South African Land News

Unfortunately Phuhlisani NPC has had to discontinue this service due to lack of funding support. This page provides access to archived analysis pages.

19 November – 31 December: Weeks 47- 52

 

The changing Covid context

In our last update (19^th of November 2020) we indicated that there were fears that cluster outbreaks could lead to a second wave of Covid infections in South Africa. Unfortunately, these fears have been realised and South Africa is back on Level 3 lockdown restrictions. Total recorded cases now top 1 million, while another 8469 people are officially reported to have died from the virus.

Projections of the actual death rate are much higher as can be seen from the report on excess deaths prepared by the South African Medical Research Council. Data from December for the Eastern Cape indicates the widening gap between reported Covid 19 deaths and natural excess deaths. This trend is reflected to a greater or lesser extent across the nine provinces in the country, and has been particularly noticeable in the Western Cape, Gauteng and KwaZulu-Natal.

Expropriation

The ad hoc committee on land expropriation which has been exploring constitutional amendments to clarify the circumstances under which land could be expropriated without compensation was unable to complete its business by the end of 2020. In December Parliament extended the deadline to the end of March 2021.

In a separate but linked process the Portfolio Committee on Public Works and Infrastructure requested written submissions on the Expropriation Bill (B23-2020). The submissions are required before 10 February 2021. The purpose of the Expropriation Bill is to repeal the existing Expropriation Act (No. 63 of 1975), provide a replacement legal framework while making provision for cases where expropriation with nil compensation may be just and equitable. Given that the Constitution is the supreme law of the land, the Expropriation Bill has to align with whatever form a constitutional amendment will take.

Farms and Farmworkers

On 16 November the Western Cape Department of Agriculture announced that it would provide a R12 million support fund to provide relief to employees in the local wine tourism sector. The wine sector has been adversely impacted by the combination of Covid 19 and measures to restrict the sales of alcohol in a government bid to keep the pressure off healthcare facilities as they battle to manage the pandemic.

On 29 November The Mail and Guardian ran the first of a two-part series on farm evictions in Greytown, KwaZulu-Natal. The features highlight the vulnerability of farm workers as occupiers on land owned by someone else. Nokuthula Mthimunye, a spokesperson for the Association for Rural Advancement has observed a rise in the insecurity of tenure of farm dwellers because of the effects of the Covid-19 pandemic.  “Several people have lost employment on farms … Those whose accommodation is linked to employment have also lost a place to live.”

In June DefenceWeb reported on an SANDF plan to establish the Mzansi Home Guard. On the 3 December IOL carried a report on co-operation between SANDF and AgriSA to deploy rural security (home guards) to help curb farm murders and improve rural safety and security. Quite how the SANDF has negotiated an agreement, seemingly without the involvement of SAPS who are responsible for implementation of the rural safety strategy has yet to be explained. Back in 2003, President Thabo Mbeki announced the phasing out of the SANDF Commando System and the creation of a new system. It seems that the current initiative reinserts the SANDF in the picture as they are responsible for the training and presumably the remuneration of the proposed home guards. This raises important questions about the monitoring and oversight of the functions and actions of the proposed home guards and their status in law. We will aim to provide more clarity on this in future updates.

Food security

A wide range of topics are covered in this section. The Daily Vox of the 30 November carried an interview with Nazeer Sonday – an activist who has long been campaigning for the protection of the Philippi Horticultural Area in Cape Town which has been threatened by planned housing and property development:

The PHA is very important for Cape Town but also South Africa. It supplies the city with around 200 000 tons of vegetables per year is produced in the PHA… if we don’t have this area, food will have to be imported from other areas and other provinces and from overseas. Importing food means more expensive food with a lot of added carbon miles. The PHA ensures that people are getting healthy food without the environmental damage.

On 5 December Minister Didiza announced a further round of support for smallholder farmers who can obtain farming input vouchers up to the value of R9000.

The 2020 Countdown on Health and Climate Change Report published in the Lancet was discussed in a report carried in Maverick Citizen (8 December). The report highlights how one of the impacts of climate change is shorter growing seasons.   This means that the crops mature too quickly, which leads to lower than average yields. The report notes that in 2019, South Africa experienced a reduction in crop growth duration — compared with a 1981-2010 baseline — of 12.8% for maize, 8.9% for soybean and 5.4% for winter wheat.

This has an impact not only on the price of food, but food security and household nutrition, particularly for poorer households.

In 2016, 27% of children under the age of five were reported to be stunted. This figure seems set to rise in the face of the combined impacts of food insecurity related to the pandemic and climate change.

Prof Michael Aliber interviewed Wandile Sihlobo in the Conversation (14 December) for his take on how Covid recovery plans need to think about agriculture. Sihlobo makes the case for “embracing technology (information technology, mechanical and biotechnology) and private sector partnerships”. He is an advocate for land titling which he argues will help commercialise and grow the agricultural sector. It is clear from the interview that Aliber is sceptical about Sihlobo’s approach. This suggests a need for more in-depth discussion and debate about possible future agricultures and the up and downstream impacts of different approaches.

Land governance and administration

Court proceedings brought by rural women against the Ingonyama Trust shaped the dominant stories in this section. In the same period land activists mourned the passing of Sizani Ngubane the director and founder of the Rural Women’s Movement which brought the legal action who died just before Christmas.

The RWM tribute to her highlighted her immense courage and contribution:

Reflecting on the life of uGogo Sizani we are reminded of Cornel West’s proclamation that, ‘…justice is what love looks like in public’. For decades, spanning minority-rule to the present, uGogo Sizani was a freedom fighter for love both in public and in private.

Earlier in the year Zukiswa Pikoli profiled ‘Mam’ Sizani who was born in 1946 in the KwaZulu-Natal village of KwaMpumuza in the uMgungundlovu District. She was raised by her mother, a domestic worker who earned R8 a month while her father worked in Johannesburg as a migrant worker.

A woman of great courage Mam Sizani recalled that:

I have been defamed… arrested for allegedly breaking into my own house… I have been beaten up and nearly lost my life after a group of men broke the door on a farm and left me thinking I was dead. I hear some white people saying they are attacked on farms because they are white – I was nearly killed on the farm but I’m black.”

Yet she keeps going:

I get motivated by seeing the smiling faces of women who have lost hope that we will ever win our struggles.

Chris Makhaye from New Frame (7 December) provides important background on the court case which seeks to declare that the Ingonyama Trust has acted unlawfully and in violation of the Constitution by cancelling residents’ Permission to Occupy (PTO) certificates and concluding residential lease agreements with holders of PTOs and/or informal land rights.

Kim Harrisberg writing for the Thomson Reuters Foundation provides an unusual twist on the dispossession narrative with an article entitled Rural South Africans fight for Zulu king to return their land.

According to the Legal Resources Centre:

Since 2007, the Trust has been “unlawfully compelling (residents) to conclude lease agreements and pay rental to the Trust to continue living on the land… The homes they have built now belong to the Trust. Most egregiously, residents are required to pay rent and face eviction from their land if they default.

Land policy

Several news outlets reported on Deputy President David Mabuza’s statements on land reform in November. Following the government decision to release large amounts of state-owned land it quickly became clear that much of this land had been acquired as part of the process of ‘homeland consolidation’ under apartheid and is already used and occupied. According to the Deputy President (IOL, 29 November 2020) government was aware of this all along:

We decided to advertise and simultaneously take this inquiry. The purpose is not to penalise people. The purpose is to dispose of this land correctly and put this land in the books…We are not to chase people that make a living on the land because our intention is to make sure our people are given land to make a living.

On 4 December  Agbiz Head of Legal Intelligence Theo Boshoff argued that Covid-19 could have a “silver lining” which in his view would be “a more practical approach to land reform, agricultural development and other economic policies.” Boshoff singles out:

• the release of state land,
• the registration of producers in a single farmer register as the basis for access to support,
• the availability of blended finance (combining commercial finance and state grants),
• the policy on comprehensive producer development support policy.

According to him these are all markers of this new practical turn.

However, three days later the violent shadow side of state incapacity and policy failure was starkly revealed when Mrs Nontembiso April (56) and Mr Takayina April (66) were shot down by assassins on Draaifontein Farm in the Sakhisizwe Local Municipality in the Eastern Cape. The CALUSA website issued a statement on this killing which had very little news coverage nationally.

The Aprils were farm dwellers living on land redistributed by the state who had become land activists demanding that the rights of farm dwellers be recognised and that they too should be able to access land through land reform.

Mrs April in particular has been a formidable activist in the struggle for democratic governance and equitable access to land for all throughout South Africa. She and her colleagues are victims of a failed post-1994 land reform programme which marginalises farm dwellers and gives land to elite black African farmers who are hostile to farm dwellers and continuously threaten them with evictions.

Nothing has since been reported on progress in arresting the two men who shot the couple in broad daylight in front of their 19 years old son. According to Eastern Cape police spokesperson Colonel Sibongile Soci “the motive for the killings was unknown and they would not speculate on it”. (Citizen 9 December, 2020)

Land Rights and Mining

The murder of Fikile Ntshangase, the death threats to Nonhle Mbuthuma and the continuing struggles of mining affected communities dominate the news in this section. Ed Stoddard writing in the Business Maverick (19 November) provides the backstory on the Somkhele mine expansion, the resettlement of affected families and the disputes over compensation on offer. While Petmin the unlisted company behind the mine expansion insists that it has acted reasonably and that only minority voices opposed to mining are being heard Johan Lorenzen, a lawyer at human rights firm Richard Spoor Inc Attorneys, which represents the 17 households that have not agreed to the terms of their relocation, argues that the “continued public statements that 17 households’ demands for fair compensation threaten the closure of the mine intensify these households’ vulnerability to violence and intimidation”.

