Introduction

‘Expropriation without compensation’ (EWC) is a politically potent and simultaneously ambiguous term. It is politically potent not despite but precisely because of its ambiguity, in that it signals a radical departure from a land property regime that is patently illegitimate and unjust while obscuring how it is to be changed. It centres exclusively on the acquisition of land – thus on the nexus between the state and landowners – rather than on the distributive agenda – and thus on the nexus between the state and landless citizens. In this way, the EWC narrative sidesteps foundational questions of who should get which land, on what terms, for what purposes, where, and any wider agrarian reform agenda. These questions, which I have summarised as ‘who, what, where, how, why’, constitute the real politics of land reform and have been the focus of intense political negotiation, public debate and policy deliberation since the start of the political transition over three decades ago (Hall, Reference Hall2010, Reference Hall, Cousins and Walker2015). Their scale and complexity have frequently been contracted into ‘the land question’.

The promotion of EWC as the purported silver bullet to ‘the land question’ is relatively recent, arising from mounting factionalism within the ruling party after its 52nd National Conference at Polokwane in 2007, the emergence of an opposition party to the left of it in Parliament in 2014 and culminating in a parliamentary motion on EWC in 2018. This, in turn, birthed two distinct and overlapping processes driven by the legislature and executive, respectively: a parliamentary constitutional review committee to review and propose whether amendment was justified, and a Presidential Advisory Panel on Land Reform and Agriculture (PAPLRA) to advise on precisely the same matter, as well as a broader spectrum of policy questions. I characterise these processes as a form of ‘political theatre’ in that, while they addressed real issues, they were acted out performatively, for purposes and in ways quite distinct from what was being claimed, and primarily as a substitute for action rather than a precondition for it (Death, Reference Death2011). In this sense, the EWC debate that dominated much political discourse for a four-year period, while failing to yield any tangible outcome, legally or practically, arguably produced distinct political benefits. As a concept, EWC deftly obscures profound political differences and has been used to refer to a spectrum of measures ranging from the nationalisation of all land (as in the Economic Freedom Fighters’ (EFF) initial formulation) to state custodianship (in the EFF’s later formulation) or to selective case-by-case property acquisitions (as proposed by the African National Congress (ANC)).

The well-known story of how EWC moved to the centre stage of South African politics in 2018 is outlined in the Introduction to this volume, and here I rehearse only its headline features. Following the EFF’s motion in Parliament to review the property clause, the ANC amended the motion by adding several caveats about the rule of law and national food security, and together they mustered a majority and passed it on 27 February 2018. Parliament then set up a Constitutional Review Committee (CRC), which conducted mass public hearings around the country and received over 600,000 written submissions – more than at any time since the constitutional consultations in 1995. The bulk of written submissions objected to any constitutional amendment, while the overwhelming majority of those attending the hearings supported amendment – this distinction largely correlating with race in a predictable manner. The Committee, reporting in November, concluded in favour of amendment ‘to make explicit that which is implicit’, namely that EWC is permissible (CRC, 2018: 34). EWC, it affirmed, is a justifiable objective, which is already provided for, but amendment should nonetheless be pursued.

In response, Parliament mandated a new parliamentary ad hoc committee on section 25 (the property clause) to propose and consult on such an amendment. This inter-party committee, predictably hampered by the continued deadlock, took more than two years to propose new wording. The two-stage parliamentary process proved effective in separating the in-principle debate on EWC from its content: hearings provided a cathartic public spectacle as a foil to the political theatre among political parties in Parliament, and the technical work of developing an amendment which followed was out of public purview and drew less interest, allowing the political momentum to recede. A further bifurcation was achieved by establishing the parallel PAPLRA (see section on PAPLRA below). It all ended with a whimper, rather than a bang, with the amendment bill failing to secure the required two-thirds of the votes in the National Assembly on 7 December 2021 – four years after the EWC debate had emerged as part of the king-making deals across ruling party factions which had secured Cyril Ramaphosa’s presidency at the ANC’s 54th elective conference in December 2017.

Expropriation is one means by which land can be acquired to be made available for redistribution or restitution. Even once the legal framework is fixed, and policy is developed to determine when expropriation should take place and how compensation is to be addressed in diverse situations, the questions as to who this will help, and how, remain. The popular imagination has been seized by a polarised debate between those blaming the 1996 Constitution of the Republic of South Africa (the Constitution) for the failures of land reform, and those defending it (and incorrectly interpreting it as requiring compensation). But there was a third position, which several academics, lawyers and activists tried to develop and communicate throughout this process. This chapter sets out this third position: that the ‘property clause’ provides a powerful mandate for transformation and an under-developed right of equitable access to land for landless citizens. In this sense, the question of EWC occluded the question of redistribution. Now that the constitutional amendment bill has failed and this red herring lies dormant for now, a more productive conversation could address as its central concern the question of the ways by which and terms on which people can gain access to land.

Actors on the Stage

Who were the protagonists in the EWC debate? The EFF and the Democratic Alliance (DA), for their own respective political reasons, consistently equated section 25 with a requirement of compensation for expropriation. On that, they agreed. The DA considered any deviation from a compensation-based approach to expropriation, and therefore any amendment, as tinkering with the terms of political settlement reached in the 1990s and vociferously opposed it (Democratic Alliance, 2018). A spectrum of business interests and think tanks, such as the Institute for Race Relations and Centre for Development and Enterprise, expressed similar sentiments, warning of mass disinvestment and financial collapse. Yet in my numerous encounters with international financiers, South African banks, foreign embassies and trade missions during this period, my distinct impression was that they could absorb possible losses associated with the forcible confiscation of specific parcels of land, which could be factored into risk calculations, and therefore absorbed. Rather, their concern was about predictability: what they sought was clarity as to when compensation would be paid, when it would not and how this would be determined. This is the clarity that the ANC refused to provide.

The EFF, for its part, depicted the property clause as being the primary impediment to meaningful transformation of land relations and the culprit for the perpetuation of the legacy of colonial theft – a political manoeuvre that, paradoxically, allowed the ANC to abdicate from responsibility for its own failure to use the constitutional provisions to expropriate in the interests of land reform. It called for nationalisation as a decisive reversal of colonial land theft – the term ‘expropriation’ being misleading, as, in fact, what it meant is confiscation of all property, later clarified as a form of state custodianship. In its view, the Constitution has a presumption of compensation: ‘The Constitution as it is currently written does not allow either for expropriation without compensation or for the narrow, piece-meal expropriations advocated by liberals’ (EFF, 2018: 15). In their interpretation that the property clause presumes, even assures, compensation, then, the DA and EFF agreed. In contrast, the ANC’s perspective can only be described as incoherent. Combining some Constitution-blaming with investor-reassuring, its responses to the evolving debate could be described as ‘Talk EFF, walk DA’.

Actors in this public discourse not only took different positions on EWC but also meant different things by it. The ostensible convergence, when the ANC and EFF voted together in Parliament in February 2018, was illusory; they were not agreed on what EWC means, let alone how it would be applied. The ANC resolution at its 2017 conference declared that EWC should be ‘one of the key mechanisms available’ to government (ANC, 2017: para. 15). It did not say that the property clause would need to be amended to achieve this. It had not called for any change to the Constitution, nor did it say why EWC was needed or what problem it would solve. It insisted on caveats such as that land reform must not damage agricultural production or food security and specified unused and under-utilised land, or land held speculatively or indebted, as targets for EWC (ANC, 2017: paras. 16–17) but omitted any mention of expropriating productive farms or urban land.

The ‘property clause’ is a mandate for transformation. By this, I mean that it affirms the rights of individuals, communities and society at large to the transformation of property relations through constitutionally mandated land reform and related reforms. This is not to say that it is sacrosanct or could not be improved. Indeed, a compromise was certainly struck over property rights in the 1990s, but this is most starkly evident not in the new Constitution, but rather in the interim Constitution of the Republic of South Africa, Act 200 of 1993. It is worth returning to these moments where the parameters for the status of (inherited) property rights, and the terms of their taking, were established. It was in this early period of negotiations that the ANC rapidly shifted course and abandoned its (always ambivalent) promise of nationalisation. Questions of land justice were framed on the one hand as being central to transitional justice and simultaneously as a shared responsibility of the whole society, with the costs to be carried by the wealthy, including property owners, via the tax system and the national fiscus.

The Compromise in the Interim Constitution

The status of property rights under a new dispensation was among the most contentious issues in negotiating the terms of political transition in the 1990s. The 1993 ‘interim’ Constitution (Act 200 of 1993) protected existing property rights through the time of the first democratic election while providing for land restitution, paving the way for a Restitution of Land Rights Act shortly after the first democratic elections. In July 1991, the ANC’s National Conference adopted guidelines developed by its Land Commission which rejected any constitutional protection of property rights (Klug, Reference Klug2000: 127; see also Klug, Chapter 11, this volume). Yet a mere few months later, when formal negotiations commenced, the ANC had abandoned nationalisation as a policy goal, acceded to compensation being paid for expropriated property and considered options to fund a programme that would now involve substantial capital costs to the state (ANC, 1992; Hall, Reference Hall2010). A proposed tax on landowners to fund a ‘compensation account’ earmarked for land reform purposes was quickly abandoned (Klug, Reference Klug2000: 128).

Back in the early 1990s, as the details of the interim Constitution and Bill of Rights were debated (and again four years later in 1995 when debating the final Constitution), divisions between the ANC and the National Party (NP) government centred on whether expropriation of property should be allowed for public purposes only or also in the wider public interest; whether or not compensation would be set at market value and whether it would be defined by a court; and the status of the right to restitution of property rights (Chaskalson, Reference Chaskalson1995; Klug, Reference Klug2000: 132–33). The NP argued for unconditional protection of all private property, while the liberal and business-aligned Democratic Party (DP) agreed with the ANC that this should be tempered with the right to expropriate property not only for public purposes (such as infrastructure) but also in the public interest, including for land reform, subject to the payment of compensation as determined by a court (Klug, Reference Klug2000: 127).

By February 1993, the ANC had acceded to the payment of ‘just compensation’ for land acquired by the state based on an equitable balance of public and private interests and subject to legal review – and therefore to the principle that the costs of land reform would be largely carried by the state. Unlike its earlier guidelines, the ANC’s proposals for the interim Constitution drew no distinction between personal and corporate property. The debate on property rights at the Convention for a Democratic South Africa (CODESA) focused on the mines and industry, together with land, a conflation of forms of property that again proved convenient in 1995 for the farming lobby, which was less influential in the negotiations than big business (DolnyFootnote ¹ interview, 2005; own observation). As Mandela told businessmen in London, ‘[w]e have issued an investment code which provides there will be no expropriation of property or investments. Foreign investors will be able to repatriate dividends and profits’ (Kimber, 1994, cited in Hall, Reference Hall2010: 153).

As part of its ‘Back to the Land’ campaign in June 1993, the National Land Committee (NLC) supported a protest march of 500 rural community representatives, drawn from all provinces, at the CODESA negotiations, demanding the removal of the property rights from the draft interim Constitution and the confirmation of a right to restitution. This did not work. Agreement on the property clause on 26 October 1993 was the last item on which the interim Constitution turned, in lengthy and late-night debates described as both fierce and chaotic (Chaskalson, Reference Chaskalson1995). The final agreed text set out an explicit right to property – a positive freedom for landowners to acquire it, hold it and dispose of it. No such right exists within the final Constitution, which instead opens with only a negative property right to govern the way in which those holding property may be deprived of it.

In all the contestation between rural community groups and the ANC, the focus was squarely on the right to restitution and securing the tenure of farm workers and labour tenants (Klug, Reference Klug2000: 133). Throughout this period, the constituency for wider land redistribution was not clear. While landlessness was a popular topic at workshops and central to the rhetoric of land non-governmental organisations (NGOs), it lacked a clearly defined constituency. The NGOs worked with communities that had been forcibly removed or threatened with forced removals in the preceding period. From 1993 onwards, as the restitution process was separated from the development of policies for land redistribution, the claims process was taken forward by the Centre for Applied Legal Studies (CALS), the Legal Resources Centre (LRC) and the Land and Agricultural Policy Centre (LAPC)Footnote ² in a technical approach that favoured the input of lawyers. Dolny (interview, 2005) observed that, by the early 1990s and with the start of formal negotiations, ‘this was a legal liberation struggle’. Its corollary, of course, was that the shaping of land redistribution policy and agricultural policy, in particular, became the domain of agricultural economists, largely the ‘verligte’ (enlightened) academics working for state institutions who favoured small-scale farming options but within a deregulated and liberalised economy and were contracted to the World Bank (Hall, Reference Hall2010). This bifurcation between lawyers and economists continued to beset land reform.

