Weekly overview

Get a quick weekly overview of the most important developments in Land.

Week 49: Monday 2 November – Sunday 8 December

Expropriation

A number of news items this week have focused on the work of the ad hoc committee responsible for redrafting the property clause of the constitution. Bekezela Phakathi writing in Business Day cites the Chairperson of the ad hoc committee Mathole Motshekga who dismissed suggestions that South Africa was following the same path as Zimbabwe in its drive to amend the constitution and create the possibility of expropriating land without compensation. Motshekga noted that unlike Zimbabwe, South Africa was a multiparty democracy that listens “to all the voices”.

Agri SA released a statement on 5 December requesting that the publication of the Amendment Bill be postponed until after the December festive period to ensure that there was adequate time for public participation and comment.

AgriSA noted that:

The economy is in a technical recession with spiralling unemployment levels and a dangerous debt GDP ratio and the currency reacting negatively to the news that the country’s economy has shrunk by 0,6 % in the third quarter. We are concerned that international investment treaties will be in jeopardy where payment is not based on fair market value. The banking sector’s exposure is approximately R180 billion to the sector and lending are based on the underlying security of property.

Marianne Merton writing in the Daily Maverick provides all the background to this process which got underway in February 2018. On Thursday the Committee agreed to publish the draft Constitutional Amendment Bill ahead of public comments which open from the 2nd to 31st January. Once the comments window closes, this will be followed by public hearings in mid-February before MPs deliberate further, ahead of a planned adoption of the bill by the Committee on 20th  March and its subsequent tabling in the National Assembly for a vote by the end of the first quarter of 2020.

A draft of the Constitution Eighteenth Amendment Bill is now available on the Parliamentary website.

Merten reminds us that:

Fundamental to any expropriation with, or without, compensation is constitutionally compliant expropriation legislation. Over the past 12 years, three attempts have been made to bring such a law, but each attempt was abandoned. Most recently, the Expropriation Bill was withdrawn in August 2018 by the Parliamentary Public Works Committee, pending the outcome of the Section 25 constitutional review and amendment process.

Land policy

Researchers William Beinart and Peter Delius provide an important critical assessment of the Presidential Advisory Panel Report on Land Reform. They express skepticism that the report can meet the weight of expectation which has been placed upon it. The analysts highlight what they describe as key contradictions at the heart of the document. On the one hand they note that the document acknowledges persistent capacity constraints and endemic corruption within the state while simultaneously making recommendations about how the state should play a central role in passing new legislation and establishing new implementation agencies to re-engineer the land reform process.

Beinart and Delius caution that all of the proposals set out in the panel’s report have to be addressed within severe constraints on the department’s budget. The budget is due to decrease to 10, 67 billion in 2020/21, before increasing again to 11, 35 billion in 2021/2022.

In their examination of the future of the restitution programme, they cite the position recently taken by Treasury in their paper entitled ‘Economic Transformation, Inclusive Growth, and Competitiveness: Towards an Economic Strategy for South Africa’. This notes that:

Numerous restitution projects are not productive, and some have even collapsed completely, which drastically reduces the impact on poverty alleviation and job creation

There are increasing concerns by researchers and analysts that despite the best of intentions, South Africa’s restitution programme may prove to have been of our most costly policy mistakes. These concerns are fueled by mounting evidence that in the majority of instances the programme has comprehensively failed to meet its objectives.

Beinart and Delius note that to date about 10% of the country’s agricultural land has been transferred through land reform (4% through restitution and 6% through redistribution). They argue that when considering who owns what, the former homeland areas should be added to the calculation, as these comprise around 14% of South Africa’s land. With this addition between 28 – 30% of the land in the country is held by African people. They note that the advisory panel report has failed to address the fact that smallholder agriculture, both within the former homelands and on transferred land “has probably not been expanding” – a polite way of saying that it has been declining. The report notes that there is much underutilised land in the former homelands, while at the same time there is massive rural unemployment. Beinart and Delius observe that neither the advisory panel nor the Treasury report have asked “why do smallholders not maximise use of their land and why do most unemployed younger members of households avoid putting the labour into that land?”. They propose that “the state should prioritise engaging more effectively with the smallholders who can mobilise resources of land and inputs in both the former homelands and on transferred land”. They argue that far more could be produced on this land which could provide an important development opportunity for the poorest rural districts.

They question the feasibility of implementing many of the recommendations in the presidential advisory panel report. These include passing a land reform act, a land register act, the restructuring of the Department of Rural Development and Land Reform. They remain skeptical about “the state’s capacity to generate successful new bureaucracies, when existing departments are struggling.” They note that the key constraint remains a lack of capacity to implement successful land reform.

Beinart and Delius recommend a focus on the following priorities:

  • planning for increased urbanisation;
  • the need to work with successful commercial agriculture rather than against it;
  • the need to strengthen existing institutions and support services such as extension and access to finance.

Having read through their commentary it’s difficult to avoid the conclusion that the duo may have also failed to adequately think through the practical implications of their recommendations. Currently almost everybody agrees that land reform has become horribly stuck. Digging the vehicle out of the mud and setting it back on the road requires a major joint effort by  those wanting land, government, business, farmers and civil society. Perhaps this requires going back to basics and starting to focus on diverse  local municipalities in order to properly understand the context and develop a realistic set of interventions, both to acquire new land, provide appropriate support services and to revitalise failed land reform projects which have cost the state an enormous amount of money.

While the Presidential Advisory Panel has made far-reaching recommendations, all of which presume a cleaned up and capable state, a sobering article in TimesLive by Zingiswa Mvumvu provides an indication of just how far we have to go before this could become a reality. The article is headlined Government official fired for ‘theft’ starts new job in Eastern Cape five days later. The story focuses on a former deputy director-general the national Department of Agriculture Forestry and Fisheries, who was fired a week ago for the alleged theft of abalone worth R7 million . According to the article, the Eastern Cape Premier approved the fired official’s appointment as the new head of the Department of Rural Development and Agrarian Reform in the province just five days later. For the record, the article records that the official has denied having stolen three tons of abalone worth 7 million Rand.

Land and water policy

The failure to make the link between land reform and water policy has long been a criticism of researchers and activists working in the land sector. On 28th November the Minister of Human Settlements Water and Sanitation, Lindiwe Sisulu launched a national water and sanitation masterplan. The plan acknowledges that:

The water sector has, over the past 20 years, failed to deliver on its mandate for water allocation reform, or the reallocation of water to black water users.

It also notes that the reallocation of water has not gone alongside the transfer of land, pointing to instances where the previous land owners have traded away their water rights so that when land reform beneficiaries acquire land, they often lack access to water for production.

So what is to be done about this? The master plan proposes that “a joint land, water and agrarian reform programme, to be led by the Department of Rural Development and Land Reform be established to ensure that the reallocation of both land and water are aligned and take place within a framework of agrarian reform and effective rural development”.

Unfortunately, the lackluster performance of this department to date does not inspire confidence that this recommendation will be implemented, or bring about the desired change any time soon.

Land rights and mining

On 5th  December Creamer Media’s Mining Weekly reported that the Department of Mineral Resources and Energy had gazetted draft amendments to the Mineral Resources and Petroleum Development Act, together with new mine community resettlement guidelines. The MPRDA amendments are reported to focus on the sections of the act dealing with social and labour plans, environmental regulations for mineral development, as well as pollution and waste control issues. The resettlement guidelines set out requirements to be followed when mining activity results in the resettlement of people living on the land. Members of the public have until January 31, 2022 respond to the proposed amendments and the new resettlement guidelines.

Meanwhile writing in the Daily Maverick Lucas Ledwaba tells the story of hardships and uncertainties faced by Limpopo’s unlicensed artisanal miners involved in informal chrome mining in the Sekhukhune area. He notes how the shutting of the Bokoni platinum mine and the Twickenham mine by Anglo-American Platinum meant a loss of jobs and increased poverty and desperation in the surrounding villages. This has fueled dangerous and desperate informal zama zama style mining in the area while the state appears to remain directionless on the matter.

Rural development and climate change

In international news Brenda Masilela  reporting for IOL examines how the negotiating group for Africa recently proposed that the particular risks to the continent posed by climate change should be recognised as a priority at a UN climate change conference underway in Madrid. This intervention follows research by the African Adaptation Initiative which found “that seven out of ten African nations are now at high risk of debt stress, following the debt build up from disasters caused by global warming”.

It was argued that the role that mining place in the economies of many African countries also requires a special dispensation. The Egyptian ambassador Mahomed Nasr asked if African nations cannot mine these resources in terms of the Paris agreement, then viable alternatives will need to be found for countries who are already paying between 2 and 9% of their GDP to fund adaption measures. “Hence the requirement for a special needs and circumstances proposal to develop a resilient and sustainable policy approach that does not incur high debt for future generations”.

Tenure reform

Philip De Wet in a piece for Business Insider records how the Interim Protection of Informal Land Rights Act – temporary legislation passed in 1996 and originally due to expire in 1997 –  has just been renewed yet again for a further year, more than 22 years after it was introduced. Until now the Act has been the sole legal protection for 18 million people living in the former homelands to ensure that their land rights cannot be alienated without their consent. However, with the recent signing of the Traditional and Khoisan Leadership Bill (TKLB) into law, it appears that the protections offered by IPILRA have been swept aside. Unless there is a successful legal challenge to the constitutionality of the controversial TKLB, it may be that in 2020 IPILRA will not be extended again.

Urban land

News about various illegal occupations of land feature in the news this week. In Gauteng the Department of Human Settlements has obtained an interdict barring land invaders from occupying land at Eikenoff, south of Johannesburg. According to a report by Manyane Manyane in IOL “the invaders said they were not backing down on their intention to occupy Southern Farm“.

But Shepherd Masiza, from Freedom Park, is quoted as saying that they were promised stands by the ANC in Southern Farm in 2017 after they had occupied land near the R559 outside Freedom Park. When this promise did not materialise

 “We decided the best way forward was to find land so we can build for ourselves “We did this because many people here are old and living in the back rooms with their parents, which is not fair because I have five children and there are other children at home. Just imagine that mess,”

Meanwhile Clive Ndou writing in the Witness examines the rising instances of illegal occupation of private and municipally and land in Msundduzi Local Municipality in KwaZulu-Natal, where apparently those organising the occupation had taken things to the next level apparently bringing in in graders to clear land in preparation for building houses! The leader of this group was reported as saying:

“We didn’t just wake up one day and decide to come and invade, we are acting on the instructions of homeless people in France, Imbali and other surrounding areas who have been sleeping on the streets despite the fact that there is land a stone’s throw away that has not be utilised for several years,”

However the reporters on the Witness tell a different story:

 The land grabs are the latest in a string of invasions that have hit farmers in the Bisley and Thornville areas. Farms that have been taken over by invaders include Leliesfontein Farm in Thornville where in March more than 300 occupiers threatened the owner with violence when he attempted to enforce a court eviction order he had obtained against them. The invaders, some of whom have since built houses worth close to a R1 million on Leliesfontein, continue to occupy the property.

According to farm owners who have fallen victim to the invasions, the invaders are led by a few ring leaders who once the property falls under their control, slice it into smaller pieces which they then sell to members of the public for anything up to R200 000 a portion.

Week 48: Monday 25 November – Sunday 1 December

Expropriation

Lamez Omarjee writing in Fin24 reports on a briefing made by the Deputy Director general of Department of Trade and Industry to the ad hoc committee on legislation amending Section 25 of the constitution. The DDG-based his submission on the departments experience with bilateral investment treaties. He noted how a foreign investor would have legal recourse in terms of the treaties to challenge government’s decision to expropriate property. He noted how international treaties can trump (poor choice of word) South African national law. The DDG reported on a case in which government had failed to adequately protect the property of the Swiss investor. This resulted in international arbitrators ordering government to compensate the investor to the value of €5 million. Apparently, even when government terminates an agreement, so-called survival clauses within the agreement continue to protect the investment for a period of time, which could be as long as 20 years.

Farm workers

President Cyril Ramaphosa has not been having a good week. On 27 November IOL reported that the President might soon find himself summonsed in a Labour Court case following what seems to be his strategic misstep in personally retrenching 22 workers on his Ntabanyoni farm in Badplaas, Mpumalanga, a month before Christmas. In the same week Ramaphosa signed into law the deeply discriminatory Traditional and Khoisan Leadership Bill along with the Traditional Leadership and Governance Framework Amendment Act which we cover in more detail in the section on traditional leadership below.

Labour tenants

Meanwhile Clive Ndou writes an article in the Witness on 25 November entitled  Land projects fail. This tracks the history of some 57 farms bought in the Middelrus Mooi River in settlement of labour tenant claims some 10 years ago. According to the article, just three remain in production, although the rural development and land reform national spokesperson Phuthi Mabelebele was quoted as denying that the projects that collapsed. A number of explanations are put forward in the article ranging from allegations of corruption and the diversion of funds intended for the projects into personal bank accounts, lack of training and business knowledge and delays in the transfer of approved grant finance. The article cites sociologist Dr Mzingayi Xaba whose PhD focused on the developmental impacts of restitution in the Eastern Cape, as saying that government was too focused on land acquisition to the exclusion of land reform implementation and what happens afterwards. The article returns us to long-standing questions about the socio-economic benefits of land reform as currently conceptualised and implemented, to which South Africans urgently need to find practical answers.

Land Governance and Administration

Last week we covered initial responses to the unanticipated postponement of the landmark case brought by CASAC, the Rural Women’s Movement and seven rural residents of KwaZulu-Natal against the Ingonyama trust

Several more articles followed this week, providing analysis of the implications of the postponement of this case.  Kevin Bloom from Our Burning Planet team at the Daily Maverick provides an in-depth background to why the case was lodged. He tells the story of Zakhele Nkwanka whose permission to occupy certificate surreptitiously metamorphosed into a lease with an annual rental payment due to the Ingonyama trust. As Bloom puts it:

At stake, aside from the collection of hundreds of millions in allegedly unlawful rent, was the apparent breach of section 25(6) of the constitution, which had been written to protect people or communities whose land tenure had become legally insecure as a result of past racially discriminatory laws or practices.

Being forced to pay for the right to reside on the land that had been in uninterrupted occupation for many decades has no place in living customary law. Professor Thadabantu Nhlapo a renowned expert in this field has cautioned in a supporting affidavit that there are fundamental differences between customary and common-law ownership. In customary law land rights are best understood as “a system of complementary interests held simultaneously”. Nhlapo explains:

Customary land relations were created by and mirror the bonds and relations between people. Access to land is a function of membership at different levels of rural society for example membership of the family, lineage village or wider community.

Prof Nhlapo examines how:

Colonial and then apartheid legislators, administrators and courts superimposed to paradigms derived from common-law constructs of exclusive ownership and individual rights on the nuanced customary law systems of relative and overlapping rights and entitlements.

He notes that by imposing lease agreements the Ingonyama trust has downgraded the lessees customary ownership of land to that of a tenant, whose continued occupation of the land is conditional on the payment of rent.

But the story doesn’t end there. Bloom posits a connection between the postponement of the CASAC case and another legal battle over the deeply contested issue of coal mining in the former KwaZulu bantustan. In 2018 local people and activists mounted a legal challenge to mining at Tendele on the grounds that no environmental authorisation, municipal planning approval or permits to shift ancestral graves had been issued. This matter went to court in August 2018, only to be dismissed and the costs of the case awarded against the activists who brought the action.

The back story to this case is set out in an insightful article by Bridget Pitt which appeared on 15 November 2019, also in the Daily Maverick. The Supreme Court of Appeal is due to hear an appeal against the judgment in the Pietermaritzburg High Court in February 2020. Bloom argues that the outcome of the now postponed CASAC case could have had a bearing on this matter, and that the delay ultimately serves the interests of the mining houses and their allies in the Ingonyama Trust.

Zenande Booi, the lead land researcher at LARC, observes how this case is symptomatic of the continuing failure of the state to pass a law as required by the constitution to ensure the security of tenure of those living in the former bantustan areas. She notes that:

A vacuum has arisen as the minister and parliament have failed to make use of the powers available to secure people’s rights through the constitution, Protection of Informal Land Rights Act or provincial laws on permission to occupy… In this vacuum it was easy for the trust to unilaterally exploit an opportunity to adopt and implement a policy to convert occupation rights and customary ownership rights to leases — with onerous terms and with the trust as the lessor.

Traditional leadership

While all discussion has been going on around the CASAC case, the legal terrain shifted sharply this week when Pres Ramaphosa signed the TKLB into law. Mark Heywood writing in Maverick Citizen provides background on how and why the president has opted to sign away rural people’s rights. The TKLB has been the focus of a concerted #StoptheBantustanBills campaign led by the Alliance for Rural Democracy. Constance Mogale, the ARD national co-ordinator, speaks about how despite their best efforts and being appointed to sit on a government reference group “all of our suggestions were ignored”.

Andisiwe Makinana writing in Times Live notes that land activists were expecting that the president would refer the Bill back to Parliament after both the Motlanthe high-level panel and the Presidential Advisory Panel had warned that provisions it contained were in breach of fundamental constitutional rights. But it seems that this was not to be, as another move has just been made in the long game of South African political chess.

Unimpressed by these manoeuvres, ANC veteran Mavuso Msimang has put it succinctly:

We have not just sold-out people in the rural areas – we have adopted what the apartheid government used to do.

Urban land

The news in Cape Town this week has been dominated by  the Tafelberg court case originally initiated in 2017 to overturn the designation of a high-value Seapoint property as “surplus” and to use the land to construct social housing to address the legacy of spatial apartheid in the city. As Madison Yauger reports, the court case seeks to set a precedent on what can be done with inner-city state owned land. Countering the arguments put by the applicants, the legal team representing the City of Cape Town has argued that Reclaim the City and Nifuna Ukwazi are in effect asking the province to “not dispense so much of the housing budget on the homeless, but rather on social housing for people with jobs and accommodation”. The city’s counter argument was “do we accomodate 100 people in the CBD or 10,000 elsewhere”. But perhaps things are not quite as simple as the city would have us believe. In an interesting twist, the national Department of Human Settlements also launched an application against the Western Cape government which is being heard together with Reclaim the City’s application. The advocate representing the National Department argued that the province had failed to coordinate with the national government on the sale of the Tafelburg site. As Sune Payne put it later in the week: social housing in Seapoint is becoming a serious political hot potato.

Week 47: Monday 18 November – Sunday 24 November

Expropriation

November 15 was the deadline by which political parties should have made submissions on the draft Section 25 Amendment Bill. Different parties have taken different positions. The chairperson of the Democratic Alliance parliamentary caucus Annelie Lotriet, noted in a statement distributed on politicsweb that the party would not be making a submission, as the constitution quote was “not and never has been a barrier to land reform.”

The statement quotes from the Presidential Advisory Panel on Land Reform and Agriculture which also argues that amending the constitution is unnecessary:

Without a constitutional amendment to section 25, the State is currently able and within its powers to expropriate land for land reform purposes, based on just and equitable compensation. If, however, the purpose of the amendment is to implement expropriation without compensation wholesale and without conditions, then such a motion would offend section 1 of the Constitution and would in effect, collapse the core underlying values of our Constitution.

Land Governance and Administration

The big story this week carried by Tony Carnie in GroundUp and syndicated in The Citizen was the unanticipated postponement of the landmark case brought by CASAC, the Rural Women’s Movement and seven rural residents of KwaZulu-Natal. As reported in week 46 the applicants represented by the LRC, seek an order declaring that the Ingonyama Trust has acted unlawfully and in violation of the Constitution by cancelling original permissions to occupy (PTOs) and concluding residential lease agreements with holders of PTOs and/or informal land rights. The case seeks an order declaring this practice illegal and the refund of rentals that have been paid to the Trust.

Such an order would strike a serious blow at the legitimacy of the Ingonyama trust, which has ready been sharply criticised in the reports of both the Motlanthe High Level Panel and the Presidential Advisory Panel.

Ostensibly, the reason for the postponement stems from a last-minute decision by the KZN Judge President Achmat Jappie, that the matter should be heard by a full bench due to the serious nature of the issues involved.

CASAC’s Lawson Naidoo was not persuaded by this rationale and he asked:

Why wait for the 11th hour to announce this when this case was set down for hearing months and months ago? We don’t understand that and at the very least, we would have expected to have been given an opportunity to make representations before the decision [to postpone] was made.

It now seems as if the case will not be heard until 2020.

Land Policy

Tembeka Ngcukaitobi writing in New Frame argued that while land redistribution is vital to address the injustices of the past, we need a transformative vision of the constitution and political action guided by law to make land reform effective. He notes that:

Land reform seeks to reconcile three intersecting and overlapping currents: correcting historical wrongs; confronting the present social and economic inequities; and securing an equality-based future for all. If land reform is unable to meet these goals, it will be a failure.

Ngcukaitobi dissects the failings of the land reform programme noting that in the case of restitution:

the “experts” – historians, advocates, attorneys, anthropologists, property valuers – have displaced the landed and the landless as the central players in the struggle for the return of the land.

He records how the land reform programme has been “bedevilled by gross incompetence and corruption”. He identifies “a sense of directionlessness which prevails amongst the bureaucracy” which is confronted by an overwhelming “policy congestion”.

Ngcukaitobi proposes a redistributional model for land reform, but one which must be implemented with particular conditions. He prioritises the need to redistribute land where the landholders are currently not using it productively. But he observes that “access to rural farmland will not satisfy land hunger, and that urban land must be factored into the frame.”

He points to other policy instruments which could be employed to speed up land acquisition, particularly focusing on land taxes which seem to have fallen out of current policy thinking.

In his conclusion Ngcukaitobi argues that:

The Constitution’s ultimate goal is to dismantle the colonial and apartheid state. The unequal land patterns are colonialism’s most enduring legacy. But it cannot be resolved by chaos and elite land grabbing, but through deliberate political action guided by the rule of law.

Rosalie Kingwill writing in the Daily Maverick reflects on what South Africa can expect from the Presidential land reform report. She describes the report as a pivotal moment in South Africa’s fraught land reform programme. In July, all relevant departments and directorates were given two months to read and respond to the report – a deadline which expired three months ago – yet civil society remains in the dark as to the way forward.

However, despite her concerns over the delay Kingwill remains optimistic that land administration was identified as a critical land reform issue. The focus of land administration requires the development of “overall policy and management frameworks for the regulation and administration of land and access rights”.

Kingwill seeks reassurance from government that “the justification for the Panel was deeper than electioneering and pacifying an expectant public” and argues that government needs to re-engage with civil society, to help reconstruct the institutions undermined during the nine wasted years under President Zuma.

Land Rights and Mining

Ernest Mabuza in Dispatch Live reports how a coalition of environmental activists celebrated a decision by the Constitutional Court to refuse Atha Africa’s bid to mine coal  inside the Mabola protected area, near Wakkerstoom in Mpumalanga.  Approvals had previously been given to the company by both the then Minister of Mineral Resources Mosebenzi Zwane and the late Environmental Affairs Minister Edna Molewa.

