in 1997 is clear: instead of granting people permit rights, so that they can live on but never actually own their land, tenure reform would quite literally transfer land to the people. The state would, with the strike of a pen, transfer land from itself directly into the hands of the rural poor. No starker realisation of the Freedom Charter’s land clauses is imaginable. Unlike restitution, tenure reform would not require eviction, or significant amounts of compensation to be dispensed by the state. It would just require an act of parliament, and a government ready to implement it. That’s why the lack of tenure reform has been so frustrating.
Now, far from remedying the problem, government is exacerbating it. In 2014, the Department of Rural Development and Land Reform published its Communal Land Tenure Policy, which proposed transferring ownership rights from the state to traditional elites – not to the people. Here’s the idea: instead of transferring the land directly to the people, government will transfer it to ‘traditional councils’ who will administer the land on the peoples’ behalf. At first, this sounds benign, but it continues to deprive the rural poor of direct ownership of their land. Instead, centralised traditional funds, controlled by traditional leaders, will have access to all of the potential wealth. This is important not only because of the wealth of the land itself, but also because of the possible existence of lucrative mineral resources on the land.76 This extends the reach of traditional power far beyond its pre-colonial limits, entrenches a rural elite at the expense of the rural poor, and exposes the ANC government’s unwillingness to follow through on its most basic promises.
At first, it seems inexplicable that government would fail to fulfil its obligations on tenure reform. But the process is tangled in a web of political mismanagement, expedience and deceit which have delayed tenure reform in both the Mbeki and Zuma eras. Why would the ANC not want to transfer land and wealth to the people? Activist Nomboniso Gasa and researcher Ben Cousins77 suggest that the ANC wants to woo traditional leaders, trading tenure reform for the rural vote, or what academic Raymond Suttner calls a ‘re-Bantustanisation’ of South Africa.78
This is not to say that traditional leaders have no role to play in rural areas. Indeed, it makes sense that they should have regulatory powers in settling land disputes, or administering permits and sales. But the notion that traditional councils themselves should own land is different. It contravenes the ANC’s own aspirations and gives even more control to elites than they had under apartheid. A flip-flop as radical as this must therefore be seen in light of what the ANC gains.
But even this strategy is politically short-sighted, because transferring land directly to the people would result in tremendous political spin-offs for any political party that achieved it. It would constitute perhaps the most significant change in rural peoples’ living conditions in post-colonial South Africa. But it would deprive traditional elites of a great deal of power, which the ANC has calculated would hurt it in the short term, before the benefits of the programme were felt on the ground. However, consider the social and political benefits that the government has compromised through this calculation. First, the 1997 plan would make a radical dent on poverty and inequality. It would also deracialise these measures, given the demography of rural South Africa. South Africa’s Gini coefficient would improve significantly and poverty-stricken families would have wealth against which to trade, in the form of loans for businesses or educational pursuits. The social consequences would also be immense since this capital transfer could spark the rural economy and slow urbanisation, currently straining many of South Africa’s urban centres.
One objection is that transferring land directly to individuals reinforces the individualism of Western land rights. But this could be overcome through a communal ownership system agreed upon by the occupants themselves. Families could establish land trusts, or villages could vote on combining wealth into village trusts, for instance. Others may wish to pursue individual ownership. If this process is handled democratically, this problem is not insurmountable. Further, either individual or communal ownership is superior to no ownership at all.
Urban tenure reform is another important element of the equation. Because most of the country’s population lives in urban areas, relatively small changes in urban land tenure would have relatively large effects. And, as other modes of land reform fail, the urban land question becomes more pressing, given the pull of urbanisation in the face of landlessness. In this context, urban housing policy is often touted as one of government’s signal achievements, but this is inaccurate. As Hendricks and Pithouse note in their work on the subject of urban land in South Africa:
The post-apartheid state has built more than 2.5 million houses since 1994 but many residents of these houses have experienced them as profoundly inadequate in size, quality and location. They are much smaller and more poorly constructed than the township housing built under apartheid and are often further from cities than townships built under apartheid.79
Residents often abandon these houses in favour of living closer to metropolitan centres. ‘Illegal’ land occupations have provoked government into building more houses, but poor planning has only led to more land occupations, which has created an even deeper quandary: the erection of temporary enclosures to keep landless people from ‘squatting’ in urban centres. Blikkiesdorp, north of Cape Town, is the prime example: a ramshackle assembly of corrugated iron boxes stretching in authoritarian rows on barren, golden ground. Blikkiesdorp is often compared with Palestinian settlements or nineteenth-century ghettos, and is the embodiment of governmental failure, across political divides, to deal with the urban land question.
Restitution is often cited as the most successful area of land policy, but there is little cause for celebration. A deeper look at the facts reveals that it has, in practice, been reduced to a symbolic farce. For instance, the state received 79 678 restitution claims before its first deadline of December 1998. The original plan was to give claimants land in compensation for the harms done to their families, but administrative backlogs and financial constraints meant the Land Claims Commission focused mainly on symbolic financial compensation. 92% of the claims made on the commission were settled by cash payment, with the majority settling on measly sums between R6 000 and R15 000. Even this paltry sum was often divided among a family, so real compensation amounted to no more than the price of two average pairs of shoes. All this while the actual beneficiaries of centuries of land dispossession – the people who gained access to the land from 1913 onwards – were not asked to pay a cent towards restitution.
Further, government has pursued the counterintuitive path of wilfully accepting all the costs associated with land restitution, leaving apartheid interests free from any financial obligation. This means the state incurs both the political and financial responsibility for the success of the restitution programme. Those who live on stolen land therefore benefit twice: they enjoy the benefit of the land and they do not bear the cost of compensation. But as Atuahene remarks: ‘if the state cannot afford to give both blacks and whites just compensation, then both blacks and whites should receive only symbolic compensation’ [emphasis mine].80 Under current policy, white South Africans receive market value, and black South Africans get symbolic compensation, clearly a perverse outcome.
Thus, like too many ANC policies since 1994, restitution has been dressed in ‘feel-your-pain’ language but built on the logic of apartheid power structures. The spirit is right, but tepid implementation has created second-order problems, the magnitude of which rival the original one. What will South Africa do when the recipients of restitutionary compensation realise they have been dramatically short-changed? We cannot allow it to continue. Decisive action must be taken, and taken now. The financial compensation offered to the victims of land dispossession must become more substantial by government insisting that a portion be borne by beneficiaries of the historical crime. And, instead of cash transfers being the only alternative form of compensation, financial restitution should involve wealth transfer. This could be through educational endowments, financial equities, government bonds or housing improvement vouchers, for instance. As such, restitution will mean more than a simple symbolic pay-off, but truly an act intended to restore dignity.
Where to?
The problem of land reform is tractable. Resolving it decisively would make South Africa sturdier in the long-term. There are proposals that could achieve this which I now want to consider. Let us begin with the issue of commercial agricultural land. Despite argument