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Panic, privilege and politics: South Africa’s land expropriation debate

South Africa’s land reform policy is a mess. A combination of incompetence, poor policy and scandal have meant that there has been little progress in years. The parliamentary High Level Panel report effectively dissects the problems. But in recent days, the land issue, always bubbling under the surface in South Africa’s unresolved post-apartheid settlement, has burst into the limelight.

By announcing the intention to change the Constitution to allow for ‘expropriation without compensation’, the ANC has tried to steal the thunder of maverick radical Julius Malema and the Economic Freedom Fighters party. Last week a motion was approved in Parliament with the full backing of new president, Cyril Ramaphosa.

There has been panic and outrage. The white privileged classes are shocked. Sections of the international media are apoplectic. Capital has warned of the worst. The rand has taken a knock on the markets. And the newspapers and airwaves are full of vivid commentary of impending doom. And – yes of course – Zimbabwe is once again being deployed in South Africa’s political discourse as the example of how bad it can become. This is just like Mugabe’s land grab, which can only result in poverty and disaster. And on, and on, with all the usual myths and stereotypes being trotted out.

More sane commentary points out of course that this is more about political power plays than any big change. Listen to an excellent interview with Ruth Hall, and further commentary here and a useful round-up here.

Unlike the EFF, which is calling for land nationalisation, the ANC has made no mention of such a move. To allay fears, they’ve announced that expropriation without compensation would only take place only if food security and the wider economy was not threatened. Quite how this would be assessed is anyone’s guess.

And, in any case, as Adv. Geoff Budlender, the DG of Land Affairs from 1994, and many others point out, the existing 1996 Constitution in section 25(3) allows for expropriation anyway, with ‘just and equitable’ compensation. Any change therefore would be largely symbolic not substantive. Even Julius Malema says ‘no-one will lose their houses!

The problem in the past has been that the ‘willing seller-willing buyer’ approach has been the policy default. This has meant a slow pace of change and high costs when ‘market prices’ are paid, as in the notorious R1 billion originally proposed payout in the Mala Mala case. Shifting the balance towards expropriation, away from only a reliance on the market may change the dynamic of land reform for the better. Debates must follow as to what just and equitable compensation would be. Sometimes it will be zero; in most cases not.

One of the foci for outrage and panic has been the presumed assault on the unassailable ‘property rights clause’, a key element of the negotiated settlement of 1994. In South Africa, this is an ideological lynchpin; an almost religious conviction that the world would collapse if there was any change in freehold property rights. Again, as discussed many times on this blog before, these arguments are replete with myths; ones that keep being repeated in Zimbabwe. For example, see these recent pieces by John Robertson and Eddie Cross, offering textbook repetitions of the same problematic arguments seen in South Africa in the past weeks.

Under the new proposals, a framework of property rights would continue to exist but the conditions would change, just as they have in Zimbabwe. A new post land reform framework can continue to be the basis for investment, finance and successful agriculture. Indeed, as it does in many other parts of the world without the weird hang-ups that are the legacy of southern Africa’s settler past.

It is this past that is swirling around the debate in South Africa. Race, white privilege and the unresolved questions of redistribution following the end of apartheid are all central. As Ben Cousins points out, those who are suffering the most from expropriation without any hint of compensation are poor blacks in places like Kwazulu Natal, where chiefs, holding state land in trust in the communal areas, are complicit in massive expropriation for mining, housing and other grabs. This seems not to be part of the debate, as it’s framed as an assault on historic white privilege.

Seen through this lens, the pleading of the (mostly) white farmer lobby or the business community is simply an argument for continuing special treatment that started with colonialism. The big mistake of their Zimbabwean equivalents from the 1980s, and particularly in the late 1990s, was the abject failure to accept that change was long overdue and then not engaging with the process fulsomely and positively, so shifting the narrative.

With the Motlanthe High Level panel report out, a political debate raging and a new president, this should be the moment in South Africa to change the discourse on agriculture and land reform, after so many years in the doldrums.

Unlike in the 1990s in Zimbabwe, this must mean everyone engaging in a national dialogue. One of the best contributions in the furore last week in South Africa was from Sue from Somerset West who called into Eusebius McKaiser’s talk show, proclaiming emotionally that not all whites are against land reform, and that grappling with white privilege is vital. A brave and powerful intervention.