This authorisation was challenged in the High Court in 2018 which set aside the Minister’s approval. The High Court refused Atha Africa leave to appeal, and the Supreme Court of appeal also followed suit. This prompted the company to approach the Constitutional Court which also dismissed the application with costs as it bore no reasonable prospect of success. The Coalition (the Mining and Environmental Justice Community Network of South Africa, GroundWork, Earthlife Africa Johannesburg, BirdLife South Africa, the Endangered Wildlife Trust, the Federation for a Sustainable Environment, the Association for Water and Rural Development and the Benchmarks Foundation) was represented by the Centre for Environmental Rights.

However John Yeld writing in GroundUp cautions that the decision of the Constitutional Court does not yet necessarily mark the end of the line. Apparently, elements within the Mpumalanga provincial government are now attempting to excise the proposed mining properties from the protected area. The MEC for Agriculture, Vusi Shongwe, published notice of his intention in this regard earlier this year in August. The coalition has threatened to return to court stating there is “no rational or justifiable basis for any exclusion, particularly in the light of available science and policy highlighted in the coalition’s objection”.

Redistribution

Marianne Thamm, writing in the Daily Maverick reports on the joint Landbouweekblad/PALS symposium entitled Land reform in practice – Practical solutions held on the 14th and 15th of November in Ceres.

She focuses in part on the words of Pieter Prinsloo, a Xhosa speaking dentist who farms in the Komani district of the Eastern Cape and who is a member of the Eastern Cape Pals steering committee. Prinsloo said the solutions to the land issue had to come from farmers themselves.

According to Prinsloo the current land debate “is driven by fear”:

We are scared of what is going to happen, instead of being straight and honest about fear and addressing the fear, coming to the table and talking about what we fear. I don’t think the changing of the Constitution was ever intended to dispossess people who are producing off the land… We have identified common ground, we must talk as a collective. My message is, change the narrative.

Closing the symposium, Minister Thoko Didiza said she had listened to, and had heard what farmers had said. According to the Minister, the showcase of successful partnerships had proved that there was a “new way of doing things that can bring us together as South Africans”.

Restitution

Nelisiwe Msomi and  Pontsho Pilane from Health eNews write about the forgotten people of Platfontein near Kimberly in the Northern Cape in a piece in the Mail and Guardian. Members of the Platfontein community featured in an article on public hearings around the National Health Insurance Bill. This story was first documented by Eddie Koch back in 1995 in an article which also appeared in the Mail and Guardian

The !Xu and Khwe community consists of some 550 South African National Defence Force soldiers and their dependants who come mainly from southern Angola and the eastern Caprivi of Namibia. After the Portuguese left and Angola’s civil war began, the !Xu fled south and lived amongst the Khwe in the Caprivi Strip of what was then South West Africa. “We were employed by the South African army because of our skills at tracking and knowledge of the bush. We had been chased off our traditional lands; we had no economic alternatives.” In 1990, during the run-up to Namibia’s independence elections, most of the members of the two communities, fearing persecution at the hands of a Swapo-led government, decided to pull out with the South African army and settle at Schmidtsdrift, where they were given automatic South African citizenship and rows of canvas tents.

But the Schmidtsdrift Army base where they were resettled was itself under a land claim which meant that two groups were eventually relocated to Platfontein. Now according to the article some 7000 people live at Platfontein, where they have remained largely forgotten – intergenerational casualties as the displacement associated with apartheid wars in the region lives on.

Rural development

The primary focus in our rural development section this week is on the measures to try and contain a serious outbreak of foot and mouth disease which had spread from a livestock auction near Dendron to four feedlots in Limpopo. Foot-and-mouth is a notifiable disease in livestock. It is a highly contagious affecting cattle and pigs. It can also affect sheep and goats. In Limpopo, the area between Kruger National Park and Limpopo is a declared red zone. This is because wild buffaloes are the carriers of the FMD. Livestock gets infected because they drink from the same rivers as the buffalos. The disease is in KZN, Mpumalanga and Limpopo, especially in the Vhembe district. The World Organisation for Animal Health (OIE) standards require that the animals be culled and the Department has to compensate affected farmers. Despite this FMD can be the cause of huge financial losses for farmers – many of whom are already facing the impacts of drought.

A statement from Neo Masithela of AFASA emphasised the seriousness of the outbreak and the economic risks that it represented. He noted that an outbreak in 2011 in KwaZulu-Natal had resulted in a ban on South African meat exports, costing the country R4 billion in lost revenue.

In other news Fin 24 reports on the launch of Farmbeats – an agriculture research platform funded by Microsoft which aims to make the benefits of artificial intelligence available to farmers. Farmbeats monitors soil temperature and moisture levels to augment farmers existing knowledge to enable them to make more effective decisions. Proceedings at the Africa Agri-Indaba have aimed to create awareness about this new platform and two pilot projects in KwaZulu-Natal and Limpopo seek to test out the facility.

Traditional leadership

Amanda Khosa, writes in New Frame about how the Ndwedwe Development Committee has gone head-to-head with the local inkosi Nduduzo Ngcobo, who, it is alleged has pulled the plug on a R40 million development authorised by the local municipality. This was reportedly on the grounds that the development was taking place on tribal land under the control of the Ingonyama Trust without its permission.

This appears to be a long-standing dispute which seems to have been underreported as there have been protests which saw both the tribal court and the inkosi’s house being burnt. Khosa writes that when she contacted the Inkosi for comment he responded that she was posing “rubbish questions”. She quotes him as saying that:

Firstly, you visited that community without the council’s permission… If you want to know what is happening in my community, I have a tribal court that you can visit and you can speak directly to me and not to speak to community members about me.

The notion that permission is required from the traditional council before a visit can be made to a community, indicates the level of control which the council seeks to wield over the people it regards as its subjects.

In the same week Soyiso Maliti writing in the Dispatchlive reports on how the Eastern Cape government has endorsed the Traditional Courts Bill at a COGTA committee meeting in Bisho on Wednesday. This endorsement was despite substantive objections from activists such as the Alliance for Rural Democracy and Sonke Gender Justice about the rights of rural citizens and women being undermined by the Bill. Both of these reports suggest that democracy is persistently undermined in the former bantustans and that the old apartheid order remains alive and well in the countryside.

Urban land

The puzzling case of the Alexandra Renewal Project is back in the news this week, with the denial by the former Gauteng MEC and premier Nomvula Mokonyane that the project failed on her watch. At the heart of matter are allegations about the misuse of a supposed 1.3 billion rand of government money over a seven-year period. Mokonyane denies that this money was ever allocated to the project. This echoes another denial, this time by Mbhazima Shilowa, also a former Gauteng Premier who was summoned to appear before the South African Human Rights Commission and Public Protector enquiry into the Alexandra renewal project. Shilowa testified that the 1.3 billion was approved, but never actually allocated. This suggest that while there was a lot of hype about renewal in Alexandra there has not been any real commitment to it, although a variety of role players insist that they have delivered services and housing in the congested township. Perhaps the SAHRC finally shed some light on the allegations of corruption and misappropriation of funds.

In Cape Town GroundUp reports on a protest by Reclaim The City who are contesting what they regard as the illegal sale by the City of Cape Town of the Tafelberg – a disused property in Sea point to a private school developer.  RTC and the Ndifuna Ukwazi Law Centre initiated a court case in 2017 to overturn the designation of the Tafelberg property as “surplus” and address the legacy of spatial apartheid in the city. That case will be heard next week, more than two years after it was initiated.

Week 46 Monday 11 November – Sunday 17 November

Expropriation

Jan Gerber writing in News 24 provides an update on the process of amending the constitution to enable expropriation of land without compensation. He asks three substantive questions about the process. The answer to the first question – is it too late to object to amending Section 25 – is yes. The ad hoc committee is in the process of initiating and introducing legislation to this effect. So, next Gerber asks is expropriation without compensation a done deal? His answer is ‘almost’. The reason why the amendment may not go through is that it needs to be passed by a two thirds majority in the National Assembly. This requires 267 votes. Currently those parties who are on record as opposing an amendment have 114 seats, so all eyes will be on the EFF, as the ANC would need 44 EFF votes to carry the amendment. The EFF could decide not to support the amendment introduced by the ANC if they regarded it has been too weak and inadequate. This would leave the ANC in an embarrassing position. Question number three posed by Gerber is whether the nationalisation of land is a possibility to which the answer is no as this would demand a rewrite of much of the constitution and existing law.

Dr Anthea Jeffery of the Institute for Race Relations writes a commentary on the amendments being proposed by the ad hoc committee which we reported on in Week 45. In her view the second option being proposed by the committee – namely the insertion of a new subsection 25(4A) which would read:

Notwithstanding the requirement for compensation in section 25(2)(3) and (4), land may be expropriated without the payment of any compensation is a legitimate option for land reform in order to redress the results of past racial discrimination.

would take the decision on zero compensation away from the courts and into the hands of what she describes as ‘ANCs deployed cadre’.

To date the most detailed and legally sound interpretation  of the constitutionality of the different amendments has been prepared by a team of constitutional lawyers: Profs ZsaZsa Boggenpoel (US), Danie Brand (Free State Centre for Human Rights UFS), Jackie Dugard (WITS), Elmien du Plessis (NWU) and Mrs Nompumelelo Seme (WITS). This was recently presented as a submission to the ad committee. A link will be provided soon.

Farm workers

Barbara Maragele writing in Ground Up reflects on the seven years which have passed since farm workers went on strike in De Doorns in November 2012. Betty Fortuin, one of the local leaders of the strike looks back:

We didn’t ask for much. We really just wanted the basics – like higher wages, a toilet in the vineyards, clean water and for all workers to be treated fairly. That is all.

Fortuin locates the origins of the mass action in a successful strike which originated on Keurboschkloof farm in September 2012. In this instance workers who had been paid between R90 – R130/day – already much higher rates of pay than comparative wages on other farms – managed to secure an increase which brought their wages up to R150 a day. According to Fortuin once other workers saw the results of this action, they began to mobilise to also obtain R150 a day as a minimum wage.

Striking farmworkers handed over a list of 21 demands (The list provided by GroundUp mentions 19 demands)

  1. R150 per day wage
  2. Moratorium on farm evictions
  3. Full maternity benefits for all workers including seasonal workers
  4. Housing contracts to include both partner’s names (securing tenure rights for women)
  5. Workers to do 40 hours a week
  6. Safe and decent transport to and from the farm
  7. Freedom of association (particularly union affiliations)
  8. No rent deductions for adult family members living in the farm house
  9. No deductions for water and electricity usage
  10. Job grading and pay scale to be introduced
  11. Provident fund
  12. Agricultural sector to set up bargaining/statutory council
  13. Ban on labour brokers
  14. Labour department to set up seasonal worker desk to track and service needs of seasonal workers
  15. Interministerial task team to look into farm worker and dweller issues
  16. Child grant to be made accessible for farmworker communities
  17. Fund to assist with substance abuse, FAS and GBV
  18. Transformation of the agri sector
  19. Free access to healthcare.

In response to the strike the Minister of Labour increased the minimum wage from R69 – R105 per day. With the introduction of the national minimum wage seven years later, the rate for farmworkers was set at 18 rand/ hour or 162 Rand per day and is due to rise to R20/hour by 2020. Very few of the other demands on the list have been addressed and much of the value of the wage increase has been offset by employers putting a value on services which were previously free. The Labour Relations Act sets 45 hours per week as the maximum which puts paid to the demand for a 40 hour week. According to a representative of Agri SA the Agricultural Sector Provident Fund has been established and activities to promote contributions to the fund were planned for 2020.

All in all according to Fortuin workers are getting to the point where “we will definitely see another strike soon with a demand for R250 rand day”.

Food security

One of the most illuminating articles this week is by Kevin Bloom writing in the Daily Maverick. Bloom heads up the Our Burning Planet team which examines the evidence of climate and ecosystem collapse and the implications for food security in South Africa. Recently the team accessed the detailed submissions of 16 SA conglomerates to the global Carbon Disclosure Project. The article contains a revealing link to a submission by Checkers, South Africa’s largest food retailer which makes for truly a sobering read. The submission provides a window into how this multibillion-rand conglomerate reads the future and anticipates the impacts of the increased frequency of drought -like conditions on the availability of food and the escalation of prices.

Bloom argues that South African government and big business need to pool their resources to urgently come up with a set of adaptation measures that properly acknowledge the seriousness of the threats we face. It is a message we all need to take to heart and push to the top of the policy agenda. The impacts of climate systems collapse on food security, the economy and state investment in land reform need to be properly understood.

Rural development

On a similar note Siphelele Dludla in the IOL Business Report reviews recent warnings issued by Agri SA on the serious impacts of the prevailing drought. Agri SA highlights the potential of the drought to “collapse rural economies and decimate the agricultural industry”. The head of the Agri SA Disaster Management Centre Willem Symington stated that in the Western Cape has been a loss of 25% in the value of export crops while job losses in the agricultural sector were projected at between 20 and 25% in the Northern Cape and the Free State.

Symington observed that:

As a country, we are not managing climatic disasters very well,” he said. “We have a lot of work to do. Drought can change our status as a food secure country.

The article quotes Grain SA chief executive Jannie de Villiers who said that South Africa had only received close to half the rain it required.

We are late, we are worried, we are not in a crisis yet, but have real concerns. We are pleading with the government for an insurance system for these kinds of situations to maintain our food security.

Omri van Zyl, Agri SA executive director, is reported as making a number of recommendations to government, including the establishment of a National Drought Management Commission and the establishment of a Disaster Fund. However combating climate change will require much more than this and demands a complete overhaul of current farming systems and agriculture’s contribution to rapid global warming.

Redistribution

There is usually a shortage of positive news about land redistribution particularly in the Eastern Cape which has been devastated by drought. However, this week the Herald Live reports on the success of Aviwe Gxotiwe in the Eastern Cape who leases land obtained through the Proactive Land Acquisition Strategy. Gxotiwe, who studied law at the University of the Free State is a livestock and crop farmer from Somerset East in the Eastern Cape. He harvested 36 tons of chicory in 2018, and in 2019 he planted lucerne, which is mainly used for animal feed for his 1500 sheep. According to Gxotiwe “Agriculture presents huge opportunities. Many people just do traditional farming, but the possibilities are endless”.

Land Governance and Administration

Kathleen Wootten, an intern at the Legal Resources Centre provides background on an upcoming court case in the Pietermaritzburg High Court on 22 November which challenges the right of the Ingonyama Trust board to force residents living on land controlled by Trust to sign lease agreements. This is a landmark case that will establish the rights of 5.2 million South Africans living in former KwaZulu to their homes, land and security of tenure. The article notes that:

The disputed lease agreements compel people to fence their properties and conduct surveys on their lands, both expensive procedures, at their own cost. They are prohibited from building or altering structures on the lands without prior consent, and should they be permitted to build, these improvements are deemed to belong to the Trust. In other words, the homes they have built now belong to the Trust.

The Council for the Advancement of the South African Constitution, the Rural Women’s Movement and seven informal land rights holders represented by the LRC, seek an order declaring that the Ingonyama Trust has acted unlawfully and in violation of the Constitution by cancelling original permissions to occupy (PTOs) and concluding residential lease agreements with holders of PTOs and/or informal land rights and refunding the rentals that have been paid.

Such an order would strike a serious blow at the legitimacy of the Ingonyama trust which has ready been sharply criticised in the reports of both the Motlanthe high-level panel and the Presidential Advisory Panel.

Meanwhile, Business Day  reports that Justice Minister Ronald Lamola is overseeing the drafting of the bill for the creation of a Land Court with greater powers to adjudicate on land redistribution and restitution issues. The article notes that the Land Claims Court set up in 1996 to manage land restitution claims lacks permanent judges and consequently is wrestling with an enormous backlog of cases. The Land Court Bill seeks to capacitate the Court and extend its mandate to include land reform as a whole.

Land Rights and Mining

Dineo Skosana writing in New Frame focuses on how mining companies and some heritage consultants have failed to understand (or wilfully ignored) the meaning of land and the sacred nature of graves and ancestral remains for African communities. Skosana reports on research carried out in process of studying for her PhD in which she studied the relocation of 120 families between 2012 and 2016 and the exhumation of almost a thousand graves as a consequence of mining activity. Her research revealed how the relocations left the families “feeling spiritually vulnerable and disconnected from their ancestors”.

Relocating graves for mining activities removes the material obstacles to a company’s desire to make a profit. For the affected families, though, the relocation erases the evidence of their historical ties to a place and, above all, disrespects their ancestors.

Relocated families complained that the treatment of their ancestral remains – such as putting them in plastic garbage bags during the relocations and using child-like coffins for the reburial – caused them and the ancestors distress.

Urban land

Malusi Booi, Mayoral Committee Member for Human Settlements in the City of Cape Town was interviewed on Cape Talk earlier this week about how a feasibility analysis was being planned to assess the proposed citywide proposed ‘inclusionary housing policy’.

Ironically, a few days later GroundUp reported that on 28 October the Western Cape Government had confronted the City of Cape Town over its service delivery failure in DuNoon. The City of Cape Town was given notice by the Western Cape Environmental Affairs and Development Planning Ministry of its intention to issue a directive in terms of Section 28(4) of the National Environmental Management Act to “immediately repair all the blocked toilets in the area by replacing faulty infrastructure; provide toilets to accommodate all the inhabitants of the area… provide an operation plan to deal with the waste management issues around the township such as the ad hoc illegal dumping sites.”

However in response, the City has denied that it was in breach of its responsibilities in terms of NEMA arguing that:

Section 28 of NEMA is directed at persons or entities causing pollution. The City has a service delivery obligation but is not itself the cause of the pollution. The City continues to demonstrate commitment to providing services to residents in this increasingly densely populated area.

Meanwhile Nation Nyoka writing in New Frame reports on the plight of the members of the group known as Singabalapha who took over the vacant Arcadia Place old age home and who were subsequently evicted on 2 October. Members of the group continue to sleep in tents in front of the building.

According to a City of Cape Town spokesperson the occupation was a private matter and the city was not obligated by any court order or mandate to provide accommodation. Certainly, there is a long way to go before a meaningful inclusionary housing policy can be enacted to address housing backlog in Cape Town.

In the Eastern Cape the Buffalo City Municipality was reported to be about to evict people who had illegally occupied RDP houses at Fynbos in East London. This follows an earlier unsuccessful attempt to evict the occupants. Buffalo City Municipality spokesperson Samkelo Ngwenya was quoted as saying:

This time around we are with law enforcement agencies and we are also putting in the due beneficiaries onto the houses as soon as we evict those that have been occupying the houses illegally. We know that the issue of housing is a very sensitive issue however we cannot tolerate the issue of the illegal invasion of homes.

The Eastern Cape Development Corporation also launched eviction proceedings against 45 tenants who reportedly owe the Corporation R40 million rand in rent. The ECDC reportedly has a property portfolio of 212 flat units, 99 standalone houses and 175 industrial properties in Butterworth.

RNews reports that

Some clients are also sub-letting ECDC properties and collecting rentals while not paying their dues to the Corporation. The vast majority of these tenants are economically active and can afford ECDC rentals.

Week 45: Monday 4th – Sunday 10th November

Expropriation

The media continue add to the hundreds of articles on expropriation, as MPs move closer to drafting a bill proposing amendments to the constitution later in November. The Chair of the ad hoc committee Dr Mathole Motshekga is again reported as saying that legislation will be gazetted in December for public comment. Motshekga has been at pains to assert that no party political agenda will be imposed on the process, and that the amendment of section 25 of the constitution is a matter which is in the national interest. It seems that this is to have us believe that it has been the perceived inability to expropriate land which has somehow impeded the land reform process. As both the reports of the Motlanthe High-Level Panel in 2018 and the Presidential Advisory Panel of 2019 make abundantly clear – the failure of land reform has nothing to do with expropriation and the levels of compensation payable. Expropriation without compensation – as Advocate Tembeka Ncugkaitobi, Prof Elmien du Plessis and other leading legal minds have consistently argued – has always been possible in terms of the constitution. As former president Kgalema Motlanthe has so eloquently put it: “That’s not where the horse is buried”. The land reform horse has been ailing from the outset and was laid out for burial under Minister Nkwinti. It remains to be seen whether the return of Minister Didiza can breathe life into it once more.

On Friday Motshekga again appealed to MPs to put aside their differences with respect to land expropriation while a report in BusinessTech examines the advice provided by Parliamentary Legal Services which has advised that there are 2 main options for amending section 25 of the constitution.

Option 1 is to amend section 25(2)(b) and Section 25(3)(b) which would allow for a court to determine that under certain circumstances no compensation would be payable in the event of expropriation of land for the purpose of land reform. This seeks to make more explicit what legal experts argue is already contained in the constitution.

Option 2 is to insert a new subsection:

Notwithstanding the requirement for compensation contemplated in subsections (2), (3) and (4), land may be expropriated without the payment of any compensation as a legitimate option for land reform in order to redress the results of past racial discrimination.”

The keyword here is ‘may’. Again, the courts will decide the circumstances under which such option would be just and equitable.

Farm workers

In our section on farmworkers UCT news featured a story entitled “restoring ancestors to their home through transformational UCT process”. According to the feature:

After an archiving audit of the UCT Human Skeletal Collection in 2017, the university discovered that it had 11 skeletons in its collection that were unethically obtained by the institution in the 1920s. The university has acknowledged this past injustice, which forms part of its history. Nine of these individuals were brought to the university in the 1920s from Sutherland in the Northern Cape. UCT is working with the community of Sutherland to return the skeletal remains of these nine individuals to their descendants.

Emeritus Associate Prof Simon Hall of the UCT Archaeological Department played a key role in providing historical links to living relatives. The Abraham and Stuuruman families in Sutherland were identified as descendants of some of the individuals whose remains were illegally exhumed and removed from the farm.

Hall explained how the UCT team had worked “to put faces – historical, physical faces, literally [and] figuratively – to these individuals. It has been a privilege to be part of this and to make a contribution to getting closure for these people on this.”

The desecration of graves and the unlawful exhumation of human remains has played a significant part in the rending of the South African social fabric. Forced removals played an enormous role in this regard – causing intergenerational social costs which have yet to be counted.  Mining has also been a major contributor in this regard.

For example, between 2000 and 2012, Anglo Platinum relocated more than 2200 graves in Mapela near the Mogalakwena Platinum Mine in Limpopo province. It transpired that many of the exhumations were undertaken in an illegal and unprofessional manner. This resulted in the mixing of the bones of the deceased. Despite a rectification process being implemented, many of the problems could not be fixed.  There remain many grievances regarding the compensation awarded and the siting of the relocated graves. Anglo’s award of R1500 per grave, was considered too little to adequately compensate for the social and spiritual disruption that the grave relocations has caused families. Culturally ancestors are revered throughout much of South Africa. They may be consulted for guidance and favour, through prayer and ceremony. The failure to lay the dead to rest appropriately and to tend their graves is a potent marker of disrespect which can bring misfortune to the living.

Traditional leadership, land governance and administration

Motlatelo Mohale, a Daily maverick opinionista wrote a column on 6 November entitled Traditional leadership bullying needs to stop. He speaks about the patriarchal, undemocratic and unconstitutional practices which have elevated a lot of traditional leaders to become elites in rural communities. He notes that South African traditional leaders currently cost the taxpayers over R250 million a year while their “bullying tactics puts democracy under threat”.

