Land Expropriation: Where does SA stand re Trends and Standards?

“Those who defend the status quo on public services defend a model that is one of entrenched inequality.” This was Tony Blair’s response years ago, to those against change. He had discovered all too soon after his first election to the office of Prime Minister in the UK in 1997, that making changes “touched vested interests… and then funding and limited budgets are always where the wheels fall off.”

A quote that not surprisingly held significance for me as an MP in South Africa, with a responsibility to oversee the delivery of services by government departments in the midst of some of the most entrenched inequality in the world, not to mention vested interests!

To quote from Through My Eyes: Life, Politics & Religion, “I remained hopeful that South Africa would be able to rise to the challenge of addressing the injustices of the past without tearing down it’s children’s heritage, despite many reasons to despair.

Treasury, in many ways held the key, as land reform targets could only be met if funds were made available… available state-owned land was minimal but more than 30% of commercial farms were already available for sale, so the question was not simply availability, but finances for acquisition, and then, how that land was to be used.

Land was needed for both (residential and agricultural use), and government’s hands were tied as, even when sellers were willing, it was at their price.

The Bible, which has a lot to say about land and land distribution, clearly supports the view that there is nothing more important to the life of a people than land, and that land is essential for a nation to exist and an economy to prosper… the real wealth of a nation is in the potential of the land and its people, and a society’s level of poverty is linked to where that wealth is held and how the people and the land are allowed to develop.

The 21st century global reality is still that, where land ownership is in the hands of the government, religious institutions, or a minority elite, nations remain desperately poor and underdeveloped. In some of these poorer nations, land is owned almost entirely by one or all three. (Landa Cope, author of God and Political Justice).

We cannot get away from the fact that the distribution of land is closely linked to whether or not economic development actually addresses the scourge of poverty in a society. Yet there are so many blind spots on all sides of this issue and so many people would rather defend their fear and hate-based narratives at the expense of finding solutions, not perfect solutions, but workable solutions.

The way I see it is, if we do not genuinely work toward seeing land ownership and wealth increasingly in the hands of the people in South Africa, we are courting disaster. The EFF has expressed similar aspirations, yet where we differ, is that I believe due process must ensure protection against abuse. Due process with checks and balances is Scriptural and intended to be a deterrent as far as corruption is concerned. As Landa says, “Where corruption can take place there are always those who will be corrupt.”

Without reasonable legal protection from state abuse, people in all stations of life are vulnerable. With this in mind, it was reassuring that the vast majority during the Fifth Parliament upheld the protections in the Constitution that pertain to property, while acknowledging land must urgently be transferred, in far greater measure, into the hands of individuals, families and communities if we are to prosper as a nation. So why then did Jacob Zuma, who was President of the country at the time, call for changes to the Constitution?

The Expropriation Bill which aimed to move the land reform process forward by providing motivation to sellers to become willing (it gave state entities the power to take land if deemed necessary but left the constitutional protections in place) after being passed by Parliament, was sent back to Parliament. Opposition parties had succeeded through the courts, in holding up the process once again, and this was exactly what had been happening with the willing buyer, willing seller policy. Farm owners had held up the process through the courts, costing time and money and these delays led to increased tensions in the country.

The President appeared to be extremely frustrated, not only with his government’s inability to address the matter of land ownership, but the increasing inequality that threatened to destabilise the country, and this was apparently, the last straw. I had suspected for some time that this reaction was inevitable if land reform continued to be blocked. I really did think this legislation was the best option at the time, as the constitutional protections would still have been there. The willing buyer, willing seller principle had frustrated land reform and infrastructure development, both crucial for economic gains to impact the lives of the majority of people.

The result of what I call “opposition games” (holding up processes through the courts), was that in December 2019, calls for written submissions on the Draft Bill to amend Section 25 of the Constitution were made. It is unfortunate that things had to come to this, as the protections in the Constitution were there for all in South Africa who own or aspire to owning property, and not just a select few. Opposition parties never seem to understand that this country is still transitioning from human rights abuses and deprivation en route to a just and equitable society—we have not arrived. Many in the opposition live in a dream world, in my opinion, and think we can just skip over reparations and restitution using the courts. I felt it was unwise to give extremist agendas fertile ground to use the deprivation of so many to create chaos and fuel their agenda.

The Draft Bill, as I understand it, now (I said at the time of writing) provides that “…a court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil.” It also states that “national legislation must…set out specific circumstances where a court may determine that the amount of compensation is nil.” This is key!” (Through My Eyes: Life, Politics & Religion by Cheryllyn Dudley). It is also where we should focus attention in the deliberations presently taking place in Parliament.

