Promised Land. Karl Kemp
is little that is unique about South Africa’s land conflict and resolution. From the occupation of Petrograd during the Bolshevik Revolution in Russia, which explicitly centred on the redistribution of land to the peasant class, to the Cuban National Institute for Agrarian Reform under Che Guevara, to the landlord oligarchs of Chile who played a decisive role in Augusto Pinochet’s rise to power, to the modern-day reform in Ukraine, which lifted a long-standing ban on the sale of private land as part of its pivot to the European Union, land is elsewhere also perceived as the most fundamental resource, and the lack of it as the root of all other inequality. This paradigm is falling apart under the Fourth Industrial Revolution, but remains strong in places where the wounds of history are still so fresh.
In South Africa, the process of attempting a more equal distribution of land has, broadly speaking, assumed three faces: restitution, redistribution and tenure security.
Salem was an example of a restitution claim, which is citizen-led. Citizens can come forward and make a claim to land that they were dispossessed of due to racist or discriminatory practices by government after the passing of the 1913 Land Act. As we’ve seen, the reason for the cut-off date is obvious: the process of identifying a ‘justified’ or ‘rightful’ owner becomes interminably complex by dint of sheer historical ambiguity the further back you go, especially into the nineteenth century, when conquest was still considered a legitimate way of obtaining possession of land. There have been frequent calls by more radical black nationalist politicians to do away with the cut-off date, apparently unaware that this would lead to multiple conflicting claims on the same land by different groups, particularly around the Highveld and the country’s northern borders. Not to mention the claims of descendants of the Khoikhoi and San peoples, the latter being able to justifiably make a case for the entirety of South Africa were the elapse of time the only criterion for valid claims.
The process of adjudicating on and disposing of claims has been slow, cumbersome and expensive, hampered by fraud and graft. The entire process was intended to be wrapped up within five years – claims lodged within a certain timeframe, verified and dispensed with, and the country able to move on. Instead, it has been drawn out over two decades and shows little sign of concluding in the near future. Its interminable drag has not been helped by the reopening of the window for lodging claims in 2014, purportedly due to the high volume of people who failed to lodge their claims during the initial period. The decision was eventually struck down by the judiciary as irrational, but not before another few thousand claims had been lodged, further clogging up the bureaucratic plumbing.
The process of redistribution, by contrast, is government-led and continual. The state takes the lead in identifying, acquiring and distributing land to beneficiaries in order to try to address the racially disproportionate patterns of ownership. The process is (or, perhaps more accurately, was) market-based, and its efficiency hinges on government functioning smoothly and honestly, as the state keeps vast and often extremely expensive tracts of land in trust, with discretion as to who receives them. The selection criteria for beneficiaries of the redistribution programme were essentially non-existent until very recently. Redistribution comprises the bulk of land reform, but restitution tends to grab the headlines – when handover ceremonies are held and politicians can make a song and dance of it, or when land claims are lodged and white landowners lose, as in the Salem case.
Tenure security, the third face of land reform, is the amendment and introduction of laws allowing people who have no proper right or title to lands or homes they’ve inhabited for generations to protect themselves against eviction and removal. Arguably, it is both the most important and the most neglected stream of redress. The large majority of farm labourers and people living under the authority of a chief (of whom there are millions – a third of KwaZulu-Natal, for instance) stand to benefit most from this process, but the project has been so mired in inefficiency that some scholars claim that the rights of these people are now less secure than in 1994.
The underlying policy of land reform has changed frequently over the years, but its inefficacy has remained. Every few years, government attempts prophylactic measures – merging departments, promulgating more legislation, appointing an inter-ministerial committee or assembling a specialist task team. All these measures add more layers of bureaucracy, and few of the extant layers ever fall away. Policy has been consistently reactive as the state makes a hash of every attempt at reform, from the Settlement Land Grants (SLAGs) of the late 1990s – a demand-led process of financial aid for qualifying individuals intended to sift those who truly wanted to farm from opportunists – to the Land Redistribution for Agricultural Development (LRAD) programme, which aimed to establish a class of commercial black farmers, to the disastrous Proactive Land Acquisition Strategy (PLAS) so often in the news for its corruption potential, to the recapitalisation of the PLAS fund, the money for which is rumoured to have been looted. Over the years, land reform policy has shifted from an agricultural focus to a far broader emphasis on ‘land’ in general, and now includes housing and often, by implication, capital – concepts that generally fall under other spheres of government service provision.
PLAS seems to be the current dominant policy and unfortunately involves the state leasing out land rather than transferring titles, vesting ownership in government while having little impact on the statistics regarding black landownership. Eligibility for PLAS is ‘broad and unclear’, as the High Level Report notes, and has worryingly widened the discretionary power of officials.
The opportunities for land reform corruption are myriad, from inflating land prices in the acquisition process to kickbacks from corrupt farmers and beneficiaries for tenders to supply equipment and produce, among other schemes.
Scams take many forms. In 2015, premier candidate Senzo Mchunu revealed how officials in the KwaZulu-Natal Department for Land Affairs and Rural Development were using the identities of dead people, forming fake trusts and listing minors as beneficiaries to fill beneficiary lists for land claim purposes, opting for compensation rather than restoration, and then diverting the money into their own pockets while the land went begging. Many of the fake claims were lodged when government reopened the restitution claims process for a second round while thousands of the previous rounds’ claims were still outstanding, despite the fact that part of the ANC’s promise in relaunching the claims process was to criminalise the lodging of fraudulent claims. Prosecutions have been thin on the ground.
South Africa has been highly unfortunate in the choice of those who lead governmental departments concerned with land and agriculture, which have undergone numerous reconfigurations since the portfolios for the Departments of Agriculture and Land Affairs were merged in 1996.
Lulama Xingwana was minister of this portfolio from 2006 to 2009. No stranger to controversy, she caught hell for remarks she made about white farmers ‘raping’ workers in 2007, and in 2009 Rapport accused her of lugging around an expensive, specially made portable toilet to land-handover events. Her career was described by the Daily Maverick as ‘something like the twenty-two-car pile-up on the N1 … multiple wrecks with no real explanation for why and how the crashes occurred. Xingwana must be the ultimate survivor, wreaking havoc in the three ministries she has served in and yet still able to hang on to a position in Cabinet.’
In 2009, President Jacob Zuma divided the portfolio into two branches: the Department of Agriculture, Forestry and Fisheries (DAFF) and the Department of Rural Development and Land Reform. The Department of Rural Development and Land Reform experienced its fair share of torrid leadership. Gugile Nkwinti, who has often called for the 1913 cut-off date for land claims to be erased, assumed ministerial office at the new department’s inception in 2009. His tenure was eventful. In 2017, Public Protector Busisiwe Mkhwebane initiated an investigation into Nkwinti’s role in the Bekendvlei farm scandal, a deal transferring a land reform farm in Limpopo to the minister’s friends. It was widely reported that these ‘friends’ were Luthuli House employee Errol Velile Present, a former ANC official who was later arrested during an attempted cash-in-transit heist and was linked to several others, and his business associate Moses Boshomane. Nkwinti’s incentive in making sure his mates were in pole position to receive the property was an alleged R2 million kickback. The farm had cost the state R97 million.
Nkwinti was shuffled to the Department of Water and Sanitation in 2018 and replaced by Maite Nkoana-Mashabane. NPO Corruption