The Mandate for Transformation

The ‘final’ Constitution (Act 108 of 1996) mandated land reform, setting out rights for the dispossessed, landless and those with insecure tenure. In relation to each property right – the right to access on an equitable basis; the right to restitution; and the right to secure tenure – the duty-bearer is the state (s. 25(5), (6) and (7)). The state is empowered to expropriate property, including land, in the public interest as well as for public purposes (s. 25(2)), and a special status is given to those expropriations carried out in pursuit of ‘the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources’ (s. 25(4)). Expropriation is subject to the payment of ‘just and equitable’ compensation, taking into account five criteria, of which market value is one, the others being the history of its acquisition, past state subsidies in its development, its current use and the purpose of the expropriation (s. 25(3)).

As in the negotiations at CODESA, the question of property rights again became one of the ‘unresolvable lightning rods’ in the Constitutional Assembly (Klug, Reference Klug2000: 134). At stake was whether property – already regulated through statute and common law – should be given constitutional protection in a Bill of Rights and, if so, how the powers of the state to enact land reform and the rights of citizens to claim land rights would be balanced against the rights of existing property owners. When the NP failed to garner support for any form of group rights (such as a veto for whites or other minorities on certain kinds of legislation), it focused on the defence of individual rights, specifically property rights, as the last bastion of white protection against the redistribution of wealth (Klug, Reference Klug2000).

At hearings on property rights in August 1995 held by Theme Sub-Committee 6.3, three options compiled by the Working Group on Property Rights were presented and debated: two draft versions of a property rights clause and the option of not including a property clause in the Constitution (own observation). Among those who opposed the inclusion of a property clause at the hearings were academics and lawyers who, drawing on experiences in Canada and New Zealand, argued that embedding property rights in the Constitution would ‘insulate’ property owners from redistribution efforts and so ‘institutionalise or entrench imbalances and injustices in the distribution of property’ (Constitutional Assembly, 1995: 26–55; own observation). The most vociferous objections came from the Pan Africanist Congress, based on its own alternative policy vision, rather than from the ANC (Van der Walt, Reference Van der Walt and McLean1999: 112). Although the debate was framed as one about land and land reform, the provisions would extend to all types of property. Arguments for the constitutional protection of property rights came not only from farmers’ associations and political parties representing white interests (the NP and the DP), but also big business and the mining houses, some of which had brokered ‘talks about talks’ with the ANC in the 1980s (own observation; Klug, Reference Klug2000). As a postgraduate student writing my first thesis on land reform, I attended sessions of Theme Committee 6 and was struck that the vociferous demands for a clause to insulate private property from expropriation came not only from the farming lobby but from mining companies. The insistence on property rights did not turn exclusively or, perhaps, even primarily on questions of agricultural land.

The compromise proposal to the Constitutional Assembly for a way forward was that the Constitution should provide for expropriation for land reform purposes, alongside support for all land reform measures. Whereas the interim Constitution’s limitation of expropriation to public purposes meant that land reform could proceed only with the cooperation of existing landowners, this was not the case with the final Constitution of 1996. What Lahiff (Reference Lahiff2007) has termed a ‘landowner veto’ has persisted in practice due to the policy choice not to expropriate – leading to deadlocks in negotiations over price. This veto is a core feature of market-based land reform as a policy paradigm. And yet, later, while mineral rights were indeed nationalised under the Minerals and Petroleum Resources Development Act 28 of 2002 and, similarly, water was nationalised under the National Water Act 36 of 1998, land was not.

A Right of Equitable Access to Land

The ANC’s proposed constitutional principles included explicit protection of property rights subject to certain limitations, among them provision for the taking of property in the public interest, according to legal prescriptions and subject to payment of compensation. The notion of a right of ‘equitable access to land’ was the least debated of all the clauses. It originated from a small group of ANC-aligned lawyers who argued in favour of a regime of ‘property rights for the property-less’ to counterbalance:

In this way, even among those who had argued against a property clause, the idea was born of using a constitutional rights framework to impose a positive obligation on the state to provide suitable land and housing for the landless and homeless; it would empower them to press their claims, and shape the behaviour of state officials to facilitate a responsive land reform. The ‘property clause’ would grant limited safeguards to existing property owners while mandating transformed property relations between the landed and the landless and between owners and tenants. Agreement between the political parties was reached at midnight on 18 April 1996, and President Mandela signed the final Constitution into law in December of that year.

A right of equitable access to land is not, of course, an unfettered right to land. But it is a right to have the state demonstrate that continued denial of access to land is the necessary outcome of a fair and reasonable policy and implementation mechanisms that weigh up the competing needs of and interests in land. In other words, the state is answerable to the landless. Like the right to restitution, the right of equitable access should be able to trigger an expropriation when the rights of the landless directly contradict and are impeded by the exercise of the property rights of the propertied. Where this is the case, the imperative of equitable access takes precedence. I argue this on the basis of two clauses, read together: first, what I characterise as the ‘national interest’ clause refers to ‘the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources’ (s. 25(4)(a)), and second, what I characterise as the ‘override clause’ confirms that ‘[n]o provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination’ (s. 25(8)). This latter clause is the oft-ignored trump card, which – should the other provisions impede the state – explicitly exempts land reform from the constraints of any other clauses.

Parliament’s High Level Panel

The question of equitable access to land, and the role of expropriation in making it possible, was considered in the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (HLP, 2017), established by the speakers’ forum of the National Assembly, National Council of Provinces and provincial legislatures, and chaired by former President Kgalema Motlanthe. In our commissioned report on land redistribution for the HLP, Thembela Kepe and I made the point that there was no framework to trigger expropriations in the public interest to make possible access to land on an equitable basis (Kepe & Hall, Reference Kepe and Hall2016). But few expropriations had been attempted even in cases of restitution, where the constitutionally recognised rights of the dispossessed to specific parcels of land could not be realised due to the effective ‘landowner veto’ that the state’s refusal to expropriate ceded to the current owners of claimed properties.

Three points from the HLP merit emphasis. First, the law is insufficiently developed: the Provision of Land and Assistance Act 126 of 1993 is an insufficient guide to give effect to section 25(5), as it empowers a Minister to acquire and/or allocate land but does not prescribe the rationale or manner in which this must be done. Predating the Constitution and considering redistribution as a matter of ‘largesse’ rather than ‘right’, to use Budlender’s (Reference Budlender1992) terms, it is permissive rather than prescriptive. Second, eligibility, prioritisation and selection are among the parameters left unspecified. To align with the right of access to land on an ‘equitable basis’, legal or policy prescription is needed to indicate:

1. (a) who should benefit;

2. (b) how prioritisation of people should take place; and

3. (c) how rationing of public resources should take place.

Third, the categorisation of applicants needs to be linked to a baseline survey and longitudinal studies to track change over time to show the benefits of land redistribution to people’s livelihoods.

The meaning of section 25(5) has not been interpreted legislatively or judicially. The vast majority of South Africans are eligible for land reform, but very few are actually getting access to land. Based on delivery data to date, and prospects for scaling up, even a very substantially expanded land reform programme would be likely to benefit only a minority. The question, then, of who should be selected as beneficiaries and what they are eligible to get is of central importance. On the one hand, ‘decision-making about who actually gets land through redistribution is opaque’ (HLP, 2017: 212), and on the other, there is growing evidence of elite capture by the wealthy, non-farmers and politically connected (Hall & Kepe, Reference Hall and Kepe2017; SIU, 2018; Mtero et al., Reference Mtero, Gumede and Ramanstima2019).

The legal provisions for making a claim for restitution clarify to whom the state is responsible for the realisation of the right – the claimants – and what manner of state action would constitute adequate realisation of the right – the content of the right. But for land redistribution, the holder of the right is not specified beyond ‘citizens’ and the content of the right of ‘access … on an equitable basis’ is not defined in any way. The HLP, therefore, concluded in favour of a Land Reform Framework Bill (or Redistribution Bill) to spell out the nature of the right of equitable access and to provide the basis for citizens to pursue their claims against the state for access to land as a constitutional right. An ‘indicative draft’ of such a Bill was even appended to the HLP report.Footnote ³ Yet the bulk of the far-reaching implications of the HLP proposals were studiously ignored amid President Zuma’s forced resignation, Ramaphosa’s ascendancy and, just a fortnight into his tenure, the EFF proposed its motion in Parliament to review section 25 of the Constitution, which the ANC supported, amending it with several caveats to placate critics. Four years elapsed without any official process towards further development of this proposal.

The Presidential Advisory Panel on Land Reform and Agriculture

While the Constitutional Review Committee was embroiled in hearings, President Cyril Ramaphosa constituted the PAPLRA. The terms of reference covered largely the same terrain as the HLP yet were broader, including the question of EWC along with agricultural development and farmer support, institutional arrangements and financing. The composition of the Panel was a feat of political engineering, bringing together ten South Africans: five women, five men; seven black, three white; two lawyers; two presidents of national farmer associations; two individual leading farmers (one young black woman and one older white man); two agricultural economists (both men); and two interdisciplinary social scientists (both women).Footnote ⁴ In many respects it must be considered a success in establishing a process that would hold at bay the political demands in an election year and keep some momentum within the presidency, as opposed to the parliamentary process, at a time when the EWC issue served as a proxy for internal factional battles within the ANC.

The formation of the PAPLRA followed a frantic period from March to August 2018, during which a sequence of internal ANC processes attempted to enlist allies from outside the party – including groups traditionally excluded and cast as government critics. A set of related strategies, both explicitly articulated and implied, emerged during this period among a network of land activists, academics and lawyers. The first was to support the call for the state to override the interests of property owners for the benefit of land reform by using its expropriation powers. The second was to affirm the principle that compensation should not be presumed and, indeed, that no compensation is an acceptable principle. The third was to draw attention to the scope already available within the Constitution – and, therefore, to the centrality of the political choices made by the state rather than the Constitution itself being the binding constraint. Fourth was to offer the option of a ‘compensation spectrum’ as a way of operationalising the ‘just and equitable’ requirement, recognising that people affected by expropriations are not, and will not always be, wealthy or privileged – indeed the state regularly and mostly expropriates the property rights of poor people, even if these are not rights of private ownership. Fifth was to use this rare opening of space into party and government processes to foreground other neglected and urgent issues, including tenure rights for farm workers and former labour tenants, communal tenure, restitution claims and communal property associations, and agrarian reform. What also became clear was that the message carrier mattered. The ANC clearly wanted academics and lawyers who would affirm the first two points, not least to quell the reaction in the international media and among investors and to give credence to its position that EWC could be done responsibly and was respectable in global terms, while also wanting authoritative, especially black, voices to undermine the EFF’s position.

From the outset, as a Panel, we conducted a reality check: in contrast with the proclaimed importance of land reform, redistribution had ground almost to a halt, making all proposals moot. Expropriation had been effected in respect of twenty-seven land claims – but not in redistribution. The Office of the Valuer-General (OVG) explained that its adopted practice was to take an average between ‘market value’ and ‘current use value’ as the level of compensation, ignoring the other constitutionally specified criteria.

In our first allocation of work packages in the Panel, we allocated matters of land acquisition, beneficiary selection and land allocation to Advocate Tembeka Ngcukaitobi and myself. Together we wrote an initial outline position which was debated within the Panel, later refined and presented at colloquia held in December 2018 and March 2019, and the gist of it incorporated into the final report (PAPLRA, 2019). We suggested a compensation formula on a sliding scale across four categories that would require definition as part of a spectrum of ‘just and equitable’ compensation: zero compensation, partial compensation, market-related compensation and above-market compensation. We emphasised that the purpose of EWC was not primarily to speed up land reform – indeed, as we conceded, it would likely be slower, at least initially. And while it may have the advantage of limiting the cost of acquiring land, it would probably not be entirely free. In our view, the decision not to compensate for expropriated properties was a matter of principle; the question was, therefore, when this principle should apply – a consideration on which the courts had not had the opportunity to rule. Du Plessis’ contribution to the Panel, which we summarised, clarified that a deprivation of property – via nationalisation or state custodianship – would be distinct from an expropriation and would not attract compensation (PAPLRA, 2019: 73–75). The requirement of compensation was, therefore, only a consideration if EWC were enacted on a case-by-case basis rather than through a systemic change in property regime. Ironically, this meant that despite being the primary proponent, the EFF’s proposals did not require a constitutional amendment.

Our proposal within the Panel was for an expedited, primarily administrative process, with recourse to the courts and with the rapid development of a body of jurisprudence as a guide. The extent of compensation is not the only consideration. Section 25(3) requires not only that the amount of compensation is just and equitable but also that ‘the time and manner of payment must be just and equitable’. In Haffejee,Footnote ⁵ the Constitutional Court held this does not mean that compensation must be determined and paid prior to expropriation. Yet the determination of the amount could occur after expropriation. In Latin America, government bonds offered a mechanism to provide some compensation while deferring the cost (Cliffe, Reference Cliffe2007). The anticipated delays pending court challenges would otherwise stymie reform and incentivise landowners to drag out disputes. Expropriation can, though, proceed separately from the determination of compensation, which in turn would be ‘bifurcated’: initially, compensation should be administratively determined by a state valuer by applying a formula defined in policy and, if the property owner was dissatisfied with the compensation, this could be appealed and a court could review and approve or set aside the compensation – but without stopping the expropriation from proceeding.