BACKGROUND
Going back more than a century to the 1913 Natives Land Act, which provided legislative form to a process of dispossession in South Africa that had been going on since colonial times.

The 1913 Natives Land Act saw thousands of black families forcibly removed from their land by the apartheid government. The Act which became law on 19 June 1913 limited African land ownership to 7 percent and later 13 percent through the 1936 Native Trust and Land Act of South Africa. The Act restricted black people from buying or occupying land.

The apartheid government began the mass relocation of black people to poor homelands and to poorly planned and serviced townships.
No longer able to provide for themselves and their families, people were forced to look for work far away from their homes. This marked the beginning of many socio-economic challenges the country is facing today such as landlessness, poverty and inequality.

The Land Act was finally repealed when the Abolition of Racially Based Land Measures Act, 1991 came into force. Nelson Mandela said in 1995: “With freedom and democracy, came restoration of the right to land. And with it the opportunity to address the effects of centuries of dispossession and denial. At last we can as a people, look our ancestors in the face and say: Your sacrifices were not in vain.”

EXPROPRIATION
Expropriation goes by many names but all refer to the legal means by which states acquire property against the will of the owner, in order to fulfil some purpose of public interest. All result In dispossession. And while the policies of colonial powers were responsible for displacing many people for a number of reasons, development projects like the construction of dams in the seventies became a new, and possibly even more pervasive, source of displacement and dispossession in post-colonial times. The number of displaced people due to infrastructure projects reached between 90 and 100 million (Cernea, 2000). In some cases, almost 1% percent of the population.

Other forms of land dispossession include ‘Villagization’ or the compulsory resettlement of people in designated villages by government or military authorities as in Tanzania (Benjaminsen and Lund, 2003); and the ‘land grabbing’ which took place in Zimbabwe (Maposa, 1995). Just two examples of politically motivated and often violent changes that have had harsh consequences for affected communities in post colonial times.

No matter what the politics behind extreme forms of uncompensated taking of land has been, it has proved to have had a devastating impact on affected societies. Landlessness, joblessness, homelessness, marginalization, food insecurity, increased morbidity and mortality, loss of access to common property and services and social disarticulation are just some of the associated repercussions. (Cernea, 2000, p. 22).

Expropriation of land as part of infrastructure projects has not only been part of development policies in post-colonial settings but economies, with high and sustained growth rates like China, embarked on huge projects in order to face their transport and energy needs with questionable environmental and social repercussions (Padovani, 2003).

Three decades ago, expropriation was the accepted tool for advancing public over private interests and planning was the art of getting the right balance. It is only in the last decade or two that dissatisfaction is being voiced and acted on. In today’s world, countries can be divided more or less, into three groups:

  • those with high economic growth rates and a weak rule of law, who make extensive use of the power to expropriate;
  • countries with weakened economies where the use of expropriation has decreased; and
  • highly industrialized countries where despite public opposition, expropriation is still used on a regular basis as part of urban policies.

The first group includes Asian countries such as China, Korea, Singapore and Taiwan where rapid urbanisation has created a need for both land use control and use of ‘compulsory purchase power’ or expropriation. (Kokata and Callies, 2002).

The second group includes countries in which a number of factors contribute to a reduction in the use of expropriation. Apart from policies and programs that reduce public investment, and social resistance that creates constraints, the judiciary is playing a role in restricting government abuse. In Ghana, for example, court decisions against the state in expropriation cases have “…slowed the pace of compulsory acquisition considerably” (Ashie Kotey, 2002). In Mexico all three factors are present and in Brazil many expropriations for urban development projects are successfully challenged in courts.

The third group includes highly developed countries in which there are intense debates around this issue of expropriation however according to a 2003 survey that covered the 239 largest cities in the U.S.A., expropriation showed itself to be effective and efficient and that debates within the spheres of law and public opinion do not mirror what happens in practice.

Governments in general it seems, also do not clearly communicate how they will use the power to expropriate or the reasons for a particular course of action but legislative changes in the last two decades tend to have reduced governments power of expropriation and the rights of both individual and collective landowners have been strengthened. South Africa looking to be the exception!

SOUTH AFRICA
The South African Constitution of 1996, recognises a wide concept of “public interest”, and gives considerable discretionary power to the government to pay ‘just and equitable compensation’ (market value being just one of the elements to be taken into account). However, as South Africa, was just beginning a process of redistribution of land, which other countries concluded years ago, many legal battles came with the territory. Sadly this has resulted in frustration and government feeling compelled to consider legislation to help move the process forward.

