Hi, welcome to my Poliseries: an exploration of the vision each parliamentary party has for South Africa’s future. The topic I explore in this regard is land reform. In this report, I discuss the Democratic Alliance (otherwise called the DA): the biggest opposition to the incumbent African National Congress’ (ANC) government thus second place in popularity and credibility behind the ruling party, arguably making the DA its most viable alternative.
The DA’s history seems to be rooted in opposition. It began as a seed germinating in the soils of apartheid in 1959 as the Progressive Party (otherwise called the PP) in opposition to the then Nasionale Party/National Party (otherwise called the NP) before “coming out of the closet” in 1961 and openly declaring its stance on the NP’s racially prejudicial political, economic and social system of the time. Since then, the DA has been called by one other name between the years 1961 and 2000: the Progressive Federal Party (or the PFP) before settling (at least for now) on its current name.
I did mention that the history, by way of past achievements, does not matter for me here on Poliseries; mainly because past achievements are not a forecast of future performance, but I am mentioning their past opposition efforts simply because, despite the several name changes over the years (and I am not a political expert by any stretch), the DA seems to have stayed the same – at least at a DNA level. Those past opposition efforts, then to apartheid, today to inequality, poverty, corruption and, like in the past, for freedom, equality and diversity – remain their opposition efforts of the day. Different government, different issues – same fight.
Considering the DA’s overall vision of SA as a country embodied by freedom for all; a nurturing environment in the sense that it enables all to work towards realising their full potential (often characterised as economic prosperity), land reform policies that place any stakeholders at a disadvantage seem to go against what the party stands for. So, land expropriation without compensation, being an example of said land reform policies, is deemed unacceptable by the DA.
“Expropriation without compensation is a dangerous scapegoat for political failure and must be avoided.”
– 2020 Economic Justice Policy
Modern Apartheid: The Security of Tenure Act
With SA’s food security seemingly their highest priority, the DA’s land reform policy-position believes that today’s economic deprivation along racial lines is the result of the apartheid era’s pattern of exclusion, along those same lines, with regards to the ownership of land assets. This position seems to apply this understanding only to rural communities, barely discussing similar patterns in urban areas. Even so, the DA does touch on the evident skewed patterns of land/property ownership in urban areas; stating that the urban poor, who effect land pressures on urban areas in the form of ‘illegal land occupations’, will be supported by its government to enable them access to urban land primarily in the form of housing.
Amending the security of tenure act so land occupants on rural communal land under traditional leaders obtain rights of residence protected by the constitution is the DA’s way of encouraging rural economic development so there is less emigration from rural to urban areas. This, I welcome together with its intended amendment of the housing act’s section 10 by reducing the number of years one must hold on to a house obtained through a state-subsidised program before being legally allowed to sell it from 8 to two. And, its plan to abolish transfer duties for properties under R2 million purchased by first-time buyers as well as for over 65 year-olds including the provision of grants for those deemed too “rich” to be eligible for state-subsidised housing but still too poor to afford it themselves so they can access home loans. There are a few more efforts which are relevant mainly to the party than to us as citizens because they deal mainly with the management of these efforts.
These proposed changes are, to me, compelling as they will have a material impact on my life as an ordinary SA citizen. Take the transfer duty for example; that is a tax that you will have to pay when purchasing any type of property – you pay this tax in addition to the full price of that property. According to privateproperty.co.za, current legislation does not require this tax paid for when the property purchased is R900 000 or less, i.e. the first R900 000 of any property is tax-free. Above that amount and depending on the overall cost of the property, you will be required to pay tax over-and-above that cost. The DA wants to abolish this tax for all residential property under R2 million whereas at this time, privateproperty.co.za says you can pay up to 8% of the value of that property excluding the first R900 000. So, we are talking about citizens saving a lot of money here.
However, its focus on rural communities seems to imply that issues around land access and economic prosperity have their roots anchored in rural communities’ lack of economic initiative for various reasons. One of their land reform policy principles reads:
“Advancing social justice through a programme of rural redress”
- DA Land Reform Policy
What I understand by “social justice” here is socio-economic justice; meaning, not just addressing the socio-economic injustices of the past but meting out consequences on those who have benefited from them. Therefore, I find this statement self-contradictory; it calls for justice but its efforts in that regard exclude “urban redress”. My opinion here is that, yes, I agree with the notion that rural communities must engender environments conducive to local economies and government does have a role to play in that regard for economic prosperity to hatch there. However, that is not justice but simply a solution to the practical problem, what about the problem’s emotional side? There is so much anger, hate and a deep lust for comeuppance/revenge nested in what is both a self-inflicted and systematically imposed victimisation mentality and reality. To resolve this side of the problem, the more affluent, mainly due to historical racial privilege, who reside primarily in urban areas must lose something of value to make up for benefitting from those injustices – to be “brought down a notch”. Justice is balance – a one-sided, practical solution to an emo-practical problem will not suffice. As such, I am wondering: does the DA simply want to ignore this side of the coin? It certainly seems so:
“The emotion attached to land and the symbolic importance of land ownership in inter-group relationships contributes to the complexity of the land debate.”
- DA Land Reform Policy
In life, loss is useful because of the impact it has on one’s outlook – one’s mentality. Simply resolving only “rural redress” practically implies to condone the mentality/outlook that caused it. Injustices of the past are wrong, and it is not enough to simply rebuke them – they must be shown to be wrong by way of material consequences; otherwise, no lessons will truly be learned. To the DA, cries for land reform come from the poor; meaning both the urban poor (most of whom have presumably relocated from rural to urban areas) and rural communities. Thus, they represent problems with those communities’ local economies: due to several challenges developing productive (land) assets, security of land tenure being a major one, rural communities have not established thriving local economies – the prospective DA government vows to support rural communities in this regard. This is all well-and-good, but my issue here is, again, that – to the DA, land reform completely ignores justice for past wrongs.
According to the DA’s land reform policy, the economic prosperity divide between primarily the white/non-black and black races is essentially a symptom of the same divide between the urban and rural economies. Rural communities need to develop their local economies to create job opportunities, where they are, and uplift themselves from poverty – mainly via farming and agribusinesses. This policy document expresses the DA’s intention to support said communities in this regard, noting that the incumbent government failed to do so both for commercial and subsistence farmers.
