A Personal View – May 2014

Background and rationale of restitution

Land redistribution is clearly an emotive issue. While land dispossession occurred over centuries it was achieved initially by violence in the 19^th and prior centuries and by racial discriminatory legislation subsequent to Union and the promulgation of the Land Act in 1910.

With the advent of democratic rule in 1994, the ANC was faced with the unenviable task of dealing with the legacy of centuries of land dispossession. Their preferred method of land reform was the “willing-buyer-willing-seller” policy.

In terms of this policy, the ANC has attempted to strike a balance between nation building and addressing the land issue. This land reform program dealt with the issues of lodging of claims, and its expropriation, redistribution and restitution.

The intention was to redistribute 30% of the land to black people by 2014. This policy has been largely unsuccessful for two cardinal reasons: the inflating of land prices by farmers on land identified for expropriation and the falling into disuse of expropriated land given to black farmers.

The Gordian Knot

One of new approaches proposed by the government is to ditch the “willing-buyer-willing-seller” policy as unworkable. These amendments are embodied in the Restitution of Land Rights Amendment Bill which is awaiting Jacob Zuma’s signature. According to Tara Weinberg, a researcher with the Rural Woman’s Action Research Program for Law and Society at UCT “This bill is dead in the water, signed or not. The government has neither the money nor the human capacity to settle outstanding restitution claims, let alone new ones that the bill will elicit.”

I could not have stated the case so eloquently. Tara Weinberg then goes on the provide figures for the process to be a success. It will cost between R129 and R179 billion over 15 years whereas R22b has been spent since 1994.

This failure to allocate sufficient funds will not only disadvantage the  claimants as their rights to recompense will be denied whereas it will also violate the right to security of tenure by leaving claimants unsure of the status of their land.

This uncertainty is already causing financial problems. For instance, the Red Ivory Hiking Trail in the Steelpoort area has been closed due to this uncertainty and no doubt there are many more examples of which I am not aware.

The most blatant impediment to its implementation is the lack of capacity of the new owners. Often illiterate and unschooled in agriculture, finance and the whole panoply of related disciplines such as tractor maintenance, the expropriated properties rapidly fall into disrepair with production ultimately being a fraction of the initial output.

The Unintended Consequence

Zimbabwe is a case in point. From being the breadbasket of Africa, they are now unable to feed their own people with South Africa providing substantial supplies of maize and other products. During April, the Zimbabwe government banned the importation of fresh fruit and vegetables; the rationale – to force Zimbabwe’s farmers to grow it themselves. That probably leaves the population with little choice: no fresh fruit and vegetables.

South Africa has been no more successful in this regard. Anecdotal evidence suggests that most expropriated farms quickly fall into disuse and all the valuables on the property are sold to maintain the claimants until that source of income is consumed.

The picture above illustrates such a scenario. One picture represents the farm prior to expropriation while the other represents the farm some four later. This photograph is of a sugar/citrus/banana farm right next to Ngwenya Lodge in Komatipoort, South Africa.

It was sold to the SA Government in 2007, in terms of their land reform and re-allocation program.

This is what it looked like when the previous owners thought they were going to look at the development of their old homestead and farm.  They matched each scene (Aug 2011) with a ‘before’ photo (Jan 2007) and the last photograph was taken from a helicopter where the remains (shell) of the house is visible.

All it took was 4 years.

This is no different in any respects with what happened in Zimbabwe.

A personal example which I would like to share relates to the experiences of the Quo Vadis Hiking Club when about 27 years ago we tried to have lunch in an Italian Restaurant which had been expropriated by the South African government and given to the local Transkeians.

 There the restaurant stood in an overgrown garden, the Frutto Del Mare. The place was deserted inside except for the four of us. This suited us in our state of dishevelment, putrefaction & haste to be on the road for the long drive back to the Reef. Our families were probably frantic with worry but without Cellphones communication was extremely difficult.