Dr Aninka Claassens, senior researcher at The Land and Accountability Research Centre at UCT writes a disturbing Op-Ed in the Daily Maverick. She notes how the Traditional Courts Bill, which the ANC pushed through the National Assembly just before the 2019 elections, was now on a fast track through the National Council of Provinces.

Claassens explains that:

The current bill compels the 18 million South Africans living in the boundaries of the former homelands to subject themselves to a legal system where traditional leaders are accorded coercive powers that surpass any that chiefs had during colonialism and apartheid

Like Mohale, Claassens chronicles a litany of abuses taking place in the former homelands. While the Xolobeni struggle is relatively well-known, many of the other cases are not. For example, who knew that in November 2018, King Ndamase Ndamase of Western Pondoland signed a lease with a Chinese investment company in which he undertook clear all the inhabitants from a 30 km stretch of coastline around Port St Johns, in exchange for a rent of a paltry R1 million a year.

Then, in February 2019 judgement was handed down in the Mthatha High Court to interdict a head woman from demolishing houses on sites which had been allocated to local women because they refused to pay an ‘occupation fee’ of R10,000 that she demanded. Claassens notes – and this is the essence of the TCB – that had this law already been enacted, these women could have been forced to subject themselves to the traditional court presided over by the very head woman who was illegally extorting funds from them.

Claassens concludes that:

State capture is not just about corruption. It is quintessentially about the state adopting laws and policies that reward its benefactors at the expense of the public good. These laws do just that. They reward traditional leaders and big business at the expense of black property and citizenship rights.

Restitution

Two major stories appeared on restitution this week: Lucas Ledwaba writing in the Daily Maverick writes about the struggle of the Vhembe Communal Property Association to get back control of 27,000 ha of land following the settlement of their land claim in 2004. Part of the land was occupied by the South African Defence Force due to its strategic location on the border with Zimbabwe. The Department of Public Works proposed that the SANDF remain on 16,000 ha of the land and that a ninety-nine year lease be entered into on this portion of the property. The CPA rejected this deal and proposed a five year lease on 10,000 ha of land with the stipulation that the land should not be used for military training. According to Ledwaba “the deadlock over the terms of the lease agreement has led to a delay in the issuing of a title deed to the Vhembe CPA”. Despite their land claim being settled it appears that the CPA has very little control over much of the land which has been nominally restored to them.

Sifiso Mnguni, Grower Affairs head at South African Farmers Development Association writes an opinion piece in IOL Business Report examines the challenges facing the sugar industry and reduction of land farmed by smallholders obtained through the land restitution programme. He notes that government has spent more than R2, 3 billion in acquisition of restitution farms for more than 231 communal property institutions – both trusts and CPAs. A wide range of business models have been attempted on land under sugar including lease backs, self-management, joint ventures and co management. Mnguni expresses concern that although 40% of the land under sugar is in black hands, black small-scale and land reform farmers have only managed to contribute between 12 and 15% of gross production in the industry each year.

Mnguni highlights some of the distortions created by leasebacks.

I am currently involved in the transaction advisory process and have recently witnessed a senior government official literally begging the community to sign R65 million worth of a land transfer deal, that will result in the land being bought by the government and transferred to the community on condition that it will be immediately be leased back to the same farmer for at least the next 18 years.

Mnguni concludes that:

When it comes to restituted land, there can only be one of two situations. Either the land is returned, and the community is benefiting, or the community is being fooled to believe that the land has been returned, when the current owner is still in possession, working and profiting from the land.

While Mnguni’s frustrations are justified perhaps this binary is something of a simplification. Restitution and the early waves of the redistribution programme have all unsuccessfully grappled with how large communities can actually benefit from land reform. As Mnguni notes earlier in the article “it is common knowledge that one farm which has been supporting one family cannot be expected to suddenly be able to support the whole community”. South Africa is currently facing a massive crisis of unemployment and recent research has indicated that in most instances land reform has led to a net loss of jobs. Contrary to Mnguni’s assertion above, one farm does not just support one family. It provides both direct and indirect employment opportunities. It employs both permanent and seasonal workers, while other jobs are indirectly created and supported up and down the sugar value chain. If a farm restored through restitution fails to produce, there are implications which ripple through the whole local economy. The question remains is how can land reform promote employment and livelihood intensity?

Rural development

In our rural development section this week there is a combination of good and bad news stories. On the negative side Farmer’s Weekly reports that rabbit farmers have been left in the lurch after the liquidation of one of the biggest role players in the industry was liquidated in October. Apparently Coniglio Rabbit Meat Farms had been “operating like a pyramid scheme, using money from one investor to pay another” until they ran out of road. Some 114 farmers who supplied the company with rabbit meat have now lost their market and face hard times and possible bankruptcy themselves.

On the plus side Business Day reported on new investments pledged at the 2nd investment conference headed by Presidents Cyril Ramaphosa. However, when one reads that the state owned logistics firm Transnet, among others, has formed promised billions in new investment in South Africa one may be justified in a little scepticism. Quite where Transnet gets billions for investment seems a little unclear, given that the rail system in South Africa is on its knees and state owned entities have been hollowed out. At the conference new development funds were also pledged through the newly established South African Agriculture Development Agency, which is reported to have raised about R12,9 billion to develop and promote the agricultural industry and provide support for subsistence and emerging farmers.

Urban land

Finally, in our section on urban land Public Works Minister Patricia de Lille has been in the news as she pledges to distribute state land to support the land reform programme. Jan Gerber writing in News 24 reported on a spat between de Lille and the DA in Cape Town in which the Minister accused the official opposition of playing “crèche politics” and demanded to see their plans to address the legacies of apartheid spatial planning.

Interestingly in the same week the Municipal Planning Tribunal rejected a proposed development in Woodstock. Karen Hendriks from Reclaim the City was reported as saying that the exclusion of coloured and black people living in the city was the foundational premise informing this development. She noted that a household would have to earn a minimum of R36,781 a month in order to afford a one-bedroom fact flat in the proposed development. This meant that only 6, 6% of coloured households could afford this flat. She asked for whom is this development and who will benefit if it excludes poor and working-class people who have survived the group areas act and apartheid? The answer to that question seems abundantly clear.

 

Week 44: Monday 28 October – Sunday 3 November

 

Expropriation

On 1 November the Citizen lead with a story on expropriation with an eye catching headline that read Expropriating land is vital for the economy – Ramaphosa. Strange that the article below it makes no mention of this. A bored subeditor or a deliberate case of clickbait? According the report “government was committed to the acceleration of land reforms as it is essential for the transformation of society” and that Cabinet still needed to “finalise its deliberations on the findings and recommendations” of the Presidential Advisory Panel report. The Panel had found that the land expropriation without compensation was “one of a range of methods that could be used to acquire land for land reform.” Nothing new here and certainly nothing to suggest that government’s economic policy advisers were posing wholesale expropriation as a strategy to boost the economy and grow employment as the headline suggests.

On the same day a similarly confused story appeared on IOL where President Ramaphosa was reported to have insisted that the government will “not allow land invasions during the expropriation of land without compensation”.

(Perhaps these stories are being auto generated by an app employing key word algorithms somewhere? Far fetched? Not really. A recent piece entitled The Next Word in the New Yorker asked the question whether a machine employing artificial intelligence could write an article that would meet the publication standards… but we digress)

In other news Terence Corrigan from the Institute of Race Relations writing in IOL voices his frustrations that the banking sector in South Africa do not seem to share his doomsday reading of the implementation of expropriation without compensation.

Overall nothing particularly insightful on this topic in week 44.

Farm workers

An op-ed in Fin24 by Terry Bell provides a sobering assessment of the state of South Africa’s labour movement. This has been featured on KB.L in previous weeks and surfaced strongly at the Future of Farm Workers Conference held in mid-October. Bell cites figures provided by the registrar of trade unions to show how individual unions are proliferating, while the five national trade union federations are riven with controversy and political infighting, not to mention corruption and capture. According to the Bell:

“There are now 207 registered trading unions – an increase of 17 over the past year – with a total membership of some 3.8 million workers. If agricultural, forestry and domestic workers are taken into account, this would barely constitute 20% of a workforce which, according to stats SA, has less than a 60% participation rate in the economy”.

Bell presciently observes that “with the impact of automation and the digital revolution being increasingly felt, the unions – as putative protectors of the working majority and potential pillars of democracy – had better move fast if they wish to remain relevant in future”.

Land governance and administration

The Ingonyama trust comes under scrutiny again in a critical piece in the Daily Maverick by Mary de Haas, a veteran independent violence monitor from KwaZulu-Natal. De Haas provides evidence to counter the persistent complaints from Zulu King Goodwill Zwelithini that the Ingonyama Trust Board has been inadequately consulted about options for the future. She also takes issue with the claims that the king could rightfully claim ownership of the land even if Ingonyama trust had never been set up by law. She notes that:

The office of traditional leadership today is largely a product of colonialism and apartheid. Since the 19th century, chiefs have not been “chiefs by their people… [W}ith the formalisation of the policy of indirect rule chiefs became accountable to the government which paid their salaries and defined their domains.

De Haas argues that the push for the dismantling of the Ingonyama trust is not based on a distrust of King Zwelithini as a leader. The real concerns are about the functions of the trust board which acts as a “virtual parallel government, itself issuing leases which often cloaked in secrecy, and which trample on the legally protected rights to the land of the people living there.”

Land Policy

We featured an extract from Bheki Mashile’s letter from Umjindi in Week 40. Mashile has now penned an open letter to the Minister of Land Reform concerning the issuing and duration of leases on farms owned by the state acquired through the Proactive Land Acquisition Strategy of the Department of Agriculture, Rural Development and Land Reform. As Mashile puts it “one minute people on this land are informed that their leases are to be cancelled and the next that this decision is under review”. He highlights how the lack of a long-term lease prevents landholders from qualifying for state support and accessing loan finance.

Jan Gerber writing in News 24 reports that President Ramaphosa has made an undertaking in Parliament to also consider the minority report produced by two members of the Presidential advisory panel – AgriSA’s Dan Kriek and Nic Serfontein. The dissident duo refused to endorse the report panned by the other panelists under the Chair of Dr Vuyo Mahlati. According to Ramaphosa “both reports are before the Cabinet and they are going to be considered”. However, he provided no clarity on question which everyone asking: How long will it take before government makes up its mind about the way forward with land reform?

The old adage of ‘follow the money’ usually provides an accurate indicator of how serious government is about land reform. The Farmers Weekly reported on Tito Mboweni’s medium term budget policy statement in which they observe that only passing reference was made to agriculture and land, noting that if land reform was to be accelerated it would have to be done without any significant additional budget allocation from the national fiscus. In fact, the opposite was more likely – that the Department would have to do more with less, as there were downward adjustments made to the 2019/ 2020 budget allocations for both the former Department of Agriculture, Forestry and Fisheries and the former Department of Rural Development and Land Reform. These two departments are only expected to be merged by 1 April 2020.

Meanwhile IOL reported on the Bridge Building Land Summit held in Paarl on 24th of October. Other sources cite this as a gathering of “Christ centred experts” seeking solutions to the key challenges “facing South Africa’s agricultural landscape” According to the organiser of the summit, Jan Oosthuizen:

“We need to build bridges in South Africa, we need to find national cohesion. We hear enough about the problems, we need solutions now”.

An organisation called Future Farmers was advanced as an example of the type of solutions proposed by the summit. The project aims to train and qualify men and women and place them on large commercial farms so that they can gain experience and become successful commercial farm managers or farmers in their own right.

Restitution

A team of writers from the Legal Resources Centre have reflected on the lessons from the Prudhoe community restitution claim. According to the LRC, the land claim is a case study that reveals the ineffectiveness of the institutions which have been given responsibility for the land restitution process.

Staff lack proper legal and historical training and high turnover contributes to poor institutional memory. Record keeping in the Commission is often in disarray, while research reports are inaccessible or simply absent. This results in a lengthy and frustrating process that has seen many claimants wait more than 20 years to have their claims adjudicated. In the Prudhoe case the Commission produced three different, sometimes conflicting, research reports for the purpose of investigating the merits of the claims. The reports each took nearly five years to complete and when they were finally released the Prudhoe Community still had to appoint an independent historical expert to clarify some of the inaccuracies in the reports. During the course of the Prudhoe trial, the parties realised that the Commission had failed to notify dozens of affected land owners when many arrived at court after reading about the case in the media. This happened twice, even after the Commission had outsources (sic) the function to a private firm of attorneys.  The court was forced to postpone the matter for a further six months. Since the institution of the land claim (in 1998), 109 of the original 124 heads of households have passed away in poverty and never saw their land returned to them.

These findings fit well with the conclusions reached by the Motlanthe High level Panel which Phuhlisani NPC has summarised here.

Rural development

More stories on the devastating impacts of the drought continue to be featured in this section. News 24 reported on a presentation of research by Dr Bongani Ncube at the 20th Waternet symposium on freshwater management. Dr Ncube’s research how highlighted how ill-prepared smallholder farmers were to cope with the severity of the drought. Ncube observes that one of the highest social impacts as a consequence of the drought was the rising levels of theft.

Smallholder farmers “associated drought with pain and a disaster that they couldn’t find words to describe… a ‘killer’ in the farming business”. Dr Ncube highlighted the need for the development of coping and adaptation strategies to mitigate drought and adapt in the context of the mounting climate crisis.

Urban land

As usual our urban land section carries a diversity of news. In previous weeks we have reported on the illegal evictions carried out by the group known Dudula in Alexandra and River Park in Johannesburg. This week the Northeastern Tribune reports on a series of investigations which have been launched into the matter. Apparently separate investigations are being made by the City of Johannesburg, the Public Protector, the Human Rights Commission and the provincial government. Now the Hawks are reported to have settled on the case as well.  Meanwhile those evicted remain forced to squat on small portions of vacant land waiting for an outcome. Given all the actors involved they may have to wait for some time to come.

Plain speaking Sbu Zikode, former President of Abahlali baseMjondolo, the shack dwellers’ social movement, recently addressed a constitutional dialogue convened by the HSRC.  His speech was reproduced in the Daily Maverick. Zikode reflected on the struggles of the urban poor to make their voices heard in post-apartheid South Africa and chronicled the repression they have faced at the hands of the municipal security apparatus:

During 25 years in democracy the self-organising of impoverished communities has been seen as some form of conspiracy. This is done to justify violence on us. Organising outside the ruling party and the state has cost us lives. We have lost 18 housing activists since 2009 who insisted that land and wealth must be shared amongst those who work it. Many of us have scars just for insisting that impoverished people count in our society.

Brutal and unlawful evictions continue to terrorise our communities. The organised izinkabi like Land Invasion Unit of eThekwini, the banned Red Ants of the City of Johannesburg and Law Enforcement Agencies of City of Cape Town have subverted the law and use violent force on landless people. We have lost lives under the operations of these izinkabi. This is what happen when the political leadership has been replaced by gangster politicians. This is what happens when a democratic state is replaced by a police state

After almost 15 years of struggle we remain committed to building radical democracy from below. The wealth, the cities and land must be shared. The right to participate in discussions and to make decisions must be shared. This is the mission that confronts our generation.

Ironically News 24 reported in the same week that the suspension order on the banned Red Ants has been lifted. According to the judgment

“Given the severely restrained economic climate in South Africa, where thousands of people are retrenched every month and millions are unemployed, it is clear to me that the factors of irreparable harm and balance of convenience favour the applicants”.

It noted there were sheriffs with nine “long-overdue evictions” and 22 “long-overdue removals” that still needed to be executed. The Red Ants now have to apply for permission on a case by case basis to undertake demolitions and evictions.

At the same time EWN reported that the Gauteng Human Settlements Department was in the High Court, seeking a blanket eviction order  to help police remove land invaders off government property immediately. without having to apply for an individual eviction order every time, thus delaying the process.

It is becoming increasingly clear that the struggles for land and livelihood opportunities are now converging in the urban space. It remains to be seen how South African policy makers and urban planners will respond to this pressure. Can real political leadership be provided – or has this been totally subverted by those that Zikode characterises as gangster politicians?

Week 43: 21 – 27 October

Expropriation

Expropriation is back in the headlines with a number of stories this week reporting on the work of the ad hoc committee tasked with drafting a bill to propose an amendment to section 25 of the constitution. Bekezela Phakathi writing in Business Day on the 21 October provides an overview of the decision to establish the committee and its plans to conclude the process by March 2020 Quotes to make explicit that which is implicit in the constitution, regarding appropriation of land without compensation, as a legitimate option for land reform”.

Committee Chair Mathole Motshekga has assured citizens that they will have the right to comment on the draft bill. Motshekga is reported as saying that: “the committee does not have a monopoly on wisdom involved local and international experts in its work”. Given all the hundreds of submissions that have been made to date it’s difficult to imagine what fresh contributions can be made on this issue. Presumably the focus will be on the actual wording of the draft bill and its implications – legal as well as economic. The committee plans to meet in December when Parliament will be in recess ensure that it meets the March 2020 deadline. Tucked away at the end of the article is a recommendation by Parliament’s legal advisers that the committee will also have to refer the bill to the National House of Traditional Leaders as well as provincial legislatures, the logistics of which pose some challenges for meeting the March 2020 deadline.

The previous week an extract from a speech by former President Kgalema Motlanthe to the Real Estate Industry Summit was widely reported. A link to the video of his speech is available on the REIS site. In the speech Motlanthe characterised the initiative to amend section 25 of the constitution as “a detour”. Interestingly different media reports put a different spin on what Motlanthe said in his speech. The SABC was reported that the former president had said that expropriation would not take place in a hundred years while Moneyweb quoted  Motlanthe more accurately saying that:

The problem is that [government] lacks the political will to address the land question,” he said, adding that parliamentarians in their wisdom decided that section 25 is not explicit enough. They want to amend it so that it might be explicitly clear that it shall be expropriation without compensation. Let’s hope it won’t happen in a hundred years.

A series of reports (EWN, News 24 and IOL) featured assurances by Deputy President David Mabuza answering questions in Parliament that the ad hoc committee would complete its work on deadline. Mabuza was quoted as saying:

We’d like to assure this house that the amendment of the Constitution of South Africa 1996 in order to allow for the appropriation of land without compensation remains a commitment and priority of this administration. Government will not deviate from this policy.

The Deputy President was also quoted as saying that “the land reform process would be pursued in a responsible manner” and that land invasions would not be allowed.

On 23 October IOL carried a story quoting Cedric Frolick, National Assembly House Chairperson is reported to have stated that the draft bill would be ready by mid-December so that the public would have the rest of January to comment. Commentators have pointed to a pattern in Parliamentary process whereby sensitive bills are introduced at the end of year holiday period, placing limits on the amount of time available for public comment and response. According to Frolick

Immediately after the closing date has been reached, the committee will meet to consider the public submissions made and then may have public hearings here in Parliament and outside Parliament considered views in the written submissions.

Clearly the committee will have its work cut out to meet its deadline of 31 March 2020.

Farmworkers

We undertook last week to try and provide some insights into the research papers presented at the future of farmworkers conference held at UWC from the 16 to 18 October. A paper presented by Leonard Le Roux sought to explore the effects on households of migration farms noting that this was taking place for both voluntary and involuntary reasons. Le Roux sought to explore how the living standards of farm dwellers changed when they migrated or were displaced to urban areas. He sought to find evidence from data collected as part the longitudinal National Income Dynamics Study which is sought to track 28,000 individuals in 7300 households from a nationally representative baseline sample compiled 2008. This data revealed that 25% of farm dwellers interviewed in different survey waves had moved to urban areas by 2017. This data showed that migration was having economic benefits with a 17% increase in per capita income for those interviewed in the study. However, migration was most inevitably associated with a decline in housing quality with a 15% reduction in probability of living in a brick house. Le Roux also explored the relationship between increasing concentration in the agricultural sector and its implications for farmworker earnings. He presented data which showed clearly that the wages received by employees of large firms employing 50 or more workers were consistently higher than those working for enterprises which employed 10 workers or less.

Some of the farmworkers present expressed frustration with the presentation of research findings particularly where these did not seem to corroborate their own lived experience. However the US farm labour activist Baldemar Velasquez cautioned that workers needed to understand processes of globalisation and the impacts on both farmers and workers. He argued that it is global supply chains that marginalise farmers, who in turn marginalise the employees. A concerted effort is required to counter the greed that drives these global supply chains into improve working conditions in the industry. He argued that corporations can make freedom of association for workers on farms a condition for product purchase. Only once workers were better organised would we begin to see real change in the sector. Velazquez also argued that intellectuals and academics have an important contribution to make to workers struggles:

Their job is to write and to take on the intellectuals of the other side. They can research the things that we need to form our strategies to make possible the collectivisation of the workers that need a collective voice. Somewhere, somehow, we can find a way to do this together. So, let us work together to make that happen now, not tomorrow.

In the days after the conference a piece by Ivar Anderson from the Swedish paper Arbetet reports on how farmworker Claudine van Wyk and local representative of the union CSAAWU was allegedly facing disciplinary proceedings for having spoken to the media about working conditions on a South African wine farm.

In the article Van Wyk was quoted as criticising how management at Leeuwenkuil were making more use of day labourers and replacing long-standing permanent workers with temporary employees. However, management at Leeuwenkuil state that Van Wyk’s right to free speech is not in dispute arguing that:

The hearing is not about speaking to the media or whomever, it is about giving false information. Never has anybody ordered anyone to stay-at-home, those who do so do it out of free will. We are running a business and need work to be done on time.

The union CSAAWU has countered that this workplace has a long history of problems and that it featured prominently in the controversial Bitter Grapes video. They cite the findings of a Department of Labour inspection made soon after the video was aired which required that the farm:

  • demolish a house on the farm which was structurally unsound and were not fit for people to live in.
  • comply with the Basic Conditions of Employment Act concerning sick leave, as workers were not paid – even when they had made a written sick-leave document as stipulated in the law.
  • Improve the quality of drinking water available to workers on the property

Restitution

Turning to restitution now one of the more bizarre land news stories this week comes from the DispatchLive which reports on a NCOP select committee hearing in Mthatha in response to a petition filed by the chief protocol officer of the “Thembuland Royal Empire”. Votani Majola, who according to the Dispatch calls himself Emperor Thembu II to the AbaThembu Royal Empire claims he represents AbaThembu from all nine provinces and that every bit of land in South Africa belongs to the AbaThembu.

But Nkosi Bhovulengwe Mtirara, who was also at the meeting, said as a traditional leader, he distanced himself from the petition. “There is no way that I can claim all of SA. I know my jurisdiction”.

Rural development

Stories on the devastating droughts in rural areas of the Western and Eastern Cape dominate the news in our rural development section this week. Yamkela Ntshongwana, a photojournalist writing for GroundUp reports how 5 villages in the Tsomo area of the Eastern Cape have been without water for 3 months.

Villagers in Gqogqorha confirmed that there is a water tank for the community but they say it is dry and has not been filled since drought gripped the area. Madoda Plaatjie, a pensioner and farmer, said he had lost 20 of his sheep and 40 of 90 lambs this year. He said his funds were now exhausted from trying to keep his stock alive.

