Parliament plans to change the property clause in our constitution to allow the state to expropriate land without compensation. The government claims that expropriation without compensation is necessary to restore land that was stolen during apartheid, to redistribute land so that home ownership matches racial demographics and to appease an electorate that is crying out for land.
President Cyril Ramaphosa claims that this policy will not hurt the economy, and that it will bring more people into the fold by helping beneficiaries to become farmers. But before altering the Bill of Rights we should do some myth-busting.
1. Land has not been given back to its rightful owners
South Africa has a dark history of land theft. Justice requires that the wrongs of the past are addressed by awarding compensation to the victims of land dispossession. According to the Institute of Race Relations, over the past 23 years the Land Claims Court has resolved more than 95% of the claims that have arisen. More than 1.8million individuals have received compensation, either in the form of land or money, and fewer than 3500 claims remain unresolved.
2. Home ownership is skewed along racial lines
Amid the cry for land reform one hears the claim that we need to have a more equitable distribution of land based on South Africa's racial demographics. We should be suspicious of racial-demographic thinking because it's exactly what the apartheid government specialised in. However, for those who are sympathetic to it, the home ownership data demonstrates that racial groups own homes in almost perfect proportion to their numbers, according to statistics released in 2015 by the Institute of Race Relations.
3. People are crying out for land
In a wide field survey carried out by the Institute of Race Relations in 2016, when South Africans were asked about the country's most serious unresolved problems, almost 40% identified unemployment, 33% raised lack of service delivery and less than 1% of respondents were concerned about land distribution.
When people win their land claim cases, they are given the choice of receiving land or financial compensation. In 92% of cases, people have chosen money over land. Beneficiaries can use that money to start businesses, pay off debts or invest in the market.
4. Anyone can be a farmer
The government spent over R1.4-billion buying farms in the Eastern Cape to redistribute to aspirant farmers. Of the 265 farms purchased, only 26 remain viable. Being a farmer is not easy. It's a technical job that requires an enormous amount of time, expertise and money.
5. The constitution impedes land reform
Section 25 of the constitution provides a roadmap for land reform while ensuring that no one is arbitrarily deprived of property. It empowers the state to expropriate property in the public interest, which includes land reform. A classic case would be the construction of the Gautrain project, which needed to run through privately owned land, or the acquisition of land to build RDP homes. The constitution recognises that in such cases private owners deserve compensation, which is worked out according to relevant circumstances.
6. Expropriation without compensation won't damage the economy
This is akin to saying that a vow of celibacy won't affect your sex life. Unfortunately, life involves trade-offs. You can't remove property rights and have a flourishing economy. Foreign investors won't risk having their land confiscated when they can pick any number of other nations that will protect their investments.
One doesn't have to look at Mao's Cultural Revolution or the horrors of Stalin's regime to know how bad this idea is. When Robert Mugabe implemented the policy in Zimbabwe it led to the world's worst case of hyperinflation. It wasn't just the original landowners who were hurt - ordinary people were left destitute after the economy was annihilated.
Almost all victims of land dispossession have been compensated. Home ownership matches racial demographics. Barring a few opportunistic politicians, almost no one views land reform as a burning issue. The transfer of functioning farms to ill-equipped beneficiaries has been a spectacular failure. Expropriation without compensation has been tried in communist regimes, where it has harvested riches for a few and devastation for everyone else.
We have an internationally lauded constitution premised on freedom, dignity, and equality. We have never altered our Bill of Rights and the evidence shows that there is no reason to do so now.
Oppenheimer is an advocate and a member of the Johannesburg BarThis article was first published in Businesslive.co.za on 16 May 2018