The lesson from Zimbabwe for South Africa is not that land reform is a disaster. Far from it – it is essential for economic renewal and central to moving on from the past. Agrarian reform in post-settler economies must deal not only with economic reconfiguration, but also fundamental changes in institutions and outlook for a new era.

Hopefully this is the moment for South Africa – at last – to confront these tough transitional issues, now 24 years on.

This post was written by Ian Scoones and first appeared on Zimbabweland.

Thanks to Ben Cousins and Ruth Hall for sending on links. Photo from flickr, CC via Government ZA

 

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Why title deeds aren’t the solution to land tenure problems

File 20170804 4092 o2v878.jpg?ixlib=rb 1.1
Filckr/Icrisat

An excellent new book is out in South Africa, focusing on titling and tenure. A big issue for policy in Zimbabwe. It’s called Untitled. Securing land tenure in urban and rural South Africa, published by UKZN Press and edited by Donna Hornby, Rosalie Kingwill, Lauren Royston and Ben Cousins. It’s well worth a read. While based on South Africa, where the obsession with freehold title is an article of faith, it has many resonances for Zimbabwe, and beyond. 

As I have argued many times before on this blog, a focus on titling is often not the best route to ensuring security of tenure. The obsession with freehold title is repeated endlessly. As Zimbabwe contemplates new policy directions temptations to get involved in mass titling programmes must be resisted. This book is therefore essential reading. It argues for ‘legal recognition of rights within what they call ‘social tenures’. In this article reposted from The Conversation, Ben Cousins, from PLAAS at the University of the Western Cape, explains: 

The conventional view is that insecurity of land tenure results from the lack of a registered title deed which records the property rights of occupants of land or housing. Across Africa, many governments and international development agencies are promoting large-scale land titling as the solution.

In the South African context, some commentators suggest that a key legacy of the apartheid past is the continued tenure insecurity of the third of the population who live in “communal areas”, under unelected chiefs or of traditional councils. The remedy, they suggest, is simple: extend the system of title deeds to all South Africans.

We have just published a book which disputes this view. Untitled. Securing land tenure in urban and rural South Africa contains case studies of a wide range of land tenure systems found in different parts of the country. These include informal settlements, inner city buildings in Johannesburg, “deep rural” communal systems, land reform projects, and examples of systems of freehold rights held by black South Africans since the 19th century.

With the exception of systems of freehold rights, most people who occupy land or dwellings in these areas are “untitled”, and occupy land or dwellings under a very different kind of property regime. We term these social or off-register tenures.

But we argue that, fundamentally, South Africans need to question the assumption that the sole solution to the problem of tenure insecurity is a system of title deeds. Alternative approaches are needed, which we set out to explore.

Social tenures

The book offers an analysis of social tenures, which are regulated by a different logic and set of norms than those underpinning private property. Such tenures are diverse but share some key features. As is the case across the developing world, including Africa, land tenure is directly embedded in social identities and relations.

Rights are often shared and overlapping in character and generally derive from accepted membership of a community or kinship group. Processes of land allocation and dispute resolution are overseen by local institutional structures.

In these contexts, decisions are often informed by norms and values that stress the importance of reciprocal social relationships rather than buying power as the basis for land allocation. They involve flexible processes of asserting, negotiating and defending land rights, rather than the enforcement of legally defined rules.

It’s estimated that in 2011 some 1.5 million people lived in low-cost dwellings provided to the poor by government’s, so-called “Reconstruction and Development Programme” (RDP) houses, with inaccurate or outdated titles, in most cases due to transfers outside of the formal system.

Another 5 million lived in RDP houses where no titles had yet been issued due to systemic inefficiencies. Along with 1.9 million people in backyard shacks, 2 million on commercial farms, and 17 million in communal areas, this means that in that year around 30 million people, nearly 60% of all South Africans, lived on land or in dwellings held outside of the land titling system.

RDP housing. Flickr

The edifice of title deeds

The book contrasts social tenures with the conventional system of title deeds, which constitutes a key element of an imposing “edifice”. The current system of rates, services and processes of development assumes that land tenure equals a surveyed plot with a singular registered owner, which may be persons or corporate bodies.

The system is serviced by a Deeds Registry, private sector surveyors and conveyancers, as well as municipal officials, all governed by a range of laws and regulations in a complex and interlocking manner.

One key problem facing those in social tenures is the discrimination they suffer at the hands of the state and the private sector. Despite some protection under laws such as the Interim Protection of Informal Land Rights Act of 1996, people living in social tenures are severely disadvantaged. They may have to go to court to have their rights legally enforced, but most cannot afford to do so.

