People’s Power for Economic Freedom Table of Content
The Section 25(Property Clause) is Drafted Thus
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- EFF is Land Expropriation without Compensation.
- SA 20 Years of Bad Policy on Land
- Racist Agrarian Structure
- Farm Workers
- Land Expropriation without Compensation!
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The Section 25(Property Clause) is Drafted Thus:
The section dealing is one of the longest and most debated sections of the constitution. The debate turns on two primary questions, does the constitution as currently framed and amended allow for land expropriation or on the other hand, even if there is nothing that explicitly states that the South African land reform process envisaged by this section can only be meet constitutional muster if it’s based on the “willing buyer willing seller” principle which is essentially a principle that offends the demand for justice by those who have been historically dispossessed. These debates on section 25 or the property clause, become technicist and excessively legalistic and and claims to be apolitical and thereby deeply ideological however masquerading as mere points of law. The fact that the ruling party has not tested these provisions by legislating for expropriation of land further leave the question open. EFF demands places land return outside the strictures of laws that would offend the return of land without compensation. This exceeds the debate on section 25, which has thus far pivoted on the quantum of compensation to be paid where expropriation was to be considered and not on whether compensation must not be considered at all. It’s important to emphasize this point, that the principal position of the EFF is Land Expropriation without Compensation. The liberal constitutionalist view argues that, there is nothing in the SA constitution that prevents land redistribution and even expropriation but with “just and equitable” compensation”. It’s important to note that the liberal constitutionalists, take for granted that compensation shall be paid for land. Such compensation would as parts of section 25 indicates not be determined strictly by market value but other considerations too, read cumulatively and contextually. This debate at the face of it seems reasonable because it argues that the right to land redistribution is protected in as much as the right to property is protected by the constitution. The million dollar question is where would a court of law likely to throw its weight in determining “just and equitable” compensation. How would the quantum of what is “just and equitable” be determined in a society governed by capitalist logic and jurisprudence? The retort from the radical political economist has been that law favors the holders of power and property and therefore any interpretation of “just and equitable” compensation left to the courts of law shall come to the same thing as market value and “willing buyer willing seller”, at best it becomes forced sales for land redistribution. These political economists such as Lungisile Ntsebeza, Ricado Jacobs, Gillingwe Mayende6 and Sam Moyo, also posit the question, why should land as a political question be settled by courts of law not popular will? This group of thinkers with varying degrees challenge the foundational assumptions of the Constitution which is based on treating both the settler and the native as if they have equal birth right to land. The underlying assessment is that such treatment of the matter is unethical, becuase land belongs to the natives! These radical economists and Africana philosophers such as Ramose and Mabogo More have highlighted the difficulty related to the supremacy of the constitution versus the supremacy of the Legislature. Constitutional supremacy is protected by section one of the constitution which seeks 75% votes for alteration. Any law that offends the constitution would accordingly be struck down. These thinkers supported by some progressive judges7 insist that the first question to ask is, who drafted the constitution and in whose interests? This question invites the questioning of the very Kempton Park agreement and insist that only a properly constituted Constituent Assembly can determine the matter. Incidentally, the actual drafters of the constitutions remain by and large a well-kept secret. The race, class and gender identity of such drafters would assist greatly in the deconstruction of the provisions of the supreme law of the land. The Liberal Constitutionalists presents an ahistorical argument that assumes equality of things. Incidentally this view is the dominant view that calibrates the policy positions of the ruling party and official opposition. This argument sees nothing wrong with paying compensation so long as its “just and equitable”. What this means no one yet knows. But if we look at how the South African Constitutional Court settled the claims of the white Zimbabwean farmers who lost land due to the land redistribution programme in Zimbabwe then there is little to take solace from the courts. The Constitutional Court ruled in favour of the white farmers in 2013. Judge president Mogoeng Mogoeng delivered the judgment and insisted that all governments in the SADC region are bound by the SADC Tribunal’s provision which protects property. This he concluded meant, compensation has to be paid whenever there is land expropriation. The decision meant property belonging to the Zimbabwean government in South Africa could be auctioned to pay the white farmers. These developments seem to vindicate the position assumed by radical political economist, African philosophers and majority of landless people, that the land question left to the courts shall be settled in the interest of properly holders. Also a legalistic route is subject to never ending expensive processes with unpredictable out comes. These concerns gestures towards precisely the native idiom and logic on the land question. This idiom is informed by a basic idea that those who were dispossessed seek justice. For the black majority land was stolen and therefore it must be returned without paying a cent. Paying any compensation for land or rather buying back our land offends the sense of justice and promotes illegality. From this perspective land expropriation without compensation is the most just and desired outcomes. Accordingly, the laws of the country must conform to this popular and just logic. This is the logic that propelled all the warriors for land and decolonization throughout the African continent. It’s the same logic that drove the first political prisoner on Robben Island Achimao (Harry die Strandlooper) to ask Jan van Riebeeck the question: “between the indigenous people and the white settler who has the right over land?” this is the fundamental question which can only be answered effectively by decolonization that is primarily the return of land to restore black dignity.
