We are now including the land news updates from our main land news site.
South African Land News
19 November – 31 December: Weeks 47- 52
The changing Covid context
In our last update (19th of November 2020) we indicated that there were fears that cluster outbreaks could lead to a second wave of Covid infections in South Africa. Unfortunately, these fears have been realised and South Africa is back on Level 3 lockdown restrictions. Total recorded cases now top 1 million, while another 8469 people are officially reported to have died from the virus.
Projections of the actual death rate are much higher as can be seen from the report on excess deaths prepared by the South African Medical Research Council. Data from December for the Eastern Cape indicates the widening gap between reported Covid 19 deaths and natural excess deaths. This trend is reflected to a greater or lesser extent across the nine provinces in the country, and has been particularly noticeable in the Western Cape, Gauteng and KwaZulu-Natal.
The ad hoc committee on land expropriation which has been exploring constitutional amendments to clarify the circumstances under which land could be expropriated without compensation was unable to complete its business by the end of 2020. In December Parliament extended the deadline to the end of March 2021.
In a separate but linked process the Portfolio Committee on Public Works and Infrastructure requested written submissions on the Expropriation Bill (B23-2020). The submissions are required before 10 February 2021. The purpose of the Expropriation Bill is to repeal the existing Expropriation Act (No. 63 of 1975), provide a replacement legal framework while making provision for cases where expropriation with nil compensation may be just and equitable. Given that the Constitution is the supreme law of the land, the Expropriation Bill has to align with whatever form a constitutional amendment will take.
Farms and Farmworkers
On 16 November the Western Cape Department of Agriculture announced that it would provide a R12 million support fund to provide relief to employees in the local wine tourism sector. The wine sector has been adversely impacted by the combination of Covid 19 and measures to restrict the sales of alcohol in a government bid to keep the pressure off healthcare facilities as they battle to manage the pandemic.
On 29 November The Mail and Guardian ran the first of a two-part series on farm evictions in Greytown, KwaZulu-Natal. The features highlight the vulnerability of farm workers as occupiers on land owned by someone else. Nokuthula Mthimunye, a spokesperson for the Association for Rural Advancement has observed a rise in the insecurity of tenure of farm dwellers because of the effects of the Covid-19 pandemic. “Several people have lost employment on farms … Those whose accommodation is linked to employment have also lost a place to live.”
In June DefenceWeb reported on an SANDF plan to establish the Mzansi Home Guard. On the 3 December IOL carried a report on co-operation between SANDF and AgriSA to deploy rural security (home guards) to help curb farm murders and improve rural safety and security. Quite how the SANDF has negotiated an agreement, seemingly without the involvement of SAPS who are responsible for implementation of the rural safety strategy has yet to be explained. Back in 2003, President Thabo Mbeki announced the phasing out of the SANDF Commando System and the creation of a new system. It seems that the current initiative reinserts the SANDF in the picture as they are responsible for the training and presumably the remuneration of the proposed home guards. This raises important questions about the monitoring and oversight of the functions and actions of the proposed home guards and their status in law. We will aim to provide more clarity on this in future updates.
A wide range of topics are covered in this section. The Daily Vox of the 30 November carried an interview with Nazeer Sonday – an activist who has long been campaigning for the protection of the Philippi Horticultural Area in Cape Town which has been threatened by planned housing and property development:
The PHA is very important for Cape Town but also South Africa. It supplies the city with around 200 000 tons of vegetables per year is produced in the PHA… if we don’t have this area, food will have to be imported from other areas and other provinces and from overseas. Importing food means more expensive food with a lot of added carbon miles. The PHA ensures that people are getting healthy food without the environmental damage.
On 5 December Minister Didiza announced a further round of support for smallholder farmers who can obtain farming input vouchers up to the value of R9000.
The 2020 Countdown on Health and Climate Change Report published in the Lancet was discussed in a report carried in Maverick Citizen (8 December). The report highlights how one of the impacts of climate change is shorter growing seasons. This means that the crops mature too quickly, which leads to lower than average yields. The report notes that in 2019, South Africa experienced a reduction in crop growth duration — compared with a 1981-2010 baseline — of 12.8% for maize, 8.9% for soybean and 5.4% for winter wheat.
This has an impact not only on the price of food, but food security and household nutrition, particularly for poorer households.
In 2016, 27% of children under the age of five were reported to be stunted. This figure seems set to rise in the face of the combined impacts of food insecurity related to the pandemic and climate change.
Prof Michael Aliber interviewed Wandile Sihlobo in the Conversation (14 December) for his take on how Covid recovery plans need to think about agriculture. Sihlobo makes the case for “embracing technology (information technology, mechanical and biotechnology) and private sector partnerships”. He is an advocate for land titling which he argues will help commercialise and grow the agricultural sector. It is clear from the interview that Aliber is sceptical about Sihlobo’s approach. This suggests a need for more in-depth discussion and debate about possible future agricultures and the up and downstream impacts of different approaches.
Land governance and administration
Court proceedings brought by rural women against the Ingonyama Trust shaped the dominant stories in this section. In the same period land activists mourned the passing of Sizani Ngubane the director and founder of the Rural Women’s Movement which brought the legal action who died just before Christmas.
The RWM tribute to her highlighted her immense courage and contribution:
Reflecting on the life of uGogo Sizani we are reminded of Cornel West’s proclamation that, ‘…justice is what love looks like in public’. For decades, spanning minority-rule to the present, uGogo Sizani was a freedom fighter for love both in public and in private.
Earlier in the year Zukiswa Pikoli profiled ‘Mam’ Sizani who was born in 1946 in the KwaZulu-Natal village of KwaMpumuza in the uMgungundlovu District. She was raised by her mother, a domestic worker who earned R8 a month while her father worked in Johannesburg as a migrant worker.
A woman of great courage Mam Sizani recalled that:
I have been defamed… arrested for allegedly breaking into my own house… I have been beaten up and nearly lost my life after a group of men broke the door on a farm and left me thinking I was dead. I hear some white people saying they are attacked on farms because they are white – I was nearly killed on the farm but I’m black.”
Yet she keeps going:
I get motivated by seeing the smiling faces of women who have lost hope that we will ever win our struggles.
Chris Makhaye from New Frame (7 December) provides important background on the court case which seeks to declare that the Ingonyama Trust has acted unlawfully and in violation of the Constitution by cancelling residents’ Permission to Occupy (PTO) certificates and concluding residential lease agreements with holders of PTOs and/or informal land rights.
Kim Harrisberg writing for the Thomson Reuters Foundation provides an unusual twist on the dispossession narrative with an article entitled Rural South Africans fight for Zulu king to return their land.
According to the Legal Resources Centre:
Since 2007, the Trust has been “unlawfully compelling (residents) to conclude lease agreements and pay rental to the Trust to continue living on the land… The homes they have built now belong to the Trust. Most egregiously, residents are required to pay rent and face eviction from their land if they default.
Several news outlets reported on Deputy President David Mabuza’s statements on land reform in November. Following the government decision to release large amounts of state-owned land it quickly became clear that much of this land had been acquired as part of the process of ‘homeland consolidation’ under apartheid and is already used and occupied. According to the Deputy President (IOL, 29 November 2020) government was aware of this all along:
We decided to advertise and simultaneously take this inquiry. The purpose is not to penalise people. The purpose is to dispose of this land correctly and put this land in the books…We are not to chase people that make a living on the land because our intention is to make sure our people are given land to make a living.
On 4 December Agbiz Head of Legal Intelligence Theo Boshoff argued that Covid-19 could have a “silver lining” which in his view would be “a more practical approach to land reform, agricultural development and other economic policies.” Boshoff singles out:
However, three days later the violent shadow side of state incapacity and policy failure was starkly revealed when Mrs Nontembiso April (56) and Mr Takayina April (66) were shot down by assassins on Draaifontein Farm in the Sakhisizwe Local Municipality in the Eastern Cape. The CALUSA website issued a statement on this killing which had very little news coverage nationally.
Mr and Mrs April: assassinated 4 December 2020
The Aprils were farm dwellers living on land redistributed by the state who had become land activists demanding that the rights of farm dwellers be recognised and that they too should be able to access land through land reform.
Mrs April in particular has been a formidable activist in the struggle for democratic governance and equitable access to land for all throughout South Africa. She and her colleagues are victims of a failed post-1994 land reform programme which marginalises farm dwellers and gives land to elite black African farmers who are hostile to farm dwellers and continuously threaten them with evictions.
Nothing has since been reported on progress in arresting the two men who shot the couple in broad daylight in front of their 19 years old son. According to Eastern Cape police spokesperson Colonel Sibongile Soci “the motive for the killings was unknown and they would not speculate on it”. (Citizen 9 December, 2020)
Land Rights and Mining
The murder of Fikile Ntshangase, the death threats to Nonhle Mbuthuma and the continuing struggles of mining affected communities dominate the news in this section. Ed Stoddard writing in the Business Maverick (19 November) provides the backstory on the Somkhele mine expansion, the resettlement of affected families and the disputes over compensation on offer. While Petmin the unlisted company behind the mine expansion insists that it has acted reasonably and that only minority voices opposed to mining are being heard Johan Lorenzen, a lawyer at human rights firm Richard Spoor Inc Attorneys, which represents the 17 households that have not agreed to the terms of their relocation, argues that the “continued public statements that 17 households’ demands for fair compensation threaten the closure of the mine intensify these households’ vulnerability to violence and intimidation”.
Stoddard notes holders of mining rights are required since March 2020 to publish approved social and labour plans on their websites. When the Daily Maverick article was written no such plans were publicly available as required. However this has since been rectified and a social and labour plan 2018-2022 is available on the Petmin website.
Mary De Haas (Daily Maverick 29 November) makes the case for phasing out coal mining.
Mining does not alleviate poverty – rather, it entrenches inequality. What these areas need is true, community-driven development, utilising all the environmental, agricultural and tourism potential of the area it is part of.
Mining activities bring conflict, for only a select few benefit from what are generally low-grade jobs, the security of which relies on the vagaries of international markets.
She also provides analysis of the divide and rule tactics alleged to advance the expansion of coal mining in the Tendele area and which preceded the murder of Mrs Ntshangase.
In a more optimistic take on mining and community relations Stoddard also writes about the Mothlotlo Empowerment Deal in which the Mothlotlo community in Limpopo, is in the process of being relocated to make way for an expansion of Amplats’ Mogalakwena mine.
Human rights lawyer Richard Spoor, who has worked with the community for more than 15 years and represented their interests in the transaction, said giving households direct equity was a departure from previous BEE deals.
According to Stoddard:
A community that has been at odds with Amplats over the years is going to get partial ownership of an asset that should deliver revenue from work contracted with Amplats, which is cash-flush at the moment.
Numerous restitution stories have been covered in this final period of 2020.
The land claim of the Prudhoe community went all the way to the Constitutional Court which found in their favour. GroundUp reports a statement by the Legal Resources Centre (LRC) that the case was finally resolved “after two trials in the land claims court, three appeals to the Supreme Court of Appeal (SCA) and two trips to the Constitutional Court”. Most of the appeals came from the Mazizini Community who laid claim to the land themselves. The Constitutional Court dismissed the Mazinini appeal, bringing the saga to an end. However, while the Prudhoe community may celebrate an end to their 22 year struggle, we have seen elsewhere what the courts decide is not always implemented on the ground.
Rehana Rousseau has recently written a book entitled Predator Politics which explores how corruption has derailed land reform and conservation programmes in Mpumalanga. It details Deputy President David Mabuza’s alleged role in “an extraordinary history of alleged graft”.
Greg Nicholson (Our Burning Planet 4 December) provides a review of a land dispute between Fred Daniel and David Mabuza which is the subject of the book. He singles out Rossouw’s analysis of how leaders of the KaNgwane homeland effectively became a part of the ANC provincial government after apartheid, and “seamlessly carried their scams from the homeland into the democratic government”.
The book alleges that Mabuza as Agriculture MEC manipulated the land claims process, putting forward “claims without merit” as a means to pressure Daniel and other landowners and to enable government officials, including those in the Land Claims Commission to gain access to land. Daniel has launched a civil claim against Mabuza claiming damages of more than R1 billion which is scheduled to be heard in the North Gauteng High Court in June 2021.
In other Restitution news
The ongoing financial woes of the Land Bank feature in rural development news. Dr John Purchase writing in Business Day (16 December 2020) cautioned that:
The summer season (2020/2021) has been hit by a financing crisis that will in all probability permanently change the financing environment of primary agriculture in SA.
Purchase notes that SA’s primary agricultural debt ballooned from R70bn in 2010 to R187.5bn in 2019, in nominal terms.
The four major commercial banks, together with the Land & Agricultural Bank of SA (Land Bank), hold just on 90% of that debt, with the Land Bank’s share alone amounting to 29%.
The Land Bank can now only provide about 50% of its commitments to its clients through its service-level agreements (SLAs) with several agribusinesses… Of greater concern is the ability of the Land Bank to raise further capital on the capital markets, as has been the practice over the past couple of decades. Investors are adamant that the government needs to provide a 100% guarantee on investments, while the Treasury is only offering a 60% guarantee.
The precarious position of the Land Bank and mounting concerns about its corporate governance are likely to impact heavily on the future viability of land reform.
Also on our rural development pages we feature news about the impacts of Covid 19 and the related levels of lockdown restriction on the wine industry. VINPRO has argued strongly on the economic impacts of lockdown on the wine industry, wine sector tourism, farmers and workers. Much of the news in the final few weeks of the years has focused on confusion over wine tasting and sales on wine farms – whether it is permitted or prevented.
As 2020 drew to a close President Ramaphosa took action to stem the second wave of coronavirus infections which saw 50,000 infections recorded since Christmas eve, together with the recent discovery of a more infectious Covid-19 variant. As the holiday season kicked in so did alcohol related trauma admissions in state hospitals, already struggling with the resurgence of the virus. Level 3 lockdown reinstituted the ban on alcohol sales.
A healthier way forward for alcohol in South Africa?It is clear that once the Covid crisis is over South Africa needs a deep national introspection into the levels of alcohol abuse and the contribution alcohol makes to domestic violence, criminal assaults and road deaths. Nandi Siegfried & Charles Parry wrote a persuasive op-ed in Maverick Citizen (27 December 2020) on the collision between alcohol abuse and Covid-19.
Alcohol use, and especially heavy drinking, is causally related to trauma admissions. This relationship is undisputed by scientists worldwide. Availability, price and affordability of alcohol, as well as marketing practices have increasingly been shown to impact on drinking and associated harms.
This referenced an op-ed published earlier in the year (Parry, Gray, Maker and Smithers 27 July 2020) which proposed a 10 point plan for charting a healthier way forward for alcohol in South Africa.
Traditional LeadershipThe Alliance for Rural Democracy & Land and Accountability Research Centre issued a joint statement on 3rd December expressing deep concern at the hurried passage of the Traditional Courts Bill.
On 2 December 2020, the National Council of Provinces (NCOP) passed the Traditional Courts Bill [B1D-2017] (TCB) in a plenary session, after a rushed process that ignored significant concerns raised by numerous stakeholders.
The passage of the TCB follows on the heels of the Traditional and Khoi-San Leadership Act 3 of 2019 (TKLA) that was signed into law by the President in November 2019. Although it has not commenced operation yet, this law will also have detrimental consequences for traditional communities. This Act removed almost all references to democracy, transparency and accountability that were contained in the traditional leadership legislation it will replace. In terms of section 24, traditional councils are able to enter into agreements and partnerships with third parties without the consent of directly affected individuals and communities. Consultation requirements in the Act are weak and do not include customary decision-making processes. The TCB could therefore provide traditional leaders and councils with an enforcement mechanism to further suppress democratic customary law processes in rural areas.
Together, these two pieces of legislation constitute an onslaught on rural democracy, the constitutional rights of rural citizens and resuscitate Bantustan geography.
The passage of these laws excpands the ANC playbook which seeks to keep traditional leadership sweet while creating an enabling environment for land and mining deals in the former bantustans for the benefit of an elite few.
Urban landAs usual our urban land pages are filled with numerous stories – too many of them to mention in detail here. We briefly select a few highlights from the past five weeks.
Perhaps the most significant story is about Minister Sisulu’s reported intention to end/downscale free housing and offer serviced sites instead. (Daily Maverick 23 November)
Government will still support development of medium and high-density developments, and existing contracts will be honoured. New housing projects are supposedly restricted to those benefitting child headed households, the elderly, disabled and military veterans.
Veteran housing activist Ronald Eglin from the Eastern Cape NGO Afesis Corplan writing in Maverick Citizen (8 December 2020) notes that:
This shift in the government’s human settlement policy is not unexpected. In the 2019 election manifesto of the ruling party, the ANC promised to “release land… for site and service to afford households the opportunity to build and own their own homes”, and to “accelerate the transfer of title deeds… as part of the rapid land-release programme that makes parcels of land available for those who want to build houses themselves.
However, Eglin cautions that this shift is not recorded in any formal housing policy document. He argues that:
The government needs to come out with a much clearer and comprehensive policy-change message. In the short term, the minister needs to make a more formal announcement informing provinces and municipalities on this proposed policy shift. This announcement needs to be accompanied by a comprehensive awareness-raising drive where it is explained why this shift has happened and how they expect municipalities and provinces to act going forward
In the medium term, the government needs to formally work to develop a new policy on rapid land release and translate this policy into programmes with associated budget allocations. Ideally, this new policy needs to be an outcome of a new human settlement policy.
Meanwhile housing activists and researchers Adi Kumar, Lauren Roysten and Michael Clark also express concern that a major policy shift is communicated through the media. They make the important point that:
It is not necessarily resource constraints that hamper housing delivery, but many of the underpinning financial instruments and their rigidity. For instance, if it takes an average of 11 years to implement a housing project, we can see no reason why the Rapid Land Release Programme will be exempt from the inefficacy of the underlying processes and instruments that have plagued housing delivery to date.
In the Western Cape GroundUp (26 November 2020) reports that 14 000 people are living on the streets of Cape Town.
Daily Maverick (16 December 2020) reports on a campaign spearheaded by Ndifuna Ukwazi and Reclaim the City which advocates for the release of well-located state land owned by the Defence Force which could settle 67000 households.
Following a devasting fire in the informal settlement of Masiphumelele the Minister of Human Settlements pledges construction of 2800 home (EWN 21 December, 2020). This announcement follows shortly after the new policy direction mooted above – suggesting that there is yet to be much consistency in the government’s approach to housing policy.
Finally on 30 December the City came in for criticism for its decision to lease a site on New Market Street for parking as opposed to construction of social housing.
Selected land news from Southern, Central and Eastern AfricaThere is a wide variety of news items covered on our Africa land news pages. We provide a quick scan below of the most recent additions.
AngolaThe World Food Programme (23 December 2020) announces an agreement to support child nutrition for over one million children in Luanda province.
DRCCIFOR (24 December 2020) reports that since 2012, DRC has been engaged in a land reform process to replace the land law currently in force, which dates from 1973. Eight years and many consultations later, however, there is still no consensus on key issues, and the proposed national land policy remains an unvalidated draft. At the heart of this debate is the lack of recognition of customary tenure. Marie-Bernard Dhedya, a Congolese lawyer and professor at the University of Kisangani argues that DRC needs a legal framework that formally incorporates customary tenure and promotes legal pluralism.
KenyaRadio France Internationale (26 December 2020) reports on a land struggle between Kakuzi PLC a a listed Kenyan agricultural company trading on both the Nairobi and London Stock Exchange engaging in the cultivation, processing and marketing of avocados, blueberries, macadamia, tea, livestock and commercial forestry and 10,000 ‘squatters’ who are laying claim to the land the farm sits on.
LesothoFoodtank reports on a new agreement between Lesotho and IFAD to stimulate the rural economy and boost sustainable agriculture.
New Frame features a review of This is not a Burial, It’s a Resurrection a film set amongst migrant worker communities in Lesotho which also face displacement due to dam building. The film makes history as the country’s first official submission to the Best International Feature Film category at the upcoming Oscars:
On the surface, This Is Not a Burial, It’s a Resurrection deals with loss, grief, identity and the resolve to fight for what is right, while simultaneously presenting a sharp critique of colonialism, modernity, corruption and bureaucracy.
NamibiaOn 28 December 2020 Mongabay reports on exploratory drilling for oil in Northern Namibia in the Namibian portion of the Kavango-Zambezi Transfrontier Conservation Area (KAZA). Recon Africa is the holder of a licence to explore a 2.5 million hectare area (6.3-million-acres) of northeastern Namibia. In a related story UNESCO was reported to be vigilant on the impacts of oil exploration on World Heritage properties.
The Namibian (17 December 2020) reports that President Geingob ignored questions regarding a report meant to direct the government on how to address the claims of ancestral land in Namibia. The report published by the commission of inquiry into the claims of ancestral land for restitution was submitted to the President’s Office in July this year.
Sonja Smith writing Daily Maverick (14 December 2020) provides a sobering exposé of the conditions of farm workers in Namibian vineyards in Aussenkehr located about 50 kilometres from the Noordoewer border post that separates Namibia from neighbouring South Africa.
RwandaIn Rwanda New Times (24 December) reports that there has been an increase in property tax which is more than three times what people were supposed to pay before. The article provides details on how the property tax is levied as well as penalties for non-payment.
UgandaIn Uganda the Monitor (29 December 2020) reports on a new a campaign that is aimed at advocating for land rights where women are allowed to own land to improve their livelihoods. While Article 237(1) of the Constitution clearly states that land belongs to citizens of Uganda and Article 21 prohibits discrimination based on gender, these rights still remain to be realised in practice.
ZimbabweThe Zimabweland blog continues to provide a rich resource on land related issues. On 7 December the blog reviews a new report from the International Land Coalition and Oxfam called ‘Uneven Ground: Land Inequality at the Heart of Unequal Societies’, along with 17 supporting papers. Through new analysis it shows that land inequality is even larger than previously thought, and that this has dramatic effects on poor people’s livelihoods, particularly those of women and young people.
South African land news: Weeks 43 – 4619th October – 18 November 2020
The changing Covid contextSouth Africa reached its peak of Covid 19 cases in July 2020. Case numbers fell steeply in August before levelling off in September and October. However there are now signs that cluster outbreaks are increasing once again in the Eastern Cape Western Cape and Northern Cape’s prompting concerns about a possible second wave of infections. The Department of Health defines a resurgence as a 20% increase in the average number of cases over a seven-day period. As of November 17, 2020 there were just under 2000 confirmed cases in the country on the day. Total recorded cases now stand at 754,256 while more than 20,000 people are reported to have died. However, as we indicated in previous news updates the actual death rate is substantially higher.
The extent of the impacts of Covid 19 upon employment, household food security and the formal and informal economy has yet to be fully understood. Data released by Statistics South Africa indicates that the South African economy shed two million jobs in the second quarter of 2020. This is described as “an unprecedented change and the largest quarter to quarter decline since the Quarterly Labour Force survey was first undertaken in 2008”.
There are widespread concerns that a return to lockdown would have an extremely negative impact on the economy and jobs with business trying to secure certainty from government that South Africa will not return to hard lockdown, irrespective of infection rates.
ExpropriationWith the publication of a revised version of the expropriation Bill earlier in October – something that has been in preparation since 2008, government is reported to be taking steps to reassure investors that the land acquisition process will be managed within the framework of the rule of law (Businesstech 21 October 2020).
The Minister of Agriculture, Land Reform and Rural Development has been arguing that the proposed amendment to the Constitution and the finalisation of the Expropriation Bill will provide legal clarity on what the government can and can’t do with respect to land expropriation, and that this will reassure investors.
Meanwhile the ad hoc committee established by Parliament to examine the amendment of the property clause in the Constitution has resumed public hearings in Limpopo and the Northern Cape.
Lucas Ledwaba writing in the Daily Maverick (25 October 2020) reports how the land expropriation hearing in Limpopo had to be abandoned for security reasons, as supporters of the ruling ANC and the EFF, the second largest opposition party, clashed with each other at the hearings venue. The likelihood that the public hearing contributed to the spread of Covid 19 cannot be discounted, as more than a thousand people packed into the hall, failing to maintain social distancing as required by the lockdown regulations.
Meanwhile MPs confirmed that the Expropriation Bill will be pushed through the national legislature as part of a suite of legislation to accelerate land reform. Associate Professor of Law, Elmien du Plessis has provided a useful analysis of the convoluted process leading up to the publishing of the new Expropriation Bill, 2020 (The Conversation, 1 November 2020). She explains:
The first attempt at an Expropriation Bill was 12 years ago, in 2008, but it was shelved because of the concern that it obscured the role of the courts in expropriation and would therefore be declared unconstitutional.
Another attempt was made in 2013. The 2013 bill was refined and became the 2015 bill, which made it onto the table of the president the same year, to be signed into law. But it was officially withdrawn in 2018 because the process of amending section 25 of the constitution was still not completed. Communities living on land in terms of customary law also had reservations about its constitutionality, including the public participation process.
Du Plessis points out that there remain a few unclear provisions in the Bill including the actual definition of expropriation, the circumstances under which no compensation would be payable and the process of expropriating land on which communities have land rights. The Bill is only likely to be finalised in 2021.
The Minister of Public Works who has been criticised by the conservative think tank, the Institute for Race Relations (IRR), mounted a counter-attack to her detractors in an op-ed in Business Day (8 November 2020). She notes that back in 2015 the IRR had proposed an alternative Expropriation Bill. The Department of Public Works had at the time sought legal opinions of two leading advocates, who both agreed that the draft proposed by the IRR “was inconsistent with the approach to property which is reflected in the Constitution”. The Minister rubbished the attempts of the IRR to reintroduce their alternative bill stating that:
The emotive land issue needs clear perspective to avoid disinformation campaigns bad analysis and political populism as seen in the IRR alternative bill. There is no more time for alternative bills or legislation. Let us get on with the important task of land reform and spatial justice.
The Expropriation Bill has been referred to the National House of Traditional Leaders for consideration. The House of Traditional Leaders has until 6 December 2020 to make comments on the Bill.
Farms and FarmworkersAs reported in the previous land knowledge update, the EFF had succeeded in inserting itself into the social response to the murder of a young farmer in the Free State. Subsequent to this, the EFF has sought to take up the case of farmworker rights, urging Parliament to intervene to improve the living conditions of farmworkers in the country. The EFF proposed the formation of an ad hoc committee to hold public hearings with all interested and affected stakeholders (SowetanLive 6 November 2020). Mandla Mandela, the Chair of the Land and Agriculture Portfolio Committee in Parliament is reported as saying that he hoped “the EFF was not using this to score political points as it involved the lives of vulnerable people”.
While the Portfolio Committee Chair was reported to support the proposal to debate the living conditions of farmworkers, he did not support the establishment of an ad hoc committee, stating that it would duplicate the oversight functions that the portfolio committee already exercises. The Democratic Alliance tabled its concerns that the focus of the discussion seemed to be exclusively on the Western Cape, where the DA forms the provincial government. The DA representative proposed that it would be preferable “to conduct a comprehensive review of the conditions of farmworkers across the country, including all the work that has been done within and by the agricultural organisations”.
No-one in the debate seems to have made reference to a comprehensive ILO report (2015) which had set out to provide just such a review. Nor did they refer to the findings and recommendations of the Motlanthe High-Level Panel or the Presidential Advisory Committee on land. The extent to which the findings and recommendations of these detailed reports have actively been taken up by government remains in question.
Subsequently the National Assembly rejected what was described as the EFF’s divisive motion to establish an ad hoc committee, but approved a new motion which undertook to review the relative legislation, conduct public hearings and report back to the House by the end of 2021. (News 24 10 November).
It seems that government advocates continuing processes of public hearings and review. These may create the impression of momentum, but also reflect the failure to properly consider and address the substantive issues and recommendations arising from the processes which preceded them. Ironically, repeated rounds of public hearings may contribute to the erosion of trust in government and public confidence that it will move from talk to practical action.
