CENTRE FOR RURAL LEGAL STUDIES (CRLS)

SUBMISSION:

THE PORTFOLIO COMMITTEE ON AGRICULTURE AND LAND AFFAIRS

THE PACE OF LAND REFORM

October 2004

1. Introduction and profile of the CRLS

The Centre for Rural Legal Studies (CRLS) an NGO, was established in 1991 and is committed to the redistribution of resources in the rural areas of the Western, Northern and the Eastern Cape Provinces. CRLS together with farm workers and their organisations focus on land and labour rights of farm workers, through our legal support to farm workers, rights education and training of farmworkers, advice offices and trade unions, and participatory research that informs legislation, policy, and service delivery.

The CRLS believes that over and above land reform playing a critical role in the process of transformation and addressing the need for restorative justice by returning to people the land that they were dispossessed of, land reform also has a potential to impact significantly on improving the rural livelihoods of many South Africans. Accessing land provides a way out of poverty for large numbers of rural poor through providing them with a means of meeting basic food needs and boosting their survivalist incomes. Land reform alone cannot eradicate the deep-rooted problems of rural poverty, inequality and underdevelopment, but it can, if combined with a comprehensive programme of economic investment and development, play a central role in the improvement of rural livelihoods. For these reasons, the current slow pace of land reform should not be allowed to persist unchallenged.

At the outset, CRLS wishes to emphasise that simply increasing the pace of land reform will not serve to remedy the inherent problems manifested in the implementation of the various land reform programmes – the answer to the slow pace should not be sought in a "fast-track" approach, but rather in developing a more systematic, planned and integrated approach in which community members participate and for which appropriate resources are allocated.

2. Comments on the current pace of land reform

2.1 Shifts in the intentions behind land reform and its stated target group

With the passing of the new Constitution of 1996, the state was empowered to introduce and implement a comprehensive land reform programme – constituted by three main arms: restitution, redistribution and tenure reform. The programme was premised on an application-based and demand-led programme based on the market-centred principle of the willing buyer/willing seller.

Initially the identified target of land reform was the ‘poorest of the poor’, and landless or land-hungry rural and urban dwellers, with a specific focus on farm-dwellers, farm workers, labour tenants, restitution claimants and women and youth within each of these categories. However, while this is still the espoused target group, over time and since the beginning of the 21st century, with a change in the orientation of land reform arising from the advent of the Land Redistribution Agricultural Development (LRAD) programme, the budget allocation and the application of the scope of the target has been narrowed and has been re-oriented towards developing a middle-class layer of black commercial and semi-commercial farmers, with an increased role for white commercial farmers, the private sector and agri-business in the land reform process through arrangements such as joint ventures, contract farming and share equity schemes.

The Reconstruction and Development Programme states, "The RDP must implement a fundamental land reform programme. This programme must ... aim to supply residential and productive land to the poorest section of the …population and aspirant farmers." It goes on to say that the land reform programme must aim to redistribute 30% of agricultural land in the first 5 years.

2.2 What is the current delivery rate and pace of land reform?

The delivery track record for the first decade of land reform has proved to be dramatically different to that of the initial 30% target for the five-year period from 1994 to1999. When it became clear that these targets would not be realized, a policy re-think took place in 2000 under the new Minister of Land Affairs, Ms Thoko Didiza, and the state’s target was revised to 30% of agricultural land in the next fifteen years, from 2000 to 2015.

By mid 2003, 2.3 million hectares had been transferred through all the land reform programmes. This equates to approximately 2.7% of agricultural land. The current estimate in 2004 is approximately 3%. The Programme for Land and Agrarian Studies argues that in order to reach the 30% target by 2015, delivery would need to be increased by at least five-fold. If we continue at the current pace and with the current budget allocation, it will take about 100 years to meet the land reform target of 30% of productive land being transferred.

2.3 Are higher rates of delivery possible?

Experience from other countries has shown that higher rates of delivery are possible and thus suggest that the targets set in South Africa are not necessarily unrealistic. In Brazil, a country which also has a highly unequal distribution of land, the state was able, in the space of only two years during 1995 to 1996, to redistribute over three and a half million hectares either through expropriations or purchased acquisitions. South Africa has not yet reached this figure after nearly a decade.

