INTRODUCTION
Section 25 (the Property Clause) of the Constitution of the Republic of South Africa, 1996 (the Constitution) is widely known to serve a dual function: to protect property rights and allow for the regulation of such rights to meet societal goals, including land reform. The redistribution of land is one of the land reform programmes and mandates the government to widen access to land for the previously disadvantaged. Redistribution is intended to redress injustices of the past and enable previously dispossessed households to establish thriving livelihoods. An important measure the state can use to acquire suitable land for this constitutional imperative is the power to expropriate property. Strangely, a distressingly limited number of properties have in fact been expropriated and distributed for this goal; the reasons remain obscure. The proposed constitutional amendment of the Property Clause implies that the constitutional obligation to pay compensation for expropriation is, at least partly, to blame for the slow pace at which land reform, specifically redistribution, has been implemented. A politically driven proposition of allowing expropriations for nil compensation, specifically for land reform purposes, was subsequently initiated and further fleshed out in legislative proposals, in an attempt to rectify the unmistaken failure of land reform.
In the redistribution context, this presumption requires careful analysis and reflection, with reference not only to the imperfections of the policies and laws that seemingly set out to address landlessness, but also the underlying theoretical approach to both economic justice and property as an enabling mechanism. It should be stressed that the South African redistribution commitment is a crucial measure not only for resource allocation but also for wealth distribution. Drawing from theories of economic justice, this article scrutinizes the state's approach to this constitutional imperative by critically analysing the laws and policies that are relevant to the programme, with special emphasis on the acquisition of land. The article also questions the purpose behind land reform beneficiaries acquiring land, with reference to the role that property should ideally fulfil in society, specifically for the vulnerable. Throughout this analysis, the article makes a number of observations to cast light on why the redistribution of land has been alarmingly slow, where incongruities and loopholes continue to exist in the programme, and whether expropriations for nil compensation will make any difference in remedying existing failures.
AN EGALITARIAN APPROACH TO DISTRIBUTIVE JUSTICE?
It is generally accepted that land reform not only entails resource allocation in agriculture through the redistribution of land, but also “changes the distribution of income and wealth in the economy as a whole”.Footnote 1 The proper distribution of wealth has been described as a fundamental public concern. The approach towards the distribution of wealth, including resources, can generally be described as either egalitarian or libertarian. In terms of the former, economic assets should be distributed in an equal manner,Footnote 2 whereas, in terms of the latter, economic assets should circulate through free transaction. Both these approaches allow for exceptions.Footnote 3 Grey explains that, even though one could describe a range of positions from extreme libertarian to extreme egalitarian along a single continuum, which might create the impression that there is no real difference between the two schools, such a description would likely obscure real and important differences between the two approaches.Footnote 4 He explains:
“In questions of ethics and public policy as in questions of law, it is always important – and surprisingly often determinative – which way the presumption lies, who has the burden of proof. Rarely does anyone approach the question of economic justice without a working presumption. To an egalitarian, the presumption is for equality. To a libertarian the presumption is for liberty. Here the first question is the extent and nature of coercive interference with voluntary transactions and their fruits, and the burden is on him who would justify such coercion. The differences in starting point correspond more often than not with different judgments on concrete issues of policy, and they may often reflect ultimate differences in world view.”Footnote 5
One of the most profound writings on economic justice, from a qualified egalitarian perspective, is John Rawls's A Theory of Justice,Footnote 6 in which he sets out a hierarchy of three principles as limitations on the operation of social and political institutions.Footnote 7 These are: the principle of liberty (protecting basic freedoms, such as speech and religion); the principle of equal opportunity (both forbidding class barriers and promoting affirmative action); and the “difference” principle, which deals with economic distribution.Footnote 8 According to the difference principle, economic assets should be distributed in such a way that maximizes the position of the poorest segment of society. This means that wealth should be distributed equally, “except insofar as unequal distribution will give the poorest group more in the long run than they would have under complete equality”.Footnote 9 However, redistribution can only be justified to the extent that it does not conflict with the first and second principles, of basic liberties and equal opportunity.Footnote 10
Interestingly, the difference principle should be implemented by way of a system of taxation and transfer payments,Footnote 11 whereas the right to hold property is located under the first principle, which is hierarchically superior to the distribution mandate. Grey explains that “taxation for purposes of maximizing the economic position of the worst-off group is somehow not regarded as in conflict with property rights”.Footnote 12 Nevertheless, the nature of property rights in terms of the first principle is not entirely clear. What is clear is that the holding of assets by different people is judged with reference to their size in relation to one another; equal holdings are just, whereas unequal holdings are only just if the smallest of them is as large as it possibly could be, being mindful of the long-run.Footnote 13
According to Rawls, the justification for requiring redistribution, founded on the difference principle, is that the aptitudes that tend to yield wealth in a fair market are inherently arbitrary from a moral perspective.Footnote 14 Individuals’ scarce talents or skills result in higher incomes, albeit accidentally, by way of social circumstances; it is therefore unjust to allow for such circumstances to produce unequal rewards, especially if they can be “corrected” without having to infringe basic liberties or equal opportunities.Footnote 15 Any failure to distribute, until the position of the worst-off group is maximized, is itself unjust and a violation of human rights.Footnote 16 Grey points out that an entitlement of this kind has little intuitive appeal as a value and is not necessarily supported by credible arguments founded on other values.Footnote 17