The PAPLRA proposed ten circumstances where EWC may be considered: abandoned land; hopelessly indebted land; land held purely for speculative purposes and a clarification of what constitutes ‘speculative purposes’; unutilised land held by state entities; land obtained through criminal activity; land already occupied and used by labour tenants and former labour tenants; informal settlement areas; inner-city buildings with absentee landlords; land donations; and farm equity schemes (where the state has purchased equity and no or limited benefits have been derived by worker shareholders). These were more expansive than the categories in the draft Expropriation Bill and would be subject to review and determination by the courts. The two white commercial farmers on the Panel, AgriSA President Dan Kriek and Nick Serfontein, distanced themselves from all our recommendations on expropriation and compensation, among other matters.

The majority view of the Panel was that the Constitution is ‘compensation-based’ in that its provisions entail a presumption that compensation of some kind must be paid. At the same time, during our deliberations, Parliament voted to amend the Constitution and appointed a committee to develop a proposal to amend section 25. Cognisant of the political imperative of an amendment ‘to make explicit that which is implicit’, and drawing on Du Plessis (in PAPLRA, 2019), we offered a suggestion for a constitutional amendment to clarify that compensation does not need to be paid in each case, and insisted that framework legislation is needed to guide compensation, among other matters. We proposed this addition to the property clause: ‘(c) Parliament must enact legislation determining instances that warrant expropriation without compensation for purposes of land reform envisaged in section 25(8).’

In contrast to outward appearances, EWC was not the most controversial or difficult matter debated within the Panel, or at the consultations we convened to engage more broadly with people. The main sticking points were the purpose of land reform, the nature of agrarian reform and the class agenda of land reform. In our consultations, most contested were the powers and roles of traditional authorities in general in land administration and specifically the status of the Ingonyama Trust. (On this see Mnisi Weeks, Chapter 7, this volume.) Skirmishes also emerged over the rights and entitlements to land of farm workers and dwellers, climate change and the notion of a ‘just transition’ towards a low-carbon future.

Insights from Cases on Redistribution and Compensation

An irony throughout the EWC debate has been the privileging of the question of acquisition over that of redistribution. Acquisition might be a precondition for redistribution, but the state has consistently shown that it is more proficient at the former than the latter. Whether acquiring land through the market or compulsorily, the state has been unwilling and/or unable to redistribute it effectively, in a coherent manner and with secure tenure rights. A range of situations have been documented: redistribution beneficiaries who have been unable to acquire either title or long-term leases to their land, even a decade or more after acquiring permission to occupy (Hall & Kepe, Reference Hall and Kepe2017); the poor capacity of the state to collect rents owed by its tenants on state-owned land (Auditor-General reports); and many others (Mtero et al., Reference Mtero, Gumede and Ramanstima2019). An illustrative example is Rakgase,Footnote ⁶ in which the High Court found that the state had failed to comply with the Constitution by not converting the tenuous land rights (under a long-term lease) of a black farmer, David Rakgase, into ownership when it was able to do so and he qualified for a grant; this, it found, constituted a breach of a constitutional obligation. This failure of administrative justice flags the limitations of state trusteeship in the absence of capacity to redistribute rights to citizens. Trusteeship was patently no guarantee of access to land on an equitable basis, as required in section 25(5).

If completing the work of redistribution involves securing tenure, the initiation of redistribution requires serious engagement with demand for land; between the two sits the question of how to get the land. The PAPLRA’s report urged that the most urgent needs for land be prioritised, to resolve the outstanding land restitution claims, to give the land that the state has and to identify much more effectively privately owned land needed for redistribution. Resolving the chaotic, conflictual and insecure tenure arrangements on redistributed land requires either state capacity to manage leaseholds or an exploration of alternative models. The state’s ongoing attempts to extract rents contradict the proclaimed intention of EWC: under the current leasehold model, beneficiaries are to pay rent to the state for fifty years, before being given an option to purchase the ‘redistributed’ land. So, even if the state were to acquire it without paying compensation, this does not translate into its being given out for free. The ‘market-based’ approach remains in the broader conception of land reform, as being about redistribution for production for the market and payment of a rent. The irony is that some of the political formations that promote state trusteeship have also been fighting against the state for evicting people.

One labour tenant case illustrates both the legal possibility of using the constitutional parameters to drive down compensation for land reform – though whether this could extend to no (or ‘nil’) compensation was not tested. Acting in Msiza at the Land Claims Court,Footnote ⁷ Ngcukaitobi set compensation at a level 16.6 per cent lower than the estimated market value, using the criteria of section 25(3). Mr Msiza and his family had, from 1936, resided on and farmed land in KwaZulu-Natal, but never owned it. Owners had come and gone, taking with them the rising value of the land over the intervening sixty years, and even after Msiza’s claim was lodged, the property had again changed hands. As Ngcukaitobi observed,Footnote ⁸ the appreciation in the value of the land should have accrued to Mr Msiza and his family. Had the state better executed its obligations, they would have been the owners by the time the Trust had acquired the farm, several years after the claim. And further, had the LCC been deploying the constitutional criteria of ‘just and equitable’ compensation as set out in section 25(3) over the past twenty years or so, and determining compensation on this basis in diverse cases, a body of jurisprudence would by now be established.

Overturned in the Supreme Court of Appeal,Footnote ⁹ the time allowed for a further appeal to the Constitutional Court elapsed, and the opportunity to test ‘just and equitable’ compensation in court was lost. Inadequate precedents exist precisely because, by choosing not to use these powers or to test the constitutional requirement of ‘just and equitable’ compensation, the state has over time created a situation in which the meaning of this phrase remains uncertain. When compensation should be set below market price and under what circumstances it could be zero has never been determined by a court, except in Msiza. Deputy Chief Justice Dikgang Moseneke admitted in 2018 that it was a matter of disappointment for him and others on the bench that no cases had been brought to test these provisions.

Beyond the Caricature: Land and Inherited Privilege

Certain contradictions and paradoxes arise, some of which are distinctly uncomfortable. First is the question of the land as a signifier of privilege as opposed to being the repository of privilege. While it is arguably the most potent signifier, ‘land’ is not the main repository of wealth or privilege. Substantial wealth is of course still bound up in land, including but not primarily agricultural land, but much of the wealth built up and accumulated on the land, from conquest, through settler colonialism, to segregation and grand apartheid, has since migrated off the land. The land is no longer the repository of all the wealth that it produced. Yet, unlike Bantu education, cheap labour and the suffering of separated families, the land remains a relic, a physical remnant of what was lost and can conceivably be restored. The equation of landed property now with inherited privilege is both correct but also incomplete, given the extent to which the capital accumulated through cheap land and labour is now held in urban residential property, in financial instruments, on the stock market, in global financial markets and in intergenerational investments in education, rather than in the land.

A second angle is that, while most property owners are white South Africans, the vast majority of the nearly 5 million white South Africans do not own agricultural land – which is the focus of the call for EWC. The majority of the approximately 30,000 commercial farming units are owned by South Africans, overwhelmingly white, yet even by generous calculations, these landowners likely constitute less than 0.6 per cent of the white population. This also raises the question of the beneficiaries of colonialism and apartheid and how those who benefited should contribute to transformation and redress.

Third is a temporal dimension, given the lapse of so much time not only between dispossession and a constitutional democracy but also between a constitutional democracy and the realisation of rights to redistribution, restitution and security of tenure. Between 1995 and 2008, over 5 per cent of agricultural land was transacted through the market annually (Aliber, Reference Aliber2009: 13). And given the significant restructuring in the sector through the 1990s, triggered by deregulation, drought and trade liberalisation, the majority of private property owners holding agricultural land parcels by 2018 had not owned these properties in 1994. As a corollary, the vast majority of white South Africans who had owned farms in the early 1990s no longer did so. The very limited intergenerational transfers of commercial farms, the active land market and rising property prices during the late 1990s and especially the early 2000s, prior to the crisis of 2008, meant that a certain generation of white farmers were able to sell properties acquired and developed with state support, realising the full improved prices for these, and invest the proceeds elsewhere.

In view of this, a striking silence in the debate about the property clause is any discussion of the expropriation of property other than land. Of all the forms of property that underpin inequality and injustice, land has been singled out, although even the category or categories of land that should be subject to EWC have been rather limited in the arguments of many of the protagonists. The EFF, for instance, started by calling for the nationalisation of all land, but later clarified that EWC should apply to farmland only and not to residential land, after an outcry from within its support base. Expropriation of intellectual property or financial assets have been largely undiscussed.

Further, the determination of compensation has to date been highly discriminatory, with an asymmetry between the calculation of compensation to the dispossessed and compensation to the possessors. Land restitution claimants opting for cash compensation have not received the current market value but rather a historical value inflated to current values using a consumer price index. Almost invariably, this discounts the difference between general inflation and property values; it also ignores the forgone opportunities of having been denied property rights for the intervening period. To the extent that compensation is treated differentially, then, it demonstrates a system of affirmative action in favour of the current possessors of property rights over those dispossessed in the past, and in favour of private title holders over those holding informal property rights.

Conclusions

The insistence on a constitutional amendment and blaming the Constitution for the failures of land reform runs far deeper than any literal reading of the law. Instead, it is a political act – in part political theatre, in part restorative dignity-claiming. The call for the decolonisation of landed property relations deserves wider debate, as does what it means to dismantle the hierarchy between property owners and the landless. Missing in the debate so far has been the crucial question of the commons and of defending and expanding access to land as common property, alongside or instead of redistribution within the private ownership or private leasehold model. Attention to the property clause is productive only insofar as it spurs on this broader debate, rather than fixating on the Constitution as the site of resolving the intransigence of the state.

The core problem is not the state’s powers to acquire land – which are well established, if seldom used – but rather the ability of citizens to claim access to it on an equitable basis. Any battle that targets the state’s expropriation powers in isolation from the question of the onward redistribution of the land that the state acquires in this manner is likely to yield a Pyrrhic victory. Rather, the ‘redistribution’ clause in section 25 provides the basis for precisely this: a framework to guide how citizens can make claims on the state and in whose interests the state should expropriate. While a ‘redistribution bill’ and ‘area-based planning’ for ‘inclusive people-driven land reform’ and other models and guides have proliferated, missing among these initiatives are organised formations of landless and land-poor people making their own plans for which land and where should be redistributed to whom, for what and on what terms. A right to land for the landless, on an equitable basis, in both urban and rural areas, and for diverse purposes and with flexible tenure, throws open more useful and more liberatory possibilities than the convergence of neoliberalism and authoritarian populism that we have seen to date; it could serve as a strategic focal point for socio-legal activism, urban and rural social movements, human rights lawyers, NGOs and allies in academia.

The conditions for such struggles to find purchase and for claims to have traction are many and will doubtless continue to be debated and tested in practice. They will stand a better chance if, in the interim, the state is claim-ready with a new Expropriation Act, a revived and capacitated Land Court and a Compensation Policy that operationalises the criteria in section 25(3) of the Constitution. But such measures should not be confused with moving ahead with land reform; they are just yet more mechanisms, illusory until used. While the state steadfastly refuses to instigate significant (let alone pro-poor) land reform ‘from above’, such legal and policy reforms cannot be seen as advancing land reform in themselves. However, they could serve as frameworks against which political movements, communities, families and individuals might at times assert their claims ‘from below’.

Introduction

These are the bleak and regrettably timeless words of the catchy maskandi ‘protest’ song released by Phuzekhemisi NoKhethani in 1992. This music of the people (of KwaZulu-Natal, at least) spoke to the democratic aspirations of millions of South Africans in the countryside who had experienced the imposition of traditional leadership and deprivation of secure rights – mainly to what was characterised as ‘tribal’ land in so-called communal areas – as a profound aspect of apartheid’s oppressive design. Their hope was that with democracy would come ‘freedom accompanied by full citizenship [and] equal rights’ (Mnisi Weeks, Reference Mnisi Weeks and Campos Galuppo2015: 124). Those dreams are yet to be realised.