Development and land use planning, public investment and service delivery are constrained under these systems of tenure. Elite capture or abuse by unaccountable leaders can also take place, as in communal areas where minerals are found and chiefs and councils enter into business deals with mining companies that benefit only a few.

Titling enthusiasts argue that another problem with social tenures is the fact that banks do not accept untitled land or dwellings as security for bank loans. This constrains the poor from borrowing capital to invest in businesses of their own. But research indicates that few of the poor are willing to risk their homes in this way, since small enterprises often fail.

Tenure reform policy options

How then to proceed with pro-poor tenure reform? Our research indicates that it is not realistic to extend land titling to all; the system may be at breaking point, and is inadequate even for the emerging middle class.

Another option is to adapt elements of the edifice to provide a degree of official and legal recognition of rights within social tenures. Lawyers and planners working with communities and officials have developed a range of innovative practices, concepts and instruments aimed at securing such rights in an incremental manner. This includes special land use zones, recognising occupation rights in informal settlements, and recording rights using locally accepted forms of evidence.

A third option is a more radical overhaul of land tenure, leading to systematic recognition of and large scale support for social tenures. This would involve stronger laws protecting rights holders, an adjudication system that allows new forms of evidence to be considered in determining who holds rights, and new institutions for negotiating, recording and registering rights under social tenures. The system could include the office of a Land Rights Protector.

We believe that these alternatives all pose their own challenges. But we also believe that pursuing alternatives to a system of title deeds is not an impossible task.

The ConversationThis article was originally published on The Conversation. Read the original article.

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Why 50-60 million hectares should be transferred to smallholders in South Africa’s land reform

Conversation image

Following on from last week’s blog on the N7 farmers from Malmesbury, this week I want to feature an excellent article by Ben Cousins from PLAAS in South Africa published recently in The Conversation. It picks up on the theme of the potential for capitalised, market-oriented smallholders to transform South Africa’s land reform strategy. Controversially he suggests that there are perhaps 50-60 million hectares available for such smallholder-led land reform. Here’s the blog:

Why South Africa needs fresh ideas to make land reform a reality

What is going wrong in South Africa’s land reform programme, and how can its failings be addressed?

In 22 years land reform has barely altered the agrarian structure of South Africa, and has had only minor effects on rural livelihoods.

Partly unintentionally, partly by design, land reform has been captured by elites. The most powerful voices are those of traditional leaders, so-called “emerging” black capitalist farmers (who often own other businesses), consultants, agri-business companies and white farmers.

The strategic thrust of South Africa’s land reform remains unclear. Agricultural and land policies have not been linked effectively. Little support has been provided to black smallholder farmers and no land reform farms have been officially sub-divided.

The lay of the land

The agricultural potential of South Africa is limited, with relatively little of its surface area suitable for crop production. Much of the country is arid or semi-arid, with only 28% of the land surface receiving 600mm or more of rain per annum. Most land is suitable only for extensive livestock production. Only 16.7 million hectares (13.7%) are arable, and 1.3 million hectares are irrigated.

Since 1994, about eight million hectares of the total of 86 million hectares of white-owned farmland have been transferred to black South Africans through land restitution and redistribution. Government’s initial target in 1994 was to transfer 30% of agricultural land by 1999, but slow progress led to the target date being moved to 2014. Several thousand large rural restitution claims are yet to be resolved, and about 20,000 settled restitution claims have yet to be implemented. Amendments to the law in 2014 allow hundreds of thousands of new claims to be lodged up until 2019.

Evidence suggests that about half of rural land reform projects have brought improvements in the livelihoods of beneficiaries – but often these are quite limited. It is unclear how many recorded “beneficiaries” still reside on or use transferred land, or benefit from land reform in any way. Evidence from the Limpopo province suggests that only a relatively small proportion do so.

Institutions such as communal property associations and trusts, through which land reform beneficiaries hold land in common, remain poorly supported and are often dysfunctional. Joint ventures between claimant communities and private-sector partners have experienced major problems.

Tenure reform has largely failed. Farm owners have worked out how to evict unwanted workers within the parameters of the law, or to (illegally) “buy out” their rights, and have done so in large numbers. In communal areas, the only legislation that secures the land rights of residents is the Interim Protection of Informal Land Rights Act of 1996. This has had to be renewed every year. There are increasing reports of corruption by traditional leaders in areas with minerals.