South Africa is in total a country of 123 million hectares. 80% of this land is designated Agricultural land. After the long wars of land dispossession culminating in the 1913 Land Act, which legalized the land theft of African by giving whites 87% and Africans forced to only 13% of the land. In reality, today, less than 1% of the population own more than 80% of the land. In concrete terms only 40 000 white families own 80% of South African land. We are a nation of 53 million people! It is known that about 22 million Africans need land desperately. Furthermore, we know that about a 700 000 people are farm workers (including their families it comes to about 7 million people who live on farms as landless workers). After 20 years of democracy only about 8% of the land has been bought back from those who stolen if from Africans. This is the fruits of the land policy of the ANC which is based on the Kempton Park compromise, from which springs the policy of willing buyer willing seller. The 8% of land bought to date has been bought by an obscene amount of about R50 billion since 1994. Essentially South Africa has no land redistribution programme, the ruling party is paralysed by fear of white people on the one hand and on the other uncessarily upholds the 1994 compromise. If we follow the current pace of land rdistribution it would take almost 100 years to buy back only 30% of the land. The current session of parliament has inherited about 15 Bills which shall come before parliament. All of these Bills are drafted to avoid and to pre-empt the proposals of the EFF for radical land redistribution through expropriation without compensation. The EFF must continue to expose the emptiness and deceptiveness of these Bills and reject them all. The most pernicious and dangerous policy proposal is one called the 50% equate for farm workers8. This policy will only assist white farmers to evict farm workers and ensure the completion of the land dispossession process.
Land dispossession helped to create a racist society with skewed land ownership between blacks and whites on the one hand, on the other created a racist agrarian structure which is socially discriminatory, economically exploitative and environmentally harmful. Essentially, the South African agrarian sector is sustained by racist feudalism, where black farm workers are mere slaves and the white farmers lords. Food production is driven by the profit motive. The consequence is that the farm owning class makes massive profits from cheap labour, export markets and sales of food to the section of society which can afford. The result is food insecurity for the majority on the one hand, and harmful environmental activities on the other hand. The profit motive that drives the agrarian sector in SA leads to poisoning the soil and people with Genetically Modified Organisism (GMOs). The economic logic of the racist agrarian structure is slush and burn without investment. Consequently, those who work on farms are trapped in abject poverty and lack of benefits from industrialization and economic development, whilst the white farmer has access to all these benefits. Literally, in one farm we find the advanced technological secured life of the industrialized West and at the same time enclaves of rurality and third world squalor. The agrarian sector is further divided between white commercial agriculture(racist feudalism) and the former banstustans (local despotism). The commercial farming sector has all the modern benefits of technology, state assistance, access to finances and markets. The former banstustan sector is trapped in rurality, neglect and poverty. Incidentally, within the white commercial sector the conditions of farm workers are akin to those of the rural people in former homelands. Its not just land ownership which is concentrated unjustly, but also the Agricultural sector is dominated by a few monopolies which produce most of the food that gets into the markets. The result of this is that there is no food security for majority, at least 42% of Africans are designated relatively poor and without food security and only 1% of whites suffer the same fate. Black Shash tells us that up to 22% Africans are desperately poor in SA and not sure where the next meal will come from, but these Agriculture monopolies are making shocking profits and even produce for the European markets when people are starving here in SA. The logic of the current Agricultural sector puts profits before people and that must