Land reform: restitution, not redistribution, is the proper vehicle

The disallowance of foreign ownership of agricultural land and the creation of a race and gender registry of landowners are among the proposals contained in the new Regulation of Agricultural Land Holdings Bill, sponsored by the Department of Rural Development and Land Reform. The Free Market Foundation has recently submitted its comment in which it points out that this violates the Constitution and the rule of law.

The Bill is yet another in the list of redistributionist measures undertaken by the government in an attempt to take from some and give to others. Frédéric Bastiat called this "plunder". Redistribution in SA is a historical phenomenon, as tangible and identifiable areas of land were taken from black South Africans, and those areas must be given back to their rightful, identifiable owners. Restitution, not redistribution, is the proper vehicle for land reform the government should pursue.

Bastiat wrote in his 1850 seminal work, The Law, that it "is very evident, then, that the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of to work. All the measures of the law should protect property and punish plunder". SA’s constitution is consistent with this proper aim of the law.

To justify the state’s engagement in wealth redistribution, the equality (Section 9) and property rights (Section 25) provisions of the Constitution are referred to the most frequently. This is erroneous and a perverted interpretation of the centuries’ worth of jurisprudence and development that went into the concept of constitutionalism.

The equality provision provides, first, that all are equal before the law, and secondly, that legislative measures may be taken to promote the achievement of the "equal enjoyment of all rights and freedoms" in the Bill of Rights. The property rights provision not only protects private ownership of property, but also provides that the results of apartheid be redressed, that security of tenure be implemented, and that restitution of property take place.

None of these provisions call for, or imply, blanket redistribution of wealth and property legitimately acquired by owners. On the contrary: these provisions protect individuals and communities from oppressive meddling by the state, and enable the state to correct its own past misdeeds while respecting existing rights.

The proposed Bill violates the property rights of foreigners, and to require landowners to self-classify themselves on race and gender grounds betrays the non-racial and non-sexist values of the Constitution. The property rights clause, unlike other provisions which refer particularly to "citizens", provides that "nobody" will be deprived of their property and makes it clear that nationality has no bearing on the right to property in SA. The Bill is thus inconsistent not only with the spirit of the Constitution, but the very text itself.

A crucial phenomenon of the post-apartheid context that the political class ignores is land reform that has taken place outside of government programmes. An increasing number of black South Africans now live in former "white" suburbs or suburbs established in post-apartheid years. Adrian Frith’s interactive online map, based on the 2011 census, illustrates this well. While complete parity has not been — and will never be — achieved, "spatial apartheid" in the suburbs is a thing of the past.

"Townships", however, are a different story entirely. Millions of black and coloured South Africans continue to live under a quasi-state of house-arrest in these areas, either as tenants in their own homes, or are simply not allowed to sell their homes in search of greener pastures. Dozens of forms of apartheid tenure govern these areas and remain mostly unchanged to this day. This can swiftly be solved by the government if it would simply upgrade uncontested plots to full ownership.

Agricultural land cannot easily be sub-divided into smaller plots that can be sold at an affordable price, as under the apartheid land law, the Subdivision of Agricultural Land Act, landowners are still required to obtain the minister’s permission to do so. This is keeping agricultural SA in an authoritarian parent-child relationship with the government, at a time when we are supposed to be unburdening ourselves from the shackles of the past.

Apartheid was characterised by its denial of property rights to black South Africans. Today, we live in a legal order that guarantees the right of individuals to own property, with all the entitlements that flow therefrom. Our post-apartheid government, however, consistently shows its disdain for this state of affairs and, with proposals such as the Regulation of Agricultural Land Holdings Bill on the table, it is clear that the political class’s preference is a return to the old way of doing things.

Van Staden is legal researcher at the Free Market Foundation and academic programmes director of African Students For Liberty in Southern Africa

This article was first published in Business Day on 17 May 2017

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