For Grey, there are basically two arguments that could be made for redistribution in the absence of need: on the basis that “some degree of economic equality is a public good”, and that some form of rectification or corrective justice is required to redress wrongdoing of the past, such as the taking of property by force.Footnote 18 Interesting, and key to his contribution, is Grey's overview of a range of arguments that are made in favour of distribution for the poor and conclude that a right exists in each person “to have his basic material needs met by his society to the extent he is unable to meet them by his own efforts. This right is an important one, of justly held property”.Footnote 19
A right to basic material needs is additional to bare physical subsistence and quite different in the sense that the floor that it establishes is socially determined. In each society exists a moral consensus regarding the needs that must be fulfilled in order for a person to be treated as a free and “full” member of society; this standard will require different kinds and quantities of goods, depending on the specific society at a given point in time.Footnote 20 Critical to Grey's argument is the requirement that there must exist “some substantial degree of social consensus as to what are the basic needs, at what level they must be met to sustain basic self-respect, and what constitutes being involuntarily unable to meet them through one's own efforts”.Footnote 21 Even though there might be consensus at the level of a widely shared general conception in a given society, disagreements within this “consensus” will still be substantial in relation to actual necessities, in addition to “disagreements over what people can reasonably be expected to do in support of themselves before calling on collective resources”.Footnote 22 More specifically, Cohen suggests that the purpose of egalitarianism is to “eliminate involuntary disadvantage,” which he explains as “disadvantage for which the sufferer cannot be held responsible” due to the fact that it does not reflect his or her choice.Footnote 23 Society should therefore indemnify individuals against prejudicial outcomes that are caused beyond their control, but not against those that are within their control, for which they are responsible.Footnote 24 A number of egalitarians have adopted such a responsibility-tracking approach,Footnote 25 which not only converges on how much redistribution there should be, but is also “connected to an intuitively powerful conception of … the ideal of the non-subordination of persons”.Footnote 26 Markovits explains that, when distribution takes place in the form of taking from those who have chosen well to compensate others for the unfortunate consequences of their bad choices, the former group of persons are effectively subordinated to the latter.Footnote 27
In South Africa, where land reform is not only a symbol of reconciliation but also a vehicle for wealth distribution, a redundant question might be whether an egalitarian approach has in fact been adopted throughout the redistribution discourse? The presumption would be in the affirmative, because the Constitution has been interpreted, on more than one occasion, to be founded on egalitarian principles. The Constitutional Court has held that the Constitution is intended to represent “a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos”.Footnote 28 Moreover, the achievement of substantive equality, in terms of the equality clause, includes the assurance that everyone can “enjoy the benefits of an egalitarian … society”.Footnote 29 That being so, the working presumption in the context of distributive justiceFootnote 30 should be in favour of the truly equal distribution of land, more so than free trade. If we opt for the former, is there a consensus as to each person's entitlement and which basic material needs must be met by society to enable the previously disadvantaged to thrive as participating members of society?
If this redistribution imperative can be rephrased as a right to justly held property or land, does it mean that property is a central, keystone right, especially in relation to other constitutional rights? Before tackling this question, a number of concerns relating to the South African redistribution imperative should be highlighted. Even though the presumption is for an egalitarian approach towards the distribution of land, a detailed analysis of the redistribution programme, taking account of the relevant policies and laws, suggests otherwise.Footnote 31 It is highly questionable whether the redistribution programme is geared to allow for the equal distribution of land, more so than to promote free trade. With reference to the redistribution programme, it is unlikely that we have any consensus as to what the basic needs are, what should be distributed and how much land should be allocated to beneficiaries, in order for households to sustain self-respect and live with dignity. An underlying, yet central, question in the South African distributive justice discourse is therefore why the redistribution of property, and more specifically land, is a core constitutional objective.Footnote 32 Even though the constitutional mandate to redistribute land is clear, the purpose is not, especially with reference to the laws and policies that make provision for it.Footnote 33 Of course, part and parcel of the entire land reform directive is the aim of redressing injustices of the past, but restorative justice in itself fails to describe why it is important for land to be distributed among beneficiaries, what function the institution of property has to fulfil, and how that impacts our approach to the redistribution imperative.
THE PROPERTY PURPOSE
For Adam Smith, a central objective of governance is to protect people in what is theirs.Footnote 34 This centrality of property was emphasized by his contemporary, Arthur Lee, who stated that property is “the guardian of every other right”.Footnote 35 More recently, James Ely argued that property is not necessarily central, but rather equal, in status to all other constitutional rights.Footnote 36 In contrast to these views, Jennifer Nedelsky opines that the security of property may be more of a deterrent than any help in securing individual rights, especially in a society where rights are approached from an egalitarian perspective.Footnote 37 In light of these opposing views, Carol Rose questions the centrality of property as a keystone right, the right on which all others rest.Footnote 38 She acknowledges that property is an important right for a number of reasons (it is undoubtedly an important element of personal autonomy and a central function in wealth creation), but she concludes that “the arguments for property's political centrality – its guardianship role over other rights – have not proved to be completely convincing to those concerned with constitutional ordering”.Footnote 39 Even though some of the arguments are old and contested, that does not mean that they are inconsequential or incorrect:Footnote 40 they continue to shed light on the importance of property, and specifically land, from a distributive justice perspective.
