Land and agrarian reform in South Africa:

Has government lost its way?

Prof Ben Cousins and Dr Edward Lahiff (Programme for Land and Agrarian Studies, University of the Western Cape)

Harold Wolpe Memorial Trust forum meeting

Cape Town, 25 April 2002

SUMMARY NOTES

BEN COUSINS

Introduction

PLAAS was established in 1995. It does in-depth field research, policy analysis and support, training, postgraduate training in land and agrarian reform, and work in the field of poverty reduction.

Land reform had a high priority in 1993/94. The Reconstruction and Development Programme (RDP) said this would be a central driving thrust of the African National Congress (ANC) in government. NGOs succeeded in putting the restitution of land to people who were dispossessed of it under apartheid high on the political agenda. It is significant that the Restitution of Land Rights Act (see following section) was first post-apartheid piece of legislation to be passed.

However, after this initial prominence, land reform became less important in the eyes of the government. A ‘new realism’ took large-scale land reform and nationalisation off the agenda. The World Bank strongly influenced the development of a market-based system for redistributing land. Restitution, redistribution and tenure reform were separated from one another as aspects of the land reform programme. The adoption of the Growth, Employment and Redistribution macroeconomic strategy (Gear) in 1996 saw a reduction in emphasis of the goals of the RDP, continuing a trend from the late 1980s. Agricultural subsidies were removed and tariff barriers to imports were reduced.

The emphasis by National Treasury on reducing the size of the civil service has meant the human resources needed to implement a large-scale land reform programme are simply not being made available. The government also found that it is easier to take people off the land than put them back on it [because so much follow-up support is required]. We have a deep and intractable problem of rural poverty.

In the run-up to the 1999 election, many ANC politicians looked at the lack of change in rural areas. After the elections there was a change in the political leadership of land affairs when T. Didiza was appointed minister. However, the issue continued to lose prominence as a government priority. In 2000 the ruling party in Zimbabwe lost a referendum. The events which surrounded the Zimbabwean general election and presidential election have pushed the land issue back into a prominent place on the policy agenda.

EDWARD LAHIFF

Restitution

Restitution has been relatively successful, probably the most successful aspect of the land reform programme. Given the slow progress in other areas of land reform, it has become the flagship programme by default. The President spoke about this in his state-of-the-nation speech. However, restitution has a very limited extent.

The principle of land restitution is the return of land to those who lost it under apartheid. It is controversial that only land lost after 1913 is covered by the Restitution of Land Rights Act. The expansion of the historical frontier in all but the far reaches of Limpopo, KwaZulu-Natal and Mpumalanga happened before then.

The programme is also constrained by the deadline for the submission of claims by the end of December 1998. Many people missed that deadline because they did not know about restitution or about how to lodge a claim. Beneficiaries of the programme are thus largely people removed under the Group Areas Act, people who lost land when the homelands were being consolidated, and people who lost land in the ‘black spot’ removals of the 1960s and 1970s. Vast historical land dispossessions are simply not covered by the Act. Restitution can therefore not be seen as leading to a substantial transfer of land. The fact that most claims have been settled by cash compensation means that the potential of the programme to redistribute land is limited.

It is difficult to say how many restitution claims have actually been settled. Midway through 2001, the Department of Land Affairs (DLA) said 12 000 claims had been settled, the figure they give now is 29 000 claims. This is partly the result of how the counting has been done.

The emphasis of the authorities to date has largely been on cash compensation. It is an administrative process which is quicker and easier than acquiring land and returning it to the original owners or their descendants. Many claimants have established new homes elsewhere, so they prefer cash compensation. Cash is also much quicker than waiting for land, because doing so usually takes a very long time. By and large, urban claims have received priority and few large rural claims have been tackled. Large numbers of people may be attached to one claim in rural areas – up to 10 000 people. The land in question may be held by many landowners and the ability of the state to buy the land is constrained by low budget allocations. Most restitution has taken place in urban areas. If this programme is to transform the existing pattern of landholding in South Africa, large-scale restitution will have to take place in the rural areas as well.