In other farmworker related news Groundup (6 November 2020) reported on rising tensions within the Franschhoek Valley. These relate to a decades long battle over housing linked to Anglo-American’s decision to move all farmworkers off the Rhodes Fruit Farms prior to selling the historic estate in 2003. Black and coloured employees were moved to Languedoc where they were built houses. However, many workers were subsequently retrenched when the canning factory closed. In cases where workers refused to move from the farm they were evicted from the property. The new settlement was supposed to be managed by a housing association for which Anglo-American registered a Communal Property Association. However, the CPA soon became defunct and was subsequently wound up. The new settlement was characterised by high unemployment, disaffected youth, drugs and gangs. There was an expectation that additional housing would be constructed on vacant land to meet the needs of a growing community. However, this served to exacerbate existing social tensions between Coloured and African workers (mostly seasonal) and with the long-standing residents of the original Lanquedoc farmworker settlement.
GroundUp reports on rising tensions between homeowners and backyard shack dwellers – mostly seasonal workers. Backyard shack dwellers are alleged to have moved on to a 14 ha piece of land belonging to the local Community Development Trust, set up for the benefit of former Boschendal farmworkers. This land occupation led to arrests and subsequent protests by backyard shack dwellers, which were met by counter protests from homeowners. A confused situation resulted, in which rival groups of protestors are said to have blocked the roads to Lanquedoc village. Tragically this prevented an ambulance from reaching a 23-year-old woman in need of emergency medical care who subsequently died at a local hospital. As GroundUp explains:
This is a conflict over land and houses between poor people: families with long-standing Boschendal employment ties, mostly coloured, and backyard dwellers, some of whom are now also Boschendal workers, mostly black. In the background are government structures with a mandate to provide housing and large landowners, mostly white. Legal advice and non-profit entities are also involved.
It is also a conflict which can trace its roots all the way back to the history of slavery in the Cape and the impacts of influx controls, the migrant and Coloured Labour Preference systems put in place under apartheid. These resulted in systemic inequality and social division. And yet, like many problems in contemporary South Africa it is not insoluble, provided there is meaningful engagement and thorough going dialogue to find local solutions.
On a more optimistic note the Western Cape Department of Agriculture announced that it will provide relief to employees in the local wine tourism sector in the form of a R12 million support fund. This seeks to safeguard continuous employment of wine tourism workers by subsidising their salaries for a key quarter of the tourism calendar (IOL 16 November 2020).
Food securityGovernment in South Africa seeks to provide support for smallholder and subsistence farmers in the form of input vouchers. According to the Minister the department was working with a cell phone company to enable farmers to be able to use their phones to apply for vouchers directly, rather than through completion of paper forms.
However an article published in New Frame (18 November 2020) indicates the extent of the mounting food insecurity in South Africa and in particular in the Eastern Cape province. On 15 October government announced that a R350 social relief of distress grant would be extended for a further three months.
Queues of hungry and desperate people form the night before the grants are paid out. People interviewed while they waited in the long lines, spoke about the hardships which they are facing:
I did not eat this morning. We have no food at home, so the grant helps to close the gap
I pay a taxi driver R26 for a round trip to town. Sometimes I wait there for two hours or more, depending on the numbers on that particular day. Today I’m number 148, and the line is too slow, but I won’t give up. When I get the money, I will buy 12kg maize meal, 10kg rice, 12kg samp and another 12kg cake flour, which will last us for a month.
Some wait in line but leave empty-handed:
I have not received any money since lockdown started. Every month when I come to town, the officials tell me that my name doesn’t appear on the computer.
Land governance and administrationThe Ingonyama Trust continues to make the news. Minister Thoko Didiza ordered a forensic audit into the financial affairs of the Trust. Despite this order the chairperson of the trust Jerome Ngwenya continued to deny the existence of the probe, while questioning the powers of the Minister to order the audit in the first place. Ngwenya regards himself as being solely accountable to the Zulu monarch King Goodwill Zwelethini. However, since 22 October there has been no further reports on progress with the audit, or indications of when it will be completed.
Land Rights and MiningThe social trauma and environmental costs of mining have loomed large in this period.
On the 22nd October Fikile Ntshangase, a member of the Mfolozi Community Environmental Justice Organisation (MCEJO) committee, a local organisation championing the rights of those affected by mining in the area, was gunned down in her home by assassins.
Nolundi Luwaya (Daily Maverick 2 November 2020) provides the frame for the events leading up to this murder:
We need to pull back the curtain and see her death in the broader context of escalating violence against rural people who attempt to assert their rights in the face of corporate and state intransigence.
The harassment and killing of activists who are part of community struggles against mining activities has a terrible history.
She provides an account of the killing of other activists who have resisted mining, including ‘Bazooka’ Hadebe from Xolobeni who was shot down outside his home in 2016 by two men posing as policemen. She sets out the mining company strategy which is calculated to stoke intra-community violence.
The reality is that the mine has adopted a crude divide-and-rule strategy by insisting that no compensation will be paid to those who have agreed to move until everyone who objects has agreed. This approach is accompanied by a constant refrain that major retrenchments are inevitable as long as “a few families” hold out.
Community members who dare to remain steadfast in demanding adequate compensation find themselves ostracised by neighbours and vilified by the mine. They find themselves accused of being unreasonable and greedy – and at the centre of dangerous conflict and distrust within the community.
An extraordinary photo essay by James Puttick in New Frame (30 October 2020) explores the legacy of unrehabilitated coal mines for impoverished communities in Wesselton, Mpumalanga.
The township is hemmed in on both sides by abandoned and unrehabilitated coal mines. To the southeast, the landscape is scarred by the ripped earth, mine pits and polluted tailings left by the disused Imbabala mine, while to the northeast are the abandoned shafts of Golfview mine, where underground fires are burning in the coal seams, and wetlands have been polluted.
In what seems to be a common pattern, mining companies exploit resources to the maximum before declaring bankruptcy, exiting from their rehabilitation responsibilities and leaving their poisonous legacy behind – “multiple hazards of polluted rivers, toxic mine tailings and a landscape dotted with blackened pits and unstable shafts”.
Puttick take his readers underground to reveal the hazards facing artisanal miners or zama zamas who remain unrecognised and illegal, as they pursue harsh and dangerous livelihoods, hacking coal from abandoned underground seams and physically carrying it out of the mines to sell their coal to informal dealers.
Less than a month after Ma Ntshangase’s murder (New Frame 17 November) reported that Nonhle Mbuthuma, a prominent anti-mining activist in Umgungundlovu in Eastern Mpondoland had received a death threat by SMS. The threat listed other Xolobeni activists already killed, placing her next in line:
“You are all going to be killed …You will run out of money for paying for security and we will get you. We are not going to be controlled by a bitch. Once you change your security, we will strike.”
RedistributionState land redistribution – a mirage?As reported in previous issues the state announced the release of 700,000 ha of state land with the intention of distributing it to emerging farmers. However numerous problems have emerged with respect to this offer – primarily because the bulk of the land which people are applying to access is already occupied. Much of the state land in question was purchased by the apartheid state through the South African Development Trust, as part of the process of consolidating the various ethnic homelands’ which were the foundation of the apartheid vision of ‘separate development’.
Rosalie Kingwill writing in the Daily Maverick (22 October 2020) has spelt out major concerns with the state land redistribution process:
As a land reform practitioner of several decades, my first reaction to the news that the department of agriculture, land reform and rural development was intending to release state-owned land on the basis of long-term leases was one of incredulity.
My second reaction upon the release of the official record of properties to be made available by the state was one of shock. I identified some of the farms with which I am familiar that have been listed in the Eastern Cape.
My research revealed that this land was not only beneficially occupied in most cases, but was subject to intense contestation between restitution claimants, occupiers and farmers (particularly those labelled lessees), most of whom were long-term occupiers.
Most of the occupiers had/have legal rights to the land in terms of the Interim Protection of Informal Land Rights Act, 31 of 1996 (IPILRA).
This suggests that the proposed redistribution of state land is a recipe for further conflict and possibly a gateway for elite capture and dispossession of individuals and communities.
Numerous other stories have been published examining proposed redistribution of state land which are available on our land policy page.
To make matters worse, reports have been surfacing that officials processing applications and evicting existing occupants from the land have been taking bribes to either advance or defend people’s rights in the process. (IOL 10 November 2020). While these allegations had been made, to date there has been no hard evidence provided to support these claims. The Minister urged communities and individuals to bring these issues to the office of the Acting Director-General for attention and to report attempts to extort bribes to the nearest police station.
RestitutionSettling the Ebenhaeser land claimA positive story about Restitution was provided by John Yeld writing in GoundUp (27 October 2020). The long-standing land claim of the Ebenhaeser community in the Western Cape was finally settled after days of negotiation which took place virtually during lockdown. The Ebenhaeser community’s total claim is for some 23,700ha, valued in 2015 at R363 million, for both land and developmental support from the government.
The negotiated settlement will result in the return of much of the fertile land from which the community was removed in 1926, and will see substantial government funding to help manage and develop the irrigated vineyards.
Land reform and rural development specialist David Mayson from Phuhlisani, first became involved at Ebenhaeser while working for the Surplus People Project in 1998. In 2012 Phuhlisani was appointed as lead consultant for the Department of Land Affairs and Commission for the Restitution of Land Rights. The Phuhlisani team was responsible for facilitating agreement on a community development and land acquisition plan (CDLAP), which became the basis for subsequent negotiations and the establishment of a land holding entity, a community trust and an operating company.
Contestation over District Six redevelopmentIn Cape Town there have been an array of conflicting news stories about progress on the redevelopment of the District Six land claim and the relationship between the City of Cape Town and the National Department of Agriculture, Land Affairs and Rural Development.
A report compiled by the Commission on Restitution of Land Rights in 2019 provides some insights into just how complex and contested the claim settlement and subsequent development process has been. Various structures have been established over time to represent the claimants. These have included:
The District Six Development Trust (IOL 30 October 2020) was reported to be contesting the validity of the District Six redevelopment plan worked out between the City and the District Six Working Committee in 2019. The development of this plan followed court action initiated by the District Six Working Committee to hold the Department accountable to settle the claim and redevelop the area.
The Trust argued that the plan should be replaced with the earlier plan drawn up in 2012. According to the Trust’s Interim Chairperson “The 2012 development framework and business plan was formed in conjunction with the national government, province and the city. Why are they ignoring it?”
In a follow-up story (IOL, 19 November 2020) representatives of the District Six Working Committee were reported to be satisfied that the redevelopment process was getting back on track, despite delays caused by the Covid 19 pandemic, with the handover over of 108 units planned for April 2021. At the same time, the City is reported to be consulting with claimants to develop a local spatial development framework for the District Six area, while the national government is responsible for the overall redevelopment of District six and the building of houses for restitution claimants.
Then IOL (10 November 2020) reported that the Minister had “given the city a stern warning not to use District six land to gentrifying the area”. The City exercised its right to reply noting that the letter written by the Minister dated back to July 2020 and was old news . In her response, the mayoral committee member for Spatial Planning and Environment Alderman Marian Nieuwoudt stated that the City was in fact using the 2012 plan as a point of departure to refine the local spatial development framework. So quite how these different plans fit together seems somewhat unclear.
In December 2019 Minister Didiza submitted a detailed plan for the redevelopment of District Six as required by the Land Claims Court. This included conceptual layouts for redevelopment, specifics of how the plan was to be funded, timeframes for implementation and methodologies for allocating residential units to the claimants. How this articulates with the 2012 plan has yet to be clarified. It’s a complex situation and given the history to date it seems likely that there may be more disputes to resolve before this matter is finally settled and land and housing transferred.
In other restitution related news CapeTalk reported that on 2 November 2020 a group calling themselves Indigene Khoi and San tribes had set up camp in a section of the Table Mountain National Park in Cecilia Forest stating that they should be free to live there. According to the interview SANParks management had agreed that they could be there during the day, but were not permitted to stay overnight, or to light fires. The group seeks to raise awareness about unresolved ancestral land claims of the indigenous peoples in South Africa which are not catered for in the current land restitution framework.
Rural developmentThere are a wide range of stories appearing on our rural development pages ranging from:
Western CapeThe City of Cape Town has come under criticism for claiming to have spent 90% of its urban settlements development grant (IOL 29 October), when it is alleged that much of the funds were diverted for emergency Covid 19 expenditure.
There is ongoing debate in Cape Town about the failure of the City to provide well located and affordable social housing which will break the mould of the segregated apartheid city spatial planning. Malusi Booi, Mayoral Committee Member for Human Settlements argues in the Daily Maverick (8 November 2020) that it is housing activist organisations such as Reclaim the City which have occupied abandoned buildings that are responsible for slowing the pace of delivery. According to Booi the occupations makes redevelopment of the sites and provision of social housing impossible. A counter argument (Daily Maverick 17 November 2020) proposes that:
The Cape Town inner-city building occupations should not be dismissed as unlawful reservoirs of criminals and freeloaders. Rather, they should be understood as innovative, legitimate and valid forms of protest that do not seek to destroy, but rather to rebuild and reimagine.
The City has also sought to defend the integrity of the Housing Needs Register – the database which according to the City is one of the pillars of fair and systematic housing delivery in South Africa (IOL 16 November 2020). However, housing waiting lists have long been critiqued as a fiction by researchers and activists who show how housing allocation processes are frequently overridden by political interference, both from above and below.
Court proceedings continue as the City appeals the Tafelberg judgment which cancelled a sale agreement between province and a school which had purchased the site (IOL 13 November 2020) The Western Cape Provincial government has characterised the cancellation as ‘judicial overreach’. This appeal was subsequently delayed and will only be heard in 2021.
Evicted residents from Bromwell street in Woodstock, a suburb bordering on the Cape Town CBD have argued that the City has a responsibility to provide social or temporary accommodation in the inner city. “The residents’ homes were bought by private developers, Woodstock Hub, in 2013 as part of Woodstock’s gentrification push. Meanwhile the residents have fought to remain in Woodstock”. The only offer of alternative accommodation is in remote and socially dysfunctional ‘temporary relocation areas’ far from economic opportunities and essential social networks. The Judge in the Woodstock eviction case has expressed concerns about the perpetuation of ‘spatial apartheid’ in South African cities (Groundup 17 November 2020).
We are still exporting the poorest of the poor to the periphery – people of colour and black people who are unable to afford housing,” said Judge Sher. “The result is that we are still giving effect to the legacy of spatial apartheid.
On the periphery of the city people occupying land and establishing new informal settlements blocked one of the main highways into the city as part of a protest demanding that the City provide water, toilets and electricity. Three buses and a truck were reported to have been burnt by protestors.
However, Malusi Booi from the City has countered that the land people have occupied is low-lying and is unsuitable for settlement and that the City could not “provide immediate services, if at all” to all newly formed settlements at the expense of the existing services and budgeted programmes.
Eastern CapeTimeslive (19 October 2020) carries a story about contestation amongst informal settlement residents in Area 11, Gunguluza, Uitenhage, as people compete for space and access to services. In an unrelated article GroundUp (3 November 2020) reports on an Eastern Cape building fiasco in which an RDP housing project in Matatiele costing R174 million, resulted in a thousand substandard and unfinished homes being constructed, while a dispute between the contractor and the Department of Human Settlements has been referred to the courts.
DispatchLive (11 November 2020) reports on a protest by 70 Mdantsane pensioners who were forcibly removed from their homes during apartheid and who want their homes to be restored. The pensioners stated that they had lodged a land claim more than 20 years ago, but had heard nothing since.
GautengIn Gauteng GroundUp (22 October 2020) reports on a housing protest by the Gauteng Housing Crisis Committee against lack of housing delivery and the seeming abandonment of the rapid land release programme. Marchers picketed the Premier’s office.
The crisis committee is demanding that a rapid land release task team be created, and include its representatives on it. They want the team to resolve what is stopping the release of the land and the Premier to allow homeless and landless people to actively participate in the planning and implementation of the programme.
A story on hostels redevelopment (17 November 2020) reveals how 300 people ‘temporarily relocated’ as part of a hostel upgrade process in the Dube hostels in Soweto have been living in overcrowded shipping containers for ten years. Duplexes and units were built just across the road but never allocated. These vacant structures have since been stripped and are uninhabitable.
There are no rooftops and wires; windows, taps, and doors were stolen from the new units. I do not understand why they moved us here and demolished our homes.
In Pretoria IOL (30 October 2020) has run a series of articles on a stalled township development plan for the Plastic View informal settlement which has been hampered by objections and Covid 19 delays.
Selected land news from Southern, Central and Eastern AfricaThere is a wide variety of news items covered on our Africa land news pages. In this issue we focus on land news from Namibia and Zimbabwe.
Owen Dhliwayo and Refiloe Joala, researchers at PLAAS (6 November 2020) highlight the acute tenure insecurity of rural villagers in Zimbabwe. They review the case of 750 households in Munyokowere village which were issued eviction notice letters by the State on 29 April 2019, instructing them to vacate the area within seven working days. Despite a favourable court ruling which interdicted their eviction in June 2020, the villagers were issued with yet another eviction notice in September 2020.
Theo de Jager chairperson of SAAI and President of the World Agricultural Organisation writes an op ed in the Graaf Reinet Advertiser (16 November 2020) asking where does the proposed $3.5 billion compensation leaves expropriated Zimbabwean farmers. According to de Jager the key questions facing expropriated white farmers in Zimbabwe are:
Should we accept a less-than-ideal compensation settlement? Or should we keep fighting in Zimbabwean and South African courts, in regional tribunals and international forums until we can negotiate a fair and equitable outcome?
De Jager notes that the average age of farmers expropriated 20 years ago is now over 80 years. Given this he argues that:
They should accept the compensation offered, opening the door for Zimbabwe to resume its role as a highly competitive agricultural producer. They should again become the showpiece of the world’s beef, tobacco, cotton and cut flower industries, creating the prosperity that can pull their country from its abject poverty.
However, in doing so the farmers should not neglect the confrontation options!
The Zimbabwe Independent (13 November 2020) reports on a clash between artisanal miners and female livestock farmers in Shurugwi.
The Herald reports on illegal urban land sales by ‘land barons’ operating in Chitungwiza in collusion with Council officials.
Writing in the Conversation (14 November 2020) Dr Getrude Gwenzi provides sobering insights into how over 20,000 children have turned to vending as a means of survival since the Covid 19 lockdown. The legal working age in Zimbabwe is 16, but children as young as 10 and 12 years old are selling goods on the streets. She argues for expanded social policy programmes with increases in the social protection budget to cater for growing numbers of families with children in need.
Weeks 39 – 42: 21 September – 18 October 2020The changing Covid contextAs of 18th October 2020 the cumulative number of detected Covd-19 cases was 703,793, with the officially reported numbers of deaths standing at 18,471. The South African National Treasury is due to expend an additional R6 billion to extend the special relief grant for a further three months. However, the Minister of Finance is on the record as saying that South Africa could not afford to permanently pay the special allowance of R350 a month that was announced in April as part of a R500 billion Covid-19 relief package. A wide range of organisations, including the main trade union federations COSATU and SAFTU have argued that the time is right to extend a basic income grant to all South Africans. Given the impacts of the pandemic, on unemployment and food security, the special grant is a lifeline for 13 million South Africans at present. Numerous commentators have warned of extreme hardship and massive social unrest in a context of joblessness and hunger if the grants are withdrawn.
Prof Mark Tomlinson from the Faculty of Medicine at Stellenbosch University, writing in the Daily Maverick (12 October 2020) notes however that we have a problem with data.
It’s a near certainty that the official figure of 17,248 Covid-19 deaths (as of 8 October 2020) is the tip of the iceberg. Our excess mortality rate (33,000 as of the beginning of August) suggests that close to 50,000 people have died from Covid-19.
He presciently observes that “what we are experiencing now is a mild dress rehearsal for the future horrors of climate breakdown”. Tomlinson highlights the differential impacts of the pandemic and how the weight of it has fallen on poor black South Africans – particularly children.
We have a hunger pandemic in South Africa. The future of any country begins with its ability to ensure its citizens, and especially its children, have enough to eat. Children experiencing prolonged under-nutrition will become stunted, with profound implications for their functioning in school, and later in their capacity to become productive members of society. If we cannot do better in this regard, perhaps we should simply switch off the lights.
ExpropriationThere seems to be mounting public confusion about the relationship between the new Expropriation Bill, the renewed process to amend Section 25 of the Constitution and the function of the Land Court Bill.
Advocate Tembeka Ngcukaitobi provided a succinct and scathing critique of the process in a Tweet dated 11 October:
So far so confusing about the new Expropriation Bill: what is the link to the Section 25 process? How does it fit into land restitution? How far with the Land Court Bill? Looks like we are back to the land of policy confusion, lack of coordination, action without strategy.
A statement released by the Interministerial Committee on Land Reform tried to clarify the process and the current status of the Expropriation Bill, 2020 which is set to replace the current Expropriation Act of 1975. The new Bill has been certified as constitutional by the Chief State Law Adviser and was gazetted on 9 October 2020. A useful summary of key features of the Bill appears in Businesstech (12 October 2020)
The Interministerial Committee has stated that:
We must emphasise that the drafting of the Expropriation Bill was separate from the work of Parliament in reviewing Section 25 of the Constitution. The Bill has been drafted to be consistent with Section 25 of the Constitution as it currently stands.
This means that should Section 25 of the Constitution be amended, then the Expropriation Bill of 2020 would also need to be amended to be consistent with the Constitution as the supreme law of the land. The Expropriation Bill in its current form has been mostly positively received by a range of commentators, particularly those who argue that the Constitution, as it currently stands requires that compensation must be just and equitable, a formulation which allows for circumstances in which it could be just and equitable for zero compensation to be paid. Such a determination however can only be made by a competent court.
Meanwhile the Parliamentary committee first established on 25 July 2019 to consider the expropriation issue has confirmed that public hearings on the Constitution 18th Amendment Bill to allow for land expropriation without compensation will resume later in October. It will be interesting to see how the severe economic downturn linked to the pandemic will impact on the continued appetite of policymakers to prioritise land expropriation going forward.
Farms and farm workersFarm murders have had a high profile in recent months, particularly following the cruel murder of 21 year old Brendin Horner, a farm manager in Senekal on 1st October. The murder has received widespread local coverage and made international news, including reportage in the New York Times (16 Oct 2020).
The murder prompted a response from President Ramaphosa writing in his weekly newsletter on 12th October.
No matter who we are, no matter what community we live in, no matter our race, creed or language, we should be as deeply affected by the death of Brendin Horner as we are by the many other South Africans who die violent deaths each year.
Contrary to the irresponsible claims of some lobby groups, killings on farms are not ethnic cleansing. They are not genocidal. They are acts of criminality and must be treated as such.
The Citizen (13 October 2020) reports that one of the two men arrested for his murder has 16 previous arrests and four convictions.
The provocations of the EFF and the spectacle of supporters singing Kill the Boer, Kill the Farmer in demonstrations outside the courtroom (Daily Maverick 16 October 2020) where two men appear on charges of murdering a farmer seem calculated to ignite what Ramapahosa referred as “the tinderbox of racial hatred” and to fan these flames for media coverage and attempted political gain.
In the words of the President “we must resist any attempts to…mobilise communities on racial lines.
We must not be blinded by our own prejudices to the suffering and pain of others. It should not matter to us if the victim of violent crime is black or white.
To do so would be a betrayal not just of this country’s founding principles, but of our own humanity.
As Adam Habib observed late last year, (Daily Maverick 18 December 2019) the accelerating creep of crude racism and authoritarian fascist thinking infecting and polarising political discourse in South Africa “must be firmly responded to and must be treated as a violation of the values of our liberation movement and of our Constitution itself”.
There is a context to these events which contributes to the systemic violence in South Africa – a country which has the world’s fifth highest murder rate. In 2019/20 some 58 people were murdered every day, at a rate of 36,3 murders per 100,000 people. (Africa Check 4 August 2020). According to police statistics in the 2019/20 financial year there were 21,325 murders in South Africa, of which 49 were on farms and smallholdings. (News 24 31 July 2020).
Prior to the onset of the pandemic, the combination of intergenerational rural poverty, food insecurity and casualisation of much work in the agricultural sector had resulted in deep rural poverty traps constraining millions of citizens with precarious livelihoods. People are going hungry:
‘In October 2020, the average cost to feed a child a basic nutritious diet cost R693,05. The Child Support Grant of R440 a month is 25% below the food poverty line of R585 per capita and a further 37% below the October cost of R693,05 to feed a child a basic nutritious diet’. Pietermaritzburg Economic Justice and Dignity
The ongoing capture and asset stripping within state institutions by the corrupt, including within the police, closes the exits to prevent the poor from escaping these desperate situations. Greg Nicholson and Bheki Simelane (Business Maverick 15 October 2020) provide the essential backstory to Brendin Horner’s murder in which “both black and white farmers dismissed race when it came to crime on farms”. Farmers in the area point to the prevalence of stock theft and accuse members of local police of colluding with stock thieves.
Official statistics indicate that farm murders have increased since the end of the hard lockdown in South Africa, which imposed tight restrictions on freedom of movement. In July of this year Dr Johan Burger of the Institute for Security studies (News 24 20 July, 2020) forecast that:
In the months ahead with the weakening economy, there are going to be many more people jobless and there are going to be higher levels of poverty which creates a whole host of social problems. As people start looking for food, crime will likely increase across the board including farm murders and attacks in the rural areas which are soft targets, and there is a belief that farmers are rich which means they might be targeted.
In other news and on the other side of the coin, GroundUp (28 September 2020) reported on a webinar organised by the Women on Farms Project at which the Director-General for the National Department of Rural Development and Land Reform was reported as stating that a better relationship was needed between government and civil society organisations to fix the problems facing farmworkers. According to the DG:
We need to go back to the element of tenure security which has been abandoned. Since 2010 there has been little budget expenditure set aside for this purpose. As much as there was money set aside, there has been very little land acquired for farmworkers generally.
The DG highlighted the lack of state capacity to monitor land and tenure rights infringements on the ground and pointed to the need for a social compact with civil society to drive land reform.
GroundUp also reports on the case of Antony Koopman who was allegedly assaulted by two farmers in Murraysberg in the Western Cape in February who accused him of stealing livestock. According to Koopman he was looking for a job. However, the incident is reported to have taken place at 9.00 pm. The farmer’s attorney told GroundUp that “it does not make sense that Koopman went looking for work so late in the evening. He said that one of the farmers had woken up and went outside when he heard his dogs barking. The farmer allegedly saw Koopman chasing some of his livestock”.
Food securityDennis Webster writing in New Frame (2 October 2020) highlights how the grant top-ups in the new social relief of distress grant have been crucial for keeping food on the table in impoverished homes during lockdown. He also argues that these grants are likely to play an important role in “the long restart of South Africa’s economy”.
Leila Patel writing in the Conversation and reproduced in Bizcommunity (15 October 2020) highlights how “hunger hurts more than just individuals and families that struggle to buy food: its effects ripple broadly into society with long-term consequences”. Research findings indicate that the temporary employee/employer relief scheme has been vital to lifting many households out of food insecurity, coupled with the reintroduction of the National Schools Nutrition Programme in July. She cautions:
“The Covid 19 pandemic isn’t even nearly over. Some countries and regions are instituting new lockdown’s and reporting or bracing for new waves of the virus. While the government is facing a tough budget situation, the country faces a serious hunger crisis. South Africa simply cannot let up on the provision of the additional social grants and emergency relief”.
Estelle Ellis (Maverick Citizen 17 October 2020) takes us to the poverty stricken Eastern Cape Karoo dorp of Klipplaat, a small town, 80 km south of Aberdeen. The MEC for Social Development in the province has recently reported an increase in infant mortality due to child malnutrition. Of the 1.8 million households in the province, approximately one quarter suffer from food insecurity due to poverty. Klipplaat was a railway town and when the station closed so did local livelihood opportunities. The town also lacks water which must be trucked in from Graaf Reinet 175km away.