Stoddard notes holders of mining rights are required since March 2020 to publish approved social and labour plans on their websites. When the Daily Maverick article was written no such plans were publicly available as required. However this has since been rectified and a social and labour plan 2018-2022 is available on the Petmin website.

Mary De Haas (Daily Maverick 29 November) makes the case for phasing out coal mining.

Mining does not alleviate poverty – rather, it entrenches inequality. What these areas need is true, community-driven development, utilising all the environmental, agricultural and tourism potential of the area it is part of.

Mining activities bring conflict, for only a select few benefit from what are generally low-grade jobs, the security of which relies on the vagaries of international markets.

She also provides analysis of the divide and rule tactics alleged to advance the expansion of coal mining in the Tendele area and which preceded the murder of Mrs Ntshangase.

In a more optimistic take on mining and community relations Stoddard also writes about the Mothlotlo Empowerment Deal in which the Mothlotlo community in Limpopo, is in the process of being relocated to make way for an expansion of Amplats’ Mogalakwena mine.

Human rights lawyer Richard Spoor, who has worked with the community for more than 15 years and represented their interests in the transaction, said giving households direct equity was a departure from previous BEE deals.

According to Stoddard:

A community that has been at odds with Amplats over the years is going to get partial ownership of an asset that should deliver revenue from work contracted with Amplats, which is cash-flush at the moment.

Restitution

Numerous restitution stories have been covered in this final period of 2020.

The land claim of the Prudhoe community went all the way to the Constitutional Court which found in their favour. GroundUp reports a statement by the Legal Resources Centre (LRC) that the case was finally resolved “after two trials in the land claims court, three appeals to the Supreme Court of Appeal (SCA) and two trips to the Constitutional Court”. Most of the appeals came from the Mazizini Community who laid claim to the land themselves. The Constitutional Court dismissed the Mazinini  appeal, bringing the saga to an end. However, while the Prudhoe community may celebrate an end to their 22 year struggle, we have seen elsewhere what the courts decide is not always implemented on the ground.

Rehana Rousseau has recently written a book entitled Predator Politics which explores how corruption has derailed land reform and conservation programmes in Mpumalanga. It details Deputy President David Mabuza’s alleged role in “an extraordinary history of alleged graft”.

Greg Nicholson (Our Burning Planet 4 December) provides a review of a land dispute between Fred Daniel and David Mabuza which is the subject of the book. He singles out Rossouw’s analysis of how leaders of the KaNgwane homeland effectively became a part of the ANC provincial government after apartheid, and “seamlessly carried their scams from the homeland into the democratic government”.

The book alleges that Mabuza as Agriculture MEC manipulated the land claims process, putting forward “claims without merit” as a means to pressure Daniel and other landowners and to enable government officials, including those in the Land Claims Commission to gain access to land. Daniel has launched a civil claim against Mabuza claiming damages of more than R1 billion which is scheduled to be heard in the North Gauteng High Court in June 2021.

In other Restitution news

• Fatima Moosa in the Daily Vox (07 December) writes about the social importance of the District Six museum as a defence against forgetting the impacts of forced removals.
• Lucas Ledwaba reports on the troubled history of the Zebediela Citrus Estate in Limpopo, once the biggest citrus farm in Southern Africa and now on the brink of collapse. It is estimated R465-million in capital will be needed to redevelop the estate, but the question is whether this will be money well spent.
• The North Coast Courier (26 December 2020) features the ongoing contestation between the descendants of John Dunn, a white hunter and businessman who was elevated to the status of a Zulu chief by King Cetshwayo and given custodianship of land in Mangete in the 1850s. Dunn is said to have married 49 Zulu women and fathered 117 children. When Dunn died in 1895 he left 4 000 hectares to his children, parcelled into 40 hectare plots. Dunn’s descendants obtained title deeds to this land in 1979. It is a complex story about history, identity, belonging and bitter disputes over access to land and is another example of the complexities integral to an understanding of land issues in South Africa and beyond.

Rural development

The ongoing financial woes of the Land Bank feature in rural development news. Dr John Purchase writing in Business Day (16 December 2020) cautioned that:

The summer season (2020/2021) has been hit by a financing crisis that will in all probability permanently change the financing environment of primary agriculture in SA.

Purchase notes that SA’s primary agricultural debt ballooned from R70bn in 2010 to R187.5bn in 2019, in nominal terms.

The four major commercial banks, together with the Land & Agricultural Bank of SA (Land Bank), hold just on 90% of that debt, with the Land Bank’s share alone amounting to 29%.

The Land Bank can now only provide about 50% of its commitments to its clients through its service-level agreements (SLAs) with several agribusinesses… Of greater concern is the ability of the Land Bank to raise further capital on the capital markets, as has been the practice over the past couple of decades. Investors are adamant that the government needs to provide a 100% guarantee on investments, while the Treasury is only offering a 60% guarantee.

The precarious position of the Land Bank and mounting concerns about its corporate governance are likely to impact heavily on the future viability of land reform.

Also on our rural development pages we feature news about the impacts of Covid 19 and the related levels of lockdown restriction on the wine industry. VINPRO has argued strongly on the economic impacts of lockdown on the wine industry, wine sector tourism, farmers and workers. Much of the news in the final few weeks of the years has focused on confusion over wine tasting and sales on wine farms – whether it is permitted or prevented.

As 2020 drew to a close President Ramaphosa took action to stem the second wave of coronavirus infections which saw 50,000 infections recorded since Christmas eve, together with the recent discovery of a more infectious Covid-19 variant. As the holiday season kicked in so did alcohol related trauma admissions in state hospitals, already struggling with the resurgence of the virus. Level 3 lockdown reinstituted the ban on alcohol sales.

A healthier way forward for alcohol in South Africa?

It is clear that once the Covid crisis is over South Africa needs a deep national introspection into the levels of alcohol abuse and the contribution alcohol makes to domestic violence, criminal assaults and road deaths. Nandi Siegfried & Charles Parry wrote a persuasive op-ed in Maverick Citizen (27 December 2020) on the collision between alcohol abuse and Covid-19.

Alcohol use, and especially heavy drinking, is causally related to trauma admissions. This relationship is undisputed by scientists worldwide. Availability, price and affordability of alcohol, as well as marketing practices have increasingly been shown to impact on drinking and associated harms.

This referenced an op-ed published earlier in the year (Parry, Gray, Maker and Smithers 27 July 2020) which proposed a 10 point plan for charting a healthier way forward for alcohol in South Africa.

1. Reduce selling days to three per week, e.g. Monday to Wednesday or Tuesday to Thursday (9am-5pm).
2. Limit quantities purchased per person at a particular outlet per day to make it harder to purchase for on-selling without a licence (perhaps the equivalent of 12 bottles, or 2 boxes, of 750ml wine or 12x330ml 6-pack beers or 4 bottles of 750ml spirits or 48x500ml cider), and the maximum quantities allowed to be sold should also be the maximum amounts allowed to be transported in a vehicle without a permit.
3. Limit container sizes of beer and cider allowed for sale at this time to no more than 500ml, and wine and spirits to no more than 750ml.
4. All sales should be subject to presentation of ID for age verification and quantity control.
5. Diminish drink-driving by enforcing a maximum blood alcohol concentration (BAC) level for drivers of 0.02g alcohol/100ml of blood (or breath equivalent).
6. Increase random breath testing of drivers.
7. Mandatory testing for blood alcohol after serious motor vehicle collisions.
8. Marketing of alcohol should be suspended immediately except at points of sale, with no “lifestyle” advertising and no special offers permitted.
9. Alcohol deliveries must be effected only by drivers directly employed by licensed alcohol outlets to ensure that there can be consequences for violations in terms of selling, for example, to under-aged youth or to already intoxicated persons, and all deliveries must be subject to ID verification and take place only during the prevailing off-consumption alcohol outlet trading hours.
10. Alcohol-related trauma should be made a notifiable condition at trauma units and mechanisms be set up to facilitate the use of biomarkers or validated clinical assessment tools.

Traditional Leadership

The Alliance for Rural Democracy & Land and Accountability Research Centre issued a joint statement on 3^rd December expressing deep concern at the hurried passage of the Traditional Courts Bill.

On 2 December 2020, the National Council of Provinces (NCOP) passed the Traditional Courts Bill [B1D-2017] (TCB) in a plenary session, after a rushed process that ignored significant concerns raised by numerous stakeholders.

The passage of the TCB follows on the heels of the Traditional and Khoi-San Leadership Act 3 of 2019 (TKLA) that was signed into law by the President in November 2019. Although it has not commenced operation yet, this law will also have detrimental consequences for traditional communities. This Act removed almost all references to democracy, transparency and accountability that were contained in the traditional leadership legislation it will replace. In terms of section 24, traditional councils are able to enter into agreements and partnerships with third parties without the consent of directly affected individuals and communities. Consultation requirements in the Act are weak and do not include customary decision-making processes. The TCB could therefore provide traditional leaders and councils with an enforcement mechanism to further suppress democratic customary law processes in rural areas.

