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Land Reform in South Africa: Fact and Fiction

By International Crisis Group

U.S. President Donald Trump touched off a diplomatic row with South Africa by repeating an erroneous broadcast about land reform there. In this Q&A, our Southern Africa Senior Consultant Piers Pigou sets the record straight about the land ownership and expropriation debates that are really underway in South Africa today.

What happened to start the row?
On 22 August, U.S. President Donald Trump tweeted that he had instructed Secretary of State Mike Pompeo to investigate land seizures and the “largescale” murder of (white) farmers in South Africa. President Trump apparently was responding to a Fox News report that claimed that the South African government had changed the constitution to enable land expropriation without compensation. The Fox broadcaster, Tucker Carlson, described South Africa’s policy and its president as racist, as the supposed amendment targeted only white farmers.

The Fox story was inaccurate, as was the president’s tweet. The constitutional reform is still pending and it does not single out white farmers. Moreover, provisions for expropriation are not new. Section 25 of South Africa’s current constitution states that the government may expropriate land, but only for “a public purpose or in the public interest” and “subject to compensation”. The amount of compensation, and the time and manner of payment, must either have been agreed to by those affected – the “willing buyer, willing seller” principle – or decided by a court. The amount must further be “just and equitable”, reflecting a balance between the public interest and the interests of the owner. Legal experts and scholars agree that compensation under these conditions could, in principle, be set at zero, provided that doing so is “just and equitable”. This option, however, has never been tested in court.

In March, the National Assembly passed a resolution promising a constitutional amendment to ensure “that Government would continue the land reform programme that entails expropriation of land without compensation, making use of all mechanisms at the disposal of the state, implemented in a manner that increases agricultural production, improves food security and ensures that the land is returned to those from whom it was taken under colonialism and apartheid and undertake a process of consultation to determine the modalities of the governing party resolution”. According to South Africa’s ruling African National Congress (ANC), the proposed amendment would introduce greater clarity to existing expropriation provisions, though it would remove the stipulation “subject to compensation”. The ANC’s position has, in turn, fuelled anxieties that it will undermine property rights and damage the economy in order to garner political support with a populist move. A furious debate has ensued and continues today. But nothing has been finalised; there have been no authorised land seizures.

Definitional discrepancies and contested figures feed disagreements over the nature and scale of the problem.

Trump’s claim about “largescale” murder was likewise misleading. The government has designated attacks on farms and smallholdings a “priority crime” since 1998. Definitional distinctions of what constitutes these crimes complicate matters; research shows that the primary motive for such attacks is usually robbery, though there are cases where it was political, racial or labour-related. Crime statistics gathered by the South African Police Service are not comprehensive and since 2000 have not been disaggregated by race. In May, the police released a statistical report for the first time in over a decade, covering the period since 2012. The government said that report showed that the number of farm attacks had increased – to an annual average of 510 – but that the number of murders had decreased to an average of about 56 each year. Since there is a gap in the reporting, it is difficult to be sure that these numbers point to an increase or a decrease compared to the period before 2012. But recent research from AgriSA, an agricultural industry pressure group, shows that murders of white farmers are lower than at any time in the past two decades. The 56 average between 2012-2018 would definitely represent a decrease from 1997-1998, when 153 murders were recorded. A leaked cable from the U.S. embassy in Pretoria in the wake of Trump’s tweet corroborates the AgriSA findings.

The findings are contested by AfriForum, a group founded in 2006 to defend (mainly white) minority and property rights and perceived by many South Africans as politically right-wing and racially exclusive. AfriForum claims the police statistics point to a “drastic increase in farm murders”. Definitional discrepancies and contested figures feed analytical and political disagreements over the nature and scale of the problem. As the Pretoria-based Institute for Security Studies has argued, “the extent of violent crime is hard to define without better data”. Both Carlson’s comments and Trump’s tweet drew a sharp rebuke from South Africa President Cyril Ramaphosa. Moreover, British Prime Minister Theresa May, in her first visit to Africa in late August, sounded a considerably more supportive note on the proposed land reforms, saying that they were based on a “legal, transparent and democratic process”. The International Monetary Fund has also thrown its weight behind land reform, but only if it results in stability, addresses inequality and does not undermine agricultural production and food security.

Where did Trump’s claims come from?
The Fox News claims were apparently based on a short blog post published by the Cato Institute, a libertarian U.S. think tank, warning that South Africa was carrying out a policy similar to Zimbabwe’s Fast Track Land Reform Program, which had led to chaos, violence – particularly against white farmers – and a precipitous drop in agricultural production. This analogy draws from a prevalent, but fundamentally inaccurate, contention that South Africa is going the way of its northern neighbour, on a slide into economic ruin. To its credit, the State Department in its efforts to “explain” the president’s tweet confirmed that it disagrees with this comparison. But the State Department did include the admonition that expropriation without compensation “could take South Africa down the wrong path”.