A disturbing story in Groundup by Sarah Wild (7 October 2020) reports that funding to South Africa’s Centres of Excellence has been cut by the National Research Foundation in a context of Covid-19 related fiscal austerity. These include the Centre for Invasion Biology and the Fitzpatrick Institute of African Ornithology. With the impacts of climate change due to bite deep in the South African landscape, such funding cuts are particularly worrisome.
The closure of the Centre for Invasion Biology would have global repercussions, says Piero Genovesi, Chair of the Invasive Species Specialist Group for the International Union for Conservation of Nature. It “would have disastrous effects on our global efforts to prevent and mitigate the impacts of invasive species,” he says. “Not only would it significantly reduce the research on invasion biology, but it would also deprive the decision makers of an important source of scientific knowledge to base their decision on”.
Land governance and administrationAn important series of videos have been produced through an inter-institutional collaboration between the University of Cape Town and the University of the Western Cape, with input from civil society.
The video series was an initiative of the Land Network National Engagement Strategy (LandNNES) in South Africa, which approached Dr Simon Hull, a senior lecturer in UCT School of Architecture, Planning and Geomatics to help conceptualise and produce the videos. Dr Rosalie Kingwill, a leading tenure researcher in South Africa and Tshepo Fokane, principal researcher for the Alliance for Rural Democracy also contributed to the design of the series. The video content unpacks everything from land policy and land management, to land administration, land tenure, land rights and land development, as well as the overarching concepts of land governance and land information.
Professors Kirsten and Vink writing in Business Day (5 October 2020) pick up on a judgement in the Gauteng High Court on 20 August, which could have important implications for South Africa’s land reform programme. This follows a 22 year delay in the promulgation of the Subdivision of Agricultural Land Act Repeal Act (Act 64 of 1998). The South African President never signed the Repeal Act into law, which means that agricultural land can only be subdivided with the approval of the relevant minister. The authors argue:
Without these restrictions on subdivision, there could be many opportunities for commercial farming operators to contribute to or donate land for the land reform programme… Getting rid of the restrictions on subdivision, but finding a sensible mechanism to protect high potential agricultural land, could facilitate access to land for many disenfranchised and disempowered communities in South Africa.
The contestation around the Ingonyama Trust continues with the most recent development being the Minister’s authorisation of a forensic investigation into the finances of the Trust and to investigate allegations that the chairperson Jerome Ngwenya used the public entity to enrich himself. Specialist writer on land issues for the Mail and Guardian, Paddy Harper (13 October 2020) reports however that the chairman has refused to accept the Minister’s authority to appoint the investigation, saying that he is only accountable to King Goodwill Zwelethini. The ITB receives around R22 million a year from the government, but takes in around 90 million Rand in revenue from commercial and residential leases and mining rights. The ITB is facing court proceedings challenging its rights to levy residential leases to people living on communal land managed by the Trust.
Harper reports that the Trust chairperson has extensive business interests and that one of his companies runs a service station on land leased from the ITB. According to the 2017/ 18 ITB Annual Report, Ngwenya owed R280,000 in unpaid rentals for the property which it occupied since 2015.
Athandiwa Saba, also writing for the Mail and Guardian (9 October 2020) reports how a local municipality in the Free State sold land worth R60 million in 2018, but has yet to receive a cent from the sales. All indications point to the irregular use of state land and the allocation of valuable municipal resources to connected individuals.
Land policyAll those active in the land policy space were shocked to hear of the untimely death of the Chairperson of the African Farmers Association of South Africa, Dr Vuyo Mahlati. Dr Mahlati acted as the Chairperson of President Ramaphosa’s Land Reform and Agriculture Advisory Panel. She had also previously contributed to the work of the National Planning Commission and was President of the International Women’s Forum SA. A government spokesperson paid tribute to Dr Mahlati saying:
“The country has lost a great visionary leader who impacted many lives, embraced challenges and has had a profound effect on the future direction of South Africa, particularly on agriculture as land issues”.
In other developments the Minister of Agriculture Rural Development and Land Reform announced the release of 700 000 ha of state land for land redistribution. However no sooner than this announcement had been made than the questions started to be asked. Were there really 900 state owned farms which were vacant, idle and underutilised? Where was this land and did in fact the land already have people who occupied and made use of it? Prof Ruth Hall at the Institute for Poverty, Land and Agrarian Studies has questioned whether all the land set aside by government is in fact vacant. You can listen to an interview with her which appeared on TimesLive (6 October 2020). PLAAS also held a webinar hosted by Katlego Ramantsima with Ruth Hall and Tshepo Fokane on 8 October interrogating the release of the state land. Many more stories appear on our website linked to this topic in both the land policy and the land redistribution sections.
Dr Roland Ngam, programme manager for climate justice and agroecological transformation at the Rosa Luxemburg Foundation, Southern Africa has questioned whether the release of the 700,000 ha was driven by political expediency with another round of elections just around the corner. He argues that going forward land reform needs to do things very differently, proposing that government adopts “a ‘big bang’ approach to transfer land to hundreds of thousands of previously disadvantaged people quickly”. Central to this strategy should be a process of “capping transferred farmland to 10 ha to 20 ha per plot, with a one off cash payment that beneficiaries can use from for a variety of things from building farmhouses, to buying inputs or farm implements”.
While this looks like an interesting proposal and consistent with research findings which suggest that people want small pieces of land, the key issue is where the land is located, in what agro-ecological zone, whether it has access to sufficient water, what can be produced on it, how will produce find access to informal and formal markets and so on. Another key question is what is the state of the infrastructure on state land which will be redistributed through a leasehold scheme?
Busisiwe Mgangxela from the Eastern Cape has written an important piece providing a view from the ground on just how difficult it is to access state land, and the likelihood that once the land is transferred, key assets would have been stripped. She reflects on the implications of the recent government decision to release thousands of hectares of state land for land reform in the light of her own experience. She provides a detailed first-hand account of her family’s struggle to access and lease state land through the land reform programme and the corruption and kickbacks entailed in the process.
Busisiwe’s account provides a treatise on how not to do land reform. Her argument is summarised on Twitter and available in full on our repository of open access resources. It also makes clear that land redistribution involves much more than the simple redistribution of land.
Land rights and miningTim Wegenast, a senior research fellow at the University of Konstanz in Germany writing in African Arguments reviews the received wisdom which says that the state should stay out of the resource extraction sector. However, he says that for some time various governments in Africa have been questioning this premise, observing the siphoning off of natural resources to international investors. Mining companies are frequently accused of tax evasion and corruption.
Research involving geospatial econometric analysis using novel data on control rights over gold, copper and diamond production within African states south of the Sahara, analysed the well-being of individuals living close to internationally-controlled mines, as compared to those living in the proximity of domestically-controlled mining projects. The research revealed that state-controlled extraction is associated with better access to clean water and medical services, higher educational attainment, greater food security and more nutritional diversity. The research found that state-run resource companies are more likely to improve socio-economic well-being than private firms. A key proviso is that there must be good governance, secure property rights and low corruption – clearly a challenge for contemporary South Africa.
At home, investigations into the viability of rehabilitating mined land for agricultural purposes are underway (Creamer Medias Mining Weekly 25 September 2020). JSC listed coal miner, Exxaro Resources says it is in search of proactive solutions to challenges facing mining affected communities. The company is exploring the development of a ‘minerals succession process’ which maps potential agri-economy opportunities in communities. The company’s land management goals for 2026 including transfer 90% post-mining land to emerging farmers in local communities, while creating strategic partnerships with farmers to advance these agri-economies. The article explores possibilities for the mining industry to become a catalyst for increased agricultural development in South Africa which impacts beneficially on the livelihoods of those in mining affected communities. Given the predominantly negative experiences of mining impacts on rural communities, this will be an interesting initiative to monitor. Its potential for success will no doubt depend significantly on its willingness to actively engage with mining affected communities.
Finally in a feelgood piece from GroundUp (6 October 2020) controversial Aussie mining executive, Mark Caruso is reportedly facing criminal charges of assault and burglary in Australia. In South Africa his company Mineral Commodities (commonly referred to as MRC) is involved in what promises to be a major legal battle over the expansion of mining operations along the West Coast. The company has sought to expand operations along 120 km of the West Coast on the basis of its existing limited mining right, rather than having to apply for new mining rights. This action is being opposed by the Centre for Environmental Rights, which has lodged a legal challenge to this expansion plan, which would have enormous environmental impacts.
RedistributionMuch of our coverage in the redistribution section over the past four weeks has focused on the release of state land and the processes individuals have to undergo to apply to access one of the released land portions. Questions have been raised about the leasehold provision, with some critics arguing that the land should be transferred in full ownership.
Overall there is scepticism about this move, with land analysts speculating that it is likely that much of the land for redistribution was land that was bought historically by the apartheid state as part of the process of consolidating the homelands, back in the 1970s and the 1980s. As Carol Paton has pointed out in Business Day (13 October 2020):
The catch is that much of this land is already occupied by communities and black farmers who have been there for many years… The big question is who will get the farms?…
Paton concludes that:
It will be robbery of the rural poor and a danger to future prosperity if South Africa continues along the path it is laid, leasing land to the well-off and ignoring the real land hunger out there.
While agribusiness declares itself to be in support of the release of state land, they have expressed concern about the potential state of the infrastructure on these farms, which in its view required an assessment and an upgrade where necessary, before new beneficiaries take over the farms (IOL 6 October 2020). Agbiz expressed concern with government proposals that that the farms would be issued with a non-tradable 30-year lease, which would prevent them using the land as collateral to access production finance.
RestitutionIn restitution news, a restitution claim in Simon’s town is reported to have been settled. (The South African 3 October 2020) People from the Luyolo community in Simon’s town were forcibly removed in the 1960s. The Dido Valley housing development in Cape Town’s Southern Peninsula is reportedly reserving 100 of its 600 subsidised units for verified land claimants.
Meanwhile former Minister of Land Reform with responsibility for land restitution, Nkoana-Mashabane failed again in her bid to have the personal costs order set aside by the Land Claims Court. Acting Judge Tembeka Ngcukaitobi SC of the Land Claims Court quashed her appeal. (Daily Maverick 6 October 2020)
“The court granted a personal costs order against her – making this the third personal costs order in favour of the District Six Working Committee following her reckless and negligent behaviour while she was Minister of Land Affairs,” said Nicki van’t Riet, a lawyer from Norton Rose Fulbright, who took on the case pro bono for the committee.
Urban landAs usual our urban land pages are filled with numerous stories – too many of them to mention in detail here. We briefly select a few highlights from the past four weeks.
As reported in previous reviews the City of Cape Town has not been doing well in the courts when it comes to its evictions policy. The City has opted to petition the Supreme Court of Appeal over the earlier land invasion eviction judgement which prevents the City from clearing illegally built unoccupied shacks without a court order.
At the same time a High Court judge says the City tried to use bylaws as a quick fix to evict a group of people living on the pavements in Observatory, Cape Town. The group had previously occupied the vacant Arcadia Place Old Age Home from which they had been evicted in October 2019 (Ground up 8 October 2020). The Judge found that the group should have been deemed as occupiers, recognised in terms of the Prevention of Illegal Eviction and Occupation of Land Act (PIE) which required a High Court process to be initiated in order to evict them.
IOL, (14 October 2020) reports that the city has allocated R16 million for private security to prevent land invasions. The same article reported that since July 2020, the City has overseen the clearing of 27,000 illegally occupied plots. It has demolished nearly 60,000 structures during anti-land invasion actions since 11 July. Mayco member for Human Settlements Malusi Booi said that “Cape Town had experienced hundreds of organised, well funded and orchestrated unlawful occupations in 2020 already”.
The shack dwellers movement Abahlali base Mjondolo celebrated its 15th anniversary. The movement reports an audited membership of just over 80,000 members in five provinces and is backed by large network of sympathetic lawyers, clerics and academics which makes the movement a powerful force in the urban land sector. (Daily Maverick 12 October 2020)
Africa land newsThere is a wide variety of news items covered on our Africa land news pages.
Land News: Weeks 34 – 38 17 August – 20 September, 2020The changing Covid contextAs of the 24th September 2020 South Africa’s official Covid-19 figures were a cumulative total 667 049 positive identified cases with 16 283 deaths and a recovery rate of 89.3%. However according to radically different estimates Dr Ryan Noach CEO of Discovery Health estimates that 13 million South Africans have actually been infected. The Discovery team based their estimates on the high number of 42,000 ‘excess natural deaths’ reported by the Medical Research Council. Drawing on this data Discovery estimates that there have been around 37,000 deaths in total. However, the good news is that rates of infection are on the decline.
Turning now to land related news for the period under review.
ExpropriationENCA reported (16 Sept 2020) that Afriforum was back in the courts seeking to challenge the Parliamentary report which opened the door for expropriation without compensation. Apparently Afriforum seeks to belatedly argue that the 2018 report was unconstitutional because it allegedly excluded more than 170,000 submissions which rejected amendment of the Constitution. Advocate Tembeka Ngcukaitobi arguing on behalf of Parliament stated that Afriforum’s bid to have the report declared invalid was a “wholly pointless exercise as the report was not binding on anybody”.
FarmworkersFarmworker retrenchment, evictions and the persistence of the dop system in the form of unethically cheap wine sales have featured in the news during this period.
In the Eastern Cape, DispatchLive (22 August 2020) reported on a Kei Road family threatened with unlawful eviction. This follows the purchase of the farm where they lived by the husband of the MEC For Transport, Safety and Liaison in the province who is alleged to have threatened to bulldoze the home of the Moyeni family who live on the farm. It is interesting to note that an earlier bid to apply Section 4 of the Extension of Security of Tenure Act to purchase the land on behalf of the farm dweller family had been turned down.
A subsequent article published in DispatchLive (8 Sept) indicated that the Deputy Minister of Agriculture, Land Reform and Rural Development had intervened to find “an amicable solution to the impasse” – a somewhat strange response given that the Department is constitutionally bound to protect the rights of the occupiers in terms of ESTA. Hopefully DispatchLive will print a follow up story to monitor the results of the Minister’s intervention.
Anna Majavu writing in New Frame (25th of August 2020) exposes how land redistribution has led to the eviction of an 88-year-old woman who had lived and worked on the property for decades. According to the article the new owner just arrived and straightaway told the farmworker family to leave:
“He didn’t even have a meeting with us. He just told me I am old so I cannot work. I must look for a house in the location. He said if we stayed, we would probably make a land claim, so we had to get out”.
All of this provides further evidence of the ways in which land reform is failing to benefit poorer and more vulnerable households and may even be deepening the likelihood of their displacement by more wealthy and better politically connected citizens.
In other news, Food for Mzansi (10 Sept 2020) reports there is rising resistance from some actors in the wine sector to the continued sale and distribution of very cheap wine in unbranded packaging for under R20 a litre. In 2019 42,000,000 litres of cheap wine, or a total of 5% of total wine production was sold in plastic containers. Alex Milner of Natte Valleij Estate argues that:
“Unethically cheap booze must go, we won’t see the difference tomorrow, but in 20 years we will be in a far better space on all social fronts”.
However, Colette Solomons co-director of Women on Farms says that the more fundamental question that the industry should be addressing is its legal, financial and moral responsibility for the intergenerational legacy of the dop system.
In related news IOL (30th of August 2020) reported that black women in the South African wine industry marched to Parliament to protest against the economic exclusion of their businesses during the development of a national wine industry strategy. They demanded an urgent high-level intervention from the government stating that:
“The department is not supporting black wine businesses in South Africa and is largely to be blamed for the slow transformation in the sector”.
Food securityWith the ongoing food insecurity as a consequence of the COVID-19 pandemic there have been numerous news stories about how smallholder farmers and gardeners are producing produce for sale and own consumption. Despite this, the not-for-profit food redistribution organisation Food Forward SA has pointed to the rising numbers of vulnerable people needing access to food. This was corroborated by a Parliamentary reply in September which suggested that they were unprecedented levels of hunger being experienced by people in KwaZulu Natal where an estimated 24.5% of people living in the province were reported as being food insecure.
Meanwhile a recent BFAP report has predicted that although the farming sector recorded growth of 27, 8% in the first quarter of 2020, South African agriculture was likely to obtain more modest levels of growth going forward. BFAP also indicated that there were large gaps in the available agricultural production data, particularly when it came to the contribution of smallholder farmers to the informal agricultural economy in South Africa. BFAP cites a recent study undertaken for the South African Pork Producers Organisation which estimated that the total informal pig herd comprised almost 900,000 animals with an estimated value of R1.2 billion which generated the equivalent of 29,550 livelihoods.
AgriSA Economist Dr Tracy Davids has highlighted how the margins for field crops in particular are coming under increasing pressure, requiring sustainable productivity gains, rotation systems and diversification. However it seems that the real conversation about the cumulative impacts of industrialised, chemicalised, genetically manipulated farming systems has yet to seriously begin in South Africa. It seems that we have some way to go before the lessons from the pandemic (or the ‘syndemic’ as the Lancet has recently characterisied it) are fully absorbed and the linkages between climate change, production and food systems, hunger, poverty and inequality are better understood.
In the third week of August it was announced that the COVID-19 farmer support vouchers will be extended for another month to 30th of September. The Department of Agriculture, Land Reform and Rural Development reported experiencing delays in the printing of vouchers which meant that many farmers were not able to redeem these in time. By the end of August Minister Thoko Didiza reported that approximately 15,000 farmers had already received vouchers from the relief fund.
On 8th September BizCommunity reported that the department had set aside one hundred million rand for a COVID-19 grant scheme available through the Land Bank to smallholder farmers who have loans to pay, but who are in financial distress as a consequence of the pandemic. The maximum that a single client may access for this non-repayable financial support is limited to R2 million. Application for this funding is open until the 16th of October 2020. However, it was noted “over indebted customers and those with distressed accounts due to other reasons which are not COVID-19 related will be excluded from the support”. Careful oversight will be needed for this initiative as state bailouts quickly become a site for patronage and capture.
Land governance and administrationThe Cape Town Deeds Office which has been frequently in the news in recent months due to repeated closures as a consequence of the pandemic has reported that it is now engaging on a major upgrade of its IT system to try and address backlogs in property transfers. The new initiative is designed to assist officials to work and inspect documents from home.
In other news (IOL 10 September 2020) the minister revealed that the department has paid R3.9 million to 2 top officials who are on suspension in the office of the Surveyor General. Both officials are reportedly facing disciplinary action and the matter has been set down more than three times but did not proceed. In the meantime, the officials remain on full pay and benefits.
The troubled Ingonyama Trust continues to make the news. In one of the more recent developments the chairperson of the board Jerome Ngwenya has been asked by Chief Justice Mogoeng Mogoeng to desist from calling himself a judge. Apparently Ngwenya had been appointed as a judge in 2000 but had subsequently resigned. He had later re-applied, but his application had been unsuccessful. Ngwenya was recently re-appointed as chairperson of an interim board from the 1st of September as the Royal Nominee.
Land ownershipPopular historian Patric Tariq Mellet has recently brought out a new book entitled The lie of 1652: a decolonised history of land published by Tafelberg. According to publicity materials the author “retells and debunks establish precolonial and colonial land dispossession history. He provides a radically new, fresh perspective on South African history and highlights 176 years of San/Khoe colonial resistance”. Mellet provides insightful critique on contemporary South Africa so his rendering of this contested history will be valuable.
Land policyDeputy President David Mabuza recently announced that government plans to undertake an assessment of failed land reform projects. When the president Cyril Ramaphosa came to power, he stated that there was a need for a census of land reform projects to determine their current status. However, this seemed to fall off the policy agenda for a long period and perhaps has now been reinstated. The report will no doubt cost millions of rand to produce. Of course, the big questions will be
Land rights and miningKevin Bloom writing in the Daily Maverick (21 August 2020) tries to wade through the labyrinthine complexity to unravel the case of the missing millions of the Bapo Ba Mogale. This case involves a community investment company which made a secret and ultimately fraudulent deal to swap the 12% annual royalties from the platinum mines on the Bapo land for a once off hundred million rand in cash and R540 million in equity from Lonmin plc. However, the deal was never endorsed by the community. Thereafter almost all the money disappeared and to date no-one has been held accountable (Where might you have heard this before?)
Mining is an extremely murky sector and Dr Mpho Tsepiso Tlale, a Daily Maverick opinionista provides important perspectives on the legal status of mining on communal land (28 August 2020) examining the relationship between the MPRDA and IPILRA. The full version of her analysis is available through the Potchefstroom Electronic Law Journal.
Perhaps the most sobering story in recent weeks (Daily Maverick 14 Sept) recounts how since 2016 there have been at least 38 assassinations and 14 attempted assassinations in mining localities in KwaZulu Natal. The article examines the situation at Epembeni near Richards Bay. Back in 2017 the local traditional authority informed residents that some people would have to move because of a mining project which had been approved by the King. When local residents and activists sought clarity about the mining project and to resist their removal a ruthless wave of assassinations began. The elite compacts which form around mining opportunities seem to follow the same script:
“Attacks on farms threaten the food security, employment figures and the economy of our country. Both farmworkers and farm owners are equal importance in the agricultural chain”.
At the same time the Portfolio Committee cautioned against labeling farm attacks as racial crimes, noting that black and white commercial farmers and farmworkers have been victims of such attacks. (IOL 2 Sept 2020)
AgriSA is reported to have welcomed the “considerable attention” being given by government to crime and murder on farms in recent months. (IOL 3 September 2020) This includes a plan recently developed by an inter-ministerial committee to improve rural safety. (IOL 15 September 2020).
Urban landOur urban land pages have been particularly busy in recent weeks and we can only attempt a brief summary of the many stories featured there.
African land newsZimbabweZANU PF’s decided earlier in August to compensate white farmers who lost their land in Zimbabwe as a consequence of the ‘fast track land reform programme’. This decision and responses to it have dominated the African news pages.
Moneyweb (01 Sept 2020) reported that foreign farmers could apply to get back land which had been seized and which had been protected by investment agreements. If this proved to be impracticable they could be offered land elsewhere.
Three days later the BBC asked whether Zimbabwe was “extending an olive branch to white farmers” with its offers to pay for land which was seized 20 years before. The BBC noted that this move was designed to bring an end to sanctions and mend relations with the west.
The Daily Maverick subsequently reported what many people suspected – that Zimbabwe would be unable to afford to pay the billions to former white commercial farmers and that they were now going to offer land instead. (4 September 2020). This option was not well received. AllAfrica (4 September 2020) quoted a farmer stating that most former white land owners wanted cash compensation as opposed to getting land back arguing that farm infrastructure had been destroyed and assets stripped in many instances.
The Zimbabwe Mail (7 September 2020) reported that thousands of farmworkers who had been dispossessed and made jobless as a consequence of fast track land reform were unhappy that no consideration had been given to them in compensation agreements.
Then just as it looked that in Zimbabwe was making progress in its bid to re-establish economic ties and remove sanctions the media carried stories on ongoing land grabs
Clearly there is a long road to be travelled before there is final resolution to the land issue in Zimbabwe.
See our African land news pages for coverage of:
Farm workersNews24 (13 August 2020) reports on the anticipated retrenchment of permanent workers in the farming sector as a consequence of Covid 19. Women on Farms Director Carmen Louw was presenting as part of a webinar hosted by the Centre of Excellence in Food Security in which she examined the impacts of lockdown and the alcohol ban, particularly on the wine sector. A depressed wine sector would also result in limited employment opportunities and greater uncertainty for seasonal workers. WFP made the case for the introduction of the Basic Income Grant to cushion the impacts of the pandemic on households affected by unemployment and food insecurity.
Land governance and administrationThe ongoing closure of the deeds office in Cape Town continued to make the news with the Western Cape Minister of Finance and Economic Opportunities calling on the Minister of Agriculture, Rural Development and Land Reform to intervene. The MEC highlighted the negative impact the closure of the deeds office was having on the property and real estate industry in the Western Cape. BizNews (12 August 2020) reported that the deeds office was facing challenges in that many of the staff employed there were unable to work from home, lacking Internet connectivity and the ability to access online systems. The following day IOL (13 August 2020) reported that the Minister had intervened to address the challenges faced by the deeds office in Cape Town. The Minister spoke of a plan to put in place emergency measures to improve social distancing and safety of staff on the deeds office premises, and to provide tools and equipment to enable staff to work from home more effectively.
However perhaps the most sobering story of the week was carried in GroundUp (13 August 2020). Bernard Chiguvare records the fate of the inhabitants of 33 villages which were affected by the construction of the R373 million Nandomi dam near Thohoyandou in Limpopo in 1998. According to GroundUp some 405 homesteads from 33 villages had to be relocated, losing land and livelihoods in the process. When compensation was not paid in full villagers approached the Public Protector who issued an 81 page report in 2009. Despite the intervention of the PP the majority of the complaints still remain unresolved, leaving people frustrated and angry.
“If the department does not compensate us soon then we are going to open all dam valves and let the water out. Maybe that is the language the department understands better.”
As has been pointed out by numerous commentators the real victims of expropriation without compensation in South Africa have largely been poor black South Africans who have lost land and houses due to mining activity and large dam construction. In 2019 it was reported that most villagers in Limpopo’s Vhembe district municipality were without water. These included those villages which were on the banks of the dam.
RestitutionFurther stories were published this week on a contested land claim lodged by different clans of the Mamahule in 1996. News24 (14 August 2020) carried an update on the complex dispute.
In 1996, the Mojapelo clan lodged a claim for the entire Kalkfontein farm in terms of the Restitution of Land Rights Act. Part of the farms were restored to different clans except for portion 41. In 2015 the Mojapelo clan claimed portion 41 as its own and… started to demarcate residential sites which was sold to unsuspecting members of the public.
Unfortunately, like most of the stories published on this land dispute the reader finishes the article without much further enlightenment on the background and facts of the case.
In other Restitution related news the Southern African Agri Initiative (SAAI) released a media statement on Politicsweb (14 August 2020) expressing concern about “the number of land claims actively processed in the run-up to the 2021 local elections”. SAAI chairperson Theo de Jager expressed concern about the lack of transparency in the process and the unavailability of key documents including claim forms and research reports assessing the validity of the claims and promised the support of SAAI to land owners whose property is under claim.
The SAAI website contains an agricultural manifesto which states that it is “not a traditional agricultural union, but rather a network based on cooperation and the application of modern technology and pure principles”. Presumably, the latter relates to the statement that the network is “unashamedly based on Christian values” while “irrefutably believing in democratic principles without discrimination based on race, riches, age, descent, language or gender”.
According to the SAAI website, De Jager was re-elected as president of the ‘World Agricultural Organisation’ (WAO) in Luxembourg in 2019. Internet searches by KB.L failed to identify any further information about this organisation. However, after some digging it turns out De Jager is actually President of the World Farmers Organisation. According the FAO’s Family Farming Knowledge Platform the WFO is involved in the following areas of work: Agroecology, Farming typologies, Food chains, Indigenous peoples and Mountain farming – categories which makes WFO sound more like Via Campesina! (This most likely reflects the limitations of standard vocabularies used by FAO and other international agencies to describe and categorise organisations and land issues for ease of data sharing).
So what is the WFO? Its website describes it as a member-based association, bringing together national farmers’ organizations and agricultural cooperatives from all over the world. According to the WFO strategic plan, the WFO was established in 2011 and by 2016 had grown to represent 71 farmers organisations from 49 countries. Its members include including AFASA and AgriSA from South Africa.
De Jager was apparently nominated for a second term by the Zimbabwe Commercial Farmers Union of which he is an honorary member. De Jager’s re-election to the WFO was welcomed by Afriforum which also refers to the non-existent WAO. Afriforum reported that they were working together with SAAI to address “issues of common interest – such as farm security and opposing expropriation without compensation”. According to the Citizen (8 July 2020) De Jager recently endorsed a call by AfriForum’s head of community safety Ian Cameron who stated that “It is time that we encourage our rural communities to fight back and arm themselves”. De Jager is also reported to have called for a Commission of Enquiry into farm attacks.
