Julius, you don’t need to change the Constitution

ANC Youth League leader Mr. Julius Malema vowed again on Sunday to “take land without payment” at the closing ceremony of his organisation’s elective conference, sending a chill down the spine of many a property owner and probably creating a stampede for exit Visas to Australia. After all, how bad can it be to live in Perth? (I am told that if one does not mind being bored to death, one can live there quite comfortably without ever having to make friends with Australians or expat white South Africans.) 

“There is no way you can be diplomatic about the issue of land. We will never be diplomatic about willing buyer, willing seller. It has failed,” Mr. Malema told delegates. He said the African National Congress, at its last elective conference in Polokwane, in December 2007, acknowledged that an alternative needed to be found to the willing buyer, willing seller policy.

“You have failed to find an alternative. We must take the land without payment,” said Mr. Malema. But he added: “If you have got an alternative, we are prepared to listen.” Earlier Mr. Malema had said that the ANC needed to achieve a 75% majority at the next election so that it could change the Constitution to allow for the taking of land without compensation.

Mr. Malema is, of course, correct that the “willing buyer, willing seller” land redistribution policy has not been a great success.  The speed of land reform has been slow, to say the least. At the same time, the Department of  Rural Development and Land Reform has admitted that many emerging black farmers have been struggling to make ends meet.

Mr. Malema is also correct to point out that black people were dispossessed of their land during the colonial and apartheid era. I recall the old joke that white people came to South Africa with the Bible in hand and told locals the good news about their benevolent and omnipotent God. They then asked the locals to pray with them to praise this wonderful God, but when the local people opened their eyes after the prayer, their land had been stolen.

This does not mean that all white people who now own property stole that property from black South Africans. While many of us who own property might have gotten a head start in the property market because of our relative privileged position as whites who benefited from apartheid (which gave us better opportunities than we would have had if we were black) and because we were supported by many of our parents who, in turn, became far more wealthy than their average black counterparts because of the structural privileges afforded to whites by apartheid, most of us actually took a loan from the bank to pay for our property and most of us pay back our bonds every month.

Although most of us would never be able to afford a R250 000 Breitling watch (unlike Julius Malema, who wears one of these watches despite his R35 000 a month ANC Youth League salary) – no matter whether we are paying a bond or not – many of us who belongs to the chattering classes would have been financially far better off if we did not have to pay a bond installment every month.

However, seeing that President Jacob Zuma is too weak or too scared to lead the country and seeing that Julius Malema now seems to dictate the nature of public discourse, I thought it might be helpful to highlight a few points about the whole issue of land expropriation and redistribution in South Africa just to remind Julius that changing the Constitution should really not be a high priority for his organisation.

Mr. Malema might not be aware that the Constitution contains a property clause which deals with both the protection of existing property rights and the expropriation of property as well as land redistribution. To understand this section of the Constitution it must be interpreted holistically. While section 25(1) states clearly that no one may arbitrarily be deprived of property, section 25(2)  states that property may only be expropriated subject to the payment of equitable compensation.

It is important to note that this section does not require the state always to pay market value for the property when it expropriates that property. The time and manner of payment must be “equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including the current use of the property; the history of the acquisition and use of the property; the market value of the property; the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and the purpose of the expropriation.”

A value lower than market value may therefore be paid for a property when it is expropriated if, say, the owner obtained that property as a result of the apartheid policy of forced removals or if the owner obtained the property very cheaply because he happened to have had good connections with the then ruling National Party.

Further subsections of the property clause all – in one way or another – underline the need for and aim at redressing one of the most enduring legacies of racial discrimination in the past, namely the grossly unequal distribution of land in South Africa. In fact section 25(5) explicitly states that “[t]he state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis”.

These sections do not require the state to follow the “willing buyer willing seller” approach to land redistribution. This policy was chosen by the present government, but our government could also choose a policy of forced expropriation, as long as it paid an equitable price to the person whose land was expropriated. In fact, given the failure of the existing “willing buyer willing seller” model of land redistribution, a court might even find that the state has not fulfilled its constitutional duty in terms of section 25(5) because it had not taken reasonable measures to achieve the goal of equitable access to land.

What this section makes clear is that the Constitution requires us to think differently about the nature of property and to marry the need for the protection of property rights with the need for a more equitable distribution of property ownership in our society. The Constitution does not provide for the protection of property rights in the caricaturist manner depicted by Mr. Malema in his speeches. As the Constitutional Court stated in the First National Bank of SA Ltd v The Commissioner of South African Revenue Services and Another:

The purpose of section 25 has to be seen both as protecting existing private property rights as well as serving the public interest, mainly in the sphere of land reform but not limited thereto, and also as striking a proportionate balance between these two functions. . .

When considering the purpose and content of the property clause it is necessary. . . to move away from a static, typically private-law conceptualist view of the constitution as a guarantee of the status quo to a dynamic, typically public-law view of the constitution as an instrument for social change and transformation under the auspices [and I would add ‘and control’] of entrenched constitutional values. That property should also serve the public good is an idea by no means foreign to pre-constitutional property concepts.

As I see it, there are at least two big problems that hamper effective land redistribution in South Africa. First, some land owners are trying to make a fast buck out of the process of land reform. Taking the gap (like any other tenderpreneur would have done) they demand rather exorbitant compensation before they would be willing to sell their farms to the state. This they are entitled to do in terms of the present policy. They know that in terms of this policy, if  such exorbitant amounts are not offered, they will not be forced to sell their property. For them it is therefore a win-win situation.

Second, the Department of Rural Development and Land Reform does not have the expertise to provide effective assistance to emerging black farmers. Neither does the Department seem to have the political will to build the capacity that would ensure the success of a land redistribution programme. Far too often the focus is on how many hectares of land had been redistributed and not on how successful the farmers are who had been resettled on the land.

This is why the empty and fake-revolutionary rhetoric of Julius Malema on land redistribution is so silly and why it makes no sense.  Every true revolutionary with more than two brain cells will know that in the absence of a very well managed support programme for emerging farmers resettled on expropriated land, the wholesale expropriation of productive land will be disastrous for all South Africans – but especially for the poor.

The Department has been unable – even with the limited redistribution of land that has taken place – to ensure that all new black farmers obtain the skills required to compete with international agri-business and the big agri-businesses in South Africa. A wholesale unplanned land-redistribution programme without the required support will obviously deal a fatal blow to South Africa’s food security and will lead to high food inflation and much suffering – especially among the poor.

What is required is for a whole new approach to land reform and land redistribution. We should begin to investigate other – constitutionally-compliant – ways of transferring land to those who can actually use it productively. I am not an expert in the field, but surely what is required first and foremost is the political will to make land reform work. And such reform will only work if productive land is not transferred to others who do not have the skills (or are not assisted to acquire the skills) to work that land productively.

What is certain is that it is not necessary to change the Constitution to speed up land reform. What is required is new policies, some competence and the political will to change the status quo. Perhaps because tenderpreneurs have so far not been able to exploit the land-reform process to make pots of money, there has been no political will to tackle this problem in a sensible and effective manner.

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