“The DA supports a land reform process that achieves redress in rural communities, that promotes economic inclusion to lift rural people out of poverty and supports growth and prosperity in the agricultural sector.”
“Land reform is a moral and political imperative and represents an opportunity to invigorate rural economies by giving rural dwellers greater access to productive assets.”
- DA’s policy on land reform
Considering that food security is equally vital to all, the DA’s land reform strategy, as laid out by their policy document, seems will achieve its objective: protecting the supply of food sold by commercial farmers to urban areas to maintain its prices as affordable for urban dwellers. This, while supporting rural communities to develop their own, separate, mainly agricultural economy so they can secure their own, more subsistent, food security. Two seemingly separate agricultural economies: one for urban dwellers and the other for rural dwellers. I say ‘seemingly’ here because, although the DA does indicate a link between the two in the form of a ladder of business development from subsistence to commercial farming (facilitated by its support), I feel it does not hammer home that, even though not all subsistence farmers will grow to become commercial farmers, this trajectory in development and economic prosperity is a viable career path.
“Comprehensive support, tailored to the needs of beneficiaries as they move through the various stages of business development, must be understood and be one of the top priorities of the Department of Rural Development and Land Reform.”
- DA Land Reform Policy
They do indicate their intention to drive the organic growth of the commercial agriculture sector from its subsistence counterpart:
“A small pool of commercial farmers (now estimated at around 37 000) are responsible for 95% of marketed agricultural output”
- DA Land Reform Policy
To achieve its ends, the DA wants to ensure that all land redistributed as per land reform policy guidelines will be productive because that will determine the immediate impact of the programme on the lives of land recipients – productive land is economically viable hence valuable, leading to positive economic change in landowners' lives.
Traditional Leaders to be Neutered
The Traditional Courts Bill
One obstacle to ensuring the productivity of land is its owner’s perceived security (or lack thereof) of his/her tenure on that land – can he/she be easily removed from the land? Unless this question is satisfactorily answered, landowners will continue to be reluctant to invest in land improvements for increased productivity. The DA wants to extend the powers of ACT 62 of 1997 (the Security of Tenure Act) to those living under the rulership of traditional leaders; so their rights are not left to the whims of their rulers but are exalted above them and protected by the country’s rule of law based on our constitution. According to the DA, this is one of the major reasons rural communities, at least on communal land, have not established thriving economies: one’s residence on land under traditional leaders, as benefactors, is not reliable enough for its occupants – in essence, traditional leaders’ behaviour in their allocation of land under their authority simply stuns economic activity hence prosperity. Their powers, in this regard, must be curtailed.
”The National Development Plan (NDP) identifies insufficient tenure security for black farmers in communal areas as “the first major risk” to the objective of building “integrated and inclusive” rural economies.”
“A national DA government would rid the country of Verwoerdian land patterns by pursuing programmes that allow citizens in the former homelands to enjoy their full rights as democratic citizens and give them security of tenure on the land on which they live and farm. The ANC government’s approach to this issue is giving black South Africans inferior land rights, reminiscent of apartheid.”
- DA Land Reform Policy
To this end, the DA argues that, and with this – I agree: the current Traditional Courts Bill places too much power in traditional leaders’ hands; power backed by the judicial system. To summarise: the way the bill regulates customary law is through traditional courts; it is a tool used by the “constitution”, i.e. the judicial system, to make traditional leaders its proxies and exercise their ‘power’ in their own courts. The leaders, here, do not have any power though, for their authority to, in this case, resolve disputes between stakeholders must be voluntarily recognised by those stakeholders. Otherwise, should they so choose, they can simply bypass traditional courts and have their dispute heard in judicial courts – albeit at a cost.
On the other hand, traditional courts, when recognised by all stakeholders within a given dispute, provide traditional leaders, as their conveners, immense power: firstly, the traditional courts’ bill will not hold them liable for any act (thus its impact) they commit as part of and during dispute hearings as long as they can ‘show’ that they were well-intentioned when they committed it. This means that, for as long as a traditional leader can argue, in his/her defence, that his/her behaviour during a dispute hearing was well-intentioned, he/she is probably going to get away with it:
“Limitation of liability of members of traditional courts
15. A member of a traditional court is not liable for anything done or omitted in good
faith—
(a) in the performance of any function under this Act; or
(b) in the exercise of any power under this Act.”
- Traditional Courts Bill
This is what I believe the DA is concerned about – this part of the bill. It essentially grants the traditional leader immunity from judicial consequences for virtually any bad behaviour he/she may exhibit during disputes heard in traditional courts thus placing his/her ‘subjects’ at his/her mercy. For a bill that seeks to address abuses that ‘were’ prevalent in traditional courts, I find it contradictory that those most responsible for overseeing the fair resolution of disputes are somewhat protected from the consequences of failing to handle their responsibility. This ties back to the issue of one’s security of land tenure in communal areas – traditional courts, in this way, become just another tool traditional leaders may use to withhold patronage from ‘subjects’ who do not please them. Extending the security of tenure act to cover communal land dwellers will help but will not be enough so long as traditional leaders have alternative means to coerce compliance/submission from those who recognise them or not.
To address this, the DA plans to re-allocate communal land from traditional leaders to municipalities. Meaning communal land, under the DA government, is to be governed by municipalities – not ruled by traditional leaders. Traditional leaders’ roles will be reduced to administrative duties which, according to the Traditional Leadership and Governance Act, will revolve around the administration of traditional affairs in line with customs and tradition. This, as part of a traditional council of leaders who will serve to peer-review one another and the senior traditional leader on his/her conduct in his/her administrative duties on behalf of the municipality. The senior traditional leader, i.e. the chief/king/queen, together with other local traditional leaders forming the traditional council, essentially become local government employees serving the local municipality instead of their constituents/’subjects’. The way I understand it, chiefs/kings/queens are meant to be representatives of their people/tribe thus are held responsible by those people directly; with this setup, they are accountable, not to the people but the local government. They represent the local government – not the people.
