We are now including the weekly land news updates from our main land news site.
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.