Meanwhile in the Western Cape Times live reports that drought hit farmers will be given 50 million Rand in emergency funding to buy fodder for their livestock. Agriculture MEC Ivan Meyer said the money would go to farmers in the Central Karoo, Matzikama and the Little Karoo areas.

Urban land

in the Cape High Court judgement was reserved in the case where Philippi Horticultural Area campaign has sought to oppose development of the area arguing that land zoned for agriculture had unlawfully been rezoned for urban development by the MEC.

In a letter responding to a GroundUp article reporting on the case Richard Bryant wrote the following letter:

Here is a simple question. Why would a property development company by a piece of agricultural land outside the urban edge and then not farm it? If you knew at some stage in the future, the urban edge could be moved, then one day the value of the land would change from 10,000 Rand /hectare to 10 million Rand /hectare.

Bryant cites the example of a farm in Durbanville where “a portion of land valued at R25 million was eventually rezoned and given development rights. The same land was then reportedly sold to a developer R1.5 billion”. As he says: “Nice when the state plays Father Christmas.”

Week 42: Monday Oct 14th – Sunday October 20th 2019

Farm workers

The big story this week was the national conference on the future of farmworkers in South Africa which took place from the 16th to 18th October at the University of the Western Cape. This large, well attended conference brought together farmworkers and dwellers, representatives of trade unions and NGOs as well as academics with a guest appearance by the Minister of Employment and Labour. Conference themes included farm worker rights, farm worker resistance, labour force trends, agrarian transformations, the land debate, migration, food insecurity, and social protection. Organised agriculture was invited to attend but declined the invitation. The only representatives from the commercial farming sector came from the Boschendal Valley.

In a preconference interview on Cape Talk on 14 October Prof Ruth Hall from the Institute of Poverty, Land and Agrarian studies at UWC spoke about wide-ranging changes in the agricultural sector labour market.

“What we’re seeing is not only a shrinking of the population farmworkers, but also a lot of them being evicted or moving off and living in informal settlements around the farms or in the small towns”

Prof Hall highlighted how the ratio of permanent to seasonal workers had been inverted and that the vast majority of agricultural workers were now only able to obtain seasonal employment and lived off farm.

In a follow-up interview on Smile FM the following day Hall spoke about how many farmworkers who produced South Africa’s food were food insecure themselves. Prof Stephen Devereux who joined Ruth Hall on the show spoke about how the conference had been planned to launch on World Food Day. He spoke about a recent study in the Northern Cape which found that as many as 88% of women farmworkers experienced severe food insecurity during the winter months when work is scarce. A worrying 49% of those interviews reported food insecurity during the harvest season as when work is meant to be more plentiful.

In coverage of the conference Mzi Velapi writing in Elitsha quoted Betty Fortein, one of the leaders of the 2012 farmworkers strike who spoke about how little had changed farmworkers despite the successful 52% wage increase secured as a consequence of the strike. Farm owners had clawed back most of the gains either through charging for services which had previously been free, or employing workers for fewer hours in order to contain their costs.

He cited Colette Solomon from Women on Farms who spoke about a study commissioned on labour rights violations in 2017 which revealed that many women farmworkers are underpaid and are not always paid the minimum wage. Solomon noted  how many workers were forced to take out loans to supplement their salaries and fall victim to loan sharks in the process. She highlighted many other problems and indignities faced by women farmworkers and seasonal workers.

Most of the working areas do not have toilets and when women are on their periods they have to bury the sanitary pad in the vineyard or take it home with them

One of the striking features of the conference was the contested relations between trade union formations. On the first day there were incidents where members of rival unions heckled one another. The conference programme seemed  to have missed the opportunity for a deep discussion about the challenges of organising farm workers, despite there being much experience in the room. A notable omission from the panel discussion which attempted this was the rise and fall of Sikhula Sonke which could have provided important lessons. The story is about how Women On Farms supported women’s rights groups which evolved into farm and district committees, which in turn were transformed into the trade union Sikhula Sonke. As the union grew in strength and independence it broke away from the organisation which had supported its emergence and relations deteriorated between them. This was documented in an insightful book chapter by WFP Director Colette Solomon in 2013.  Two years later following an initial period of some success the union was deregistered on 23rd April 2015. The deregistration notice issued by the Registrar of Labour Relations stated that this was because:

  • the trade union ceased to function as a genuine trade union as envisaged by the Act;
  • the union failed to comply with sections 98, 99 and 100 of the Act (to keep accounting records and conduct audits, a duty to keep records and a duty to provide information to the registrar);
  • the union ceased to function in terms of its constitution.

There  are many lessons here which speak to the relationship between NGOs and Unions. This is increasingly relevant in a context where the Trade Union movement has been increasingly negatively impacted by alleged corruption and failures in accountable governance. The Food and Agricultural Workers Union which was originally established in 1941 grew to have an estimated 126 000 members countrywide was a COSATU affiliate before switching to join the rival federation SAFTU. The Labour Relations Registrar recently threatened to deregister FAWU or to approach the Labour Court to have the union placed under administration. The Union is reportedly riven with “factional battles and a multimillion rand financial scandal”.

The Minister of Employment and Labour Thulas Nxesi made an appearance at the conference where he faced tough questions from farmworkers and representatives. What was disturbing about Nxesi’s responses was how he invoked the threat of foreign workers taking the jobs of South Africans as a blame shifting mechanism. Minister Nxesi was criticised by some workers for not having a good grasp of conditions in the industry. It was proposed that he follow in the footsteps of the legendary Drum journalist Henry Nxumalo and go under cover for a week to experience working life on the farms first hand. Unsurprisingly the Minister did not respond enthusiastically to this suggestion. However the Minister did undertake to return sponsored by the Department with senior officials to discuss farm worker concerns in more depth

For more information on the conference debates and discussion visit the website of the Centre of Excellence in Food Security where a number of articles written by Mologadi Makwela cover key aspects of the proceedings over the three days. We will cover more substantive content from the Future of Farmworkers conference in our summary of next week’s news.

Land governance and administration

An article from the Witness was reproduced in Pressreader on 14 October which reported how the Ingonyama trust had collected R118, 4 million in rental income from people living on land owned by the Trust over the past financial year. This was a rental increase of 19% compared to the previous year. The Parliamentary Portfolio committee on Rural Development and Land Reform ordered the management of the trust to return to Parliament with comprehensive reports on how rental income had been used to benefit the landusers over the past 5 years. The Chair of the Trust Judge Jerome Ngwenya is reported to have argued that it was under no obligation to report on anything over and above the approximately 20 million Rand it received from government for administrative costs every year. He also observed that in July the President had announced that discussions would take place between about future of the Ingonyama trust following recommendations by the High Level panel and the Presidential Advisory Committee that Ingonyama Trust Act be repealed or significantly amended. These discussions have yet to attack place.

Land ownership

In our land ownership section Property Value Peter Meakin argued in a letter to BizNews land ownership is not a prerequisite for a successful business. He critiques an article by IRR’s Terence Corrigan on the David Rakgase story arguing  that he erred in claiming that “land ownership would have given Rakgase greater opportunity to use the farm as he saw fit and leverage it to raise capital. Meakin says he is wrong because Mr Rakgase says he built a good business without owning the land. He noted that:

Many firms in the Victoria and Alfred Waterfront, everyone in Hong Kong and most Singaporeans are in the same position. The latter two pay more land rents than taxes. The defining advantage to tenants is that long leases grant the same opportunities as ownership but with nil capital costs or mortgage obligations. Lessees can then deploy more capital in their businesses.

Rural development

Our rural development section carries welcome news about improved prospects for stone fruit exports despite the drought as a consequence of new orchards coming into productions and an increase in availability of irrigation water in some of the stone fruit growing areas. However, this trend is by far from uniform as the Little Karoo remains tightly in the grip of unrelieved drought, devastating the livelihoods of farmers and workers in the sector.

Urban land

A number of stories feature in our urban land section this week. In Cape Town the Phillipi farmers challenges the City of Cape Town in the Cape High Court, where Judge Kate Savage is presiding in a case disputing plans to rezone part of the Phillipi agricultural area for development. Madison Yauger writing in GroundUp has been closely following this issue.  She writes how Advocate Murray Bridgman, for the campaign, argued that the proposed developments ignore the PFA’s continued role in food security, heritage, protection of the Cape Flats aquifer and the potential for land reform in the area. Bridgman also questioned whether the national Department of Agriculture should have jurisdiction to determine if the land in question is considered “agricultural’” under the Subdivision of Agricultural Land Act.

The City of Cape Town has disputed the claim by the Phillipi farmers stating that

Claims that we want to pave over the PHA are incorrect. There’s a core PHA area where the farming happens, of about 1,900 hectares. That area is not in court today. That area is already protected by the Municipal Spatial Development Framework, which has defined that area as a critical natural area, so nothing can be developed there.

In other news Public Works Minister Patricia de Lille is reported to have released 14000 ha of state owned land for development of human settlements. However, the statement did not indicate where this land was located.

Finally in the news this week we feature an extract from a new book by Crispian Olver which focuses on the bitter dispute over the than management of the City of Cape Town which cost then Mayor Patricia De Lille her job. He questions the narrative advanced by De Lille that:

The conservatives in the party will tell you that there is virtually no available land in Cape Town suitable to accommodate poorer people … Unpalatable as it is, the truth is that the DA-led City of Cape Town does not believe that integration is a priority. If it did, it would begin to bring coloured and black Capetonians who were forcefully removed under apartheid back into the city and its suburbs.

Olver is sceptical about this interpretation:

I’m not so sure. Even if conservative elements within the DA did oppose her ambitions, the mayor was far from blameless. De Lille broke the power of the administration and ran the city by executive fiat.She targeted “obstructive” spatial planners and cast aside “constraining” planning instruments such as the urban edge and the CTSDF, yet planners and their tools were precisely what she needed to deracialise the city and drive spatial integration.

Clearly a book which deserves a close read, particularly after Olver’s previous investigation on city capture: How to steal a city: The battle for Nelson Mandela Bay which examines how the administration was entirely captured and bled dry by a criminal syndicate, how factional politics within the ruling party abetted that corruption, and how a clean-up was eventually attempted.

 

Week 41: 7 October – 13 October 2019

Weekly news updates are also now available as a podcast on SoundCloud.com

Farm workers

Farmworkers will feature prominently in the news in Week 41 and week 42 with an upcoming conference at the University of the Western Cape by the SA/UK Bilateral Research Chair in Social Protection for Food Security; the DST-NRF Centre of Excellence in Food Security and the Institute for Poverty, Land and Agrarian Studies, in association with Women on Farms Project and the Institute for Social Development at UWC.

In a conference curtain raiser Stephen Devereux, Ruth Hall and Colette Solomon writing in the Mail and Guardian report on research carried out in the Northern Cape under the headline The farmworkers who produce our food are the most vulnerable to hunger. The article references a 2019 study which examines the food insecurity experienced by 80% of seasonal farmworkers in the months when there is no work in the agricultural sector. The article critiques the inadequacy of the R18 per hour minimum wage for farmworkers introduced in terms of the National Minimum Wage Act. This amount is insufficient to meet the cost of a nutritious basket of food to feed a family of four. Seasonal workers rely on family members with access to child support grants or pensions, but these remain inadequate to feed entire families. The precarious position of seasonal workers forces them into indebtedness as they are forced to borrow money from loan sharks in order to purchase food to survive.

Of course, food insecurity is not a problem that is unique to farmworkers. In 2017, the late David Sanders, Professor of Public Health at UWC and his colleagues have examined how malnutrition remains a key driver of under-five mortality across South Africa as a whole. The 2016 Demographic Health Survey found that 27% of South African children under five were stunted – a sign of chronic malnutrition. Sanders et al wrote that within South Africa as a whole:

Poverty and unemployment continue to undermine household food security: 62% of children live in households with a monthly income of less than R965 a person. And, according to the 2016 Community Survey, 20% of households ran out of money for food in the past year — that is, one in five households. It is therefore not surprising that only 23% of infants aged six to 23 months have the minimum acceptable diet.

Land Governance and Administration

This week the Hazyview Herald profiled Nester Mathebula, Treasurer of the Giba Communal Property Association which is supported by the Vumelana Advisory Fund. CPAs have received very little support from the state and many have experienced significant difficulties in carrying out their functions as  land holding and tenure rights management entities. However, with support to develop management and financial systems the Giba CPA is reported to have entered into a commercial partnership and concluded two lease agreements.

The Ingonyama Trust

Writing in Timeslive Andisiwe Makinana reports on how members of the Ingonyama Trust Board played hide and seek with MPs in the Portfolio Committee who were asking questions about the adverse opinion of the Auditor General on the trust accounts for the second year in a row. The auditor general had noted that the Trust was not properly accounting for property, plant and equipment and there was also question of potential evasion of liability for the payment of municipal rates. The Trust rejected the Auditor General’s opinion and questioned the appropriateness of the auditing standards used. Trust administrators argued that in the main the Public Finance Management Act did not apply to them because the Ingonyama trust was not a listed public entity terms of the Act.

Land ownership

Thoko Didiza went on the record this week to apologise for David Rakgase’s 17 year wait to be allowed to purchase the land which he had previously leased from the state. There had been some confusion over the Department of Agriculture, Rural Development and Land Reform’s response to an earlier High Court ruling that Mr Rakgase was entitled to purchase the land. Initially, it was reported that the Department had applied for leave to appeal. However, Minister Didiza announced that this application had been withdrawn.

“We actually have to extend our apologies to Farmer Rakgase. Indeed, his matter should have been resolved a long time ago”.

Land policy

The Minister also delivered an address to the third Afasa Agribusiness Transformation Conference in which she spoke about the merger of the Department of Rural Development and Land Reform and the Department of Agriculture. The Minister announced government’s plans to introduce a district development model to help coordinate and align governance services and profile each district.

This profiling will look at the population size, the demographics, economic potential in the area and what government and the three spheres are doing or planning to do. A common plan will be developed and budgets will be aligned. Private sector participation will be encouraged… More importantly communities will be active participants… in the development of their areas.

What the Minister did not speak about however, was what the Department had learned from its previous attempts at district scale planning. There have been several failed attempts to strategically locate land reform as part of local spatial development planning. The department introduced area-based plans or ABP’s as they were known in 2006. The ABP sought to embed land reform as a sector plan within the municipal integrated development plan – the IDP. However, the process degenerated into a consultant driven compilation of large documents of mixed quality which cost between 20 and 30 million Rand to produce. Very few, if any of the plans drawn up were approved by district and local municipalities which prevented them from being recognised as a sector plan within the IDP. The problem with the ABP’s is that they were not described in any piece of legislation. For the minister’s district scale plans to gain traction they will need to be anchored in legislation which clearly sets out the obligations of national, provincial and local government and which makes available budgetary resources to match these responsibilities.

Redistribution

Writing in the Mail and Guardian Sobantu Mzwakali argued that land reform in South Africa had failed to address the land needs of women. He noted that women only constitute 23% of land reform beneficiaries in South Africa and in a review of failed government initiatives he concluded that:

No-one could reasonably argue that the challenge of women’s land listless is not on the South African agenda: it gets a mention in almost every cabinet level speech and most of the policy documents that flow from our bloated executive. However, where it is less present is on the credit side of the balance sheets that weigh rhetoric against delivery, intention against outcome and policy against product.

Timeslive reported on corruption charges laid against the City of Tshwane and three companies who allegedly colluded in buying land and then selling it a few hours later onto the City at inflated prices. Afriforum who laid the charges, reported that one of the companies paid a total of R117 million to the landowners before selling the same portion of land to the city for R211 million land on the same day. The price escalations onother properties purchased were of a similar scale, with one farm being purchased for R53 million before being sold on to the city for R85, 5 million also on the same day

Rural development

Several stories emerged this week about how South Africa’s emerging black farmers were in line to benefit from a fund that businessman Patrice Motsepe plans to establish. No details of the fund and how it will be managed are currently available.

Urban land

Perhaps the most sobering news story this week is written by Leseho Manala in Alex news.

A family that was illegally evicted from the Alex home month ago by a group called Dudula is out in cold. The widowed mother and six children now squat in an open space used by waste collectors barely a hundred metres from their former brick and mortar how in a neatly arranged row of houses on goal Street in extension seven. Her husband from Mozambique who died in 2007 was seemingly regularised citizen. He and his wife Veronica Gazeta was born in Bushbuckridge are stated in the title deeds and the government housing subsidy documents as the owners of the house.

In an earlier edition of Alex news RDP eviction chaos, the Dudula group said they weren’t vigilantes and that they would continue with DIY evictions that would return RDP houses to the ‘rightful owners’ said to be on a long-standing housing waiting list, presumably once compiled locally.

This and other similar stories of the failure of the police and government to protect vulnerable households from arbitrary extrajudicial evictions and vigilante expropriation are  powerful indicators of the mounting incapacity of the institutions meant to defend citizens rights in our democracy.

[1] SANDERS, D., REYNOLDS, L. & LAKE, L. 2017. Op Ed: Hunger is still killing South Africa’s children [Online]. Mail and Guardian. Available: https://mg.co.za/article/2017-12-01-00-hunger-is-still-killing-south-africas-children [Accessed 1 October 2019].

Week 40: 30th September – 6th October 2019

Expropriation

In an interview with EWN Dr Mathole Motshekga who is the chair of the ad hoc committee tasked with changing Section 25 of the Constitution said he anticipated that there would be fierce debate on the wording of the proposed amendment. He noted that the amendment should not be pushed through on the basis of a parliamentary majority, but that a consensus formulation should be reached if possible.

The amendment is not for party political purposes but is something that must meet the expectations of the people of South Africa as a whole

However, Dr Motshekga noted that if no consensus could be reached, a majority vote would decide the wording of the amendment.

An op-ed in City Press by Alexander Hammond contrasted President Ramaphosa’s push for a new African Continental Free-Trade Area with projected impacts on investment, if the constitution is amended to enable expropriation without compensation. The article cited an economic impact assessment prepared in 2018 by Professor Ilse Botha from the University of Johannesburg, and Roelof Botha, an economist at the University of Pretoria which forecast “a downgrade of the country sovereign bonds to junk status, high internal interest rates, a fairly sharp decline in taxation revenues and a deep recession” should land expropriation without compenssation become a reality.

Hammond argued that secure property rights provide the foundation for investment:

For a nation to benefit from free-trade, it must first have something to produce, and without strong property rights ensuring the fruits of one’s labour are protected, the incentive for people and businesses to invest, produce, and create no longer exists.

Farmworkers and the minimum wage

Writing in the Mail and Guardian Musawenkosi Cabe reported on the third annual conference of shop stewards and union officials held by the Commission for Conciliation, Mediation and Arbitration (CCMA). The theme of the conference was the implementation of the National Minimum Wage Act, which came into force on 1 January 2019. The Act prescribes a minimum wage of R20/ hour for all workers, with the exception of farmworkers, domestic workers and people employed on Public Works programmes. According to the Act by 1 January 2021 all workers should be earning the same minimum wage of R20/hour.

In terms of the legislation an employer can apply for exemption, which applies for a period of 12 months. If granted, such an exemption permits the employer to pay 10% below the relevant minimum wage rate. Some 475 exemption applications had been received between 1 January and 19 August 2019, of which 289 had been approved. Interestingly the majority of applications for exemption came from organisations working in the non-profit sector, as opposed to farming enterprises or businesses. Workers organisations represented at the conference argued that R20/hr could not be regarded as a living wage. They also expressed concern about the capability of the Department of Labour to oversee the implementation of the law.

Land administration

This week President Ramaphosa signed into law the Electronic Deeds Registration System Act. According to the Registrar of Deeds, (cited in a BusinessTech article with a curiously misleading title):

The new system will enable the electronic processing, preparation and lodgement of deeds and documents by conveyancers and the registrar of deeds. It will also enable the registration of large volumes of deeds effectively.

Land policy

Custom Contested, the blog curated by the Land and Accountability Research Centre at UCT, reproduced a link to an article appearing in the French publication Le Monde Diplomatique entitled South Africa’s lands must be shared. The article provides an overview of the contested land reform process in South Africa. It focuses in part on the workings of the Ingonyama Trust and the ways in which the Trust has turned the ownership rights of those living on the 2, 8 million ha it controls into tenants, who are required to pay annual rents of up to R3000. Both the High Level Panel and the report of the Presidential Advisory Panel recommended that the Trust be wound up, or that the Act be substantially amended. However, an expert cited in the article, who requested to remain anonymous was pessimistic about the possibility of change:

The government won’t dismantle this mediaeval trust, this state within the state because they don’t want civil war.

Smallholder leases and PLAS

Bheki Mashile writing in Noseweekonline records how black smallholder farmers in the Umjindi area, who have obtained land through the PLAS programme operated by the Department of Rural Development and Land Reform have recently received letters headed “Termination and nonrenewal of lease agreement”, purportedly on the basis that the lessees had failed to effectively utilise the properties.

Mashile highlights the predicament of people leasing land under the PLAS programme:

Funny enough it all boils down to the exact thing the government now wants to deny us: our leases. And they’re not just leases mind you, but long-term leases for about 30 years – at least that’s what they told us back in 2014. Now here is the problem: without those leases, which had been under consideration ever since 2014 – that’s five whole years – most of us of not been able to raise the necessary capital to work the farms. I mean guys like the Land Bank and other institutions have simply refused to provide loans or grants without those leases – which of course makes sense.

He recounts his experience in obtaining Recapitalisation Funds and trying to obtain lowest loan finance without a secure lease. It is a long story, which is due to be told in more detail in a follow-up instalment; but one which raises important issues about tenure security, access to finance and what constitutes appropriate support for those acquiring land through the land reform programme.

Rural development

Devastating drought impacts

The past week has seen a number of articles curated under this category. Carolize Jansen writing in Fresh Plaza highlights the devasting impacts of the drought on fruit production in Bot River and the Klein Karoo. She highlights how there are “previously productive stone fruit farms where every single tree has died and all the farmworkers have lost their livelihoods. More than 300 ha of orchards have been taken out. Producers get no government subsidies in South Africa, nor has the area been proclaimed a disaster area which would enable emergency government aid.”

It seems that all the media focus around the drought was captured by Metropolitan Cape Town and the day zero narrative. Meanwhile drought impacts in large areas of the Klein Karoo, the Eastern and Northern Cape have gone largely underreported. Looking forward, it’s also clear that the forecast of a climate change linked 2° temperature rise, will have major impacts for deciduous fruit production.

Biodiversity impacts

Earlier in September, Barbara Creecey, the Minister for Environmental Affairs released the National Biodiversity Assessment report for 2018 highlighting major impacts of South Africa’s development path and climate change on the environment. The report indicated that one in seven of indigenous species is considered to be threatened with extinction while 12% of the mammal population is also endangered. The report also questioned the sustainability of the trade in medicinal plants as part of the informal African traditional medicine industry which is estimated to be worth R18 billion a year.

High value agriculture as a job creator

Dennis Webster, writing in New Frame picks up on proposals made by Nimrod Zalk, a former DDG in the Department of Trade and Industry, who argues that the potential of high-value agriculture to expand employment in rural South Africa has been “hiding in plain sight”.

According to Zalk:

“Around 200,000 jobs could be created if we expand our production of high-value, export orientated crops like flowers, certain fruits and nuts”.