My problem here is that traditional leaders will then be disincentivised from working in the interests of their people; as government employees, their employer is the one in whose interests they now work – in fact, they do not have ‘their people’ anymore. I do not see the difference between this and community leaders joining political parties – who do you work for then? The community or the party? I strongly believe you cannot do both since that would be serving two masters and you know what is said about that. Also, this approach does not eliminate the corruption, by traditional leaders, it is meant to; as being further integrated into government bureaucracy, traditional leaders’ ability to abuse processes for their gain is arguably strengthened. Most government corruption is not, in fact, government corruption; it is corruption by a few colluding government officials and, considering the government is currently rife with such activity – I ask: how does simply absorbing traditional bureaucratic structures, also already corrupt, mitigate their corruption? This, to me, looks more like the centralisation of corruption.
Provision of Land for Settlement Act 1993
The second way in which the DA plans to better protect communal land-dwellers’ security of tenure, alongside that of all other citizens, is to designate and develop state/private (expropriated or volunteered) land for settlement as it sees fit under the constitution. This, following the Provision of Land for Settlement Act 1993. This act enables traditional authoritarian structures in communal areas (called self-governing territories) to be co-opted or even outright overruled by the government. As mentioned in the first plan the DA is to implement to this end, under this act, municipalities will be able to designate and develop land for settlement purposes; they may delegate traditional leaders in communal areas to get this done.
As it currently stands, the security of tenure act exists to protect the human rights of any individual as they pertain to his/her residence on land owned by him/her (or not) and/or of those of others residing on his/her land. You cannot simply evict someone (an occupant) from your land on a whim (or evict him/her unfairly); you must follow a procedure that ensures you are treating that person with dignity as you negotiate to get him/her off your land. This involves declaring to them, your intentions to get them off your land and giving them enough time to prepare to leave, i.e. make all the necessary arrangements regarding where he/she may go. This also applies if the roles were reversed (i.e., if you are the occupant). For landowners, this act protects them from potential abuses by occupants, e.g., destruction of property, lack of fiscal responsibility for lease agreements etc. Now, while reading this act, my understanding of what a land occupant is was based on my prior exposure to political rhetoric around the issue of land expropriation in the media. I understood an occupant as an invader, who, within the scope of the land expropriation issue, was supported as justified by the EFF and vilified and rebuked by the DA amongst others.
Treg.com defines an occupant as one who resides on land but is not fiscally responsible towards a lease for that residence – one who is not a tenant but resides with the consent of the landowner without any form of contractual agreement such as a lease. As a result, an occupant does not have security of tenure as it pertains to eviction from the land. A resident, on the other hand, resides on land as a tenant, fiscally responsible towards a lease – so a person who must pay rent. This act defines an occupant (occupier) as a person who resides on land owned by another, who is not employed by the landowner and who does not use said land for business/commercial purposes. Since we’re dealing specifically with what this act entails, I will consider an occupier as anyone who resides on land owned by another, with/out consent, tenant or not in his/her personal (as opposed to business) capacity.
My understanding is that anyone who resides on land with/out permission from its owner can be evicted only via processes guided by the law thus overseen by the courts. Once anyone has resided on private land (excluding private land related to state-directed use) for one year, their residence on that land can be legally considered as consensual on behalf of the landowner (not that this matters since, regardless of how long they’ve resided on the land, those legally guided eviction procedures would still need to be followed whereby the court would make the final decision on what is to be done). So, I wonder whether a landowner has the right to deny the consent for another to occupy his/her land – whether this right would supersede the other’s right to residence.
As mentioned earlier, ‘illegal’ land occupations are regarded, by the DA, as an example of land pressures exerted by the urban poor on urban areas – I agree. However, based on our discussion on the security of tenure act, is there such a thing as an illegal land occupation? Or, does the DA simply mean land occupations without consent? I ask because, to me, residing on land without consent does not seem to be illegal since, if I can do so for a minimum period of 12 months, that consent is automatically given to me by the law, not the landowner – whether/not the landowner agrees. Then, to evict me, that landowner would have to follow legal procedures. Landowners seem to be at a disadvantage in this case. Also, there are clear guidelines on how to evict someone from your land, but I am yet to see the same, equally enforceable by the courts, on how to reside on another’s land. I am aware of contractual agreements such as leases and a landowner’s consent as tools in this regard but I feel that these procedures around gaining access to residence on another’s land are not enforced to the same extent as eviction procedures.
What is interesting to me here is that this act seems to exclude all township-situated land, meaning: that the rights afforded to landowners and land occupiers in this act, do not apply to all people owning/occupying land in the townships. Township landowners and occupiers seem to be covered under the Rental Housing Act No. 50 of 1999; under this act, the Gauteng Rental Housing Tribunal (GRHT) was established to resolve disputes between land occupants and owners. The tribunal essentially functions like traditional councils in traditional courts: it holds hearings to resolve conflicts between stakeholders in land occupancy issues. As I see it, this act is not limited to townships and rural areas.
Tenure Subsidies – Developing Farm Land
The current government does offer grants, formerly known as subsidies – now called “tenure-grants” for the payment of land and its development. The way I see it: that subsidy is paid to a contractor via the tendering process for developing land for its future occupants. This is like what we have already seen being done via past RDP housing projects. The way the Security of Tenure act words it, I do not see it entailing that sums of money are paid directly to individual land/housing recipients. Even so, as it is under the ANC government, land recipients, for agriculture or residence, will receive support from a DA government via subsidies and training (training as not currently offered under the ANC government). Potential agricultural land recipients will be required to obtain certain skill prerequisites before acquiring their portion of land; this, to ensure they know how to use said land optimally and contribute to the country’s food production hence security. They will access the land to farm under the supervision of the DA government until they complete their training, and the farm is confirmed as a self-sustaining business. In addition, the training will emphasise vertical integration coupled with government intervention to encourage value-added production takes place as close to farms as possible so operational and logistics costs are minimised. Agricultural support services will also be required to undergo much-needed training to ensure the level of service they provide farmers are adequate and competent, something the current government, according to the DA, has overlooked.