Together, these two pieces of legislation constitute an onslaught on rural democracy, the constitutional rights of rural citizens and resuscitate Bantustan geography.

The passage of these laws excpands the ANC playbook which seeks to keep traditional leadership sweet while creating an enabling environment for land and mining deals in the former bantustans for the benefit of an elite few.

Urban land

As usual our urban land pages are filled with numerous stories – too many of them to mention in detail here. We briefly select a few highlights from the past five weeks.

Perhaps the most significant story is about Minister Sisulu’s reported intention to end/downscale free housing and offer serviced sites instead. (Daily Maverick 23 November)

Government will still support development of medium and high-density developments, and existing contracts will be honoured. New housing projects are supposedly restricted to those benefitting child headed households, the elderly, disabled and military veterans.

Veteran housing activist Ronald Eglin from the Eastern Cape NGO Afesis Corplan writing in Maverick Citizen (8 December 2020) notes that:

This shift in the government’s human settlement policy is not unexpected. In the 2019 election manifesto of the ruling party, the ANC promised to “release land… for site and service to afford households the opportunity to build and own their own homes”, and to “accelerate the transfer of title deeds… as part of the rapid land-release programme that makes parcels of land available for those who want to build houses themselves.

However, Eglin cautions that this shift is not recorded in any formal housing policy document. He argues that:

The government needs to come out with a much clearer and comprehensive policy-change message. In the short term, the minister needs to make a more formal announcement informing provinces and municipalities on this proposed policy shift. This announcement needs to be accompanied by a comprehensive awareness-raising drive where it is explained why this shift has happened and how they expect municipalities and provinces to act going forward

In the medium term, the government needs to formally work to develop a new policy on rapid land release and translate this policy into programmes with associated budget allocations. Ideally, this new policy needs to be an outcome of a new human settlement policy.

Meanwhile housing activists and researchers Adi Kumar, Lauren Roysten and Michael Clark also express concern that a major policy shift is communicated through the media. They make the important point that:

It is not necessarily resource constraints that hamper housing delivery, but many of the underpinning financial instruments and their rigidity. For instance, if it takes an average of 11 years to implement a housing project, we can see no reason why the Rapid Land Release Programme will be exempt from the inefficacy of the underlying processes and instruments that have plagued housing delivery to date.

In the Western Cape GroundUp (26 November 2020) reports that 14 000 people are living on the streets of Cape Town.

Daily Maverick (16 December 2020) reports on a campaign spearheaded by Ndifuna Ukwazi and Reclaim the City which advocates for the release of well-located state land owned by the Defence Force which could settle 67000 households.

Following a devasting fire in the informal settlement of Masiphumelele the Minister of Human Settlements pledges construction of 2800 home (EWN 21 December, 2020). This announcement follows shortly after the new policy direction mooted above – suggesting that there is yet to be much consistency in the government’s approach to housing policy.

Finally on 30 December the City came in for criticism for its decision to lease a site on New Market Street for parking as opposed to construction of social housing.

Selected land news from Southern, Central and Eastern Africa

There is a wide variety of news items covered on our Africa land news pages. We provide a quick scan below of the most recent additions.

Angola

The World Food Programme (23 December 2020) announces an agreement to support child nutrition for over one million children in Luanda province.

DRC

CIFOR (24 December 2020) reports that since 2012, DRC has been engaged in a land reform process to replace the land law currently in force, which dates from 1973. Eight years and many consultations later, however, there is still no consensus on key issues, and the proposed national land policy remains an unvalidated draft. At the heart of this debate is the lack of recognition of customary tenure. Marie-Bernard Dhedya, a Congolese lawyer and professor at the University of Kisangani argues that DRC needs a legal framework that formally incorporates customary tenure and promotes legal pluralism.

Kenya

Radio France Internationale (26 December 2020) reports on a land struggle between Kakuzi PLC a a listed Kenyan agricultural company trading on both the Nairobi and London Stock Exchange engaging in the cultivation, processing and marketing of avocados, blueberries, macadamia, tea, livestock and commercial forestry and 10,000 ‘squatters’ who are laying claim to the land the farm sits on.

Lesotho

Foodtank reports on a new agreement between Lesotho and IFAD to stimulate the rural economy and boost sustainable agriculture.

New Frame features a review of This is not a Burial, It’s a Resurrection  a film set amongst migrant worker communities in Lesotho which also face displacement due to dam building.  The film makes history as the country’s first official submission to the Best International Feature Film category at the upcoming Oscars:

On the surface, This Is Not a Burial, It’s a Resurrection deals with loss, grief, identity and the resolve to fight for what is right, while simultaneously presenting a sharp critique of colonialism, modernity, corruption and bureaucracy.

Namibia

On 28 December 2020 Mongabay reports on exploratory drilling for oil in Northern Namibia in the Namibian portion of the Kavango-Zambezi Transfrontier Conservation Area (KAZA). Recon Africa is the holder of a licence to explore a 2.5 million hectare area (6.3-million-acres) of northeastern Namibia. In a related story UNESCO was reported to be vigilant on the impacts of oil exploration on World Heritage properties.

The Namibian (17 December 2020) reports that President Geingob ignored questions regarding a report meant to direct the government on how to address the claims of ancestral land in Namibia. The report published by the commission of inquiry into the claims of ancestral land for restitution was submitted to the President’s Office in July this year.

Sonja Smith writing Daily Maverick (14 December 2020) provides a sobering exposé of the conditions of farm workers in Namibian vineyards in Aussenkehr located about 50 kilometres from the Noordoewer border post that separates Namibia from neighbouring South Africa.

Rwanda

In Rwanda New Times (24 December) reports that there has been an increase in property tax which is more than three times what people were supposed to pay before. The article provides details on how the property tax is levied as well as penalties for non-payment.

Uganda

In Uganda the Monitor (29 December 2020) reports on a new a campaign that is aimed at advocating for land rights where women are allowed to own land to improve their livelihoods. While Article 237(1) of the Constitution clearly states that land belongs to citizens of Uganda and Article 21 prohibits discrimination based on gender, these rights still remain to be realised in practice.

Zimbabwe

The Zimabweland blog continues to provide a rich resource on land related issues. On 7 December the blog reviews a new report from the International Land Coalition and Oxfam called ‘Uneven Ground: Land Inequality at the Heart of Unequal Societies’, along with 17 supporting papers. Through new analysis it shows that land inequality is even larger than previously thought, and that this has dramatic effects on poor people’s livelihoods, particularly those of women and young people.

South African land news: Weeks 43 – 46

19th October – 18 November 2020

The changing Covid context

South Africa reached its peak of Covid 19 cases in July 2020. Case numbers fell steeply in August before levelling off in September and October. However there are now signs that cluster outbreaks are increasing once again in the Eastern Cape Western Cape and Northern Cape’s prompting concerns about a possible second wave of infections. The Department of Health defines a resurgence as a 20% increase in the average number of cases over a seven-day period. As of November 17, 2020 there were just under 2000 confirmed cases in the country on the day. Total recorded cases now stand at 754,256 while more than 20,000 people are reported to have died. However, as we indicated in previous news updates the actual death rate is substantially higher.

The extent of the impacts of Covid 19 upon employment, household food security and the formal and informal economy has yet to be fully understood. Data released by Statistics South Africa indicates that the South African economy shed two million jobs in the second quarter of 2020. This is described as “an unprecedented change and the largest quarter to quarter decline since the Quarterly Labour Force survey was first undertaken in 2008”.

There are widespread concerns that a return to lockdown would have an extremely negative impact on the economy and jobs with business trying to secure certainty from government that South Africa will not return to hard lockdown, irrespective of infection rates.

Expropriation

With the publication of a revised version of the expropriation Bill earlier in October – something that has been in preparation since 2008, government is reported to be taking steps to reassure investors that the land acquisition process will be managed within the framework of the rule of law (Businesstech 21 October 2020).

The Minister of Agriculture, Land Reform and Rural Development has been arguing that the proposed amendment to the Constitution and the finalisation of the Expropriation Bill will provide legal clarity on what the government can and can’t do with respect to land expropriation, and that this will reassure investors.

Meanwhile the ad hoc committee established by Parliament to examine the amendment of the property clause in the Constitution has resumed public hearings in Limpopo and the Northern Cape.

Lucas Ledwaba writing in the Daily Maverick (25 October 2020) reports how the land expropriation hearing in Limpopo had to be abandoned for security reasons, as supporters of the ruling ANC and the EFF, the second largest opposition party, clashed with each other at the hearings venue. The likelihood that the public hearing contributed to the spread of Covid 19 cannot be discounted, as more than a thousand people packed into the hall, failing to maintain social distancing as required by the lockdown regulations.

Meanwhile MPs confirmed that the Expropriation Bill will be pushed through the national legislature as part of a suite of legislation to accelerate land reform. Associate Professor of Law, Elmien du Plessis has provided a useful analysis of the convoluted process leading up to the publishing of the new Expropriation Bill, 2020 (The Conversation, 1 November 2020). She explains:

The first attempt at an Expropriation Bill was 12 years ago, in 2008, but it was shelved because of the concern that it obscured the role of the courts in expropriation and would therefore be declared unconstitutional.

