KB.L Weekly Land news

We are now including the weekly land news updates from our main land news site. You can also listen to our weekly podcast series 

Week 45: Monday 4th – Sunday 10th November
Expropriation

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

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

Option 1 is to amend section 25(2)(b) and Section 25(3)(b) which would allow for a court to determine that under certain circumstances no compensation would be payable in the event of expropriation of land for the purpose of land reform. This seeks to make more explicit what legal experts argue is already contained in the constitution.
 
Option 2 is to insert a new subsection:
"Notwithstanding the requirement for compensation contemplated in subsections (2), (3) and (4), land may be expropriated without the payment of any compensation as a legitimate option for land reform in order to redress the results of past racial discrimination.”

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

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

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

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

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

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

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

Traditional leadership, land governance and administration

Motlatelo Mohale, a Daily maverick opinionista wrote a column on 6 November entitled Traditional leadership bullying needs to stop. He speaks about the patriarchal, undemocratic and unconstitutional practices which have elevated a lot of traditional leaders to become elites in rural communities. He notes that South African traditional leaders currently cost the taxpayers over R250 million a year while their “bullying tactics puts democracy under threat”.
Dr Aninka Claassens, senior researcher at The Land and Accountability Research Centre at UCT writes a disturbing Op-Ed in the Daily Maverick. She notes how the Traditional Courts Bill, which the ANC pushed through the National Assembly just before the 2019 elections, was now on a fast track through the National Council of Provinces.

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

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

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

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

Restitution

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

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

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

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

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

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

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

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

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


Week 44: Monday 28 October – Sunday 3 November

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

On the same day a similarly confused story appeared on IOL where President Ramaphosa was reported to have insisted that the government will “not allow land invasions during the expropriation of land without compensation”.
(Perhaps these stories are being auto generated by an app employing key word algorithms somewhere? Far fetched? Not really. A recent piece entitled The Next Word in the New Yorker asked the question whether a machine employing artificial intelligence could write an article that would meet the publication standards… but we digress)

In other news Terence Corrigan from the Institute of Race Relations writing in IOL voices his frustrations that the banking sector in South Africa do not seem to share his doomsday reading of the implementation of expropriation without compensation.
Overall nothing particularly insightful on this topic in week 44.

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

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

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

Land governance and administration
The Ingonyama trust comes under scrutiny again in a critical piece in the Daily Maverick by Mary de Haas, a veteran independent violence monitor from KwaZulu-Natal. De Haas provides evidence to counter the persistent complaints from Zulu King Goodwill Zwelithini that the Ingonyama Trust Board has been inadequately consulted about options for the future. She also takes issue with the claims that the king could rightfully claim ownership of the land even if Ingonyama trust had never been set up by law. She notes that:
The office of traditional leadership today is largely a product of colonialism and apartheid. Since the 19th century, chiefs have not been “chiefs by their people… [W}ith the formalisation of the policy of indirect rule chiefs became accountable to the government which paid their salaries and defined their domains.

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

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

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

The old adage of ‘follow the money’ usually provides an accurate indicator of how serious government is about land reform. The Farmers Weekly reported on Tito Mboweni’s medium term budget policy statement in which they observe that only passing reference was made to agriculture and land, noting that if land reform was to be accelerated it would have to be done without any significant additional budget allocation from the national fiscus. In fact, the opposite was more likely – that the Department would have to do more with less, as there were downward adjustments made to the 2019/ 2020 budget allocations for both the former Department of Agriculture, Forestry and Fisheries and the former Department of Rural Development and Land Reform. These two departments are only expected to be merged by 1 April 2020.
Meanwhile IOL reported on the Bridge Building Land Summit held in Paarl on 24th of October. Other sources cite this as a gathering of “Christ centred experts” seeking solutions to the key challenges “facing South Africa’s agricultural landscape” According to the organiser of the summit, Jan Oosthuizen:
​
“We need to build bridges in South Africa, we need to find national cohesion. We hear enough about the problems, we need solutions now”.

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

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

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

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

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

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

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

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

During 25 years in democracy the self-organising of impoverished communities has been seen as some form of conspiracy. This is done to justify violence on us. Organising outside the ruling party and the state has cost us lives. We have lost 18 housing activists since 2009 who insisted that land and wealth must be shared amongst those who work it. Many of us have scars just for insisting that impoverished people count in our society.
 Brutal and unlawful evictions continue to terrorise our communities. The organised izinkabi like Land Invasion Unit of eThekwini, the banned Red Ants of the City of Johannesburg and Law Enforcement Agencies of City of Cape Town have subverted the law and use violent force on landless people. We have lost lives under the operations of these izinkabi. This is what happen when the political leadership has been replaced by gangster politicians. This is what happens when a democratic state is replaced by a police state
 After almost 15 years of struggle we remain committed to building radical democracy from below. The wealth, the cities and land must be shared. The right to participate in discussions and to make decisions must be shared. This is the mission that confronts our generation.

Ironically News 24 reported in the same week that the suspension order on the banned Red Ants has been lifted. According to the judgment
“Given the severely restrained economic climate in South Africa, where thousands of people are retrenched every month and millions are unemployed, it is clear to me that the factors of irreparable harm and balance of convenience favour the applicants”.

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

​At the same time EWN reported that the Gauteng Human Settlements Department was in the High Court, seeking a blanket eviction order  to help police remove land invaders off government property immediately. without having to apply for an individual eviction order every time, thus delaying the process.
It is becoming increasingly clear that the struggles for land and livelihood opportunities are now converging in the urban space. It remains to be seen how South African policy makers and urban planners will respond to this pressure. Can real political leadership be provided – or has this been totally subverted by those that Zikode characterises as gangster politicians?