This will heavily depend on support from the private sector which will be expected to privatise most of the services offered by the DA government in this regard – from training/education to value-added production-focussed agri-businesses. The DA government’s intervention is simply meant to jump-start a new trajectory of activity for the agricultural industry wherein its participants, for the most part, regulate themselves within boundaries established by legislation. Participants will be free to engage one another in profitable ways which will grow the industry not only economically but also technologically. A trajectory not hampered by government corruption and incompetence since certain measures that will assist in calling those out will be implemented. These include the land reform process’ digitisation and privatisation – exactly: vetted and registered private companies will be allowed to identify potential land for government reform via newly digitised processes.
Being driven primarily by profit, I am not sure whether greater private-enterprise involvement will discourage corruption. That, considering my ill-informed perception that the nature of public sector corruption is in that sector’s relationship with the private sector. I mean, how would they deal with the private sector’s tendency to overcharge for government projects? The DA government’s vision, I argue in this regard, further solidifies this relationship. The DA plans to deepen its dependence on the private sector in this way by increasing its land reform budget to allocate a portion of it as a fund from which land recipients can borrow/loan to purchase privately owned land for redistribution purposes; they will be expected to repay those loans albeit at “very low” interest rates.
Land Restitution and Redistribution
Wow – just wow. Looking at this from a land redistribution point-of-view, this is simply shocking to me; in fact, this point of view is very similar, if not the same, to that of land restitution. Both seek to redress social inequality – restitution on the understanding that said inequality is the result of past injustices and redistribution on the understanding that the continuation of said inequality must be stopped. In either case, I argue, said inequality is the result not only of past injustices but also ones both systemic and systematic that, from the past, persist today. Having those disadvantaged by past injustices pay to gain access to that which is rightfully theirs – their place at the table as citizens of this country is troubling to me. Capitalism seems to run deep within the DA – a little too deep in my opinion.
There must be a time when all political past injustices are dealt with; a time when all agree that both sides of history are then equalised – neither owes the other anything else. The DA believes that our government should set a target for such a time. Set goals to ensure that all who have chairs waiting for them at the table, claim them by that set deadline. Only then, can the country move forward together and focus on future prosperity for all. For as long as this issue is not permanently put to rest, it will continue to be a divisive obstacle that distracts us from the country’s potential future. On this premise, the DA speaks on the issue of land restitution: stating that one deadline (1998) for claims submissions has already been overlooked and that both sides are disadvantaged by the hampered economic development as a result of enduring insecurities on land ownership in the country for as long as this issue persists. Government must be decisive and set a clear and immutable deadline; those who know their family/community history must submit their claims by then so they can take their seats and everyone at the table can start eating. This will require progress in this regard be tracked, which is a process easily assisted by technology thus digitising it is an obvious direction according to the DA.
The Khoi and San seem to be in limbo as far as the DA is concerned in this regard. Their claim to being the “first people” of SA has not been substantiated for any formal/legal recognition and, as I understand, even if it was, the DA may not believe it to be enough to validate, as an exception, their land restitution claims (this is since the 1913 deadline for such claims still stands). The DA is open to continuing work with them on unearthing the answers needed for decisive action – until then, land claims by members of their communities will be, although prioritised, handled as part of the reform process – like everyone else.
So, all-in-all, the DA’s land reform policy is heavily capitalist – based on the willing buyer-willing seller principle. This has been shown by its plans to loan money to potential land recipients in cases of redistribution (I am not sure whether this will also apply to restitution cases). What I imagine is this: redistribution cases, being those wherein the specific land in question is not rightfully that of the potential land recipient, mirror a typical commercial real estate transaction: the landowner is approached and hopefully given an offer he/she can’t refuse, except in this case, that land has been selected by the government for said purpose. So, the government cannot simply move on if the owner is not interested. In this case, the owner does not have much of a choice but to partake in this transaction; the best he/she can hope for is a good offer; otherwise, as previously indicated, he/she can approach the courts if unhappy with the offer – they make the final decision on the value of the land. The DA states that land expropriation is still on the table but as a last resort – for cases in which land is required for “public purposes” (I don’t know why this sounds a lot like “matters of national security”). I would call taking one’s land on an offer one does not like land expropriation – it is still taking land by force. I wonder whether compensation would still be applicable in these cases.
DA Policy on Economic Justice
This year (2021), the DA held a policy conference during which it adopted a Policy on Economic Justice. Reading this policy as well as an older one of theirs that focused on land reform, their position, in the former, seems to have changed slightly from the older, latter policy document which focussed its land reform ideas on the agricultural sector’s commercial and subsistence farmers. While inclusive of its policy on land reform, the DA’s position in its Economic Justice policy is broader in scope as it also follows in the footsteps of the 5th Parliament’s High-Level Panel Report on wealth inequality, land reform and nation-building. Chaired by Mr Kgalema Motlante, the panel was tasked to investigate, identify and assess the impact of all laws, relevant to these three areas of focus, in terms of their effectiveness in bringing the country’s governance outputs closer to our constitution’s ideals; it was, thereafter, to make recommendations on how to improve the rate of progress.
The High-Level Panel Report (HLPR)
Through public hearings in all nine provinces and commissioned reports from experts with whom even small consultative qualitative workshops were held on these focus areas, the panel amassed a substantial amount of information to assess and made several recommendations. For this report, I will be dealing only with their assessment of the state of land reform and the recommendations they make thereof. Note that there is an overlap between the DA’s position and this panel report in this regard: the HLPR also airs its concern on the ambiguity of some of the legislation around land reform but its position on this issue is broader in that it also includes the lack of clarity on the meaning of “equitable access”. This, as part of what it considers a greater problem regarding the lack of a unified understanding of the relationship between land reform’s three areas: redistribution, restitution and tenure security – a problem it deems a major obstacle preventing the constitutional enforcement of relevant laws. It cites the gradual moving away from constitutional imperatives by land reform efforts towards an approach rooted more in state custodianship, otherwise called ‘elite capture’ wherein these efforts turn into a rewards programme for political elites and connected allies. In other words, instead of empowering citizens by granting them access to land and ensuring them secured ownership, the government has been retaining possession of said land and leasing it to “land recipients” (as the EFF would have it) for the benefit of the politically connected.