Traditional leadersAn ongoing dispute over the chairmanship of the Eastern Cape House of Traditional Leaders continues. Nkosi Mwelo Nonkonyana recently obtained an interim court order challenging his removal from the position and interdicting the house from appointing a new chairperson. (News24 11 August 2020).
Urban landNews reported on our urban land pages continues to feature clashes over access to land and housing ranging from Soshanguve to Du Noon and Duduza. The Citizen (12 August 2020) reports on how some 2000 people were evicted after illegally occupying the Fleurhof housing development after they occupied flats built as social rental housing in Johannnesburg.
Minister Lindiwe Sisulu said that “the illegal act of taking occupation of housing units in Fleurhof with the express intent of coercing government into providing housing for illegal invaders, on a preferential basis, will never be tolerated”.
“Government will not tolerate those who seek to set back development and undermine the rights of other deserving people who have been on the database for many years waiting for their houses.
Africa land newsA wide range of articles can be found on our Africa land news pages. The most recent include:
Weeks 31 – 32: Monday 27 July – Sunday, 11 August 2020Our changing Covid-19 contextAs of 10th August 2020, South Africa had 563 598 cumulative cases of Covid-19 with 10 671 fatalities. Gauteng has taken over from the Western Cape as the epicentre of the virus in South Africa. KwaZulu-Natal has now overtaken the Eastern Cape as the two other most affected provinces. According to the TIPs Economy and Pandemic Tracker, new cases continued their downward trend in the past two weeks. As of 9th August, they were over 40% lower than at their peak in mid-July. However, because deaths typically have a three-week lag time from date of infection, fatalities have increased by over 50% in the last two weeks across the country.
Farm workersGroundUp (5 August 2020) reports on the perennial problem of evictions from farms. At an online webinar organised by the NGO Women on Farms, evicted farmworkers spoke about the trauma of eviction and the many hardships they have faced including a lack of alternative and safe housing. This remains a stubborn systemic problem which the state has failed to address. Back in 2017 the report of the High-Level Panel noted that evictions have continued “despite laws that were meant to curtail them”.
The HLP found that:
Evictions, which require a court order, can only be achieved under two circumstances. Firstly, if the occupier breaches his contract of residence by causing unlawful damage to property or persons on the land, by intimidating and threatening other occupiers, and by assisting the unlawful occupation of private land. Secondly evictions are allowed if the relationship between employer and employee has collapsed and cannot be repaired. (Pp 288- 289)
The HLP also found that laws and provisions (ESTA Section 4) that require the Minister of Rural Development and Land Reform to provide independent land rights to farm workers (in on-farm and off farm settlements) are not complied with. The Department has acknowledged that implementation of ESTA has been undermined by “a total system failure”. It is this failure that has to be addressed if equitable solutions are to be found. Solution finding has to simultaneously engage to counter other factors which adversely impact on farm labour as a consequence of the rapidly changing global food and agricultural economic systems.
Evictions already have immense social impacts under ‘ordinary circumstances’. However, in the context of Covid 19, evicted households are placed at substantially increased risk. It has been convincingly argued that poverty and inequality in South Africa are “deeply racialised, gendered and spatialised”. Where people are evicted with no alternatives other than temporary accommodation in densely settled informal settlements, they are unable to socially distance. Inadequate access to water and sanitation increases the risk of infection and accelerated community transmission with impacts that stretch far beyond the local communities in question.
In a case currently before the Western Cape High Court, Advocate Pete Haythorn has asked that the Court order the Drakenstein municipality to report to it on the steps that it is taking to address the plight of evicted farmworkers.
The Municipality must be required to set out what steps it is taking to address the situation. In a report it should provide timelines so that it can be held to account, as to when those steps will be taken.
Such a measure can be seen as a mark of desperation. Overall while an increasingly common strategy, it remains questionable as to whether it is the function of the Courts to oversee the work of municipalities so as to ensure that they fulfill their constitutionally mandated functions. There is mounting evidence across the country where government departments and ministers been found to be in contempt of repeated court orders, without sanction or consequence. This highlights the depth of dysfunction undermining governance and service delivery across the country.
Food securityXolisa Philip writing an op-ed in the business Maverick (30 July 2020) highlights the counterintuitive budget cuts outlined in the Ministry of Agriculture Land Reform and Rural Development’s budget adjustment presentation to the Portfolio Committee in Parliament. This includes a total of R1.9 billion to be cut from the department’s food security, land redistribution and restitution programmes. The remainder of the budget cuts impact on the AgriBEE fund which essentially means that transformation in the agricultural sector “will take a back seat”. Philip also notes concerns about the plight of 40,000 small-scale farmers who applied for Covid 19 relief and whose applications were rejected.
Creamer Media’s Engineering News (31 July 2020) reports on how South Africa’s National Solidarity fund is seeking to enhance its efforts to provide relief to those affected by the Covid 19 pandemic. According to the article the fund has set aside R175 million for the second phase of its food relief programme and is in the final stages of planning its food voucher rollout to both urban and rural people in need. Simultaneously it is reported to be making preparations to roll out farming input vouchers to rural communities.
Again, the question remains whether a voucher system is the best way to go. Globally cash transfers are considered to be the most effective way to reach poor households – more effective than food distribution and less open (although not immune) to corruption. Direct cash transfers also limit the siphoning off of funds by middlemen, who take their slice along the fund transfer chain.
Wandile Sihlobo reiterates his argument that South Africa needs to refocus its vision of agricultural development based on chapter 6 of the National Development Plan, and that any future development must address underutilised land in communal areas and on land transferred through land reform. He advocates a private sector led model based on joint ventures which he argues is key to recovery and the rebuilding of a post Covid 19 economy. However the article fails to acknowledge the negligible benefits provided for land reform beneficiaries and farmworkers involved in joint venture partners to date. The lessons from the Covid 19 pandemic and the related threats of climate change suggest that new thinking is required across-the-board on sustainable food and production systems and the development of new inclusive business development models.
Minister Didiza recently presented to the African Union Agricultural Ministers noting that:
We should, while dealing with the immediate challenges visited upon us by COVID-19, also appreciate the window of opportunity that COVID-19 has provided for us to reimagine, reset and reposition our agriculture post this disaster.
Presenting at the same meeting Minister Patel recorded at the African continent imported agricultural products to the value of R1.14 trillion in 2019 and runs an agricultural trade deficit with the rest of the world of some R380 billion – a deficit that was projected to widen over the next 10 years.
African countries are learning the hard lesson that we cannot simply remain exporters of raw materials and importers of medical supplies and food products.
Land governance and administrationThe Mail and Guardian (2 August 2020) reported on moves by the Ingonyama Trust Board to retrench 50 workers employed by the trust including both the CEO and the Chief Financial Officer, effectively rendering the trust without capacity to fulfil its functions. It seems as if this is an exercise in brinkmanship in response to government withholding of the Trust’s budget allocation, due to its failure to submit its annual report, financial reports and performance planned by the end of the financial year. Perhaps it provides the opportunity to act on recommendations of government commissions to fundamentally review the legal mandate, operations and management of the ITB.
In response to multiple shutdowns of the Cape Town Deeds Office there have been calls to digitise deeds registration in South Africa “placing the deeds registration process on virtual platforms underpinned by block chain technology”. (IOL 6 August 2020). According to critics in the property sector this would help to address the now substantial backlog of almost 12,000 unresolved transfers lodged between 12 May and 3 June 2020. This backlog can be expected to have risen further in the interim.
RestitutionIn the past two weeks there have been numerous (and partially reported) stories on a contested land claim lodged by different clans of the Mamahule in 1996. The case came before the Constitutional Court in 2017 and the Court Judgment provides some essential background on the matter, all of which points to fundamental problems with the land restitution process.
During May 1996 the second applicant, the Mamahule Community, together with the Mothiba, Tholongwe, Mothapo and Mojapelo communities, lodged claims in terms of the Restitution of Land Rights Act (Restitution Act) for the restitution of five farms in Limpopo Province. The farms included Kalkfontein 1001 LS (farm). A settlement agreement was drafted in accordance with the provisions of section 42D of the Restitution Act. The agreement was never signed as the second applicant approached the Land Claims Court to contest the beneficiaries in the claimants’ verification list. That dispute remains unresolved by the Land Claims Court. Whilst resolution was pending, the community started demarcating and allocating plots on the farm.
This precipitated an application in the High Court of South Africa, Gauteng Division, Pretoria by the Minister of Rural Development and Land Reform (Minister) against the community. The Minister sought orders interdicting the demarcation and allocation of plots; declaring that the members of the community were unlawful occupiers as defined in PIE; and evicting the community from the farm. That application was settled, with the community making an undertaking to desist from their conduct. Notwithstanding this, the demarcation and allocation of plots continued.
The Constitutional Court Judgment (CCT179/16)  declared that the Mamahule Communal Property Association, the Mamahule Community, the Mamahule Traditional Authority and Occupiers of the farm Kalkfontein 1001 LS are unlawful occupiers of the farm.
However, the back story to this case still remains frustratingly unclear and the question remains is how the dispute around the section 42D agreement remained unresolved for so long, leaving the door open to people occupying the land under claim.
This unresolved land claim has precipitated an increasingly tense conflict over the rights of access, occupation and illegal construction of houses on Kalkfontein 1001 LS also known as Ramathlodi Park, Mamahule or Morena Seaka View. The case is crying out for some in-depth research to establish the facts and to identify lessons for the restitution process.
Urban landNews reporting on our urban land pages continues to be dominated by the contestation between metro councils and people occupying land to construct shacks. One story this week captures this best of all. Karabo Mafolo writing on land matters in the Daily Maverick (7 August 2020) delivers some of what we need to understand behind the headlines.
For five years, Nyameka Mantambo and her five children were backyard dwellers in Town 2 in Khayelitsha. When the Covid-19 lockdown was enforced in late March, she was unable to pay her monthly R500 rent. After she was evicted, Mantambo built a shack at Empolweni, on City-owned land. In April, when shacks were demolished there, she and the other residents were left homeless.
No neat binaries in this story of a woman with five children evicted from a backyard shack. Although evicted shack dwellers won a court case requiring the city to return their building materials, Mantambo never received her allocation as the materials distributed were captured by more powerful individuals. These same people then seek to extort R1000 from the woman to ‘give’ her a piece of land on which to rebuild.
A community leader subsequently sold her shack for R2500 elsewhere in Khayelitsha which Mantambo is paying off monthly. And yes, not everyone is out to steal and extort. Mantambo reports how people in eThembeni have helped her and her children with food and other needs.
The urban land struggles being waged across the country give new meaning to the statement ‘when complex is as simple as it gets’. Mantambo’s story and many others reported on our urban land pages highlight the accelerating chasm which is opening up between national housing policy and the needs of poor South Africans to access land and livelihoods in the city.
African land newsA wide range of articles can be found on our Africa land news pages. These report on:
Weeks 26 – 30 : Monday 22 June – Sunday, 26 July 2020
Our changing Covid-19 context
As of Sunday 26 July 2020, South Africa had 445 433 cumulative cases of Covid-19 with 6769 fatalities. Gauteng has taken over from the Western Cape as the epicentre of the virus in South Africa. The Eastern Cape and KwaZulu-Natal are the two other most affected provinces.
However significant doubts have been raised concerning the accuracy of the Covid-19 data. A report by the Medical Research Council has highlighted that between 6 May and 14 July 2020 there has been an excess of 17,019 deaths of people over one year old from natural causes. The number of excess deaths per week is calculated as the number of all-cause deaths in that week, less the number that might be assumed to have occurred had the Covid 19 epidemic not been in force. For people aged between 1-59 years the excess deaths number is 5899 while the excess deaths for people age 60 and above are 11,175.
Farm workers have not featured prominently in our news pages in the past four weeks. Some of the stories making the news include the long-standing contestation between rival factions in the Food and Allied workers Union which represents many farmworkers. The Mail and Guardian (22 June 2020) reported that FAWU had fired its Deputy General Secretary again. The union has been planning to hold a Congress, however Covid 19 has prevented this from taking place.
Ground up (10 July 2020) reports on the plight of farmworkers who had been relocated from Soetendaal farm five years previously to an informal settlement in Wellington. Evicted farmworkers have faced many difficulties including shack fires which have seen their possessions destroyed, together with rising crime levels in the New Rest informal settlement where they were relocated by the Drakenstein municipality. Many shacks had since been built around them as the informal settlement continues to expand. This prompted one of the evicted used to remark that “we lived better on farms”.
As the Covid 19 pandemic has dramatically increased levels of joblessness and eroded informal sector incomes, the majority of the South African population have faced increasingly severe food insecurity. During this period concerns have been raised that food safety might also be at risk and that this needed to be avoided at all costs as South Africa could not afford another food borne disease outbreak like the listeriosis cases in 2017 (BizCommunity 22 June).
Health eNews (26 June 2020) highlighted that food insecurity and nutrition are very closely linked. Food insecurity is not simply an absence of food to eat, but crucially of nutritious food contributing to good health. The stark inequalities in South African society have impacted on people’s diets, resulting in undernutrition and stunting children. Undernutrition has also contributed to the rising incidence of obesity and a range of other noncommunicable diseases.
In KwaZulu-Natal (IOL 29 June) there was speculation that the increasing numbers of farm attacks could in part be attributed to mounting food insecurity. This was not something that could be prevented by investment in policing alone, and would require addressing the root causes of poverty and food insecurity in the country, both in the context of Covid 19 and more broadly.
The Farmer’s weekly (2 July 2020) reported that the Agricultural Research Council was R138 million in debt, and planned to cut a thousand jobs.
Several stories focused on the inadequacy of Covid-19 relief to small farmers, with one farmer interviewed in IOL (5 July 2020) describing the support as ‘pitiable’. The Department of Agriculture, Land Reform and Rural Development responded by arguing that the relief packages to farmers were not intended to provide comprehensive support. In a related story in Food for Mzansi (7 July 2020) small-scale and communal farmers who were interviewed alleged that the vendors who had been approved by government to honour relief vouchers, were profiteering by substantially increasing their mark-ups on the inputs that farmers can buy with their vouchers.
The relief to small farmers has also taken place against the backdrop of significant budget cuts, which have impacted severely on the ability of government to push forward with the land reform programme.
Also in this category, several stories focused on the resignation of the Agriculture DG. The Farmer’s ‘Weekly (03 July 2020) published a story stating that it was the DG’s frustration with the “lack of a work ethic” within the agriculture department which had prompted him to resign. However it was not long before this version of events was challenged and stories emerged about a Public Service Commission investigation in November 2019, which had come to a very different conclusion (Uncensored Opinion). This found that the DG had displayed an “overall failure and lack of leadership” in his management of the Department and that he had failed to implement recommendations contained in forensic reports, or manage conflicts of interest that he was associated with. A former Deputy Director-General released a media statement which revealed an alarming state of affairs within the Department, indicative of factional political affiliations which had come to dominate the department’s work.
There have been a number of Op-Eds on the topic of how to get agriculture growing after Covid 19. Wandile Sihlobo, prolific columnist and advocate for private sector led land reform (Daily Maverick 14 July 2020) has argued that part of the solution lies in getting underutilised arable land in the former bantustans back in production. How to do this remains the challenge. Miyelani Mkhabela (IOL 13 July 2020) also argues that a post Covid-19 landscape could provide the opportunity to “reshape national production through the development of rural agriculture and agro processing… Post Covid-19, nothing less than a revolution in rural sustainable development can prevent another crisis”.
Whatever needs to be done to get agriculture growing is going to have to deal with Covid 19 budget realities. National Treasury is proposing the introduction of zero-based budgeting which requires the departments will have to justify programme expenses, rather than simply going with historical budget lines. Denene Erasmus (Farmers Weekly 14 July 2020) proposes a number of cuts to the Department’s budget. These include R90 million allocated to the National Rural Youth Services Corps, R121 million allocated annually to the KwaZulu-Natal, Ingonyama Trust Board and R144 million allocated to the Office of the Valuer General. She also queries the value of the 4.4 billion Rand spent on employee salaries within what has probably been one of the worst performing departments in government. Erasmus asked whether money would be better spent on extension programs run by the private sector. A number of news outlets carried stories on the implication of the budget cuts for agriculture and land reform. See our KB.L food security page for more.
In one of the more dispiriting indicators of state failure, an article in Food for Mzansi (22 July 2020) revealed how the Department of Agriculture Rural Development and Land Reform had failed to award the three winners of the 2019 Youth in Agriculture Forestry And Fisheries their prize money totalling R400,000 – 200,000 for the winner and R100,000 each for the two runners-up. A sheepish spokesperson for the Minister offered the explanation that “the Department has since resorted to buying the winners agricultural inputs or equipment equivalent to their prize money. The process took longer than anticipated due to most of the suppliers identified by the winners not meeting the requirements”.
One of the prize winners is reportedly so fed up that he stated:
“I’ve already decided that I want nothing to do with the money. I know the money is owed to me, but seriously how long must I still wait? In farming you have to be quick. If I need fertilizer, I need it now. I can’t wait for two months because then it will be too late.
In an important op-ed in the Daily Maverick (22 July 2020) on the need for a new agro ecologically sound approach to farming Prof Raymond Auerbach highlighted how much agricultural research is out of step with the rapidly changing global environment and the impacts of climate change.
The bulk of research projects aim at genetic improvement for crops and animals, and short-term productivity through synthetic fertilisers and agrochemicals for crops, and hormones and antibiotics for animals.
This will not solve our food security challenges…If SA wants to achieve food and nutrition sustainability, agriculture policies will need to shift away from chemical subsidies to support for partnerships, mentorship, shorter value chains, increased biodiversity and a long-term approach to soil fertility and animal nutrition. Undoubtedly, agroecology has an important role to play in this process.
A recent report by the Economic Development Partnership (EDP) in the Western Cape has revealed the rising levels of hunger as a consequence of the Covid 19 lockdown, while there are diminishing levels of resources and support for community feeding schemes.
The Solidarity Fund distributed 31 579 food parcels in the Western Cape. The Western Cape Government has spent over R80m on humanitarian and food aid. The City of Cape Town has allocated R10m (albeit very slowly) to 55 NGOs for distribution of food parcels. Civil society organisations (CSOs), backed by private donors, provided over 3,1m meals and distributed 77 000 food parcels in the first 74 days of the lockdown (data compiled by the Western Cape Food Relief Coordination Forum).
In mid-June, in a survey of NGO members of the Western Cape NGO-Government Food Relief Coordination Forum, 89% indicated that they were experiencing an increase in requests for food in poor and vulnerable communities. At the same time, 70% indicated that they were experiencing dwindling resources, due to donor and volunteer fatigue.
Agri SA has called on government and the private sector to contribute to a one billion rand food drive initiative recognising the need for a massive collective effort to tackle food insecurity.
All around the country there are important initiatives to address food insecurity by donating food as well as providing stimulus for ‘grow your own’ initiatives. The Rhodes University Community Engagement programme has been distributing seedlings and the Victory Garden initiative with support from Food and Trees for Africa and partnering with the Assumption Development Centre.
Land governance and administration
July has not been a good month for the Ingonyama Trust. First GroundUp (17 July 2020) reported on how King Goodwill Zwelethini’s Ingonyama Trust has been prevented from taking control of 9,000 hectares of farmland in KwaZulu-Natal, worth almost 1 billion rand. The land claim was first lodged in 1998 by the Emakhasaneni, Entembeni, Mthonjaneni and Isizwe sakwa Dludla communities. The land will be registered in the name of Communal Property Associations, which are expected to hold and administer the land on behalf of the claimant communities. This was followed by an article in the Daily Maverick (21 July 2020) reporting on how Judge Jerome Ngwenya had pulled out of a Zoom meeting, where he was being questioned on the Ingonyama Trust’s adverse audit reports.
The Covid-19 pandemic is playing havoc with the operations of the Deeds Office, which has closed and reopened several times. IOL (19 July 2020) reports that there is currently a backlog of 14000 deeds awaiting transfer. This is said to have a major impact on the property market and real estate services.
The passing of former Ambassador to Denmark, Zindzi Mandela aged 59 came as a shock for many. Her death prompted the ANC caucus to reassert its intention to amend the Constitution to enable expropriation without compensation. (EWN 13 July 2020)
Finally the Bulldozers and excavators are back in District Six, but this time to start building. Marian Merten (Daily Maverick 10 July 2020) provides some history to the forced removals:
By 1982, 60,000 residents had been forcibly removed, shattering their lives, social networks and easy access to work in Cape Town’s city centre, and the land was bulldozed. Left standing were the churches and mosques.
She questions what will be built to commemorate this incalculable loss? Like all Restitution claims, the value of claim is a complex balancing act between what is just and what is affordable for restitution to be effected at scale. Merten expresses concern that:
The plans look cheap: a mix of terraced duplexes and multi-storey walk-ups without any green spaces for residents to enjoy, for children to play, and generally to be a green lung in an inner city area.
She observes that:
How cities shape their public spaces and how public memory is expressed are fundamental indicators of a society’s values. Alongside utilitarian needs of housing, transport and the like, public spaces can celebrate achievement – and to reflect the common commitment never again to allow the undemocratic, the brutal and the dehumanising. A commitment against forgetting, so to speak.
District Six is such a space.
In Limpopo restitution has also been making headlines but for the wrong reasons. The land in question is the disputed property of Kalkfontein, where the Mojapelo, Mothiba, Tholongwe and Mothapo clans, collectively known as Mamahule – lodged a land claim under the Restitution of Land Rights Act in 1996. The land claim was never settled due to disputes among the claimants and the land was bought for R14 535 000 in 2010, but seemingly not developed. In the interim, the Mojapelo Traditional Authority were reported to have informally demarcated and sold residential sites on the property. Some 200 people are said to have bought land there and now stand to lose everything.
Agriculture and rural development
The ban on alcohol imposed as part of the Covid-19 lockdown regime has had massive economic consequences. The alcohol industry has applied for deferment of the payment of R5bn in excise tax (Bizcommunity 20 July 2020),while roleplayers in the industry speak of a “job massacre”. Currently over a dozen wine farms are preparing to take the government to court to lift the blanket ban on alcohol sales (GroundUp 21 July 2020). Other reports project that South Africa could lose 90% of its wine producers (Fin24 23 July 2020). The crisis has deepened as wine cellars cancel 2021 grape purchases due to the liquor ban (Farmer’s Weekly 24 July 2020). Lockdown measures to prevent the sale of alcohol are clearly having impacts which may prove to be more costly long term impacts than the stated short-term benefits.
Hardly a day goes past without our uploading news items to our urban land pages which feature ongoing land occupations and attempts by municipalities to dislodge the occupiers. There seem to be various interpretations of what is going on. Municipalities seem to favour conspiracies in which organised syndicates stake out and occupy land, selling off sites to desperate people. Civil society and community organisations highlight systemic issues of structural poverty, amplified by the devasting impacts of Covid 19 on livelihoods, employment and household incomes. They point to the failure of urban policy to fundamentally engage with these realities. The Covid crisis has led to township property owners illegally evicting tenants from their backyards because they can no longer afford to pay rent. Faced with the combination of eviction and hunger, people have been left with no alternative but to occupy vacant land. Here they lead a precarious existence in unserviced informal settlements, facing the threat of further eviction by landowners and municipalities. This is creating a cycle of desperation which is rending our already fragile social fabric.
In Khayelitsha, the eviction of Bulelani Qolani symbolised the extent to which millions of the urban poor have been rendered naked – literally, socially and economically. However, the singular focus on the actions of the City of Cape Town in response to this incident, has served to obscure the ubiquity of land occupations and evictions and state sponsored violence which are happening countrywide.
This brings to mind the uncompromising writing of Abahlali baseMjondolo’s S’bu Zikode and his eloquent response to the demonisation of shack dwellers countrywide. Back in 2005 state actors were alleging that Abahlali were being manipulated by a shadowy Third Force, acting as urban askaris, reprising apartheid era dirty tricks. Zikode responded:
I must warn those comrades, government officials, politicians and intellectuals who speak about the Third Force that they have no idea what they are talking about. They are too high to really feel what we feel. They always want to talk for us and about us, but they must allow us to talk about our lives and our struggles.
We need to get things clear. There definitely is a Third Force. The question is what is it and who is part of the Third Force? Well, I am Third Force myself. The Third Force is all the pain and the suffering that the poor are subjected to every second in our lives. The shack dwellers have many things to say about the Third Force. It is time for us to speak out and to say this is who we are, this is where we are and this how we live. The life that we are living makes our communities the Third Force…
Those in power are blind to our suffering. This is because they have not seen what we see, they have not felt what we are feeling every second, every day. My appeal is that leaders who are concerned about peoples’ lives must come and stay at least one week in the jondolos. They must feel the mud. They must share 6 toilets with 6 000 people. They must dispose of their own refuse while living next to the dump. They must come with us while we look for work.
We discovered that our municipality does not listen to us when we speak to them in Zulu. We tried English. Now we realise that they won’t understood Xhosa or Sotho either. The only language that they understand is when we put thousands of people on the street.
Fifteen years later we must ask what has changed? State capture and corruption have accelerated to unimaginable levels. Many of those municipalities which still manage to function remain deaf and blind to the day to day realities of the urban poor in which poverty, landlessness, food insecurity and the pandemic are creating the equivalent of war economies, where people must do what it takes to survive.
Even a superficial analysis of the many stories on our urban land pages exposes the overwhelming inability of local, provincial and national government to listen and properly take stock. This prevents us from articulating a meaningful national vision to formulate the bold steps required to confront poverty and inequality; remake our cities and restore the trust of South African citizens that a better life for all remains a possibility. South African policy makers – if indeed we can still speak of these – remain insulated from reality and stuck in reactive mode. There is a critical failure to understand and respond to the perfect storm building at the intersection of pre-existing spatial inequality, mounting joblessness, hunger and desperation that have been starkly revealed and further inflamed by Covid-19.
Africa land news
Our Africa land news section is starting to expand. In this period a wide range of issues have surfaced across the continent, many of them referencing the rapid and underreported spread of Covid-19 and its impact on livelihoods of rural and urban people.
Covid 19 related coverage includes:
There continues to be coverage of devastating locust invasions in East Africa which further aggravated a situation in which the region is still dealing with the aftermath of damaging floods and the new threats posed by the pandemic.
Both Angola and the DRC are reported to be experiencing devastating forest and agricultural fires. Articles explore agricultural investment in Angola and the ways in which these have led to land grabs which have undermined land rights of Angolan citizens. The Borgen Project (24 July 2020) has examined the causes and prevalence of hunger in the country – one of which relates to loss of land rights as a consequence of land grabs. News also includes a focus on shortage of water which is putting a brake on agricultural production of agricultural cooperatives in the municipalities of Viana and Belas in the capital Luanda, together with reports on an IFAD programme to promote sustainable agriculture in the face of the impacts of climate change.
In Botswana there have been numerous reports about a conservation disaster in which hundreds of elephants have died from an as yet undiagnosed/unrevealed cause in the Chobe games reserve in the north-east of the country. There are also reports that the opposition BDP is planning to present a Land Reform Bill in the Botswana Parliament (Weekend Post 27 July 2020).
In Burundi, our focus is on the promotion and adoption of agro ecological farming methods in a bid to increase the food security of the population.
The DRC continues to experience the impacts of civil conflict, with UNHCR reporting that Uganda had opened the border to a stream of refugees fleeing escalating violence. Elephant (17 July 2020) has published a review entitled “The hands that steal: who is benefiting from aid to the DRC?”. This reports on the findings of an antifraud task force investigating massive corruption in the DRC, involving employees of the UN and international NGOs.
In Kenya Elephant has turned its focus on informal settlement evictions involving thousands of people from a low income settlement in Nairobi known as Kariobangi North. The article explores the linkages between land allocation and local patronage systems.
In Lesotho there are reports that the incoming Minister responsible for Local Government and Chieftainship has dissolved the country’s Land Administration Authority, alleging failure of corporate governance. The Borgen project (27 July 2020) has also published an article on the state of homelessness enlisted to as a consequence of rapid and uncontrolled urban development and a corresponding lack of affordable housing.
