Land, the constitution and property rights in South Africa
1 SPEECH BY DAVE STEWARD, EXECUTIVE DIRECTOR OF THE FW DE KLERK FOUNDATION TO THE CONFERENCE ON LAND OWNERSHIP IN SOUTH AFRICA HAKUNAMATATA, GAUTENG, 31 MAY 2013 LAND, THE CONSTITUTION AND PROPERTY RIGHTS Perhaps one of the most unpalatable truths of our time is that our government has embarked on a comprehensive and conscious campaign to harm the interests of South African citizens on the basis of their race. A central element of this campaign is the elimination of what the ANC calls "the legacy of apartheid super-‐exploitation and inequality, and the redistribution of wealth and income to benefit society as a whole, especially the poor". In effect, the government is planning a multi-‐pronged assault on the property rights of white South African citizens on the basis of their race. The assault includes the following elements: • The proposals in the 2011 Green Paper on Land Reform; • The implications for farmers of the Land Tenure Security Bill, 2010; • Proposals at the 2012 ANC Policy Conference that the government should be able to use the assets of insurance and pension funds for state developmental projects; • The Restitution of Land Rights Amendment Bill which will set a new cut-‐off date for restitution claims and that will make it possible to submit claims for the dispossession of land before 1913; • Tokyo Sexwale’s announcement last week regarding the "deracialisation of white suburbs"; and • The draft Expropriation Bill which has recently been released for comment by the Department of Public Works. THE GREEN PAPER ON LAND REFORM The Green Paper advocates a process of Agrarian Transformation -‐ which it describes as "a rapid and fundamental change in …systems and patterns of ownership and control… of land, livestock, cropping and community". It proposes fundamental changes to traditional forms of land ownership in terms of which there would be four categories of land tenure: • state and public land that would be subject to leasehold; • privately owned land -‐ that would be freehold but with limited extent; • foreigners would not be allowed to own freehold land at all; and • communal land with communal tenure and institutionalised use rights.
2 The idea of freehold "with limited extent" is vague and would be difficult to implement. Any limitation of existing freehold rights would have to be compensated by the government in terms of section 25 of the Constitution. THE LAND TENURE SECURITY BILL, 2010 The new system would go hand in hand with the implementation of the Land Tenure Security Bill, 2010. According to AgriSA, the Bill would give farm dwellers and their dependents unlimited and comprehensive rights in respect of stock-‐farming and cropping, services, training housing and roads -‐ and would create unlimited obligations for farmers. PENSION AND INSURANCE FUNDS The proposal that the government should be able to use the assets of insurance and pension funds for state developmental projects could seriously erode the retirement and insurance investments of ordinary citizens. DERACIALISING WHITE SUBURBS Minister Sexwale’s plan to "deracialise white suburbs" might erode the value of the most important asset that most South Africans own -‐ their homes. No reasonable person would object to proposals for better human settlements -‐ including the development of inner city housing schemes to bring people closer to their jobs; the development of new non-‐racial communities and the upgrading of existing townships. However, the proposal to "deracialise white suburbs" is perplexing, disturbing and unnecessary. This would be achieved by "obliging" banks "to provide loans to black people to purchase property in previously exclusive white suburbs". There are no longer any "exclusively white suburbs". Mr Sexwale and most of his colleagues in the black elite know this very well -‐ because that is where they live. People -‐ whatever their race -‐ can buy homes anywhere they like provided they can pay the prevailing market price. Middle class black, Indian and coloured families have been moving into former "white" suburbs all over the country with very little trouble or opposition. The city centre areas of several of our major cities have been taken over by black South Africans without the passage of any laws. All over the country vibrant multi-‐cultural neighbourhoods are developing on the basis of free choice. We do not need a new bout of racial engineering that would subvert this entirely natural process. We should also accept and respect the tendency for cultural groups to live together in communities -‐ if they so wish -‐ just as they do throughout the world -‐ provided that they do not exclude anyone on the basis of race. RESTITUTION BEFORE 1913 The ANC has now announced its intention of creating a new cut-‐off date for restitution claims -‐ and to pushing back the date before 1913 from restitution claims by descendants of the San people. It should be remembered that a large majority of restitution claimants have settled for cash rather than the return of their land. Also, tampering with the 1913 threshold date would require a constitutional amendment.
