The FW de Klerk Foundation, in line with its annual theme of Land Reform and Property Rights, held a conference in Johannesburg yesterday, with the overall theme of “Property Rights for All South Africans – and the Role that Land Reform can Play in Expanding Property Rights”.

As the theme indicates, the Foundation believes that the two aspects of section 25 of the Constitution must both receive urgent attention. On the one hand therefore, the importance of property rights in all working democracies and economies was emphasised in the first half of the conference. The second half of the conference dealt with the question of how property rights could be extended to all South Africans through effective and accelerated land reform, in the areas of agricultural land, urban land and communal or traditional land.

The conference was opened by former President FW de Klerk (founder of the Foundation) and Mr Henning Suhr, the head of the Konrad Adenauer Foundation (KAS) in South Africa, which co-hosted the conference. Mr Suhr pointed out the importance of the theme and called for rational debate and discussion on a highly emotive topic.

Mr De Klerk did an astute analysis of the issue of changing section 25 to allow for expropriation without compensation (EWC). He pointed out that the ANC’s Nasrec resolution and the parliamentary motion contain inherent contradictions, as it is not possible to implement EWC without harming the agricultural sector, food security, other parts of the economy and future investment in the economy. He also pointed out that the country is already losing too many farmers because of the uncertainty caused by the section 25 process and the difficult nature of farming in South Africa. The real challenge will be to retain farmers – of any race – with the proven ability to produce food. He also stated that EWC would be a serious blow to the 1994 constitutional accord. The property clause was one of the most tightly-negotiated compromises in the final Constitution.  Non-ANC parties conceded the principle of expropriation in the national interest – which included land reform.  In return, the ANC accepted that just and equitable compensation would have to be paid for expropriated property.

Mr De Klerk concluded that land reform could enhance the property rights and freedom of millions of South Africans – or it could deprive them of their property and reduce them to the status of dependent tenants. If handled correctly, land reform could be the most positive development since 1994.  However, if handled badly on the basis of expropriation without compensation, it would be a catastrophe for all South Africans.

Dr Theuns Eloff, Executive Director of the Foundation, reiterated the Foundation’s position on the amendment of section 25: it was not necessary to amend section 25, and it would have disastrous effects if it were changed to allow EWC. Politically it could lead to instability and even anarchy. Economically, EWC could not be implemented without serious harm. The test whether there would be harm could not be objectively decided by politicians, but by the subjective perception of business people, farmers and property holders. Legally, EWC would run contrary to the law of general application in section 36 of the Constitution.In targeting a specific group of South Africa’s population, the law no longer becomes a law of general application and would run contrary to the values of section 36, specifically that of equality.

In the second part of his input, Dr Eloff stated that amongst all the important things to be done to make land reform effective and accelerate it, were three main conditions. Firstly, we cannot reform or redistribute what we do not know. The President should as soon as possible, commission a proper, comprehensive and legitimate land audit – executed by a task team consisting of public and private sector staff and using all resources at the State’s disposal. Secondly, and in the line with the Report of the High Level Panel, we need a comprehensive legislative framework for land reform. This Land Reform Framework Act should contain a definition of land reform, its nature and scope, prescribed procedures and processes (including post settlement support, skills transfer) and measures to guarantee transparency and accountability.  Thirdly, and in the light of the incapacity and corruption in the department(s) that had been tasked with land reform for the last two decades, we need an effective and capable agency to implement land reform. This should take the form of a “special purpose vehicle” (SPV) established in terms of legislation and situated in the Presidency. It should contain the best talent from the public, private and NGO sectors and have a specific time-bound mandate and targets. It should also work actively to establish partnerships with existing organisations in the land reform arena.

The session on the centrality of property rights started with a valuable input from Mr Pierre Venter, General Manager at the Banking Association SA (BASA). He confirmed that the BASA was not in favour of EWC, but that it understood and accepted the need for speedy and effective land reform in all areas. Dr Anthea Jeffry of the Institute of Race Relations (IRR) pointed out the history of EWC, and finding its roots in the ideology of the Freedom Charter and the National Democratic Revolution of the ANC. She warned against the possibility that in terms of EWC, property could be more than land. Mr Lumkile Mondi, economist at Wits, likewise warned against the disastrous economic consequences of EWC and made comparisons with other countries such as Venezuela, as a warning against populist measures.

The sessions dealing with land reform started with an input by Mr Leon Louw of the Free Market Foundation (FMF). He emphasised the importance of especially urbanised black South Africans receiving title deeds for the land their houses were built on – both for informal settlements and rural land. Mr Louw further made mention of the FMF’s Khaya Lam (My Home) title deed project. Mr Omri van Zyl of Agri SA gave an overview of the solutions proposed and practiced by the agricultural sector. He made the point that SA agriculture could, with its knowledge and technology, be the bread basket of Africa. Turning to communal land, Prof Juanita Pienaar of Stellenbosch University gave the conference a glimpse of the extremely complex nature of communal land and its many facets, including customary law and cultural traditions, that often were at odds with the western concept of individual title deeds. In addition, Mr Siyabulela Monana of the agri-advisory service, Phuhlisani Solutions, gave an overview of the myriad pieces of legislation affecting communal land. He pleaded for a consolidation of these and an improved land administration system, using data that could be accessible by all.

The last speaker of the day was Dr Rosalie Kingwill, of the Institute of Poverty, Land and Agrarian Studies (Plaas). As a member of the group that produced the High Level Panel Report, she gave an overview of the 100 pages of the 600 page Reportthat dealt with land reform. She urged the audience to read the document and reaffirmed the fact that the Panel found, through the participation of thousands of South Africans, that the main reasons for the failure of land reform during the last 20 years were the lack of political will, incapacity and corruption of officials, and the lack of a comprehensive legislative framework.

The conference included two panel discussions of an hour each, during which members of the audience could make their views heard and ask questions of the panel members. The moderators of these sessions were Ms Phephelaphi Dube, Director of the Centre of Constitutional Rights (CFCR), and Ms Zohra Dawood, Director of the Centre for Unity in Diversity (CUD). The views from the audience were diverse, ranging from being in favour of land returned to black South Africans, to being critical of EWC and government’s failure to effect land reform in the last 20 years. Although the debate was robust at times, the proceedings were, however, always respectful and mature.

The Chairman of the Foundation, Mr Dave Steward, concluded that the day had been extremely informative, given the wide range and quality of speakers. The balanced perspective of both maintaining property rights and having effective and accelerated land reform could be an important contribution to the national debate. He urged attendees to use the information and perspective gleaned to that effect.

In all its work, the FW de Klerk Foundation and its two Centres seek to influence public opinion through the dissemination of information which is balanced and fact-based, and that could enhance constitutional democracy. The Conference achieved this goal.

Issued by the FW de Klerk Foundation
5 July 2018