Another attempt was made in 2013. The 2013 bill was refined and became the 2015 bill, which made it onto the table of the president the same year, to be signed into law. But it was officially withdrawn in 2018 because the process of amending section 25 of the constitution was still not completed. Communities living on land in terms of customary law also had reservations about its constitutionality, including the public participation process.

Du Plessis points out that there remain a few unclear provisions in the Bill including the actual definition of expropriation, the circumstances under which no compensation would be payable and the process of expropriating land on which communities have land rights. The Bill is only likely to be finalised in 2021.

The Minister of Public Works who has been criticised by the conservative think tank, the Institute for Race Relations (IRR), mounted a counter-attack to her detractors in an op-ed in Business Day (8 November 2020). She notes that back in 2015 the IRR had proposed an alternative Expropriation Bill. The Department of Public Works had at the time sought legal opinions of two leading advocates, who both agreed that the draft proposed by the IRR “was inconsistent with the approach to property which is reflected in the Constitution”. The Minister rubbished the attempts of the IRR to reintroduce their alternative bill stating that:

The emotive land issue needs clear perspective to avoid disinformation campaigns bad analysis and political populism as seen in the IRR alternative bill. There is no more time for alternative bills or legislation. Let us get on with the important task of land reform and spatial justice.

The Expropriation Bill has been referred to the National House of Traditional Leaders for consideration. The House of Traditional Leaders has until 6 December 2020 to make comments on the Bill.

Farms and Farmworkers

As reported in the previous land knowledge update, the EFF had succeeded in inserting itself into the social response to the murder of a young farmer in the Free State. Subsequent to this, the EFF has sought to take up the case of farmworker rights, urging Parliament to intervene to improve the living conditions of farmworkers in the country. The EFF proposed the formation of an ad hoc committee to hold public hearings with all interested and affected stakeholders (SowetanLive 6 November 2020). Mandla Mandela, the Chair of the Land and Agriculture Portfolio Committee in Parliament is reported as saying that he hoped “the EFF was not using this to score political points as it involved the lives of vulnerable people”.

While the Portfolio Committee Chair was reported to support the proposal to debate the living conditions of farmworkers, he did not support the establishment of an ad hoc committee, stating that it would duplicate the oversight functions that the portfolio committee already exercises. The Democratic Alliance tabled its concerns that the focus of the discussion seemed to be exclusively on the Western Cape, where the DA forms the provincial government. The DA representative proposed that it would be preferable “to conduct a comprehensive review of the conditions of farmworkers across the country, including all the work that has been done within and by the agricultural organisations”.

No-one in the debate seems to have made reference to a comprehensive ILO report (2015) which had set out to provide just such a review. Nor did they refer to the findings and recommendations of the Motlanthe High-Level Panel or the Presidential Advisory Committee on land. The extent to which the findings and recommendations of these detailed reports have actively been taken up by government remains in question.

Subsequently the National Assembly rejected what was described as the EFF’s divisive motion to establish an ad hoc committee, but approved a new motion which undertook to review the relative legislation, conduct public hearings and report back to the House by the end of 2021. (News 24 10 November).

It seems that government advocates continuing processes of public hearings and review. These may create the impression of momentum, but also reflect the failure to properly consider and address the substantive issues and recommendations arising from the processes which preceded them. Ironically, repeated rounds of public hearings may contribute to the erosion of trust in government and public confidence that it will move from talk to practical action.

In other farmworker related news Groundup (6 November 2020) reported on rising tensions within the Franschhoek Valley. These relate to a decades long battle over housing linked to Anglo-American’s decision to move all farmworkers off the Rhodes Fruit Farms prior to selling the historic estate in 2003. Black and coloured employees were moved to Languedoc where they were built houses.  However, many workers were subsequently retrenched when the canning factory closed. In cases where workers refused to move from the farm they were evicted from the property. The new settlement was supposed to be managed by a housing association for which Anglo-American registered a Communal Property Association. However, the CPA soon became defunct and was subsequently wound up. The new settlement was characterised by high unemployment, disaffected youth, drugs and gangs. There was an expectation that additional housing would be constructed on vacant land to meet the needs of a growing community. However, this served to exacerbate existing social tensions between Coloured and African workers (mostly seasonal) and with the long-standing residents of the original Lanquedoc farmworker settlement.

GroundUp reports on rising tensions between homeowners and backyard shack dwellers – mostly seasonal workers. Backyard shack dwellers are alleged to have moved on to a 14 ha piece of land belonging to the local Community Development Trust, set up for the benefit of former Boschendal farmworkers. This land occupation led to arrests and subsequent protests by backyard shack dwellers, which were met by counter protests from homeowners. A confused situation resulted, in which rival groups of protestors are said to have blocked the roads to Lanquedoc village. Tragically this prevented an ambulance from reaching a 23-year-old woman in need of emergency medical care who subsequently died at a local hospital. As GroundUp explains:

This is a conflict over land and houses between poor people: families with long-standing Boschendal employment ties, mostly coloured, and backyard dwellers, some of whom are now also Boschendal workers, mostly black. In the background are government structures with a mandate to provide housing and large landowners, mostly white. Legal advice and non-profit entities are also involved.

It is also a conflict which can trace its roots all the way back to the history of slavery in the Cape and the impacts of influx controls, the migrant and Coloured Labour Preference systems put in place under apartheid. These resulted in systemic inequality and social division. And yet, like many problems in contemporary South Africa it is not insoluble, provided there is meaningful engagement and thorough going dialogue to find local solutions.

On a more optimistic note the Western Cape Department of Agriculture announced that it will provide relief to employees in the local wine tourism sector in the form of a R12 million support fund. This seeks to safeguard continuous employment of wine tourism workers by subsidising their salaries for a key quarter of the tourism calendar (IOL 16 November 2020).

Food security

Government in South Africa seeks to provide support for smallholder and subsistence farmers in the form of input vouchers. According to the Minister the department was working with a cell phone company to enable farmers to be able to use their phones to apply for vouchers directly, rather than through completion of paper forms.

However an article published in New Frame (18 November 2020) indicates the extent of the mounting food insecurity in South Africa and in particular in the Eastern Cape province. On 15 October government announced that a R350 social relief of distress grant would be extended for a further three months.

 

Queues of hungry and desperate people form the night before the grants are paid out. People interviewed while they waited in the long lines, spoke about the hardships which they are facing:

I did not eat this morning. We have no food at home, so the grant helps to close the gap

I pay a taxi driver R26 for a round trip to town. Sometimes I wait there for two hours or more, depending on the numbers on that particular day. Today I’m number 148, and the line is too slow, but I won’t give up. When I get the money, I will buy 12kg maize meal, 10kg rice, 12kg samp and another 12kg cake flour, which will last us for a month.

 

 

Some wait in line but leave empty-handed:

I have not received any money since lockdown started. Every month when I come to town, the officials tell me that my name doesn’t appear on the computer.

Land governance and administration

The Ingonyama Trust continues to make the news. Minister Thoko Didiza ordered a forensic audit into the financial affairs of the Trust. Despite this order the chairperson of the trust Jerome Ngwenya continued to deny the existence of the probe, while questioning the powers of the Minister to order the audit in the first place. Ngwenya regards himself as being solely accountable to the Zulu monarch King Goodwill Zwelethini. However, since 22 October there has been no further reports on progress with the audit, or indications of when it will be completed.

Land Rights and Mining

The social trauma and environmental costs of mining have loomed large in this period.

On the 22^nd October Fikile Ntshangase, a member of the Mfolozi Community Environmental Justice Organisation (MCEJO) committee, a local organisation championing the rights of those affected by mining in the area, was gunned down in her home by assassins.

Nolundi Luwaya (Daily Maverick 2 November 2020) provides the frame for the events leading up to this murder:

We need to pull back the curtain and see her death in the broader context of escalating violence against rural people who attempt to assert their rights in the face of corporate and state intransigence.

The harassment and killing of activists who are part of community struggles against mining activities has a terrible history.

She provides an account of the killing of other activists who have resisted mining, including ‘Bazooka’ Hadebe from Xolobeni who was shot down outside his home in 2016 by two men posing as policemen. She sets out the mining company strategy which is calculated to stoke intra-community violence.

The reality is that the mine has adopted a crude divide-and-rule strategy by insisting that no compensation will be paid to those who have agreed to move until everyone who objects has agreed. This approach is accompanied by a constant refrain that major retrenchments are inevitable as long as “a few families” hold out.

Community members who dare to remain steadfast in demanding adequate compensation find themselves ostracised by neighbours and vilified by the mine. They find themselves accused of being unreasonable and greedy – and at the centre of dangerous conflict and distrust within the community.

An extraordinary photo essay by James Puttick in New Frame (30 October 2020) explores the legacy of unrehabilitated coal mines for impoverished communities in Wesselton, Mpumalanga.

The township is hemmed in on both sides by abandoned and unrehabilitated coal mines. To the southeast, the landscape is scarred by the ripped earth, mine pits and polluted tailings left by the disused Imbabala mine, while to the northeast are the abandoned shafts of Golfview mine, where underground fires are burning in the coal seams, and wetlands have been polluted.

In what seems to be a common pattern, mining companies exploit resources to the maximum before declaring bankruptcy, exiting from their rehabilitation responsibilities and leaving their poisonous legacy behind – “multiple hazards of polluted rivers, toxic mine tailings and a landscape dotted with blackened pits and unstable shafts”.