More than a quarter of a century after the struggle for equality under the law technically succeeded with South Africa’s entrance into democracy in April 1994, and the finalisation of the Constitution of the Republic of South Africa in 1996 (the Constitution), land reform and redistributive justice continue to elude the majority of South Africans (Ntsebeza & Hall, Reference Ntsebeza and Hall2007; Zenker, Reference Zenker2014; Cousins, Reference Cousins2016; Beinart, Kingwill & Capps, Reference Beinart, Kingwill and Capps2021). This is especially true if one takes a gendered view of the many challenges and poorly used opportunities to realise equitable land reform that rural women have experienced since South Africa’s establishment as a constitutional democracy. With this in mind, this chapter approaches the much-debated, alleged need for amending the Constitution from the perspective of rural women (and, by extension, children)Footnote ¹ living under traditional governance; how have their hopes for land reform and redistributive justice fared in South Africa as a purportedly constitutionally transformed democracy? Although that is the focus, the chapter situates women’s struggles within the wider context of the insecure land rights of rural communities generally (involving men as well as women) and thus sheds light on broad concerns with rural democracy and governance and how they impact land matters. The chapter therefore asks, with reference to land and rural people’s social and economic security, how significant local political rights are for redistributive justice in the former bantustans.

The Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) was passed to temporarily defend the rights and interests of people ‘beneficially occupying’ land to which they did not have formal rights (that is, they were openly occupying land in rural areas as if owners but without permission or the exercise of force). The expectation was that IPILRA would shortly be replaced by legislation – such as the Communal Land Rights Act 11 of 2004 (CLARA) – that would provide permanent tenure protection to informal rights holders (Zamchiya, Reference Zamchiya2019; Tlale, Reference Tlale2020). However, the Constitutional Court duly struck down CLARA in 2010,Footnote ² while IPILRA has continued to be renewed annually. It has now been over a quarter of a century since South Africa gained its independence, yet legislation to strengthen tenure security and related institutions in the former homelands is yet to be implemented. The Communal Land Tenure Bill (BX-2017) (Department of Rural Development and Land Reform (DRDLR), 2017) has yet to make its passage into law and is likely to meet the same fate as its predecessor. As the World Bank (2018: 44) correctly summarises, ‘[a]t the heart of the long-standing stalemate regarding tenure reform in communal areas is the significant power given to traditional leaders’.

The uneasy fit between customary conceptions of land and the cadastral property system, as well as between customary law and state law systems, has been extensively canvassed in the literature (Kingwill, Reference Kingwill2013; Cousins, Reference Cousins2016; Beinart et al., Reference Beinart, Kingwill and Capps2021). Less thoroughly explored are the ways in which IPILRA tried to get around these dissonances by taking a bottom-up approach to decisions pertaining to land occupation, use and access under the Constitution, grounded in vernacular normative conceptions and the unused opportunities that it presents for inclusive land reform. The ways in which IPILRA’s objectives have not been realised articulate with the reasons why transformative constitutionalism and its lofty ambitions have been limited in their effect in rural South Africa.

This chapter asks whether the ‘transitional justice’Footnote ³ arrangements in the Constitution, professed to be deeply transformative, positively yielded (especially gendered) restorative and redistributive justice on the ground. Answering in the negative, the chapter demonstrates that the problems of ongoing tenure insecurity and the misappropriation of people’s land rights in ‘communal areas’ may not lie predominantly with the Constitution per se, or with the way the constitutional and other courts have interpreted section 26(6) and (9) as well as legislation such as IPILRA. Rather, they appear to lie mainly with the ruling party’s turn towards an interpretation of ‘tradition’ and ‘customary law’ that entrenches the undemocratic governmental powers of traditional leaders at the expense of rural people. Hence, this chapter goes beyond concerns with the property clause to highlight the centrality of political rights, especially in local government, thus emphasising that the quest for redistributive justice certainly includes, but also extends well beyond, rights to land.

The chapter thus highlights the complicity of traditional leadership institutions in historical and contemporary land dispossession as evidenced by the residential lease programme of the Ingonyama Trust Board (ITB). It also reflects on how this complicity may sometimes put vernacular law in conflict with itself: on the one hand, some traditional leaders elevate to the level of (official) customary law self-serving values such as the centralisation of land ownership and control vested in the institution (which is rhetorically conflated with the traditional leader as an individual), in order to aid in their personal enrichment (Buthelezi et al., Reference Buthelezi, Skosana and Vale2019; Ubink & Duda, Reference Ubink and Duda2021; Wicomb, Reference Wicomb2021) and, on the other hand, this centralisation campaign is vehemently defended against the ‘alter-Native’Footnote ⁴ values embodied in living customary law (that is, vernacular law) that argue in favour of the necessary diversification and diffusion of land-holding and decision-making power (Mnisi Weeks & Claassens, Reference Mnwana2011; Tlale, Reference Tlale2020). Perhaps surprisingly to some, as potential levers, these values offer greater chances of achieving widespread poverty reduction in communities that desperately need it.

The backdrop is the recognition in the Constitution of the status of customary law (ss. 39(2) and 211(3)), rights to property (s. 25), political participation (s. 195(e))Footnote ⁵ and access to justice (s. 34). In this chapter, the transformative impact that these protections were meant to have is read alongside the provision in section 211(1), that ‘[t]he institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution’, and in section 212(1), that ‘[n]ational legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities’ (Nkhwashu, Reference Nkhwashu2019). The valorisation of the institution of traditional leadership independent of a democratic following, which is what has been produced by the legislature’s interpretation of the latter provisions, is explored through two recent cases that have clearly revealed the threat that uncritical and unbridled, government-backed traditional authority and power have yielded for South Africa’s constitutional promise. The first is Ingonyama TrustFootnote ⁶ and the second is Maledu.Footnote ⁷

The Preamble to the Constitution articulates the lofty vision of ‘the supreme law of the Republic’, undergirding the striving of ‘[w]e, the people of South Africa’, to:

Yet the cases of Ingonyama Trust and Maledu show that the cumulative impact of the socio-economic and politico-legal realities in post-apartheid South Africa have yielded limited land rights protection for traditional peoples and, consequently, not altered the conditions of material and social precarity that affect these groups. The fact that the recognition and development of customary law has to pass constitutional muster has been largely ignored (Budlender, Reference Budlender2021).

Two Cases in Point: Ingonyama Trust and Maledu

Following the release of the Report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (HLP) in October 2017 (HLP, 2017), former President Kgalema Motlanthe publicly observed that the ITB in KwaZulu-Natal (KZN) was taking advantage of residents on land registered to it. In the lead-up to the report, Motlanthe had heard hundreds of rural South Africans, especially in mineral-rich areas like the Platinum Belt in the northern territory and land under the ITB’s jurisdiction, testify to their experiences of land confiscations, insecurity and destitution. At a May 2018 land summit, he said of the ITB, ‘[p]eople who have lived there for generations must pay the Ingonyama Trust Board R1,000 rent, which escalates yearly by 10%’ (Nhlabathi, Reference Nhlabathi2018). This was after the ITB had advertised to the people in its jurisdiction (many of whose families had lived there for generations) that they have insecure tenure and should ‘upgrade’ their apartheid-era ‘Permission to Occupy’ (PTO) certificates by entering into long-term leases with the ITB.Footnote ⁸ This, it was claimed, would provide them with the proof of residence needed to register to vote, open bank accounts, register cellular phones or obtain rural allowances from employers.

For instance, in November 2017, the Ingonyama Trust advertised in a number of KwaZulu-Natal newspapers saying it was ‘inviting’ PTO holders to come to the ITB ‘with a view to upgrading these PTOs into long term leases in line with the Ingonyama Trust tenure policy’. Contrary to the Trust’s claims, the PTO certificates held by many of the people who ‘voluntarily’ took the Trust up on its widely publicised policy-based offer (some of whom were later to become the applicants in the case against the Trust and ITB), were in fact upgradeable to ownership in terms of the Upgrading of Land Tenure Rights Act 112 of 1991. Alternatively, for those who did not have PTOs, their informal land rights established by long-term occupation were likely to be considered customary ownership and thus entitle the people to compensation under IPILRA. The ITB had thus deceived people holding rights that are more akin to ownership into trading them in for the status of tenants and then going on to extort escalating annual rents from them.

At the time that Motlanthe was speaking, the ITB was allegedly continuing to issue this solicitation via its Facebook and Twitter accounts and advertisements, despite the fact that in March 2018 the Chair of the Portfolio Committee on Rural Development and Land Reform had directed the ITB to stop this practice, and a senior official of the Department had confirmed that the Trust’s income-generating scheme was unauthorised and violated both the Constitution and the Public Finance Management Act 1 of 1999. These flagrant and defiant actions were what ultimately led to the lawsuit against the ITB and the relevant Minister, to which discussion I now turn.

Discussion

In the remainder of this chapter, I argue that the Ingonyama Trust and Maledu cases show that the cumulative impact of the socio-economic and politico-legal realities in post-apartheid South Africa has yielded limited land rights protection for people in traditional areas and, consequently, the conditions of material and social precarity that affect them have not been altered. The main reason for this failure is the disproportionate power given to traditional leaders in our democracy. As intimated by Phuzekhemisi NoKhethani, the maskandi musicians quoted in the introduction to this chapter, these powers are exercised under the guise of ‘tradition’, in ways that further deprive an already impoverished ‘subject’ population, with land tenure the primary site of contestation.Footnote ¹⁵

Conclusion

In this chapter, I have shown the intimate relationship between impoverished democracy and the material poverty of vulnerable rural people that began under colonialism and apartheid and persists today. As the chapter has sought to demonstrate, the main reason for the failed transformative and redistributive impact of the country’s democratic Constitution in the realm of land tenure security and gender equality is the disproportionate power given to traditional leaders.

My argument is that IPILRA has provided the tools to address both these issues simultaneously and that utilising them would likely result in positive effects in traditional communities in both the political and economic spheres. Indeed, as demonstrated in the Ingonyama Trust and Maledu cases, fidelity to IPILRA would have gone a long way towards shoring up both the physical and the cultural survival of the affected communities. The corollary is also true: the government’s failure to enforce IPILRA is costing lives and denying communities their tenure security. These two cases show the cumulative impact of the socio-economic and politico-legal realities in post-apartheid South Africa that have yielded limited protection of land rights for people living under traditional governance. This has left the conditions of material and social precarity that affected these groups under apartheid fundamentally unaltered and, in some instances, even worse than before.

It would be possible to enact legislation that secures people’s customary rights in land and extends rights to women where these are being denied without having to resort to a constitutional amendment. The enforcement of already existing legislation such as IPILRA would accomplish much the same result. This chapter has detailed these missed opportunities that are in keeping with the Constitution. It therefore contends that amidst the sensationalist deliberations about expropriation without compensation of white-owned land, the opportunities for effectively advancing tenure security as well as other redistributive justice objectives that are already present in the Constitution have been obscured. Ultimately, it is essential for the public to pay keen attention to, and effectively address, the politics of traditional leadership and the transactions taking place concerning land that is already beneficially occupied by ordinary rural people, a majority of whom are women and children. This is because these politics and transactions have thus far renewed the very foundations on which apartheid was built. They are thus essential if largely ignored dimensions of the substantially failed efforts at land reform in South Africa.

As the Tongoane case reminds us (in para. 79), rather than being complicit with apartheid-era structures and processes that, while labelled ‘traditional’, were re-engineered as instruments of domination and dispossession (Mandela, Reference Mandela1959; Luthuli, Reference Luthuli1962: Mbeki, Reference Mbeki1964), it is essential that laws promulgated to regulate customary communities take seriously the ‘living’ laws that predate them. These include fundamental principles of governance such as Inkosi iyinkosi ngabantu/Kgosi ke gosi ka batho, which give expression to democratic values and rights to choose that are also protected in the Constitution. That is partly what IPILRA sought to achieve. Although it has been ignored, it tried to ensure that the processes of consultation and consent that are embedded in vernacular law are respected in rural communities that were previously dispossessed under apartheid, in ways that are expressly inflected by the protection of rights enshrined in the Constitution. Of course, IPILRA is not enough on its own. Yet adherence to it might at least curtail the ongoing undermining of the slight gains that ordinary rural people have made through the country’s transition from apartheid to democracy. The failure to do so is preventing both transitional and restorative justice from being realised in South Africa’s traditional areas.

This chapter offers a pragmatic approach to land reform in South Africa that prioritises production, rural livelihoods and partnerships, together with gradual redistribution of land. My vantage point is not that of an agricultural economist or practitioner but a historian who has been studying agrarian change and rural society in the country for nearly fifty years. The chapter attempts to understand and interpret evidence about recent changes in agricultural production and offer ideas about their implications for land reform.