“In 2006, the Proactive Land Acquisition Strategy (PLAS), initially
complementing and later, from 2011 on, replacing LRAD, saw the state buying land and leasing
it out to beneficiaries, with the aim of eventually transferring it to them in private ownership – though plans towards this second transfer now appear to have been abandoned.”
- High-Level Panel Report, 2017
This “breakdown in execution”, it says, is the result of said lack of understanding due to the segregated legislative approach taken by these efforts to each of those areas. The lack of understanding has also led to oversight mechanism ineffectiveness, particularly by parliament’s role (or lack thereof) in this regard. The solution? A new law, says the panel – one that encompasses all three areas and unifies them via a framework supported on the foundation of the term “equitable access” which it would also define. A framework law that would encourage ethical and transparent accountability to ensure good governance of the land reform process.
My reading of this assessment is this:
“land reform laws promulgated since 1994 have not worked because they have been incompetently/ineffectively enforced which is, in turn, the result of a lack of understanding of those laws by officials since the laws are ambiguous”.
- High-Level Panel Report, 2017
You make up your mind here; I, however, have never felt I did not understand the purpose of the land reform programme. Once I understood that its efforts are founded on the constitution, I already knew what the programme was trying to achieve – a country wherein all had access to basic human rights/necessities and opportunities to reach their full potential. This link to the constitution also automatically clarifies the definition of ‘equitable access’ in my opinion – there is no question: in terms of land, it is considered a basic human right/need and so the story goes.
The panel further argues that this lack of understanding is what has led the officials responsible for administrating the programme to be corrupted. It acknowledges that the current black-and-white oversight mechanisms are not deficient – just their lack of enforcement is to blame. This does not make sense to me: Even if the laws promulgated were ambiguous, the rules on accountability, as part of these oversight mechanisms, alone should have been enough to prevent the gifting of land meant for poorer people to cronies. The recommendation put forward here is the addition of another law; my impression is that the panel, and by extension the 4th and 5th parliaments, believed that solving problems equals the adding of new laws. For this panel in this case, governing seems to be equivalent to throwing laws at all problems land-related.
Social Network Size
I argue that the land reform programme and all its laws were never ambiguous; that what the panel calls a “breakdown in execution”, which I call corruption, was not the result of a misguided interpretation of these laws and that, although all processes have deficiencies which can be improved, those of this programme have very little to do with its failures. I agree with the panel that corruption, i.e. the breakdown in execution is the rot in this system but I see that corruption as natural and, not only expected but fitting. To begin explaining my point, see the quote below relating to one of two arguments I will make:
“The size of a tribe is limited in the sense that we have a limited span of people we can relate to. It takes time to know and recognize other people but to function as an effective unit, it is essential. This limits the group size. We see some of this in monkeys and apes, their groups are limited in size, as they have to spend much of their time establishing and maintaining social hierarchies and pecking order. For humans the group number varies but the median number according to Robin Dunbar is about 150.”
- Ritual: The Magical Perspective
That number: ‘150’ stated above is one established by R. Dunbar as a prediction of the average maximum size of human analogue social networks in western society based on the known proportions of our neocortex (a portion of the brain responsible for our higher functions e.g. language, reasoning, sensory perception etc.). It is called ‘Dunbar’s number’. What inspired this prediction was research on animals’ average maximum social network sizes. Studies found that considering the high attention cost involved in maintaining relations in primate and carnivore groups – animals were limited in the amount of simultaneous active engagements they could sustain. This they also show by exhibiting said limitation in the size of the animals’ neocortex layer of the brain – the bigger the neocortex, the more simultaneous active relations an animal can monitor. So, the animals, in this case, are found to also be physiologically restricted in this regard.
Dunbar’s prediction, although sensible, had to be anthropologically validated, so Dunbar and R. Hill, in their 2002 paper ‘Social Network Size in Humans’, decided to use the western society tradition of sending out greeting cards during Christmas time and a qualitative questionnaire (one that aims to obtain deep and well-thought-out out answers on motivations for actions) as mediums of research. Christmas time, because they consider it an example of a time when the average person makes an added effort to contact those he/she counts amongst his/her identity-group members. As such, those contacted are assumed to be so done because they foster a relationship valuable to the research participants. A questionnaire because validating the assumption of the value of the relationships based on contact via the cards required a detailed and lengthy dive into the participants’ motivations behind said contact.
43 questionnaires all-in-all were filled in and 2984 Christmas cards were sent to network members, their spouses and family members, by participants. Among the findings was found that the amount of contact between participants and their respective network members was the determining factor regarding the closeness of a given relationship. Factors such as distance, nature of relation [that is, colleague/friend/relative (in-law/affinal or genetic)] and age influence that amount as they can either hinder or foster further contact. The point here is that the easier it is to maintain contact with those deemed valuable, the closer the relationship with them.
Two numbers, as average maximum human social network sizes, were uncovered: 153.5 members when counting targets specifically named in those cards together with those closest to them also vaguely referenced therein; and 124.9 when excluding those vaguely referenced. My bias leans to the smaller 123.9 number because, based on the number 134 from Killworth’s 1984 study researching the number of network members an individual felt would do him/her a favour, I agree with Dunbar’s interpretation of it: that it being closer to the smaller number suggests:
“that social networks contain a (small) number of individuals who might be considered peripheral to the core network, but who are nonetheless included because they form part of the immediate household or family of a core network member. Such individuals might not be considered appropriate people to seek favours from and might not themselves be granted support so readily”
- Hill and Dunbar, Group Size
To conclude the above argument: human beings, being restricted by the size of their neocortex, can manage a limited number (153.5/124.9 – depends on how you choose to interpret this study’s results) of meaningful/valuable/close relationships at any given period in their lives. This number is inclusive of all their family members [genetically or affinely (by law) related], friends and colleagues. The strength of each relationship depends on contact regularity which, in turn, is also impacted on by factors such as distance, one’s age etc.