The independence argument is crucial for this purpose. Central to the argument is the idea that holding property permits greater independence and autonomy, which enables individuals to make unfettered decisions in the political sphere. It follows that all political powers, and therefore all other rights, are consequently dependent on the right to property.Footnote 41 Initially, the only form of property that fulfilled this purpose was “large and longstanding landownership”,Footnote 42 although the modern version of the argument is completely different in terms of what functions as a platform for the distribution of rights. According to the modern version, everyone should participate in the political order, for which they require “a secure baseline of property – and if necessary, this baseline must be secured by redistribution”.Footnote 43
The luxury-good argument puts forward the idea that property has an important economic role in making a society wealthier. This allows citizens to do more for themselves and their communities, while the government would also be enabled to attend properly to common enterprises, as well as the general welfare of the community.Footnote 44 Furthermore, property and prosperity are not sufficient for the enjoyment of other rights / liberties, but they are considered a necessary stepping stone to fulfilling such rights.Footnote 45 However, it is questionable whether wealth itself can promote the kind of stability in which other rights may flourish? Even though some may have thought so, “no one has seemed completely confident, at least not without conscious effort to adjust for the material and moral consequence of inequality”.Footnote 46
Progressive property law scholars generally argue that the protection of private property and the promotion of social welfare objectives, including large-scale redistributive efforts, are not necessarily in conflict with one another; instead, private property is important for human welfare and should therefore be distributed as widely as possible.Footnote 47 The equitable distribution of property is therefore considered as important as the protection of existing holdings.Footnote 48 Although the tension between property and social welfare continues to exist (some property must be taken from the haves and distributed to the have-nots), some balancing process should be established both to rationalize the choice between the conflicting interests and to minimize the resulting harm.Footnote 49 According to Dagan, an “egalitarian conception of private property” is an expression of a collection of values (such as privacy, security and autonomy) that inherently involves the distribution, as well as retention, of wealth.Footnote 50 An egalitarian conception of property accepts and endorses the inherent tension of retention and distribution, requires an “ongoing commitment to dispersal of access”, and insists that our property system should be designed in such a way that property is widely distributed to prevent the re-emergence of “pockets of illegitimately concentrated power”.Footnote 51
The Property Clause is arguably a perfect example of what Dagan argues for: an inherent commitment towards both the retention and distribution of wealth.Footnote 52 The redistribution imperative suggests that there must be an ongoing commitment to the dispersal of access to land and that land should be widely distributed to ensure that landholding is somehow equalized.Footnote 53 Does this mean that we have successfully adopted an egalitarian conception of private property?Footnote 54 Regardless of the extent to which land has been distributed, it is perhaps sensible also to reflect on the core function that the institution of property fulfils in any given framework, and more specifically the redistribution discourse. If we have a clear understanding of the purpose of property and comprehend what role property should eventually fulfil for each beneficiary, we should be able to scrutinize critically the redistribution programme to make meaningful suggestions on the way forward.
The normative foundation of property is identified by Alexander as human flourishing, which is defined as the opportunity to live a life as fulfilling as possible.Footnote 55 “Human flourishing is promoted by a social-obligation norm that recognizes the relational nature of human flourishing in society: to avoid self-contradiction, we must make the same normative commitment to developing the capabilities that are required for human flourishing in others as we commit to developing in ourselves”.Footnote 56 Human flourishing also has a strong individualistic dimension; the very purpose of property is to allow individuals “to foster the goods of practical reason and autonomy”.Footnote 57 This essentially means that human flourishing cannot be achieved if individuals are denied some physical space where they can exercise the most basic activities that are vital for human survival.Footnote 58
As a point of departure, it is generally accepted that property, and more specifically the ability of persons to hold property, is important for a number of reasons. As alluded to above, property enables individuals to be independent: it functions as an autonomy enhancing mechanism that allows the holder to make decisions and be politically active; the ability to hold property is directly associated with the enhancement of wealth and general wellbeing; and, above all, without property the individual would be denied opportunities to live the well-lived life, a life with self-respect and dignity. These attributes, of a life with property, can only be obtained if we acknowledge from the outset that individuals must be given some physical space where they can live, not necessarily thrive, but simply exercise the most basic activities that are vital for human survival.Footnote 59 If the redistribution programme fails to address such a basic claim to property, which is arguably the case, it calls into question the egalitarian ethos on which the Constitution claims to be founded.
REDISTRIBUTION IN SOUTH AFRICA: A CRITICAL APPRAISAL
Introduction
In 1989, Derek van der Merwe argued (with reference to Rawls's difference principle of justice) that the South African land reform policy should be guided by the principle that access to land should be fair and not necessarily equal.Footnote 60 From a global perspective, the overarching objective of land reform is to address widespread inequality and reduce poverty.Footnote 61 This goal is often supplemented by a range of other goals, including the advancement of outputs and greater efficiency in the agricultural sector.Footnote 62 Regardless of these additional objectives, convincing arguments have been put forward to suggest that the mere provision of stable, secure access to land fosters conditions for improved livelihoods and living conditions.Footnote 63 In theory, a successful land reform programme will not only benefit specific, targeted beneficiaries and their households, but also an entire community or region due to large-scale poverty reduction.Footnote 64
