them to understand the amendments. In Limpopo Province, the hearings were dominated by Traditional Leaders, even though ordinary people were also given a chance to make inputs. In Jane Furse, Traditional Leaders were outraged that they had received invitations at the last minute and claimed they were shown utter disrespect by not being allocated a two-day engagement that would have allowed them to go back to their communities and engage about the Bill before providing any inputs. They suggested that the parliamentarians were the ones setting them up to get discredited by the communities they lead.

People were brave enough to mention the localised problems that have ravaged land reform, especially the failures of government’s restitution programme and the failure of land redistribution policy to set out enabling criteria for poor people to access land for multiple livelihood purposes. The participants mentioned the recommendations of the High Level Panel report on restitution and land reform in general, and the LAMOSA judgment which challenged the constitutionality of Parliament’s previous attempt at amending the Restitution Act.  Additional problems centred on the fact that government was not sufficiently capacitated to deal with the claims that they would receive from reopening the process to allow people to lodge new land claims.

Hot on the heels of the Restitution Amendment Bill hearings were the Constitutional Review Committee (CRC) public hearings. These hearings were extremely polarized and politicized in the northern provinces, where EFF leader Julius Malema was part of the Committee. The process for oral submissions was modeled on a referendum despite the complexity of the CRC’s mandate. People were asked to state upfront whether they were for or against amending Section 25 of the Constitution to allow the government to potentially expropriate property without compensation.

In some locations, speakers clad in political party regalia spoke along party lines and those who opposed a constitutional amendment because it did not provide for title deeds as a form of security for rural communities were howled down. Those who sought to give genuine apolitical comments that spoke to the problems at grassroots level were not howled down. Political party affiliations were less prominent in other hearings, but still influenced the undertone of several inputs.

The arguments for expropriating without compensation were varied, but most argued that it would alleviate poverty amongst black people as land ownership enables people to be self-sufficient. To some, expropriating was about rectifying the injustices of the past and invigorating dignity into the lives of black citizens, especially those living as labour tenants or farm dwellers.

Yet, a number of questions are necessary to unbundle the reductionist for-or-against approach adopted by the CRC and there was little space for them to be addressed. Do we need expropriation without Compensation to achieve land reform? Do we need to change the Constitution to achieve expropriation without compensation? If the answer to the above questions are ‘yes’, is there political willingness and institutional capacity to implement the changes and speed up land reform? Lastly, who will eventually benefit from the changes?

There is no denying that South Africa’s land is unequally distributed along racial lines, that land reform has failed dismally to provide access for poor people, and that there has been elite capture and corruption in land reform. However, the ‘creation’ of urgency through these public hearings, without providing space for nuanced and practical discussions, makes one wonder if the underlying purpose was just for parliament to clean up its image in time for 2019 elections.

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