change. The South African agricultural sector is not only racist and lopsided but also its inefficient and wasteful. The sector contributes less 5% to the GDP. It employs about 700 000 poorly treated and super exploited farm workers. This alone makes the sector a perfect candidate for expropriation. The sector could answer most employment needs by hiring millions of small scale producers, millions of well paid farm workers, reduce food inflation and move our people from the humiliation of food insecurity that has lead to the belief that the offal is “African Food”, now our people eat chicken feet. The question is who eats the steak and chicken? Our people should not be condemned to “Mala-Mogodu” out of economic compulsion, but out of culinary choice based on democratic access to diverse foods in our land.
The situation of farm workers deserves special mention because they are the people who feed the nation but are the mostly oppressed and exploited on our farms. Every morning when you go to the fridge to get milk you must spare a thought for those who made sure you can have breakfast, these people who themselves are under fed and badly paid and treated. This are the people the ANC and DA have agreed should be paid R105 a day! We know most don’t even get this amount. We must never forget this: these farm workers are descendent of people who owned the land they are today forced to work for next to nothing! Most of the current farm workers have histories on the land that it’s much longer that most owners. In other words the land belong to the people now working as servants of the white farmers! Farm workers, are everyday abused on farms, they get killed with no justice (remember the Lion Case? It’s not the only one). Farm workers are denied burial rights (landless in life and in death), they are everyday evicted from land. EFF will prioritise these landless farmers who already doing most of the farming without recognition of proper compensation for their efforts. Farm workers are slaves, we must end slavery on farms by fairer redistribution of land. A new agrarian revolution must accompany any reform of the land sector. The relations of production of farms must move away from the current racist feudalism charactered by exploitation of people and the environment to a new relations based on putting people before profits and protection of the environment whilst ensuring food security and sovereignty for all. In other words, farm workers must be freed from the ongoing slavery on farms. Furthermore, such a new agrarian structure must end the divide between country and town. The former homelands, must be governed by a democratic system that undermines feudal relations and free people from local despotism and liberate women from patriarchal relations. All these changes must be driven by a democratic land tenure system9. Farm workers must receive their own land to carve their own autonomous lives not bound to the employment. Secondly, farm workers must receive a minimum wage of no less R5000 a month to break the racist relations of production on farms.
The first and fundamental process towards decolonizing South African land ownership is the return of land through the principle of land expropriation without compensation. The land belongs to the people as a whole and must be returned to the people as such. This principle goes beyond the limitations of the “willing buyer-Willing seller” and also resolves the colonial idiom over land ownership and control once and for all. Any resolution of the land question that doesn’t not conform to this logic is bound to prolong colonial relations and white supremacist nature of South African society. There are not progressive or convincing arguments against land expropriation without compensation in colonial societies such as South Africa.
There are about three forms of land redistribution. First is the overthrow of the landed gentry in a revolutionary process driven by demand for land, such as in Russia in 1917, the Chinese revolution in 1957, the Cuban Revolution in 1959, the Zanzibar revolution of 1962, the Mozambiqean revolution of 1975, these are some of the well-known revolutionary processes that leads to immediate agrarian revolution. Amongst the first and most impressive and clear decrees issued by Lenin in Russian immediately after the revolution was the Land Decree which ended the brutal feudal system in Russian. It’s worth reproducing parts of the 1917 decree,
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