Elections in Malawi have featured, prominently in country coverage. Researchers investigating former Malawi President Bingu wa Mutharika revealed that he benefited from a Zimbabwean farm scheme in the form of a R2.1 million gift from the Zimbabwean government in 2007, which was channelled through the Reserve Bank of Zimbabwe. (DispatchLive 20 July 2020)
From Mozambique there are reports of a water project which has boosted yields for farmers who had been battling with drought and climate extremes, while hundreds of households are threatened with eviction in Pemba.
From Namibia there are reports (AllAfrica 23 July 2020) that the Town Council of Okahandja will be rolling out a land delivery programme to provide to make available urban sites for settlement. On the 27 July Namibian President received a report from the Ancestral Lands Commission and a draft Ancestral Lands and Restitution Bill. (Namibian Sun 27 July 2020). This follows processes of public consultations in all 121 constituencies which saw approximately 8 891 people appear before the Commission which received some 4 000 written and oral testimonies.
News from Zambia focuses on the unfulfilled promises of President Lungu to provide land to more than 8000 miners were retrenched in 2015. According to the report only 10% of the miners had been allocated land. Other news focuses on allegations that council officials are allocating land illegally (Lusaka Times 24 July 2020).
And finally, a wide range of news articles have been published on the mounting crisis and systemic corruption of the ZANUPF government in Zimbabwe. Articles include a report by CNN (29 June 2020) on the shooting of two Zimbabwean mineworkers workers by a Chinese boss, purported to be symptomatic of systematic and widespread abuse faced by locals in Chinese run mining operations.
The Zimbabwe government is also threatening to repossess farms allocated to people who are not making optimal use of them. At the same time Zimbabwe has denied that it is targeting white owned farms in ongoing land seizures. President Mnangagwa is reported to have offered a $3.5 billion settlement in compensation for land seizures under the fast track land reform programme. However, it is unclear how Zimbabwe would be able to afford payment of this compensation. A story in New Zimbabwe (6 July 2020) alleges that Zimbabwe’s Sports Minister, former Olympic swimmer Kirsty Coventry had recently seized a farm from the late Robert Mugabe’s nephew for her personal use.
However the big story in Zimbabwe is by well-known researcher and analyst Alex Magaisa (18 July 2020 ZWnews) who provides analysis of the corruption and cronyism associated with $200 million RBZ farm mechanisation scheme. The Zimbabweland blog continues to publish in-depth analysis on rural issues in Zimbabwe with several new blog posts published in the period under review. Finally an article in the Global Press Journal (26 July 2020) also seeks to get to the bottom of issues impacting on land allocation and levels of production in the country.
Weeks 24 – 25 : Monday 8 June – Sunday, 21 June 2020
As of Sunday 21 June 2020, South Africa had recorded 97,302 cumulative cases of Covid-19 of which 43 764 were active and 1930 fatalities. A total of 27 264 cases have been reported over the last seven days. The Western Cape remains the epicentre of the virus in South Africa, while the Eastern Cape is the province with the next highest number of infections and fatalities.
Food for Mzansi (10 June 2020) carries a report from a webinar on 101 reasons to eat local. The webinar focused in part on the yet unrealised potential of South Africa’s indigenous food heritage. Researcher Qinisani Qwabe argued that indigenous vegetables play a very important nutritional role in rural areas, while also noting that in many cases the input costs in the production of these crops are lower compared to other vegetables. Indigenous vegetables are often also more drought resistant and adaptive to marginal areas.
Chandré Gould and Sello Hatang writing for ISS (10 June 2020) highlight how “food insecurity and violence are close companions”. They note how:
There’s a significant shortfall between the value of social grants and the amount of money a household needs to feed itself. The Pietermaritzburg Economic Justice and Dignity Group tracked the cost of 38 basic items. It found that a month’s food for an average family costs R3,470 – far more than any government grant, and far more than many employed South Africans earn.
At the same time, they observe how information sharing between groups that previously worked independently of each other has enabled rapid rethinking of food supply and distribution networks. They also point to how community-based organisations have stepped up in the crisis.
There are excellent examples of how well organised low-income communities are feeding up to 20,000 people a day in response to the food crisis caused by lockdown. The Bonteheuwel Development Forum in the Western Cape is organised at street-level, has a soup kitchen on all 17 blocks in Bonteheuwel, and is establishing community food gardens.
They call for good leadership to build on this momentum to structurally address South Africa’s hunger problem.
While the coronavirus pandemic has revealed major flaws in the food system which are closely linked to increasing concentration and vertical integration, PepsiCo’s South Africa subsidiary Simba recently acquired Pioneer Foods in a transaction reportedly worth R28 billion (Farmer’s Weekly 10 June 2020). Pepsico is the largest food and beverage business in North America and the second largest in the world.
Although the deal combines a B-BBEE ownership plan, protection against merger related retrenchments for five years, the introduction of ‘food innovation valleys’ and a R300 million investment in developing the capacity of emerging farmers, (Pioneer Foods 9 March 2020) internationally Pepsico’s record has strong critics. Serious concerns have been raised alleging Pepsico’s “destructive and opaque supply chains” “corporate greenwashing” and aggressive protection of plant patents, including the prosecution of small Indian farmers for “obtaining seeds that did not belong to them’’. According to Research World (April 1 2020) Pepsico, Unilever and H&M are the top three companies under media scrutiny over their impacts on the environment. Pepsico has a reputation for making progressive green public statements which it then qualifies with small print cautionary statements. You can access the Full Competition Commission report approving the deal from their website.
Prof Corinna Walsh (IOL 15 June 2020) President of the Nutrition Society shines the light on malnutrition in South Africa and the persistence of child undernutrition and stunting while cautioning that:
Nationally, efforts to contain the spread of COVID-19 have resulted in worsening of food shortages, nutrition deficits, and an interruption of social and other nutrition support services on which the most marginalised groups of our country rely. The lockdown also poses challenges with regard to the accessibility and affordability of healthy food which has increased the chances of food secure households becoming food insecure. She notes that in consequence maternal and child mortality are likely to increase directly and indirectly as a result of the Covid-19 outbreak.
PLAAS researcher Nkanyiso Gumede (Daily Maverick 16 June 2020) examines the impacts of the lockdown on smallholder farmers and land reform beneficiaries in South Africa, and the ways in which they lost access to informal markets. Smallholder farmers interviewed by Gumede expressed concerns about prescriptive nature of government support in the form of vouchers:
What if I have inputs and medication, and want to use the relief fund to pay my employees? These vouchers need to be flexible and respond to our needs. They must consult us before taking decisions.
Land reform beneficiaries reported rising incidents of stock theft:
People are stealing livestock to feed themselves. It is slaughtered in the dongas. You just find the head, feet and the skin. These animals are not sold, but are stolen and slaughtered because people are locked in their homes, and they are hungry.
Gumede concludes that “support that comes in the form of vouchers other than cash restricts farmers. It fails to offer farmers an opportunity to use the relief support to respond adequately to their needs”. World over the evidence is strong that putting cash in people’s pockets is the most effective way to deal with disaster. Click on our KB.L food security page for up date coverage on this theme.
Land governance and administration
The Covid-19 lockdown and infections among Deeds Office staff has meant that the Deeds office has remained closed leading to a backlog in property transfers. This prompted the Cape Attorneys Association and the Institute of Estate Agents to apply for a court order to force the reopening of the Deeds office. The order was granted in the Western Cape High Court requiring the deeds office to reopen and operate in line with hygiene and social distancing protocols.
Wandile Sihlobo, the prominent agricultural economist and researcher has compiled a book entitled Finding common ground: land, equity and agriculture based on a selection of articles from his Business Day column backed up with commentary and context.
Rob Davies, Alex Mashilo and Jeremy Cronin writing in Business Day (10 June 2020) make the argument for new Reserve Bank policy to enable a sustained stimulus package to reinvigorate the economy battered by the Covid 19 pandemic. They paint a sobering picture noting that:
A global pandemic of the kind we are now experiencing was predictable and predicted. Even bigger threats loom from the destructive effect of climate change, which if not thwarted will make large parts of the world uninhabitable.
They make a forceful argument cautioning against trying to go back to “the crisis before this crisis” and advocating for “serious land reform that finally begins to abolish health-risky and unproductive apartheid urban settlement patterns, rural destitution and food insecurity.
Land rights and mining
Much of the media coverage in this period has focused on the legal SLAPP suit against six environmental activists brought by the Australian mining company Mineral Commodities Ltd (MRC). Strategic litigation against public participation”, or SLAPP suits are widely regarded as an abuse of court process in an attempt to silence public critics. The company has accused six activists of defaming it through public criticism and seeks millions of rand in damages.
The court case is taking place online via Zoom. Advocate Steven Budlender from the defence team argued that the “only logical explanation for suing six people for such a huge sum was the ulterior motive of discouraging and censoring criticism of the company. The intention was to silence members of the public and amounted to an abuse of the court processes that force people without money into costly, long and undesirable litigation”. The formidable father and son legal team together with advocate Sha’ista Kazee are representing the defendants for free.
GroundUp (10 June 2020) reports on a supreme Court of Appeal decision on the long drawn out restitution case of the contested Prudhoe community land claim in the Eastern Cape. This case has featured in our news summary in previous months and involves two conflicting claims lodged on a piece of land in the Eastern Cape which includes the Fish River Sun resort. The Land Claims Court had originally awarded the land to the Prudhoe community but the Amazizi community which had lodged a counterclaim appealed against the decision. The appeal was overturned by the Supreme Court of Appeal. Ohene Yaw Ampofo-Anti, the author of the article provides important insights into the complexities of settling restitution claims and the nature of the multifaceted disputes and divergent interpretations of the past which these often surface.
Food for Mzansi (16 June 2020) reports on an interview with Najwah Allie-Edries, the Deputy Director General of Employment Facilitation for the Jobs Fund which focuses on the Jobs Fund agricultural portfolio which has been prioritised given the opportunities that agriculture presents for employment creation.
Coverage on our urban land pages focuses on the destruction of shacks in Hangberg by the City of Cape Town and their subsequent questioning by the Parliamentary Portfolio Committee on Cooperative Governance and Traditional Affairs on why the City was evicting residents,despite the prohibition on evictions as part of the lockdown regulation (Daily Maverick 12 June 2020).
In the Eastern Cape GroundUp (12 June 2020) reported on clashes over access to land in Uitenhage which provides a window into the workings of informal land allocation processes and the conflict that can result when these go wrong. Some 50 families from the Meoggesukkel informal settlement had their shacks broken down, following a dispute between two opposing community groups over occupation of a piece of municipal owned land in the area.
Africa land news
Our Africa land news pages carry a wide range of stories from different countries in Southern, Central and Eastern Africa. Here in South Africa New Frame’s Jan Bornman and photographer James Oatway provide important insights into how the ongoing lockdown in South Africa has confined vulnerable refugees and asylum seekers to cramped and dangerous spaces which has impacted negatively on their mental health.
Other coverage from the New Humanitarian and CNBC focus on the impacts of drought and coronavirus in the subcontinent. New Humanitarian (17 June 2020) publishes an instalment in the drought diaries which focuses on six families in three countries (Kenya, Somalia and Zimbabwe) over a period of six months. The article provides different national perspectives on the impacts of drought on families in widely different settings. CNBC (June 16, 2020) reviews a report prepared by the Economic Commission for Africa on the impacts of corona virus in African cities.
Another New Frame article (17 June 2020) provides a stark coverage of the state demolition of the Kariobangi informal settlement in Nairobi, Kenya which is reported to have left thousands of people homeless in the midst of the coronavirus pandemic.
The Southern African Human Rights Roundup in the Daily Maverick (19 June 2020) has an important focus on the violation of mineworkers rights during the Covi-19 lockdown. This ranges from enforced quarantine of 6000 workers at copper and cobalt mines in the DRC to ensure the continuity of mining which is regarded as an essential service. In South Africa miners were forced back to work as they were no longer paid after the first 21 days of lockdown. The nature of working conditions on the mine makes them high risk spaces conducive to the rapid spread of the virus. The article also highlights the plight of intercontinental migrant workers in South Africa, Botswana and Namibia and Tanzania and the DRC.
While there is a deepening global consensus that “workers and businesses are facing catastrophe, in both developed and developing economies” there is still a long way to go before there is agreement on what constitutes “the right, urgent measures (which) could make the difference between survival and collapse”.
Weeks 14 – 17: Monday 31 March – Sunday, 26 April 2020
With South Africa in extended lockdown much of our news focuses on land news related to Covid-19. As South Africa’s confirmed cases rise to over 4361 with 86 confirmed deaths (26 April 2019), there are growing concerns about food security, the impact of a prolonged shutdown on the economy and the plight of poor and vulnerable South Africans. While social distancing may be feasible for the elite and middle-class South Africans, for many of our citizens living in overcrowded township housing, backyard shacks, informal settlements and hostels this is almost impossible to put into practice. The shutdown impacts on the local economy and critically on food security as many people are no longer able to work and many of them are now unable to secure a livelihood.
We explore some of the issues which have surfaced in the South African news for weeks 14 – 17.
Farmers large and small and farm workers provide essential services to ensure that food is produced, harvested, packed and processed for both local and export markets. News this month has focused on how the lockdown regulations have impacted on farmers and workers.
The Portfolio Committee on Agriculture, Land Reform and Rural Development set the tone (The Citizen 31 March, 2020) by urging farmers to ensure that adequate arrangements are in place to enable hygiene and social distancing and to keep the agricultural sector safe. The Committee sought to send out a strong message that violation of farm worker rights would not be tolerated, noting that South Africa relies on them to feed the nation.
The Farmers Weekly (01 April, 2020) highlighted aspects of the lock down regulations relating to agriculture. They noted that “while not a legal requirement, agribusinesses have been encouraged to make use of the labour force that can be accommodated on site or isolated from other communities as far as possible”. Given that there has been a long-standing trend to casualise and externalise farm labour, with many casual workers living in poor conditions, often in informal settlements ringing rural towns, this poses a real challenge for the agricultural sector in the context of the pandemic.
With rising levels of community transmission it is a matter of time before Covid 19 finds its way to the farms, pack houses and processing facilities which will raise the risk threshold with respect to food safety. The Farmer’s Weekly cites recommendations made by the World Health Organisation including:
Dr John Purchase, CEO of Agbiz who is also one of the representatives of organised agriculture on the Department of Agriculture Covid 19 task team, urged farmers and agribusinesses to strictly adhere to published regulations and hold each other accountable to comply with the law.
GroundUp (1 April, 2020) reports on alleged health violations taking place in the agricultural sector. They cite an official from the Department of Labour who stated that they had received “numerous complaints from workers that some employers are forcing them to work without the necessary personal protective equipment”. The Department was reported to have closed down a few unspecified businesses in the previous week.
Activists working with farmworkers reported that social distancing was not in place – particularly when workers were transported to and from the farm and also with in pack houses. However, we are just beginning to grasp the implications that the regulations pose for day-to-day farming operations. Farmers’ transport costs will rise significantly if they are to observe social distancing. More trips will need to be made, or additional transport procured which may not be available or affordable.
A tragic road accident (EWN 8 April 2020) which took place on 7 April on the N1 between Touws River and De Doorns claimed the lives of nine workers and placed another 18 in hospital, may reflect the mounting pressures on farmworker transport. The case of culpable homicide has been opened. In commentary on the accident, farm worker rights groups have raised concerns about the transport of workers in open trucks without seat belts. However, with the accelerating risks of Covid-19 infection this may turn out to be preferable and safer than transporting people in closed transport.
Workers are also feeling the pressure in pack houses which are designed for pre Covid-19 work processes, in which the ratio of workers to pack house tables does not make allowance for social distancing. Most pack houses will not have sufficient packing tables to ensure the correct distance between workers packing fresh produce. There are no easy solutions here, as workers desperately need employment. As pack houses are forced to reduce shift sizes and stagger working hours to enable proper social distancing, this will cause loss of worker income and also slow down the packing process, impacting on the enterprise as a whole.
The impacts of Covid-19 on the agricultural sector raises questions about how things will change to accommodate the ‘new normal’. In an op-ed (Daily Maverick 5 April 2020) Wandile Sihlobo asked whether the pandemic might structurally change the agricultural labour market. He observed that the current labour shortage challenge in Europe and the US could result in a focus on increased automation in the agricultural sector post Covid-19, noting that “any changes in major agricultural producing countries will in the long run will be transferred to the domestic market”.
On 9 April president Cyril Ramaphosa announced that the Covid-19 lockdown would be extended to the end of the month. This raised serious concerns about mounting hunger in the country. GroundUp (14 April 2020) reported on the risk to farmworkers, especially women who were already facing a crisis of hunger just two weeks into the lockdown. According to Colette Solomon, director of Women on Farms the crisis was exacerbated by two key factors – the inability of seasonal workers to claim unemployment insurance due to the closure of the UIF offices and the failure to provide sufficient access to food for vulnerable households. A farm worker from Rawsonville explained how they were being squeezed by rising prices and not being able to claim UIF.
“We haven’t got our UIF, plus many things are more expensive in the shops here in Rawsonville. How are we going to survive? The President must open the Labour Centres. He doesn’t know how we are suffering.”
Women on Farms made a range of recommendations to double the amount of all social grants for the duration of the lockdown, and to take measures to introduce a basic income grant or social wage to include all 10 million unemployed South Africans. Solomons concluded:
Covid-19 has exposed South Africa’s inequalities in wealth, healthcare, housing, water and sanitation, but surely the most perverse is the fact that women farm workers, the producers of our food, do not have enough food to feed their families.
GroundUp (16 April 2020) also reported how safety measures had been ramped up at a Ceres fruit pack house after an employee had reportedly tested positive for Covid 19. In a follow-up article on 24 April GroundUp reported that the pack house was still in operation under strict guidance and supervision of the Department of Health who had tested workers allowing those who tested negative to return to work. The report records that the Department of Agriculture has been providing support services to various agricultural stakeholders across the province, such as providing farm workers with face masks and sanitisers.
An article (EWN 7 April 2020) reported how people working at a fresh produce market in KwaZulu-Natal complained about inadequate safety compliance after an employee tested positive for the virus. The decision was taken not to shut down the market as it would have negatively affected food security in the province. These articles indicate that Covid-19 infection is starting to work its way up the food system from retail to pack houses and fresh produce markets. This highlights the need for careful adherence to hygiene and social distancing standards throughout the food chain.
The lockdown in a bid to flatten the Covid-19 infection curve has been accompanied by a nation and continent-wide focus on risks to food security.
The Institute for Poverty, Land and Agrarian Studies were the first to blow the whistle on the disastrous effects of lock down on poor people’s access to food and the informal food economy (PLAAS 1 April 2020). They made important recommendations including the urgent need to:
Amend the lockdown regulations to allow any supplier of food items to operate. These measures would legalise certain exemptions to the lockdown for poor people – as small-scale farmers, fishers, street traders and spazas – to produce, transport and sell food. This must include spaza shops (not only those that are registered) plus a public clarification that no distinction is drawn between spazas operated by foreigners and citizens. Informal street vendors must be allowed to sell food and also to transport their produce. Small-scale farmers and small-scale fishers must be able to move to and from their farms and fishing sites and to transport their produce, and systems set up especially by large corporate players within their sector to make available the infrastructure that can help them to do so safely.
Opt for cash instead of vouchers: Proposals for food vouchers should be replaced with straight cash transfers, to put decision making into people’s hands. The attempt to control what poor people buy is patronising and ineffectual, and there is evidence from elsewhere and in the past that food vouchers get sold for cash, at a discount. It is far better to protect and build up the buying power of poor people to survive.
Initially reports allayed the concerns of South Africans with the Bureau for Food and Agricultural Policy reporting on 3 April that South Africa had ample supplies and that people should not be concerned about the availability of food during the pandemic. BFAP reported that empty food shelves were “a reflection of consumer stockpiling rather than disrupted food supply chains”, noting that “South Africa is a surplus producer of food and that the value of South African food exports exceeds imports by a significant margin”. The report did note however that the country’s biggest source of food and agricultural imports was the European Union which is currently the centre of the Covid-19 outbreak. Due to global transport logistics backlogs products destined for export may need to be diverted into the local market. While this could benefit local consumers in the short term, this would impact heavily on producers who would receive lower prices for their produce, while South Africa would not earn much-needed foreign exchange from food exports.
Rebecca Campbell reporting for Creamer Media’s Engineering News (16 April 2020) cited a recent report by the Bureau for Food and Agricultural Policy (BFAP) which provides a sobering assessment of how agricultural input supply chains could be affected by Covid-19.
South Africa is highly dependent on imports of agricultural inputs. For instance, it is estimated that more than 80% of domestic fertiliser demand and more than 95% of plant protection chemicals are imported… And this country also imports other agricultural inputs, such as tractors, machinery, implements and the spare parts that they all require.
The risks associated with the high dependence on imports for critical inputs are twofold: Firstly, it relates to availability, either due to supply disruptions in major sourcing countries, or logistical and distribution challenges arising from Covid-19 containment measures. Secondly, there are also risks related to affordability, which is linked to availability but also influenced by the macroeconomic environment, where the relative weakness of the exchange rate, for instance, has the potential to cause substantial price volatility.
A former President of AgriSA, Dan Kriek (News24 5 April 2020) warned that “the Covid-19 pandemic will accentuate levels of inequality in ways we have not anticipated, unless we start paying closer attention to food security amongst the poorest of the poor.” He observed how:
The new regulations do not take into account the complex food supply systems in townships and poor communities. While farmers, farmworkers and retailers all classified as essential services and quickly and easily obtain permits to work and move around, informal food supplies did not. However, the haste with which regulations were promulgated for various sub-sectors of the economy has resulted in unforeseen and unintended consequences. The informal food supply systems were already so complex, and the quick changes in regulations saw a significant impact on the informal food market.
The informal food market is a complex food delivery system, consisting of spaza shops, bakkie traders, vendors and hawkers. Estimates are that 30% of South Africa’s food is distributed through the informal market to our rural areas, townships and informal settlements. Although major retail outlets expanded their operations into townships, the informal market continues to play a critical role in the everyday life of millions of South Africans.
These sentiments were echoed by Western Cape Premier Alan Winde in an interview on CapeTalk on 10 April 2020. Winde highlighted the serious economic impacts of the lockdown regulations stating that:
It takes just two weeks – two weeks without a paycheck, two weeks without your business trading… It doesn’t matter who it is that is involved in that value chain – everybody is seriously impacted.
Winde noted that we have to get more food into the system “because as soon as you don’t have that paycheck and you fall outside of a social grants system you are now in a sort of no man’s land… We need to trace where more and more people are sitting abiding by the rules, locked up in their home but the cupboard is bare”.
A number of industry and civil society initiatives prompted the government recognition of the mounting food and livelihoods crisis in urban townships. This led to the amendment of the regulations to allow informal traders to operate with permits (TimesLive 7 April 2020). By the 9th April the City of Cape had issued 934 permits to informal traders under strict conditions:
As stipulated in government’s amended regulations, goods that are allowed to be sold include fruit and vegetables, fresh meat and fish and sweets and cool drinks.
As part of the conditions, trading can only take place between 8am and 5pm, personal protective equipment like masks and gloves must be used, a distance of a metre apart should be maintained between trading stalls and banned items like cigarettes must not be sold. (EWN 9 April 2020)
At the same time the City was issuing warnings to other traders selling non-essential goods that their stock would be confiscated if found trading in breach of the regulations.
Food for Mzansi and Grobank joined forces to organise a massive farmers webinar which brought together more than 1300 people (Food for Mzansi 16 April 2020). Keynote speaker Dr Naudé Malan identified the need for a new agriculture based on “resilient and circular agricultural enterprise” while Mandla Paahla, a Guateng farmer spelt out that there is no returning to normal after Covid-19, but there is a path forward – and that path is to transforming the South African food systems”. This is an important observation – one that clearly recognises the issues and challenges emerging across the land in the month of April.
Lloyd Philips writing in the Farmer’s Weekly (10 April 2020) highlighted how both the World Bank and the African Union had drawn attention to how border closures can impede critically needed food trade within sub-Saharan Africa. According to the World Bank there would be at least a 5% contraction in economic growth in sub-Saharan Africa for 2020, and that on its own Africa would not be able to contain Covid-19 and its effects.
A number of media articles focused on how small-scale farmers were eligible to obtain support from government, but raised concerns about how this R1.2 billion fund was being administered. Siyanda Sishuba, writing in the Farmer’s weekly (15 April 2020) echoed concerns raised by Theo de Jager of SAAI (15 April 2020). These included the narrow window available for making applications to the fund which opened on 8 April and was set to close by 22 April, and the numerous constraints faced by small holder farmers to both obtain, complete and submit the application form.
These concerns have also been raised by activists in the land sector. One activist in KwaZulu-Natal reported that:
It has taken me three days so far to complete 32 forms. Only one or two of these farmers had heard about the relief; not one has seen an official during the announcement. Two extension officers did call me back but were not able to come and assist me to fill in forms and a DLRRD official could not assist with property information because he is working from home and the information is in the office.
Overall, there seems to be a significant mismatch between meeting the requirements set out in the application form and the capacity available to assist farmers to complete and submit these applications. This will likely mean that those small-scale producers most in need may not qualify for relief from government funding. It also raises the risk that those who are better digitally and politically connected are able to access support, while those who are most vulnerable may be excluded.
The pandemic has seen a resurgence of activism in favour of a citizen’s basic income grant (BIG) to protect household wellbeing and food security. Vishwas Satgar in an op ed in the (Daily Maverick 15 April, 2020) noted that:
Just before lockdown the Climate Justice Charter process called for stronger mitigation measures such as a substantive basic income grant, together with the trade union federation Saftu. This has also been echoed by the C-19 People’s Coalition.
He argues that if a substantive BIG is implemented now this could provide a means to prevent hunger and provide a cushion against unemployment.
The Citizen (18 April 2020) and other news outlets have highlighted a rise in incidences of violence and looting as a response by some to the mounting food crisis. These protests are not because there is no food, but because household incomes in the informal sector have dried up. Many families now have no money to buy food to eat.
Prof Julian May Director of the Centre of Excellence in Food Security, at the University of the Western Cape was reported as saying:
There’s a bunch of us at home getting fat and there’s a bunch of people who really have nothing. And it speaks a lot about the inequalities in South Africa (that) are likely to come out. As people are not getting food parcels or hear of other people getting parcels they are starting to react. And I don’t think that’s going to ease unless there’s more rapid delivery of food to people in poor areas.
Scott Drimie of the Southern Africa Food Lab characterised the current situation as “very, very dangerous”.
The Health Minister Zweli Mkhize (The Citizen 19 April 2020) reassured South Africans that the government was looking at “all the options to save our people from both hunger and infection. It’s not either or”.
On Tuesday 20th April President Ramaphosa announced an increase in the child support grant of R300 for May and R500 from June to October and an increase of R250 per month for all other grants over the next six months. A special Covid-19 social relief of distress grant of R350 per month for the next six months for all who are unemployed and not receiving grants or UIF payments.
Initially it was thought that the increase in the child support grant was per child, but as was clarified later (Mail and Guardian 23 April) the top up grant was for caregivers and was not indexed to the number of children they cared for. The C19 People’s Coalition, an alliance of social movements, unions, non-profits and community organisations has expressed their concern that the grants would still be insufficient to counter extreme poverty and loss of livelihoods.
Our urban land pages have been filled with the struggles of people living in townships and informal settlements during the pandemic. One of the controversial state responses to Covid 19 has been to propose the ‘thinning’ of densely settled areas in a bid to slow the speed of community viral transmission. These plans have been met with scepticism by residents of informal settlements who argued that such measures, taken without adequate consultation, would meet with resistance and be destined for failure.