3 THE EXPROPRIATION BILL The keystone to the ANC’s new approach to property is the draft Expropriation Bill which was recently released for comment by the Department of Public Works. The Bill contains a number of threats to bona fide property rights -‐ even though it no longer tries to circumvent the requirement that compensation must be decided or approved by a court -‐ as its 2008 predecessor did. Although in line with section 25 of the Constitution, the inclusion of "public interest" as grounds for expropriation -‐ without clearly defining its meaning -‐ could result in a dilution of property rights when left to subjective interpretation by expropriating authorities. The Bills definition of "public interest" incorporates the Constitution’s formulation that the "public interest includes the nation’s commitment to land reform, and reforms to bring about equitable access to all South Africa’s natural resources". However, it then adds the words “and other related reforms in order to redress the results of past racial discriminatory laws or practices". This could conceivably be used to justify the expropriation of virtually any property owned by white South Africans which might be obliquely linked in some way or the other to "past racial discriminatory laws and practices." Another problem arises from the fact that possession of expropriated property can take place before the payment of compensation. In addition, compensation becomes payable only when the amount has been agreed by the state or decided by the courts. Should expropriated property owners decide to challenge the proposed compensation, they could find themselves deprived of their property and any income that it might produce pending the court’s decision. Since this process might take years to complete, expropriated property owners would be under considerable pressure to accept whatever offer the expropriating authority might choose to make. Finally, the definition of property is so vague that it could result in the expropriation of virtually any type of property, including land, moveable and immovable property, shares and mining rights. The Bill also extends far-‐reaching powers to initiate expropriation not only to the national government but to provincial governments, municipalities and to numerous other organs of state. In considering a more precise definition of the "public interest" the drafters of the Bill would do well to note that experience throughout the world and throughout history has incontrovertibly shown that secure property rights are essential for economic stability, growth and well-‐being of any society. They are indisputably a core element of any objective assessment of the “public interest”. THE NATIONAL DEMOCRATIC REVOLUTION What then is the origin of this multi-‐pronged attack on white property rights? Why has the ANC embarked on a course of action that -‐ to an objective observer -‐ would appear to be so destructive of national unity and that would have such catastrophic consequences for the economy?
4 The answer lies in the National Democratic Revolution (NDR) -‐ which is the guiding ideology of the ruling alliance. The NDR’s primary goal is "the resolution of the antagonistic contradictions between the oppressed majority (blacks) and their oppressors (whites); as well as the resolution of the national grievance arising from the colonial relations". The ANC’s view of the 1994 settlement differs profoundly from that of its negotiating partners. For non-‐ANC parties 1994 was the culmination of the process: for the ANC it was simply an important milestone on the route toward the achievement of its National Democratic Revolution. As the ANC puts it: "…The notion that South Africans embraced and made up (after the 1994 settlement), and thus erased the root causes of previous conflict, is thoroughly misleading. April 1994 was neither the beginning nor the end of history. The essential contradictions spawned by the system of apartheid colonialism were as much prevalent the day after the inauguration of the new government as they were the day before." According to the ANC’s Strategy and Tactics documents, "a critical element of the programme for national emancipation should be the elimination of apartheid property relations. This requires: the de-‐racialisation of ownership and control of wealth, including land; equity and affirmative action in the provision of skills and access to positions of management... It requires the elimination of the legacy of apartheid super-‐exploitation and inequality, and the redistribution of wealth and income to benefit society as a whole, especially the poor." According to the ANC’s 2007 Strategy and Tactics document, this is still very much a work in progress. "The progress made since the attainment of democracy is such that we are still some way from the ideal society of national democracy. The ownership and control of wealth and income, the poverty trap, access to opportunity and so on -‐ are all in the main defined, as under apartheid, on the basis of race and gender." Accordingly, "the central task in the current period is the eradication of the socio-‐economic legacy of apartheid; and this will remain so for many years to come." In the ANC’s view this is a continuing struggle "which, as a matter of historical necessity, will loom ever larger as we proceed along the path of fundamental change". THE SECOND PHASE In March last year, the ANC announced that the time had at last arrived for it to proceed more vigorously with its efforts to eradicate the socio-‐economic legacy of apartheid. Minister Jeff Radebe, the ANC’s Policy Chief, proclaimed that "having concluded our first transition with its focus in the main, on political democratization, we need a vision that must focus on the social and economic transformation of SA over the next 30 to 50 years". According to Radebe, South Africa needed a second transition for the following reasons:
5 "Firstly, our first transition embodied a framework and a national consensus that may have been appropriate for political emancipation, a political transition, but has proven inadequate and inappropriate for our social and economic transformation phase". "Secondly, the balance of forces at the time of our transition ruled out some options and weighted choices towards others. Thus the negotiated nature of the transition meant that capital reform would necessarily be an incremental, market focused process, engaging with the current owners of capital." THE ANC’S 2012 POLICY CONFERENCE Radebe’s views were subsequently endorsed by the ANC’s National Policy Conference at the end of June 2012. In his opening address to the conference President Zuma said that the ANC intended "to democratise and de-‐racialise the ownership and control of the economy by empowering Africans and the working class in particular to play a leading role". He said that the government could not take such measures in 1994 because it needed "to make certain compromises in the national interest …we had to be cautious about restructuring the economy, in order to maintain economic stability and confidence at the time". Although the Policy Conference preferred the term "Second Phase" to "Second Transition" it reached broad agreement that "we are in a continuing transition from Apartheid colonialism to a National Democratic Society. The interventions required to speed up change, especially with regard to economic transformation, can be understood as marking a new phase in the transition to a National Democratic Society. This second phase of the transition should be characterised by more radical policies and decisive action to effect thorough-‐going socio-‐economic and continued democratic transformation, as well as the renewal of the ANC, the Alliance and the broad democratic forces". MANGAUNG The ANC’s National Conference at Mangaung in December last year endorsed the central elements of the "Second Phase" approach: "We engaged in vigorous and searching debates on the persistence of the legacy of apartheid colonialism, reflected in the triple challenges of poverty, inequality and unemployment. Responding to these challenges, we are boldly entering the second phase of the transition from apartheid colonialism to a national democratic society. This phase will be characterised by decisive action to effect economic transformation and democratic consolidation, critical both to improve the quality of life of all South Africans and to promote nation-‐building and social cohesion". The Mangaung Conference also endorsed the Land Reform proposals in the Green Paper and called for the early adoption of a new Expropriation Act. CONCLUSION There can accordingly be very little doubt about the seriousness of the ANC’s commitment to the redistribution of white-‐owned land and property. It will proceed as quickly as the
6 objective circumstances and developing balance of power will permit. In considering all of this we should bear the following points in mind: • Not all elements in the ANC support the radical implementation of the NDR; • It is being driven primarliy by the SACP which believes that the NDR is an essential staging post on its route to the establishment of a communist state; and • The second phase implementation of the NDR is entirely irreconcilable with the National Development Plan that the ANC also supports. PROPAGANDA FOR THE SECOND PHASE The ANC is preparing the ground for the Second Phase by concentrating on three basic arguments: THE LEGACY OF THE PAST The first arises from its version of South African history in terms of which everything that happened before 1994 was irredeemably evil. The Government is ramping up its rhetoric. In a relatively short address to parliament earlier this year Jeff Radebe referred no fewer than seven times to the depredations of the past -‐ • to "apartheid colonialism"; • to "the struggle against colonialism and apartheid"; • to "the forces of colonialism and later of apartheid, on the one side, arrayed …against the forces of freedom and democracy on the other side"; • to "… the heroic stance by the United Nations when It declared apartheid a crime against humanity and a threat to world peace"; • to "…the untold suffering, strife and racial hatred sowed by apartheid…"; and • to "…the poverty trap and vicious cycle of inequality perpetrated by the legacy of apartheid and colonialism…" Increasing use is made of the term "apartheid colonialism" -‐ implying that whites are transient alien interlopers. For example, the Green Paper on Land Reform proclaims that "all anti-‐colonial struggles are at the core about two things, repossession of lost land and restoring the centrality of indigenous culture." Such references pepper most policy statements made by the ANC. Whatever their historic merit -‐ or lack of merit -‐ it would be surprising if they do not stir up some degree of racial animosity -‐ or at the very least -‐ reinforce perceptions of white moral inferiority and black entitlement. Inevitably they fuel demands for restitution -‐ particularly of land -‐ which most black South Africans firmly believe was stolen from their ancestors. Special accent is being placed on mobilising public opinion to support radical land reform on and around the 100th anniversary of the 1913 Land Act. NOTHING HAS CHANGED The second leitmotif is the notion that economically and socially nothing has changed.