Attachments and Human Development
The next argument I will make in proving my point is in connection with the importance of these relationships for the regulation of human behaviour:
“What does it mean for adults to do the work of attachment? It certainly involves taking responsibility for the relationship with our children and for preserving a sense of connection. We must aim to fulfil their attachment hunger, including their appetites for sameness, belonging, significance and emotional warmth. As we do with food, we must provide more than they seek in order to release them from their pursuit. In short, we must convey to our children an invitation to exist in our presence that is free of conditions.
There is no other pathway to the well-being of children and the state.”
- Dr Gordon Neufeld, Keys to Well-being in Children and Youth
Think of the relationships mentioned in my first point as attachments. The world, and South Africa in particular, is in the midst of a famine – one wherein people are relationship/attachment starved. A hunger that has its roots in childhood during which parents fail to foster deep meaningful relationships with their children. By ‘meaningful’ here, I mean relationships in which parents enable the child’s free emotional and psychological expression while genuinely showing full acceptance and respect of the child regardless of the child’s expressed emotions and mentality. Considering that, as per Dr Neufeld’s assessment, the need for complete and genuinely emotional and psychological acceptance from one’s caregivers as a child is central to one’s well-being; I argue that the majority of South Africa’s populace consists of individuals who are ‘not well’.
Dr Neufeld defines well-being as the extent to which one achieves one’s full human potential. Nowadays, realizing one’s full potential is readily equated with materialistic/financial success, except here, it refers to the extent to which one is equipped to fully express one’s humaneness; that is, the degree to which one has, around one, a social network of people who truly care for one and accept one without terms and conditions. This social network enables one to open one’s heart to the world since it offers one the required emotional and psychological security/love to do so – another important aspect of anyone’s true potential – caring for and loving the world: humaneness. In this sense, most South Africans have a limited capacity to be humane as they lack the required emotional and psychological resources granted by healthy attachments as the social infrastructure they do not have in their lives.
“Childhood is the stage of life during which most of our growing up
should be accomplished.
Unfortunately, immaturity is epidemic in our society.”
- Dr Gordon Neufeld, Keys to Well-being in Children and Youth
Dr Neufeld establishes the family, supported by an enabling socio-political and economic environment, as the only assignee fit to bear the responsibility of raising a child – the point of which is arguably also the purpose of life: to realize one’s own full human potential. It is the family with whom the child is to establish life-long attachments, a process of maturation during which the child undergoes an emotional and psychological journey to becoming an independent, resilient and social human being. Independence, resilience and sociability: three stages of the maturation process which, emotionally and psychologically, equip a child to discover and express him/herself as an entity; the process also includes encounters with disappointment from which the child is to learn to overcome it as well as practice balancing his/her interests against of those close to him/her and the world at large. It is accurate to equate the degree to which one is humane with that to which one is mature; like humaneness, maturity is a measure of well-being.
These attachments, which facilitate the maturation process, are likened to a womb-like environment the point of which is the development of the child’s emotional and psychological capacities. A baby develops from a foetus to be born of a woman’s womb; then he/she becomes a child: the psycho-emotional foetus version of an adult which is yet to be born, through the maturation process, of his/her social womb; born again as a human matured: full of love and duty to give to society at large in service of his/her attachments. Isn’t this what is expected of government officials? To serve a greater good? To serve the many strangers with whom they share the identity of citizen? Government service is a call for one to care for those to whom one is not attached thus whom one does not know hence for whom, under normal/natural conditions, one should/does not care. Only those born again as matured, humane human beings will have the ability to offer this type of love because they can do so only from their self-expression as members and representatives of their social ‘clans’.
As humans, the only way we connect to the world is through the connections we share with those who raised us; these connections shape the way we see and react to others with whom we share society. For us to act/react positively – our personal connections are required to be deeply and genuinely positive because it is from that positivity we will need to draw that which we show to the world. So, the positive/loving thus mature regard we are meant to have for all that falls outside of our personal connections, although natural, is not our default inclination – it is farmed through years of maturation. Dr Neufeld identifies two natural defence mechanisms: shyness and counterwill which, together, sum up our default stance. It is significant to me that, by natural law, our automatic response to those to whom we are not attached is hostile – regarding them as enemies from whom we must defend ourselves by being shy and expressing our will as counter to theirs. Being mature involves using the abovementioned lens to overcome this natural defence stance when dealing with the outside world.
Shyness is defined as the reservation of one’s inner love (pooled from years of maturation) only for those closest to one. So, the purposeful holding back of one’s positive emotions from ‘strangers’ so one is not friendly to them. This is not to say that one is unfriendly but that one is not friendly and more akin to being neutral or not caring for the well-being of a stranger. Counterwill: the consideration of one’s own will as oppositional to that of strangers; in essence the placing of oneself as not friends with strangers. I would argue that shyness is an emotional predisposition towards strangers while counterwill is more of a psychological one. Both these mechanisms form a natural protective barrier around an individual to ward off unwarranted influence; that is, influence from those who have not invested in one’s well-being. This defensive behaviour is necessary for children but fully grown adults? Not as much. I mean, adults should still be wary of strangers but less so if they have been born again because, on the most part, they will be protected by their deep personal connections from the damage caused by disappointment if those strangers let them down.
With many South African adults not being well, they lack the influence barrier thus lens with which to overcome these defensive mechanisms. As a result, most of them do not care for the well-being of their fellow citizens, not in any way genuine. Their maturation process is not complete hence most of them remain immature, seeking to complete the process by other means.
“A frequent response to facing too much separation is to transfer the attachment to others or to things.”
- Dr Gordon Neufeld, Keys to Well-being in Children and Youth
Materialism, ideology, gangsterism and general corruption become the symptoms of this nationwide famine. People establish new connections not through but despite those they have with others closest to them. These new connections, with friends and colleagues, are used by adults as a way of entering new cultures in the hopes one of them will accept them genuinely and wholeheartedly as their home culture should have. I.e. adults are wandering around South Africa as aborted psycho-emotional foetuses involuntarily seeking those who will raise them. They find cliques in the workplace (and other social spaces, but for the purposes of this HLP-report analysis) to which they devote themselves in return for continuing the maturation process, thereby placing these cliques as more important than all else in their lives.