This in turn would lead to the creation of a further 100 000 jobs located in up and downstream manufacturing and services.

Webster notes that “agriculture in South Africa remains heavy on land but light on labour. On average, only 0.02 workers are employed on every hectare of dairy, maize, poultry, beef, wheat, soybeans, eggs, pork, sheep and canola”. Some 9 million ha of land were dedicated to these crops in 2011.

In a commentary on Zalk’s proposals Ben Cousins from PLAAS has argued that without substantial redistribution of land to productive small-scale farmers Zalk’s approach contains some “blindspots”. However, Cousins notes that fresh produce and fruit production are suitable for small-scale black farmers producing on land that could be redistributed by land reform. Cousins also draws attention to the climate crisis and raises concerns about the transport related carbon emissions linked to a focus on export-led growth pathways. However, Zalk has argued that this is a price that will need to be paid, if South Africa is to find ways to rapidly increase employment.

Legalising dagga – unintended consequences for poor rural growers in Pondoland

Christopher Clark, writing in GroundUp and republished in Sowetanlive reports on an unintended consequence of the landmark decision of the Constitutional Court taken in September 18 which ruled that “the use, possession and cultivation” of cannabis in “private dwellings” was not illegal. Dagga growers in Pondoland who have been supplying the South African market for decades report that with the relaxation of the law, prices have taken a dive and that buyers are increasingly hard to find.

I’m worried that now everyone will be off to plant their own dagga in their own homes, so we won’t be able to make money from selling what we are growing here. Even at the end of last year, the buyers were very scarce, so prices were down.

Thuliswa Gumbe – Pondoland grower

Clark notes that many of the local women growing dagga are widows and this forms a central part of their livelihood strategy. He adds that:

Currently the only route to the legal cannabis trade in South Africa is by obtaining a South African products regulatory authority licence for medical marijuana cultivation… But for rural farmers there are considerable barriers to entry, including an extensive list of quality control measures and infrastructure that needs to be implemented, accompanied by prohibitive costs

The article cites the cautionary example of Lesotho which was one of the first countries to legalise the growing of marijuana for medicinal purposes. However, the market was very quickly dominated by foreign companies with local growers marginalised in process.

Traditional leadership

Clive Ndou writing in the Witness reports that traditional leaders in KwaZulu-Natal, who had previously threatened to go to war if government tried to nationalise land under the Ingonyama Trust, have since softened their position and have said that they are now willing to talk. Inkosi Phathisizwe Chiliza, the chairperson of the KZN House of Traditional Leaders was quoted as saying that:

We have resolved to visit and consult with all local houses to ascertain the input of traditional leaders on how the land should be distributed and to whom. We have established a task team that will consult on behalf of the House on all land matters, whether it is the Ingonyama Trust land, state or private land.

Urban land

Cape Town featured strongly in the urban land section this week, with the unfolding story of township residents who occupied a vacant and derelict old age home in Observatory owned by the Cape Peninsula Organisation for the Aged (CPOA). Moira Levy and Ashraf Hendricks writing in GroundUp highlight the predicament of desperate people living in backyard shacks in the city’s townships who have been on the waiting list for many years and who appear no nearer to being allocated a house.

However, by 4th October, IOL reported that people occupying the building had been evicted. The article carried photographs of their belongings piled up on the street. A spokesperson for the CPOA explained that half of the site had been sold to a developer for an extension of the existing Pick n Pay, but that above this extension social housing apartments would be built. On the remaining part of the land CPOA will rebuild the old-age home to accommodate the previous residents and provide welfare retirement to needy aged persons.

On the following day GroundUp carried a story about 100 RDP houses in Khayelitsha which remain unfinished since 2012, and where residents are reportedly living without ceilings, toilet doors or gutters. The Acting Mayoral Committee for Human Settlements clarified that residents were part of a community driven People’s Housing Process project, where the contractors went into liquidation and left the work unfinished.

That’s all for our summary of week 40. We are not able to cover every land related article published during the week. So, be sure to browse the news categories to catch up with other stories making the news. You can also search our extensive archives which now contains over 2300 articles, and which is growing every day.

Week 39: 23rd to 29th of September

Farmworkers

On 23rd September the Cape Business News reported how workers union CSAAAWU had handed over a set of demands to the Norwegian and Swedish consulates over the weekend for improved conditions of farmworkers producing wines for export to Nordic markets. The union threatened to call for a boycott of wines and other agricultural products from South Africa by Nordic consumers if the alleged ‘slave-like’ working conditions of black farmworkers were not addressed. The union has demanded a minimum wage of R250 a day and a monthly salary of R8500 for farmworkers to be phased in over the next three years.

Nersishka Singh writing an Op-Ed in Business Day on 25 September draws attention to the fact that the extension of security of tenure act was designed to do much more than to protect farmworkers and dwellers from unlawful eviction. She notes that Esther protects farm dwellers right to access basic services which means that a farm owner is prevented from cutting off their access to any basic service. She cites a case in the High Court in Pietermaritzburg earlier this year which highlighted the failure of both farm owners and the municipality to provide access to basic services to 200 farm dwellers. The court found that this was in consistent with the constitution and an affront to their dignity.

Singh also notes that ESTA seeks to detect a farm dwellers right to maintain a family life consistent with their cultural and religious beliefs. This includes the rights of farm dwellers to bury and visit the graves of their dead:

One of the greatest obstacles to ESTA’s implementation is a lack of awareness of its breadth

Presidential Advisory Panel

Donwald Pressly writing in the Farmer’s Weekly reports on a speech made by Dr Vuyo Mahlati to the Cape Town Press Club. In a wide-ranging address Dr Mahlati summarised recommendations from the presidential advisory report with regard to tenure security and titling. She also highlighted how special attention need to needed to be paid to ensuring tenure security for women, particularly when it came to providing long-term leasehold agreements on state-owned land. With regard to the approach recommended towards land expropriation Mahlati provided a careful response reiterating that:

“Expropriation without compensation is just one form of land acquisition. There are different forms … [such as] negotiated settlements. The approach is not wholesale expropriation of everything and everyone. It is in terms of targeted areas.

Mahlati also recommended that Treasury needed to explore tax incentives to encourage donation of land and buildings. However, there was a concern that landowners might come forward to donate unproductive land of little value to the land reform programme.

President Ramaphosa delivered a keynote address at the Heritage Day celebrations in Upington where he reiterated the need for wide-ranging land reform.

We must say it very clearly our history, identity as South Africans is closely linked to the question of land and it is for that reason that we can say that land must be returned to our people because that is what really shapes our identity.

Land rights and mining

Dr Aninka Claassens writing an op-ed in Business Day on 26 September highlighted the consequences of what she described as the states ‘mining bias’ for poor rural South Africans. Claassens notes that in addition to the reports of the HighLevel Panel in 2017 and the Presidential Advisory Panel in 2019 the findings of the Baloyi commission “explains how politically connected traditional leaders are able to enrich themselves at the expense of rural people. Government collusion is an ingredient as is the conduct of big mining companies and legal and accounting firms”.

The Baloyi Commission has investigated mining deals entered into by Kgosi Nyalala Pilane with a range of mining companies since 2004.

The report details how Pilane has failed to account for the deals to either his traditional council or the 32 villages that make up the Bakgatla community. It describes the many unauthorised accounts into which he has deposited money and his refusal to account for it, which has made it impossible for the auditor-general (or anyone else) to audit community assets. The Bakgatla have little to show for these multibillion-rand deals. Instead the villages continue to be characterised by deep poverty and fury at the way in which their birthright has been squandered.

Claassens also explores how Contralesa, the organisation of traditional leaders (of which Pilane is deputy chairperson) has pressured government to enact the Traditional and Khoisan Leadership Bill (TKLB). This law would undo the safety net provided by the Interim Protection of Informal Land Rights Act (IPILRA) requiring the informed consent of rural citizens before the disposal of any right in land may be lawfully permitted. The TKLB seeks to allow traditional leaders a freehand and independent authority sign mining deals.

Land reform successes in North West?

On 25 September SowetanLive syndicated a story from the Government Communication and Information Service (GCIS) featuring a family run cooperative Batlhako Temo Services which it is reported “has become a leading citrus producer in the North West”. The co-operative is the first black-owned citrus producer in North West province to sell its produce on export markets to the Middle East and Taiwan. The provincial Department of Agriculture had reportedly divided R1.6 million  worth of funding and support between 2014 and 2017 to improve irrigation and provide technical advice.

The Small Enterprise Development Agency (SEDA) reports that members of an unregistered co-op approached them in 2010. SEDA connected them with the Department of Rural Development and Land Reform which enabled them to access a 60 ha citrus farm. According to the article members of the cooperative have been supported with training and assistance to access markets as well as the purchase of plant and equipment.

Restitution: Heritage Day name changes

In Cape Town Sune Payne writing in the Daily Maverick reports that on Heritage Day Mayor Dan Plato, Minister of Agriculture, Land Reform and Rural Development Thoko Didiza and District Six Working Committee (D6WC) chairperson Shahied Ajam unveiled a plaque commemorating the restoration of Hanover Street in District Six

Today we celebrate the renaming of Hanover Street and doing away with the street name of Keizersgracht, with all its ties to painful colonial and apartheid injustice. This symbolic act of restitution is a great milestone in our fight for justice for this community.

The decision to change the name followed an application by the District Six Working Committee in June with 97% of 1,200 comments as part of a public participation exercise being in support of reverting to the original Street name.

While the street names may be changing much work still needs to be done to effect restitution to those dispossessed by the District Six forced removals which changed the face of the City of Cape Town.

Week 38 16 – 22 Sept 2019

Farmworkers

GroundUp reports on a meeting between activists, farmworkers and the Deputy Minister of Rural Development and Land Reform who belong to at least six different equity schemes in the Witzenberg area. Farmworkers complain that despite the investment of state funds in equity schemes, they have not seen the benefits that they expected.

According to the chairperson of the African Farmers Association in the Western Cape, Ismail Motala, white farmers are captured the benefits of share equity schemes “in terms of marketing, BEE status and to expand their own businesses by accessing funds over the years”.

“From legal documents the projects may seem above board but from a moral perspective, it doesn’t bring home the bacon for the people it was really intended for”.

The Deputy Minister has undertaken to launch a forensic investigation into selected farm equity schemes. The Witzenberg Rural Development Centre was demanding an investigation into all 52 projects funded through this mechanism in the area.

Department of Agriculture, Land Reform and Rural Development

Just as Minister Thoko Didiza tries to get her house in order, City Press reports that Corruption Watch had raised concerns about the reinstatement of departmental officials who had been either suspended or fired following allegations of corruption and maladministration. These officials include Director-General Mduduzi Shabane, and several others.

In their letter to Didiza, Corruption Watch demands that an investigation into what it describes as the “abuse and weaponisation of disciplinary processes” in the department by her predecessor Nkoana-Mashabane.

“We request that you urgently undertake an audit of all ongoing and suspended disciplinary processes to determine the reasons for the suspension of the processes and reversal of sanctions, in some instances, and the continuation and imposition of sanctions in others. In addition, we request that you investigate the circumstances under which dismissed officials were reinstated.”

A spokesperson for the Minister acknowledged receipt of the letter and stated that the she would soon respond to the Corruption Watch request.

Land ownership

An op-ed in News 24 IRR reports on a judgement handed down by the Pretoria High Court that recquired that the state sell 77 year old David Rakgase land which he had been leasing from the state to farm since 1991. He had previously applied to buy the property, a request that had been approved by the provincial grant committee of the Department of Agriculture in 2003. However, in 2010 a deputy director-general for land and tenure reform decided not to approve the sale. Instead Mr Rakgase was offered a long lease. The judgment recorded that:

The argument on behalf of the Minister that the Applicant has security of tenure and that there is no imminent eviction prospects on his horizon smacks of callousness and cynicism, particularly given our country’s historical deficiencies in dealing with land reform.

Land policy

There is more to land reform than expropriation without compensation

Minister Patricia De Lille was interviewed by News24. She criticised those who had dismissed the report of the Presidential Advisory Panel because of its cautious stance on expropriation without compensation. The Panel had acknowledged that there were circumstances under which expropriation without compensation would be just and equitable. However, they indicated that this type of expropriation would take place in exceptional and tightly circumscribed circumstances. De Lille expressed concern that:

The whole thing in the country is about expropriation without compensation. How dumb can you be?… I think we need to change our communication around land and begin to show South Africans that land reform means lots more things.”

IRR policy proposals for land reform

The Institute for Race Relations released Reaching the promised land, a proposed alternative to the report to the Presidential Advisory Panel. According to Anthea Jeffery:

The IRR’s Ipulazi policy captures the essential requirements for rural reform. Policy must shift from the transfer of land – often soon rendered unproductive – to increasing the number of successful commercial farmers. Those who want to farm must be helped to do so via adequate finance.

However, it remains difficult to determine how such an approach is going to be effective in addressing rural poverty. Simply replacing white commercial farmers with black commercial farmers cannot provide a sustainable solution. The IRR argues that the key demand for land is urban, although their proposed approach appears silent on the need to address spatial inequality, focusing rather on the promotion of alternative housing delivery mechanisms, via housing vouchers for the poor and public-private partnerships to speed up land provision.

Urban land

In Week 34 we carried news about the Klein Akker eviction case noting that the National Department of Agriculture, Rural Development and Land Reform had stepped in to provide accommodation for affected persons on a state farm near Stellenbosch. We recorded some scepticism about the motive for, and sustainability of this intervention, noting that there are no quick fixes or easy solutions for the problems associated with rapid urbanisation in a context of sharp social and economic inequality.

In recent weeks a political struggle has developed over this case, with the Democratic Alliance reporting Deputy Minister Skwatsha to the South African Human Rights Commission for “abandoning the vulnerable people of Klein Akker on a farm that is not fit for human habitation”. The Citizen subsequently reported on a court ruling which had interdicted the Deputy Minister from settling any “more vulnerable people in subhuman conditions” on the state farm in Stellenbosch.

GroundUp reports that this interdict followed a complaint and an application to the Western Cape High Court by Ricardo Green. He lodged the application on behalf of the Mesco Farmworkers Cooperative, who lease the land from the state. Green argued that a “once-in-a-lifetime opportunity to engage in an agricultural enterprise, as the owner of that enterprise rather than as salaried employees would be lost” if the farm became a place to relocate evicted families. He asked the court to order that the families leave the farm to occupy emergency housing offered by the City of Cape Town. The court will rule on the application to evict people resettled on the farm next month.

Also in Cape Town IOL reported on the disruption of a land auction to sell off 34 portions of prime land owned by the City of Cape Town. Brett Herron, a former member of Mayco, but now representing the Good Party observed that:

These proposed sales are taking place despite an affordable housing crisis and a failure to address the apartheid urban structure of our city. “This government (must) understand that the land belongs to all of us and they are the temporary custodians of public land. Their job is to employ that public land to address public needs, but we continue to see irreversible disposals. This will exacerbate our crisis of affordable housing.

While the City proceeds to auction public land, low income households continue to be evicted in Woodstock. This week the eviction of an 80-year-old man and his family from a house which they had occupied for 40 years, became the focus of widespread condemnation of metropolitan government and protest action by housing activists affiliated with the civil society organisation Reclaim the City.

Week 37: 9 – 15 September

Expropriation

Mathole Moshekga, the Chair of the ad hoc committee which has the responsibility of preparing a proposed amendment to Section 25 of the Constitution in order to accommodate expropriation without compensation announced that the committee was planning to meet with land specialists and constitutional experts. The Committee will first review existing reports including those of the High Level Panel, the Presidential Advisory Panel  and the committee appointed by Parliament to hold public hearings on expropriation. Moshekga  was reported as saying that “we will set aside politics and decide what is in the best interests of all South Africans” (Jan Gerber News 24). The deadline for the committee to finalise its work is 31 March 2020.

Farmworkers

The North Coast Courier has drawn attention to looming retrenchments in the sugar industry in KwaZulu-Natal with thousands due to lose their jobs at the end of the month at Tongaat Hewlett. Reportedly, sugar production in South Africa has dropped by 1/3 between 2002 and 2012. Illovo Sugar has reduced their workforce by 25% between 2009 and 2014. At the Maidstone Mill some 210 families living on company land were served with eviction notices told to vacate the property. Some workers are reported to have refused to sign the letter notifying them of their eviction as they have not been given an opportunity to find alternative accommodation. It is unclear from the report whether the evictions are proceeding in terms of the processes required by the Extension of Security of Tenure Act. Retrenchments and displacement workers continue on surrounding farms.

In the agricultural sector in the Western Cape Daneel Rosseau argues that partnerships in agriculture are now more important than ever. However, this comes at a time when there are widespread questions being asked about alleged abuses by land owners of farmworker equity schemes. Land sector activists argue that these have benefited landowners and employers, but deliver little or nothing to the workers in whose name funds have been secured.

Ingonyama Trust

Those allied with the Ingonyama Trust have been waging a fightback against recommendations in both the HLP and Presidential Advisory Panel reports that the Trust should be wound up, or alternatively the Act should be substantially amended. Business Day reports that Zulu King Goodwill Zwelithini and the Ingonyama Trust Board have briefed lawyers to fight such initiatives and that they are preparing to approach the International Court of Justice in the Hague should their case fail in South African courts.

Land policy

News 24 carried an interview with Public Works and Infrastructure Minister Patricia De Lille who has criticised the emergence of A singular focus on expropriation without compensation which she argues has distorted much of the South African debate on land.

“The whole thing in the country is about expropriation without compensation. How dumb can you be? I think we need to change our communication around land and begin to show South Africans that land reform means lots more things.”

Land rights and mining

Sabelo Ngubeni writing in the Mail and Guardian critically reviews the recent Xolobeni judgment which requires that the Minerals and Petroleum Resources Development Act and the Interim Protection of Informal Land Rights Act be read together. This is to ensure that in customary tenure contexts, communities must be adequately consulted to provide informed consent before mining activities can take place on their land. He highlights the failure of the Department of Land Affairs and its successors to pass regulations to guide the implementation of IPILRA which makes the process of obtaining informed consent difficult to implement.

Meanwhile the South Coast Herald published part one in a series on mining in Pondoland, profiling the uncertainties hanging over communities in the area. The Minister of Mineral Resources has announced that the Department will appeal the Xolobeni judgement and that a survey will be conducted in the area to clarify the community’s views on the granting of a mining licence. The report highlights the enormous divisions that have been opened up in the Xolobeni community. To date it is reported that some 12 people have been murdered in the area as part of the ongoing contestation over mining rights.

“It’s a huge problem, so much so that family members no longer attend the same events or ceremonies, or eat the same food as they are worried they will be poisoned. Some people use lightning to attack those who are not in favour of the mining.”

Redistribution

Earlier in the week a series of reports stated that government was going to announce plans to redistribute certain state land. However subsequently it appears that the land is actually reserved for restitution. A report in the Farmers weekly states that 278 parcels of land alluded to by the Deputy President in follow-up questions at the NCOP were intended for restitution to settle land claims lodged with the Commission on Restitution of Land Rights.

Urban land

IOL and other news outlets carried reports that the NGO Ndifuna Ukwazi was planning to take the City of Cape Town to court to review or set aside the city’s approval of a 39-story mixed-use development in Buitengracht Street known as the Vogue. The NGO has objected to the absence of affordable housing as part of the high-rise development. The NGO states that the approval of the development ignores an undertaking in August 2018 made by the city to develop an inclusionary housing policy to increase the number of residential units in the city and other well-located areas for families earning between 3500 and 18,000 rand a month. How such units would be allocated and applicants approved poses major challenges for the already compromised housing demand data base.

 

Week 36: 2 – 8 September

Expropriation

Mathole Moshekga was unanimously elected chairperson of the Parliamentary Committee that will propose amendments to Section 25 of the Constitution to enable expropriation without compensation. (News24)

Land governance and administration

Former president Kgalema Motlanthe who chaired the high-level panel spoke about political compromises made during the transition to democracy in South Africa (IOL). A key mistake according to Motlanthe was entertaining the demands of homeland leaders for a federal state which resulted in the formation of the Ingonyama Trust and the nine provinces which encapsulated the former bantustans.

Farm workers

The Southern African Catholic Bishops Conference Justice and Peace Commission shared their approach to secure basic rights for rural farm workers. The Commission highlights the importance of understanding the global trend of labour precarity and the way this manifests in the rural labour market. It profiles the Casual Workers Advice Office and their work to establish a forum for non-unionised workers known as the Simunye Workers Forum. The Gommission highlights the need to address reforms within the CCMA to address budgetary and capacity constraints as well as geographical inaccessibility. The Commission draws attention to the need to reform Rule 25 of the CCMA which creates obstacles for paralegals who seek to represent nonunionised workers. They highlight how many farmworkers are excluded from the minimum wage and that this needs to be upscaled to 3500 rand a month in order to provide the basis of a living wage. The commission also focuses on tenure insecurity stating that:

Governments policies have failed to prevent the eviction of farmworkers and ensure tenure for the rural poor

Land rights and mining

The Daily Maverick published part three in in a series focusing on local mining fraud by Kevin Bloom with a focus on the case of the Bakgatla Ba Kgafela which it characterised as the “largest state sanction, corporate sponsored fraud in the history of big mining in democratic South Africa”.

Restitution

In KwaZulu-Natal there have been continued reports of violent clashes between interest groups whose land claims were bundled together by the Commission on Restitution of Land Rights. The Farmer’s Weekly reports on the intervention by Minister Thoko Didiza in complex conflicts which have erupted on these properties. In the case of the Sibuyelwe Matiwane Community Trust which had successfully claimed 8000 ha of land through the land restitution programme, members of the claimant community had alleged that local indunas had been selling land to people from outside the community.

Urban land

Alex News continues to report on Dudula eviction squads operating in Alexandra Township – an indicator of deep contestation and corruption in the housing allocation system. Dudula member Liefie Madigane explained Dudula’s approach which takes over the functions of the Departments of Home Affairs, Human Settlements as well as the Courts:

“We assess occupants’ documents to prove their legal standing in the country before we act on them…We approach those we target with relevant information about the house’s rightful owner and where requested, give the illegal occupants notice to seek alternative accommodation pending the eviction…We don’t break doors, are not armed and sometimes ask neighbours to keep the evictees’ property while they seek alternative places”.

Dudula members deny that they are a vigilante group.

Week 35: 26th August – 1 Sept

After a lot of coverage on the report of the Presidential Advisory Panel in preceding weeks land issues have not featured prominently in the news in week 35. We pick out some highlights from articles curated on the knowledgebase.land website.

Parliamentary Advisory Panel

In an op-ed published in Pambazuka News Marc Wegerif characterises the report of the advisory panel as another missed opportunity for meaningful agrarian change in South Africa. He highlights the lack of consensus on the vision for agriculture:

Without a vision of what kind of agriculture, what kind of food system, and what kind of rural society we are building it is hard to understand what is informing the suggestions in the report. Indeed, what one finds are limited and, in some cases, contradictory recommendations based on a limited analysis of the current situation in South Africa and how this was created.

Expropriation

A 25 minute documentary on Al Jazeera features two South African farmers – Shimo Jonas Makoka and Leon Borchers providing their perspectives on land expropriation and land reform.

