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Terence Corrigan
It is often forgotten that the ANC’s conference resolutions in December last year pledged not only to drive land reform using expropriation without compensation, but to reform the tenure arrangements on land currently under the authority of traditional leaders.
Obed Bapela, Deputy Minister of Co-operative Governance and Traditional Affairs, said at the time: "That land belongs to the people and we resolved that 13% of the land under the custodianship of traditional leaders be transferred to the people who live in those communities."
The conference resolution said the party must "democratise control and administration of areas under communal land tenure".
This held the hint of a promise of real transformation of the way land is managed, opening up options for millions of South Africans, among them, the country’s poorest citizens.
It seemed to echo the recommendations of the High Level Panel into Transformative Legislation under former president Kgalema Motlanthe, which recommended "equal citizenship" for urban and rural people.
It argued sharply that people living under customary tenure experienced great insecurity of tenure, and that while it was not accusing all traditional leaders of abuses, it noted that "rural people are structurally vulnerable to abuse of power by traditional leaders".
To this end it recommended curbing their powers, most notably by abolishing the Ingonyama Trust through which millions of hectares of KwaZulu-Natal are held under the custodianship of the Zulu king.
It seems that this is now off the table. In the face of vocal denunciation of any suggestion to alter the status quo, the government has evidently backed down.
Said Minister of Cooperative Governance and Traditional Affairs, Zweli Mkhize, after discussions between the government and traditional leaders: "A wrong impression has been created that the discussion on land expropriation includes land in the hands of traditional leaders. When government talks about land expropriation, we are referring to the 87% the land, not the 13% that is under the control of traditional leaders and black people."
This is a revealing and disturbing comment.
To guarantee the status quo in so-called communal land is to validate, or at least accept, one of the most enduring legacies of apartheid. The exclusion of African people from titled property ownership in favour of a "customary" – or "tribal" – system was a defining expression of the colonial and apartheid mindsets.
Africans were not able to fit into the modern world, so went the assumption, and needed their "own" institutions. Preferably, this would require a firm hand to control their lives.
It is both a tragedy and a scandal that very little has been done to amend this. There has been little to show for proposals over the years to extend land rights to those living under traditional authority.
The outrage that senior figures in government have expressed at the disproportionate landholdings of white South Africans has not been matched by similar dismay that millions of black South Africans depend for a living on land to which they have at best informal tenure. The possibility of leveraging a tract of land for a loan, or the dignity of ownership, are absent.
To the extent that there is some validity in the mantra that "things have not changed" since the apartheid era, this is one of the clearest manifestations. This is doubly bizarre when one considers that as a land reform measure it makes eminent sense to start with rural people under traditional jurisdiction. They are, after all, already on the land.
This in turn speaks volumes about the trajectory of land reform. In choosing to capitulate on this issue, it has exposed the dire lack of concern for alleviating poverty and for fostering equal citizenship – the latter being central to the promise of the Constitution.
Indeed, to cordon off the 13%, the former homelands, from land reform efforts comes close to validating the actions of the white governments of old: accepting the manner in which they divided the country as a basis for deciding on people’s rights and interest in the present.
But South Africa trudges into the future with no relief from the grotesque bifurcation of our society: one part secure in its rights and property (albeit under threat in this respect) by the protection of the Constitution and the law, the other excluded from it.
And from a pragmatic point of view, government’s capitulation on an issue of this magnitude points to a dangerous level of confusion over policy. If a matter like this can be summarily abandoned, just how clearly thought through have the wider implications of expropriation without compensation and the possibility of a new land tenure system been?
This raises questions about the future: If policy is to twist in political winds, to be determined not by rational evidence, but first and foremost by political calculation, what confidence can businesspeople expect to have in the future security of their investments?
For that matter, what does this suggest about the value of the "consultation" process?
Changes to the land tenure systems in the former homelands – formal leasing, leading to proper ownership – would have signalled the reality of a new dawn. A refusal to do so signals the stasis in which the country is mired.
President Ramaphosa has squandered an opportunity to put something unique and transformative onto the national agenda.
Terence Corrigan is a project manager at the Institute of Race Relations (IRR). The IRR invites readers to join them in opposing the introduction of expropriation without compensation by endorsing our letter to Cyril Ramaphosa or sending an SMS to 32823.
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