Many of the assumptions informing policy are highly problematic. A large-scale commercial farm model informs assessments of “viability” and shackles thinking about how to support smallholders. Rural households are often seen as a homogeneous category, but are in fact highly differentiated. As a result, targeting of land reform is ineffective.

Measures to promote the informal economy, including markets for food, are absent. Land reform focuses mainly on rural areas but urbanisation and growth of informal settlements, some on communal land in peri-urban areas, mean that many key needs and opportunities are missed. A key spatial focus for smallholder-oriented land reform could be redistribution near to towns and cities, close to growing urban informal food markets.

Re-invigorating land reform

Land reform needs to make a fresh start. Realistically, land and agrarian reform is unlikely to reduce the poverty of most rural people. The creation of formal-sector jobs and non-farm livelihood opportunities for the majority of the population should be at the centre of poverty reduction policies. And a re-invigorated programme of land reform could probably create a million new employment opportunities, as the National Development Plan suggests.

Reconfiguring the country’s agrarian structure should be the main thrust of land and agricultural policy, along with measures to improve the food security of the poor. However, securing tenure rights should remain a key objective of land reform, in urban as well as rural areas.

A competitive and increasingly concentrated agricultural economy has shaken out a large number of white farmers. However, about 70%-80% of farms produce only 20%-30% of value, and many of these are under stress from the current drought. This land could be acquired for redistribution relatively cheaply. The top 20%-30% of producers, 7,000 highly capitalised farming operations on about 20 million-30 million hectares, could then be left alone for two decades or so. This will ensure that land and agrarian reform does not put urban food security and agricultural exports at risk.

The land of the other 70%-80% of farming units, located on 50 million-60 million hectares, should be redistributed to 200,000 market-oriented black smallholder farmers. These farmers are often highly productive, despite the lack of real support offered to them. Policies should aim to support a process of broad-based “accumulation from below”, in which access to more land and water, plus well-designed support programmes, provide a platform for increasing levels of output.

The proposal in the National Development Plan that more land be brought under irrigation needs to be urgently investigated, and a realistic target set. This will help adaptation to climate change.

Municipalities should support informal markets where most of the produce by small black farmers is sold.
Reuters/Rogan Ward

Black smallholder farmers currently tend to supply informal traders and loose value chains that have less demanding requirements for fresh produce than those of supermarket chains and formal markets. Informal markets should be actively supported by municipalities. As their farms become more capitalised, some small-scale producers will improve the quality of their produce and begin to supply formal markets, and government could consider requiring supermarkets to meet quotas for smallholder produce.

The politics of land

Political rhetoric on land draws on a narrative in which white farmers and foreigners are villains, black South Africans are victims, and government (or an opposition party, or civil society activists) are heroes riding to the rescue. A political imaginary centred on race tends to dominate land discourse. For many young activists today, “land” seems to connote the nation, sovereignty and control of the economy as a whole, rather than a resource used for food production. The dual meanings of “land” in English elide the difference, but in nationalist and populist discourses such elisions help to mobilise supporters.

The current drought and rising food prices remind South Africans that the practical challenges of land reform are immense. How can the country re-organise the rural economy so that we achieve social justice, and at the same time feed growing numbers of urban residents at affordable prices? However valid the call for a fundamental rethink of the post-apartheid political order, this challenge cannot be ducked.

This article draws on a paper commissioned by the Nelson Mandela Foundation.

The Conversation

Ben Cousins, Professor, Poverty, Land and Agrarian Studies, University of the Western Cape

This article was originally published on The Conversation. Read the original article.

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Agrarian change, rural poverty and land reform: South Africa’s experience

An important special issue of the Journal of Agrarian Change was released earlier in the year on Agrarian Change, Rural Poverty and Land Reform in South Africa since 1994. The papers are free to download, and are well worth a read.

It was put together during an extended seminar hosted by PLAAS, involving a group dubbed ‘the rock stars’ of agrarian studies – Henry Bernstein, James Ferguson, Bridget O’Laughlin, Pauline Peters and of course the host, Ben Cousins, among others. Quite a gathering, who spent time last year in near Stellenbosch, thinking about land, poverty and agriculture. The Special Issue is in some ways an update of the earlier issue discussing post-apartheid transition, published in 1996, and edited by Henry Bernstein.