Pesticides on farms

On 29 August Women on Farms staged a march on Parliament calling for a ban on 67 pesticides used in the wine and fruit sectors. They also handed over memorandum signed by concerned German consumers. Women on Farms drew attention to specific chemicals including Paraquat, Roundup, Dormex and Dursban pesticides.

Hortgro subsequently released a statement confirming that these pesticides were registered for use in South Africa but noting that Dormex and Dursban could only legally be used when deciduous fruit and vines were in dormant state in the winter. Hortgro argues that South African reproducers work according to rigorous production standards such as GlobalGap which regulate the use of pesticides and impose stringent conditions with respect to worker health and safety with regard to pesticide handling and use.

Despite these assurances serious concerns remain concerning the health and environmental impacts of many herbicides and pesticides. In April 2019 the Cancer Association of South Africa (CANSA) commissioned research to develop a fact sheet and position statement on Glyphosate which is marketed under the name Roundup which has been characterised as a Group 2A carcinogen which is probably carcinogenic to humans with strong evidence that it can cause cancer, although at present unlike Group 1 carcinogens this evidence is not yet regarded as being conclusive.

Ingonyama trust

The newly elected Inkatha Freedom party leader secretary general Siphosethu Ngcobo called on the government to release all unused state land for redistribution while Velenkosini Hlabisa the newly elected party leader rejected calls for the Ingonyama Trust Act to be repealed arguing that:

Our belief is that the trust is the only example in South Africa were a large part of the land is in the hands of the black majority. Communal land must remain in the hands of the people under the custodianship of traditional leaders with the provincial government providing support to traditional leaders and emerging farmers

Meanwhile IOL carried a story about alleged land grabs by Inkosi Mqoqi Bernard Ngcobo, in Inanda since 2016, who it is alleged has facilitated the sale of various pieces of land which he states belong to his people and the Ingonyama trust – a statement refuted by the Tea Estate Farming Organisation which accused him of illegally selling off privately owned land.

Urban land and informal settlements

GroundUp reports that shack dwellers at Mpukwini informal settlement who occupied the land in Makhaza in Khayelitsha are preparing to square off with the municipality in court next month. They want the eviction order against them scrapped and the City of Cape Town to build them houses on the land.

In Johannesburg residents from Eldorado Park, Diepkloof, Freedom Park, Meadowlands, Klipspruit, Ennerdale and Vryhof. Staged a march to demand that the Gauteng Premier release land for housing for people who wanted to build their own housing.

Week 34: 19th – 25th August

 

The Advisory Panel Report

In a continuing series in Business Day Prof Johann Kirsten has argued that donations to the proposed land reform fund – one of the proposals made by the Panel will take the burden off farmers. Meanwhile, this week in Parliament President Ramaphosa was asked a question about whether he intends to implement the recommendations of the Presidential Advisory Panel on Land Reform and Agriculture? In reply the President noted that:

The report of the Advisory Panel has been presented to Cabinet and has been made available to the public. The report provides a detailed and critical assessment on progress since 1994 and outlines some of the weaknesses in our policies and programmes. This report recommends legal mechanisms to recognise, register, record and enforce a continuum of land rights, so that all our people become rights holders.
The Panel argues that expropriation without compensation is not, by itself, a solution to land reform, but is just one of the means of acquiring land.
The report goes much further to address questions of who should benefit, and promotes a participatory and democratic, area-based approach to identifying land needs.

 

While the President was answering questions in Parliament, living conditions on farms and evictions continue to make the headlines.

Farm housing and hostel conditions

There have been a series of articles in the media highlighting conflicting perspectives about the working, housing and hostel conditions on Oak Valley Farm Estate near Grabouw in the Western Cape. Trade union CSAAWU supported by the NGO TCOE have approached the Equality Court to investigate housing conditions and single sex hostels on the estate. Judge Owen Rogers called on the parties to make submissions as to why the matter should be heard in the Equality Court. These are due by 10 September with the matter being heard on 17 September. The Judge will clarify which courts have the jurisdiction to hear disputes about these issues: The Equality Court, the Labour Court or the Constitutional Court.

The Klein Akker eviction case

At Kraaifontein in the Cape Metropolitan area some 300 people were reported to be evicted from Klein Akker farm following an eviction application brought by a private landowner. The eviction follows court proceedings which were heard in the Western Cape High Court which passed  judgment in the matter on the 14th October 2016. The court papers highlight the complex history preceding the granting an eviction order.

The property is situated on the border between the Cape Metro and Stellenbosch municipality and is 13 ha in extent. No evidence is cited in the judgment that the property been farmed, even though some reports speak of workers being employed as fruit pickers. Evidence in the court papers seems conclusive that the people living on the property were not employed there and that over time people occupied the property without consent as the property changed hands.

Court papers provide a timeline which indicate that the property was used as a bus depot between 1996 and 1997 and then after it changed ownership it appeared to have fallen into disuse. Around 2000 a number of people began to live on the property, apparently with the consent of a caretaker. There is an inference in the court papers that the caretaker and others associated with him may have received payments from people moving onto the land.

By 2016 it was reported that 79 households comprising 233 people lived on the property, some of whom stated they had been in occupation since 2000. There were no services provided. Electricity to the property had been cut off. There were three stand pipes supplying water and a few portable toilets.

The property changed hands several times. It was purchased in 1998 and sold again June 2005. The company which purchased the land went into voluntary liquidation in March 2009. The liquidators sought to sell the property to recover the debt but found it difficult to find a buyer to purchase the land without them being provided with vacant occupation – meaning that an application to evict the occupiers would have to be launched, and that they would have to be found alternative accommodation.

This Klein Akker case has a long history and it seems that a series of eviction orders were granted – one as early as 2000 following complaints by adjoining land owners. For one reason and another these were not finalised. At the same time the number of people living on the property increased. The most recent eviction order was granted over two years ago. Residents with the support of the LRC then applied for a stay of eviction while alternatives were sought. According to the City of Cape Town only five of the respondents’ names appeared on the City’s waiting list for housing. According to the City this made it difficult for them to prioritise finding alternative land. The judgment notes that:

The possible purchase of Klein Akker by the City was discussed. The City was not in favour because the property lay beyond the urban edge and would thus not be a suitable site for formal housing or as a temporary relocation area. The City argued that it was obliged to act within its available resources and fairly to all constituents. There were many desperate and needy people requiring the City’s assistance. It would be unlawful to prioritise one part of the community at the expense of others who had been waiting many years for assistance.

The Judge was not satisfied by the City’s response that it could not find alternative land or emergency accommodation and ordered it to identify suitable land/alternative accommodation.

 I am satisfied, in all the circumstances, that the City has failed in its obligation to provide the respondents with emergency accommodation sufficiently expeditiously to avoid unreasonable hardship to the owner. I am also unpersuaded that the City lacks the resources to provide land for the respondents at least on a temporary basis. Even if it does not currently have the resources, the City has the means of raising them, either by rates or by an application to the province. The latter has indicated its willingness in principle to provide funding.

The judge ordered that:

 The Occupiers are ordered to vacate Klein Akker by no later than Monday 10 July 2017, failing which the eviction order may be carried out on Wednesday 12 July 2017.

The third respondent must provide the Occupiers with emergency accommodation on land as near as possible to Klein Akker by Monday 26 June 2017, provided that they still reside at Klein Akker and have not voluntarily vacated it. The emergency accommodation must at a minimum comprise land with basic services not less than those currently provided to the Occupiers on Klein Akker and on which they can relocate the dwellings in which they currently reside on Klein Akker.

The City made offers of alternative land but these were rejected by the residents on the grounds of safety as the land was located in Phillipi and  Bloekombos – both areas with high levels of violent crime. Then the landowner forced matters to a head. On Monday (19 August) law enforcement officials and security guards arrived at Klein Akker to demolish shacks. A flurry of legal action ensued.

The SAHRC applied to the Western Cape High Court on Wednesday  21 August to challenge the eviction, and supported the counter application by the Legal Resources Centre for emergency accommodation and constitutional damages for those evicted from Klein Akker.

Since then the Department of Agriculture, Rural Development and Land reform has stepped in to provide accommodation for the evicted persons on a state farm near Stellenbosch. It remains to be seen how sustainable a solution this will be.

A detailed reading of this case suggests that there are no quick fixes or easy solutions for the problems associated with rapid urbanisation in a context of sharp social and economic inequality. There is a case to be made for more in depth reporting in the media to avoid the simplification of these complexities and to focus on finding just and equitable solutions for all.

Ingonyama Trust

The Inkatha Freedom Party has hit back at threats to amend or repeal the Ingonyama Trust Act while the President has stated that “no arbitrary action will be taken on the status of the Trust” –

More next week.

 

 

 

Week 33: 12 – 18 August 2019

The Inter-Ministerial Committee on Land Reform

Deputy President David Mabuza convened the second meeting of the Inter-Ministerial Committee on Land Reform on Thursday, 15 August. The committee is tasked with measures to “accelerate the redistribution of land, the extension of security of tenure, the provision of agricultural support and reversing spatial inequality within the broad and comprehensive land redistribution and agricultural development programme”.

This committee brings together a wide range of government departments including the Ministers of Agriculture, Forestry and Fisheries, Cooperative Governance and Traditional Affairs, Human Settlements, Justice and Correctional Services, Finance, Rural Development and Land Reform, Public Works, Public Enterprises, Water and Sanitation as well as Planning, Monitoring and Evaluation.

The business of the day included:

  • the need for government departments to study and respond to the recommendations in the presidential advisory panel report on land reform;
  • a focus on the draft National Spatial Development Framework as a basis for coordinating spatial planning and development priorities;
  • a plan for the release and strategic utilisation of government owned land;
  • the status of land claims;
  • proposals for an integrated model for farmer support;
  • a focus on finalising Land Courts Bill and the process for finalising the Expropriation Bill.

The BFAP Agricultural Outlook Report

Week 33 also saw the Bureau for Food And Agricultural Policy (BFAP) release its Baseline Agricultural Outlook report for the period 2018 to 2027. The report noted that:

One of the greatest uncertainties facing South African agriculture at present relates to the implementation of land reform policies, in particular the possibility of expropriation without compensation.

BFAP projected that the gross value of South Africa’s agricultural production for the current financial year is likely to be equivalent to that of 2015. Agricultural GDP was at its highest in 2017 on the back of record maize and soya crops. However, it is expected to decline sharply in 2018 season as a consequence of the drought and its impact on food exports. Overall, the report notes that certain sectors in the agricultural economy are performing well, particularly citrus and table grapes, which have substantially increased their global market share.

Importantly, given the high levels of unemployment BFAP reports that the cost of a basket of staple foods for a family of four fell from R479 rand/ month in 2016 to R425/ month in 2018. However, the cost of this food basket is expected to rise by at least 6% over the next ten years.

The future of Ingonyama Trust

We reported on a series of articles exposing events leading up to the formation of the Ingonyama trust in Week 32. This week the Inkatha Freedom party exercised its right of reply to dispute the earlier Mail and Guardian Ingonyama report. According to Mangosuthu Buthelezi, the Ingonyama Trust act was not drafted in secret as alleged, and that a copy of the draft Act and its schedule was given to Joseph Slovo and other ANC figures in advance at the Skukuza summit. It was at this summit on the 19th April 1994 that amendments were proposed to Section 160 of the Interim Constitution to create provisions relating to the institution, role, authority and status of the traditional monarch which was to be recognised and protected in the Constitution.

Contralesa came out in support of Zulu King while the chairman of the Ingonyama trust denied financial mismanagement of the Trust’s assets. According to the chairperson:

Ingonyama trust is audited by the auditor general and that has been the norm for years. What is the auditor general said about finances? Where are they getting all they are saying because they did not speak to the Trust?

Unfortunately, the chairperson did not provide an answer to his own question. In 2018 it was reported that the Board of the Ingonyama trust had failed to provide supporting documents to the auditor general Kimi Makwetu. The AG was reported to have criticised the trust and the Chairperson for failing to account properly for a total of more than R28 billion in assets and for continuing to keep revenue from mining leases which is supposed to be contributed to the National Revenue Fund.

Khoisan Union Building protest

Outside the Union buildings a group of Khoisan leaders continued to press for their demands for recognition as a the first indigenous nation in South Africa, that Kwadi-Khoe must be listed as an official language while Khoisan groups must be given land and resources to  consolidate their culture and traditions.

The Presidential Advisory Panel

This week commentary on the report of the Presidential Advisory panel featured Op eds and analysis by:

Beinart and Delius expressed support for several of the panel’s recommendations including proposals to speed up and conclude the process of restitution and to abolish or radically reform the Ingonyama trust. They note however the ambiguities which characterise the report with regards to the role of traditional leaders in land reform and land administration.

Interestingly, despite the contribution of high-level agricultural economists to the report, Beinart and Delius argue that the report has underestimated the significance of commercial agriculture and its contribution to the economy and food security. They also note that:

In marked contrast, the report obscures the reality that smallholders’ agriculture has not been expanding. It recognises that there is much underutilised land and that there is massive unemployment in rural areas. However, it fails to ask why smallholders do not maximise their land and why unemployed younger members of parcels to not put their labour into that land.

The authors point out a fundamental error in the Panel report where it is stated that “more than 60% of the active population in southern Africa depend on land for their livelihoods, whereas rural and urban communities depend almost entirely on land as a source of food.”

They cite evidence from surveys of villages and settlements in the former homelands which indicate that households produce no more than 20% of their food needs from agricultural production and the vast majority of rural and urban residents are dependent on the purchase of their food needs.

Beinart and Delius expressed concern about the feasibility of ambitious plans that envisaged the establishment of new institutions and the development of associated capacity. They argue that the focus should be on developing the capacity of existing institutions and officials currently responsible for land reform.

Nhlanhla Mbatha argues that sections of the advisory panel report “seemed to gloss over the deep structural and systemic challenges in the current processes, for example, the painstakingly slow evaluation and finalisation land claims, of which there is a backlog of approximately 20,000 cases”. He notes that one of the main recommendations of the panel is for a new focus on land administration and the recording of off-register land rights. Mbatha asks what would be the primary purpose of formally recognising non-individual ownership rights? He sees some advantage for the purposes of advancing women’s rights to land, but questions whether recording rights will make any difference to a household’s ability to apply for finance, particularly in circumstances where land is held by entities such as Communal Property Associations. Mbatha expresses concerns that the recommendations of the panel could turn out to be a pipe dream and that the future of the land reform process will remain unclear.

Reeler and Silandela make an important contribution to the commentary on the report of the panel noting that:

The issues of land use and climate change are intricately entwined, which is why the newly released Intergovernmental Panel on Climate Change’s Special Report on Climate Change and Land should be required reading for anyone concerned about the land debate.

They argue for an approach that balances critical biodiversity and water reserves with essential agricultural land and the need to restructure our food systems. They focus on the persistence of diet -related stunting which affects more than ¼ of South African children under the age of five and the reduction of food waste which currently sees more than 1/3 of all food produced being thrown away.

District Six and urban land issues

District Six continues to make the headlines after acting Judge Tembeka Ngcukaitobi found that the former minister of rural development and land reform Maite Nkoana Mashabane had failed to properly appreciate her constitutional duty to finalise the land claims “diligently and without undue delay”. The judge found that the minister’s “reckless conduct” and negligence in the District Six case meant that a personal cost order was justified against her.

In a subsequent story the current Minister Thoko Didiza is reported to have requested that the various stakeholder groups with interests in the settlement of the District Six land claim agree on a development framework.

Elsewhere in the urban sector there was news that Cape Town Salt River Market would be rezoned for mixed-use development while the City of Cape Town issued a condemnation of the hijacking of buildings and the illegal occupation of land within the Metro.

More next week.

Week 32: 5 – 11 August 2019

Ingonyama Trust

Week 32 has been dominated by news and debate around the future of the Ingonyama Trust. (The Citizen 4 Aug) King Goodwill Zwelithini speaking to women at the Umkhosi Wesivivane in KwaNongoma was quoted as stating that:

I want you to know that this land belongs to the current reigning King of AmaZulu [and] previous Kings and Queens and will not be taken from us. It will not die or be taken during my reign and your time. If we allow that, history will judge us harshly.

The Inkatha Freedom Party leader Mangosuthu Buthelezi (IOL 4 Aug) has taken issue with the report of the Parliamentary Advisory Panel with respect to the Ingonyama Trust, questioning the government’s capability to manage the land if the recommendations in the report were to be adopted. Buthelezi was of the view that the Advisory Panel had made the same mistake as the High Level Panel in failing to consult with Ingonyama Trust board or the King. Buthelezi argued that:

What is now communally owned by the people will become wholly owned by the government, dispossessing communities of their most valuable asset. Taking the royal nation’s land is like taking its very soul.

However, neither the King nor the IFP leader responded to the substantive concerns raised by both reports that the trust had “unilaterally assumed the role of a landowner by converting the people’s permission to occupy certificates to leases and charging them escalating rentals for occupying the same land on which they had lived for many generations”.

Later in the week Lawson Naidoo from the Council for the Advancement of the South African Constitution (CASAC) was interviewed on Radio 702 by Bongani Bingwa. Naidoo highlighted mismanagement by the ITB:

What is clear is that the Auditor General has for years complained about the opaque financial records that have been kept by the trust. A trust is established for the benefit of its beneficiaries and not the king. The beneficiaries are the people who reside on the land. The trust has provided no evidence of how any of the money collected is used for the benefit of those people.

IOL (7 Aug) carried an article by Samkelo Mtshali which provides a brief review of King Zwelithini’s responses to both the High-Level Panel and the Presidential Advisory Panel reports on the Ingonyama trust.

The Mail and Guardian (7 Aug) carried a detailed article by Hilary Lynd providing the back story on the land deal regarded by many as a sweetener to bring the IFP into the 1994 elections. The article carried a rebuttal by the IFP leader who stated that the decision to participate in the 1994 elections had nothing to do with the passing of Ingonyama Trust Act. However, the article provides a day by day timeline of events leading to the passing of the Act.

On Friday, 22 April 1994 Buthelezi addressed the KwaZulu legislature stating that it was absolutely vital that the Ingonyama Trust Act should be passed before the elections, moving that “the rules of procedure be suspended so this bill can be finalised today”:

It is vital that we should do this, by getting the Bill concerning the land which is now entrusted to the KwaZulu Government, which will still exist now until the end of the month, passed so that the land that belongs to the nation, to the amakhosi and so on, can be secured, if we put it in a trust with His Majesty the King.

According to the article, news of the Trust broke in the press on May 20, 1994, immediately prompting speculation about a secret deal between De Klerk and Buthelezi. Mandela is reported to have issued an official statement denying ANC knowledge of this and the new Land Affairs Minister Derek Hanekom was quoted as being shocked at the transfer of 2.8 million hectares of State land to a trust with the King as the sole trustee. Effectively the formation of the Ingonyama Trust meant that the KwaZulu homeland was protected and would persist into the new democratic order.

Presidential Advisory Panel

There was further comment on the report of the Presidential Advisory Panel. Professor Johann Kirsten (Business Day 7 Aug) introduced part one of a series setting out proposals for “fast track land reform incentivised by the state but delivered by the private sector”. Kirsten acknowledged that the report provides key principles and conclusions providing clarity and certainty together with a clear direction for action. However, he notes that certain of the recommendations “are against agricultural economic logic and intuition” including expropriation without compensation and the proposals to set land ceilings.

Mondli Makhanya (City Press 5 Aug) wrote that the Presidential Advisory Panel report could be “a game changer” yet:

Despite this, our politicians are set to spend the next few months in an utterly useless exercise of trying to amend section 25 of the Constitution so that it can recklessly expropriate land without compensation.

Roy Jankielsohn, a DA MPL writing in The Daily Maverick (6 Aug) argued  that “the report is rich in suggestions, but poor in detail” – a view challenged by Prof Balthazaar – a pseudonym  also in the  Daily Maverick (6 Aug) who drew attention to:

The critical recommendation… to pass legislation which will operationalise “equitable access” and provide transversal frameworks for all aspects of land reform; to establish guiding principles for redistribution, restitution and tenure with land administration included as the fourth element of land reform; to set legal criteria for beneficiary selection; land acquisition and the choice of land for redistribution; to set in place measures to ensure transparency and accountability; enable allocation of secure long-term use and benefit rights; to provide for alternative dispute resolution and to establish a Land Rights Protector as an ombudsperson with a broad mandate across all land rights issues.

Balthazaar concluded that “a good start would be a deliberate and meaningful commitment to the implementation of the panel’s recommendations, which may well tilt the balance in favour of the constitutionalists in this country as opposed to the populists and their opportunistic discourse.”

Women’s land rights

National Women’s Day was accompanied by various calls to give female farmers greater access to land and credit. See (Food for Mzansi 6 Aug) for more.

More next week

 

Week 31: 29 July – 4 August 2019

As anticipated much land-related news coverage this week focused on responses to the Presidential Advisory Panel Report which was released at a press conference last Sunday. The final report of the panel noted that:

“The urgency and constitutional imperative of land reform in South Africa can neither be taken lightly nor postponed.”

Presidential Advisory Panel

The report of the expert panel has been met by a wide array of responses ranging from outright condemnation to cautious support. Two of the AgriSA linked panelists have released a minority report with a different set of recommendations. Despite numerous articles alluding to the existence of this report, thus far it has not appeared in the public domain. KB.L requested a copy of the report so that we could undertake a comparative analysis, but to date despite an undertaking to send the report, it has not been received.

Agri SA released a statement saying that it was concerned about several aspects of the report, particularly the recommendations which related to the amendment of the constitution. The executive director of AgriSA Omri Van Zyl  is reported to have stated that:

“If the recommendations contained in this report are implemented to the letter, food security for all South Africans will be compromised (Times LIVE 29 July)

The CEO of the Institute of Race Relations is reported to have condemned the report stating that some of the proposals contained within it amounted to “economic suicide” which would have “implications for the whole economy, as the principles inherent in expropriation without compensation spread to sectors as diverse as healthcare and financial services”. Similar sentiments have been advanced by the Democratic Alliance, AfriForum, the Transvaal Agricultural Union and the Free Market Foundation.

Denene Erasmus writing in the Farmer’s Weekly noted that there are many proposals in the report “that are problematic, or even somewhat out of touch with the economic realities facing South Africa”. However, the CEO of Agbiz Dr John Purchase argued that whatever the shortcomings of the report, it had taken the debate on sustainable land reform forward (Farmer’s Weekly 31 July). This article highlighted the key areas where the panelists had not been able to reach consensus. These included:

  • expropriation without compensation,
  • a moratorium on evictions of farmworkers and dwellers
  • a proposal on a land tax to be paid by farm owners
  • proposals relating to how to calculate compensation payable when the state acquired land.

Despite all this negative sentiment locally Public Finance International published an article titled ‘South African land reform panel holds back’ (30 July). This argued that in fact the panel had put forward very limited proposals for expropriation without compensation. The report noted that:

“The recommendation is unlikely to placate the country’s black majority, which is in favour of expropriation because white people – who make up just 9% of the population – still own 72% of farmland”.

