In the shadow of South Africa’s troubled land reform journey, Nkanyiso Gumede, a researcher at the Institute for Poverty, Land and Agrarian Studies (Plaas), dares to confront the burning questions: Can the Expropriation Act truly unlock equitable access to land, or will it deepen the divide?
Democratic South Africa has been grappling with land inequality and the transformation of property relations. Land ownership patterns remain racially skewed, much like they were during the pre-democratic era.
The land reform programme adopted in 1994 has failed to ensure equitable access to land for all South Africans, as envisioned in the Constitution. The spatial design of urban areas, previously anchored on race, remains largely unchanged since democracy, as does the ownership of farmland.
President Cyril Ramaphosa recently signed the Expropriation Bill into law. What does this mean for South Africans? Will people lose their land and property arbitrarily? Will the Expropriation Act lead to equitable access to land?
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Before land can be expropriated
The Expropriation Act establishes legislation aligned with South Africa’s democratic Constitution, allowing expropriation for both public purposes and in the public interest. The government has historically expropriated land for infrastructural projects, such as roads and schools. However, it has not previously expropriated land in the public interest as defined by land reform, particularly land redistribution.
With this act, the government now has an additional mechanism to acquire property for land reform purposes. It will no longer rely solely on purchasing land or receiving donations but can also expropriate.
The expropriation process can also act as a deadlock-breaking mechanism when agreements cannot be reached between property owners and the government. In some cases, lengthy negotiations have concluded with property owners declaring their land unavailable for land reform purposes, halting the process entirely. The Expropriation Act is designed to address such situations.
It sets out the procedures to be followed before property can be expropriated, incorporating checks and balances, including access to the courts, to ensure that no arbitrary acquisition of property occurs. There must be sufficient consultation and engagement with property owners before expropriation. This approach is common internationally when deadlocks arise.
Too far or not far enough
The act empowers the government to pay just and equitable compensation, rather than market value when expropriating property for land reform purposes. This compensation is determined by considering various factors, such as the current use of the property, how it was acquired (e.g., through illicit means), state investment in the property, and the purpose of the expropriation, alongside market value.
These considerations ensure that compensation is fair and appropriate. The act also outlines specific circumstances where nil compensation may apply, such as for land held for speculative purposes, land owned by a state entity but unused, abandoned land, or land where state investment exceeds its market value. Land occupied by farm dwellers may also be expropriated with nil compensation if the courts have so determined.
Critics argue that the Expropriation Act either goes too far or not far enough. Political parties like the DA and Freedom Front Plus, along with private property lobby groups such as AgriSA, claim it undermines property rights and is unconstitutional. Conversely, organisations like the EFF and ATM contend that it fails to address historical injustices, arguing that it still privileges property owners by allowing them to veto land reform through the courts.
For the landless and farm dwellers, however, this act represents a potential lifeline. If implemented correctly, it could provide them with access to land they have occupied for generations. In urban areas, it could enable the government to expropriate abandoned buildings, turning them into homes for those already living there. The act could also promote spatial justice in cities.
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People-centred land reform
Will the Expropriation Act lead to equitable access to land? Achieving equitable access requires more than increasing the government’s land portfolio. Research from the Institute for Poverty, Land and Agrarian Studies shows that land reform resources have often benefited elites diversifying into farming, while genuine beneficiaries, particularly women, have been marginalised.
Government-owned land is sometimes leased to previous landowners, who profit while black beneficiaries receive no dividends or skills transfer. Additionally, land reform has often overlooked the diverse needs of people, assuming that everyone wants land solely for farming, while in reality, people require land for various purposes.
Equitable access extends beyond land occupation to include the rights granted over the land and the support provided to beneficiaries. A Land Redistribution Bill is needed to establish a framework for implementing land reform, taking it out of the sole control of the government and involving communities in its design and execution. Continuous pressure must be applied to ensure that people-centred land reform is prioritised.
The government must invest resources and use its constitutional powers to achieve this. Landowners, too, must reflect on their role in addressing land inequality to prevent its persistence in South Africa.
- Nkanyiso Gumede is a researcher at the Institute for Poverty, Land and Agrarian Studies (Plaas). The views and opinions expressed in this article are those of the author and do not necessarily reflect the views or positions of Food For Mzansi.
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