Redistribution

The redistribution programme should be the principal mechanism to change the racially skewed pattern of land ownership. Unlike restitution, it is not rights-based. It is intended to provide land to those historically excluded from ownership. It is an assisted purchase scheme for would-be landowners to buy land through the market. The problem is that the programme is aimed at people who do not necessarily have the information and skills to make the market work for them. There is a piecemeal approach at work. The state does not decide what should happen, the programme is demand-led. The state does not react comprehensively to areas where demand is expressed, it reacts on a case-by-case basis. Land must be identified, any land use changes must be approved, and the terms of the deal must be negotiated. This piecemeal approach makes planning for the provision of services by local government and provincial departments of agriculture difficult because nobody knows ahead of time where development will take place.

Until last year the state subsidy was R16 000 for qualifying households, which means a typical farm (which costs about R1 million) must be collectively bought by approximately 70 people. Little or no subdivision of such land may take place and production by large groups of people is difficult to organise, so there is a high number of failures.

The Land Reform for Agricultural Development (LRAD) programme

There has been an explicit shift to a more commercially-oriented approach in LRAD. The more resources an applicant can mobilise, the bigger the subsidy he or she is able to access to buy agricultural land. Whether this will tackle the problems of existing redistribution projects remains to be seen. The method of land acquisition (willing buyer-willing seller), planning issues (a demand-led piecemeal approach rather than a proactively state-led programme), and the lack of support services continue to be problems here - the fundamentals of the programme have not changed.

The RDP set a target of the redistribution of 30% of agricultural land over five years, but this target has been disowned. Various other targets have been mentioned – the current target of LRAD is 15% over 15 years. However, there is a major discrepancy between this political target and the amount of money available – the current DLA redistribution budget would only be able to buy a third of the land necessary to meet the target. The largest amount of land transferred in any year since 1994 is 250 000 hectares.

Meeting the ministerial target would require a transfer of 1.5 million hectares a year. The money allocated to redistribution and tenure reform is approximately one third of the entire DLA budget; the rest goes to departmental overhead and restitution. The land reform budget is set to fall by 12% over the next four years in nominal terms, and by 25%, taking inflation into account.

BEN COUSINS

The land reform programme has three legs: restitution, redistribution and tenure reform. Effective land administration is a fourth component which underpins these three elements. Weak tenure security affects at least a third of the population (i.e. those who live in the former Bantustans), and 3 million others living on farms. Several pieces of progressive legislation have been enacted to secure tenure, but tenure remains insecure. We are good at creating rights on paper, but they are not effective in practice.

The Extension of Security of Tenure Act (Esta)

This provides protection to people living on farms from arbitrary eviction and provides long-term tenure security on-farm or off-farm. However, Esta has had little success in preventing illegal evictions, partly as a result of collusion between magistrates, farmers and the police, and partly for lack of legal aid. Provisions in Esta for acquiring accommodation on- or off-farm have been ineffective, so people often end up squatting.

The Land Reform (Labour Tenants) Act

This protects labour tenants from eviction and secures long-term rights of ownership. There are about 20 000 labour tenants, mainly in KwaZulu-Natal and Mpumalanga. About 4 000–5 000 labour tenancy claims were unresolved in KwaZulu-Natal in March 2000. Evictions of labour tenants are continuing. The Landless People’s Movement is beginning to organise around labour tenancy in Mpumalanga.

The Communal Property Associations Act

Also known as the CPA Act, this provides a mechanism for groups of people to own land collectively through a CPA. About 400 CPAs have been established, but the majority fail to operate according to their constitutions and DLA only has three people to provide support to them. Part of the problem is that many CPA constitutions were not purpose-built to serve the needs of a particular group of people, they were based on pro-forma ‘off-the-shelf’ constitutions. These constitutions are written in English (and are therefore not understood by many CPA members) and use legalistic language (which is not accessible to even those who do understand English).

The Transformation of Certain Rural Areas Act

This applies to the 23 areas known as ‘coloured rural areas’. It provides for security of tenure through transferring township land to municipalities or to individuals, and it provides for land to be established as commonage. This is a minimalist piece of legislation – it is four pages long – and it is only being implemented now.