Wandile Sihlobo, one of the members of the expert panel writing in the daily Maverick (30 July) argued that fundamental change is essential if agriculture is to help solve the jobs crisis. He drew attention to underutilised land in the former homelands and underperforming land reform farms which need to be brought into full production if job creation in South Africa’s agricultural sector is to materialize.

He notes that:

“The provinces containing former homelands still have tracts of underused land that can be prioritised for agricultural expansion are KwaZulu-Natal, the Eastern Cape and Limpopo. These provinces collectively have between 1.6 million to 1.8 million ha of underused land, according to a 2015 study by the McKinsey global Institute”.

Recommendations by the expert panel that the Ingonyama Trust Act should be extensively amended or repealed, have prompted widespread debate and predictable backlash from King Goodwill Zwelithini and those seeking political alignment with the Zulu monarch.

Theo de Jager of the Africa Agri-Initiative SAAI has stated that:

“SAAI rejects the panel’s demand that the state should take over, dissolve or destroy the Ingonyama Trust (or any other trust). This is an attack on both the cultural identity and the spiritual goods of the Zulu people, and on trusts as legitimate legal entities. Thousands of immovable properties in South Africa are held in trusts, and the panel does not shed light on how such draconian action will be limited to the Ingonyama Trust. There is no reason to expropriate the Zulu’s historic heartland or to grab it from their hands”.

Other commentators took a different view. Kevin Ritchie (IOL 3 August) notes that:

“Somehow the Ingonyama Trust, of which his majesty is both sole trustee and sole appointer of the board and which effectively holds 30% of KZN’s land, never seems to come into the conversation about taxpayer-funded handouts. The trust raked in R96m in the 2015/16 financial year in rents, but its books are a source of enduring despair to the auditor-general – while the royalties it has been collecting from mining companies for a quarter of a century remain resolutely undeclared. It’s a bizarre set-up spawned in the dying days of the apartheid regime, which is defended tooth and nail every time it comes under threat – for obvious reasons”.

Subsequently roposals by the presidential advisory panel on land reform and agriculture to scrap the Ingonyama Trust Board (ITB) have been backed by the chair of parliament’s agriculture and land reform portfolio committee, Mandla Mandela. (Mail and Guardian 1 August). Watch this space…

In the courts

On Friday the Land Claims Court found that the former minister of Rural Development and Land Reform had not complied with the court order to develop a plan for restitution in the long-delayed District Six land claim. District Six claimants are now reported to be more optimistic of finding a solution under the new Minister Thoko Didiza.

In Parliament

In its annual report presented to Parliament for 2018 2019 the land claims commission reported that it has paid more than one, 7 billion land in claims to 37902 beneficiaries and settled claims for 177,623 ha of land (IOL 3 August).

Week 30: 22 – 28 July

The week in review period is slightly extended this week in order to incorporate initial comment on the release of the report by the Presidential Panel on Land Reform and Agriculture on Sunday morning 28 July 2019.

Presidential Advisory Panel

Much of the news this week has focused on anticipating the findings of the presidential review panel. The South African government news service (25 July) reported that the Minister in the Presidency Jackson Mthembu has given cabinet ministers two months to study the report of the expert advisory panel.

In his response to the debate on the state of the nation address President Ramaphosa indicated that one of the key tasks of the new parliament was to finalise constitutional amendments which would specify the process required to expropriate land without compensation. This process would be set out within the Expropriation Bill.

Earlier in the week one of the contributors to the advisory panel report Advocate Tembeka Ngcukaitobi was cited (The Citizen 25 July) criticising the ANC’s lack of urgency with regard to the land issue and the failure to make land a priority in the state of the nation address.

“There are many competing priorities. A lot of people will perhaps say state capture is priority number one but I do not think any of those excuses should be allowed”

Key findings and recommendations of the Advisory panel: First impressions

After a quick scan of the 144-page report KB.L highlights some of the key findings and recommendations. We will provide more in-depth coverage of the report in the week ahead.

Refocusing land reform

The land reform panel supports an overall focus on the poor, but motivates for a strategy that includes both urban and rural vulnerable groups – the landless and semi-landless, farmworkers and dwellers, individual households as well as small-scale and aspiring farmers and entrepreneurs.

The report argues that to date land redistribution has focused mainly on agriculture and has largely ignored urban needs and rapid urbanisation. The panel recommends a renewed focus on urban land reform which includes a focus on the recording of land rights in informal settlements and other urban settings.

“The land reform agenda should deal with the reality that 80% of the South African population is mainly black and currently resides in urban areas peri-urban areas and townships.”

Developing a new White Paper on land reform

The panel report recommends the development of a new White Paper on South African Land Policy which should be completed by 2021. It also supports the HLP recommendation for the formulation of a National Land Reform Framework Bill and endorses the illustrative bill produced by the HLP.

Expropriation without compensation

The report explores ways to amend Section 25 of the Constitution. It recommends an amendment to the constitution by inserting a new section 25(2)(c) which simply reads that:

Parliament must enact legislation determining instances that warrant expropriation without compensation for the purposes of land reform envisaged in section 25(8).

The report cites at some length a legal opinion by Prof du Plessis exploring the relationship between Section 39 of the constitution (which requires that international law must be taken into account in the formulation of the constitution) and its implications for the interpretation of the property clause in section 25. She notes that given that each expropriation enquiry is contextual, it will be difficult to argue for a policy or law that lays down hard and fast rules for the determination of just and equitable compensation. She argues therefore that it will be better to leave the determination of just and equitable compensation to the courts.  The report records that it was in regard to this section and the discussion of willing buyer willing seller that the panel expereinced internal disagreement amongst its members.

Prioritising land administration

The report recommends a new focus on land administration which it argues should constitute the fourth leg of land reform (the other links being restitution, redistribution and tenure reform). It notes that the property rights of 60% of the population remain undocumented, legally insecure and off-register. The report acknowledges that:

Titling has not worked even within urban areas where millions are living RDP houses have yet to receive title

It argues that a key outcome of the land reform programme should be to enable recorded ownership and access rights which provide legal security. The report argues that recording and registering of rights would result in a shift in the current property structure with the potential to bring about spatial transformation. It proposes state support for a process of testing to develop a new integrated land rights administration system which recognises a continuum of rights.

Tenure in communal areas and protection of informal land rights

The section of the panel report which deals with tenure in communal areas and related property rights surfaces different perspectives within the panel concerning the role of traditional leaders, land rights and land administration in communal areas. The report echoes the HLP calling for the drafting of the permanent statutory protection in the form of the Protection of Informal Land rights Act in order to provide procedural safeguards for informal and customary land rights. The panel also endorses recommendations from the HLP with regard to the Ingonyama Trust, stating that the act needs to be reviewed or possibly repealed. The advisory panel report states that:

The Ingonyama Trust Act has perpetuated the existence of the KwaZulu homeland within a unitary state 25 years into the new democratic order

Amendment of the MPRDA: Free, prior and informed consent

The expert panel clarifies that in communal areas customary land rights coexist with mining rights awarded under the MPRDA. The panel argues that mining rights should not be awarded without a consultative process with rightsholders ensuring free, prior and informed consent from people and communities whose land rights are directly affected by mining related land use changes uses.

Farmworkers and dwellers

The report highlights the vulnerability of farmworkers and dwellers and the increasing number of evictions, noting that farm dwellers tenure remains “a poor relation within land reform policy”. The report recognises however that calling for a moratorium on evictions poses constitutional and legal problems. It follows the recommendations of the HLP to  properly enforce Section 4 of ESTA and enable processes by which farmworkers can register to secure access to their own land and obtain security of tenure.

Elite capture and corruption

The report highlights increasing evidence that land redistribution is benefiting elites and highlights concerns that currently there is no monitoring mechanism to prevent this. The report emphasises the need to stamp out corruption in the land reform programme. It highlights various examples of how corruption has tainted the programmes including

  • bribery and manipulation of land prices,
  • skewed beneficiary selection,
  • processes of fronting and the establishment of inequitable joint ventures,
  • meddling by government officials and political interference
  • the illegitimate and unaccountable transacting of community owned land in the former bantustans.

Under budgeting for land reform

The report notes that despite the political priority accorded to land reform, the budget for land reform has consistently been below 1% of the total national budget, with the exception of two years 2006/2007

Improving land reform implementation support

The report proposes the creation of a new land and agrarian reform implementation agency (LARA) akin to the Housing Development Agency established by the Department of Human Settlements. The panel recommends that this should be responsible for providing transaction advice, economic and technical support to people acquiring land through the land reform programme including restitution.

Financing of land reform

The report has four recommendations to expand financing of the land reform programme. These include:

  • the issuing of land reform bonds by the Land Bank
  • capital donations
  • the consolidation of state land-related budgets
  • joint-venture financing models

The panel calls for voluntary financial donations from the financial services industry, mining and manufacturing sectors.

Revitalising commonage

The panel recommends that the municipal commonage program be reinstated and reinvigorated as a means to provide poor households on urban peripheries with access to land for grazing and food security.

Enabling subdivision

The report calls for the president to sign the repeal of the Subdivision of Agricultural Land Act into law. It envisages that this will enable land to be subdivided to create smallholdings for both residential and production purposes.

More next week…

Week 29: 15 – 21 July

In this week’s review of land related news, we have opted for a new framework to try and make clearer sense of key developments in this sphere. We plan to adjust and improve this framework as we go. We have organised the news under a series of headings below, to enable you to navigate to particular sections of interest and to find relevant stories and links faster.

Land related policy

Thoko Didiza, Minister of the newly amalgamated Department of Agriculture, Rural Development and Land Reform, and the Minister of Cooperative Government and Traditional Affairs, Dr Nkosazana Dlamini-Zuma presented their budget vote speeches this week.

The version of Minister Didiza’s Budget Vote speech (DAFF 16 July) made available online was characterised by an unusual proliferation of typographic errors and has met with widely differing responses from commentators. We highlight key aspects from her address below.

The Minister committed herself to dialogue to address the land question:

Addressing the land question and its productive use, will need a meaningful conversation with land owners, be they farmers, companies or trust (sic)

She highlighted a range of ‘legacy issues’ left over by the former minister which needed to be addressed, singling out the stalled restitution claim in District Six. However, the Minister remained silent on the big challenges of how to address the floundering land restitution programme and what to do with the thousands of new claims lodged when former President Zuma reopened the land claims process.

We have taken note of the Lamoosa judgement (sic) and the need for us to clarify how we will deal with the 1998 lodged claims going forward that have not be (sic) finalised till to date.

It seems that the focus of the Ministry remains on the commercialisation of black farmers with no mention of how to enlarge of the smallholder sector in both rural and urban areas. However, the Minister did announce that the department was working with Statistics South Africa to develop a farmer register to try and improve the quality of data available for planning, which is a welcome step. The Minister also undertook to review and strengthen the capacity of the Land Bank and its mandate to finance established and developing farmers. This was picked up in other reports (Business Day 16 July).

Of concern in the Minister’s speech was the section relating to Communal Property Associations. This contained some fundamental misconceptions about the Communal Property Associations Act.

The intention of the Communal Property Act was to create a holding facility for the recepients (sic) of land from government as beneficiaries in particular in groups. The Act provided for the establishment of the trust (sic) who will hold the land asset on behalf of communities. However in a majority of instances, such structures meaning the trusts, do not comply with the requirements of the law. They hardly convene meetings where they report on what is happening about the land either where such is leased to third parties (sic).

Communal Property Associations are land holding entities created in terms of the Communal Property Associations Act. CPAs are intended to be managed by democratically elected and accountable office bearers in terms of their duly adopted constitution. CPAs should not be confused with Trusts which are established in terms of the Trust Property Control Act and operate in a different manner.

In practice, once established CPAs have been left largely unsupported by the Department which lacks the capacity to provide the range of support services which they require. To make matters more complicated, many CPAs have had to establish additional legal entities such as trusts and companies to enable them to do business. It is here that many problems have arisen.

The Minister referred to the need to review systems of land acquisition to ensure that these “are not easily susceptible to corruption”.

The Minister highlighted concerns which had been raised about expenditure on Agri parks, but the budget vote speech appears to mount a defence of this approach, attributing criticism to poor communication of the concept:

The question we need to ask ourselves is whether or not in our implementation we have explained the concept in detail to those it is meant to serve? Have we trained and ensured that those in the Farmed (sic) Production Support Programme Unit (FPSU) are adequately trained to support farmers?

The Minister’s speech made no mention of the failure to pass legislation to secure the land rights of more than 60% of South African citizens which remain off register. The budget vote also did not specifically address the issue of expropriation. However, the Minister alluded to this in public briefing sessions to provide highlights from the budget speech. This resulted in EWN running a story with the perplexing headline “Expropriation of land without expropriation is inevitable”. (EWN 16 July). This reported that it remained up to the national legislature to develop the legislation that would enable expropriation to be implemented (with or without compensation).

In other news stories the minister was quoted as stating that there was a need for lasting solutions to the land question (IOL 17 July), while the official South African government news agency chose to focus on the rapid release of state owned land as a priority (SANews 18 July).

Traditional leaders

COGTA Minister Dr Nkosazana Dlamini-Zuma gave her budget vote speech a couple of days later. (Polity 18 July). Much of this focused on the dismal state of local government. She reported that “there are 40 municipalities which are currently under section 139 administration and many more that are dysfunctional or struggling”.

The COGTA Minister did not allude to the fierce contestation around the bantustan bills simply noting that:

We have tabled… bills in Parliament, namely, the Traditional and Khoisan Leadership Bill, the Traditional Leadership and Governance Framework Amendment Bill … in order to address gaps in legislation in our sector.

She announced her intention to “change the face of rural areas and our municipalities in these areas through agrarian revolution”.

The plan is to utilise the communal land in the hands of traditional leaders and rural communities…Through the programme, traditional leaders will participate at the centre of economic development at district level. They will identify land for cultivation, drive ploughing and harvest programmes and engage in building livestock herds and create markets for the people in rural areas.

Land politics

This week the wider social debate about the land question included stories on a motion in the Dutch Parliament (PoliticsWeb 17 July) condemning the perceived ANC policy direction of expropriating land without compensation. The Zinzi Mandela tweetstorm (Daily Maverick 18 July) also continued to feature.

In the courts

No significant land-related court judgements were captured in our news stream this week.

Land and tenure reform

Ongoing conflict in Mtwalume among members of Mathulini CPA in KwaZulu Natal featured in several stories (EWN 13 July) with an Institute of Race Relations critique of the conflict which it argued was indicative of the “steep price of state failure on land”  (News24 17 July).

Food security

In other coverage it was reported that South Africa has recently seen a resurgence of food gardens and small-scale agriculture. (Daily Maverick 17 July). In an op-ed Naude Malan noted that:

The most recent General Household Survey (StatsSA 2019) indicated that up to 2.2 million households have recently constructed food gardens at their homes in order to avert food insecurity. It is these farmers who hold the key to food system transformation, and our policy and developmental approaches need to meet them halfway if we want to transform our food system.

Water and environment

The collapse of the Department of Water and Sanitation (Daily Maverick 16 July) featured prominently, with Minister Sisulu reporting in a public briefing that “she was still trying to get to grips with the extent of the corruption problem and the amount of money that had been lost in the department”.

“I am still trying to understand the depth of this and to close those holes. But the figures are shocking, and I feel very sorry for the staff who had to sit and explain all this to Treasury, because I don’t think they understand the full extent of this.”

Mining in the communal areas

Two features carried this week contribute to the overwhelming evidence that the rural communities are further impoverished and socially divided by mining activities in former bantustan areas. Llewellyn Leonard  (The Conversation 14 July) reported on research into the role of traditional leaders in mining deals in Fuleni located in Northern KwaZulu-Natal.

I found that there was a lack of transparency on how decisions were made about mining developments within the Fuleni traditional council. And that decisions weren’t in the interest of the community. The support for mining development within the traditional council was due to benefits received from mining development.

I also found that South Africa’s laws weren’t being enforced.

Another article reported on the hijack of mining rights and benefits in Limpopo (News24 19 July) in which Micah Reddy of amaBhungane writes about:

A mine linked to Adriano Mazzotti, the controversial businessman and associate of Julius Malema, has left a rural Limpopo community reeling from infighting and violent protests. The traditional leadership is accused of hijacking the community trust and striking a deal with the mining company. It’s an all too common case of how permissive mining laws, disputes over customary law and the arrival of mining capital can create a toxic mix.

Urban spaces

News for the cities includes  the release by City of Cape Town releases forensic report into land sales to Growthpoint (Moneyweb 17 July) which have been much criticised. Elsewhere in the country there are increasing numbers of reports about violent confrontations between local residents and land invaders, as homeowners in local communities try to resist the proliferation of shacks. Stories include clashes in Lenasia (ENCA 17 July) and in Cato Manor in KwaZulu-Natal.

On the farms

Finally on the farms Suné Payne reports Deputy Minister Mcebisi Skwatsha as stating that the laws regarding farmworkers and evictions will be amended (Daily Maverick 18 July). The article quotes Prof Ruth Hall from PLAAS:

The real problems relate not to the law, but to the failure to enforce it, to defend farm dwellers from evictions, which are proceeding and are often taking place illegally… What is needed is for government to give effect to Section 4 of ESTA which says that the minister must make available funds to enable farm dwellers to upgrade their tenure, including to full ownership, either where they live on-farm, or elsewhere in off-farm settlements. There needs to be an application process to enable people to invoke this right, so that farm dwellers can benefit from land reform.

More next week.

Week 28:  8 – 14 July

 Much of the land news in the past week has focused on analysis of Ministerial budget speeches to determine the direction taken by different departments on land issues. Two speeches featured: 

Minister Sisulu started in self-congratulatory mode noting that “with a few interruptions here and there, some of them unfortunately negative, we have done extremely well in this sector” arguing that South Africa has been through a “golden era of innovation in housing policy”. However, as Dennis Webster has observed (New Frame 13 July) there is “no new dawn for shackdwellers” emerging from this speech. 

Minister Sisulu seeks to take advantage of the clause in the Expropriation Bill relating to abandoned property and aims to extend this definition to include abandoned and hijacked buildings.  This featured in numerous news articles curated in the urban land and expropriation sections of the news on KB.L. Sisulu retains an emphasis of ‘catalytic projects’. Surprisingly, the speech contains a single reference to informal settlements, and here the emphasis is on surveillance and control rather than upgrading. 

The Fourth Industrial Revolution will assist us overcome some of the problems we have. We will for instance embrace this to ensure that through satellite technology we can monitor the growth of informal settlements, invasion of land and also provide us with on-time inspections of our construction sites. 

Despite the silence on informal settlements Webster notes that the Human Settlements department has made available a new grant worth 3 billion to municipalities and provincial housing departments for informal settlement upgrading. So within the department upgrading does reflect a priority – hopefully one that is not overtaken by the Minister’s fondness for ‘catalytic projects’ and a focus on new town construction. 

Despite the upbeat start the Minister concluded her speech with an acknowledgment that: 

We have had serious failures, fraud, corruption. You read about these on a regular basis. We are daily experiencing protests. This is where we need your support to help keep us constantly accountable.  

Public Works and Infrastructure Minister, Patricia De Lille has pledged transparency as a deterrent to corruption. She highlighted the irregular appointment of 11 of the 37 senior management staff and a further 94 staff at lower management levels, providing a window into the capture of the public service through improper staffing.  

De Lille included a section of her speech on land reform, noting that PWI had contributed to the rapid land release programme for land restitution, redistribution and land tenure.  However, despite a long and detailed speech the Minister, who is the only opposition MP in Cabinet, made no mention of making use of well-located state owner land to address spatial inequality – a key focus of her GOOD party manifesto, which seems to be on the back burner for now. 

On the ground in the urban sector IOL (10 July) reported a victory for urban housing activists In a victory for housing activists as the Municipal Planning Tribunal in Goodwood Cape Town  approved an affordable housing component in a Paarden Eiland property development. 

Robyn Park-Ross, researcher at Ndifuna Ukwazi addressed the tribunal arguing that: 

“As one of the most racially segregated and exclusive cities in the world, the City needs to incentivise inclusive growth, especially in well- located areas. Inclusionary housing contributes to the building of a more compact and therefore sustainable city by stimulating density and inclusive development. Importantly, it redresses spatial apartheid by bringing poor and working-class people closer to the opportunities of well-located areas.”  

Former President Motlanthe (News 24 11 July) warned of “anarchy and chaos if property rights were not respected and urged the sixth Parliament to reconsider the High Level Panel report after the fifth Parliament went “on a detour” following the ANC’s elective conference that resolved that the government implement a policy of expropriation without compensation. 

With regard to farm workers’ rights Sowetan Live (9 July) reported on a judgment by the Supreme Court of Appeal consolidating burial rights on farms as guaranteed by the Extension of Security of Tenure Act. 

In KwaZulu-Natal media reports (IOL 8 July) have featured an ogoing and violent conflict between members of the Mtwalume Communal Property Association (CPA) over control of 7500 ha farm reportedly worth 300 million rand. While reports have focused on violent acts and burning of cane fields there has been no analysis of the back story thus far. On Twitter a government official noted that while there is a back story, it could exacerbate the conflict to reveal it now. This conflict prompted the Portfolio Committee on Agriculture, Land Reform and Rural Development to release a press statement condemning “in the strongest terms the criminal acts arising from the recent attack and invasion.” 

Week 27: 1 – 7 July

News this week is largely dominated by urban land issues. In Cape Town evictions and violent protests were reported from Dunoon (News24 29 July).  The City of Cape Town stated that they demolished incomplete and unoccupied structures, (The Citizen 1 July) while Dunoon residents told a different story. City officials have pointed to the prevalence of what they describe as ‘shack farming’ where powerful individuals occupy land and rent out space or structures to people trying to establish a foothold in the city.  Still in Cape Town (IOL 2 July) a dispute over evictions between the city and the Vrygrond Community Forum which went to court was referred back for meaningful engagement and mediation to search for an out-of-court solution. If this fails the matter will be decided through the courts.

The Red Ants, a company widely associated with  carrying out evictions from inner city buildings and informal settlements had their business registration suspended (Times Live 2 July).  Business day (2 July) reported on the launch of a land fund to provide a boost for affordable housing primarily targeting the so-called gap market cash for low to middle-income families qualifying for  a finance linked individual subsidy on a sliding scale based on their income. News24 (3 July) carried further information on the South African Housing and Infrastructure Fund which aims to provide more than 100000 service stands over the next three years to reduce the housing shortfall. The focus on the delivery of serviced sites indicates a shift in approach in which people will be encouraged to build their own houses. 

In KwaZulu-Natal the Cato Manor suburb of Bonela has been hit by land invasions with invaders allegedly occupying existing stands and threatening those who protest, that their houses will be burnt (IOL 1 July). In Pietermaritzburg MK veterans are alleged to have hijacked houses owned by the municipality, including  the takeover of a shelter for abandoned children in the town (News 24 1 July).

An Op Ed (DM 4 July) proposes that land reform needs an increasingly urban focus and that informal settlement upgrading needs to move away from ‘one size fits all’ strategies to adopt processes which are increasingly place based and context specific. Lauren Royston and Tiffany Ebrahim write that:

State agencies have been unwilling to acknowledge the role of informal settlements. They are often reduced to illegal places to live and neglected as a viable approach for people to build a home in the city and secure a livelihood. Informal settlements are often relatively well located in terms of access to economic opportunities, transportation and social facilities. They provide affordable rental accommodation or land for self-built shelter. They are an entry point into an urban environment for urbanising households.