This global objective, as well as the difference principle as contextualized by Van der Merwe, is arguably echoed in the 1997 White Paper on South African Land Policy (1997 White Paper) in “translat[ing] the government's commitment to social justice and the alleviation of poverty into a set of concrete land reform and land development programmes, legislation and procedures”.Footnote 65 More specifically, the 1997 White Paper stipulates that the redistribution programme is intended to provide the poor with land, to be utilized for residential and productive purposes, in order ultimately to improve their livelihoods.Footnote 66 The redistribution objective is cemented in section 25(5) of the Constitution, which it provides that, “[t]he state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis”.Footnote 67 Pienaar points out that the redistribution programme forms part of the state's effort to address present-day inequalities, which can be ascribed to pre-constitutional policies.Footnote 68
The redistribution programme is intended to make a significant contribution to address land inequalities, in addition to improving the distribution of other resources. Redistribution is centred on the principle of fairness; it is only fair, and reasonable, that all citizens should have access to land and for this reason alone access to land must be ensured. With reference to the 1997 White Paper, Pienaar explains that redistribution is inherently linked to individuals’ livelihoods, means of survival and the overall eradication of poverty, although these are at least the considerations that formed the outline of the initial policies.Footnote 69 The redistribution of assets has been a prominent topic for debate and important forms of redistribution have been implemented, including increased government spending on welfare services for the poor.Footnote 70 Nevertheless, these measures have “had remarkably little impact on overall income inequality or poverty”.Footnote 71
Lahiff explains that the redistribution of assets, specifically land, “has a special place within the discourse on redistribution, both in South Africa and internationally”.Footnote 72 Land is not only a symbol of restorative justice,Footnote 73 it also provides a place where beneficiaries can build a shelter and produce food.Footnote 74 Proper redistribution of land will likely address not only landlessness but also hunger.Footnote 75 Moreover, “land represents wealth, equity, and a source of control and power. Redistributing rural land will empower Africans by giving them control over a source of capital and, therefore, more control over their lives. The unique value of property lies in its conceptual essence … For many Africans, access to land is considered to be a birthright. Land is the site of family, history, and gravesites; it is not simply a commercial asset”.Footnote 76
Redistribution: A policy overview
Policies pertaining to the acquisition of land
From a policy perspective, the redistribution programme initially operated on the basis that eligible persons, as well as groups, could acquire a settlement / land acquisition grant (SLAG) to a maximum value of R16,000 per household to purchase land directly from willing sellers.Footnote 77 Households earning less than R1,500 per month were eligible under section 4 of the 1997 White Paper.Footnote 78 Redistribution involved a single, flexible mechanism that was accessible to a wide range of beneficiaries, including the very poor; it was dependent “upon voluntary transactions between willing-buyers and willing-sellers” and the power of the state to expropriate land for redistributive efforts was earmarked “as an instrument of last resort”.Footnote 79 SLAGs were essentially demand-driven, in that the state made fixed grants available to self-selected beneficiaries; the state was not involved in the acquisition and redistribution of land.Footnote 80 The grants were small, which led to: the “rent-a-crowd” syndrome, in that beneficiaries were forced to pool their resources in order to purchase land; and a shortage of funding that could be used to acquire materials and build houses.Footnote 81 A number of issues arose subsequent to the introduction of the initial redistribution efforts, including: the high failure rate of projects undertaken by large groups;Footnote 82 the lack of contributions from applicants made it difficult to evaluate them; and the means test disqualified emerging commercial farmers.Footnote 83 The handover of large-scale, productive farms to the poor, with basically no state involvement, was not only unique to South Africa's redistribution programme, but also proved to be unsuccessful.Footnote 84
In 2001, SLAGs were succeeded by the Land Redistribution and Agricultural Development Policy (LRAD), which introduced more market-based agriculture, coupled with grants for sustainable agriculture.Footnote 85 The LRAD initiated a shift from the landless poor to greater agricultural production, with distinct emphasis placed on the establishment of a class of black commercial farmers.Footnote 86 The SLAG income ceiling was removed, which meant that the very poor had to compete with the not-so-poor. Similar to SLAGs, the LRAD was more accessible to the “educated, technically proficient and resourced person”.Footnote 87 The LRAD indicated a significant shift in the target group for redistribution, away from the vulnerable in favour of emergent farmers.Footnote 88
The Proactive Land Acquisition Strategy (PLAS) was introduced in 2006 with the aim of redistributing five million hectares of white-owned land to 10,000 new farmers, thereby increasing black ownership. Contrarily, the Department of Land Affairs adopted an approach of acquiring land, subsequently to lease it to beneficiaries for a period of three years. Pienaar explains that the “programme is specifically aimed at commercial farming and profits and does not assist, generally, in broadening access to land for residential or recreational purposes. It is generally not pro-poor because it is designed to suit those who have the financial resources and knowledge base to farm commercially”.Footnote 89 Even though PLAS is intended to shift some of the responsibility for acquiring land to the state and to speed up redistribution, it remains hampered by the fact that it is not streamlined to assist the poor in acquiring much needed land. Nevertheless, the state-led approach should still be encouraged and “linked to concentrated purchase efforts where particular areas or regions may be identified for land purchase”.Footnote 90
A noteworthy problem with the land reform policies, in general, was the lack of tools that were being made available for persons who required land for either residential or recreational purposes.Footnote 91 Landless persons are not necessarily all queuing for land, more specifically agricultural land for farming purposes, although the restrictive nature of the policies might lead to the situation where individuals are forced to apply for grants to achieve access to agricultural land, simply to acquire some land.Footnote 92 A number of additional policy measures were introduced, such as the Comprehensive Agricultural Support Programme, which provides a one-off grant as post-settlement support for land reform beneficiaries.Footnote 93 Even though post-settlement support has been identified as a key weakness, the inept design of most of the projects suggests that enhanced post-settlement support will not necessarily contribute to resolving the problems faced by land reform beneficiaries.Footnote 94