Land reform remains important to address past injustice. Black people were legally prevented from owning or purchasing land in much of the country under apartheid. But in a context of economic stasis and persistent poverty, income is central for rural households, as is economic growth for the country – especially after the COVID-19 pandemic. The report of the Presidential Advisory Panel on Land Reform and Agriculture (PAPLRA), perhaps the most significant recent policy overview, argued that ‘the success of land reform must be linked to South Africa’s productive and sustainable use of land, and the vibrancy and competitiveness of the economy, open to all to participate and benefit at all levels’ (PAPLRA, 2019: 6). A Treasury document of the same year reinforced the point that ‘land reform must be oriented around growing the agricultural sector to foster economic development, and not purely be an endeavour to transfer land’ (National Treasury, 2019: 39). My aim is to explore a few developments that are aligned with this approach, which may facilitate production. While cautious about increasing the pace of land reform, I suggest an increase in state expenditure from which beneficiaries can generate income, and improved support for partnerships between the state and private sector.

In the space available, this chapter has a limited focus. I do not discuss historical injustice, the meaning of land, or land tenure, water and environmental issues. Expropriation without compensation is analysed in other chapters. Urban and peri-urban issues, which should be considered in the same frame of discussion as agricultural land reform, will also not be addressed here, except to say that given the continuing movement from rural areas to cities and towns, provision of secure rights to land and housing in urban and peri-urban areas is a priority. Land reform should follow the people.

Context: Economic Stasis and the Current Scale of Land Reform

The context of land reform has changed after a decade (roughly 2012–2021) in which economic growth has stalled, corruption has become endemic, divisions have immobilised the African National Congress (ANC) and inequality seems to have become intractable. The country experienced something close to economic stasis during the five years from 2015 to 2019, with growth averaging less than 1 per cent a year (Macrotrends, n.d., citing World Bank data).Footnote ¹ Recent socio-economic travails have been framed by COVID-19, with a nearly 7 per cent gross domestic product (GDP) contraction in 2020 – perhaps recouped by the first quarter of 2022 (Macrotrends, n.d.). The civil disorder in KwaZulu-Natal (KZN) and parts of Gauteng in July 2021 directly reflected both political tensions in the ANC and the inequalities exacerbated by COVID-19.

Figures differ but it may be fair to say that GDP per capita peaked briefly at $7,500–$8,000 in 2010–2011, after a period of rapid economic growth during Thabo Mbeki’s second term as president, and then declined to about $5,500–$6,000 in 2020–2021 – the same level as 2004 (World Bank, n.d.). Most South Africans, including the poorest, experienced significant growth in their standard of living during the first decade of the twenty-first century. However, this has since been reversed, and it is likely that the poorest, and women especially, bear the brunt. Perhaps two-thirds of jobs lost were lost by women in the early phases of the pandemic (Spaull et al., Reference Spaull, Casale and Posel2020). Unemployment increased to about 34 per cent in 2020 – and considerably higher according to the expanded measure and for younger people. In early 2022 it remained at this level. South Africa fell in global GDP rankings from about twentieth in 1960 to twenty-sixth in 1994; some tables now place it around thirty-sixth (Wikipedia, 2023). In this context, income generation for poor rural people in South Africa is a priority.

Figures on the area of land transferred from white owners to black occupiers since 1994 are difficult to find and interpret, especially in light of the range of agricultural potential in different areas. The PAPLRA (2019: 12) recorded that by March 2018, 9–10 per cent of agricultural land had been transferred through state schemes of redistribution (around 6 per cent) and restitution (around 4 per cent). This amounted to 8.4 million hectares or 350,000 hectares per year. In addition to further transfers during 2018–2019, the Department of Agriculture, Land Reform and Rural Development (DALRRD) accelerated the distribution of state land, aiming at 700,000 hectares in 2020–2021. Some of this, however, was probably occupied already. In a recent calculation, Sihlobo and Kirsten (Reference Sihlobo and Kirsten2021a), two of the best-informed commentators, reckon that 17 per cent of agricultural land, or 14.5–15 million hectares, were transferred, including by private purchase, by 2021. Government figures are not released for the extent of land transferred through the market.

The issue of ownership further complicates the picture. Initially, beneficiaries acquired land ownership through the restitution and redistribution programmes. With regard to rural land, this has usually been collective title through trusts and, after 1996, Communal Property Associations (CPAs). But following the Proactive Land Acquisition Scheme (PLAS), introduced in 2006, and especially since 2011, the state has given leases for most redistribution land, with an option to purchase at a later stage.

It is thus very difficult to arrive at a clear estimate of the total extent of black land holding in South Africa because the forms are so diverse. If the roughly 14 per cent area of the former bantustans is added, then it would amount to well over 30 per cent of agricultural land, but this is by no means all ‘owned’ in private tenure. A majority is in the wetter, eastern half of the country. While whites probably still own over 65 per cent of agricultural land, a substantial area has been transferred – a significant achievement by the state and unusual on a global scale. Zimbabwe’s ambitious and relatively successful land reform programme in the twenty years before the ‘fast-track’ (1980–2000) resulted in the transfer of less than half this amount of land.

Agricultural Production over the Last Decade

Establishing large white-owned farms was a central and violent project of the settler colonial and apartheid states as well as white ruling groups. The question is: Would a rapid unravelling of the relatively large commercial farms now be economically destructive? I will look at evidence about production on commercial farms and smallholdings to suggest that it would. My initial motivation for engaging directly in this debate was, in part, the result of calls for more radical action in South Africa, which did not seem to take sufficient account of the difficulties faced by smallholders (De la Hey & Beinart, Reference De la Hey and Beinart2017; Beinart & Delius, Reference Beinart and Delius2018). Different, sometimes linked, prescriptions were offered: a fast-track land reform, emulating Zimbabwe after 2000; nationalisation of land; and an end to the ‘willing seller, willing buyer’ policy through expropriation without compensation (see Introduction to this volume). A related concern has been the future of land tenure in the communal areas, especially in light of the ANC’s increasingly sympathetic approach to chieftaincy (Beinart et al., 2017; Buthelezi et al., Reference Buthelezi, Skosana and Vale2019).

Commercial Agriculture

Despite the uncertainties resulting from land reform policy and public debates about expropriation, large-scale commercial agricultural production has increased significantly in value and volume, especially over the last five or six years (DALRRD, 2021). Maize remains the most important crop in the Southern African region as a whole, still central to consumption for poorer people. The last six years (2016–2021) have seen four of the six largest maize harvests on record in South Africa, and the downturn in 2017–2018, largely because of drought, was less severe than in earlier years (Figure 8.1). Gross value reached R40 billion in 2020 (DALRRD, 2021) and has probably increased because of a sharp rise in international prices. Commercial farmers have widely adopted genetically modified seed, and an increasing percentage of maize is irrigated – marked by large circular fields. This expansion has been reflected in unusually high demand for new agricultural machinery over the last two years.

Figure 8.1.

South Africa maize production, 1980–2022

Source: Indexmundi (n.d. a)2

Maize was outstripped by poultry in 2020, with a gross value of over R60 billion, including eggs and smallholder production (DALRRD, 2021). This represented nearly 20 per cent of the value of agricultural production as a whole, supporting domestic consumption of by far the most popular meat. Livestock and animal products have grown rapidly in value, but so too has a wide range of crops: soya, grapes, deciduous fruit, citrus, avocados, macadamias, vegetables and berries. Sugar and wheat have contracted, but even the latter, which fell after subsidies were removed in the 1990s, has picked up over the last couple of years. Larger-scale commercial agriculture is increasingly diverse.

Citrus is an important indicator of investment and diversification. Tree crops that require high start-up costs and long-term commitment may seem counterintuitive ventures for landowners because of uncertainties in climate and policy. Nevertheless, the area planted expanded by about 9 per cent in 2020 and 5 per cent in 2021, with similar predictions for 2022. Exports, juice processing and domestic consumption are all increasing. Well-capitalised and innovative farmers are alert to new cultivars that extend the season and meet shifting global market demands. Although around 65–70 per cent of the crop is exported, which is most profitable for growers, expansion also provides cheaper fruit for juice and local consumption. Citrus provides over 120,000 jobs (though many are seasonal), and is the single biggest agricultural export commodity, at about R25 billion for 2021 (Citrus Growers Association, 2022).

The gross value of agriculture, growing at over 2 per cent per annum in recent years, increased 10 per cent to R308 billion in 2020 (DALRRD, 2021) – more rapidly than the economy as a whole so that, unusually, agriculture’s contribution to GDP may be climbing. Generally, it is given as around 2.6 per cent of GDP, but this figure is narrowly defined to include only the value of farm products or ‘primary agriculture’. Some estimates that extend the figure to agricultural inputs, downstream products, processing and transport go up to 9.3 per cent for ‘Agricultural Food Systems’ (Meyer, Reference Meyer2021) and higher for all ‘secondary agriculture’ (PAPLRA, 2019: 84). This is similar to the contribution of the mining industry.

Land prices have generally increased over ten years. Agricultural employment has declined since 1994, when it was over a million, but remained stable since 2015, when the measurement was altered, at around 800,000, and increased in 2021 (Sihlobo, Reference Sihlobo2022). The number of farm dwellers, however, declined as landowners attempted to evict tenants and families (PAPLRA, 2019: 49). Most large farms in South Africa are white-owned, but an increasing number are corporate or black-owned. Commercial agriculture is still vulnerable to many uncertainties relating to rising input costs, markets, environmental issues and climate; certainty in respect of policy would be valuable. Skills and capital are being kept on the land, and they can provide the spine for new initiatives.

Smallholder Agriculture

It is more difficult to analyse smallholder agriculture, either in the former homelands or on recently transferred land, because the government does not provide adequate figures – a major omission, given the importance of land reform and post-transfer support. Government figures published on the web for ‘non-commercial’ maize production show a declining area of cultivation, from an average of 380,000 hectares in 2013–2017 to 332,000 hectares in 2018–2022, but an increasing yield per hectare (Figures 8.2 and 8.3). According to these estimates, production of ‘non-commercial’ maize nevertheless declined a little, from about 635,000 tons (average for 2013–2017) to 600,000 tons (2018–2022) – although the last two years show promising growth. According to these government graphs, smallholders contribute less than 5 per cent of national maize production with yields of about 1.8 tons per hectare, compared with 6 tons per hectare on commercial farms.

Figure 8.2.

‘Non-commercial’ maize: area planted, South Africa, 2000–2022.

Source: DALRRD, Crop Estimates Committee (2022)

Figure 8.3.

‘Non-commercial’ maize: production, South Africa, 2000–2022.

Source: DALRRD, Crop Estimates Committee (2022)

These figures combine local surveys to record output and digital maps that allow an estimate of area cultivated. In one respect, they appear reasonably convincing. Village-based surveys, particularly in the Eastern Cape, indicate that cultivation of arable fields in the former homelands has diminished sharply in the last two decades (Manona, Reference Manona2005; Hebinck & Lent, Reference Hebinck and Lent2007; Brooks, Reference Brooks2017; Blair et al., Reference Blair, Shackleton and Mograbi2018). In Mbotyi, a high rainfall area on the coast of former Transkei, villagers largely ceased to use their fields in a fertile alluvial plain (Beinart & Brown, Reference Beinart and Brown2013; De la Hey & Beinart, Reference De la Hey and Beinart2017); this finding was confirmed in the nearby village of Cutwini (Hajdu et al., Reference Hajdu, Neves and Granlund2020). Recent fieldwork in KwaZulu-Natal suggests a similar process even in communal areas with rainfall of 1,000 mm. Land reform farms in the same area around Weenen, they note, ‘are now large-scale, extensive cattle and goat farms, with very few, if any, cultivating crops. They are rapidly undergoing bush encroachment related to climate change’ (Alcock et al., Reference Alcock, Geraci and Cousins2020: 1).

Many reasons are recorded in these surveys. Smallholders see the costs and risks of dryland farming on 1–2 hectares, without irrigation, as high relative to the benefits when staples such as maize, ready for cooking, can be purchased. There are bottlenecks for ploughing – few households have sufficient cattle to use ox-drawn ploughs, and they are dependent on the small minority with tractors. Families are smaller, and it is difficult to find sufficient labour; both women, who used to do most of the cultivation, and the youth are reluctant to prioritise such work. Access to child labour has diminished, particularly for herding, and as a result, some livestock are left to themselves for periods during the day. As one informant noted: ‘[T]he major problem that is affecting the people when they are growing mealies is the cattle. The cattle are just walking about everywhere … There is no control … You will be planting for the cattle’ (De la Hey & Beinart, Reference De la Hey and Beinart2017: 762). The layout of most betterment villages, where homesteads are separated from the fields, diminishes control and creates opportunities for theft.Footnote ³

Government figures likely reflect this process on the arable fields. However, they may underestimate the extent of cultivation in smaller gardens adjacent to residential homesteads, recorded in studies mentioned above, of both maize and vegetable production. In the Eastern Cape, Mtero (Reference Mtero2014) found the proportion of village households with gardens to vary from 25 to 75 per cent, even in neighbouring villages. Brooks (Reference Brooks2017) found that about 50 per cent of 120 households cultivated an average area of about 400 m². This is substantial for vegetables and green maize, yielding perhaps 20 per cent of household maize and more of vegetables. The significance of gardens, difficult to record, suggests that government figures for smallholder production may be underestimated. Vegetables have increased in importance, although markets may have been temporarily restricted by COVID-19 (Wegerif, Reference Wegerif2022). But even if 2 million households planted this much in gardens, which is unlikely as many live in dense settlements, it would amount to only 80,000 additional hectares, or another 20 per cent in smallholder maize output.