A group of civil society organisations have provided a critique of the proposed de-densification of informal settlements as a crisis response to Covid-19 which they characterised as “bad short-term thinking”. (Daily Maverick 20 April 2020). The organisations argued that:
Focusing significant resources on only 29 selected settlements for de-densification/TRAs is highly problematic…Covid-19 impacts on all informal settlements and hence the short-term responses for protecting informal settlers from Covid-19 risk must be fairly distributed across all informal settlements. The provision and maintenance of basic services, communication, social learning and behaviour change support, the provision of medical care through testing and well-located field hospitals, and food relief can be rolled out at scale across all informal settlements in the country.
Meanwhile, despite an injunction in the Covid-19 regulations to cease with evictions, several metros proceeded to demolish shacks in informal settlements and eject people from abandoned buildings occupied in the inner city.
The shack dwellers organisation Abahlali baseMjondolo reported facing violence, evictions and demolitions at the hands of the eThekwini municipality, but according to the Durban Mayor “Covid-19 does not mean that there must be a holiday in respecting the laws of the country”. In the eThekwini case the courts validated the position taken by the Durban council, declaring their demolitions and evictions to be legal in the Ekuphumleni, Marianhill and the Azania settlements in Cato Manor.
However, in a recent evictions case carried out by the City of Johannesburg, the court found that the city had acted unlawfully and unconstitutionally. In Cape Town, the City demolished structures in Makhaza, claiming that they were not evicting people but demolishing uninhabited structures which had been erected on a speculative basis.
Numerous stories published in GroundUp chronicle the battle between community activists and law enforcement agencies in Khayelitsha. In one story (GroundUp 11 April 2020) it was reported on how a land occupation was a direct result of the Covid-19 lockdown. As the incomes of tenants occupying backyard shacks in the township have dried up, so they have been illegally evicted by the property owners to make way for those who can afford to pay rent. With nowhere to go, people opted for building shacks on unoccupied municipal land.
In what some have characterised as a return to the ANC versus DA political playbook the Minister of Human Settlements vowed to get to the bottom of illegal evictions in Khayelitsha. More important perhaps is the action taken by the Legal Resources Centre which has taken the City of Cape Town to court to prevent further demolition of shacks and eviction of residents from Empolweni in Khayelitsha (IOL 15 April 2020). Actions by municipalities and law enforcement agencies across the country prompted civil society to write to the President expressing concern over the treatment of poor people in South Africa during lockdown (Radio 702 15 April 2020).
On 17 April IOL carried a story entitled Families watch in horror as City of Joburg demolishes their homes. The article carries a photograph of a front-end loader destroying a house built of bricks and mortar, complete with a tiled roof in Lawley, after the council alleged that the land on which the houses had been built had been illegally occupied. In response to criticism of the demolitions the City stated that “criminal syndicates” were using the current national lockdown “to invade open spaces and land”.
When asked whether the city had a court order to evict the Lawley residents, Joburg spokesperson Nthatisi Modingoane reissued the statement quoted above without answering the questions.
This led Human Settlements Minister Lindiwe Sisulu to stress once again that evictions are illegal during lockdown, condemning the evictions of people from informal settlements by the City of Joburg and the Red Ants in Gauteng.
An important piece by Lauren Royston and Maanda Makwarela (Daily Vox 15 April 2020) has drawn attention to the need to find long lasting solutions for South Africa’s informal settlement residents. The authors from the Socio Economic Rights Institute (SERI), highlight how urban land has not featured on the land reform agenda to date. They unpack the systemic constraints which render poor township and informal settlement dwellers largely invisible to state services and protection.
Approximately 60% of people living in South Africa do not have the benefits that access to the formal property system is meant to confer. For the majority of people therefore, your rights and claims are not recorded… Our policies do not even possess the language to describe these “off-register” arrangements which people have made in the absence of private sector delivery and inadequate state provision. Without recognition, access to water, sanitation and refuse removal are constrained because municipal systems of billing, taxation and land use cannot “see” you. As a result, you lack the protections that the system confers: against eviction (whether market, state or familial); locally unwanted land uses; environmentally unsound services which threaten your health and safety; crime, violence and abuse; fire and, as we now anticipate, disease.
The authors provide concrete recommendations for strategic responses in both the short and longer term which draw on the as yet unimplemented recommendations from the reports of the High Level Panel and the Presidential Advisory Panel. Royston and Makwarela see the pandemic as an opportunity:
As crisis measures are planned and implemented, an opportunity also exists to ensure that those people most affected are never again ignored, invisibilised or unrecognised because they are poor.
Africa Land News
In Week 16 we have begun the process of expanding our land related news coverage to include countries in Southern, Central and Eastern Africa. Knowledgebase.land is now working with the Land Portal Foundation to extend their and our coverage of African land related news. See our new Africa Land News page launched last week. We will be researching a series of African country profiles in the months ahead in a bid to expand understanding of land issues across the continent.
Week 13: Monday 22 March – Sunday, 29 March 2020
With South Africa in lockdown much of our news focuses on land news related to Covid-19. As South Africa’s confirmed cases continue to rise rapidly, there are numerous concerns about food security, the impact on the economy of a prolonged shutdown and the plight of poor and vulnerable South Africans. While social distancing may be feasible for the elite and middle-class South Africans, for many of our citizens living in overcrowded township housing, backyard shacks, informal settlements and hostels this is almost impossible to put into practice. The shutdown impacts on the local economy as many people are no longer able to work and many of them are now unable to secure a livelihood. We explore some of the issues which have surfaced in the news for week 13.
There are ongoing calls on civil society organisations for the government to impose a moratorium on all evictions – whether of farm workers and dwellers or of people in informal settlements or inner-city contexts.
The Farmer’s Weekly (25 March 2020) reports on the formation of an agricultural industry task team to manage the corona virus crisis overseen by Minister Thoko Didiza. The task team is to focus on three work streams – the economy, social impact and communication.
At the heart will be to ensure continuous food availability to all, at affordable prices, as well as that all supply chains function, and both imports and exports of agricultural goods are maintained.
Agricultural economist Wandile Sihlobo has released a working paper on the impact of Corona virus on food security stating that from a national perspective it was unlikely that South Africa would experience food shortages for most food products over the next 12 months (IOL 24 March, 2020). However, he noted that the implications of Covid-19 on food price inflation was still to be understood. Sihlobo noted that any potential shortages would be more likely due to logistical challenges in the transport of food imports, rather than a decline in essential grain supplies.
This week stats SA released the results for the latest Census of Commercial Agriculture which was undertaken in 2017. Thea Liebenberg writing for Agri SA in Politicsweb (24 March 2020) notes that:
This census is incomplete in that it does not cover the entire agricultural spectrum for example, it does not include information on former homelands, subsistence farming and beneficiaries of land reform. The results only cover commercial agriculture’s core 40,122 farming units.
Stats SA data highlights that the total number of persons employed in commercial agriculture on 30 June 2018 was 757, 628 which was down from 769,594 on 28 February 2007 – a decrease of 1.6%.
You can access the full copy of the report from the Stats SA website or click on this link to download a full copy of the report (2 MB).
The Citizen (26 March, 2020) carries a warning from the Chief Land Claims Commissioner concerning a land claim scam in the Eastern Cape. It has been reported that land claimants from rural areas across the Eastern Cape had been deceived by scammers into paying thousands of rand in exchange for ‘fast track settlement’ of their land claims. The Commissioner advised claimants to seek advice from the office of the Land Claims Commission in the Eastern Cape, rather than fall prey to people making false promises.
It has been a week where many reassurances have been given, but at the same time the gravity of the economic and social impacts of the Corona virus is just starting to be understood. The chairman of Fruit South Africa Justin Chadwick was quoted as saying that “agricultural operations will continue” but “it would be wrong to say it is business as usual”. (Fresh Fruit Portal 24 March 2020) Currently the South African citrus, pome fruit and avocado seasons are in full swing. While there remain at least another two weeks for the harvesting of table grapes. Fruit South Africa stated that it had developed a set of guidelines to educate the industry and that it was critical that those who allowed to continue operating do so responsibly.
Anton Rabe Executive Director of Hortgro observed how:
Dis-information fuels anxiety. We are asking producers to keep their workforce informed with the correct information and to keep everyone calm, by following protocols.
Vinpro Managing Director Rico Basson responded to ill-conceived announcements associated with the lockdown which initially prohibited wine grape harvesting, cellar processes and the sale of alcohol. The harvesting and cellar process bans have since been lifted. The industry is still reeling following cancellation of wine orders by China which closed its ports. Much wine farm income comes from wine linked tourism which has now also collapsed (Fin24 28 March 2020).
Agriculture Minister Thoko Didiza is reported to have allocated a 100 million rand to the Land Bank to help farmers in distress (TimesLive 24 March 2020). However, no detail is yet available about who is eligible and what steps are required to apply.
The NGO Women on Farms (IOL, 26 March 2020) has noted that while government has focused on measures to support business, there has been very little focus on how the Corona virus will impact on farm workers living on and off farm.
We demand extraordinary interventions for farmworkers, with a financial guarantee from the government for farmers to cover the lost wages of farmworkers who are forced to stop working by farmers as a result of the coronavirus.
As civil society groups press for a countrywide ban on evictions Vincent Lali (GroundUp 23 March 2020) reports on the eviction of 29 households from Zweledinga Informal Settlement in Khayelitsha. The Anti-Land Invasion Unit was reportedly enforcing a court order prohibiting people from occupying city owned land.
Many of those whose shacks were destroyed were former backyard shack dwellers. Noluvuyo Mdledle, 33, had moved onto the land with her family a day before her shack was demolished by officials.
“I begged them to leave my building materials alone and assured them that I would not rebuild my shack, but they ordered me to vacate my shack”.
She previously rented a shack in Section 32, Makhaza for R600 per month. She sells fruit and vegetables to support her three young children and unemployed sister.
Many stories this week focus on the threat that Corona virus poses to people living in informal settlements. Abahlali baseMjondolo has called on government to end evictions and prioritise water and sanitation provision to informal settlements. Meanwhile the Citizen (24 March, 2020) reports that Human Settlements, Water and Sanitation Minister Lindiwe Sisulu has identified 29 unspecified areas which are “heavily populated and could be breeding grounds for the spread of Covid-19”. She spoke of measures to provide water and sanitation to settlements while apparently considering measures to lower the densities in high risk areas.
IOL (25 March 2020) quote Abahlali president S’bu Zikode who stated that many of the measures announced by the Minister have not yet been implemented.
“This is urgent, its a matter of life and death. There’s no water, nothing has been provided and nobody communicates anything to the informal settlements”.
Shaazia Ebrahim and Tim Fish Hodgson contributed an Op Ed in the Daily Maverick (27 March 2020) which quoted Abahlali extensively while highlighting that:
The problem is that the recommended measures in South Africa, similarly to those of the World Health Organisation, assume that everyone lives in a house. A house which is at no risk of being destroyed by the state or private owners of the land upon which it is built: a house with access to water, sanitation and other basic services. But the reality is that millions of South Africans do not live in a house, but in rudimentary structures in poor conditions.
The onset of Covid-19 reemphasises what housing activists have been arguing for years that access to land, housing, water and sanitation are essential if we are to provide safe and dignified living conditions for our people and manage the pandemic both now and in the future. This was echoed by a recent protest by informal settlement dwellers outside the Civic Centre in Cape Town (GroundUp 26 March 2020)
The group sang and danced while adhering to the one-meter distance rule as they waved placards that read: “Ramaphosa: Wash your hands” Informal settlement resident: “Ngantoni?” (with what?)”, “No fight, we just want water”, and “Water before lockdown”.
Finally on a practical note Mark Weston writing in the Mail and Guardian (27 March 2020) provides a thoughtful look at how to tackle Covid-19 in informal settlements. He provides eight ideas for policy makers:
Week 12: Monday 16 March 24 – Sunday, 22 March 2020
Just 12 weeks into 2020 the rapid spread of COVID-19 and measures to contain this are the focus of much national news. The pandemic exposes the deep impacts of inequality and the inadequate safety nets for the poor South Africans who are the majority citizens. This gives renewed emphasis on equitable access to land for housing and livelihoods as well as clean water, proper sanitation and other essential services.
For the first time in months the media has abandoned its focus on expropriation and the process of amending the constitution to make clear the circumstances under which land could be expropriated without compensation being payable. On Monday, 16 March the Chair of the ad hoc committee announced the postponement of the public hearings as a result of the COVID-19 outbreak in the country (EWN 16 March 2020)
in last week’s land news update we reported on how GroundUp carried a right to reply written by one of the owners of Anura Farm who sought to place his version of events on record with regard to the eviction of the Petersen family. This week sees Carmen Louw a director of the NGO Women on Farms publicly counter the owner’s story (GroundUp 18 March 2020). According to Louw, Petersen had been unfairly dismissed, ostensibly because of a broken window in the cellar – and not absenteeism as the owner had alleged. According to Louw, Petersen had taken the matter to the CCMA and she received a settlement amount. Louw disputes the owner’s account that Petersen had told the sheriff who served an eviction order on her that she wanted to be dumped on the street outside the farm so as to get maximum publicity. Petersen did not want to be taken to La Rochelle – an overcrowded and poorly serviced informal settlement with a high crime rate. With respect to the owner’s allegations that Petersen’s husband had been arrested for stealing farm diesel, Louw alleges that this was an attempt to criminalise the family on spurious grounds and that no formal charges were ever laid by the owner.
With regard to the eviction order granted by the Paarl Magistrate’s Court and confirmed by the Land Claims Court, Louw counters by stating that magistrates often misinterpreted the rights of occupiers in terms of ESTA and that the land claims court is under serious pressure with no permanent judges. An Internet search failed to turn up a copy of the eviction proceedings.
Women on Farms has consistently highlighted what they regard as the shortcomings in the extension of security of tenure act (ESTA)
ESTA currently does not reflect the situation of farm dwellers like Petersen who was born on a farm, lived and raised her children there, but was traumatically, albeit it “legally”, removed from the farm and “legally” dumped at the roadside. ESTA stipulates that the courts should not grant evictions unless municipalities are able to provide alternative accommodation. However, courts are clearly granting evictions even if evicted families like the Petersens are going to be dumped on the side of the road.
In other news a group of 25 seasonal farmworkers reported that they had been dismissed without warning with two days’ pay – allegedly due to the impacts of Corona virus. (GroundUp 23 March 2020), although no detail was given in this regard. Female farm workers and dwellers picketed outside the South African Human Rights Commission in protest over a range of issues on farms including evictions, occupational health hazards, wages and living conditions. One of their spokespersons was Wendy Pekeur representing the Ubuntu Rural Women and Youth Movement. Pekeur was a former General Secretary of the now disbanded farm dweller union Sikhula Sonke.
An Op-Ed in the Daily Maverick by SAIRR’s publicist Terence Corrigan (Daily Maverick 17 March, 2020) explores the implications of Zimbabwe’s decision to compensate Zimbabwean farmers whose land was confiscated and in some cases enable farmers to reacquire their properties. Corrigan examines South Africa’s role in supporting the Mugabe government, but highlights that these new moves by Zimbabwean President Emerson Munangagwa had met with the support of unnamed South African diplomatic representatives in Zimbabwe.
Land rights and mining
An Op-Ed in Business Day (18 March 2020) reviews the impacts of elite capture in the mining sector on poor rural communities. The writers representing organized mining affected communities argue that:
The practical outcomes of mining in SA have left communities poorer, and our own research suggests that communities benefit from as little as 0.2% of value created in the mining sector, while they carry all the negative burdens of mining…
Social and labour plans required by law have delivered very little of value to local communities. Much of the R7.5bn supposedly earmarked for community development never found its way to the ground. Much of these resources have been captured and misappropriated.
In various social audits conducted by Mining Affected Communities United in Action (Macua) we found ample evidence of corruption and false reporting on community investment initiatives. One example is of a mining company that claimed to have invested millions in food gardens, only for our audit to find that it was a small garden in someone’s backyard.
Food security and rural development
The Farmer’s Weekly (16 March, 2020) reports that the Royal show in Pietermaritzberg has been cancelled following the Presidential directive prohibiting gatherings of more than a 100 people. Other events such as the annual Nampo harvest day are also likely to be cancelled.
With the onset of Corona pandemic and the declaration of a State of Disaster by President Ramaphosa concerns have bee raised about the nation’s food security. This has prompted a number of statements seeking to reassure South Africans.
AgriSA released a statement (20 March, 2020) stating that:
South Africans should stay calm and work together to overcome this pandemic. Consumers should refrain from panic buying as South Africa will remain food secure for the foreseeable future thanks to our farmers.
However, at the same time AgriSA noted that exports may be affected due to logistics constraints and the availability of shipping while on the supply side, given South Africa’s vertically integrated value chains, there could be a shortage of agricultural inputs.
King Dalindyebo who was given a special remission of sentence in December 2029 after being imprisoned in December 15 2015 on seven counts of kidnapping, three of assault and arson, one of defeating the ends of justice and one of culpable homicide. The King was originally charged and convicted followed the kidnapping of a woman and her six children, the burning their homes to the ground and the assault of four youths, one of whom subsequently died from their injuries – apparently, all because one of their relatives had failed to present himself before the king’s traditional court.
Three months after his release it was reported that the King had been rearrested (TimesLive 13 March, 2020) after a case had been opened against him by his son and acting regent. King Dalindyebo was reported to have allegedly stormed the Great Place carrying an axe, before throwing out clothing and destroying furniture. The King has apparently subsequently been released while Contralesa has volunteered to intervene and mediate after his son filed for a protection order against his father.
As the COVID-19 crisis escalates news articles focus on evictions with civil society groups pressing for a moratorium during this period. While human rights organisations are forced to close their walk in services they continue to consult online. Meanwhile people who have long occupied various facilities in protest against the lack of social housing face uncertain times. GroundUp (19 March, 2020) reports that the occupied Woodstock hospital which now houses about 1000 people has put in place “stringent protective measures” to limit the spread of the virus with communication moving to WhatsApp rather than large meetings. However, at the occupied Helen Bowden Nurses Home in Sea Point little had changed and occupiers appeared uniformed about the dangers they face. Likewise African migrants seeking repatriation and located in various occupation settings were also completely unprepared and with little resources to protect themselves.
Week 11: Monday 9 March – Sunday, 15 March 2020
National news has predictably been preoccupied with the battle to contain the outbreak of COVID-19. As a result, land news for this week has been somewhat thin. We focus on expropriation, farm workers and land policy in this weekly news update.
The Vryheid Herald (13 March 2020) runs a story by Lolo Madonsela who was reporting on public hearings on the expropriation of land without compensation at the Cecil Emmett Hall earlier in the month. A number of contrary views were expressed by people attending the hearing including a member of the ANC who reportedly went off script stating that “we get assistance from white farmers therefore we do need them, we need to have an equitable share with them.” This apparently provoked outrage amongst other ANC supporters which was further aggravated when a white farmer attending the hearing “got up and danced”. Parliamentary officials were called in to try and contain what was described as a “volatile situation”.
People attending the hearing proposed a number of new amendments to Section 25. There seemed to be a strong call for land to be owned by citizens and not by the government. Local resident Sibusiso Nkosi moved that:
Government must address the issue of corruption that seems to plague the Department of Land Affairs. It is also an insult to people to suggest that the state must be custodian of the land, as if black people are incapable of looking after their valuable assets. When the land is expropriated it must be given to the people not the state. The revelations of the Zondo Commission has showed us how deep is the corruption in this government and there is no political will to deal with it, therefore it cannot be trusted with the responsibility to look after land on behalf of the people.
Meanwhile in Cape Town community representatives called for the government to speed up the process to expropriate land without compensation. Dr Mathole Motshekga, chair of the ad hoc committee stated that:
The majority of contributions made during the hearing supported the amendment because it is about addressing the historical injustices of land dispossession of the black majority.
However, he also noted that the committee had been warned that the amendment would put dire strain on the economy and could undermine food security. (IOL 15 March, 2020).
At another public hearing in Germiston an ANC member argued that “the land had already been compensated for by the blood that we share during apartheid. We are not asking for it we are taking it. No one should be compensated, that was done when the blood of our forefathers was shared in Apartheid times”.
And then following the declaration of a national state of disaster on Sunday by President Ramaphosa to combat the COVID- 19 outbreak in the country, Parliament announced that it had postponed all further public hearings on land expropriation. Motshekga noted that the situation meant that “it was in the interest of all South Africans to postpone the hearings until further notice”.
In the previous weeks KB.L has featured stories from GroundUp and other media on the eviction of workers from Anura Vineyards. These evictions led to protest action and the brief arrest of a co-director of the NGO Women on Farms. In week 9 we observed up that “unfortunately, as with much reporting on land and eviction issues, the circumstances of the eviction case remain unclear”. This week GroundUp gave Lance Bouma, one of the owners of the property the right to reply. (GroundUp 12 March 2020) According to his version of events the farm worker was dismissed for chronic absenteeism and had been offered alternative accommodation.
Bouma stated that the Francina Petersen, the evicted farmworker was “a more absent than present bottle packer for five years”, whose husband had been arrested along with her father for allegedly stealing and reselling diesel on the farm. Bouma also had words for Women on Farms which had characterised the eviction as “leaving another farm family destitute” recording that the farmworker’s husband was employed in the construction sector as an earthmoving operator earning more than a farmworker’s wage. Bouma closed his piece by noting that:
In accordance with the rule of law in which — astonishingly, not only the farmworker but the farmer has rights — the Paarl Magistrates’ Court and Land Claims Court weighed the evidence and competing rights of the Petersens and the Boumas and granted an eviction order against the Petersens on 15 October 2019. This gave the Petersens just under four months, until 7 February 2020, to find alternative accommodation.
According to Bouma alternative accommodation had been offered in La Rochelle which had been rejected, although no specifics were supplied. What will emerge as his version is contested? Watch this space.
Also in the news was a report on a study by the Research Planning and Policy Directorate in the Department of Labour (13 March, 2020) which sampled 4055 employees and 210 employers. This report found that “a whopping 77, 7% of workers in agriculture are not union members”. Other studies indicate that trade union membership varies substantially according to where a worker is located within the agricultural value chain. The ILO found that:
Membership of trade unions was very rare amongst workers in the formal sector of the agricultural industry who have employment of a limited or unspecified duration. Within the category of workers with employment of a permanent nature, the incidence of trade union membership was low for farmhands and labourers (11.4%), motorized farm and forestry plant operators (13.4%) and hand-packers and other manufacturing labourers (19.3%). (ILO, 2015: 30)
A report on the Department of Labour study was also carried in Business Day (15 March, 2020).
The Parliamentary Portfolio Committee on Agriculture, Land Reform and Rural Development met on 10th March to receive a briefing from Mr Mdu Shabane, Director-General (DG) for Land Reform and Rural Development: DALRRD. (PMG 10 March, 2020) The briefing covered DALRRD’s response to the recommendations of the Presidential Advisory Committee where 60 of the 73 recommendations of the Panel were accepted. Regarding new policy development Busi Mdaka, Chief Director for Inter-Governmental Relations: DALRRD laid out the plans of the Department.
Policy frameworks, policies and legislation targeted for 2020/2021 to 2024/2025 include:
The Portfolio Committee were also briefed on the implementation of the Spatial Planning and Land Use Management Act.
Wytske Chamberlain and Karin Kleinbooi write about the failure of the South African government to meet their commitments to smallholder farmers in the 2014 AU Malabo Declaration on Accelerated Agricultural Growth and Transformation for Shared Prosperity and Improved Livelihoods.
The second biennial review finds that Southern Africa as a region does not reach the on-track score on any of the seven commitments. Although overall progress has been made since 2017, this is not sufficient to remain in line with the interim targets. A number of negative developments stand out. Firstly, the agreed commitment to allocate 10% of annual public expenditure to agriculture is not achieved by any of the member states in Southern Africa.
 The seven Malabo Declaration commitments are: 1. recommitment to the principles and values of the CAADP process; 2. enhancing investment finance in agriculture; 3. ending hunger by 2025; 4. halving poverty through agriculture by 2025, 5. boosting intra-African trade in agricultural commodities and services; 6. enhancing resilience to climate variability; 7enhancing mutual accountability for actions and results.
Week 10: Monday 1 March 24 – Sunday, 8 March 2020
The Council for the Advancement of the South African constitution (CASAC) published their written submission to the National Assembly’s Ad Hoc Committee on amending Section 25 of the Constitution. CASAC’s submission was prepared by Advocate Tembeka Ngcukaitobi.
The submission makes clear that the whole amendment process is premised on an incorrect assumption that the Constitution as it stands does not enable expropriation without compensation. The submission notes that expropriation of land is expressly mandated and allowed in the constitution, arguing that section 25(8) of the constitution which gives the state power to address the results of past racial discrimination also allows the state to “restrict any entitlement to compensation which may be claimed by property owners. However, the section has not been put to use and accordingly little or no attention has been paid to it”.
CASAC argues that “without some fundamental changes to the entire programme of land reform by the state it is not likely that any changes in the Constitution or the law will shift the land holding patterns to achieve the vision of the Constitution”. The submission also states that no land reform can succeed if it is not based on the rule of law.
Kallie Kriel CEO of Afriforum writes in the SowetanLive (6 March, 2020) that Afriforum agrees with the Minister Naledi Pandor in her article land reform is legal that measures are required to reduce poverty and inequality. Kriel argues however that the lessons of expropriation without compensation and the erosion of property rights should be learnt from the experience of Zimbabwe, According to Kriel the unemployment rate of 90%, hyperinflation, food and fuel shortages can all be attributed to so called fast track land reform.
However Kriel states that:
The fact that AfriForum is fighting expropriation without compensation in no way implies that it is opposed to land restitution. AfriForum supports the notion that cases where black people were unlawfully dispossessed of their land should be rectified.
The Farmer’s Weekly (4th March, 2020) wrote a feature on the submission made by the Association for Rural Advancement (AFRA) to the Ad Hoc Committee on the Amendment of Section 25 of the Constitution. AFRA puts forward its own proposals for amending section 25. Reading through the AFRA submission and that of CASAC, noting that they are just two of many thousands of submissions which have been put forward, provides a small insight into the extraordinarily difficult task facing the ad hoc committee, if they are serious about fulfilling the mandate which has been given to them.
The irony in the whole process is that, as Advocate Ngcukaitobi has pointed out in the CASAC submission and elsewhere, the constitution already allows for both expropriation and for expropriation to be nil depending on the circumstances of the case. Ngcukaitobi argues that what has been lacking all along is the political will to carry out an effective land reform programme.
While these constitutional deliberations proceed, the 2020 budget speech confirms that the amount of money spent on VIP protection will exceed the national land reform budget for a second year in a row. (As if Advocate Ngcukaitobi needed any more evidence).
Women on Farms followed up on the protest action of the previous week which saw their director arrested on charges of public violence that were later withdrawn. The NGO organised a march following an open dialogue at the Huguenot community hall. The NGO seeks to put pressure on the municipality to put a farm worker eviction plan in place, particularly as evicted farmworkers ended up in overcrowded informal settlements with serious social consequences for their family life and the future of their children.
The Daily Maverick (6 March, 2020) reports on the continuing saga surrounding the settlement of the District Six land claim. In this episode the former Minister of Land Reform and Rural Development Maite Nkoana-Mashabane applied for leave to appeal a Land Claims Court ruling handed down by Acting Judge Tembeka Ngcukaitobi in April 2019. Mashabane was found in contempt of court for not complying with a court ruling requiring that a plan be presented to resettle former residents of District Six back on the land from they had forcibly been removed. Acting Judge Ngcukaitobi had ordered “Minister Mashabane …to pay the costs of the proceedings on 17 April 2019, including preparation and appearance, in her own personal capacity, on an attorney and own client scale, such costs to include the costs of senior and junior counsel.”
Matters were adjourned in the case because there was no clarity as to who had actually applied for leave to appeal. There will no doubt be more on this story in coming weeks.
Food for Mzansi (2 March, 2020) reports on the strange case of Petros Sithole (64) a former extension officer in the provincial Department of Agriculture, Forestry and Fisheries. Sithole reportedly retired to become a full-time farmer, who entered into a caretakership agreement with rights to utilise a land reform farm in 2009.