In October 2012, a Policy Framework for Land Acquisition and Land Valuation was published, directly resulting from the identified need to address the lingering issue of acquiring suitable land for redistributive purposes.Footnote 95 The central aim of the policy is to “enhance the state's capacity to realise fair value from its efforts to acquire, dispose and manage land for land reform”.Footnote 96 The willing-buyer-willing-seller principle is specifically identified as a concern, which has arguably led to speculative behaviour by landowners, resulting in escalated land prices.Footnote 97 The policy proposes that government should abolish the willing-buyer-willing-seller principle, with immediate effect, and make more use of its power to expropriate land for redistributive purposes.Footnote 98 The Joint Constitutional Review Committee was subsequently tasked to identify necessary amendments for the Constitution to permit expropriations without compensation.Footnote 99 Even though this idea has sparked widespread debate among politicians, academics and the public at large, it does not form part of a distinct redistribution policy. The possibility of expropriating land without having to pay compensation has crystalized in legislative propositions, but not in the form of a policy.Footnote 100
In January 2020, the Department of Agriculture, Land Reform and Rural Development published for public comment the Beneficiary Selection and Land Allocation Policy,Footnote 101 which is intended to address beneficiary selection in accordance with the allocation of appropriate land. Vulnerable groups, including smallholder producers, women and rural and peri-urban residents, are specifically earmarked as intended beneficiaries. Interestingly, the draft policy is not restricted to the allocation of land for farming purposes, it also envisions that certain individuals can apply for land if they simply intend to use the land for small-scale production, such as grazing. It therefore seems that the policy will allow for land, in an array of environments, including the urban periphery, to be distributed for subsistence farming.Footnote 102
A critical appraisal
In consideration of the development of the range of policies that were introduced over the past couple of decades, it is noteworthy that a gradual shift took place from an initial focus on the needs of the poorest of the poor (in ensuring that they can access land), towards addressing the needs of the more resourced and competent beneficiaries. In due course greater emphasis was placed on commercial farming and overall efficiency.Footnote 103 Even though the initial White Paper on Reconstruction and Development Programme was intended to promote principles of redistributive justice, this objective was quickly tempered by other, opposing economic approaches, such as the neo-liberalist approach that was implemented at the time.Footnote 104 Marais explains that “neo-liberalism depicts a retreat of the state from its social provisioning and regulatory duties in favour of the ‘invisible hand’ of the market”.Footnote 105 A neo-liberalist approach is characterized by minimal state interference and the safeguarding of existing property rights.Footnote 106 This approach, considered with the two economies theory,Footnote 107 collectively established South Africa's approach to markets in general, and redistribution in particular. A market-based redistribution programme was therefore adopted, under which the state played a limited, facilitative role.Footnote 108 It does however seem that the more recent policy initiatives, such as the Beneficiary Selection and Land Allocation Policy, as well as PLAS to some extent, have gradually redirected the state's approach to focus on the vulnerable and poor, with greater emphasis being placed on the state's role in facilitating the acquisition and allocation of suitable land for land reform purposes.
To date, the redistribution programme has largely been unsuccessful as a poverty alleviation scheme due to: it following a demand-led approach; the way in which the grant system is set up; and the target group, ie the beneficiaries who eventually receive suitable land.Footnote 109 Especially with reference to the SLAG system, too many obstacles existed for the poor to access the system and remain active beneficiaries of it. Moreover, if redistribution is intended to contribute towards poverty alleviation, it should not only target the poor but also “provide additional support, mechanisms and services to remove or alleviate existing barriers”.Footnote 110 The initial objectives that were underpinned in the 1997 White Paper were never put into effect, whereas the provision of small-scale land parcels for food production never featured as a viable possibility; instead, the Department of Land Affairs chose to discourage them.Footnote 111 The gradual shift in policy has largely been understated and unacknowledged, although traces of it can be found in “unofficial” publications, such as ministerial speeches. There has been a virtual disappearance of any discussions relating to the way in which redistribution can or should contribute to poverty alleviation or food production on small-scale land parcels for the poor.Footnote 112
With reference to economic justice theories,Footnote 113 it is perhaps also safe to say that South Africa's approach to the redistribution imperative has shifted from being egalitarian (in favour of greater access to land for a wide range of individuals) to libertarian (promoting the free market in favour of an elitist group of emerging farmers, while protecting landowners’ rights, almost absolutely). From a policy point of view, the redistribution programme not only resembles notions of a libertarian take on distributive justice, it generally also fails to offer a clear understanding of the function to which the redistributed property should be put.Footnote 114 Initially, the idea was that land could be used for either farming or residential use, and that the redistribution of smaller parcels should also form part of the programme. This objective is in line with the notion that property should ideally allow the holder to be more independent and live an autonomous life. Even though smaller parcels of land are more suited for something like subsistence farming, rather than large-scale production, it might be more prudent to redistribute them to beneficiaries who are either not interested in commercial farming or not equipped to farm in a commercial fashion. The provision of small-scale parcels of land can also act as a vehicle for wealth creation, although it would be on a smaller scale than for a large commercial enterprise.
The way in which land should be utilized in terms of the redistribution programme changed when the focus shifted to the acquisition of large-scale farms in terms of SLAGs as well as the LRAD. With the introduction of SLAGs, land reform beneficiaries were effectively forced to farm together, which impacted their independence and ability to lead autonomous lives. It seems that SLAGs, as well as the LRAD, focused on wealth creation by way of greater agricultural production at the cost of providing widespread access to land for the landless and those most in need, and the beneficiaries’ ability to lead self-governing lives. A critical loophole in the policy framework, created by the SLAG programme and the LRAD, is the absence of a distinct aim to provide the vulnerable and poor with some physical space where they can exercise the most basic activities that are vital for human survival.