Puttick take his readers underground to reveal the hazards facing artisanal miners or zama zamas who remain unrecognised and illegal, as they pursue harsh and dangerous livelihoods, hacking coal from abandoned underground seams and physically carrying it out of the mines to sell their coal to informal dealers.

Less than a month after Ma Ntshangase’s murder (New Frame 17 November)  reported that Nonhle Mbuthuma, a prominent anti-mining activist in Umgungundlovu in Eastern Mpondoland had received a death threat by SMS. The threat listed other Xolobeni activists already killed, placing her next in line:

“You are all going to be killed …You will run out of money for paying for security and we will get you. We are not going to be controlled by a bitch. Once you change your security, we will strike.”

Redistribution

State land redistribution – a mirage?

As reported in previous issues the state announced the release of 700,000 ha of state land with the intention of distributing it to emerging farmers. However numerous problems have emerged with respect to this offer – primarily because the bulk of the land which people are applying to access is already occupied. Much of the state land in question was purchased by the apartheid state through the South African Development Trust, as part of the process of consolidating the various ethnic homelands’ which were the foundation of the apartheid vision of ‘separate development’.

Rosalie Kingwill writing in the Daily Maverick (22 October 2020) has spelt out major concerns with the state land redistribution process:

As a land reform practitioner of several decades, my first reaction to the news that the department of agriculture, land reform and rural development was intending to release state-owned land on the basis of long-term leases was one of incredulity.

My second reaction upon the release of the official record of properties to be made available by the state was one of shock. I identified some of the farms with which I am familiar that have been listed in the Eastern Cape.

My research revealed that this land was not only beneficially occupied in most cases, but was subject to intense contestation between restitution claimants, occupiers and farmers (particularly those labelled lessees), most of whom were long-term occupiers.

Most of the occupiers had/have legal rights to the land in terms of the Interim Protection of Informal Land Rights Act, 31 of 1996 (IPILRA).

This suggests that the proposed redistribution of state land is a recipe for further conflict and possibly a gateway for elite capture and dispossession of individuals and communities.

Numerous other stories have been published examining proposed redistribution of state land which are available on our land policy page.

To make matters worse, reports have been surfacing that officials processing applications and evicting existing occupants from the land have been taking bribes to either advance or defend people’s rights in the process.  (IOL 10 November 2020). While these allegations had been made, to date there has been no hard evidence provided to support these claims. The Minister urged communities and individuals to bring these issues to the office of the Acting Director-General for attention and to report attempts to extort bribes to the nearest police station.

Restitution

Settling the Ebenhaeser land claim

A  positive story about Restitution was provided by John Yeld writing in GoundUp (27 October 2020). The long-standing land claim of the Ebenhaeser community in the Western Cape was finally settled after days of negotiation which took place virtually during lockdown. The Ebenhaeser community’s total claim is for some 23,700ha, valued in 2015 at R363 million, for both land and developmental support from the government.

The negotiated settlement will result in the return of much of the fertile land from which the community was removed in 1926, and will see substantial government funding to help manage and develop the irrigated vineyards.

Land reform and rural development specialist David Mayson from Phuhlisani, first became involved  at Ebenhaeser while working for the Surplus People Project in 1998. In 2012 Phuhlisani was appointed as lead consultant for the Department of Land Affairs and Commission for the Restitution of Land Rights. The Phuhlisani team was responsible for facilitating agreement on a community development and land acquisition plan (CDLAP), which became the basis for subsequent negotiations and the establishment of a land holding entity, a community trust and an operating company.

Contestation over District Six redevelopment

In Cape Town there have been an array of conflicting news stories about progress on the redevelopment of the District Six land claim and the relationship between the City of Cape Town and the National Department of Agriculture, Land Affairs and Rural Development.

A report compiled by the Commission on Restitution of Land Rights in 2019 provides some insights into just how complex and contested the claim settlement and subsequent development process has been. Various structures have been established over time to represent the claimants. These have included:

• The District Six Beneficiary and Development Trust which was established in 1998 and was tasked to manage the first two phases of the redevelopment programme in 2008 and 2013, after which it withdrew.
• The District Six Community Forum.
• The District Six Reference Group was established at the directive of the Minister in 2012 who required that a claimant body be democratically elected to represent old order claims lodged before 31 December 1998.
• The District Six Working Committee was subsequently established claiming to represent both old order claimants and those who lodge new claims when the land claims window was reopened between 2014 and 2016. It applied to the Land Claims Court for a declaratory order requiring the Minister to engage with them.

The District Six Development Trust (IOL 30 October 2020) was reported to be contesting the validity of the District Six redevelopment plan worked out between the City and the District Six Working Committee in 2019. The development of this plan followed court action initiated by the District Six Working Committee to hold the Department accountable to settle the claim and redevelop the area.

The Trust argued that the plan should be replaced with the earlier plan drawn up in 2012. According to the Trust’s Interim Chairperson “The 2012 development framework and business plan was formed in conjunction with the national government, province and the city. Why are they ignoring it?”

In a follow-up story (IOL, 19 November 2020) representatives of the District Six Working Committee were reported to be satisfied that the redevelopment process was getting back on track, despite delays caused by the Covid 19 pandemic, with the handover over of 108 units planned for April 2021. At the same time, the City is reported to be consulting with claimants to develop a local spatial development framework for the District Six area, while the national government is responsible for the overall redevelopment of District six and the building of houses for restitution claimants.

Then IOL (10 November 2020) reported that the Minister had “given the city a stern warning not to use District six land to gentrifying the area”. The City exercised its right to reply noting that the letter written by the Minister dated back to July 2020 and was old news . In her response, the mayoral committee member for Spatial Planning and Environment Alderman Marian Nieuwoudt stated that the City was in fact using the 2012 plan as a point of departure to refine the local spatial development framework. So quite how these different plans fit together seems somewhat unclear.

In December 2019 Minister Didiza submitted a detailed plan for the redevelopment of District Six as required by the Land Claims Court. This included conceptual layouts for redevelopment, specifics of how the plan was to be funded, timeframes for implementation and methodologies for allocating residential units to the claimants. How this articulates with the 2012 plan has yet to be clarified. It’s a complex situation and given the history to date it seems likely that there may be more disputes to resolve before this matter is finally settled and land and housing transferred.

In other restitution related news CapeTalk reported that on 2 November 2020 a group calling themselves Indigene Khoi and San tribes had set up camp in a section of the Table Mountain National Park in Cecilia Forest stating that they should be free to live there. According to the interview SANParks management had agreed that they could be there during the day, but were not permitted to stay overnight, or to light fires. The group seeks to raise awareness about unresolved ancestral land claims of the indigenous peoples in South Africa which are not catered for in the current land restitution framework.

Rural development

There are a wide range of stories appearing on our rural development pages ranging from:

• the persistence of severe drought in parts of the Eastern Cape and the failure of local municipalities to deliver water to rural residents.
• a locust plague threatening Eastern Cape farmers.
• the successful attempts by the Land Bank to secure R7 billion to secure its operations.
• the murder of another farmer in the Free State Tebogo Machakela (37) who succumbed to his injuries after he was shot in the head on his farm near Odendalsrus in August this year. Machakela was in a coma and hospitalised for six weeks before his death.

Urban land

As usual our urban land pages are filled with numerous stories – too many of them to mention in detail here. We briefly select a few highlights from the past four weeks.

Western Cape

The City of Cape Town has come under criticism for claiming to have spent 90% of its urban settlements development grant (IOL 29 October), when it is alleged that much of the funds were diverted for emergency Covid 19 expenditure.

There is ongoing debate in Cape Town about the failure of the City to provide well located and affordable social housing which will break the mould of the segregated apartheid city spatial planning. Malusi Booi, Mayoral Committee Member for Human Settlements argues in the Daily Maverick (8 November 2020) that it is housing activist organisations such as Reclaim the City which have occupied abandoned buildings that are responsible for slowing the pace of delivery. According to Booi the occupations makes redevelopment of the sites and provision of social housing impossible. A counter argument (Daily Maverick 17 November 2020) proposes that:

The Cape Town inner-city building occupations should not be dismissed as unlawful reservoirs of criminals and freeloaders. Rather, they should be understood as innovative, legitimate and valid forms of protest that do not seek to destroy, but rather to rebuild and reimagine.

The City has also sought to defend the integrity of the Housing Needs Register – the database which according to the City is one of the pillars of fair and systematic housing delivery in South Africa (IOL 16 November 2020). However, housing waiting lists have long been critiqued as a fiction by researchers and activists who show how housing allocation processes are frequently overridden by political interference, both from above and below.

Court proceedings continue as the City appeals the Tafelberg judgment which cancelled a sale agreement between province and a school which had purchased the site (IOL 13 November 2020) The Western Cape Provincial government has characterised the cancellation as ‘judicial overreach’. This appeal was subsequently delayed and will only be heard in 2021.

Evicted residents from Bromwell street in Woodstock, a suburb bordering on the Cape Town CBD have argued that the City has a responsibility to provide social or temporary accommodation in the inner city. “The residents’ homes were bought by private developers, Woodstock Hub, in 2013 as part of Woodstock’s gentrification push. Meanwhile the residents have fought to remain in Woodstock”. The only offer of alternative accommodation is in remote and socially dysfunctional ‘temporary relocation areas’ far from economic opportunities and essential social networks. The Judge in the Woodstock eviction case has expressed concerns about the perpetuation of ‘spatial apartheid’ in South African cities (Groundup 17 November 2020).