The Interim Protection of Informal Land Rights Act

This was passed in 1996 as a temporary measure to secure the tenure of people without formal rights. It has been extended every year since then because the major piece of tenure reform legislation has yet to be passed. Tenure reform is required in the former bantustans where so-called communal tenure is in operation. This land is registered in the Deeds Registry in the name of the state. People living in communal areas have weak rights which cannot be enforced effectively. (Very little state land is available for redistribution – only 600 000–700 000ha.)

PTOs

‘PTOs’ (permissions to occupy) are permits from the state to occupy communal land. This is a second class form of tenure (it does not confer real ownership on the holders of the permit). The PTO system has broken down. People hang onto these pieces of paper as proof of their permission to occupy, but they mean very little. Many people live in a situation of forced overcrowding from the past – for example, having been evicted from farms, and dumped on other people’s land in communal areas. If the government were to upgrade some people’s rights, the overlapping rights which exist in situations like this will come into play, and another wave of evictions will result.

Development and unresolved land rights

Development in communal areas in respect of housing, ecotourism and spatial development initiatives (SDIs) is being held up because of a lack of clarity about land rights, for example, on the Wild Coast. Nominally, the land is owned by the state, but there are claims against it. Most people have some kind of assurance they can stay where they are, but when development is imminent, underlying insecurity comes to the fore. For example, the Bafokeng own platinum rights on their land. If this land was to be transferred to the Bafokeng in full ownership, people living on the land who are not Bafokeng run the risk of being evicted.

The Communal Land Rights Bill

Section 25(6) of the Constitution says ‘a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress’. Until December 1999 government was drafting a Land Rights Bill which provided for communities to choose which local body would administer their land, for example, an elected committee or a popular chief. The Bill was scrapped in 1999 and there was a rethink of tenure reform under the new Minister of Land Affairs. The Communal Land Rights Bill which is being drafted in its place is likely to be highly controversial. The December 2001 draft does not provide adequate recognition of the rights of existing occupants. Its clear intention was to transfer land to tribal authorities, giving massive power to chiefs. This is problematic, not least because some people were placed under the jurisdiction of specific chiefs under apartheid. I have been invited to sit on a reference group on the Bill by DLA. There must be a public consultation process to find out what people who will be affected think. The Bill should be debated not only in Pretoria or Cape Town, but also in the rural areas.

Land reform and agricultural production

What is the purpose of land reform? To redress historical injustice, to support production or to reduce poverty? DLA acknowledges that it has failed to provide support for beneficiaries of land reform to engage in productive activities. When we say ‘productive economic activity’, what do we mean? Some people think this means high-tech, capital-intensive, export earning commercial farming. Small-scale systems using animal draft power and labour intensive methods are highly productive but they are not taken seriously. Even in LRAD, there is a fixation with commercial agriculture. There is the potential for high productivity with small-scale systems, provided there is enough support. Given the loss of jobs in the formal sector and the failure of small, medium and micro-enterprises (SMMEs) to provide jobs, it is worth providing support for small-scale agricultural activity.

The Integrated Rural Development Strategy

The IRDS (which is a difficult document to obtain) calls for better integration and co-ordination of development in rural areas. There is a major lack of capacity in local government to draw up their integrated development plans (IDPs). However, there is no mechanism for funding this integration and co-ordination. The IRDS is not a strategy, it is a proposed set of co-ordination mechanisms. All it says is that existing government programmes in rural areas should be better co-ordinated.

The need for fundamental change

The alternative to this is agrarian reform. This would alter the distribution of assets and state support in rural areas. This in turn would shift the distribution of power and resources in rural areas. Only 0.3% of the national budget goes to land reform. South Africa will have a political problem as long as this matter is not taken seriously. The big gap has been political pressure from below. We need an organised political constituency to pressure government. The beginnings of this can be seen in the Landless People’s Movement who have explicitly referred to the events in Zimbabwe over the last two years in their campaigning.

DISCUSSION

Is access to land the answer?

· In my experience of working in a commercial farming area in the Western Cape, most people do not look at land acquisition for agriculture as the solution to their problems. In addition to the budgetary issues, there is a huge bureaucratic obstacle when it comes to land.