Consider government officials now making friends of colleagues in the office. Due to the above-mentioned purpose for which he/she seeks these connections, he/she becomes more loyal to them than to the purpose of the job, i.e., than the public the job is meant to serve, as part of the maturation process. Enter opportunities for corruption; that is, acting in the interests of the clique at the expense of the public good. Corruption is usually an endeavour by a group of associates since it often requires the involvement of multiple areas of an organisation’s supply chain. The qualities of a good person include taking care of those most important to you, those closest to you and those for whom you care. Being a good person involves placing their interests before all others so, from his/her perspective, he/she is being a good person. In this sense, corruption becomes a matter of perspective. The public does not appreciate it for obvious reasons but his/her new ‘family’ offers validation and acceptance, thus deeper connection, in return for acts of loyalty. As established in my second argument above, the connection is the driving force behind human behaviour; asking one not to show loyalty to their close connections in the name of espousing the values of a good person is a paradox.
Going back to the HLP Report’s indication of a breakdown in execution in the government’s land reform programmes being the result of a lack of legislative understanding due to relevant laws’ ambiguity, the two arguments I’ve stated above together sum up my point: this breakdown is a symptom for the actual problem – the Department of Rural Development and Land Reform is oversized. As a result, its employees have grouped themselves into ‘factions’ due to physiological limitations on the number of people each one of them can relate to simultaneously. On these newly established connections, the factions invariably develop their identities/cultures thus visions and missions – all of which replace those that are meant to be upheld by the department as a whole. So, the department is no longer a single entity with a vision, mission and culture, it has become a group of social networks competing for resources taken from the department’s overall budget and power/responsibility for facilitating equitable access to land. It is not that these networks do not understand the laws as they apply to their specific land reform responsibilities, it is that they disregard those laws in favour of their own unwritten but established values. In ‘being corrupt’ faction members are simply endeavouring to earn and maintain their place in their ‘families’ by acting in their interests – this sadly conflicts with the actual purpose of their position: to serve the wider population of strangers.
Try applying this logic to political parties in parliament – who do members of parliament actually serve?
“Effective Parliamentary oversight is dependent on Members of Parliament acting in the best interests of the people of South Africa without fear, favour or prejudice. In that context, the Panel has considered the role of the electoral system in moderating the extent to which the public are able to hold their representatives to account.”
- High-Level Panel Report, 2017
As per my point above – asking members of parliament to dishonour the deep connections they’ve cultivated over years to be considered trustworthy enough to represent their party colleagues in such high positions is simply unreasonable. Serving ‘the people of South Africa’, people they do not know thus with whom they have no connection when doing so goes against what their social networks expect of them in return for continued emotional and psychological sustenance is laughable. It simply goes against the very fabric of not just being a good person but being a person at all. Parliamentary members are in parliament to represent their parties (social networks) not the wider South African populace as dictated by my point.
Understanding human nature is central to the solution. The panel recommends that ways of deepening the relationship between constituencies and their representatives be uncovered as these deeper connections will enable direct accountability between the two. I agree with this recommendation as its spirit corresponds with my point, but I feel it does not go far enough. What must furthermore be done is to localise parliamentary power, bring it as close as possible to the average person on the street. Enable communities to take responsibility for their own legislation and public services – decentralise as much as possible; imagine everyone had local parliaments responsible for all matters in their respective communities, parliamentary members that lived with them, whose houses to which they could walk and with whom they shared the local spaza/grocery store. Having all people occupying positions of great responsibility close to their constituents would do wonders against inefficiency/ineffectiveness and corruption as the social networks to which these people belong would primarily be comprised of their constituents.
Democratic Bantustans
Considering that this idea runs counter to the natural inclination of a centralized government: that towards increasing the concentration of power, the panel, in avoiding it, rather prefers local stakeholders are invited to participate in an already bureaucracy-heavy system thereby becoming an additional efficiency chokepoint; this, to assist the local arms of centralized government to manage land rights accessibility. The system, where applicable, is to take into consideration customary law procedures as it aims to digitally manage records on people’s access to land. This is essential to ensuring security of tenure not just for the individual land recipient but also his/her family. This digitization of land reform’s record-keeping, as part of the panel’s recommendation for a Land Records Act, is regarded as a solution to other corruption-related inefficiencies in the implementation of land reform programmes; one of them reflecting the colonial and apartheid grouping of ethnic identities into tribes via geographical placement i.e., the bantustans/homelands.
Post 94, land reform’s take on this ‘geographical inequality’ is in its reformation of tribes; this time, not based on ethnic identity but on, alongside race, the right to access specific plots of land. This time, not to benefit whites at the expense of people of colour (with specific reference to blacks) but to benefit the elites at the expense of the masses, specifically the poor. Aligning with land reform’s shift from constitutional imperatives, this ‘democratic’ take on modern bantustans included opaque processes in which land claimants would be grouped into communal property associations (or CPAs) as overall owners of a large plot of land; this, without being properly documented concerning each individual’s claim to a respective portion of that land. My understanding, here, is that the CPAs are trusts established and controlled by the government, the land is a commonage owned by them and its recipients: the trusts’ beneficiaries and, until their respective portion of land is allocated – its tenants. Adding the lack of political will, a general sense of complacency to get what needs doing – done and the deliberate undermining of their constitutional rights, which are not even acknowledged in the CPAs founding documents, claimants remain stuck in communal property groups without real ownership of their land.
Having understood CPAs as a mere steppingstone to complete individual land ownership, it surprises me to notice a focus in the HLP Report’s recommendations regarding redistribution on, not fulfilling the original purpose by allocating the portions of land in question, but the fact that, to preserve these trusts, their beneficiaries’ ownership rights be included in the CPAs’ founding documents. Meaning, land recipients’ right to the ownership of land is to be acknowledged in these documents but they are not to be afforded that right individually. Whether they like it or not, their right will be ‘safeguarded’ by CPAs’ custodianship over said land, giving the CPAs owner-like control over its use. So, land claimants under these circumstances must now focus on adapting to their reality as tenants on government-controlled land and shift their attention onto ways of managing its administration, e.g., land-use determination, user right allocation and confirmation as well as administration systems and structures. In this regard, Parliament has failed all of us and S.A.’s constitutional future-vision since 1996, as that is how long (as of 2017, when this report was published) parliament has been postponing the allocation of said land due to, as they have indicated, legislative deficiencies, is no closer to reach.