We are still exporting the poorest of the poor to the periphery – people of colour and black people who are unable to afford housing,” said Judge Sher. “The result is that we are still giving effect to the legacy of spatial apartheid.

On the periphery of the city people occupying land and establishing new informal settlements blocked one of the main highways into the city as part of a protest demanding that the City provide water, toilets and electricity.  Three buses and a truck were reported to have been burnt by protestors.

However, Malusi Booi from the City has countered that the land people have occupied is low-lying and is unsuitable for settlement  and that the City could not “provide immediate services, if at all” to all newly formed settlements at the expense of the existing services and budgeted programmes.

Eastern Cape

Timeslive (19 October 2020) carries a story about contestation amongst informal settlement residents in Area 11, Gunguluza, Uitenhage, as people compete for space and access to services. In an unrelated article GroundUp (3 November 2020) reports on an Eastern Cape building fiasco in which an RDP housing project in Matatiele costing R174 million, resulted in a thousand substandard and unfinished homes being constructed, while a dispute between the contractor and the Department of Human Settlements has been referred to the courts.

DispatchLive (11 November 2020) reports on a protest by 70 Mdantsane pensioners who were forcibly removed from their homes during apartheid and who want their homes to be restored. The pensioners stated that they had lodged a land claim more than 20 years ago, but had heard nothing since.

Gauteng

In Gauteng GroundUp (22 October 2020) reports on a housing protest by the Gauteng Housing Crisis Committee against lack of housing delivery and the seeming abandonment of the rapid land release programme. Marchers picketed the Premier’s office.

The crisis committee is demanding that a rapid land release task team be created, and include its representatives on it. They want the team to resolve what is stopping the release of the land and the Premier to allow homeless and landless people to actively participate in the planning and implementation of the programme.

A story on hostels redevelopment (17 November 2020) reveals how 300 people ‘temporarily relocated’ as part of a hostel upgrade process in the Dube hostels in Soweto have been living in overcrowded shipping containers for ten years. Duplexes and units were built just across the road but never allocated. These vacant structures have since been stripped and are uninhabitable.

There are no rooftops and wires; windows, taps, and doors were stolen from the new units. I do not understand why they moved us here and demolished our homes.

In Pretoria IOL (30 October 2020) has run a series of articles on a stalled township development plan for the Plastic View informal settlement which has been hampered by objections and Covid 19 delays.

Selected land news from Southern, Central and Eastern Africa

There is a wide variety of news items covered on our Africa land news pages. In this issue we focus on land news from Namibia and Zimbabwe.

• In Namibia, unregulated and illegal sand mining is of mounting environmental concern (The Namibian 12 November 2020). “Despite its visible destructiveness, sand-mining operators and contractors have been operating with impunity for a long time, even though they did not have the environmental clearances to mine sand.” In northern Namibia, the mayor of Ondangwa and a local businessman were charged recently with illegal mining of sand on 10 hectares of land.
• In Zimbabwe, The Standard (15 November 2020) carries an in-depth analysis on the challenges facing land administration in Zimbabwe by researchers at the Sam Moyo African Institute for Agrarian Studies.

The current land administration system, is unfortunately overwhelmed by the increase in the number of farmers, and increase in unit plots of land in a multifaceted and changing environment. The records for the A2 land offer letters are stored in the automated LIMS database which presumably includes information on all landholders. However, the ministry’s land tenure database is not publicly available and thus limiting transparency and accountability in land tenure administration and management. There is also emerging evidence that suggests that LAS services, including registration systems and access to land dispute resolution remain largely remote and expensive for the majority of resettled farmers, especially women.

Owen Dhliwayo and Refiloe Joala, researchers at PLAAS (6 November 2020) highlight the acute tenure insecurity of rural villagers in Zimbabwe. They review the case of 750 households in Munyokowere village which were issued eviction notice letters by the State on 29 April 2019, instructing them to vacate the area within seven working days. Despite a favourable court ruling which interdicted their eviction in June 2020, the villagers were issued with yet another eviction notice in September 2020.

Theo de Jager chairperson of SAAI and President of the World Agricultural Organisation writes an op ed in the Graaf Reinet Advertiser (16 November 2020) asking where does  the proposed $3.5 billion compensation leaves expropriated Zimbabwean farmers. According to de Jager the key questions facing expropriated white farmers in Zimbabwe are:

Should we accept a less-than-ideal compensation settlement? Or should we keep fighting in Zimbabwean and South African courts, in regional tribunals and international forums until we can negotiate a fair and equitable outcome?

De Jager notes that the average age of farmers expropriated 20 years ago is now over 80 years. Given this he argues that:

They should accept the compensation offered, opening the door for Zimbabwe to resume its role as a highly competitive agricultural producer. They should again become the showpiece of the world’s beef, tobacco, cotton and cut flower industries, creating the prosperity that can pull their country from its abject poverty.

However, in doing so the farmers should not neglect the confrontation options!

The Zimbabwe Independent (13 November 2020) reports on a clash between artisanal miners and female livestock farmers in Shurugwi.

The Herald reports on illegal urban land sales by ‘land barons’ operating in Chitungwiza in collusion with Council officials.

Writing in the Conversation (14 November 2020) Dr Getrude Gwenzi provides sobering insights into how over 20,000 children have turned to vending as a means of survival since the Covid 19 lockdown. The legal working age in Zimbabwe is 16, but children as young as 10 and 12 years old are selling goods on the streets. She argues for expanded social policy programmes with increases in the social protection budget to cater for growing numbers of families with children in need.

Weeks 39 – 42: 21 September – 18 October 2020

The changing Covid context

As of 18^th  October 2020 the cumulative number of detected Covd-19 cases was 703,793, with the officially reported numbers of deaths standing at 18,471. The South African National Treasury is due to expend an additional R6 billion to extend the special relief grant for a further three months. However, the Minister of Finance is on the record as saying that South Africa could not afford to permanently pay the special allowance of R350 a month that was announced in April as part of a R500 billion Covid-19 relief package. A wide range of organisations, including the main trade union federations COSATU and SAFTU have argued that the time is right to extend a basic income grant to all South Africans. Given the impacts of the pandemic, on unemployment and food security, the special grant is a lifeline for 13 million South Africans at present. Numerous commentators have warned of extreme hardship and massive social unrest in a context of joblessness and hunger if the grants are withdrawn.

Prof Mark Tomlinson from the Faculty of Medicine at Stellenbosch University, writing in the Daily Maverick (12 October 2020) notes however that we have a problem with data.

It’s a near certainty that the official figure of 17,248 Covid-19 deaths (as of 8 October 2020) is the tip of the iceberg. Our excess mortality rate (33,000 as of the beginning of August) suggests that close to 50,000 people have died from Covid-19.

He presciently observes that “what we are experiencing now is a mild dress rehearsal for the future horrors of climate breakdown”. Tomlinson highlights the differential impacts of the pandemic and how the weight of it has fallen on poor black South Africans – particularly children.

We have a hunger pandemic in South Africa. The future of any country begins with its ability to ensure its citizens, and especially its children, have enough to eat. Children experiencing prolonged under-nutrition will become stunted, with profound implications for their functioning in school, and later in their capacity to become productive members of society. If we cannot do better in this regard, perhaps we should simply switch off the lights.

Expropriation

There seems to be mounting public confusion about the relationship between the new Expropriation Bill, the renewed process to amend Section 25 of the Constitution and the function of the Land Court Bill.

Advocate Tembeka Ngcukaitobi provided a succinct and scathing critique of the process in a Tweet dated 11 October:

So far so confusing about the new Expropriation Bill: what is the link to the Section 25 process? How does it fit into land restitution? How far with the Land Court Bill? Looks like we are back to the land of policy confusion, lack of coordination, action without strategy.

A statement released by the Interministerial Committee on Land Reform tried to clarify the process and the current status of the Expropriation Bill, 2020 which is set to replace the current Expropriation Act of 1975. The new Bill has been certified as constitutional by the Chief State Law Adviser and was gazetted on 9 October 2020. A useful summary of key features of the Bill appears in Businesstech (12 October 2020)

The Interministerial Committee has stated that:

We must emphasise that the drafting of the Expropriation Bill was separate from the work of Parliament in reviewing Section 25 of the Constitution. The Bill has been drafted to be consistent with Section 25 of the Constitution as it currently stands.

This means that should Section 25 of the Constitution be amended, then the Expropriation Bill of 2020 would also need to be amended to be consistent with the Constitution as the supreme law of the land. The Expropriation Bill in its current form has been mostly positively received by a range of commentators, particularly those who argue that the Constitution, as it currently stands requires that compensation must be just and equitable, a formulation which allows for circumstances in which it could be just and equitable for zero compensation to be paid. Such a determination however can only be made by a competent court.

Meanwhile the Parliamentary committee first established on 25 July 2019 to consider the expropriation issue has confirmed that public hearings on the Constitution 18^th Amendment Bill to allow for land expropriation without compensation will resume later in October. It will be interesting to see how the severe economic downturn linked to the pandemic will impact on the continued appetite of policymakers to prioritise land expropriation going forward.