7 • When he opened the 2012 Policy Conference President Zuma said that "the economic power relations of the apartheid era have in the main remained intact. The ownership of the economy is still primarily in the hands of white males as it has always been." • The Policy Conferrence concluded that "…the structural legacy of Colonialism of Special Type, including patriarchy, remains deeply entrenched as reflected in the colonial, racist and sexist structure and character of our economy; the spatial and gender patterns of development and underdevelopmentand with regards to the social, human resources and infrastructure backlogs." • On 2 October 2012 Minister Rob Davies said that "We cannot expect to grow and develop as a country if the leadership of the economy is still in the hands of only a small minority of the society." However, it is untrue that the leadership of the economy is still solely in the hands of whites. There have been significant shifts in the racial distribution of wealth and income since 1994. -‐ mostly in favour of the new black middle class. Black South Africans control economic, labour and fiscal policy as well as the 30% of economy that is controlled by the state. More than 60% of the top decile of income earners are now black. THE LEGACY OF THE PAST IS RESPONSIBLE FOR THE PROBLEMS OF THE PRESENT The third theme is the ANC’s insistence that most of the country’s current problems -‐ and especially the triple crisis of inequality, poverty and unemployment -‐ may be ascribed to the legacy of the past. • The 2012 Policy Conference claimed that the "historical and primary contradictions … which were inherent to Colonialism of a Special Kind" were the cause of "the triple challenges of unemployment, poverty and inequality." • According to President Zuma’s 8 January statement this year "Monopoly domination of the economy" (whatever that means) and the "skewed patterns of ownership and production" are responsible for the "inequality, dualism and marginalization" that characterise the economy. • Recently Minister Angie Motshekga claimed that all black education before 1994 was intended only to produce "labourers" -‐ despite the fact that she herself (and many of her colleagues) were graduates of Turfloop University. Also, by 1994 there were more black students registered at university than whites. RESPONSES The question -‐ as always -‐ is what is to be done? I would suggest the following responses: • White South Africans should wake up to the unpleasant fact that they are the main target of the NDR. Their government has launched a multi-‐faceted campaign to undermine their legitimate interests and rights on the basis of their race. They are like the proverbial frogs in the pot: the water is simmering and the ANC is turning up the heat.
8 • We should dispel any remaining illusions that we might have regarding the ANC’s intentions. They are there for all to see. In particular, we should not allow ourselves to be placated by what the ANC regards as "dexterity of tact". • We should firmly reject racist policies from any quarter. We should reject the notion that we are morally second-‐class citizens -‐ or that some South Africans are "central" and others peripheral. • We should work for a more balanced understanding of our history -‐ and we should, in particular -‐ reject the ANC’s hopelessly skewed version of the past. We need to put the record straight regarding the history of land ownership. • We should work for a more balanced and accurate understanding of the present -‐ and particularly of the constructive -‐ and indeed, indispensible role -‐ that much maligned whites play in the economy and in society. • We should engage the ANC on the battlefield of ideas -‐ where we should point to the catastrophic implications of the second phase course upon which it has embarked. • We should seek to engage the ANC leadership at the highest possible level in very frank debate about these issues. The really scary possibility is that the ANC actually believes its own propaganda. • Above all we should defend the Constitution, the values that it espouses and the rights it protects -‐ from forces that are increasingly attempting to erode it. We should reject any suggestion that it was just a temporary accommodation that can be dispensed with at the whim of the government of the day. We should remind the ANC that South Africa belongs to all its people, united in our diversity. We should stress that South Africa has been founded -‐ among others -‐ on the values of human dignity, equality and non-‐racialism. We should also draw the ANC’s attention to the core right that the State may not unfairly discriminate directly or indirectly against anyone on one or more grounds -‐ including race.