The new introduction poses some basic questions, asking “by what means, in what ways, and how much can agrarian reform address the processes that underlie rural and urban poverty and the increasing inequality that marks contemporary South Africa?” In framing the debate, the editors refer to the classic labour reserve theorists who provided a structuralist analysis of the way capital creates dualism, and so inequality and poverty:

“They focused on the question of labour, and particularly on the pervasiveness, durability and eventual vulnerabilities of migrant labour…. They saw the constitution of the ‘Native Reserves’, both social and physical spaces, as central to the functioning of colonial capitalism. The account that they provided helped us to understand that the poverty and misery of black rural areas were not the residual result of an absence of development but, rather, manifested a particular pattern of capital accumulation on the back of land dispossession”.

However there are clear limitations to this theorisation, as it is too reliant on macro constructs and economistic thinking, forgetting the local, particular social dynamics and the wider colonial politics which have shaped current settings. The Issue editors comment, “…it is necessary to grasp the diversity and differences of the rural areas of Southern Africa, and the complex social dynamics, including divisions of class, gender and generation among their inhabitants. Their histories, both past and future, are not written by capital alone”.

They also point to the important work by Mahmoud Mamdani, who argues in Citizen and Subject that there has to be much better attention to the historical-political conditions of colonialism that gave rise to domination, and the ‘bifurcated state’. Of course since the classic Marxist work of the 1970s, the migrant labour system has been radically reconfigured.  ‘Today there is “growing surplus labour’, unemployment and casualization”, with very different implications for livelihoods, and land. This means new theorisations of land and agrarian change are needed, suited to contemporary situations. How this is done of course will frame what questions are asked, and what solutions are suggested.

The contributions to the Special Issue offer a diversity of perspectives. Andries du Toit, for example, argues strongly for a perspective centred on inequality, avoiding getting too hung up on ownership of land and resources. From this perspective redistribution may operate across a number of dimensions (up and down the value chain) and spaces (including both rural and urban), allowing new livelihood opportunities to emerge. A focus on labour offers another perspective. As Sender and Johnston argued provocatively in 2004, an emphasis on improving the conditions of labour on commercial farms may be a more effective redistributive and emancipatory option, compared to redistributing the land itself.

Others focus on the potentials centred on local level accumulation from own agricultural production. The paper by Ben Cousins, for example, shows the potentials and limits of such ‘accumulation from below’ in KwaZulu Natal. A wider livelihoods perspective looks at how agricultural possibilities from land reform must be combined with assessments of income from other sources, as Mike Aliber and Ben Cousins show from a study in rural Limpopo province.

Still others point to perspectives centred on social development, and how access to education, health and social care may infuence poverty levels in profound ways. And whether the focus is on inequality, labour, agricultural accumulation, livelihoods or distributive justice and social development, all are intersected by dimensions of differences affected by gender, age and ethnicity.

The Special Issue thus offers no clear-cut answers, nor any defined formula for the way forward – indeed there is no clear agreement on theoretical framing among the papers, and so a diversity of positions implied on the value (or otherwise) of redistributive land reform. This makes it a refreshingly pluralistic take on a complex issue, where different perspectives combine, challenge, contradict and complement in different ways. There is no one-size-fits-all version, as in the 1970s framing, but a diversity. This is helpful for productive debate, and this Special Issue is an important contribution, helpful for anyone seeking to understand agrarian change in Southern Africa, including Zimbabwe.

Where the authors do converge, though, is the urgent need to do something about deeply structured patterns of inequality, whose characteristics have barely budged since 1994. Henry Bernstein observes that “South African agriculture and agricultural policy since 1994 has done little, if anything, to ‘transform’ the circumstances of the dispossessed – rural and urban classes of labour – whose crises of social reproduction remain grounded in the inheritances of racialized inequality”.

This is a shocking realisation, given the great hopes that were held up for a ‘free’ South Africa. As the centenary of the 1913 Natives’ Land Act is commemorated this year, it is a reminder that, as in Zimbabwe, the inheritance of a particularly divisive history is exceptionally difficult to shed.

While the Special Issue is focused on South Africa, Zimbabwe is frequently mentioned across the papers. The editors note the ‘spectre’ of Zimbabwe in public and policy discourse, as an impetus to address these stark poverty and inequality challenges. But perhaps Zimbabwe can also offer lessons on the potentials as well as challenges of redistributive land reform. The conditions and contexts are of course massively different, but some exchange of ideas and perspectives between South Africa and Zimbabwe may be productive, given the urgency of the challenge south of the Limpopo.

This post was written by Ian Scoones and originally appeared on Zimbabweland

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