Edward: At many levels, people are not convinced that land is really in demand. But deep in the bantustans, people do depend on agriculture, especially in desperate circumstances. The structure of the economy is weighted against small-scale agriculture. Can the state change the conditions that will make a return to small-scale agriculture possible? A very expensive agricultural model was put in place under apartheid. A lot of analysts are convinced that the solution is in urbanisation. The big business group that advises the President believes this, the Cabinet appears to believe it.

Shortcomings in DLA

· There are abuses in the system because there is a lack of an efficient cadre of people to manage the programme. There are cases of farm workers getting a government subsidy to go into business with a farmer in trouble, but getting ripped off. We need support to people, not just technical extension, but trained people to look through contracts and deals.

Edward: DLA is poorly managed, and it has poor procedures. There is a fixation with commercial models of agriculture based on a business plan which relies on borrowing heavily, and expects to show a profit after one year. This is deeply inappropriate, so many people are vulnerable when entering into share equity schemes with farmers. There has also been, in my opinion, abuse of state subsidies so that workers can buy into failing parastatals.

Ben: The capacity of the state is limited in several ways – it does not have the capacity to spend its current budget, it is inefficient, and it has too few staff to do the work. The National Treasury’s idea of not growing the civil service is in itself a constraint – it is unlikely that the necessary posts will be created. As Edward said earlier, the DLA’s budget would have to be tripled to meet the targets for the transfer of land set by the Minister.

· A lot of the content of a DLA report on five years of land reform was about returning unspent money. There are many empty offices at DLA. The lack of sufficient political will and management shows that having progressive policies is not enough.

The Land Bank

· The previous government used the Land Bank to shore up its constituency. To what extent are we using the Land Bank to promote agriculture?

Edward: The Land Bank does make money available for the purchase of farms but it is reluctant to encourage anything other than large-scale commercial farming. It does not generally support alternative forms of agriculture. Easing up lending requirements in order to make money available to the previously disadvantaged is not a solution as people often face difficulties meeting repayments. Alternative definitions of success and sustainability need to be put in place.

The plight of farm workers

· The Women on Farms Project works with women seasonal farm workers who don’t want to own land. Overseas funders are surprised at this. People want to be paid a decent wage for a day’s work. They have worked in commercial export-oriented farms where quality is crucial – if one box is rejected, the entire consignment is rejected. For them, it is not about owning land, but getting a decent job. Esta is a recipe for getting rid of farm workers. It gives farmers a procedure to follow if they want to evict workers. Farmers responded to Esta by getting rid of workers. Prices have fallen, tariffs have fallen, producer price inflation is going up, but farmers tell you their prices have been falling. Esta was introduced at a time when farmers are struggling, so they got rid of workers. The Cape Fruit Growers’ Association, for example, want to streamline evictions under Esta, which they say costs them R15 000–R20 000 per court case. Rural local authorities are not making any plans to house workers being evicted from farms. These people have no tenure security, no job security, especially for women. The pool of permanent workers is shrinking.

Influencing policy

· The ANC study group on agriculture and land affairs is important when it comes to legislation. Why has there been a lack of interaction between PLAAS and the study group? The National Land Committee (NLC) has interacted strongly with the study group and has affected legislation. The focus this year is on agriculture, not land. You should try to brief the study group on some of the issues.

Edward: I have addressed the study group and the portfolio committee as a member of NLC. There is considerable emotional support in the committee, but when the bureaucrats get to the members and explain that what they are proposing will cost a lot of money and fly in the face of the macroeconomic policy, government views on the role of the state and agricultural policy, they back down. If you take a Gear approach to the economy, you cannot have a radical land reform policy. There is a widespread emotional support for the return of the land to the dispossessed. However, when the politicians realise this is about redistribution of assets from one group to another, the clash comes in because Rands and cents and the role of the state in the economy come to the fore.

Communal ownership

· The only real model for communal ownership without a legal entity is sectional title. This is self-regulated, and has standard rules for conduct and so on, but there is no mechanism for bodies corporate to deal with disputes. Disputes have to go to the High Court.

Ben: Sectional title deeds speak of ‘common property’ – for example, driveways. However the failings of sectional title are well illustrated. Deeds registry systems only work when you have private owners. There is no way for the bodies corporate of sectional title to deal with problems. You need specialised institutions to deal with disputes. Perhaps the proposed commonhold form could be regulated by an ombudsperson, with recourse to the small claims court. This could affect a third of the population who live under communal tenure.