 

Being the most knowledgeable on drinks, the waiter was directed to hand Kurt the Wine List. The long list of the finest wines caused much discussion. Should it be a Merlot or a Shiraz? How about a Chardonnay? The experts debated, finally making up their minds. The waiter was presented with the order.

 

“Sorry, we are out of stock” she apologised.

A mumble of dissention, barely audible, arose

“OK”, Kurt continued, “Then we will have this chardonnay” as he read the name of some exotic wine.

Again the same apology was given.

This time the murmur was audible as Mike asked a question to get to the nub of the problem & to short-circuit this process.

“OK, what wines on the Wine List are still in stock”, short & sweet & to the point.

“None!” came the nonchalant reply.

 

We were all dumb founded. One could hear a pin drop.

Why had the waitress handed us a Wine List when none were actually available?

We shook our heads in disbelief.

 

“OK, do you have Amstel?” an exasperated Kurt almost blurted out.

“Sorry, not in stock”

By now, this reply was not a shock.

As if resigned to the ultimate answer, he enquired, “OK, what alcoholic beverages do you have in stock?”

“Only Black Label & Coke!”, again matter-of-factly, not prefaced with an apology or letting us know the stock situation before embarking on this whole charade.

In resignation, four quarts of Black Label were ordered because nothing smaller was in stock.

 We glanced at our menus. As far as our stomachs were concerned, the meal in Mthatha was a starter & this now was the main meal. The menu catered for all tastes from Kastler Ribs for those who liked German food, and is my favourite, to Indian curries, steaks & sea food. The whole gamut was catered for.

 Instead of engaging in the same game of We-would-like as the antecedent & Sorry-it-is-out-of-stock as the reply, Kurt was blunt this time.

 In a tone of exasperation, he asked, “Of all these items on the menus what can you make for us?”

“None,” came the atonal response.

Finally Kurt took the low road, “What can you make? Anything? What do the locals order?”

His sarcastic tone belied his frustration.

“Normally they order pap en wors but as a favour we can make you crayfish which we caught this morning.”

 Clearly this was a case of form with no substance to support what they were doing. Clearly the new owners were totally out of their depth with none of the skills necessary to operate a restaurant.

Possible solutions

If the ANC willy-nilly presses ahead with their program the consequences will be the like of which Zimbabwe experienced with the decimation of its agricultural industry.

Hopefully cool heads will prevail when the new Parliament rises. Having made exorbitant promises to the potential millions of claimants, will the ANC be able to prevaricate any longer. Possibly not?

I have some suggestions of what the ANC can do to extricate themselves from this self-inflicted calamity:

• Do not extent the period to prior to 1910. That in itself will be a monumental exercise to resolve all the claims without disadvantaging any party. At this juncture, the overwhelming majority of the beneficiaries of the original land-dispossession have long since passed on. In the subsequent years, the property has probably been sold many times over and significant improvements have been effected over the decades.
• Take the potential claimants into your confidence and explain that most claims cannot ever be settled for a plethora of reasons such as lack of title deeds, lack of proof of previous ownership et al.
• Grant freehold title to all land in the former homelands and do not grant title to the chiefs except for their personal land
• Pay for land where possible but never hand over productive land unless there is a clear ability to manage the land on the same basis as the previous owners. The former homelands such as the Transkei are paradigmatic in that their agriculture comprises mainly the subsistence farming method which was only sufficient to supply the immediate family and very few others.
• Explain that expropriation of land occurred on a vast scale in the recent past such as in Europe after WW2. For instance, Germany lost vast swathes of its eastern provinces to Poland which in turn lost vast tracts to Soviet Russia. The European countries have taken a pragmatic view on the land question: let bygones be bygones.

I fear that unless some pragmatic solutions are devised, South Africa will be heading down the same slippery slope as Zimbabwe.

This situation cannot be allowed to occur. The wholesale transfer of productive assets to claimants with the lack of skills will surely result in their rapidly becoming unproductive, derelict and ultimately fall into disuse.

South Africa cannot afford such a wholesale destruction of productive assets.