2.4 What are some of the reasons for this slow pace?

Given the number of landless people, the persistent land hunger and the negligible rate of delivery in South Africa, one can only deduce that there are deep-seated problems arising from the way in which land reform has been conceptualized and reinforced by problematic implementation mechanisms, under-pinned by a lack of political and administrative will to ensure that land reform is effective.

What are possible causes for the slow pace of land reform?

Market-based land reform

In accordance with the macro-economic policy of the Growth, Employment and Redistribution programme (GEAR) adopted by the South African government, the land reform programme is premised on market-based principles and is reliant on willing sellers making their land available for land reform purposes. In the event that the number of willing sellers is insufficient or that they are not prepared to transact land for land reform purposes – frequently due to racist or other discriminatory attitudes -, the entire land reform programme is undermined and stalled. The land market has been shown to be an essentially internal one that allows minimal access to information and consequently, very limited access by land-seeking rural people. This is compounded by negative attitudes on the part of many landowners and sellers - as a result, the ownership patterns and land concentration profile has not changed significantly and very little land has been acquired by landless people.

The interests of investors, speculators, banks and financial houses

Noting that banks and financial houses effectively own or have shares in large tracts of real estate in South Africa, the state, in a bid not to alienate foreign investors, big capital and financial houses, has avoided embarking on a whole-sale and redistributive land reform programme which would threaten the interests of these sectors. The pace of land reform has thus been contained and kept to a manageable level in order to not unsettle these investors, speculators and financiers.

Lack of resourced, responsive and integrated institutions

The failings of the land reform programme highlight the lack of a coherent, comprehensive and integrated strategy that includes all arms of land reform. This is compounded by a lack of appropriate staffing and co-ordination across the different departments, levels and spheres of government. While local government is the locus of development delivery, it lacks capacity, resources and the wherewithal to effectively respond and implement land reform and other development activities. The net effect is that the land reform process is inhibited and undermined and the pace is slowed further.

Even in instances where stark problems are highlighted and brought to the attention of the state, it would appear that the government and department of Land Affairs remains immune to criticism and to necessary subsequent action and improvement, as evidenced by the Grootboom case which elicited wide public attention but which has had little effect in terms of improving the situation for those living in the Wallacedene settlement.

A lack of political will and compassion

The current slow pace and lack of resources allocated to land reform strongly suggests a lack of political will and the prioritising of land reform on the part of the state – rather than a proactive response that reflects concern and compassion for the landless in a bid to support them in the progressive realisation of their rights, a bureaucratic and technicist response if prevalent. Linked to this, the state has avoided utilising more proactive and interventionist land reform mechanisms – such as the use of the Constitutional provision of the mechanism of expropriation – for fear of alienating the interests of landowners.

An administrative and technicist response that excludes people on the ground

Much of the way in which land reform is implemented is based on a departmentally pre-determined project cycle that suggests a "one size fits all" approach to development. The project cycle is fairly lengthy and bureaucratic and consumes time and energy. It is open to delays and in many instances has been applied in a formulaic manner that is unresponsive to the needs of both willing sellers and buyers.

Even though the approach is supposed to be "demand-driven", the ordinary people on the ground have very limited input in terms of shaping and determining land reform and its resultant projects. Land reform has been conceptualised in such a way that development becomes "projectised" and is accompanied by a set of checklists that need to be completed. In the process the people who are supposedly at the centre of land reform become marginalized and invisible. Ultimately, due to a lack of involvement and therefore sometimes, a limited understanding of the process and its requirements, communities become disaffected and lose interest. The net effect is that they do not adequately engage with the process and do not bring pressure to bear in such a way that officials are kept on their toes and that projects are implemented in a people-centred, efficient and democratic fashion. Experience from Brazil, where communities are integrally involved in land reform processes, illustrates ways in which the pace of land reform is improved with community participation and social mobilisation.

Budget allocations for land reform

The allocations to land reform in general have always been less than 0.5% of the total budget. This miniscule budget has been explained as being due to the lack of spending in the Department of Land Affairs. However, given this persistent under-spending, the government has not addressed the problem but has allowed it to continue and conveniently offered it as a reason for the lack of land reform funding. This lack of adequate budget allocation has repeatedly led to moratoriums being placed on land reform project applications and has consequently retarded the pace and scope of land reform.