Legislative overview of mechanisms to acquire and distribute land
A number of laws were enacted to give effect to the redistribution mandate. Most noteworthy for the purposes of this article is the Land Reform: Provision of Land and Assistance Act 126 of 1993.Footnote 115 The aim of this act is to regulate the designation of land, the subdivision of land for the settlement of beneficiaries and the rendering of financial assistance for the acquisition of land.Footnote 116 Once a landowner has made land available for redistribution, the minister of rural development and land reform may designate that land for settlement purposesFootnote 117 and it will be exempt from the laws that regulate the subdivision of land. Interestingly, the development of the land is usually undertaken by the landowner or another private person, not the state. The developer will subdivide the land, after which the smaller portions of land will be made available for small-scale farming, residential, public, community or business purposes.Footnote 118 Once the plans have been approved and filed at the deeds registry, the redistribution phase commences with the alienation (or lease) of those parcels to land reform beneficiaries.Footnote 119 Even though a landowner can make his or her land available for redistribution, section 10 of the act also empowers the minister to acquire property for the purposes of the act or provide financial assistance to persons in order to further the goals of the act. Importantly, the minister has powers under the act that are similar to those that ministers have under the Expropriation Act 63 of 1975.Footnote 120
Pienaar points out that both the Extension of Security of Tenure Act 62 of 1997 (ESTA) and the Land Reform (Labour Tenants) Act 3 of 1996 (Labour Tenants Act) are relevant in the context of redistribution. However, the reach of these laws is severely curtailed because they only apply in rural areasFootnote 121 where the beneficiary is either an occupier (for the purposes of ESTA)Footnote 122 or a labour tenant (for the purposes of the Labour Tenants Act).Footnote 123 Under ESTA, access to land can be broadened by way of: an on-site development, which “provides occupiers with an independent tenure right on land on which they resided at the time the application was lodged or where they resided previously”;Footnote 124 or an off-site development, being a development that provides occupants with tenure rights on land that is owned by a third party.Footnote 125 Alternatively, the minister can make monies available to enable occupiers to acquire land or rights in land and enable the development of land for the purposes of the act.Footnote 126 Access to land can be broadened for labour tenants if they apply for an award of: the land that they occupy; the land that their family occupied; rights in land elsewhere on the farm; or other compensatory land.Footnote 127
In addition to these laws, one should be mindful of two further considerations in the context of the redistribution imperative, namely the distribution of state land and the interplay between land and housing. In principle, state land can be utilized for redistribution. Even though the state is one of the largest landowners in the country,Footnote 128 only 2 per cent of state land is suitable for redistribution. Nevertheless, local authorities can identify and acquire suitable land for redistribution, by way of the open market, expropriation or private donations.Footnote 129 On the other hand, the government is constitutionally obliged to fulfil the right of access to adequate housing and “[a]ccess to land for the purpose of housing is therefore included in the right of access to adequate housing in section 26”Footnote 130 of the Constitution. However, the Department of Agriculture, Land Reform and Rural Development generally does not provide land for settlement purposes, especially not in urban areas.Footnote 131 This has resulted in some confusion regarding who is responsible for the needs of the urban poor “whose priority is not formal housing but a plot of land on which to erect a basic shelter”.Footnote 132
Finally, the legislative propositions that were introduced to make way for expropriations at a cost of nil compensation are also important measures that aim to promote greater access to land. It is however not clear where this option would fit into the land reform framework, because it has not been explained in terms of a specific government policy. A movement away from the market-led approach to allow for more involvement from the state in acquiring well-located, suitable land should probably be located under the redistribution programme, because it is essentially concerned with the reallocation of land rights. In December 2018, the minister of public works released the Draft Expropriation Bill, 2019Footnote 133 for public comment; this bill would permit the state to expropriate land in certain instances without having to pay compensation. Its reach is restricted to the expropriation of land, not any other type of property.Footnote 134
In December 2019 came the Draft Constitution Eighteenth Amendment Bill,Footnote 135 which intends to amend the Property Clause “so as to provide that where land and any improvements thereon are expropriated for the purposes of land reform, the amount of compensation payable may be nil”.Footnote 136 The point of departure is that the state should still compensate expropriated landowners, although, if land is expropriated for land reform purposes, a court may permit nil compensation to be paid, provided that it is authorized in dedicated legislation. One should subsequently scrutinize the underlying reason for the amendment, which is arguably to do away with a compensation requirement in the context of land reform expropriations.Footnote 137 This requirement has been blamed for the failure of land reform, and more specifically the redistribution programme, although the overview of the relevant policies clearly indicates otherwise.
Identifying gaps, obstacles and incongruities
The disconnect between policies and laws
A central problem with the South African redistribution approach is the fact that “the actual redistribution tools are usually not set out in the overarching legislation as such, but are found in the detail of policy and other supplementary documents”.Footnote 138 Another problem is the inexplicable divide between the policies and the laws.Footnote 139 The aim of the 1997 White Paper was partly to redistribute land to the poor to eradicate poverty; redistributed land could be utilized for either small-scale farming or residential purposes. This approach shifted when the SLAGs were introduced, as greater emphasis was placed on the acquisition of productive farms by way of a grant system, forcing land reform beneficiaries to pool their grants and farm together. The LRAD signalled another distinctive step away from the initial redistribution mandate; more emphasis was placed on large-scale commercial farming, which was mainly reserved for the better-off black farmers. Considered together, these policy measures are demand-driven in the sense that a land reform beneficiary should take the required initiative, and responsibility, to acquire suitable land through the grant system.Footnote 140 The policies are also market-led, because the availability of land is largely dependent on landowners’ willingness to sell. The state merely facilitates this process by providing grants; it is by no means involved in the acquisition or distribution of land parcels.