Farms and farm workers

Farm murders have had a high profile in recent months, particularly following the cruel murder of 21 year old Brendin Horner, a farm manager in Senekal on 1^st October.  The murder has received widespread local coverage and made international news, including reportage in the New York Times (16 Oct 2020).

The murder prompted a response from President Ramaphosa writing in his weekly newsletter on 12^th October.

No matter who we are, no matter what community we live in, no matter our race, creed or language, we should be as deeply affected by the death of Brendin Horner as we are by the many other South Africans who die violent deaths each year.

Ramaphosa continued:

Contrary to the irresponsible claims of some lobby groups, killings on farms are not ethnic cleansing. They are not genocidal. They are acts of criminality and must be treated as such.

The Citizen (13 October 2020) reports that one of the two men arrested for his murder has 16 previous arrests and four convictions.

The provocations of the EFF and the spectacle of supporters singing Kill the Boer, Kill the Farmer in demonstrations outside the courtroom (Daily Maverick 16 October 2020) where two men appear on charges of murdering a farmer seem calculated to ignite what Ramapahosa referred as “the tinderbox of racial hatred” and to fan these flames for media coverage and attempted political gain.

In the words of the President “we must resist any attempts to…mobilise communities on racial lines.

We must not be blinded by our own prejudices to the suffering and pain of others. It should not matter to us if the victim of violent crime is black or white.

To do so would be a betrayal not just of this country’s founding principles, but of our own humanity.

As Adam Habib observed late last year, (Daily Maverick 18 December 2019) the accelerating creep of crude racism and authoritarian fascist thinking infecting and polarising political discourse in South Africa “must be firmly responded to and must be treated as a violation of the values of our liberation movement and of our Constitution itself”.

There is a context to these events which contributes to the systemic violence in South Africa – a country which has the world’s fifth highest murder rate. In 2019/20 some 58 people were murdered every day, at a rate of 36,3 murders per 100,000 people. (Africa Check 4 August 2020). According to police statistics in the 2019/20 financial year there were 21,325 murders in South Africa, of which 49 were on farms and smallholdings. (News 24 31 July 2020).

Prior to the onset of the pandemic, the combination of intergenerational rural poverty, food insecurity and casualisation of much work in the agricultural sector had resulted in deep rural poverty traps constraining millions of citizens with precarious livelihoods. People are going hungry:

‘In October 2020, the average cost to feed a child a basic nutritious diet cost R693,05. The Child Support Grant of R440 a month is 25% below the food poverty line of R585 per capita and a further 37% below the October cost of R693,05 to feed a child a basic nutritious diet’. Pietermaritzburg Economic Justice and Dignity

The ongoing capture and asset stripping within state institutions by the corrupt, including within the police, closes the exits to prevent the poor from escaping these desperate situations. Greg Nicholson and Bheki Simelane (Business Maverick 15 October 2020) provide the essential backstory to Brendin Horner’s murder in which “both black and white farmers dismissed race when it came to crime on farms”. Farmers in the area point to the prevalence of stock theft and accuse members of local police of colluding with stock thieves.

Official statistics indicate that farm murders have increased since the end of the hard lockdown in South Africa, which imposed tight restrictions on freedom of movement. In July of this year Dr Johan Burger of the Institute for Security studies (News 24 20 July, 2020) forecast that:

In the months ahead with the weakening economy, there are going to be many more people jobless and there are going to be higher levels of poverty which creates a whole host of social problems. As people start looking for food, crime will likely increase across the board including farm murders and attacks in the rural areas which are soft targets, and there is a belief that farmers are rich which means they might be targeted.

In other news and on the other side of the coin,  GroundUp (28 September 2020) reported on a webinar organised by the Women on Farms Project at which the Director-General for the National Department of Rural Development and Land Reform was reported as stating that a better relationship was needed between government and civil society organisations to fix the problems facing farmworkers. According to the DG:

We need to go back to the element of tenure security which has been abandoned. Since 2010 there has been little budget expenditure set aside for this purpose. As much as there was money set aside, there has been very little land acquired for farmworkers generally.

The DG highlighted the lack of state capacity to monitor land and tenure rights infringements on the ground and pointed to the need for a social compact with civil society to drive land reform.

GroundUp also reports on the case of Antony Koopman who was allegedly assaulted by two farmers in Murraysberg in the Western Cape in February who accused him of stealing livestock. According to Koopman he was looking for a job. However, the incident is reported to have taken place at 9.00 pm. The farmer’s attorney told GroundUp that “it does not make sense that Koopman went looking for work so late in the evening. He said that one of the farmers had woken up and went outside when he heard his dogs barking. The farmer allegedly saw Koopman chasing some of his livestock”.

Food security

Dennis Webster writing in New Frame (2 October 2020) highlights how the grant top-ups in the new social relief of distress grant have been crucial for keeping food on the table in impoverished homes during lockdown. He also argues that these grants are likely to play an important role in “the long restart of South Africa’s economy”.

Leila Patel writing in the Conversation and reproduced in Bizcommunity (15 October 2020) highlights how “hunger hurts more than just individuals and families that struggle to buy food: its effects ripple broadly into society with long-term consequences”. Research findings indicate that the temporary employee/employer relief scheme has been vital to lifting many households out of food insecurity, coupled with the reintroduction of the National Schools Nutrition Programme in July. She cautions:

“The Covid 19 pandemic isn’t even nearly over. Some countries and regions are instituting new lockdown’s and reporting or bracing for new waves of the virus. While the government is facing a tough budget situation, the country faces a serious hunger crisis. South Africa simply cannot let up on the provision of the additional social grants and emergency relief”.

Estelle Ellis (Maverick Citizen 17 October 2020) takes us to the poverty stricken Eastern Cape Karoo dorp of Klipplaat, a small town, 80 km south of Aberdeen. The MEC for Social Development in the province has recently reported an increase in infant mortality due to child malnutrition. Of the 1.8 million households in the province, approximately one quarter suffer from food insecurity due to poverty. Klipplaat was a railway town and when the station closed so did local livelihood opportunities. The town also lacks water which must be trucked in from Graaf Reinet 175km away.

A disturbing story in  Groundup by Sarah Wild (7 October 2020) reports that funding to South Africa’s Centres of Excellence has been cut by the National Research Foundation in a context of Covid-19 related fiscal austerity. These include the Centre for Invasion Biology and the Fitzpatrick Institute of African Ornithology. With the impacts of climate change due to bite deep in the South African landscape, such funding cuts are particularly worrisome.

The closure of the Centre for Invasion Biology would have global repercussions, says Piero Genovesi, Chair of the Invasive Species Specialist Group for the International Union for Conservation of Nature. It “would have disastrous effects on our global efforts to prevent and mitigate the impacts of invasive species,” he says. “Not only would it significantly reduce the research on invasion biology, but it would also deprive the decision makers of an important source of scientific knowledge to base their decision on”.

Land governance and administration

An important series of videos have been produced through an inter-institutional collaboration between the University of Cape Town and the University of the Western Cape, with input from civil society.

The video series was an initiative of the Land Network National Engagement Strategy (LandNNES) in South Africa, which approached Dr Simon Hull, a senior lecturer in UCT School of Architecture, Planning and Geomatics to help conceptualise and produce the videos. Dr Rosalie Kingwill, a leading tenure researcher in South Africa and Tshepo Fokane, principal researcher for the Alliance for Rural Democracy also contributed to the design of the series. The video content unpacks everything from land policy and land management, to land administration, land tenure, land rights and land development, as well as the overarching concepts of land governance and land information.

Professors Kirsten and Vink writing in Business Day (5 October 2020) pick up on a judgement in the Gauteng High Court on 20 August, which could have important implications for South Africa’s land reform programme. This follows a 22 year delay in the promulgation of the Subdivision of Agricultural Land Act Repeal Act (Act 64 of 1998). The South African President never signed the Repeal Act into law, which means that agricultural land can only be subdivided with the approval of the relevant minister. The authors argue:

Without these restrictions on subdivision, there could be many opportunities for commercial farming operators to contribute to or donate land for the land reform programme… Getting rid of the restrictions on subdivision, but finding a sensible mechanism to protect high potential agricultural land, could facilitate access to land for many disenfranchised and disempowered communities in South Africa.

The contestation around the Ingonyama Trust continues with the most recent development being the Minister’s authorisation of a forensic investigation into the finances of the Trust and to investigate allegations that the chairperson Jerome Ngwenya used the public entity to enrich himself. Specialist writer on land issues for the Mail and Guardian, Paddy Harper (13 October 2020) reports however that the chairman has refused to accept the Minister’s authority to appoint the investigation, saying that he is only accountable to King Goodwill Zwelethini. The ITB receives around R22 million a year from the government, but takes in around 90 million Rand in revenue from commercial and residential leases and mining rights. The ITB is facing court proceedings challenging its rights to levy residential leases to people living on communal land managed by the Trust.

Harper reports that the Trust chairperson has extensive business interests and that one of his companies runs a service station on land leased from the ITB. According to the 2017/ 18 ITB Annual Report, Ngwenya owed R280,000 in unpaid rentals for the property which it occupied since 2015.

Athandiwa Saba, also writing for the Mail and Guardian (9 October 2020) reports how a local municipality in the Free State sold land worth R60 million in 2018, but has yet to receive a cent from the sales. All indications point to the irregular use of state land and the allocation of valuable municipal resources to connected individuals.

