Those who got land through unjust laws have manage to characterize the land restitution as a detrimental economic strategy. Basically, they are saying let’s move on, let bygones be bygones to avoid ruining the country. The Zimbabwe technical mistakes on their land reform is often cited as an inevitable consequence if restitution is persuaded. This economic ruin scare mongering seems to have been accepted by the ANC government as a fact. Food security arguments is another reason those with land cite more often to derail land reform. The truth is that effective and well-designed land reform policies can provide sustained contributions to economic growth, reduced social unrest and poverty. Land reform without financial backing for the beneficiaries is disastrous. The Afrikaner farming success was due to support they received from the apartheid regime. They supported farmers with farming equipment and all the support they needed. Contrary to the current beneficiaries, the success rate of the black framers is directly linked to the support they receive from government, if there’s any.
The Property Valuation Act of 2014, introduced by the Department of Land and Rural Development, is suggested to replace the “willing buyer, willing seller” land redistribution policy. Government hope the act would regulate the valuation of property identified for land reform as well as property that was identified for acquisition or disposal by the department. The department of Rural Development and Land Reform, believes this will ensure that there is just and equitable redress as stated in the Constitution. It remains to be seen how the Property Valuation Act of 2014 can operate without contradicting section 25 of the constitution. Section 25 of the Constitution is commonly referred to as the property clause, aims to protect the property rights of landowners whilst at the same time looking to safeguard the interests of society. Section 25 specifically provides for the taking away of property from the owner if it is for a public purpose or in the public interest subject to the owner being compensated in the expropriation. The consternation comes from the compensation part. The challenge is the mode of compensation. Free market provocateurs advocates Market value or Open Market Valuation, which is the price at which an asset would trade in a competitive auction setting.
For the government to allow themselves to be involved in free market forces to attain social justice is counterproductive. Land dispossession and laws like the 1913 land act was a deliberate act used to disempower black people. All the organisations opposed to land reform have assembled strong legal teams to frustrate government efforts to redress. They continuously out- manoeuvre the state legal minds. Despite advocating for market forces to determine prices, they vehemently argue for fair compensation on the improvement made on the land. Surprisingly, the state does not counter this argument, it accept this view that the only thing that happened on the land was improvements. The state does not try to test the sufferings of the dispossessed vs the improvement of their land. One would have thought the state would rather compensate the dispossessed, but instead it is concerned about how to compensate the perpetrators. Apartheid and colonization crimes were crimes against humanity. Therefore, the beneficiaries of such crimes can be compensated taking into account that their wealthy was ill-gotten. It is disheartening that free market values have been used when dealing with the land redress question. In fact, the market value determination will literally bankrupt the state.
The government since 1994 have tried many strategies to counter the market determination of prices. The land Valuer-General was one of them. Once the Valuer-General has determined a value, there is no scope for the State to pay more than that amount for the land. The State is bound to negotiate and settle within the set price. For the land owner it is a case of take it or leave it, which is in conflict with section 25 of the constitution. The establishment of such an office would not pass the constitutional test. Section 25 of the Constitution explicitly provides expropriation subject to compensation. If there are disagreements on the land purchase the courts are the final arbiter. The Valuer-General is toothless when it comes to land reform. Actually, the state is hopelessly useless in devising constitutional polices or plans that will fast-track and make land reform affordable. The extension of the cut-off date for land claims to include pre-1913 claims have been declared unconstitutional. Another indictment to the state. The extension was done despite the fact that the progress of claims on the roll is moving with a snail pace. Now the government must go back to consultation and do all the necessities to satisfy the constitutional requirements. The Expropriation Bill will also suffer the same faith. The bill was adopted by the National Council of Provinces (NCOP). It allows for the state to take over property, with compensation determined against a range of factors, and not only market-value. The bill will replace the Expropriation Act of 1975, which is not in line with the Constitution.
It seems the stumbling blog in fast tracking the land restitution is the property clause. It scars the ANC, the state is resisting to try and test it in court. The ANC government is also scared to change the constitution to solve this historical social injustice. The constitution is not a religious document like the Bible. It supposed to be a living document, and must be constitutionally changed when necessary to provide solutions in cases of standoffs. The state must bring top legal minds and politically willing people to examine section 25 of the constitution to move forward the stalling land redress struggle. Instead, they continue to waste tax payer’s money in courts fighting losing battles. Seemingly, the state have succumbed to the capitalist ideological hegemony that controls South Africa. They believe that changing the constitution to address any injustice will chase away investors. They have accepted as ‘common sense’ the lie that land reform will result in food shortages, and the country will become another African failed state. Alternately, the government should swallow their costly pride and partner with the EFF to amend the constitution with the Two Thirds Majority they have combined. Once the land reform opponents realize that their beloved property clause is under treat, they will come to the table and will make concessions that will take the land reform process forward.
By Sivodlo Silombo
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