In stark contrast to these policies, the Provision of Land and Assistance Act, which is arguably intended to play a fundamental role in facilitating greater access to land, is founded on the idea that the minister should designate land for development purposes, after which private developers should develop parcels of land for small-scale farming or residential purposes. There is therefore a clear disconnect between the overarching purposes of the policies (specifically the SLAG and LRAD) and this act: the policies are structured to promote access to commercially viable farms, whereas the act facilitates access to land for small-scale farming and residential purposes.Footnote 141 It is also not clear how land reform beneficiaries are supposed to utilize their grants, acquired as a SLAG or under the LRAD, in the context of the act. Even though ESTA and the Labour Tenants Act fall under the redistribution mandate, the application of both acts is limited to existing ESTA occupiers or labour tenants; they are not geared to facilitate wide-scale access to land. More specifically, the operation of these laws is clearly detached from these policies because they allow ESTA occupiers or labour tenants to acquire a small piece of land for, one would assume, subsistence farming or residential use, rather than large-scale land for commercial farming (as intended under the SLAG and LRAD regimes).Footnote 142
The acquisition of land
One of the most contentious issues of the redistribution programme is the manner in which suitable land should be identified, acquired and transferred on a large enough scale. From the outset, the state opted for a market-based approach, founded on the willing-buyer-willing-seller principle, which relies on voluntary agreements between private persons. The price of land is also determined with reference to the free market, whereas the state is largely uninvolved in the negotiations as well as the final transaction. Lahiff explains that the concept of “willing seller” protects the interests of existing landowners, in an absolute fashion, whereas no such guarantees are provided to would-be beneficiaries, “who continue to depend on state approval of their grant applications and the willingness of owners to transact with them”.Footnote 143
As opposed to a state-led system, the market-based approach was in line with both negotiated land reform as well as the principles of reconciliation and nation building.Footnote 144 The willing-buyer-willing-seller principle was the result of a policy choice, not a constitutional principle. The market-based approach has given rise to a number of problems, most noteworthy being the difficulty experienced by beneficiaries in acquiring suitable land on the open market: land that is placed on the market is often unsuitable for beneficiaries’ needs; prices seem to be inflated;Footnote 145 and bureaucratic delays are largely met with frustration and scepticism.Footnote 146 The programme has generally failed to release adequate land onto the open market. Part and parcel of the willing-buyer-willing-seller principle is the demand-led approach, which entails potential buyers taking the initiative to acquire land: responsibility for initiating land reform projects effectively does not rest with the state.Footnote 147 The supply of land is therefore left to the “invisible hand” of the market, which means that the landless must identify land that was placed on the market, specifically for the purposes of redistribution, and negotiate with the landowner. This is founded on “major inequalities of power and resources between potential buyers (typically first-time buyers) and sellers (typically experienced landowners and market operators)”.Footnote 148
It is not surprising that the willing-buyer-willing-seller principle is being reviewed with a view to its abolition. However, its total abolition is perhaps not prudent either. Pienaar argues that a more nuanced approach is required, consisting of a range of mechanisms or approaches, including a market-based approach.Footnote 149 This logic is supported by evidence showing that private transactions by black persons in some cases exceeded government-assisted purchases.Footnote 150 Nevertheless, it remains clear that the government should become more involved and take responsibility for acquiring suitable land at scale.Footnote 151 PLAS is therefore welcomed as a strategy that allows more involvement from the state to acquire and distribute land to beneficiaries. Landowners’ remaining power over the success of the redistribution programme should however be addressed further, not only to increase the supply of land for redistribution but also to ensure that suitable land is allocated for land reform beneficiaries in areas where necessary. As already mentioned, it is highly questionable whether the proposed constitutional amendment will remedy the real issue here, namely the limited extent of the state's involvement in acquiring and distributing land for land reform purposes.
The size of the land
From a production point of view, the contribution of small-scale farmers in terms of the redistribution programme is quite limited, especially in comparison to large-scale producers. Moreover, their contribution is only limited to regional production. Land that belongs to large-scale successful landowners should therefore preferably not be transformed into small-scale landholdings for the purposes of redistribution since this may well lead to fragmentation, having an adverse effect on agricultural production as well as agricultural exports.Footnote 152 Consequently, it has been argued that less successful large-scale land should be identified and transformed into small-scale land parcels for redistribution, although large-scale black farmers should also be assisted with greater access to large-scale land.Footnote 153 At the same time, research has shown that households that are dependent on external assistance, such as grants, are often also in need of landholding. The argument has therefore been put forward to suggest that these individuals should be assisted with the provision of some access to land, even if only in small parcels.Footnote 154 The counter argument is that “if small-scale farming were to be reproduced at scale it would merely continue the pre-constitutional urban / rural divide, whereas the promotion of large-scale black farming enterprises would not only address this kind of stereotyping, but would effectively address the continued skewed land ownership pattern as well”.Footnote 155 Overall, there is arguably a need for both small and large parcels of land, depending on the specific circumstances.Footnote 156
Empirical research shows that almost half of the intended beneficiaries require land that is smaller than one hectare, which means that the land markets should respond to this need and align the financial grant system to provide small-scale land parcels through small grants; this is not currently possible under the policy framework.Footnote 157 Empirical research also suggests that, when the land reform programme was initiated, almost 70 per cent of black rural households considered themselves in need of land. Interestingly, the amount of land that they required, specifically farmland, was very small.Footnote 158 The failure to subdivide land has been identified as a fundamental contributor to the underperformance of land reform projects because it imposes unsuitable land on beneficiaries; the farms are too large and beneficiaries are forced to operate in groups, which results in them having to negotiate their rights and responsibilities within group structures.Footnote 159
“Effective control over productive resources, especially land and water, by the rural poor is crucial to their autonomy and capacity to construct a rural livelihood and to overcome poverty. This is largely because in many countries today a significant portion of the income of the rural poor still comes from farming”.Footnote 160 Land is a vital economic asset for the rural poor on the basis that it serves as both a “primary means for generating a livelihood” and a “vehicle for investing, accumulating wealth, and transferring it between generations”.Footnote 161 Based on these arguments, the overall suggestion is that small-scale land parcels should be distributed more progressively as a form of poverty alleviation.