· What is the survival rate for CPAs? How many have been sequestrated?

Ben: Some CPAs are operated as business enterprises, but the majority are dysfunctional. The Communal Land Rights Bill may open up an alterative form of land owning – ‘commonhold’ – as a way of holding land without the formation of a legal entity. The killer assumption is that these new forms of landholding will have the institutional support they need – information, mediation, administration. Private property is supported by the Deeds Registry, conveyancers and other professionals, but there are no systems of institutional support for communal property. Neoliberal policies go against spending money on bureaucracies, even if they are necessary.

Edward: The question to ask is ‘Is this land going to be bought and sold on a regular basis?’ [in which case the Deeds Registry is crucial]. The basis of a commonhold system is not to secure a market, but to secure rights. There is less potential for disputes – these will probably be restricted to, for example, cattle wandering onto the land of others. It is a mistake to push people into a system meant for freehold buying and selling. Some group purchases have turned into Soviet-style farms where all people have to be involved in production. It is often better to buy a farm and quickly subdivide it. Redistribution projects often end up forcing groups into markets and commercial production.

Restitution over in three years?

· President Mbeki promised at the opening of Parliament that the restitution process would be complete in three years. The Minister said she did not have enough money, personnel or strategic infrastructure to do this.

Edward: Maybe the President is badly advised when he says the restitution process will be completed in three years. The Chief Land Claims Commissioner has asked for more money, and money has been transferred from under-performing areas in DLA. I think we are talking about a five or ten year horizon. Certain services have been contracted out to NGOs and private sector organisations – for example, validating claims. There are big land claims in rural areas which involve large numbers of people, and owners who are unwilling to sell.

Women in rural areas

· The picture is even more bleak from the point of view of women. About 43% of people live in rural areas and there are no normal family structures there. Rural schools are the worst. Girls have the least education, and they become heads of families at an early age because of HIV/AIDS. In the Valley of a Thousand Hills in KwaZulu-Natal, 70% of people are unemployed. The men are absent, and the women heads of households are likely to die at 40. Traditional leaders have the power to allocate land. Women live in these rural areas, but their husbands can take a common law wife in town. Working for Water created short-term employment for some women. It seems we have a lack of capacity. There is a need for implementation, a need for concerted coherent programmes.

Ben: Partly because migrant workers have traditionally been men, women are traditionally responsible for domestic work and for production activities. Because there are shortages of inputs, implements, capital and labour time, there is a long-term trend towards abandoning far away fields. Production is shifting to gardens of up to 0.5ha near the homes of people. Retrenchments in the urban areas have seen the return of some men to rural areas, and some men are beginning to engage in non-traditional tasks.

The Mineworkers’ Development Agency

Ben: I have a positive experience of rural South Africa – the rural enterprise centres of the Mineworkers’ Development Agency that were set up by the National Union of Mineworkers in 1987. These were first co-ops, then they moved into providing significant and integrated support for individual production. The MDA experience shows how imagination and investing in systems has a major potential if done at scale that only the state can do. These projects are mainly run by women. It is not insignificant that this initiative was started by a labour union – Cosatu is waking up to the importance of land reform because of the number of unemployed.

Conclusion

Edward: The government is aware of the arguments about development – the state is making clear, knowing, informed choices, it is choosing certain paths and ignoring others. There is a lack of a clear constituency for land reform and rural development. This is critical for building support for alternative approaches – the rural poor are poor in many ways, including organisationally. We must look at our political party system. To be politically active in the rural areas often means to be in the ANC, but to what extent are these rural development issues being raised within the party structures? The ANC has a mixed constituency of workers and capital, is it possible to take on the vested interests in the rural areas? The South African model of land reform is not home-grown – it is a version of a World Bank model being implemented in the Philippines and Latin America.

Ben: The World Summit on Sustainable Development is coming up in September, the South African government is saying the issue is poverty, not the environment. We are saying how can you look at poverty without looking at land? About 9 000 landless people will be going to the Summit to make their voices heard.