However, the story however is frustratingly unclear about how Sithole lost the rights to continue to use the farm after he had been on the land for more than a decade, referring to an unspecified and “apparent miscommunication amongst officials within the provincial Department of rural development and land reform which left him landless”. Sithole who is a Cotton SA award-winning farmer also produced sugarcane and vegetables.
Urban land issues are at the heart of a new film entitled Azibuye – The Occupation by award-winning documentary film maker Dylan Valley (ScreenAfrica 2 March, 2020). The film focuses on an actress and a trade unionist who occupy a suburban mansion which – according to the article – had been vacant for almost 20 years. As the filmmaker observes “it’s hard to mention the underlying issues in the film without getting into spoilers, but I hope the film challenges viewers assumptions about the issues and the characters”. Since its completion, Azibuye became the first South African film to be selected as part of Sundance Film Festival’s New Frontier Exhibitions programme.
GroundUp (4 March 2020) reports on an occupation and a land conflict which definitely is not art, but certainly in need of documenting. In Port Elizabeth residents of two informal settlements and a group of backyard shack dwellers have come into conflict over who should be allocated service sites in a new development. The relocation of residents from Vasrap informal settlement to new sites at Jaagvlakte was halted on Monday after residents of another informal settlement Qunu demanded 50% of the sites. Then a third group known as the Ward 29 backyard shack dwellers “stormed the offices of the local ward councillor demanding 10% of the serviced sites”. The Jaagvalkte story highlights the high levels of desperation and volatility associated with urban land struggles and their potential to spark violent conflict if poorly handled.
Week 9: Monday February 24 – Sunday, 1 March 2020
In Week 8 US Secretary of State Mike Pompeo was reported as stating that moves to amend the constitution and expropriate land without compensation would be disastrous for South Africa’s economy and people. However, a more measured view has since been put forward by US Ambassador Designate to South Africa Lana Marks, who stated that she was “100% satisfied in the way in which President Ramaphosa is handling everything – in a totally open and transparent manner”. (Mail and Guardian 26 February 2020) Marks said she was not consulted by the US State Department ahead of Pompeo’s remarks the previous week. The ambassador is reported to have gone further to state that she had been informed that “there would be no confiscation of any private land whatsoever”.
In response Presidential spokesperson Khusela Diko made it clear that the government intended to accelerate land reform, but stated that this would be done within the strict confines of South African law. While Ambassador Marks has stated her ambition to elevate South Africa into a top 20 trading partner with the US (it is currently 39th), Anthea Jeffery continues to beat the Zimbabwean drum (BizNews 27 February 2020) citing De Soto advocate Craig Richardson that the root cause of Zimbabwe’s economic decline was “the expropriation of land without compensation (which) destroyed property rights – the foundation of the economy – and led to a chain reaction…” According to Jeffrey, South Africa “still remains far away from this haunting tale of woe” but she cautions that “there is no room for complacency”.
If you’re looking to take a deep dive to try to better understand the contemporary situation in Zimbabwe, a good place to start is Ian Scoones’ Zimbabweland blog. Prof Scoones who is a Fellow at the Institute for Development Studies at Sussex University has asked why is there food insecurity in Zimbabwe (9 December 2019). His answer analyses a range of contributory factors rather attributing everything to a single story of the erosion of property rights.
Back home the Democratic Alliance released a statement on 28 February that it has submitted more than 94,000 public inputs on the proposed section 25 amendment. DA spokesperson Annelie Lotriet argues that “the failure of land reform over the past 24 years has been the lack of action by government to ensure justice is served and land ownership patterns are addressed”. (Politicsweb 28 February 2020)
Several stories this week feature farmworker protests led by the NGO Women on Farms in response to the eviction of six people from Anura Farm in Simondium near Paarl, apparently following a court order. Media coverage of the event has focused primarily on the arrest of WOF co-director Colette Solomons on charges of public violence which were subsequently dropped. Unfortunately, as with much reporting on land and eviction issues, the circumstances of the eviction case remain unclear.
The Anura farms website is silent on the case. However, you can read about the farm’s development journey, opportunities for gourmet food and wine as well as investment in the planned Vini Fera estate “a novel development in the Winelands area… characterised by low density living and an effortless daily life”. A world unimaginable for those who work on farms and seemingly blind to their realities.
Public Works Minister Patricia De Lille continues to make the news with how she is “pushing ahead with the release of hundreds of land parcels to South Africans as part of addressing the land reform programme”. (IOL 24 February 2020) And the Minister provides some detail on what land is being transferred. This includes 14,105 ha released in October 2019 which was followed by a further 648 ha of land, state and properties in settlement of restitution claims in the Eastern Cape and the Northern Cape as well as in KwaZulu-Natal. The Minister reported that she had acceded to release a portion of the farm Elandsfontein in Gauteng which would allow for the building of 4000 houses to accommodate people living in surrounding informal settlements.
Rural development, agriculture and the budget
Denene Erasmus (Farmer’s Weekly 26 February 2020) reflects on the tabling of the 2020 budget by Finance Minister Tito Mboweni and its significance for agriculture, land reform and rural development.
Inclusive of all additional grant and government programme funding through various departments, the consolidated spending on agriculture and rural development functions was expected to amount to just over R28 billion, which represents a mere 1,43% of total government expenditure for 2020/2021.
Key features of the budget include:
Meanwhile in other news (IOL 1 March 2020) reports on the upcoming appearance of a North-West businessman Derrick Montshwe who has been called to appear before the provincial legislatures Portfolio Committee on Economic Development.
Montshwe was due to be questioned on alleged dodgy deals including the delivery of 25 cattle worth 1.5 million Rand to former Pres Zuma’s homestead in Nkandla in October 2016. It is also alleged that his company delivered sheep and cattle worth millions to a farm owned by the former North West Premier Supra Mahumapelo. This followed the award of a tender with 650 million Rand which appointed Montshwe’s company Agridelight as the implementing agent for agricultural rural development programmes in North-West in 2014. The story first broke in the Mail and Guardian in May 2018 which reported that a senior official in Agridelight (Montshwe) had sought to turn state witness in the face of an investigation by the Hawks into the looting of public funds in the province.
However, according to a report in the South African (3 March 2020) despite prior media hype Montshwe’s testimony was evasive, and all questions relating to senior politicians were evaded. Jaqueline Theologo, DA spokesperson on agriculture and rural development subsequently stated that Montshwe had deliberately misled the committee by the omission of critical details, characterising him as “nothing other than a hostile agent”. In the end it seems that no beans were spilled after all.
In Cape Town housing activists launched a protest action by occupying the Rondebosch golf course where an area the size of 45 rugby fields is rented out by the City of Cape Town for just R88.17 a month. Housing activists have long argued that this land could be put to much better use for mixed use and mixed income housing and urban development to provide improved access to the city. (IOL 1 March 2020)
Michael Clark from Ndifuna Ukwazi was quoted as saying:
“With these leases, the City is not even reaping financial benefits. It’s actually externalising the cost of not providing housing to hundreds of thousands of people who have to live in informal settlements and spend money on travel costs to their workplaces,”
Clark noted that Cities such as Hong Kong in China and Canberra in Australia, public land-leasing programmes raise revenue to fund infrastructure. Not so in Cape Town.
“If we keep renewing these leases without considering their impact, then we are just reproducing colonial and apartheid spatial planning. This is simply unacceptable in a constitutional democracy that prioritises spatial justice”.
Week 8: Monday February 17 – Sunday, February 23, 2020
For a change there has not been that much coverage on expropriation this week. Theunis Roux – a law professor, attempted to disentangle the politics behind the move to amend the property clause. (19 Feb, 2020) He observes that it’s hard to comment on a draft constitutional amendment which does not appear to be in its final form. He notes that as the Constitution 18th Amendment Bill currently stands section 25(2)(b) would be changed to provide that:
a court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil.
In addition, a new section 25(3A) would be inserted authorising parliament to set out the circumstances in which such an order could be made, subject to the Constitution. Roux highlights the factional divisions in the ANC:
The ANC is currently split between a pragmatic, market-respecting faction aligned to President Cyril Ramaphosa, and a radical economic transformation faction associated with secretary general, Ace Magashule. Decision-making in the organisation is therefore a reflection of the relative strength of those factions.
Against this background, the proposed amendment to the property clause is not so much a populist containment measure as a political wedge.
Positive public response to the Bill will ensure that it passes as is, which will constitute a victory for the Magashule faction and by extension the EFF. However, if the public response is more muted the pragmatic faction aligned to the President may gain advantage. Whichever way it plays according to Roux:
The proposed amendment to section 25 represents a critical juncture in South African constitutional politics. The outcome of the current public consultation process will shape the nature of its constitutional democracy for years to come.
Land policy and the budget
Jeandré van der Walt (Farmer’s Weekly 21 February 2020) examines the gap between budget promises and implementation realities. These include the allocation of 1.8 billion last year for the implementation of 262 priority land reform projects over three years. According to Annette Steyn DA member on the Agriculture, Rural Development and Land Reform Portfolio Committee the government had still not provided a list of these projects and how they would be executed. Dr Vuyo Mahlati of AFASA urged the Minister of Finance to pay particular attention to drought relief and forward-looking measures to address the impacts of climate change. Overall there were questions about whether the budget for land reform would increase, given repeated criticism that the allocation of land reform had been consistently too low to enable the programme to be effective.
Barbara Maragele (GroundUp 20 February 2020) writes how farm worker Eric Lolo plans to take the Drakenstein Municipality and the Provincial Department of Human Settlements to court for their “failure to meet its constitutional obligation by not providing adequate emergency housing” to families facing eviction. The NGO Women on Farms has been admitted as a friend of the court. According to the article Lolo was retrenched at the Langkloof Roses farm in 2014, but he remained in his house on the farm. The farm owners subsequently sought to evict him in terms of the Extension of Security of Tenure Act (ESTA) as they wanted to allocate the house to other workers on the farm. Lolo says he has nowhere to go, although reportedly he has found work in Simondium. Apparently, the municipality offered him emergency housing at an informal settlement in Simondium which Lolo refused on the grounds that the informal settlement was poorly serviced and not a safe place to live.
Veteran land rights lawyer Johan van der Merwe seek to compel the municipality to use its own resources to house those evicted from farms, rather than rely on funding from provincial government. Interestingly however. It seems the legal team are not seeking an order compelling the Department of Rural Development and Land Reform which is responsible for ESTA to take responsibility to find solutions and provide resources, making use of the neglected Section 4 of the Act. In the view of the Executive Director of Community Services at Drakenstein Municipality:
“The National Department of Rural Development and Land Reform is the lead government institution to address evictions on farms in terms of the Extension of Security Tenure Act. They must provide legal representation and also secure the permanent tenure [alternative accommodation] of evictees”.
The case is being argued in the context of a deepening housing backlog. People wait years to access a subsidised house, so people evicted from farms – many of whom are not registered on the municipal data base – are inevitably regarded as ‘queue jumpers’, irrespective of their circumstances. Allocating housing to evicted farm dwellers can quickly become a flashpoint for conflict. There have been cases where members of local communities have threatened to mobilise to eject farm dwellers who have been allocated houses ahead of them. All of this makes for very messy and complicated local politics. Farm evictions remain a complex issue which is unlikely to be resolved any time soon.
Land governance and administration
The Minister of Public Works has been making much of the reported release of 167 portions of land measuring 14,105 ha held by the Department. However an article in News24 (23 February 2020) which purports to quote the Minister, displays little understanding of land reform. It makes reference to “redistribution claims” and provides a garbled history of the dispossession of the amaMfengu community of their property in 1927 – something effected according to the article in terms of the Black Administration Act of 1972!
US secretary of state Mike Pompeo speaking in Addis Ababa waded into the South African land reform debate, characterising proposed moves to amend the constitution and expropriated land without compensation as being disastrous for the economy and the South African people.
Meanwhile Prof Brian Ganson (BusinessTech 22 February 2020), Head of the African Centre for Dispute Resolution at the University of Stellenbosch Business School has characterised the current land reform debate in South Africa as “a dialogue of the deaf” in which the protagonists do not listen, and cannot hear each other. Ganson argues that the land question will only start to be resolved if we as a nation employ conflict resolution skills by building bridging principles and recognising the power of AND as opposed to EITHER/ OR.
“We can insist that the interests of the poor, vulnerable, and dispossessed in land restitution and land distribution be put first – AND readily agree that we must have answers for those whose lives and businesses will be inevitably be disrupted.”
On 18 February Minister Thoko Didiza lifted the ban on animal movements to auctions three months after it was imposed due to the FMD outbreak. However, while she lifted the ban, she emphasised that livestock auctions need to be conducted under stringent conditions and all livestock agents must be registered with the Agricultural Produce Agents Council. She noted that while the ban had been lifted, this did not necessarily mean that animal health was safe and urged preventative disease control measures by all livestock owners and auctioneers.
Agbiz chief economist Wandile Sihlobo cautioned that it will take time for the livestock industry to recover as the latest FMD outbreak followed quickly in the wake of the 2019 epidemic. The livestock industry was still reeling from the prolonged effects of drought.
With unemployment running at unprecedented levels people are on the move in search of livelihood opportunities. However, with a housing backlog that was estimated to be 2.1 million units in 2018, life in a shack is the only option for many poor and jobless households. IOL (21 February 2020) runs a story about how retired residents of a four-storey apartment block in Isipingo Beach face off with the poorly serviced Dakota informal settlement which has sprung up on adjacent land. This has contributed to rising tensions between property owners and informal settlement dwellers.
In Port Elizabeth residents of Vastrap, an informal settlement consisting of more than a thousand shacks report “being flooded with empty promises by the human settlements officials”. Resident’s frustrations boiled over as promises that they would be relocated, failed to materialise. People are reported to have taken to the streets in protest, burning tyres and torching vehicles including a municipal ambulance (TimesLive 22 February 2020).
Week 7: Monday February 10 – Sunday, February 16, 2020
State of the Nation
The news this week was dominated by the President’s State of the Nation Address which was delivered on 13 February 2020. However the speech paid very little attention to land reform with the president seeking to reassure citizens and investors that South Africa was in turnaround mode. With respect to urban land the president announced a social housing programme which was at the implementation stage and would result in the construction of 37,000 rental apartments. He also announced state investment of R64 billion in accommodation for students. It was unclear whether this initiative was going to conducted independently of the universities and colleges in need of such accommodation, or whether the investment would form part of the package of financial support which government provides to the tertiary education sector.
The speech noted that “government stands ready to implement key recommendations of the Presidential Advisory Panel on Land Reform and Agriculture, so as to accelerate land redistribution, expand production and transform the economy”. Again, quite how this was going to be done will presumably be addressed in the Minister Didiza’s budget speech. The Minister of Agriculture, Land Reform and Rural Development along with the Minister of Public Works will need to provide details of how and where 700,000 ha state land will be released for agricultural production, as stated by the President. His speech also alluded to a new beneficiary selection policy which will require compulsory training for potential beneficiaries, before land can be allocated to them, together with the implementation of wide-ranging drought mitigation strategies. The SONA focus on expropriation was limited to a single paragraph stating that:
Government stands ready – following the completion of the Parliamentary process to amend Section 25 of the constitution – to table an Expropriation Bill that outlines the circumstances under which expropriation of land without compensation would be permissible.
Perhaps Ramaphosa’s speech was more significant for what he left out, rather than what he put in. There was no mention at all of the downgrading of the Land Bank to junk status by Moody’s, no word of traditional leaders and the passing of the controversial TKLB; nothing about the immense challenges facing the restitution programme and the thousands of outstanding land claims, or what to do about land which has already been transferred but is no longer in production. His speech was also silent on land rights and mining.
Given the lack of substantive content in the SONA address, comment on the future land policy direction was fairly muted in the days that followed. Bulelwa Mabasa writing an op-ed in the Financial Mail (13 February 2020), praised the publication of the beneficiary selection and land allocation policy as being “a big step in the right direction”. However, Mabasa singles out some of the more curious features of this draft policy including the rightful spouses of public servants to be able to access land noting that:
“Land benefits in the context of marriages would ordinarily follow marital regimes, so the express inclusion of this category appears self-serving”.
Mabasa approves the establishment of an independent land allocation panel, but notes that that its success will hinge on the capacity and resources which are allocated to it. Mabasa highlights how the panellists will have to find the difficult balance between prioritising the poor and vulnerable and advancing the agricultural economy.
John Purchase of Agbiz had some positive feedback for the President. Organised agriculture was reportedly pleased with the emphasis on improved logistics and the overhaull of South Africa’s ports, as this will improve global competitiveness of many value chains in the agricultural sector. However predictably Agbiz reiterated their opposition to the constitutional amendment to enable expropriation without compensation.
If the SONA speech was low-key with regard to expropriation, this has not been the case with the local media in the days leading up to the President’s address. In an article published in BusinessTech (10 February, 2020) the Cape Chamber of Commerce and Industry waded into the debate around the role of the courts in regulating the extent of compensation payable in expropriation cases. This follows earlier remarks made by the Chair of the Parliamentary Constitutional Review Committee, who indicated that this should be a matter for the executive, rather than the courts. The CCCI issued a statement saying that such proposals were “outrageous” and warned of the backlash associated with government moves which it regards as “blasting holes in the Constitution and the Bill of Rights”.
On the same day Pierre Venter from BASA was interviewed by Nompu Siziba on Moneyweb to answer whether will you still have to pay your bond if your land gets taken away? Siziba noted that according to the Draft Expropriation Bill of 2019, a mortgage bond would be automatically terminated on the date of expropriation, when ownership of the property would pass to the state. However, the question remained as to who would be responsible to pay the balance of the bond owed to the financial institution – the expropriated owner of the property, or the state?
Venter noted that BASA had approached the Department of Rural Development and Land Reform back in 2011 to argue that this would place an undue burden on the property owner. According to Venter, DRDLR presented a policy framework to Cabinet, which was reportedly approved, that the state would guarantee the difference between the compensation that a property owner received, and the outstanding balance owed on a bond. However, apparently this was never transformed into legislation or regulation. Venter noted that commercial banks currently have an exposure of around R150 billion in the agricultural sector. This was moderate when compared to exposure of around R1.6 trillion in the residential and commercial property markets. Venter notes that in terms of the original 1975 Expropriation Act the state was required to pay market -related compensation plus a solatium – redress for the ‘pain and suffering’ experienced by the landowner whose property is expropriated.
The BASA representative tried to strike a balance between recognising the need for land reform, while mitigating potential instability in the banking sector and hence the economy:
First of all, let me say that we do believe that it’s absolutely essential that we have a comprehensive land-reform programme in this country, and that we rectify the injustices of the past. Having said that, though, we need to protect property rights and the bank sits in an invidious position where they need to protect borrowers as well as depositors. And if it’s going to translate into losses, if severe enough, it could cause instability in the banking sector and in turn our entire economy.
BASA had called on the ad hoc committee to ensure that even if land was expropriated with zero compensation, the state would guarantee to pay the difference between the level of compensation decided on, and the outstanding debt on the property.
Cas Coovadia MD of BASA also weighed in on the debate in an op-ed published in Business Day (12 February, 2020), warning that the property market and economic growth would be “severely affected by the expropriation of land”, irrespective of the form that this took. He noted that “the possibility of expropriation without compensation has already started discouraging essential investment by farmers and others into their properties”. From BASA’s perspective, urban land reform is a high priority given that 1.2 million families live in informal settlements.
Land rights and mining
GroundUp (11 February, 2020) reported on an application in the North Gauteng High Court by the Amadiba Crisis Committee and the Centre for Applied Legal Studies that all mining applications should be public documents. The applicants are seeking a declaratory order directing that communities are provided with full information on any mining application, so as to enable meaningful consultation and prevent future litigation, which would drain time and resources of both the community and the court.
Lucas Ledwaba provides important insights into the complexities associated with the settlement of restitution claims by setting out the case of the Maila community claim (12 February, 2020). He details the ways in which members of the community were progressively transformed from owners and occupiers of the land into labour tenants, who were forced to pay a fee to graze their cattle on land they had occupied for generations. Legal complexities, a grainy historical record, coupled with competing land claims from neighbouring communities has forced the CRLR to offer compensation. All this has left the Maila community asking ‘where is our land’? – a question that remains unanswered.
The Letaba Herald (11 February, 2020) notes that one more case of foot-and-mouth disease was reported in January, but it now seems that the outbreak is under control. According to the Herald both game and cattle farmers are holding their breath, waiting for government to lift restrictions on the movement of livestock and the resumption of auctions.
In more sobering news, the Farmer’s Weekly (13 February, 2020) confirms that stumbling sugar giant Tongaat Hulett has frozen operations at the Darnall sugar mill – the smallest of four sugar mills operated by the company. A forensic investigation conducted in 2019 found that the company’s financials had been deliberately misrepresented to obscure operational losses. The closure of the mill will result in the retrenchment of almost 400 employees. It also has major impacts on smallholder farmers and other producers who deliver cane to the mill, whose transport costs now be increased by having to divert their harvest to other mills at a distance.
Stephen Robins, writing in GroundUp, republished in Maverick Citizen (12 February, 2020) writes an interesting, if inconclusive piece, on how informal settlements can be better planned. The focus of his article is to compare re-blocking initiatives carried out by local NGOs ,versus what is described as ‘super blocking’ planning conducted by local government, and the critique that such approaches can engender. It seems that neither the approach of NGOs or government can avoid conflict in attempts to replan informal settlements, as contestation over access to land is never far from the surface. He highlights the primacy of local politics in driving conflict:
Where conflict is most likely to be generated in re-blocking and super-blocking exercises is when there is fear of displacement, or where there is concern that individual plot size will be reduced. These fears are often manipulated by shacklords and local politicians who seek to extend their own influence and access to land.
However, despite the struggles and challenges facing localised attempts to support informal settlement dwellers, Robins highlights examples of good practice which indicate that such approaches have potential to improve living conditions in informal settlements.
Week 6: Monday 3 February – Sunday 9 February, 2020
So, as reported in our roundup for January the Constitutional Review Committee agreed to extend the deadline for submissions on the proposed Constitutional 18th Amendment Bill. Bekezela Phakathi (Business Day 5 February, 2020) writes about the pressure which had been brought to bear by a range of civil society organisations and lobby groups to have the deadline extended. The first round of oral hearings on the bill is scheduled to take place between the 20th and 24th February in Limpopo and the Northern Cape.
Frans Cronje of the Institute of Race Relations (BizNews 5 February) writes a column reflecting on the decision by SA home loans to take to social media to explain that if the state expropriated a bonded property, then the bondholder would be liable to pay the bank the outstanding balance, despite no longer being the owner of the property.
Cronje argues that:
“If expropriation is a social good, and the country as a whole is thus to benefit from it, then whatever costs are attached to any expropriation should be carried by the broader society and not by expropriated individuals. Hence the cost of loans that remain outstanding following EWC appropriations should be carried by the taxpayer”.
Cronje critiques what he describes as the ANC’s ‘policy incrementalism’ asserting that “it is particularly skilled at stepping back in time from demands it is made in order to lull society into a false sense of security”. In this respect he highlights the requirement in the Bill that the courts are responsible to determine just and equitable compensation, while at the same time the ANC has been arguing that compensation should be determined by the executive rather than by the courts. In familiar IRR strident style, the article concludes with dire warnings for the country of what will follow if the Constitutional Amendment Bill and Expropriation Bill are passed by Parliament: namely that “South Africa will come to stand at the age of an abyss from which its economy may not recover for a very long time”.
Stephen Meintjes writes an op-ed in Business Day (3 February, 2020) which makes the argument for levying rents on all land. He notes that countries that have opted to raise revenue from land instead of taxing labour, capital and consumption have prospered. He gives the examples of Hong Kong, Singapore and Taiwan.
In any event it stands to reason that if you charge land value rentals and lower tax inefficiently used or speculatively held land will either be developed or come to market. So you have a double whammy: land becomes more affordable and the economy gets a kickstart. It then gets better: as taxation gradually reduces and land rent rises, those areas with minimal locational advantage (read vast swathes of our rural areas and former homelands), which had been taxed out of business can resume normal economic activity. Absent ruinous retrogressive VAT and insane fuel taxes, they get a further boost. In the urban engines of the economy these carrot and stick incentives are even more powerful.
On 7 February, 2020 the Department of Rural Development and Land Reform published the draft Land Donations Policy in the Government Gazette. Members of the public have 60 days to comment on the policy. The stated objectives of this policy are to:
The policy envisages two types of donation – one where land is donated and the land owner identifies preselected beneficiaries and the other where land that is donated has now identified beneficiaries.
The settlement of the District Six land claim and the redevelopment of the area feature in our restitution pages. You can listen to Refilwe Moloto from Cape Talk interview Nicky van’t Reit a director at legal firm Norton Rose Fulbright, South Africa who took up the claimant’s case and was involved in pro bono litigation for two years before finally succeeding to extract a plan of action from state.
On 4th February News 24 reported that the District Six land claimants, together with their legal team were supportive of the land reform department’s plan for the redevelopment of the area. The implementation of the almost 200 page plan is subject to a structural interdict which requires the Minister to report to the court every three months on progress made. The plan was presented to the land claimants for their approval. District Six committee chairperson Shahied Ajam was reported as saying that “the project had spurred an unprecedented level of positive political will and friendly cooperation between all three tiers of government”. The plan is estimated to cost R1.5 billion over a period of four years. However, where this finance was to come from was not explicitly stated. The legal team has followed up the Minister requesting clarity on the sources of funding.
Weeks 1-5: Wed 1 January – Thursday 31 January 2020
Welcome to 2020. We took a break for the holidays so we have packaged land news for January into a single update. From next week we will revert to our weekly update and linked podcast format.
The Constitution 18th Amendment Bill was gazetted on December 6, 2019 and the period for public comment closes on January 31, 2020. The amendment bill has drawn wide ranging comment. Late in December the Economic Freedom Fighters (EFF) expressed concern that the bill had been published just before Christmas, without “adequate publicity” and called on the public to share the bill far and wide. Agri SA released a statement calling for a three-month consultation period to enable submissions to be prepared and heard on the proposed changes to the constitution. The EFF were amongst the first parties to make the news in 2020 (IOL 2 January, 2020) with their concerns that the Bill would only bring about superficial changes and will not result in a fundamental restructuring of property rights in South Africa.
In his address marking 108 years since the formation of the ANC in Galeshewe township in Kimberley, President Ramaphosa promised that land expropriation was going to happen in South Africa and in the Northern Cape. According to the Northern Cape Premier white people constituted just 7% of the population in the province, yet they still owned 85% of the land. (TimesLive 8 January, 2020). Meanwhile ANC Treasurer General Paul Mashatile assured ANC youth that the party had not forgotten its Nasrec policies which included nationalising the Reserve Bank and enabling the expropriation of land without compensation. Mashatile (IOL 9 January, 2020) was quoted as saying:
If I’m asked if radical economic transformation is still the policy of the ANC, my answer is yes. If I’m asked if the Nasrec policy resolutions will be fulfilled, my answer will be yes.
From the middle of January newspaper articles warned of the approaching deadline for written submissions on the Constitution 18th Amendment Bill. At the same time pressure started to mount on Parliament to extend the comment period on the Bill, particularly because it was published during the festive season when many people were on holiday.
Around mid-January national conversation started to heat up with regard to the content of the Amendment Bill. Businesstech (17 January, 2020) drew attention to the fact that they had been no talks with South African banks on the likely impacts of land expropriation on property bonds and loans. At the same time President Ramaphosa was reported as making an appeal to the business community to present “solutions to resolve the centuries old problem of land”.
Dr Simon Hull (Daily Maverick 16 January, 2020) argued in an op-ed that “We shouldn’t be too hasty to oppose this bill, because it might actually open the door to the very thing we need.” He notes that as the constitution currently stands “property is not limited to land and the purposes of expropriation are not limited to land reform”. In his view the “Amendment Bill will impose these limitations on the constitution” as it makes it “explicit that EWC may only apply to land and buildings expropriated for the purposes of land reform… which could be a good thing for property security”.