Those who are against land expropriation without compensation would be displeased to learn that the panel places, amongst its highest priorities, the expropriation of land well-situated near urban areas for redistribution; with the most exposed being landowners of such land who hold it for speculative reasons. This is an effort to reverse the apartheid prejudice of people of colour via geographical placement thus enable the previously disadvantaged to better access opportunities in the core economy. The panel also implies that government has land it could use for this purpose as well, citing better use of the Government Immovable Asset Management Act no. 19 of 2007: legislation whose purpose is explained in its name – the management of immovable government assets. This recommendation echoes the DA’s policy on land reform, albeit with more explanation, which, as mentioned earlier in this document, placed most of its focus on agriculture and rural communities. It is not clear to me that expropriation, in this case, refers exclusively to that without compensation, I thus assume the normal redistribution procedure, also mentioned earlier, applies.
Security of Tenure
“The most urgent task in the current context is to provide meaningful protection to vulnerable groups faced with external mining or other investment deals that will negatively impact on their land rights. Such rights-holders must be properly consulted, and their consent obtained for others to use the land they occupy and use. If they withhold their consent, the investment company must be required to apply to court for the expropriation of their rights, and the court must then balance the interests of the rights holders with those of the investment company within the parameters of Section 25 of the Constitution.”
- HLP Report, 2017
One question that comes to mind here, with what has already been expressed on the issue of security of tenure as one of the constitutional rights concerning land reform, is: just how strong is one’s claim to this right? From the above quote, I understand that in the context given, the strength of that claim is weighed against the potential revenue resulting from the mining activity. Therefore, the higher the amount of money to be made, the more likely It is that the community’s claim to security of tenure on land already legally owned by it will be overrun by that of the company. Does this not reek of the potential for corruption? To me, it does as it places the constitutional right up for auction. I say this because the rights of the community are weighed not against those of the wider national community concerning the revenues generated being used for government purposes in serving the population – no, they are weighed against those of the company itself. Meaning, the company takes to court the community to take its land, legally, for its financial gain. Even though the taxes paid on those revenues will be used for government purposes, this does not mitigate the unfairness of what’s explained here: the panel recommends that private interests be given, by law, the ability to have their claim to land, not owned by them, considered for expropriation for the private company’s immense financial gains and, in turn, those of the government via taxes; that is, discounting the possibility of corruption. The constitutional justification just is not there. So, I believe that, after attaining the beneficial occupancy status due to a 3-year settlement of the land, the community should also have an opportunity to gain an even higher status: ownership, by staying for a period beyond that on the land.
In line with the DA’s previously mentioned position on security of tenure, the panel pursues said protection for labour tenants: people occupying land belonging to their employer for their employment, by seeking amendments to the labour tenants act. As I understand it, labour tenants are eligible to acquire ownership of a portion of their employer’s land-based on how long they have been resident on it (also called the 50/50 policy):
· 10 years – 10% portion of the land
· 25 years – 25%
· 50 years – 50%
This is all well and good but, as the panel has noted, the labour tenants, when initially employed, may not have been able to select the portion of land on which they were to reside – it may have been selected for them by their employer as per a use-case most beneficial to the employer (as one would expect). So, the portion of land they end up acquiring for themselves may not be as useful to them as other portions of the land for their self-sustenance. The panel recommends that they (being the specific employee together with his/her immediate family) be given the right to select whichever portion of land they desire considering that it is expected that they would then select, for themselves, land with a use-case that would maximise their future prosperity. Considering the difficulty of evicting them once their contract has expired, adding this right would practically make labour tenants co-owners of said land once, after their employment is established, they have begun settling the land. I say this because, leaving aside their term of employment, the process of evicting them, which I assume would be initiated before any of the above-mentioned year-term ownership milestones are reached, first involves giving them enough time to consider where they may go; this, alongside the time it takes for the court process to reach a decision, will accumulate more time towards these milestones. If, in the meantime, one is reached, how does one evict another off land the latter co-owns?
A second question I have, here, pertains to the 50/50 policy: based on the breakdown, a labour tenants seems entitled to 1 % ownership of the land per year of residency; so, if his/her employment contract is terminated on the 9th year of residency, will he/she be entitled to 9% ownership? If not, then as the many criticisms, also noted by the panel, have expressed, this policy could be abused via the pre-emptive employment termination and eviction of resident employees to avoid their eligibility to claim ownership of the relevant portion of land.
The DA is a party whose position on land evolved from its initial narrow focus on agriculture as well as rural and communal areas to a broader take inclusive, also, of a more thorough attention to urban land challenges following the HLP Report. Three areas of land reform: restitution, redistribution and security of tenure, remain the epicentre of its activities to equalise, constitutionally, access to land for all and the unfortunate in particular. My concern with the party, however, is their obsession with the capitalist market approach to solving this land-access inequality problem. Their approach, I argue, would effectively privatise the land reform process by having their government become dependent on private contractors to implement and maintain it. Not to mention a similar tone taken by the HLP Report: the foundation of the party’s most recent update to their position on land reform, when placing the right to conquer financial frontiers above that to access and keep land. The party seeks to mitigate some of this approach’s disadvantages by providing a ‘safety’ net for the poorest, ensuring they have equal opportunity to get off the economic bench and ‘play the game’ so-to-speak.
A free-market approach does have its benefits, but I am not convinced it will work; mainly because all-in-all, the DA’s government will not be that different from that of the ANC – it will remain a highly centralized, ineffective behemoth whose only approach to resolving everyday citizen problems is to throw more legislation at them. The ANC government has attempted to nationalise all our needs; the DA government seeks to further privatise them. Depending on either the private sector or government will lead to the same result – dependency thus functional delinquency. Community members need to come together and become functioning communities again – provide for their own needs and not be reduced to be recipients of government or private industry programmes. The market and government should be merely tools used by communities within their own socio-economic and political programmes. You should think on the issues presented in this document to develop your own perception on the DA’s position on land and whether it bodes well for SA’s future.
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