Preliminary suggestions on the way forward
Land reform has been unsuccessful in two respects: its pace (roughly 8 per cent of commercial farmland has been redistributed); and its performance (the 8 per cent that has been redistributed has arguably not contributed to either the improvement of individuals’ livelihoods or production outcomes).Footnote 162 In consideration of the redistributive tools and measures mentioned above, there is an imminent need to speed up redistribution. Even though the mere distribution of land to the poor will not automatically enhance their livelihoods, access to suitable land will “certainly contribute to social stability and improved livelihoods. After all, land still remains the most effective safety net”.Footnote 163 In addition, Kepe argues that, “land carries a powerful symbolic charge for many black South Africans not only because of their recent memories of racialised dispossession of their land, but also because inequalities in land ownership ‘stand for’ and evoke the broader inequalities that post-apartheid policies have yet to undo”.Footnote 164
The entire redistribution discourse (and specifically South Africa's approach towards the distribution of land) should be realigned to egalitarian principles, which in its simplest form means that land should be distributed in an equal manner. It should be acknowledged from the outset that a right exists in every previously disadvantaged person to have his basic land needs met by the South African government and this right is one of justly held property. The equal distribution of land is also a vital component of South Africa's ongoing commitment to correct past injustices, but some consensus is needed about what should in fact be distributed to adhere to the constitutional mandate. In some instances, the SLAG, LRAD and PLAS regimes are perfectly well suited to black farmers’ needs where agricultural land is required to farm productively. The literature does however leave a significant question as to the extent to which these policies are able to respond to the land needs of the masses. Arguably, a significant percentage of the landless require nothing more than a physical space where they can exercise the most basic activities for human survival. Apart from the 2020 Beneficiary Selection and Land Allocation Policy, which is still in draft form, none of the redistribution policies are geared towards addressing this need. The purpose of property (in the redistribution discourse explained as a secure, unfettered right to hold land) is to enable human beings to participate actively in society and flourish as contributing citizens. This ideal of human flourishing cannot be achieved as a long-term objective if the landless are denied a bare, physical space in which to survive.
PLAS, read with the Beneficiary Selection and Land Allocation Policy, can arguably allow for a more interventionist approach by the state; transformation can hardly by achieved by way of piecemeal reform via the free market. Reform should preferably target areas in need, to provide adequate opportunities through an integrated approach. Even though the free market should still play a role in land reform, in general one cannot expect the market to be relied on “to deliver land in the places, at the scale and at the price required for a major national programme of transformation”.Footnote 165 Critical to this suggestion is that powers should be delegated to local authorities that work directly with local communities. Municipalities are arguably best suited to identify needs and provide solutions within a particular area. As mentioned by Lahiff, land reform should be decentralized to allow for a range of land reform programmes, specific to municipal areas.Footnote 166 In addition, widespread expropriation is not necessary; instead, selective expropriations that form part of a rigorous land acquisition strategy should suffice to increase the supply of land for beneficiaries in areas of need.Footnote 167
CONCLUDING REMARKS: OPTING FOR A POLICY OVERHAUL AND LEGISLATIVE COMPLIANCE
Redistribution is a core constitutional imperative, which should act as a vehicle for large-scale resource allocation, wealth distribution and economic justice. The underlying idea is that land should be distributed to the poor in a manner that would have an equalizing effect; this means that property should be reallocated to the masses. This is however a presumption, seemingly falsely founded on the egalitarian ethos of the Constitution. The working presumption in the context of economic justice, and more so the redistribution of land, seems to be founded on libertarian notions, rather than the “egalitarian ethos” of the Constitution. The policy overview in this article clearly shows that a market-based approach is preferred, under which the free-market reigns supreme; land holdings rarely shift in the absence of free will. This approach comes at a price, not the price negotiated by the parties, but rather the diminished scale at which land effectively moves from the haves to the have-nots. From a policy perspective, the redistribution programme is not geared to have an equalizing effect in the land market; there is also no social consensus on what is meant by distributing basic material needs in the context of land. Stated differently, we have not established a default position, or threshold of what should ideally be distributed to the desperately poor and landless as a means of enabling them to establish their livelihoods, which can roughly be translated as a threshold for living the well-lived life, a life of meaning and purpose. Even though the state is tasked with the duty to ensure that property (serving as a necessary stepping stone for the enjoyment of other constitutional rights) should be distributed as widely as possible to allow everyone to flourish as human beings, without falling prey to subordination, the policies are not aligned to allow large-scale dispersal of access to land. Instead, the reach of the state's market-led approach is severely curtailed to enable a handful of land reform beneficiaries to acquire large-scale land to farm productively.Footnote 168 In accordance with some policies, such as PLAS, where the state is more involved in the acquisition and distribution of land, the impact is restricted to affluent farmers.
An egalitarian approach should arguably be reintroduced to shift the focus back to the constitutional objective of equalizing land holding in South Africa, not only to rectify injustices of the past but also to empower the marginalized to take their rightful place as active, participating citizens. The literature rightly suggests that more land should be distributed, specifically small-scale parcels of land for a range of purposes, such as subsistence farming. This will allow beneficiaries to produce food, establish some form of shelter and in due course improve their livelihoods and living conditions. In line with what is proposed in the Draft Beneficiary Selection and Land Allocation Policy, small-scale parcels of land should arguably be provided in addition to other types of land, including large-scale parcels of land that are better suited to commercial farming. An array of options should ideally be offered to ensure that the landless can access land that is suitable for their needs, abilities and budgets.
The only way in which the redistribution imperative can truly have an equalizing effect in relation to land holding is through the implementation of a state-led approach to the acquisition and distribution of land. With reference to the former, the state should arguably embark upon widescale expropriation of well-located, suitable land for land reform purposes. The Constitution empowers the state to expropriate land for this purpose, provided that just and equitable compensation is paid. The current legislative framework allows for compensation to be paid at reduced prices, including nil compensation, which calls into question the need for the proposed constitutional amendment as well as the entire “expropriation without compensation” movement. Moreover, a number of laws that form part of the redistribution programme reiterate the state's wide-ranging power to expropriate land for land reform purposes. Even though the policy framework is opposed to the use of this power, neither the Constitution nor the laws that aim to give effect to its vision reflect this.
CONFLICTS OF INTEREST
None
Open access