In 2002 in the Western Cape, during a participatory process led by the Provincial Land Reform Office it was estimated that a total of R1,5 billion per year is required to buy land in the Western Cape alone, in order for the province to meet its 30% target. However, national land reform budgets have historically been in the R2 billion range. The Western Cape has some of the most expensive agricultural land in the country, and in the context of the willing-seller/willing-buyer approach and the payment of market value for land, significantly increased budget allocations will be necessary if the pace and efficacy of land reform is to be improved.

A bias towards Restitution

While Restitution remains an important component of the land reform programme, the emphasis on it is viewed by many as being at the expense of more redistributive forms of land reform. In particular, the budget is allocated in favour of settling restitution cases as opposed to acquiring land for redistribution of tenure reform. Funds for buying land in the redistribution and tenure reform programme have been reduced in this financial year. The increase in the Land Affairs budget during the current financial year has mostly been allocated to Restitution. This is in line with the President’s call to complete the restitution process by 2005. The contribution of Restitution to the overall target of redistributing 30% of agricultural land is in itself not particularly significant. The bulk of Restitution claims are urban claims and have been settled through financial compensation as opposed to land restoration – this has had little impact on the profile of landownership in the countryside and has done little to increase the pace of land reform for rural land-seekers.

2.5 The effect of the current pace

Frustration and repression

The current slow pace of land reform is leading to frustration in a number of quarters. Landless people, as evidenced by the emergence of the Landless People’s Movement, as well as rural people who have not joined the ranks of any formalised grouping, are showing signs of growing increasingly frustrated and angry by the lack of progress and the slow pace of land reform. These levels of frustration may or may not prompt people to organise themselves and formally articulate their concerns. It is also not guaranteed that leadership will emerge to guide the actions of desperate groupings of landless people. In the absence of leadership, the actions of communities will not necessarily be co-ordinated and may remain random and unanswered. It is of concern that when frustrations spill over and result in community action or land occupations, the state will probably react in a similarly harsh and repressive manner as witnessed in response to the occupations in Bredell and Diepsloot.

Land reform being discredited

The slow pace is serving to discredit the land reform programme in the eyes of landless people, landowners, land sector agencies, investors, financial houses and credit institutions. In a number of instances the Department of Land Affairs’ procedures and the bureaucratic delays are causing the few progressive willing sellers (who are prepared to sell land for land reform purposes) to lose interest and patience and to opt to sell their land to interested private, and usually white, buyers.

 

3. Recommendations

It must be emphasised that the answer to the slow pace is not necessarily to simply "fast-track" land reform – other endemic problems need to be acknowledged and addressed. There is still a need to be thorough and to work at an appropriate pace with communities and to encourage participation and engagement. Having said that a "fast-track" approach would not be appropriate, at the same time it is suggested that the complex procedures involved in land reform programmes could be streamlined and that elements of bureaucratic apathy could be overcome – this would require that the approach to land reform be reviewed and specific factors and processes be considered and put in place.

The following are proposed in a bid to improve land reform:

A planned approach

The current land reform delivery approach is based on a project-by-project approach. This soaks up available staff and does not allow for an efficient and effective use of time and resources. It is suggested that a more coherently planned approach - area-based or district planning – be considered. This approach maximizes and promotes the identification of and links between districts or specified areas of land need and opportunity. The kernel of this area-based approach considers a number of key elements. Rather than the ‘projectisation’ of land reform which tends to deplete available resources and personnel, this approach emphasizes district-wide or zonal planning for infrastructure and service, especially in relation to post-transfer support. In order for this to take place, it is essential that planning for land reform is made central to the development of integrated development plans (IDPs) undertaken by local government structures. As part of this process these plans need to be linked to the broader imperatives of all arms of land reform. This requires integrated planning and implementation at all levels of government and across all arms of land reform - redistribution, restitution and tenure reform. This approach would allow for local level participation and management and promote the acquisition and transfer land in response to specific localised land needs. In areas where land need and interest have been identified, and where no land is available on the open market, the DLA could be proactive and make offers to farmers rather than waiting for farms to come onto the market. In addition, the mechanism of expropriation could be considered in such situations.

