Democracy and Delusion. Sizwe Mpofu-Walsh

that is not arbitrary is permissible. The property clause does not carry the phrase, ‘willing buyer: willing seller’, which is often blamed for an inadequate resolution of the land question. The state’s power to expropriate does not depend on the willingness of the landowner.81

      He continues:

      The compensation may be agreed but if not, a court must fix it. The compensation must be just and equitable and not necessarily the market value of the land. Market price is but one of five criteria the Constitution lists for a court to set fair compensation. The property clause is emphatic that the state must take reasonable measures, within available resources, to enable citizens to gain access to land on an equitable basis.82

      Therefore, instead of blaming the Constitution for our lack of progress on land, blame should lie at the door of the government, which has taken two decades to draft an Expropriation Bill. One fear relating to expropriation without compensation is that immediate expropriation could hamper short-term stability if it turns violent. This problem is not so much a question of expropriation, as question of warning and timing. No one wants a situation where expropriation leads, for instance, to protracted civil conflict, or irreversible economic decline. However, this does not mean that expropriation should be indefinitely delayed.

      Options are available. The state could set a target for the land it wants to expropriate for public purposes in a defined period, say 50% in five years.83 It could then offer commercial landowners an ultimatum: either they transfer their land by the given date, or it will be expropriated by the state by the deadline. If landowners comply with the ultimatum, then land will have been effectively transferred. If they do not comply by the deadline, then the demarcated land would be expropriated without compensation. In cases between these two extremes, a spectrum of compensation could be considered. This would not only solve the problem of land transfer, but would also cushion the blow of immediate expropriation, which could have dangerous unintended consequences. Such a policy would, to my mind, be perfectly capable of passing constitutional muster.

      There is an easy way to test the constitutionality of this proposal in the short term, instead of waiting for a prolonged legal challenge on an Expropriation Bill. According to Section 79 of the Constitution, the president can refer bills directly to the Constitutional Court ‘for a decision on their constitutionality’. Instead of decisive action like this, we’ve had two decades of waiting and constitutional speculation.

      Second, several alternatives to the current tenure system are available. First, we must scrap the current system of rural tenure. Next, we must avoid the new Communal Land Tenure Policy that gives land from the state to traditional elites at the expense of the people. What do we replace it with? Here there are two options. One is to transfer the land to the individuals who live on it, in a process known as formalisation. This would at once provide millions of South Africans with a form of wealth that has been denied them for centuries. But it would significantly curtail traditional forms of ownership and control that apply in rural contexts on South Africa.

      Another option, therefore, would be to transfer ownership rights to collectives or communities, so that they can take decisions on what would happen with their land. Individuals would not directly own land, but the community itself would own land and individuals would own a stake in this corporate arrangement. A democratic process would determine how the wealth from the land would be shared in the community. There are also hybrid models between these options, where certain parts of the land are individually owned while common areas are communally owned. Basically, land would be transferred from the state to the people in a way determined by the people themselves.

      As far as restitution is concerned, the state should use its power to ensure the financial burden of restitutionary claims is not borne solely by itself. This would mean more substantial financial compensation. Second, symbolic compensation should focus on wealth transfers instead of income transfers. This could be in the form of alternative housing in urban areas, which would also break the chokehold of apartheid spatial planning, or in the form of housing vouchers. It could also take the form of educational endowments or financial assets.

      Conclusions

      The myth that real land reform would lead us into a ‘Zimbabwean’ crisis is misguided and paralysing. Indeed, nearly every major economy in the world has formalised tenure rights, abolished feudally unequal land relations, and restituted stolen property. In the short term, achieving real justice on the land might make some squeamish about the potential unintended consequences. But is that worse than at least two centuries of systematic exclusion, mass murder and structural economic catastrophe? The reverse question is even more important: what are the potential developmental, social and political benefits of a just solution to the land problem? Much potential would be unlocked if millions of black South Africans finally became the owners of their country again. Imagine the extent to which inequality, unemployment and poverty could be turned around once the land issue was resolved. If systemic political risk, in the form of mass protest and urban turmoil, lie at the heart of the South African economy, how far could successful land reform go in creating a more stable and prosperous society?

      There is no doubt that much of the blame for the state of land reform belongs to the ANC government, for failing to implement their own policies. The land reform budget of R2.6bn reflects government’s de-prioritisation of the issue. That budget could be scaled up by several orders of magnitude before some of government’s other priorities. Government must foreground land reform for the sake of its other developmental goals because, without it, long-term prosperity is impossible.

      Yet it is also a mistake to exonerate those who currently occupy the land. State failure does not excuse the original injustice, and those who currently occupy land must also be part of the solution. That stolen land has changed hands over the course of history is a red herring: stolen goods do not automatically become fair game because they have been sold on. The ultimate remedy must involve both the state and individuals, in accordance with the dictates of the law and justice.

      Now – more than ever – is the time to dispel the myth that real land reform is unwise or impossible.