The Cato Institute report went further, suggesting South Africa’s land reform “could also lead to a collapse of the banking sector”. Banks are exposed through loans to the agricultural sector and are vulnerable to any process that undermines property rights and values; the Banking Association of South Africa has warned against a badly executed expropriation strategy and is exploring ways to support alternative efforts to transfer land. The Cato report argued that Trump should intervene and that the U.S. Congress should convene hearings on the issue if the South African constitution is amended. It also pointed out that South Africa would become ineligible for trade advantages from the African Growth and Opportunity Act if constitutional changes violated the act’s provisions on property rights (the Act’s purpose is to assist the economies of sub-Saharan Africa and to improve economic relations between the U.S. and the region).

As a libertarian standard bearer, the Cato Institute is devoted to defence of private property rights. Its report was also influenced by South African organisations, such as AfriForum, whose members were in the U.S. earlier this year lobbying on this issue and secured a meeting with National Security Advisor John Bolton. Not surprisingly, AfriForum welcomed Trump’s tweet, insisting, without evidence, that the killing of famers is widespread and the reform policy discriminatory. This posturing has fuelled racial aspects of the debate.

A few months ago, in March, calls by Australian Immigration Minister Peter Dutton for issuing white South African farmers with emergency Australian visas because they face persecution provoked a similar diplomatic spat, prompting the Australian government to distance itselffrom Dutton’s comments. Dutton’s department subsequently blocked a white South African farmer’s asylum bid because its evidence showed that “the vast majority of crimes against whites are not racially motivated”.

What was the fallout of Trump’s tweet?

The South African government responded to President Trump’s tweet by correcting the factual inaccuracies and pointing out that he could route any concerns or requests for clarification through diplomatic channels rather than social media. In a speech several days later, on 26 August, President Ramaphosa told Trump that “he must stay out of our issues and we will not get involved in your issues in America”. South Africa, Ramaphosa continued, would find its own solution for all its citizens, black and white.

There is no denying the racial connotations of the misrepresentations by Australian and U.S. politicians, commentators and analysts.

There is no denying the racial connotations of the misrepresentations by Australian and U.S. politicians, commentators and analysts. That said, they resonate with racial fault lines in South Africa that have sharpened over this issue in recent months and years. On one hand, poor black South Africans are increasingly frustrated by continued economic inequality and the slow pace of reform (many call for “radical economic transformation”). On the other, sections of the white population, especially farmers, are ever more convinced that they are being targeted for expropriation and attacks by virtue of their skin colour. Some farmers are looking to emigrate, even as far away as Russia, believing that they have no future in South Africa.

Why are there growing calls for land reform in South Africa?

In 1994, when the institutionalised racial segregation and discrimination known as apartheid officially ended, whites owned 87 per cent of the land. The newly empowered ANC promised to redistribute 30 per cent of commercial farmland within five years. It managed a paltry 1 per cent by 1999 and only 9.7 per cent by 2018. The slow pace of reform and redistribution has generated enormous frustration. Reasons for the delays are manifold, beginning with the fact that most South African land reform was based on the “willing seller, willing buyer” principle, with many white farmers unwilling to part with their land. There is also a technical challenge. Critics allege that 70 to 90 per cent of government transfers of land to black farmers failed or were struggling because farms handed over were insufficiently productive, though it is unclear whether available data supports their allegations.

But land reform is not just about redistribution of rural and agricultural land. Many South Africans have moved from the countryside, resulting in the majority now living in urban and periurban areas. For example, Gauteng province, home to Johannesburg, the country’s largest city, and Pretoria, the capital, has doubled its population since 1994 and now is home to 14 million of South Africa’s 56 million people. There is massive pressure to provide basic services like housing, water, sanitation, health care and education – a project to which land is central. In Cape Town, 575,000 families are reportedly waiting for “housing opportunities”, but with current resources, the local government can only provide 18,000 yearly. Stabilising and resolving tenure options provides for a legal foundation and permanency that underwrite development prospects. Ramaphosa has warned that a failure to address this problem will lead to instability. The government is already reeling from protests – many of which are violent – at the lack of social services.

As a result, in December 2017 the ANC adopted its new policy for comprehensive land reform that would include enhanced options for expropriation of land without compensation. A parliamentary joint constitutional review committee established to review Section 25 received over 700,000 written submissions. Public hearings initiated by parliament several months ago are now drawing to a close. Oral submissions from 30 organisations are scheduled for the week 3 to 7 September. The submissions and hearings provide a platform for South Africans, black and white, to air their views. They have revealed the depth of emotion that this issue generates and illustrated the profound disagreements about the need for radical land redistribution.

At face value, the threat of “land grabs” – an explosive term given the widespread historical expropriation of black land by whites – has echoes of Zimbabwe’s chaotic and violent seizure of white farmers’ land. Notwithstanding the ongoing challenge of illegal land invasions across the country, this option is not on the table as formal policy in South Africa. Yet some South African farmers, political parties and commentators have raised red flags based on fear that such seizures will target mainly white and commercial landowners. They warn of dire economic consequences, especially for investment. Critics also assert that a more radical approach to land reform, as experienced in Zimbabwe, would deal a body blow to the country’s agricultural output.

