STATE CUSTODIANSHIP OF THE LAND IS THE ONLY SOUND BASIS FOR EQUITABLE LAND REDISTRIBUTION.
On the 30th of June 2020, the South African Parliament through a hybrid system voted to re-establish the ad hoc committee that is mandated with the task of amending section 25 of the Constitution. The parliamentary resolution is a continuation of the Constitutional Review Committee and thereafter parliamentary resolution in 2018 which unequivocally stated that, “Section 25 of the Constitution must be amended to make explicit that which is implicit in the Constitution, with regards to Expropriation of Land without Compensation, as a legitimate option for Land Reform, so as to address the historic wrongs caused by the arbitrary dispossession of land, and in so doing ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programs”.
This process is a result of the 27th of February 2017 Parliamentary motion led by the Economic Freedom Fighters which took primarily two resolutions which stated that Parliament must a) “review and amend section 25 of the Constitution to make it possible for the state to expropriate land in the public interest without compensation, and in the process conduct public hearings to get the views of ordinary South Africans, policy-makers, civil society organisations and academics, about the necessity of, and mechanisms for expropriating land without compensation”; and importantly b) “propose the necessary constitutional amendments with regards to the kind of future land tenure regime needed, taking into account the necessity of the State being a custodian of all South African land”.
Whilst there is overwhelming consensus on amending section 25 of the Constitution, there is still a process of converging the perspectives of majority black political parties in the perspective that seek to “propose the necessary constitutional amendments with regards to the kind of future land tenure regime needed, taking into account the necessity of the State being a custodian of all South African land”. This is the most important aspect of land reform in South Africa because without State custodianship of the land, there will never be thoroughgoing equitable redistribution of land in South Africa. A piece by piece land repossession will be disastrous and further delay the long overdue land redistribution programme which by all measures of standards has dismally failed since the end of formalised colonialism and apartheid.
State custodianship of South Africa’s land is objectively the only mechanism that will guarantee all South Africans equitable access to land. Any other method will not even scratch the surface of the massive land poverty and hunger that defines the black majority and Africans in particular. The land poverty and hunger is no doubt a direct consequence of the barbaric colonial conquest and the nonsensical, cruel system of apartheid that entrenched dispossession and isolation of the indigenous Africans.
The State, composed of an elected Parliament, appointed Executive and Independent Judiciary is the most dependable custodian of South Africa’s natural resources. The State is currently the custodian of South Africa’s mineral resources, water and strategic parcels of land.
To thoroughly understand State custodianship of the land, one does not need to go further than vital pieces of legislation in South Africa that govern key natural resources, i.e. Mineral Petroleum and Resources Development Act (MPRDA). Section 2 a) and b) of the Act give the two primary objectives of this seminal law and states that the objects of the Act are to a) recognise the internationally accepted right of the State to exercise sovereignty over all the mineral and petroleum resources within the Republic; and b) give effect to the principle of the State’s custodianship of the nation’s mineral and petroleum resources.
Section 3 (1) of the MPRDA emphatically states that, “Mineral and petroleum resources are the common heritage of all the people of South Africa and the State is the custodian thereof for the benefit of all South Africans”. The entirety of the Act thereafter determines and defines the circumstances under which those with capacity to cultivate the mineral and petroleum resources should be allowed to do so. That is not subject of this perspective, but it is important to highlight that this piece of legislation is consistent with the constitution and international laws, hence the fact that majority of mines that are operating under this legislation are multinational corporations.
The second illustration of State custodianship of a natural resource in South Africa is on water. In the National Water Act of 1998, “national government is designated the public trustee of the nation's resources to 'ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate'”. Effectively, whoever harvests water for agricultural, domestic and energy purposes necessarily need permission of the State, which is composited of a democratically elected Parliament, the Executive and an Independent Judiciary. The National Water Act is not unconstitutional and does not infringe in anyone’s rights.
Due to South Africa’s cruel history of barbaric racism that was underpinned by the colonial dispossession of land from the black majority and Africans in particular, the State custodianship of the land is the only rational and logical option towards equal redistribution of the land. The Surveyor General recently illustrated that close to 80% of Africa’s land is owned and/or controlled by the white minority. The black majority is congested in 13% of the largely barren land, whilst the remainder is owned and controlled by different spheres of government.
State custodianship of land is not an unusual and unprecedented phenomenon and practice in South Africa because majority of the land under State custodianship is being used productively. The land which the State is currently custodian of include the land parcels in the control of the Department of Public Works, Trade & Industry, Forestry and Agriculture, SANPARKS, different government departments and Municipalities. In the case of Public Works, most part of the land is fallow, but that which is leased to private users, a security of tenure is guaranteed and attached to the use purpose. The land that accommodates Special Economic Zones (SEZs) is under the custodianship of the State, and those using the land have security of tenure in line with the purpose they applied for the land usage. For instance, the land that is given to FORD automotive for the recently unveiled auto special economic zone in Tshwane cannot be used for any other purpose despite industrial expansion.
SANPARKS owns about 6 million hectares game reserves and national parks, and leases portions of that land to private game lodges, some with foreign and multinational owners. The security of tenure in those private game lodges is guaranteed. State custodianship of the land must not compromise land tenure and legislative mechanisms must be enacted to disallow arbitrary dispossession of land.
The Department of Agriculture, Forestry and Fisheries (DAFF) indirectly manages 368 505 hectares of State plantations (Category A) through lease agreements signed with four private forestry companies and the South African Forestry Company Ltd (SAFCOL). DAFF also directly manages one hundred and nine (109) commercial forest plantations (Category B and C) with the total area of 63 114.21 hectares (ha). The Category B and C plantations are mainly in Limpopo, Mpumalanga, Eastern Cape and KwaZulu-Natal. The geographic location of the commercial plantations is spread over five different regions namely: Eastern Cape, KwaZulu-Natal, Limpopo, Mpumalanga and North West.
Category A plantations with a total of seventy-one (71) state owned plantations (181 185 hectares) are managed by private companies leasing the land from DAFF for a minimum period of 70 years. The companies are MTO Forestry (Pty) Ltd; Amatola Forestry (Pty) Ltd; SiyaQhubeka Forest (Pty) Ltd; and Singisi Forest Products (Pty) Ltd. In addition to this an area of 187 320 hectares is managed by the South African Forestry Company (SAFCOL) which is a State-owned company. The security of tenure in those areas is guaranteed. Municipalities own the land and some release such for agricultural purposes.
South Africa therefore should amend section 25 of the Constitution to permit for total repossession of all South Africa’s land whilst guaranteeing security of tenure for residential land parcels. The amendments must necessarily include a provision that a democratically elected government and State is custodian of all land and can legally redistribute the land to all South Africans and productive investors.
The piece by piece land repossession and expropriation will delay the historical, political, economic and social justice programme of land reform meaning that land ownership and control will continue to reflect the vestiges of colonialism and apartheid. It will also lead to piece by piece litigations which will certainly frustrate the land reform programme. As we said before, the legitimately elected and established State which has got rules that are very clearly defined, that are balanced by Parliament, the judiciary and parliament,- must become the custodian of all land in the same way as (being) the custodian of minerals, petroleum resources and water. That’s the only way that we can release the land to all those who are going to utilise it. It’s not confiscation, it is a morally, economically and socially justifiable repossession. It’s a legitimate process that is specifically for South Africans’ historical conditions where the entire land was confiscated from the black majority.
Floyd Shivambu is EFF Deputy President