A district or area-based approach further maximizes the level of beneficiary participation that is possible. In order to optimise beneficiary participation in the process of buying land, beneficiaries should be identified on a district level and their individual and specific needs responded to – be they the need for agricultural land or land for settlement, amongst others. Those individuals that are more interested in security of tenure than in agriculture should be identified and provided for under specific programmes or the local government and housing programs with support from the commonage development program for their subsistence farming needs.

Government as a proactive player – purchase, expropriation and sub-division

It is suggested that rather than leaving land reform to the vagaries of the land market, government should play an increased and more direct role in land reform in order to address the needs of society. In response to the land needs of communities, Government could become a proactive land buyer, make use of its Constitutional powers to expropriate land for land reform purposes, and facilitate and make sub-division easier and cheaper.

Making the land market more pro-poor

A constant refrain is that there is no land available for land reform purposes. However, there are a number of inter-linked interventions that could serve to increase the pace of land reform by placing more land on the land market and thereby hopefully allowing for a more equitable distribution of land. These include the following:

Land ceilings

Legislation does not currently exist to limit the amount of land or the number of farms that can be owned by an individual and does not place limitations on the size of farms. This situation contributes towards accommodating land accumulation and concentration. The concept of a land-size ceiling allows landowners to own land only under a maximum farm size for any given area. Given the history of unequal land access and ownership, one way of rectifying this skewed arrangement would be to reduce land concentration and accumulation through stipulating a maximum land area for ownership, taking cognisance of local demographic and geographic peculiarities. Given the variations in geographic and rainfall areas in South Africa, cognisance needs to be given to the need for larger land areas and a higher land ceiling in regions where there is low rainfall and a low carrying capacity of the land.

"Use it or lose it"

The lack of regulations about land limits or ceilings is compounded by the fact that there is no requirement that agricultural land be used productively. While the bulk of land in South Africa is generally used for productive purposes and many landowners cannot afford to own land that is not bringing in sufficient economic returns, there are tracts of land that remain under-utilised or that are purchased by speculators. In a bid to make available any land that is not being used productively, the state could either opt to expropriate such land or increase taxation on land that is not been utilised productively.

Land taxation

Given the concentration of land in the hands of a few, the notion of a land tax could serve to reduce speculation in land and push more land onto the land market because large landowners would begin to feel the effects of the taxation on their holdings and may opt to shed some of their land. This may also serve to prevent owners from overvaluing their land because of the resultant tax they would have to pay – hence impacting on the land market and land prices. Taxes could include penal tax rates on uncultivated or under-utilised land, and progressive land taxes with rates that rise sharply with the size of holding.

The right of first refusal

This mechanism would provide a legal requirement that no land in the rural areas can be sold or transferred in the market prior to the state being given first option to decide if they wish to purchase it. Willing sellers would be required to first offer the land to the government, as the potential buyer of any intended sale of rural land, so that the government could either buy the property or land offered for sale, or decline to do so. This mechanism may make land availability and transactions more visible and transparent and allow for more access in the interests of land reform.

Forced advertising of available land for sale

In addition to mechanisms such as the right of first refusal, compulsory advertising of all available land would go some way towards making the land market more open and accessible. The stipulation that all land for sale should be publicly advertised would contribute towards opening up the market and allowing for more equitable access, at least at the level of information and knowledge regarding available land.

The promotion of women’s rights in land

Most of the country’s landless people are poor, rural women. It is therefore imperative that for a land reform programme to be effective and for women to acquire land there needs to be an acknowledgement of the centrality of women’s needs and interests. The promotion and implementation of gender rights should therefore require that space is specifically created in the land market for women to participate and to acquire land through supportive land reform programmes and mechanisms. For this to occur will require the active involvement of women as well as interventions on the part of the state and its agencies within the sphere of the land market. An increased level of involvement and demand on the part of women could increase pressure on land delivery and possibly force the pace of land reform.

 

Conclusion

The points outlined in this submission strongly suggest that land reform in South Africa requires a great deal of attention and review. If the pace of land reform is to be increased it will be necessary to first put in place a number of supporting elements and to develop a more planned approach to the manner in which land reform is implemented and sustained.