SERI’s research offers insights into an alternative approach to upgrading informal settlements. As a starting point, municipal and provincial interventions should begin by recognising the local norms, practices and agency which already exist in informal settlements. This requires government officials to work closely with residents and local leadership structures to both identify and understand lived realities, existing practices and challenges.

Elsewhere current approaches to reblocking informal settlements continue to meet with resistance in Emandleni (Benoni City Times 4 July)

In an OpEd Jeremy Cronin (politicsweb 4 July) examines why the Chinese can build new megacities from scratch and we can’t (and shouldn’t).

To justify the dream of a brand new South African city, President Ramaphosa in his SONA Chinese moment said “the cities of Johannesburg, Tshwane, Cape Town and eThekwini are running out of space.” This is, strictly, not the case. What is true is that in urban spaces dominated by a private and often highly speculative property market, government’s proclaimed intention to promote integrated, mixed-income, medium-density and well-located urban settlement patterns constantly run out of market-priced, affordable space.

By international standards, South Africa’s towns and cities are actually characterised by extreme urban sprawl. It is true that there are spaces in which there are extraordinarily high levels of population density, like Alexandra bursting at the seams, cheek-by-jowl with a high-rise and underpopulated Sandton. The 3-million plus RDP houses the post-apartheid government has built are mostly located on distant peripheries where the land was cheap. This has simply further entrenched apartheid-era settlement patterns and huge social inequalities.

Cronin adds:

 If there is anything we can learn from the Chinese it is that the former bantustan areas urgently require a major (and belated) land reform programme.

In the rural sphere an important article by Charlie Shackleton (The Conversation 3 July) reviews how smallholder crop farming is on the decline in South Africa and examines why this matters.  

Such a decline in cropping makes rural households, most of whom are poor, more reliant on food purchases, and at the mercy of price hikes. Such food is often of a lower diversity and nutritional quality. Additionally, the decline undermines the household and national food security and self-sufficiency. While this dynamic is not unique to South Africa, it has received little attention in the national debates around land and about agriculture.

On the land reform front an article on the Langkloof Farmers  argues that land reform can work (Food for Mzansi 2 July) while William Gumede writes about on why we need a social pact to secure the farming industry in order to lift market confidence more growth levels and industrial peace (News24 1 July)

Mutually beneficial social pacts between farmers and employees will strengthen rural safety, security and peace. Such social pacts at the farm level will better protect farmers against political “farmers” – politically connected opportunists, gangsters and local strongmen – who have increasingly tried to hijack farms under the guise of “restitution”, “redistribution” and “empowerment”.

The Ingonyama trust has also been in the news in statements by the Kwazulu-Natal Premier Sihle Zikalala (IOL 3 July) while King Goodwill Zwelithini is reported to be inviting women for the first time to attend the annual Zulu imbizo (Heraldlive 3 July). Meanwhile activists continue to protest about the lack of response by the President to their memorandum on the Bantustan Bills.

Finally in the mining sector the courts have frozen fracking activities until these are properly regulated. Carlyn Fritteli (Mondaq 2 July) has written on mining and local communities questioning the extent of the international principle of free, prior and informed consent.

Recent judgments, such as Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and Another and Baleni and Others v Minister of Mineral Resources and Other, have shown how the exploitation of natural resources has the potential to exploit host communities. As such, consent, specifically free, prior and informed consent (“FPIC”) of informal land rights holders, has been elevated in relation to the rights and obligations of mining rights holders.

Week 26: 24 – 30June, 2019

Much of the media focus this past week has been on the responses to State of the Nation Address (SONA). President Ramphosa’s speech came in for much criticism for being big on dreams and short on detail. The silences in the SONA on land were picked up in Parliamentary debate. The EFF continues to argue for nationalisation of the land, warning of a risk of “an unled revolution” if land expropriation does not take place. 

The ANC has countered that expropriation without compensation would only occur “in defined circumstances” and that expropriation was just one of the tools for land reform. Ramaphosa stated that the merger of the Department of Agriculture with the Department of Rural Development and Land Reform would provide:

 “The institutional basis for a comprehensive approach to the economic development of our rural areas”.Through this, we will unlock the potential of the sector by removing constraints in accessing land, finance, markets and water and improving safety in our rural areas. (News24, 26June)

Ramphosa focused again on the identification of suitable public land for human settlements and farming. He also highlighted the need to legally recognise citizen’s rights in land – individual, family and community – a potentially important focus given that the property rights of an estimated 60% of South Africans remain unrecorded. How this is to be addressed remains unclear. However Ramaphosa has stated that the Land Panel report will be made public soon (EWN 27 June) which he said would set out “a far reaching and transformative land reform programme”.

While the politicians debated SONA the media also carries stories about land occupations, evictions and related court proceedings:

In Tembisa (Citizen 28 June) residents of the Vusumzi settlement represented by Abahlali baseMjondolo and the Socio Economic Rights Institute (SERI) have argued the High Court in Johannesburg that an unlawful reblocking process has led to families being displaced and losing their belongings as their dwellings were demolished in a move to replan the settlement. [Reblocking involves site demarcation and reallocation of stands according to a planned grid. This is favoured by planners and is often undertaken as part of informal settlement upgrading initiatives.]

In Woodstock, Cape Town, (IOL 28 June) the residents of Bromwell Rd continue to contest the attempt to evict them by the Woodstock Hub. Residents raise concerns about their impending displacement to the Cape Flats as a consequence of a gentrification process. 

In East London 200 families who are reported to have illegally occupied RDP houses in Vergenoeg township were evicted:

A strong team of private security guards, who included tavern bouncers and professional rugby players overseen by public order police, stormed houses, smashed locked doors and threw out furniture.   (DispatchLIVE 28 June)

The report on the Vergenoeg eviction and occupation struggle also highlights allegations of discrimination against Coloured families in the housing allocation process. A ward sub committee member is reported to have stated  “coloured families were left with no choice but to invade the homes in July last year after only 10 coloured people appeared on the beneficiary list of 572 people”.

On the farms New Frame (25 June) published an in depth report on the long standing strike on Oak Valley farm in Grabouw. The report highlights the conditions in farm hostels which remain poorly regulated and without effective state oversight at national and provincial level. The report also provides insights into social contestation in the nearby township where the strike action had earlier been reported as having a racially polarising effect. CSAAWU, the union organising workers in this dispute has played a prominent role in the Robertson Winery strike. It also secured a recognition agreement at the Two a Day fruit packhouse in November last year following an arbitration process convened by the CCMA..

The much resisted Bantustan Bills also remain in the news as Ramphosa has still yet to respond on how he plans to react to demands that he return these laws to Parliament to be scrapped or fundamentally reviewed. Sindiso Mnisi Weeks (The Conversation 23 June) reviews the recent ARD protests against the Traditional and Khoisan Leadership Bill and the Traditional Courts BIll. She asks the hard question about what is ‘truly traditional’?. She notes how chiefs are fundamentally colonial constructs:

To understand the protesters, it is worth examining how the colonial fictions about traditional leadership and customary law have shaped rural people’s access to rights in South Africa. The historical record , rather than the colonial depiction of it, shows that communities have typically determined how they are led. Customary law is lived and agreed by community members . The historical and archaeological record also shows that communities did not have to have a senior traditional leader.The idea of a ‘chief’ beloved by colonialists, does not reflect the fact that societies in southern Africa were mostly governed by decisions made by groups of people.

The article argues that the creation of chiefs who receive salaries from the state creates fundamental conflicts of interest which have deep historical roots:

The new Traditional and Khoi-San Leadership Billis (are) based on the same hierarchy of leaders and authority as the Traditional Leadership and Governance Framework Act , which it replaces. And that, in turn, is based on colonial and apartheid-era definitions.

The issue of tenure security and the rights of citizens living in former bantustans and under the Ingonyama Trust in KwaZulu-Natal are some of the intractable issues to be faced by Thoko Didiza, Minister of the new amalgamated department, in which several senior management positions remain to be confirmed. 

Week 25: 17 – 25 June, 2019

Farm workers and evictions continue to make the news. Leila Dougan and Sune Payne (Daily Maverick 17 June) highlight the ongoing national policy vacuum with regard to farm worker tenure security, access to housing and evictions. The case of Sophie Maqubela exposes the intergenerational vulnerability of farm workers:

Under the Extension of Security of Tenure Act (ESTA), Maqubela’s parents were legally entitled to stay in the house, but their tenure rights were not transferable after their death and their two daughters face eviction despite growing up on the farm.

“We feel hurt because we don’t want to go; we don’t because our whole lives are here, this is where our children grew up, it doesn’t feel like we should move from here,” says Sophia Maqubela.

In terms of the Constitution a farm worker’s right to housing is a claim against the state, rather than the landowner or employer. This remains one of the central ambiguities with regard to the implementation of the Extension of Security of Tenure Act (ESTA). At the same time the plight of Sophie Maqubela and thousands of other farm dwellers represent an ongoing ‘total system failure’. In 2018 stakeholders participating in the Social Dialogue Platform for Decent Work in Agriculture and the Laborie Initiative made a submission urging an urgent policy review which provides useful background to the current focus on how land reform and housing policy have failed farm workers.

Meanwhile the Land Claims Court (IOL 20 June) dismissed the appeal of the May family, evicted from Windmeul Kelder. In delivering judgment Judge Canca criticised the family and the approach taken in the matter as an attempt to “coerce” the municipality to give them benefits to which they were not entitled.  

An article by Brittany Kesselman (The Conversation 18 June) explores the double burden of hunger and malnutrition in South Africa and provides examples from Brazil and elsewhere illustrating how innovative, integrated food and nutrition policies can address this problem.

Protests over the Bantustan Bills also feature significantly. Sindiso Mnisi Weeks (Daily Maverick 18 June) examines how:

The Traditional Leadership Bill fully revives separate territorial enclaves in which poor, black people are stripped of their citizenship rights and are instead forced to be governed as subjects by imposed authorities that the government names ‘traditional’.

In the social media space the Alliance for Rural Democracy (ARD) has  criticised government for failing to respond to their memorandum calling on the President to return the Bills to Parliament.

In the urban domain, the news continues to feature land occupations and attempted evictions. (TimesLive 17 June) focuses on the unresolved land occupation in Hermanus, while a day earlier (GroundUp 14 June) covered the story of shack demolitions and the burning of people’s possessions which commentators argue constitutes a serious infringement of their rights.

The State of the Nation Address by President Ramaphosa to the joint sitting of parliament and NCOP on Thursday 20th April has received much coverage. However, the President’s pronouncements on land remain vague. The SONA coincided with the 106th anniversary of the passing of the 1913 Land Act which provides the introduction to his address. The ANC seeks to reinstate the NDP as the guiding plan for South African growth and development. This is of some concern, as Chapter 6 of the NDP on the rural economy has been critiqued for its vagueness. But perhaps what is more significant is what was left out of the speech with regard to land reform.

There are no references to:

  • Expropriation
  • The widespread failure of land reform to date
  • The unresolved challenges associated with the Restitution programme and the thousands of unsettled and frozen land claims
  • Land rights and mining in communal areas
  • Traditional leaders
  • The Bantustan Bills and their implications for millions of rural citizens
  • Farm evictions
  • The collapse in land administration and tenure insecurity.

The main land related undertakings in the SONA are to:

  • A clear property rights regime
  • Accelerate the provision of well-located housing and land to poor South Africans
  • Accelerated land reform in rural and urban areas based on the identification and release of public suitable for smart urban settlements and for farming
  • Assessment of the recommendations of the Presidential Advisory Panel on Land Reform
  • Allocation of 3,9 billion to the Land Bank to support balck commercial farmers

So for many in the land sector SONA has not provided any real clarity about the difficult choices to be made. More post SONA commentary will be included in our update at the end of the coming week.

(This weekly update corrected and edited for accuracy and clarity 22 June 2019.)

Week 24:  10 – 16 June 2019

This week the Presidential Advisory Panel finally submitted its report on land reform to President Ramaphosa. Previous news stories indicate that members of the panel differed sharply with each other on the content and recommendations contained in the final document which has yet to be publicly released. The report will be tabled in Cabinet before being  released.

One of the panellists Advocate Tembeka Ngcukaitobi made his position clear in an important comment published in the Mail and Guardian on 9th June. He notes that

“ Policy wise, the land space is occupied by two loud currents. On the one hand are empty slogans,posing as left-wing radicalism. On the other is a market-based fundamentalist dogma that refuses to accept the plain truth that the present land dispensation makes no economic sense.

Contrary to popular belief, section 25 of the Constitution does provide a legal basis for the policy interventions necessary for a fundamental shift in land relations in favour of the dispossessed, who remain without land and without property.”

The article highlights how key land reform institutions are not working – the Department, the Commission on Restitution of Land Rights and the Land Claims Court. It examines the fundamental and time consuming obstacles to be overcome to make land reform work for all.

William Gumede has identified twelve steps to successful land reform in a column in Business Day on 11th June. He argues that

“Land reform must fit within a long-term industrialisation strategy, bring new technology, diversify production and expand institutions supporting the agriculture value chain.”

Gumede is also of the view that communal land must also be transferred to individual households arguing that “the communal land system locks the majority of African in poverty”.

On the land rights and mining front attention continues to focus on the Perth based Minerals Commodities Company (MRC) which has launched SLAPP suits against environmental activists and members of communities resisting its bid to obtain rights to mine on communal land without community consent. Civil society organisations have united against alleged corporate censorship and bullying by forming a joint advocacy campaign.

In the urban space the failure to resolve the District Six land claim has appeared regularly in our restitution section during the month of June.

Finally on the State Owned Enterprises front an article in the Citizen reveals how the South African Forestry Company (SAFCOL) has come under the spotlight for irregular expenditure and a failure of corporate governance. There are reportedly 44 registered land claims on SAFCOL land.

Week 23:  3 – 9 June 2019

On the 30th May President Cyril Ramaphosa announced his new cabinet and the appointment of Thoko Didiza as the new Minister to head up the amalgamation of the Departments of Agriculture, Rural Development and Land Reform. Forestry and Fisheries are now the responsibility of the new Minister of Environment Barbara Creecy.

In the run up to the cabinet announcement many stakeholders had been pushing for the amalgamation of the DRDLR with Agriculture. However now this has been put in place Minister Didiza will have to overcome major challenges before she is able to oversee a working Ministry. Many of the senior management in DRDLR are in an acting capacity. There have been major concerns raised about land price collusion, processing of fake land claims and the allocation of land acquired under the programme to cronies. These allegations are alleged  to reach to the highest levels in Government.

The new Minister also has to address the failure of government to ensure security of tenure for vulnerable citizens in the former bantustans, on farms and on land already transferred through the land reform programme. On the 5th June a major protest was organised to Stop the Bantustan Bills . Communities and organisations  associated with the Alliance for Rural Democracy marched on the Union Buildings to hand over a memorandum to the President. Read more here. And then there is the whole expropriation debate which has to be put to bed.

An Op Ed in the Daily Maverick characterised land reform as the greatest challenge facing the sixth Parliament.

In the urban space news has continued to focus on widespread demolitions of informal dwellings. As pressure on land for housing grows the level of confrontation has been rising between informal settlement dwellers, municipalities and landowners. In Stellenbosch the murder of a farmer who had been involved in dispute with people who had occupied his land made international news

It has been a week which has highlighted the mounting pressure to sustainably address the many dimensions of the unresolved land question

Weekly updates resuming soon

We have been busy trying to ensure that the news feed remains up to date which has been a labour intensive undertaking. We will shortly resume providing weekly summaries with hyperlinks to a selection of the main stories breaking during the week.

Week ending 2 November 2018

The Joint Constitutional Review Committee concluded its public hearings into land reform on 26 October (Business Day, 26/10/18).  The Committee discussed the draft report in Parliament, and a statement by Parliament’s press office said there was “overwhelming support in the public hearings for a constitutional amendment”.

However, parties opposed to a constitutional amendment threatened to take the parliamentary process for legal review. It is contended that the Committee has not considered the 630 000+ written submissions made to the Committee. 65% of the written submissions reportedly opposed a change to the Consitution (Moneyweb, 2/11/18). The debate in the committee became quite heated, Committee co-chair Lewis Nzimande  at one stage stating, “Members, you are behaving like children and it is not acceptable”. (News 24, 1/11/18).

Meanwhile, ratings agency S&P noted concerns about land exporpriation as being one of two factors (the other being postponement of fiscal consolidation), that might make it consider lowering SA soverign rating (EWN, 30/10/18).

Week ending 26 October 2018

A new round of Constitutional Review Committee hearings commenced this week, with 13 interest groups due to make representations. (ENCA, 25/10/18)  A motion has been put forward to extend the deadline for the Committee’s report to be tabled until 30 November 2018 (EWN, 25/10/18, EWN, 25/10/18).

Dr Anthea Jeffery of the IRR, writing on Politics Web (25/10/18), questioned how far the Committee has got with the huge volume of submissions received (more than 700,000), and how it will possibly consider all these submissions by end of November. She concluded her article saying the Committee cannot simply shrug off its constitutional obligation to hold a meaningful public participation process in pursuit of “an unrealistic timetable and its own preferences on the EWC issue”.

Finance minister Tito Mboweni made his maiden speech to parliament, a first medium-term budget policy statement. He made no reference to expropriation without compensation in parliament but said that DRDLR / DAFF would transfer ZAR4.4bn to the land bank to support emerging farmers. He also mentioned private sector finance models that would help potential beneficiaries of redistribution gain access to capital. In a briefing prior to the statement, he reportedly said land reform should not reduce farms to forests. (Fin 24, 24/10/18).

A Cabinet statement noted the government is committed to supporting the sustainability of emerging agricultural enterprises, which includes 262 land reform-related projects across all provinces (Cabinet statement, 24/10/18).

Week ending 19 October 2018

A relatively quiet week in land news, which is unusual given the amount of media attention in recent months to the  issue of “expropriation without compensation”. The media’s frequent references to “expropriation without compensation” – some 25 000 times in the last year – saw the phrase being named as SA’s “word of the year” by the Pan South African Language Board this week. (IOL, 16/10/16).

Speaking at a handover of more than 4 000 hectares of land to a community  in northern KZN, president Cyril Ramaphosa stated that land redistribution was an undertaking in restitution, not redistribution. He stated, “We believe these consultations and the work currently being done by the Advisory Panel on Land Reform are destined to yield outcomes that will return people to the land and enable inclusive economic growth and social cohesion in our society”.  He also emphasised the importance of post-settlement support. (PoliticsWeb, 14/10/18)

The Banking Association of South Africa called for a “crisp and clear policy and legislative frameworks” around expropriation without compensation. In a statement BASA warned that prolonged uncertainty would impact on property values, and noted that while land prices had remained broadly stable,  there had been a slow down in the number of farm transactions and capital investment. (IOL, 18/10/18).

COPE president Mosiuoa Lekota speaking at a community meeting in Kliprivier in the Midval urged people to use the ballot box, but also stated that those expropriated must be compensated. He reportedly said cause a war in SA. (EWN, 13/10/18).

Andries du Toit, writing in the Daily Maverick, responded to Thabo Mbeki’s comments and Malusi Gigaba’s reaction thereto (see news, week ending 5 October 2018). Arguing, “Those of us who believe that Constitutionally entrenched democratic rights and equality under law are an essential part of ensuring racial justice in South Africa need to find better economic answers soon”. Du Toit emphatically made the case for land reform for the poor. (Daily Maverick, 18/10/18).

Week ending 12 October 2018

While the national news headlines this week were dominated by the replacement of Nhlanhla Nene as minister of finance with Tito Mboweni, there was some analysis of what Mboweni’s stance on expropriation without compensation might be. Ivo Vegter of the Daily Maverick referred to Mboweni as “the Marxist that wants to nationalise all land”, citing some of the new minister’s tweets, including one saying, “the land in Afrika belongs to all Africans” and another that land should be ceded to the democratic state who should then allocate it to “kings and communities, farmers, Municipalities, etc”. Vegter contends this aligns Mboweni’s views with those of the EFF. (Daily Maverick, 11/10/18) Other columnists chose to highlight Mbownei’s more light hearted posts about land expropriation. (Jenna Etheridge, News24, 9/10/18)

The Joint Constitutional Review Committee (CRC)  stated that parliament is to debate and vote on its report between 26-28 November, and that there will be no more extensions. (Jan Gerber, News24, 11/10/18)

The CRC has a new co-chair: ANC MP Stanford Maila replaced Vincent Smith after the latter was relieved of his position while the parliamentary ethics committee investigates allegations against him. (Emsie Ferreira, IOL, 11/10/18).

King  Goodwill Zwelithini, who controls 2.8m ha of land through the Ingonyama Trust, used his Shaka Day celebration speech as a platform to demand that president Cyril Ramaphosa guarantee that Trust land will not be touched (IOL, 7/10/18). Zwelithini also revealed that he had met lobby group Afriforum to oppose expropriation without compensation, saying it would pose a threat to food security and therefore a risk to the Zulu nation. He stated that a partnership will be formed between the two entities – an announcement  that has been met with some skepticism from commentators (Bongani Has, IOL, 10/10/18; Ra’eesa Pather, Mail & Guardian, 9/10/18; EWN, 09/10/18).

Week ending 5 October 2018

The banking sector has been in land-related news this week as FirstRand chair, Roger Jardine, writing in the group’s annual report, stated that while there was “tremendous upside” should property rights evolve to be more inclusive of South Africa’s real economy, expropriation of private property without compensation was a “ludicrous and dangerous fallacy” (Business Day, 05/10/18First Rand Annual Integrated Report, 2018).

At a land indaba organised by City Press and Rapport, former South African state president, Kgalema Motlanthe spoke out against changing the constitution, reportedly saying that the ANC should worry less about changing the law and rather spend more time effecting land reform – Motlanthe drew particular attention to giving people title deeds (The Citizen, 03/10/18). At the same event, Adv Tembeka Ngcukaitobi, who is a member of President Ramaphosa’s ten-person land advisory panel, called for owners of large tracts of land to donate parcels of it to black South Africans and for the government to focus on redistribution instead of restitution (Daily Maverick, 4/10/18). Ngcukaitobi also criticised the Department of Rural Development and Land Reform, saying that it should be closed or brought under the supervision of National Treasury (The Citizen, 04/10/18).

Further afield, Namibian president Hage Geingob said that his country should give consideration to expropriating land, because the principle of willing-buyer, willing-seller has not yielded sufficient results (Finance 24, 02/10/18)

Card image 07 December 2019 News 24

Expropriation without compensation: Have your say on the draft bill

Written submissions have opened on the draft bill to amend Section 25 of the Constitution, which deals with expropriation of land without compensation.

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Card image 07 December 2019 IOL

Africa makes special circumstances proposal at UN climate change conference

The proposal relates to the continent’s increasingly high risk to climate change, due to extreme weather events, and the ...

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Card image 08 December 2019 IOL

Interdict blocks Eikenhof land invaders

The Gauteng Department of Human Settlements has obtained a court interdict barring land invaders from illegally occupying ...

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