Can Land Expropriation Address South Africa’s Continued Racial Disparities?

Jan Christians sits outside his home in the Richtersveld area, where locals live as they await the outcome of a lands claim action, North Western Cape Province, South Africa, March 2005 (AP photo by Mujahid Safodien).

In late February, South Africa’s parliament overwhelmingly passed a motion seeking to change the constitution in order to allow the government to expropriate land without compensation. The motion came after the ruling African National Congress formally adopted the principle of land expropriation at its party conference in December. South Africa’s new president and the head of the ANC, Cyril Ramaphosa, has since voiced his opposition to the recent spate of unilateral land grabs across the country, or what critics call “illegal land invasions.” In an email interview, John Campbell, the Ralph Bunche senior fellow of African policy studies at the Council on Foreign Relations and a former U.S. ambassador to Nigeria, discusses racial disparities in land ownership in South Africa and why land reform remains so contentious despite the end of apartheid.

WPR: Why is the Ramaphosa government considering amending the constitution to allow land expropriations without compensation?
John Campbell: During the colonial and apartheid eras in South Africa, white South Africans seized about 87 percent of the surface area of the country. Many black South Africans regard this seizure of land as theft and the root cause of their poverty. The governing African National Congress, or ANC, has long advocated the transfer of land to the black South African majority. This policy also has the support of most other political parties, but progress has been slow. For example, white South Africans, who make up just 9 percent of the population, are estimated to still own over 70 percent of all land.

At its December 2017 party convention, the ANC adopted—for the first time in its history as a political party—the general principle of expropriation of land without compensation in order to speed up land redistribution. This policy shift was part of the political struggle between the supporters of Cyril Ramaphosa and Nkosazana Dlamini-Zuma for party leadership. Dlamini-Zuma was the more populist of the two and advocated, vaguely, for the redistribution of wealth. Ramaphosa and his supporters advocated addressing poverty through much higher rates of economic growth within a liberal, capitalist framework. In effect, the multimillionaire Ramaphosa, who won the leadership race in the ANC and became president of South Africa in February after Jacob Zuma resigned, accepted the principle of expropriation to pry away some of Dlamini-Zuma’s supporters and establish his populist credentials.

More broadly, expropriation of land and mines has long been advocated by liberation movements in southern Africa and has resonance in South African townships. It has become a signature issue for the Economic Freedom Fighters, or EFF, which is now the second largest opposition party in parliament, though they still only received about 6 percent of the vote in the last elections. Concern about being outflanked on the left by the EFF contributed to the ANC’s new support for the principle of land expropriation without compensation.

But South Africa’s constitution recognizes private property as a fundamental human right, and constitutional experts are divided as to whether it offers a provision for expropriation without compensation to promote the public good. To that end, the Ramaphosa government has established a commission to consider whether the constitution should be amended.

WPR: How has land reform been carried out since the end of apartheid?

Campbell: The ANC was founded in part in response to the Native Land Act of 1913, which provided for the expropriation of land without compensation by the apartheid government. After the end of apartheid in 1994, the ANC supported land reform with compensation given to current owners based on the principle of “willing seller, willing buyer.” This approach is still supported by the opposition Democratic Alliance and other free market advocates. Some land has, in fact, been sold by whites to blacks, but evidence is anecdotal as land transfer data does not make note of race. By and large, however, land redistribution is regarded as a failure; the share of farmland owned by white South Africans has fallen from just over 80 percent to just over 70 percent since the end of apartheid. A parliament-appointed panel found that just 5.5 percent of commercial agricultural land had been redistributed.

Since it came to power, the ANC has included funds in its annual government budget for land redistribution. These funds peaked in 2009 but have declined steadily since then to less than half that in 2017. Even at its peak in 2009, the funds registered less than half a percent of the government’s national budget. This is in part because the ANC’s geographic priorities have been more urban than rural. Rather than devoting a larger part of the state’s revenue to buying land for redistribution, the ANC built more than 3 million houses and brought water and electricity to the townships.

The Land Restitution Act of 1994 provides a mechanism to compensate people whose land was expropriated by the apartheid government after 1913. But in more than 90 percent of the cases brought under the law, recipients have chosen monetary compensation rather than the land itself. Where land redistribution has taken place, 90 percent of farms are fallow because the new owners lack the capital to begin farming, and government support has been constrained by a lack of funds. The parliament-appointed panel’s report estimates that it will take 35 years to resolve all land claims filed before the initial 1998 deadline of the Land Restitution Act, not to mention those filed during repeated extensions of the deadline.

WPR: What are the implications or risks of the new land reform measure, if it passes?
Campbell: With its juxtaposition of history, emotion, race, poverty and economics, land is perhaps the most difficult issue South Africa’s post-apartheid government must face. Luckily, land issues remain firmly within the purview of the law, the courts and parliamentary politics, rather than something akin to former Zimbabwean President Robert Mugabe’s “revolutionary justice,” which amounted to armed occupation of land and the intimidation and even murder of landowners.

Ramaphosa’s support for expropriation without compensation, now the ANC’s stated policy, is heavily caveated. He argues that expropriation must be done legally and in accordance with the constitution. He also argues that South Africa’s agricultural sector, Africa’s most advanced, must be preserved. Ramaphosa is seeking to boost foreign investment across the board, a goal that land expropriation would likely hurt. Ramaphosa fully understands the link between the rule of law and the confidence of businesses. He has directed the police to move against any land invasions, and none of significance has occurred since the ANC’s December convention. Ramaphosa must also balance the popularity of land reform as a concept with the likely strong opposition of tribal chiefs, who currently exercise enormous influence over land distribution in tribal trust areas. Up to now, they have been an important ANC constituency.

Finally, South Africa is urbanizing rapidly, with 60 percent of the population now living in cities. But there is a shortage of land available for migrants from rural areas, sometimes resulting in informal settlements of squatters, often without water or electricity. Ramaphosa may find this to be a more pressing issue than changing the racial percentages of the owners of South African land.

It is too soon to say whether or how the constitution might be amended, especially given that many legal scholars believe it already provides for expropriation without compensation for the public good. But, given South Africa’s strong institutions and respect for the rule of law, the likelihood that South Africa would follow the example of Zimbabwe is remote. However, were the process to proceed, it might be difficult to limit its scope to land issues alone, and the constitution’s ironclad protection of human rights could become vulnerable.