Resilience is also evident in the smallholder livestock economy. Sihlobo and Kirsten (Reference Sihlobo, Kirsten, Oqubay, Tregenna and Valodia2021b) estimate that while black farmers contribute 4.7 per cent of the value of maize, they account for 34 per cent of the value of beef. Livestock is the major enterprise on transferred land, and it may be that black people now own over 40 per cent of cattle, a figure last recorded in the 1930s. Some of these are slaughtered and consumed in villages or sold in informal markets for customary ceremonies. Poultry, pigs and goats are also widespread in villages, while the gathering of wild plants and fruits, including exotics such as prickly pear as well as plant medicines, make some contribution to rural livelihoods (Mugido & Shackleton, Reference Mugido and Shackleton2019; Leaver & Cherry, Reference Leaver and Cherry2020; Beinart & Wotshela, Reference Beinart and Wotshela2021).

It is difficult to calculate the value generated by smallholders through informal markets and local consumption overall, but the evidence is that a rapid transfer of land from large-scale farms will likely result in a substantial loss of agricultural production. The key issue for smaller-scale grain and horticulture in customary areas and on transferred land is not primarily a lack of land but a lack of capital, investment, support and access to adequate water.

Zimbabwe provides some evidence of the possible consequences of fast-track land reform on overall output (Figure 8.4).

Figure 8.4.

Zimbabwe maize production, 1980–2022.

Source: Indexmundi (n.d. b)

It is clear that fast-track land reform from 2000 had a major impact on maize production and food security for over fifteen years. The average for 1991–2000, around 1.7 million tons, was similar to that for the previous decade and included an exceptionally poor drought year in 1991. Production was maintained over a period of twenty years in which about 30 per cent of the large farms were transferred to smallholders in schemes that were generally well-supported. This was a relatively successful gradual land reform and could have been sustained. The average for 2001–2010, during the fast-track expropriation of most remaining large farms, was probably less than half at around 0.7 million tons annually.

Production of maize in Zimbabwe is now largely in the hands of smallholders, with some recovery in output. This did not, however, reach pre-2000 levels in the subsequent decade (2011–2020) or even in the five years from 2017 to 2021, which included a big harvest in 2021 (average of 1.6 million tons). By contrast, total South African production increased from an average of 8.5 (1991–2000) to 15 million tons (2017–2021). Malawian maize, largely grown by smallholders, provides another valuable comparison and has more than doubled since the 1990s (Figure 8.5). A major reason was the introduction of input subsidies in 2006, which enabled the country to recover from near-famine conditions in the early years of the twenty-first century and achieve relative food security (Chirwa & Dorward, Reference Chirwa and Dorward2013).

Figure 8.5.

Malawi maize production, 1980–2022.

Source: Indexmundi (n.d. c)

It is worth noting that Malawi is about the same size and has roughly the same population as the former South African bantustans but is producing six times more maize than these areas and double the quantity of maize produced in Zimbabwe, which is far larger. If South African smallholders residing in the former homelands and on transferred land produced the same amount of maize (or alternative crops) as Malawi in 2021, the value generated, at international prices, could have been in the region of R12 billion, equivalent to half a million pensions. Clearly this, together with the associated economic activities, would make a significant difference in South Africa’s rural areas. There are important environmental and social differences between South Africa, Zimbabwe and Malawi that help to explain such figures, but input subsidies and effective extension are part of the picture.

The same point may be drawn from the resurgence of tobacco in Zimbabwe (Mazwi et al., Reference Mazwi, Chambati and Mudimu2020). Before 2000, tobacco was largely grown on commercial farms, and production dropped from an average of 220 million kilos in 1996–2000 to lows of 60 million kilos after fast-track land reform. In 2006, a Chinese company established an input, extension and purchasing scheme for smallholders; British companies also invested. Connectedness to capital, inputs and markets made the difference, and by 2019, about 160,000 growers rivalled the output of the best earlier years. The value of Zimbabwe tobacco rose to about R10 billion and accumulation from this source led to investment elsewhere in the rural economy, including food crops. Zimbabwean smallholder tobacco exports were nearly half those of South African citrus in 2019, bringing perhaps an average of R50,000 to producers. This is an important base for rural recovery in Zimbabwe – again, it could have been achieved without fast-track land reform because tobacco does not take a great deal of land. Malawian tobacco fetched R7.5 billion in 2019.

Facilitating Smallholder Production: Partnerships and Joint Ventures

Input subsidy strategies have also been developed in South Africa, and I will focus on these as one potential route to facilitating connectivity and agricultural output. Since Thoko Didiza first took over as Minister of Land Affairs in the Mbeki presidency of 1999, the government departments dealing with land reform have increasingly recognised the problems of production on transferred land. Their strategy, though not uni-dimensional, has been to shift away from transferring land to multiple beneficiaries and towards assisting a more restricted number of ‘emerging farmers’ who may be able to succeed as commercial producers. The original formula for assisting redistribution, through the Settlement/Land Acquisition Grant (SLAG, 1994–2000), favoured communities that could pool their grants to purchase land through trusts and CPAs. This was largely replaced by the Land Redistribution for Agricultural Development (LRAD) from 2000 to 2006 and then increasingly by the PLAS, which tended to award bigger farms to those with business plans in the hope that they would establish successful agricultural enterprises.

In all of these schemes, as well as in restitution awards, inadequate post-transfer finance and support have been a problem. PLAS has been criticised for favouring relatively few beneficiaries with land and recapitalisation funds and abandoning the redistributive aims of the early land reform projects (Hall & Kepe, Reference Hall and Kepe2017). Gugile Nkwinti, then Minister, reckoned in 2010 that production had declined on 90 per cent of transferred farms, which was one reason for the departmental focus on PLAS. But outcomes on PLAS farms have been uneven, as have government attempts to facilitate production on highly capitalised restitution land (see below).

Large-scale commercial agriculture, dominated by white farmers, was initially defensive and attempted to keep land reform at bay. But some of the key commodity organisations, such as the South African Sugar Association (SASA) and National Woolgrowers Association (NWGA), have worked with smallholders since the 1990s, and an increasing range of non-state agencies have engaged with the issues. The resulting outgrower and partnership schemes are highly diverse in their form, involving existing and new individual smallholders and new collective owners in CPAs. They have drawn on farmers, private companies, commodity organisations, agricultural consultants and NGOs, as well as government departments. Most have been organised around specific commodities such as sugar, wool, forestry, dairy, beef, maize and fruit. I estimate that over 80,000 smallholders have participated overall, perhaps more than 100,000, but not all have been active at the same time.

Some Concluding Points

The overview and examples presented illustrate diverse processes and new networks that are developing in the agricultural sector. The gains that can be made to rural livelihoods in outgrower and partnership schemes may seem quite limited when compared to incomes generated from wages in other sectors. The agricultural minimum wage was increased to about R45,000 per annum in 2022, but mineworkers get at least four times that amount (SA Facts, n.d.). Nevertheless, amounts that accrue through some of the schemes discussed, ranging from about R15,000 to R50,000 a year (and probably more in some dairy and fruit projects), are significant for people living in impoverished areas of the country with limited employment opportunities. Many rural families are partly dependent on grants, sporadic remittances and informal sector engagements. The state pension, a significant contribution to the income of households in the former bantustans, is a little under R24,000 a year (August 2022). In this context, amounts from agricultural intensification are valuable.

I have focused on relatively successful projects, mostly led by commodity organisations and the private sector. The evidence is that non-state agents are taking an increasing variety of initiatives in land reform and smallholder agriculture. I have not seen an overarching attempt to quantify such developments, but it is possible that these now engage more people than state-led projects. This is not an argument against the state, not least because the state is still a major instrument of finance and land transfer; many partnerships involve both public and private funding. Nor is it an argument against other routes of facilitating production. Rather, my emphasis is on how best to generate investment in agriculture and rural livelihoods. The examples presented above suggest some promise in diverse partnerships between state agencies, private sector interests and rural communities. These potentially take the pressure off state finances for all the costs of land reform and address some of the weakest elements of state-led land reform – implementation and agricultural skills.

Partnerships are not without tensions. White farmers, commodity organisations and associated agencies sometimes frame their engagements within a critique of the failure of the state. They also perceive economic and political gains, including a conviction that an intensive, technologically innovative, commercial agricultural economy is in the national interest; they hope that such strategies will win more general support nationally among black as well as white, and desire to defuse local tensions in their districts. In some cases, partnerships can contribute to meeting government policy. The NWGA scheme initially grew out of a requirement that the financial resources inherited from the Wool Board in part be committed to redistribution; elsewhere, a sector code called AgriBEE has been developed for black economic empowerment (BEE) in agriculture. Some projects can involve (a relatively small) self-imposed tax, which has socio-economic purposes as well as a political rationale.

The evidence suggests a relatively buoyant commercial agrarian economy in South Africa, increasingly diverse and innovative, with relatively high levels of investment in both domestic food production and export commodities. The data on existing smallholders is inadequate, but despite limited arable agriculture in the former bantustans and on transferred land, there may be small increases in maize yields in communal areas, as well as expanding horticulture and some successful partnerships across a wide range of commodities. A priority for land reform should be more intensive development of existing African land holdings, including on transferred land. There is certainly scope to increase state financial support for non-governmental agencies of the kind discussed. New patterns of production and co-ownership may facilitate such developments – landowners increasingly draw on experts and consultants for a range of services and inputs.

With regard to expropriation without compensation, analysed in other chapters, my key question is whether it will act as a disincentive to investment. Commercial agriculture would greatly benefit from certainty. My focus is on promising non-governmental and private sector initiatives that include input subsidies, access to markets, as well as connectivity and knowledge transfers between established farmers, smallholders and new participants in commercial agricultural production. It would take little extra government expenditure to enhance current programmes, working with the private sector, and maintain gradual land transfer. As noted, roughly 350,000 hectares a year has been transferred in state schemes; the scale of privately funded purchases and transfers is uncertain. At present the state cannot adequately provide post-transfer support for those moving onto the amount of land it has transferred. This should be a key area of land reform.

Introduction

Land reform remains a potent challenge in contemporary South Africa, one that demands attention. This much has been confirmed by the strong passions the issue of expropriation without compensation has aroused, as well as the political currency the debate on amending the 1996 Constitution of the Republic of South Africa has gifted idealists and opportunists of all colours and stripes. The issue cannot be dispatched to the margins of public life with more commissions of inquiry or retooled business plans for the beleaguered Department of Rural Development and Land Reform (DRDLR) (now folded into the Department of Agriculture, Land Reform and Rural Development (DALRRD)). Nor can the visceral power of land as a symbol of dispossession and inequality be tempered through sober analysis alone, whether of actual land demand or changing patterns of settlement, land use and land ownership. Nevertheless, the staleness of contemporary policy debates, the extent of the political impasse in the state, and the urgency of other challenges facing the country – not least corruption and climate change – demand fresh ways of thinking about the contribution of land reform to redistributive justice in the third decade of the twenty-first century. How far fresh thinking will impact on the politics of land is hard to say; however, engaging anew with not only the discourse and practice of land reform but also the broader social–ecological contexts in which it must operate is critical for more effective policy development.

Underpinning this chapter is a concern with what I see as the overly narrow framing of current policy–political debates in terms of land as redistributive justice in South Africa, rather than land – actual land – as one plank in a larger framework for redistributive justice. I explore the need to reframe the issue from the vantage point of South Africa’s Karoo region. This large, sparsely populated, arid to semi-arid region is not commonly thought of as a land reform hotspot, but looking at land from this perch offers pertinent perspectives on land use and related matters. For one thing, the Karoo’s significant share of South Africa’s commercial farmland in terms of gross area – some 40 per cent – should give pause to those who regard the ‘white’ countryside as the main prize in the struggle for social justice. Here, land-based livelihoods are visibly vulnerable to the consequences of climate change while, against the grain of popular conceptions of this region, most residents are scrabbling to make ends meet not on farms but in small, struggling urban settlements.

The Karoo is, furthermore, at the forefront of developments that are impacting what we have come to think of as the established land order in the South African countryside. New land uses, notably major investments in astronomy and renewable and non-renewable energy, are recalibrating the significance of farming in this region in a time of major social–ecological change and, in the process, reprising old questions about social justice and the equitable distribution of national public goods in changing contexts. The Karoo is also beset with deep-rooted social problems that are not receiving the urgent, focused policy interventions they require, including extremely high levels of alcohol abuse, which can be fairly described as constituting a largely unremarked national emergency. The roots of this crisis may well lie in land injustices in the past, but much more than land reform is required to break the cycle of substance dependency and build local resilience and well-being.