Hull goes on to argue along with many others that:
…the constitution is not the main impediment to land reform. It is ineptitude, mismanagement, maladministration, greed and corruption that are at the heart of the slow place and, in some cases, failure of land reform.
His main concern is with the wording of Subsection 3a which leaves unclear the “specific circumstances” under which a court may determine that no compensation is valid. As he points out this is where the “rubber hits the road and where public comment will be crucially important”. In the end however it seems that Hull can’t quite make up his mind about whether to support the bill or not, due to the lack of clarity about the overall rationale and the vulnerabilities implicit in the unspecified “specific circumstances’ highlighted above. Subsection 3a has since proved to be the focus of much commentary as it reiterates the need for a law of general application such as an expropriation law to be adopted by Parliament.
As Marion Merton has pointed out (Daily Maverick 28 January, 2020) to date “democratic South Africa has failed to adopt expropriation legislation, leaving the Apartheid 1975 Expropriation Act in force”. She provides important background on the Parliamentary process around the Expropriation Bill and the various versions this has been through, noting that in the 2019 version the Bill states that:
It may be just and equitable for no compensation to be paid where land is expropriated in the public interest having regard to all relevant circumstances.
Merton notes that the constitutional amendment cannot exclude recourse to the courts which would be unconstitutional. She rather unpacks the factional ANC politicking around the constitutional amendment and expropriation processes, which conveniently ignores that “Ministers have expropriation powers already, as do Premiers and Mayors” – powers they have not used.
Thando Maeko (Mail and Guardian 17 January, 2020) reports that the DA, the Freedom Front Plus and the African Christian Democratic Party have all called for this clause to be scrapped, cautioning that the current wording “it makes it possible for extremely arbitrary circumstances to be proposed through legislation” which only requires a 51% majority to pass in the House of Assembly. Ina Gous, a political analyst from the University of the Free State, takes the opposite position to Simon Hull above, arguing that the amendment will create more uncertainty in the land reform process.
It is problematic that, in this amendment, property is not only limited to land and that any property – for example, cash, computers and vehicles – may be expropriated. It is also problematic that lawmakers, specifically the governing party in any administration, may change the circumstances of expropriation without compensation at any time.
According to Committee Chair Dr Mathole Motshekga:
South Africans want certainty. They want to know where we are going. We think if land is released, we won’t be complaining about unemployment. There will be work for everyone to do. We think this is the key to the future.
There is a significant conceptual leap between the release of land and the eradication of unemployment. The irony to date is that it can be argued that land reform as currently implemented has probably contributed to a net loss of jobs in the economy, up and down the agricultural value chain.
Businesstech (23 January, 2020) reported on an interview with Dr Motshekga on ENCA where he is reported to have stated that the ANC does not support the Section 3a of the amendment which gives the power to a court to determine the circumstances under which the amount of compensation paid for land would be nil. He argued that this power should have been “given to the executive”.
Suren Naidoo (Moneyweb 28 January, 2020) reported that the Banking Association of South Africa (BASA) and Business Unity South Africa (BUSA) would strongly oppose any attempts to reduce the power of the courts to determine just and equitable compensation, and the circumstances under which nil compensation would be payable. The article also quotes Neil Gopal CEO of SAPOA as stating that:
If the courts are removed from this process, the protection of property rights in South Africa is likely to diminish, resulting in a downward investment in agriculture as well as in property investments.
BUSA acting CEO Cas Coovadia was critical of Dr Motshekga arguing that:
We can’t have irresponsible statements at this crucial time, especially with ratings agency Moody’s watching us so closely. The SA economy is facing less than 1% growth this year and investment is critical right now.
In the midst of all the politicking there is a helpful interview with Associate Prof Elmien du Plessis which you can listen to on Capetalk . Du Plessis is an expert on constitutional and expropriation law who confirms that parties are unhappy with executive decisions has the right to approach a court for review. She notes that currently the amendment states that in all cases where nil compensation is payable this decision must be taken by a court, where as the ANC says no – a decision about nil compensation should follow the normal procedure and where party object they have still retained the right to approach the courts.
So is it all a storm in the proverbial teacup? That’s not clear yet. After many months of stating that the deadline for submissions would not be extended beyond 31 January 2020 the ad hoc committee announced that the deadline would now be extended to 29 February. So, you can be sure that in the month ahead the debate will intensify over the pros and cons of the Constitutional 18th Amendment Bill. In the process it seems likely that the whole process of land reform itself, and its impacts to date will find itself increasingly under the spotlight.
Very little news about farmworkers has made it into the media in the first month of 2020. A good news story promoted by GCIS and reproduced in Sowetanlive (2 January, 2020) profiles the case of Nitalfo Pty trading as Protea farm, a land reform initiative managed by Marilyn Siegel, a farmworker’s daughter, who received the award of the 2019 Top Entrepreneur in Commercial Agriculture in the Western Cape.
Elsewhere in Mpumalanga it was reported that the Department of Labour was investigating illegal deductions by Cameron Boedery from farmworkers’ wages. According to workers interviewed by the Sowetan (14 January, 2020) these deductions accounted for almost half of their wage bill. Interestingly however, the story indicates that one of the major deductions was for the cost of grazing livestock owned by the farmworkers. The story does not provide any indication of how many stock the workers were allowed to keep, or what the terms of the agreement was between them and the farm owner. Workers complaints prompted an inspection by the Department of Labour. Penwell Dlamini for the Sowetan reported that the owner of the farm was not available for comment on the matter.
Land governance and administration
An editorial in the Mail and Guardian (31 January, 2020) reflects on progress with the implementation of resolutions taken at the 45th National Congress of the ANC in December 2017. Among these resolutions was a commitment to secure the tenure of 18 million South Africans living in communal areas. This included an undertaking to “democratise control and administration of areas under communal land tenure”. The editorial revisits recommendations made by the reports of the Motlanthe High-Level Panel and the Presidential Advisory Panel, both of which recommended that the legislation which created the Ingonyama Trust either be repealed or substantially amended. As highlighted in a previous weekly land news update, the Minister for Agriculture, Land Reform and Rural Development Thoko Didiza had sidestepped this recommendation in her statement made in December, which set out government’s response to the panel’s proposals.
The editorial reports that at the Cabinet planning session held earlier in January, which set out to identify priorities for the year ahead, “the issue had been returned to the backburner, where it has stewed for the past quarter-century”. The editorial concludes that once again “political expediency has trumped principled action”.
An op ed in City Press (10 January, 2020) by Zakhele Mthembu of the Free Market Foundation reviews the implications of the signing into law of the Traditional and Khoisan Leadership Act in 2019. He focuses in particular on the significance of section 24 “which gives traditional councils the power to enter into agreements with third parties, such as mining companies, on behalf of the community. Mthembu argues that “the effect of this section will remove property rights from individuals and give them to a council. This is an injustice that may include deprivation of land”.
The ongoing saga around 79-year-old David Rakgase’s bid to buy land he has leased from the Department for decades returns to the news. Business Day (19 January, 2020) reports that while the Department of Agriculture, Land Reform and Rural Development had abandoned its appeal against the judgement that required it to sell Mr Rakgase the land, it now sought a price nine times more than that indicated by the Pretoria High Court as just and equitable.
Land -related laws
Moneyweb (29 January, 2020) reports how “72 year old Agnes Sithole went to court to challenge a sexist law – and won not only a share of her husband’s property but a legal victory that will protect some 400,000 other black South African women”. The article notes that black women married prior to 1998 were subjected to a discriminatory clause within the Matrimonial Property Act of 1984 and subsequent amendments. This gave the husband ownership of all matrimonial assets and the right to sell them without consulting his wife. The Legal Resources Centre assisted Sithole to challenge this outdated law and to assert her independent rights to property accumulated during her marriage. The LRC is planning to hold workshops in rural areas to educate people about this important ruling which advances the property rights of women.
The Department of Agriculture, Rural Development and Land Reform gazetted a new draft Policy for Beneficiary Selection and Land Allocation on 3 January 2020. The policy document is prefaced with a problem statement that:
Currently within the land redistribution programme vulnerable groups and the marginalised have not been given sufficient opportunities to have access to land. It is therefore critical for the state to prioritise the most marginalised and the vulnerable groups.
The document also highlights “the lack of a credible and transparent process for land allocation and beneficiary selection which has resulted in the manipulation of the process”. Importantly, the document acknowledges that “the lack of access to land by poor municipalities in rural and peri-urban areas for commonage and settlement purposes has resulted in a lack of access to land for production and settlement by vulnerable groups”.
The policy seeks to:
Despite the undertaking to address the needs of local municipalities for commonage, the policy explicitly states that the Department will not acquire new farms for commonage, but will release existing state land to support these applications. This of course assumes that there is sufficient and appropriately located state land to release. There does seem to be some contingency provision as the policy later notes that “qualifying municipalities and communities in communal areas may apply directly to the Department for the acquisition of strategically located properties to address particular and urgent needs”.
The policy provides a long list of those who are disqualified from accessing land, including employees of the state and state owned enterprises, although it seems to make an exception for traditional leaders, provided that they disclose their status and remuneration by the state, and can prove that they are involved in farming. In this instance the Minister makes the final determination.
With respect to beneficiary selection, the policy document acknowledges the recommendation of the Presidential Advisory Panel that the beneficiary selection process should follow the guidelines set down by FAO on the responsible governance of tenure of land, fisheries and forests.
The policy proposes that all agricultural graduates applying for land will be subjected to a three-year apprenticeship programme and will be placed on a farm under a “Master Farmer who has gone through a master training programme and qualified”. Who qualifies to be a master farmer remains unclear.
The policy proposes the establishment of a national and provincial land allocation and selection panel established as a non-statutory body with diverse representatives. The national panel has responsibility for the allocation of land worth more than 50 million Rand, whereas the provincial panels may allocate land under this threshold.
The centralisation of the selection panel may have the unintended consequence of excluding poor and vulnerable applicants, who would be better identified and assessed at local municipality scale, as part of a localised land reform, land acquisition and agricultural development planning process, undertaken as a sector plan within the municipal IDP.
The public have 60 calendar days from 3 January to submit comments on the draft policy, which represents an important development with some potential to begin to address the corruption and elite capture which has increasingly overwhelmed the land allocation process.
The Citizen (21 January, 2020) reports on a statement by the Democratic Alliance Spokesperson on Agriculture and Rural Development Jacques Smalle in which he stated that of 818 farms acquired through land reform in Limpopo province, only 218 (26%) were leased to beneficiaries, while the remaining 609 (74%) had not been leased. The rental income obtained from the 218 leased farms was just R252,391. The article does not make clear whether this was an annual or a monthly rental figure. It also does not clarify whether the 74% of farms remain unutilised, or allocated by means of caretaker agreements and other such mechanisms. These details notwithstanding, such data, if it is accurate (no data source is disclosed) represents a very worrying trend.
A number of stories focus on restitution in the month of January. The DispatchLive (6 January, 2020) reports on the loss-making Fish River Sun Hotel which was purchased by the Department of Rural Development and Land Reform in 2017 for 75 million Rand as part of the Prudhoe restitution claim in Peddie, Eastern Cape. The hotel had closed in December in November 2017 but the Department reopened the resort in 2018 despite having received advice not to buy the facility. According to the article the department had been warned that “the price and terms of the purchase from Sun International would cost the state 33.9 million Rand annually in operating losses. This was projected to be four times as high as projected income. The Department was reportedly inviting new service providers to lease and operate the facility.
District Six is back in the news. IOL (9 January, 2020) reports that the City of Cape Town is in talks with the Department of Agriculture, Rural development and Land Reform to discuss the redevelopment of the area and the infrastructure required for its redevelopment. A plan submitted by Minister Thoko Didiza contains details of 954 housing units which are to be allocated to individual claimants and leaves 13 ha available for other high-density developments. This plan seeks to finally address the claims lodged in the first round of restitution in 1998. Apparently an additional 1500 claims were lodged when former President Zuma reopened the land claims process – only to have the lodgment of new claims halted by a judgement of the Constitutional Court.
Michelle Nel writing in the Mail and Guardian (21 January, 2020) reviews the implementation of South Africa’s largest and most expensive land claim on the Mala Mala exclusive game reserve. The claim was settled in 2013 in a deal which saw the state pay R1.1 billion – 300 million Rand more than the asking price to the private owners of the reserve. So, what has happened since then? According to Nel, there were 960 claimants eligible for compensation from the payout, but apparently an elite group of 250 people have captured the majority of these payments.
Right from the outset there were question marks over the identification of the claimants and the packaging of the claim. Emeritus Prof Peter Delius, one of South Africa’s leading historians with in-depth experience of forced removals and land restitution claim verification stated that “our research team argued very specifically in the original land claim that the group of claimants was not a true community”. It seems that the Commission on Restitution of Land Rights had batched a number of separate land claims into a single settlement agreement. Those in the group of 250, claim that the remainder of the verified claimants have been “foisted” on them by the Land Claims Commissioner.
Given the revenue flows coming into the CPA it’s clear that the stakes are high. Between 2014 and 2017 the CPA was paid 36 million rand in rentals and earned 5, 5 million rand through community tourism levies. A further 40 million Rand dividend was received in 2018.
A recent High Court judgement was obtained against the Communal Property Association which had been set up to manage the funds. The CPA executive had been accused of “running the CPA like their own spaza shop”. The judgement handed down by Judge NV Khumalo directed that the CPA must be subjected to forensic investigation and that all financials of the Mala Mala deal must be made public. The judge also ordered that the beneficiary list must be properly verified and the interim committee should be replaced through a new committee elected at an annual general meeting to be held within 60 days of the judgement. However, Nel reports that six months later nothing has been done and that the Department is in contempt of court.
According to Prof Delius:
Mala Mala is a critical example of state capture. There should be no political interference in land claims. The Mala Mala restitution should be stopped in its tracks and sent back to the Land Claims Court.
Much of the news about the Public Protector has focused on proceedings launched in Parliament to challenge her fitness to hold office. However Rebecca Davies writing in the Daily Maverick (28 January, 2020) examines a new Public Protector report on another bungled land restitution claim in Limpopo province. In this instance the Tshwale people lodged a claim in 1996, but it appears that the land which they claimed was awarded to their neighbours of the Pheeha community. Davies describes this as an “absurd saga”. Reading through the article one can only agree. Apparently in a memorandum dated 2010 the then DRDLR acknowledged that the wrong portions of land were given to the Pheeha community and recommended that they should be negotiations between the two groupings to enable the restoration of the land to those entitled to it.
However, since receiving the Public Protector’s report it appears that the Chief Land Claims Commissioner backpedalled on this admission and now claims that in fact the land was correctly allocated after all. The Public Protector was unconvinced by this explanation and has found that the DRDLR acted improperly and has ordered the Commissioner to apologise in writing to the Tshwale community and to refer the matter to the Land Claims Court for adjudication within 30 days.
The ongoing foot-and-mouth epidemic continues to attract news coverage with the reported arrest of a Limpopo auctioneer on charges of violating the foot-and-mouth ban and a statement by the Democratic Alliance that the government’s inadequate response to the epidemic has been damaging to the country and the economy.
Perhaps the most fantastical story to appear in this section for a while, appeared in DispatchLive (31 January 2020) where Adrienne Carlilse reports on government’s grand plans to turn the bankrupt Magwa and Majola tea estates near Lusikisiki into “a new Dubai”. The MEC for Rural Development and Agrarian Reform in the Eastern Cape Nomakhosana Meth was reported as saying: “I feel like today is Christmas; I have never felt this good. The kind of development I have seen has pumped me up and given me confidence and energy to speed up the process”.
Meth announced plans for diversification of crops, including “avocado hemp and macadamia nuts, the construction of a majestic glass bridge over the Magwa Falls, a lift to enable tourists to move up and down the gorge, an 18-hole golf estate, amphitheatre, cultural village, conference centre and a five-star multi-storey hotel with an infinity pool”. Given the experience of the Fish River Sun outlined above, one could be forgiven for asking what MEC Meth has been smoking.
Any doubt that urban land has become the priority for land reform can quickly be put aside after a scan of stories appearing in January in our urban land section. In Johannesburg the MEC for Human Settlements, Corporate Governance and Traditional Affairs vowed to evict people illegally occupying flats in Mamelodi Extension 15. This followed a court action which the occupiers lost and according to IOL (21 January, 2020) subsequently torched the office of the municipal councillor in the area.
The City of Cape Town is under enormous pressure from housing activists after it reportedly renewed the lease for a 45.99 ha golf course for a token sum of R1000 a year (News 24 18 January, 2020). Housing activists have long argued that land allocated for golf courses provides a means of creating buffer strips which continue to segregate the city. Meanwhile the city has argued that the land in question is not suitable for residential development.
A range of other reports curated on this page examine other cases of land occupation and eviction in different parts of the country. We will cover more information on these trends in next week’s land-use update.
Week 50-51: Monday 9 December – Sunday 22 December
The FW De Klerk and the Institute for Race Relations Team have been busy in the last couple of weeks writing commentary on the implications of the proposed Section 25 constitutional amendment. Dave Steward for the FW de Klerk Foundation notes that although this is the 18th amendment to the Constitution it is the first amendment to the Bill of Rights since the adoption of the final constitution in 1996. The Foundation makes the point that while the Constitution Amendment Bill will require a two thirds majority to pass, once it becomes law, this would then leave “the determination of the circumstances in which zero compensation may be paid to be stipulated in ordinary legislation that can, of course, be adopted or amended by a simple majority”. Steward and other commentators regard the current wording of the amendment as the Trojan horse which will erode the security of property rights and by implication retain the fundamentally unequal status quo.
Ivo Vegter writing in the Daily Maverick seeks to constitutionally limit the circumstances under which zero compensation could be payable arguing that these “should themselves be enshrined in the Constitution. Changes to those circumstances should require a Constitutional Amendment.”
Similar stances are taken by Corrigan and Jeffery representing the Institute of Race Relations. Corrigan, like Steward, argues the way that 18th Amendment Bill is currently worded could potentially allow for a subsequent Act of Parliament to be passed which would, by simple majority allow all land to pass into the custody of state “as in the case of water and mineral rights”.
Lloyd Phillips from the Farmer’s Weekly reports on the swearing in of Prof Richard Levine as the Special Master to oversee the process of settling stalled labour tenant claims. This followed an order by the Constitutional Court. According to Siya Sithole the land rights coordinator at AFRA, cited in the article “The Special Master is an extension of the Land Claims Court and will provide an independent monitoring mechanism to ensure implementation of a plan to settle labour tenant claims, which must be submitted to the Constitutional Court by 31 March 2020”. According to Sithole:
Representatives of the agriculture department would thereafter have to periodically, and under oath, provide the Land Claims Court with progress reports on the implementation of the plan.
On 19th December Minister Thoko Didiza briefed the media on government’s responses to the recommendations of the Presidential Advisory Panel on Land Reform and Agriculture. The report was handed to the President on 24 July, and government departments were given two months to read the report and respond to the recommendations.
The boxes below summarise the main recommendations of the Presidential Advisory Panel.
Recommendations for immediate action
Recommendations to refocus land reform policy
Recommendations towards a consolidated land reform policy framework
The Minister’s response to the panel’s recommendations was not particularly substantive. Rather than indicating which of the recommendations were supported, and setting out a plan of how these recommendations would be acted upon, the Minister chose to speak to those recommendations which were not supported by government. And even here there was not much clarity. The reasons why some of the recommendations were not accepted appear to be fairly arbitrary. For example, the Cabinet did not support the recommendation that land reform should be informed by an agreed vision for agrarian reform. It rather held that that the 1997 White Paper on land policy “was still adequate in this regard”. Cabinet identified certain challenges with respect to the recommendations proposing the creation of more inclusive towns and cities, but in her statement, the Minister did not elaborate on what these were.
Likewise, government did not support the establishment of the proposed land reform fund as “the optimum and judicious use of the current budget allocation can still address the resources required for land reform”. The proposal for a Land and Agrarian Reform Agency as an implementing agent, was deemed to be unnecessary as the new configuration of the Department would address the concerns of the panel. Finally, Cabinet was of the view that some of the other recommendations may require further work and in this they chose to single out conditions to be imposed on the application for land ceilings.
So, it’s unclear in the end where the recommendations of the Presidential Advisory Panel have actually fallen. Are we to assume that all the recommendations which were made and not specifically rejected in the statement have now been accepted? On the face of it the Minister’s statement looked rather like a box ticking exercise on a ‘To Do’ list entitled Things to Get Done before the End of the Year. This raises serious questions about the value of constituting such panels, if the state remains so anodyne in its response to expert recommendations.
Numerous news outlets and commentators have reported on the Minister’s statement. See our land policy page for a range of selected responses, which we do not cover here.
On the positive side, Minister Thoko Didiza was reported to have submitted a detailed plan on the redevelopment of District Six to the Land Claims Court. This included a conceptual layout for redevelopment, details of programme funding mechanisms, estimated timeframes for implementation and methodology for allocating residential units to claimants. According to Suné Payne writing in the Daily Maverick, if the redevelopment plan is accepted claimants could move back to the area within three years. Given the delays to date, this would be a near miraculous outcome. As a gesture of acknowledgement to the dispossessed District Six families, Keizersgracht Street was officially renamed Hanover Street on Heritage Day.
News in this section continues to be dominated by the spread of foot-and-mouth disease, with several stories focusing on the financial woes of Onderstepoort – the state owned animal vaccine manufacturing company. These concerns have been subsequently denied.
Finally, as the year ended, President Ramaphosa used his powers to grant a special remission of sentence to certain categories of prisoners. These included the release of the AbaThembu King Dalindyebo who was sentenced in 2009 to 15 years in jail on seven counts of kidnapping, three of assault and arson, one of defeating the ends of justice and one of culpable homicide. The King was charged and convicted followed the kidnapping of a woman and her six children, the burning their homes to the ground and the assault of four youths, one of whom subsequently died from their injuries – apparently, all because one of their relatives had failed to present himself before the king’s traditional court. King Dalindyebo started to serve his sentence (which was subsequently reduced to 12 years by the supreme Court of Appeal) on December 31, 2015. Contralesa has argues that the real reason for jailing the king was that he switched his support to the DA. Analysts report that the President has been under pressure to both release and pardon the AbaThembu king.
Week 49: Monday 2 November – Sunday 8 December
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.
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:
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”.
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.
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
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.
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.
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.
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.
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
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.
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”.
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”.
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.
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.
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.
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
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.
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)
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”.
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.
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.
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.
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
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.
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.
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?
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.
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
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.
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.”
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.
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.
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.
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?
The High Level Panel chaired by Former President Kgalema Motlanthe on the assessment of key legislation and the acceleration of fundamental change published its report in 2017. Unfortunately the lauch of the report coincided with an intense news focus on Zimbabwe as Robert Mugabe was forced to relinquish power. Very little media coverage has been devoted to this report which provides comprehensive analysis of the rural and urban land questions, rural governance and the different dimensions of the land reform programme. The report also makes wide-ranging and substantive recommendations for change. It now seems as if this important report which drew on extensive public hearings and a wide range of in-depth commissioned research has been shelved, overtaken by the current national debate on expropriation without compensation.
A range of leading research and social justice organisations, together with individual experts and practitioners have contributed to provide a set of short summary papers on key aspects of the report. These are all publicly accessible here
The collection includes summary papers on:
In a recent article in Business Day Agri-Western Cape CEO Carl Opperman is quoted as stating that Western Cape farmers have recorded 14 billion in losses as a result of back to back droughts. The article forecasts that "an estimated 50 000 people could be out of work soon". According to Opperman the employment losses would primarily be experienced by seasonal workers who would either be employed for fewer months, or who might not find work at all." The drought has forced officials to impose strict water restrictions, and the agricultural sector, which is the largest consumer of water, has had its supply curtailed by between 60% and 87%,
Opperman said: "Both the fruit and vegetable industries have been hard hit by the drought and water restrictions. In the Ceres area, for example, the limited water supply resulted in 50% less onions and 80% less potatoes being planted this season. This impacts on food production and wage losses of millions of rand for seasonal workers."
Similar concerns were also reported in October 2017 by provincial CoGTA which highlighted the risk of "civil unrest" as an estimated R40 million rand in agricultural workers wages had been lost as farmers cut back on new planting and harvests fell.
How will the drought impact on advancing a joint programme for decent work in the agricultural sector?
Potentially the imapcts are enormous as producers and workers experience hard times. Putting such a programme in place requires that producers, workers organisations, state and civil society organisations remain in productive conversation to improve conditions on farms. The drought and projected layoffs risk placing these relationships under intense strain and raise the level of conflict risk in the sector.
Can the drought present an opportunity?
Despite the risks identified above these diificult times can also be regarded as an opportunity to intensify and deepen multilateral conversations. Not everyone has subscribed to doomsday scenarios. Patrick Dowling highlights that:
"Realising that world‚ national and local leaders can do only so much‚ people have started working co-operatively and innovatively. There are domestic‚ street and faith-based responses‚ workplace plans and initiatives to support frail and vulnerable. As people work together‚ mesh talents and develop trust more dots are joined‚ giving issues of sustainability and co-operative solutions new meaning and practical application".
These initiatives need to integrated into the agricultural landscape. There are are many things this protracted drought can teach us. It will be important for producer bodies and the provincial department of agriculture to communicate clear and reliable information about the impacts of the drought and to project how these impacts could play out for different commodities and in particular localities.
A wide range of actors need this information so that joint responses can be developed, solutions found, implemented and monitored. Hard times should provide the cue to open up spaces for dialogue and communciation rather than closing them down.
Siyabu Manona, one of Phuhlisani NPC's directors featured recently in a Daily Maverick article reviewing the severity of the drought in the Western and Eastern Cape. While Cape Town has been capturing the headlines there is a serious crisis gathering increasing momentum in the Eastern Cape. The article written by Marelise van der Merwe quotes Siyabu as follows:
The reality, says Siyabulela Manona, is that provinces like the Eastern and Western Cape cannot think only in terms of short-term drought solutions, because drought is only a symptom of a much larger problem.
Manona told Daily Maverick it was necessary for policy-makers to take a long-term view with regards to drought, and to apply different lenses to rural and urban dwellers.
“The risks are different for city and rural residents,” he said. “Rural residents are very vulnerable to extreme weather conditions in some ways. But city dwellers may be more vulnerable to fires or other, related events. We are not only dealing with one drought. We are dealing with climate change, which is a longer-term problem. It is important to realise that, and to plan our development accordingly, both in urban and rural areas.”
This includes a shift towards subsistence and small-scale farming with more water-sensitive approaches; curriculum changes that include a focus on sustainability; and rethinking urban planning to maximise limited resources. A practical difficulty, he said, is the influence of five-year terms in government, which means there is too little room for meaningful long-term implementation at municipal or provincial level.
Manona told Daily Maverick that the cumulative impact of cold, extreme heat, dry conditions, flooding, drought and other extreme events have had noticeable impacts on those in small villages and rural areas in recent years.
“People are keeping less livestock, they complain about the heat and having little access to water,” he said. “On the positive side, however, there is an increased awareness of the impact of climate change. We must not overlook that. We must work with that.” That being said, he added, one “must not ignore” the impact on cities, either.
“This is not just a drought,” he said. “This is something much bigger than that. Drought is only one part of it. We must start to plan differently, live differently, which is something not everybody is ready to hear.”
A new year marked by the launch of the Phuhlisani NPC website and blog. The blog will aim to provide news on Phuhlisani's work, links to useful articles and think pieces and reflections on the politics and practice of land and tenure reform in South Africa. We are going to make a concerted effort to communicate our work better in 2018 which we regard as a critical year in South Africa's history - one where there is a national fightback against elite capture and new directions for land reform which ensure equitable access to land and secure tenure for all but which recognise the danger of opportunist simplifcation of this complex issue.