CHECKS AND BALANCES
The new draft Expropriation Bill, and current trends in South Africa, present risks for foreign investors and the Government of South Africa.

The motivation behind the legislation is clear, in that ‘unwilling sellers’ and opposition political parties have successfully frustrated the land reform process through the courts and played right into the hands of political opportunists and radical agendas.

The risk however, is that a weakening of the existing expropriation laws can open the door for governments and companies to take land for ‘public’ interests that align with ‘private’ interests without adequately compensating previous owners or resettling displaced people. We must ensure our new expropriation laws have the necessary checks and balances.

Virtually every constitution that recognizes private property, determines that the state can take property from individuals, under two conditions. That is, paying just compensation and the purpose being to satisfy a need for some “public use”, “public purpose” or “public interest”. The public interest clause is in fact an important limit to the exercise of power with regard to expropriations.

PUBLIC INTEREST
Most countries acknowledge that the legislative and the executive branches have a wide discretionary power to decide when there is a public interest that validates an expropriation. It is hard to find an example of the Judiciary declaring legislation unconstitutional because it does not respect the public interest clause. The same can be said about judicial decisions regarding the way the executive power exerts this power. There is a strong assumption, especially in democratic countries, that the executive power will act reasonably when deciding what constitutes public interest. However, in many countries the definition of “public use” or “public purpose” is still vague.

In a comprehensive analysis in 2012, of laws and regulations in 30 countries across Asia and Africa only four of the 30 countries had expropriation laws that provide a clear definition of what constitutes a public purpose for taking land. In Zambia, for example, any land can be taken whenever the president is “of the opinion” that land is needed for a public purpose. Provisions like these can allow executives to take land under the pretext of a public purpose without ensuring an actual public benefit is generated. And in Ethiopia, vague legal provisions allowed the government to expropriate land to benefit a private company.

The purpose of a definition of public interest is to reduce the margin for an arbitrary use of this instrument. The more clearly we define ‘public interest’ the better!

COMPENSATION
The second key issue in expropriation law refers to the compensation that is to be awarded and it involves two fundamental questions: how to determine the amount of compensation to be paid, and who is entitled to obtain it.

In determining the amount of compensation the debate is around the general criteria for fixing it (commercial value, fair price etc) and around methods of valuation (a lack of technical competence of civil servants can exacerbate conflicts around expropriation).

The leaning in most countries is towards market value however another issue that affects compensation is the recognition of tenure rights to groups that had not been considered as property holders before like herders, tenants, laborers etc.

Compensation issues are also treated differently in different international contexts. Through free trade agreement, states guarantee fair compensation to foreign investors while international campaigns for housing rights tend to ignore the issue of compensation. There are also many cases in which the national dynamic is much more important than any international context. And of course there is also a public interest in keeping acquisitions at reasonable levels and there are limits beyond which governments cannot justifiably go.

The differing types of expropriation: those which affect people in their ability to meet a basic need (eg housing), and those that affect individuals or legal entities for whom property is only an asset, tend to correspond to two different cultures or world-views.

SUMMARY
It is unlikely that governments will ever be completely deprived of the power to expropriate, particularly as urban and infrastructure needs become more acute. It is also realistic to assume those with the majority franchise or military power, to make that decision will make it. Local or national priorities will dictate in the long run (in countries where democratic principles are aspired to) and this will be no different in South Africa. The debates on the current proposed legislation before Parliament, enabling expropriation without compensation in certain circumstances, will be passionate but the process has been inclusive and transparent.

“I believe a responsible land redistribution and reform process should be supported by all who live in South Africa—land reform that results in land ownership and the empowerment of families across the country (not nationalisation). I don’t foresee land being expropriated without compensation as a norm, but I suspect that the authority to do so (as a last resort) will ensure more willing sellers. Always keep in mind that the Expropriation Bill includes the provision that while land and any improvements thereon may be expropriated without compensation, national legislation must set out specific circumstances by which to determine that the amount of compensation is nil.” (Through My Eyes)

Too often, human rights based campaigns, with all their moral stamina, fail to acknowledge the economic implications of policy options, development theories ignore the dimension of human rights and free trade agreements focus only in the interests of investors. If land policies are to be based on solid foundations, all dimensions must be considered. (Antonio Azuela and Carlos Herrera 2007 Lincoln Institute of Land Policy

Again quoting from Through My Eyes, “… the amount of blood, sweat and tears we the people are prepared to sow into this land to make it productive, and the degree of generosity and goodwill we show each other along the way, will determine the degree of prosperity or poverty we will experience going forward.”

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