In developing these points, I am not suggesting the Karoo is typical of the country as a whole – this is decidedly not a one-size-fits-all approach. Nor am I arguing that the time for land reform is past. Rather, I am using the Karoo to tease out significant issues that intersect in particular ways in this region and, in that intersection, prompt new ways of thinking about land and the land question. In a nutshell: the Karoo pushes one to scale down expectations of what land reform can deliver while foregrounding other issues that require more sustained attention.

This chapter develops that argument across five cross-cutting themes: the scale of the Karoo; its demanding – some might say stark – environment, which makes it a particularly challenging area for farming; contemporary land-use changes and the threats and opportunities they bring; the small-town character of the Karoo; and the region’s multi-layered history, a history which confounds simplistic notions of restorative justice through handing land back to its assumed original, singular and only true owners. The discussion draws on a body of research conducted since 2016 on land-use changes and sustainable development in the region.Footnote ¹ It is structured as follows. The next section provides a brief overview of the Karoo that draws attention to the intersection of scale, environment and history in the current land dispensation and what this means for a land reform programme still conceptualised primarily in terms of land for farming. This is followed by reflections on the major land-use changes underway in the Karoo and then a review of socio-economic conditions in small towns and their development priorities. The following section before the conclusion provides a case study of land issues in the small Karoo town of Loeriesfontein to show how the five themes play out on the ground. Here land claimants and small-scale farmers have found themselves competing for rights to the town’s extensive municipal commonage, while investments in wind and solar farms in the municipality signal other contested development priorities nationally and hint at new possibilities for local people.

Scale, Environment and History

In terms of scale, the first point to emphasise is the significant geographical extent of the Karoo. What can be considered its core districts cover some 30 per cent of South Africa – even more, 40 per cent, if one accepts the extended boundaries that the Minister of Agriculture, Land Reform and Rural Development approved in 2020 in preparation for setting up a Karoo Regional Spatial Development Framework (KRSDF) (Republic of South Africa, 2020). Furthermore, as already indicated, the core Karoo contains some 40 per cent of all commercial agricultural land in South Africa, the land that sits at the heart of the most bitter conflicts nationwide over spatial justice, redress for the past and agrarian policy. Yet the Karoo is home to only 2 per cent of the country’s population, a very small proportion of which comprises actual or aspiring farmers. As I have noted elsewhere (Walker, Reference Walker, Chinigò and Dubow2019), the Karoo’s share of the total area of South Africa mirrors the 30 per cent target for land redistribution that the post-apartheid government set for itself in the mid-1990s. This is a provocative, if coincidental, correspondence with which to embellish my central point: that thinking about land from the vantage point of the Karoo today reveals the limits of redistributive land reform as the default remedy for past land injustices.

The Karoo is not a tightly bounded region. Its boundaries have always been porous and, as reflected in the two divergent estimates of its extent reported above, determining where its borders lie depends on how one weighs the biophysical, socio-economic and more narrowly politico-administrative considerations at play. Its arid to semi-arid environment is, however, a defining feature. Within these drylands, natural scientists have grouped smaller bioregions into two biomes, the Succulent Karoo and the Nama Karoo, which together define the ecological parameters of what can be considered the core Karoo. Severely complicating their holistic management, the two biomes straddle four provinces, with the Northern Cape having the lion’s share. However, sizable areas fall in the Western and Eastern Cape provinces, while a smaller area merges with the grassland biome in the Free State.Footnote ² Figure 9.1 shows the distribution of the two Karoo biomes, along with an overlay of twenty-six local municipalities that fall entirely or largely within these biomes and comprise what colleagues and I have described as the ‘social Karoo’ (Walker et al., Reference Walker, Milton, O’Connor, Maguire and Dean2018).

Figure 9.1.

The Karoo, showing provincial and local municipality boundaries.

Source: Walker and Hoffman (in press)

In terms of demography, people classified and/or self-identifying as ‘coloured’ predominate in twenty-one of the twenty-six local municipalities in this core Karoo, with Afrikaans the predominant language in twenty-two (see Walker et al., Reference Walker, Milton, O’Connor, Maguire and Dean2018: table 1). In these respects, the Karoo differs significantly from South Africa as a whole. The national census of 2011 put the combined population of these local municipalities at just under 1 million, thus 2 per cent of the total population of South Africa at the time (Walker et al., Reference Walker, Milton, O’Connor, Maguire and Dean2018: 160). As already indicated, the great majority of Karoo residents live in small towns, many of them facing economic stagnation or decline. Poverty levels in these settlements are generally extremely high. By way of example, a household survey conducted in Loeriesfontein in 2019 found fully 59 per cent of residents had a per capita monthly income at or below the national upper-bound poverty level. State grants were the main source of income for 46 per cent of households, while 30 per cent of people with paid work had monthly earnings of R1,000 or less (Vorster, Reference Vorster2019).

This is an area where the environment cannot be taken for granted. The ecology of the Karoo sets it apart from the far more densely settled eastern and northern reaches of the country that dominate most analyses of land reform. Average annual rainfall is under 400 mm per year, decreasing as one moves west (see Figure 9.2). The past decade has seen a series of crippling droughts which brought many farmers to financial ruin (Conradie et al., Reference Conradie, Piesse and Stephens2019). An emerging consensus among climate change scientists sees the region becoming warmer overall in coming years. The west is expected to become even drier than is currently the case (with severe consequences for the Succulent Karoo’s unique biodiversity), while total rainfall in eastern districts is likely to increase. In the central Karoo, rainfall levels are likely to remain constant (that is, low) but ‘increasing aridity would still be expected owing to increasing temperatures’ (Walker et al., Reference Walker, Milton, O’Connor, Maguire and Dean2018: 171).

Figure 9.2.

Distribution of rainfall in South Africa.

Source: Agricultural Research Council

New Land Uses

The new land uses dominating national and regional plans for the Karoo provide further impetus to the call to reassess the contribution of land reform to redistributive justice in the current conjuncture. Notable here are major investments in astronomical research (both radio and optical) and energy generation, the latter targeting not only renewable but also non-renewable sources of energy. Today, powerful external players, both state and corporate, are keen to exploit the natural resources of the Karoo for non-agricultural purposes, thereby greatly expanding the significance of long-established investments in mining and conservation in its economy. The resources being targeted now include the Karoo’s clear night skies and low population density (good for astronomy), its abundant solar and wind power (good for renewable energy), its still uncertain shale-gas potential (heralded by the Minister of Mineral Resources and Energy as a ‘transition fuel’ – see, for instance, Omarjee, Reference Omarjee2022) and its uranium deposits. The investments aimed at capitalising on these resources are not only redefining the local landscape where individual projects are being staked out but also reconfiguring the significance of the Karoo for variously constituted national and global ‘public goods’. These include the move away from coal-fired electricity and advancing basic and applied science. The latter has been the primary justification for South Africa’s participation in the globally networked Square Kilometre Array (SKA) radio telescope project, the core site of which has been taking shape since 2008 on a cluster of former commercial sheep farms to the north-west of the town of Carnarvon (on this, see Walker et al., Reference Walker, Chinigò and Dubow2019). Figure 9.3 shows the extent of these cross-cutting initiatives as of 2018.

Figure 9.3.

New land uses in the Karoo: astronomy and energy (2018).

Source: DSI/NRF SARChI Chair in the Sociology of Land, Environment & Sustainable Development (2018)

Of particular significance from a land-use perspective are the Astronomy Advantage Areas (AAAs) that have been proclaimed around the SKA core site and the optical South African Astronomical Observatory outside Sutherland to the south. What is not widely known is that the whole of Northern Cape Province, bar the Sol Plaatje Local Municipality around the provincial capital, Kimberley, has been declared an Astronomy Advantage Area in terms of the Astronomy Geographic Advantage Act 21 of 2007. This Act grants the Minister of Science and Innovation extraordinarily extensive powers to regulate developments in the province to protect the national investment in astronomy within its borders. The regulations are particularly stringent in the districts around the SKA core site, where three nested Central AAAs were proclaimed in 2014, encompassing some 12 million hectares (fully 10 per cent of the country). This is because of the extreme sensitivity of this radio astronomy project to ‘radio frequency interference’ that will disrupt the array’s reception of cosmic radio waves. Disruptors that require regulating range from mining and aviation to everyday items such as cell phones, petrol-driven cars and microwave ovens. One consequence is that plans for shale-gas mining have now been ruled out in the AAAs. This has not, however, stopped the continued high-level interest in fracking in the region but diverted it to the Western and Eastern Cape Karoo (Walker, Reference Malope2022).

Since 2018, more renewable energy projects have been launched while the state has concluded its major land acquisition programme around the SKA core site. The 135,000 hectares of former farmland the state now owns around the SKA was officially designated the Meerkat National Park in 2020. The primary purpose of the new park is to insulate this international astronomy project from external threats to its functionality; environmental conservation is a by-product. Individually and collectively, these cross-cutting land uses suggest very different development possibilities, as the DALRRD’s (2022) Spatial Framework for the Karoo recognises. All of them, however, raise similar concerns about who will benefit from these possibilities. A growing body of research points to the disconnect between the national gains these projects herald and local development needs. In the words of the KRSDF, ‘[w]hile the large scale current and potential future regional economic activities make an important contribution to a sustainable national economy, the challenge is to ensure greater and more direct benefit to the small and isolated communities at a very local scale’ (DALRRD, 2022: 108, emphasis in original). With reference to the SKA – which it acknowledges as a ‘ground-breaking project’ – the Framework notes:

For the new land uses to advance redistributive justice in the region, much more creative thinking is needed around how they can be leveraged to benefit host communities in meaningful ways. In most cases, the local jobs that are frequently touted as a significant benefit occur during the construction phase and are low-skilled and short-term. The community development projects required of investors by the state are not necessarily aligned with municipal development plans, even less with residents’ expectations of the developments they need. Projects tend to be designed by outside experts to meet quantifiable targets, with tangible deliverables, for corporate reporting purposes – computer centres, laptops, sports equipment for schools and the like. The benefits they bring are unevenly distributed and vulnerable to local elite capture. (On the SKA, see Butler, Reference Butler2018; Gastrow & Oppelt, Reference Gastrow and Oppelt2019; Vorster, Reference Walker, Wynn, Jacobs and Carruthers2022; Walker, Reference Malope2022; on the renewable energy sector, see Malope, Reference Malope2022; Borchardt, Reference Borchardt2023.)

Also telling is the disconnect between these new land uses and national commitments to land reform. Thus the highly efficient land acquisition programme of the SKA was conducted with little if any regard for state land reform objectives (Chinigò, Reference Chinigò2019). National debates on the meaning of ‘just and equitable compensation’ in the property clause of the Constitution passed this programme by. Most farmers were reluctant to sell their family farms (Terreblanche, Reference Terreblanche2020) but were reportedly reasonably to well compensated at market-related prices. Affected farm workers were not identified as potential beneficiaries of land reform projects but were offered general worker jobs with the SKA on a case-by-case basis. Gastrow and Oppelt (Reference Gastrow and Oppelt2019: 721) describe the SKA’s approach to this process as exhibiting ‘an arguably paternalistic concern’ that the workers ‘would fall into the all too familiar trap of alcohol and drugs’ once living in town. The San Council was brought from distant Upington to bless the core astronomy site, but the local descendants of those dispossessed of land rights in the very large area impacted by the AAAs were never primary stakeholders in determining how and for whom this land should be used (Parkington et al., Reference Parkington, Morris and De Prada Samper2019).

Similar disconnects can be observed around the community development projects that the ‘independent power producers’ participating in South Africa’s renewable energy procurement programme are required to undertake in their ‘host’ communities (the latter defined as communities within a 50-kilometre radius of the wind or solar farm in question). However, these projects are far less restrictive in their operational requirements than astronomy, meaning that opportunities for redistributive justice through community-based initiatives can be more readily imagined with this new land use. Wind farms can coexist with livestock farming, while solar and wind farm developers are prepared to pay lucrative rentals for land on which to site their projects – rentals that at this stage are flowing primarily to commercial farmers and local municipalities, not those most in need (Borchardt, Reference Borchardt2023). Furthermore, although current projects are locked into supplying electricity to South Africa’s embattled national grid, there is untapped potential for decentralising renewable energy generation and serving energy-poor communities via ‘distributed energy resources’ and mini-grids (GIZ & IRENA, 2020: 52).