A lawless approach similar to Zimbabwe’s would indeed be devastating. But little suggests that will happen in South Africa. True, the Economic Freedom Fighters (EFF), the country’s third largest party, calls for illegal occupancy of land. But the ANC government does not support such calls. It must instead find a workable regulatory response. As described, the current constitution does not proscribe expropriation without compensation. The ANC claims that the state will soon test existing provisions of Section 25 in the Land Claims Court to demonstrate that such practice is allowed; it is unclear why they have never done so before. Some commentators claim that this clarification will demonstrate why the proposed amendment is unnecessary, arguing the constitutional mandate to implement reforms that address historical inequalities is a sufficient basis for expropriation without compensation. They accuse the government of blaming constitutional strictures for their own failures, claiming there are other options for pursuing a progressive land reform policy. What is required, they argue, is the political will to implement such reform. Indeed, the government’s allocation for land reform has fallen to 0.4 per cent of the budget and land redistribution has “declined from about half a million acres per year at its zenith in 2007/8 to one tenth of than in 2015/16”.

Conversely, the ANC argues that the reform will provide greater clarity on the conditions under which expropriation could take place. Any land reform, the government contends, will be legal and follow due process; expropriations would not be authorised if they would hurt agricultural production, food security and other economic sectors. In addition, South Africa, unlike Zimbabwe, retains a robust, independent judiciary that would not be influenced by populist politics and would ensure that due process is followed.

So what is going on?
The government claims that its new approach will unlock the land’s economic potential, but critics claim that it will do just the opposite.

Ramaphosa inherited the land reform issue from his predecessor Zuma. He is arguably doing the best he can in the circumstances, by playing a long game subject to the full gamut of democratic process. Some claim that, in emphasising the topic of expropriations, the ANC is pushing a populist line trying to recover its declining political support and arrest the rise of the EFF, which has championed radical land reform and exposed the ANC’s failings in this regard. Land reform is also an issue that can heal fissures within the ANC and in its alliances with the South African Communist Party and Congress of Trade Unions. A constitutional amendment would require a two-thirds majority in parliament. The ANC would require the support of the EFF, which is arguing for wholesale nationalisation of all South African land, a position from which Ramaphosa has distanced himself. The ANC supports the extension of property rights and the provision of title deeds to new owners. Consequently, the EFF may not support a watered-down proposal.

The furore accompanying claims about what the new policy is and what it is not, and most importantly how it will affect property rights, economic growth, food security and agricultural productivity, highlights the need for the South African government to provide greater clarity about its land policy. President Ramaphosa’s 22 August article in the Financial Times is a good start. In that piece, he argues that the amendment would “make explicit the terms under which land could justifiably be expropriated without compensation”, at the same time emphasising that policy would also “need to reinforce the fundamental principles of the property clause”.

The government claims that its new approach will unlock the land’s economic potential, but critics claim that it will do just the opposite. The government should continue to assuage fears that it will disregard property rights, reiterate its commitment to due process and reassure domestic and international investors that their interests are safe. That also requires that it be more sensitive. Some senior political figures have made public statements that give the impression that expropriations are racially predicated and will be carried out by force, if necessary; clearly any statement or action that creates such an impression is counterproductive. The government also needs to be more candid in reviewing its own shortcomings and how these might be fixed. It could also explore other innovative options for expediting land reform.

Patterns of land ownership also remain contested terrain. A recent government audit shows that individuals, companies, traditional authorities and trusts own 90 per cent of South Africa’s land, with only 10 per cent owned by the state. Seven per cent of landowners hold 97 per cent of the agricultural plots: of that 7 per cent, 72 per cent are white and only 4 per cent black Africans. These embedded distortions, the government asserts, affirm the importance of a new approach to land reform. A 2017 land audit undertaken by AgriSA with the magazine Landbouweekbaldcorroborated the racial ownership breakdown, but also pointed out that landowners who are not white “control more than 46 per cent of South Africa’s agricultural production”. The study found that conventional commercial transactions were twice as likely to have redistributed land than the state’s purchases for new black owners under its land redistribution program.

While the ANC denies that a change to Section 25 would dilute property rights, the influential South Africa Institute for Race Relations (SAIIR) is less sanguine about the ANC’s commitment. Since 2007, the SAIIR alleges, the government has made 35 attempts through either legislation, policy or regulation to undermine property rights. The move toward reinforcing expropriation options, they argue, is simply the latest in a series of systematic efforts to do so. The ANC has not so far made public draft wording for the amendment or suggested how expedited expropriation would be carried out. This lack of clarity compounds uncertainty and demonstrates the need for a continued commitment to an open and informed policy debate.

Ultimately, an approach that does not jeopardise food security, investment and economic growth is necessary; agriculture is a mainstay of the South African economy. Legal clarity and due process will provide reassurance to all landowners, black and white. South Africa needs a workable solution that addresses the growing demand for land, both in rural and urban areas. Land ownership is complex and not static; yet the legacies of historical dispossession continue to loom large. Poverty, unemployment and inequality remain the perennial triple threats to South Africa’s long-term stability and economic success. The government must deliver a clearer vision of how it plans to deliver the greatest good


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