There is also significant potential in the community development trusts that the independent power producers have established to meet state requirements for local shareholding in their projects. Malope (Reference Malope2022: 198) has noted in his dissertation on the contribution of renewable energy to sustainable development in Loeriesfontein, where two wind farms began operations in 2018, that once the two community trusts have paid off the loans that financed their initial share acquisition, they could find themselves responsible for managing capital sums of between R214 million and R509 million each – quite extraordinary amounts for a community as poor and marginalised as this one. I return to the possibilities that these funds hold for reimagining redistributive justice in this town after a more general consideration of the development needs of Karoo towns.

Urban Karoo

As already noted, today, over three-quarters of the population of the Karoo lives not on farms but in widely dispersed small to very small towns. The percentage of the population classified as urban is thus higher in the Karoo than in South Africa as a whole (around 68 per cent in 2022; Macrotrends, n.d.). Counterintuitively, then, the Karoo can be seen as at the forefront of an increasingly urbanised South Africa, once one ceases to conflate urbanisation with the major metropolitan centres. The small-town nature of the Karoo also calls into question the appropriateness of a land reform programme still measured primarily in terms of the hectares of commercial farmland redistributed to small- or large-scale black farmers.

Karoo towns developed historically as service centres for local agriculture and, in some areas, mining. The urban population of this region overtook the rural over fifty years ago, in the 1960s (see Figure 9.4). Worth noting is that the upward urban trajectory in the Karoo coincided with a downward trajectory for the segment of the population classified as ‘white’, from some 44 per cent of the total in 1911 to 12 per cent by 2004 (Hill & Nel, Reference Hill and Nel2018: 207) and still smaller today. These shifts reflect major social changes involving the upward mobility of this group in the twentieth century, as white families moved off-farm and younger members migrated to centres beyond the Karoo in pursuit of better educational and economic opportunities. This trend is continuing. In her doctoral thesis on changes in commercial agriculture in the Ubuntu Local Municipality, Charmaine Manyani quotes a livestock farmer as follows:

Figure 9.4.

Karoo population trends, 1911–2004.

Source: Hill and Nel (2018: 205)

Of course, the towns of the Karoo are mostly very small settlements (dorpe), many of them facing economic decline, not growth (see Hill & Nel, Reference Hill and Nel2018: 206). Nevertheless, these settlements are ‘urban in form and social functioning, albeit on a distinctively limited scale’ (Walker & Vorster, Reference Vorster and Walker2023). In the words of one respondent interviewed in Sutherland in 2019, ‘[e]veryone knows one another and lives closely together’. Another respondent noted, ‘[p]eople gossip, but if someone dies, everyone grieves together’ (Vorster & Eigelaar-Meets, Reference Vorster2019: 52). It is this small-town environment that shapes most people’s development priorities and aspirations for the future. In response to an open-ended survey question about what could be done to develop Sutherland, the five most frequently identified needs were, in order of frequency: affordable housing; job creation; recreational facilities for the youth; tarred roads; and flush toilets to replace the pit latrines in the overcrowded, apartheid-era township where most people still live (Vorster & Eigelaar-Meets, Reference Vorster2019).

Effective investment in social services is desperately needed. Socio-economic surveys conducted in the towns of Vanwyksvlei, Sutherland and Loeriesfontein between 2016 and 2019 found education and skill levels to be generally very low and the school dropout rate among teenagers alarmingly high (Walker & Vorster, Reference Walker and Vorsterin press). Respondents in all three towns identified alcohol and drug abuse and associated crime as major problems – as already noted, rates of alcoholism and foetal alcohol spectrum disorders are extremely high in this region (Olivier et al., Reference Olivier, Curfs and Viljoen2016; De Jong et al., Reference De Jong, George and Jacobs2021). Worth noting is that these surveys did not find widespread interest in farming as a serious option, although some households expressed varying degrees of interest in accessing commonage land for grazing small herds, and a few individuals indicated an interest in land reform opportunities. In Sutherland, 7 per cent of households in the survey sample of 253 had some livestock, but most respondents did not identify land for farming as a key concern (Vorster & Eigelaar-Meets, Reference Vorster2019: 47). In Loeriesfontein, where, arguably, a stronger culture of small stock farming prevails, respondents identified only 12 individuals across 201 households as likely to want to farm full-time if given a chance (Vorster, Reference Vorster2019: 60).

There is, however, an under-appreciated need for urban land reform in these towns, one that will not make a dent in the state’s overall hectarage targets for land reform but could make a significant difference to people’s sense of belonging and ease of access to services. The Group Areas Act 41 of 1950 hit hard in the Karoo in the 1960s and 1970s, but the post-apartheid state’s investment in much-needed low-income housing is entrenching, rather than dismantling, the spatial segregation enforced under apartheid. In both Loeriesfontein and Vanwyksvlei, the rollout of new ‘RDP’ (Reconstruction and Development Programme) housing projects has resulted in tiny houses, on tiny plots, in extensions of the former group-area townships, the undeveloped ‘buffer zones’ put in place in the apartheid era to separate the town centre (die dorp) from the township on its periphery still in place.

Land and Redistributive Justice in Loeriesfontein

Given its history and current identification as a host community for renewable energy projects, the small town of Loeriesfontein (population around 3,000) offers interesting insights into the question of land and redistributive justice in the Karoo. Its municipal commonage provides a useful entry point.

The commonage covers some 20,000 hectares around the town. It consists of three colonial-era farms: the original Louries Fontein farm, which the Cape government first granted via a Ticket of Occupation to a group of fifty-nine so-called Basters in 1860, plus two adjoining leasehold farms that the state added to this land in the 1890s when the town was formally proclaimed.Footnote ⁹ The Baster group, who were the recipients of the 1860 land grant, were settled in the area by the early nineteenth century. From the point of view of the indigenous Khoisan groups in this area, then, they would have been settlers, much like their white, trekboer counterparts with whom they competed for grazing land but also sometimes cooperated in subjugating the Karoo’s ‘first people’.

After the land on which they had settled became crown land, the Basters petitioned the colonial government for recognition of their land rights, which was granted in 1860. In 1892, however, the land grant was revoked because of sustained pressure from white farmers who objected to their Baster neighbours, and a new town was planned for this land. Although the rights conferred on the Basters in 1860 were withdrawn, fifty-two Baster families who were identified by the colonial state as beneficiaries of the original Ticket of Occupation were given rights to ‘a building plot, a garden plot, plus grazing rights on the commonage’ in the new town.Footnote ¹⁰ In the twentieth century, this group was merged into the apartheid-era category of ‘coloured’, their second-class status in the town increasingly reinforced. In 1968, legislated racial segregation came to Loeriesfontein under the Group Areas Act; this forced all ‘coloured’ residents to live in the small area designated for them on the western outskirts of the town.

The history of the townlands in the twentieth century needs more research but it is evident that black access to the commonage for grazing and some dryland cropping was progressively curtailed. In the post-apartheid era, the local municipality reversed the town’s discriminatory commonage by-laws by entering into lease agreements with members of a Farmers’ Association representing ‘coloured’ small-scale farmers, the Loeriesfontein Opkomende Boerevereniging (Emerging Farmers’ Association). These farmers were mostly older men, including pensioners, none farming full-time but all keen to use the commonage for grazing their small herds. In 2019, the Association had between thirty-seven and forty members, ‘depending who one speaks to’ (Davids, Reference Davids2021: 68).

By this time, however, their continued use of the land was a source of tension in the town. This was because of the settlement of a land restitution claim on the commonage, which had been running on a parallel land reform track since 1996. In that year, a committee representing 240 claimants lodged a land claim over all the townlands and various residential plots. The official claim form is regrettably not in the public domain, but it can be assumed to have centred on the loss of land rights by ‘coloured’ residents during the twentieth century, inter alia under the Group Areas Act.Footnote ¹¹ The history of the 1860 Ticket of Occupation might also have been invoked, although that predates the 1913 cut-off date and would raise difficult questions about redress for the descendants of the original Khoisan people whose rights the Ticket had extinguished.

The claim was formally gazetted in 2004, then adjusted and re-gazetted in February 2008, shortly before being declared ‘settled’ at an official ceremony a few months later, once the local municipality had agreed to transfer ownership of the commonage to the DRDLR for free.Footnote ¹² It appears that the land reform potential of this land as a municipal asset was not carefully considered. Davids (Reference Davids2021: 64) notes that the Regional Land Claims Commissioner’s office praised this transfer of land to the national government as a contribution towards the state’s 30 per cent target for land reform; however, ‘the Hantam Municipality was unhappy with the lack of compensation and seemed to have been “bullied into the transaction”’ (here citing the Legal Resources Centre, a champion of the commonage programme in the Northern Cape at the time). Claimants were also offered financial compensation, raising questions about how many may thereby have formally forfeited their rights to the restituted land.

The formal settlement of the claim was followed by a protracted period of uncertainty and confusion in the town over who actually owned the commonage, who could still use it, and who was responsible for its day-to-day management. A Communal Property Association (CPA) was established to represent the claimants in 2008, but it took six years for the title to the first of the three commonage farms to be transferred to it, in 2014. In December 2019, the Minister of Agriculture, Land Reform and Rural Development acknowledged in Parliament that the CPA needed ‘regularisation’ and there were ‘disputes regarding access to the land’ (National Assembly, 2019). She put the number of restitution beneficiaries at 800. The state had still not transferred ownership of all the commonage to the CPA, and it was not clear how the new landowners intended to utilise their land. According to the list of claimants the Minister made available in Parliament, 27 of the original 240 claimants were not living in Loeriesfontein but elsewhere (mainly in the Western Cape), while 91 were deceased (meaning that their heirs needed identification). At the time, the drought was biting hard, and oversight of fences, water pumps and stock numbers on the commonage had crumbled, none of this boding well for its sustainable use.

It is a familiar story of the misalignment between promise and outcome that has bedevilled so many land reform projects since 1995. Yet as the previous discussion has brought to the fore, in Loeriesfontein other land-use options are pointing to new possibilities, along with new challenges. In addition to the two wind farms already in operation, a solar farm is under construction in the district, and further renewable energy projects are on the drawing board. Might one be considered for the former townlands? Could the local community development projects that these schemes are required to support be planned with stronger community participation and complement, rather than compete with, each other? What of the capital sums accruing to the community development trusts, which hold out such significant financial prospects not only for the town but potentially for the wider Hantam Local Municipality, provided strong, accountable institutions are put in place? Malope, for instance, has proposed that the trusts could finance direct cash transfers to households in need (thus bypassing local patronage politics) – a local dividend from the national investment in renewable energy that could be modelled along the lines of a basic income grant. (On the developmental and moral logic of a basic income grant, see Ferguson, Chapter 12, this volume.)

Space precludes discussion of the many issues to consider, but what is clear is that direct cash transfers would make a significant difference to household income and community well-being. As already noted, in 2019, before the COVID pandemic, per capita income was below the country’s ‘upper-bound’ poverty line for 59 per cent of Loeriesfontein residents. A modelling exercise that calculated the impact on household incomes of the state’s top-up to social security grants during the COVID pandemic showed what a difference even this very modest cash injection could make in the town. Working with data from the 2019 household survey, Jan Vorster has calculated that if the top-up grants were fully disbursed, a third of Loeriesfontein households trapped below the food poverty line would move into the ‘upper-bound’ poverty band while over a quarter of households in that band would be pushed above the official poverty line (Vorster & Walker, Reference Vorster and Walker2020).

Conclusion

Using changing dynamics in the Karoo as evidence, this chapter has argued that it is time to decentre the place accorded land reform in the quest for redistributive justice in South Africa – not to abandon it but to place its contribution in perspective and pay more attention to other mechanisms that are better attuned to current conditions and the challenges they are laying bare.

As the country struggles to come to terms with climate change, the Karoo provides an instructive reminder that the environment matters. So too do regional and local histories, which are usually more complex than the land restitution programme has been designed to handle. The story of the Loeriesfontein commonage shows that simply restoring land to legitimate claimants may not necessarily advance either justice or livelihood opportunities for those most in need. At the same time, the new land uses in the Karoo signal new opportunities for reimagining multiple pathways towards a more just and sustainable future. The call for a ‘just transition’ that is animating the debate on renewable energy is instructive here.

Land reform still has a place, but its limitations need to be recognised and its objectives realigned with the regionally inflected social and ecological changes that have unfolded since 1994. The extent of commercial farmland transferred to black ownership is an inadequate measure of redistributive justice in the Karoo and, given its extent, in South Africa more generally as well. The racial disparities in land ownership are particularly extreme in this region but, as the discussion has shown, land redistribution in the Karoo will not contribute significantly to reducing poverty and inequality here or nationally, despite the spatial extent of this region. Policies intended to advance redistributive justice need to be designed keeping in mind where people live and what they aspire to. In the Karoo, this means focusing far more imaginatively on prospects for small-town regeneration and how to harness the natural resources of the region to benefit its people in ecologically sustainable ways.