Land policy

All those active in the land policy space were shocked to hear of the untimely death of the Chairperson of the African Farmers Association of South Africa, Dr Vuyo Mahlati. Dr Mahlati acted as the Chairperson of President Ramaphosa’s Land Reform and Agriculture Advisory Panel. She had also previously contributed to the work of the National Planning Commission and was President of the International Women’s Forum SA. A government spokesperson paid tribute to Dr Mahlati saying:

“The country has lost a great visionary leader who impacted many lives, embraced challenges and has had a profound effect on the future direction of South Africa, particularly on agriculture as land issues”.

In other developments the Minister of Agriculture Rural Development and Land Reform announced the release of 700 000 ha of state land for land redistribution. However no sooner than this announcement had been made than the questions started to be asked. Were there really 900 state owned farms which were vacant, idle and underutilised? Where was this land and did in fact the land already have people who occupied and made use of it? Prof Ruth Hall at the Institute for Poverty, Land and Agrarian Studies has questioned whether all the land set aside by government is in fact vacant. You can listen to an interview with her which appeared on TimesLive (6 October 2020). PLAAS also held a webinar hosted by Katlego Ramantsima with Ruth Hall and Tshepo Fokane on 8 October interrogating the release of the state land. Many more stories appear on our website linked to this topic in both the land policy and the land redistribution sections.

Dr Roland Ngam, programme manager for climate justice and agroecological transformation at the Rosa Luxemburg Foundation, Southern Africa has questioned whether the release of the 700,000 ha was driven by political expediency with another round of elections just around the corner. He argues that going forward land reform needs to do things very differently, proposing that government adopts “a ‘big bang’ approach to transfer land to hundreds of thousands of previously disadvantaged people quickly”. Central to this strategy should be a process of “capping transferred farmland to 10 ha to 20 ha per plot, with a one off cash payment that beneficiaries can use from for a variety of things from building farmhouses, to buying inputs or farm implements”.

While this looks like an interesting proposal and consistent with research findings which suggest that people want small pieces of land, the key issue is where the land is located, in what agro-ecological zone, whether it has access to sufficient water, what can be produced on it, how will produce find access to informal and formal markets and so on. Another key question is what is the state of the infrastructure on state land which will be redistributed through a leasehold scheme?

Busisiwe Mgangxela from the Eastern Cape has written an important piece providing a view from the ground on just how difficult it is to access state land, and the likelihood that once the land is transferred, key assets would have been stripped. She reflects on the implications of the recent government decision to release thousands of hectares of state land for land reform in the light of her own experience.  She provides a detailed first-hand account of her family’s struggle to access and lease state land through the land reform programme and the corruption and kickbacks entailed in the process.

Busisiwe’s account provides a treatise on how not to do land reform. Her argument is summarised on Twitter and available in full on our repository of open access resources. It also makes clear that land redistribution involves much more than the simple redistribution of land.

Land rights and mining

Tim Wegenast, a senior research fellow at the University of Konstanz in Germany writing in African Arguments reviews the received wisdom which says that the state should stay out of the resource extraction sector. However, he says that for some time various governments in Africa have been questioning this premise, observing the siphoning off of natural resources to international investors. Mining companies are frequently accused of tax evasion and corruption.

Research involving geospatial econometric analysis using novel data on control rights over gold, copper and diamond production within African states south of the Sahara, analysed the well-being of individuals living close to internationally-controlled mines, as compared to those living in the proximity of domestically-controlled mining projects. The research revealed that state-controlled extraction is associated with better access to clean water and medical services, higher educational attainment, greater food security and more nutritional diversity. The research found that state-run resource companies are more likely to improve socio-economic well-being than private firms. A key proviso is that there must be good governance, secure property rights and low corruption – clearly a challenge for contemporary South Africa.

At home, investigations into the viability of rehabilitating mined land for agricultural purposes are underway (Creamer Medias Mining Weekly 25 September 2020). JSC listed coal miner, Exxaro Resources says it is in search of proactive solutions to challenges facing mining affected communities. The company is exploring the development of a ‘minerals succession process’ which maps potential agri-economy opportunities in communities. The company’s land management goals for 2026 including transfer 90% post-mining land to emerging farmers in local communities, while creating strategic partnerships with farmers to advance these agri-economies. The article explores possibilities for the mining industry to become a catalyst for increased agricultural development in South Africa which impacts beneficially on the livelihoods of those in mining affected communities. Given the predominantly negative experiences of mining impacts on rural communities, this will be an interesting initiative to monitor. Its potential for success will no doubt depend significantly on its willingness to actively engage with mining affected communities.

Finally in a feelgood piece from GroundUp (6 October 2020) controversial Aussie mining executive, Mark Caruso is reportedly facing criminal charges of assault and burglary in Australia. In South Africa his company Mineral Commodities (commonly referred to as MRC) is involved in what promises to be a major legal battle over the expansion of mining operations along the West Coast. The company has sought to expand operations along 120 km of the West Coast on the basis of its existing limited mining right, rather than having to apply for new mining rights. This action is being opposed by the Centre for Environmental Rights, which has lodged a legal challenge to this expansion plan, which would have enormous environmental impacts.

Redistribution

Much of our coverage in the redistribution section over the past four weeks has focused on the release of state land and the processes individuals have to undergo to apply to access one of the released land portions. Questions have been raised about the leasehold provision, with some critics arguing that the land should be transferred in full ownership.

Overall there is scepticism about this move, with land analysts speculating that it is likely that much of the land for redistribution was land that was bought historically by the apartheid state as part of the process of consolidating the homelands, back in the 1970s and the 1980s. As Carol Paton has pointed out in Business Day (13 October 2020):

The catch is that much of this land is already occupied by communities and black farmers who have been there for many years… The big question is who will get the farms?…

Paton concludes that:

It will be robbery of the rural poor and a danger to future prosperity if South Africa continues along the path it is laid, leasing land to the well-off and ignoring the real land hunger out there.

While agribusiness declares itself to be in support of the release of state land, they have expressed concern about the potential state of the infrastructure on these farms, which in its view required an assessment and an upgrade where necessary, before new beneficiaries take over the farms (IOL 6 October 2020). Agbiz expressed concern with government proposals that that the farms would be issued with a non-tradable 30-year lease, which would prevent them using the land as collateral to access production finance.

Restitution

In restitution news, a restitution claim in Simon’s town is reported to have been settled. (The South African 3 October 2020) People from the Luyolo community in Simon’s town were forcibly removed in the 1960s. The Dido Valley housing development in Cape Town’s Southern Peninsula is reportedly reserving 100 of its 600 subsidised units for verified land claimants.

Meanwhile former Minister of Land Reform with responsibility for land restitution, Nkoana-Mashabane failed again in her bid to have the personal costs order set aside by the Land Claims Court. Acting Judge Tembeka Ngcukaitobi SC of the Land Claims Court quashed her appeal. (Daily Maverick 6 October 2020)

“The court granted a personal costs order against her – making this the third personal costs order in favour of the District Six Working Committee following her reckless and negligent behaviour while she was Minister of Land Affairs,” said Nicki van’t Riet, a lawyer from Norton Rose Fulbright, who took on the case pro bono for the committee.

Urban land

As usual our urban land pages are filled with numerous stories – too many of them to mention in detail here. We briefly select a few highlights from the past four weeks.

As reported in previous reviews the City of Cape Town has not been doing well in the courts when it comes to its evictions policy. The City has opted to petition the Supreme Court of Appeal over the earlier land invasion eviction judgement which prevents the City from clearing illegally built unoccupied shacks without a court order.

At the same time a High Court judge says the City tried to use bylaws as a quick fix to evict a group of people living on the pavements in Observatory, Cape Town. The group had previously occupied the vacant Arcadia Place Old Age Home from which they had been evicted in October 2019 (Ground up 8 October 2020). The Judge found that the group should have been deemed as occupiers, recognised in terms of the Prevention of Illegal Eviction and Occupation of Land Act (PIE) which required a High Court process to be initiated in order to evict them.

IOL, (14 October 2020) reports that the city has allocated R16 million for private security to prevent land invasions. The same article reported that since July 2020, the City has overseen the clearing of 27,000 illegally occupied plots. It has demolished nearly 60,000 structures during anti-land invasion actions since 11 July.  Mayco member for Human Settlements Malusi Booi said that “Cape Town had experienced hundreds of organised, well funded and orchestrated unlawful occupations in 2020 already”.

The shack dwellers movement Abahlali base Mjondolo celebrated its 15^th anniversary. The movement reports an audited membership of just over 80,000 members in five provinces and is backed by large network of sympathetic lawyers, clerics and academics which makes the movement a powerful force in the urban land sector. (Daily Maverick 12 October 2020)

Africa land news

There is a wide variety of news items covered on our Africa land news pages.

• In Lesotho we report on an IFAD joint project with the government designed to improve the livelihoods of small farmers. A key feature of this project is that women are required to make up 50% of the project participants.
• Both Botswana and Namibia are taking steps to encourage the growth of small stock production as a livestock farming option.
• in Angola, the Viana administration is reported to be delivering plots of land for self-construction to some 18,000 families living in high-risk areas, or in very degraded houses. This represents a renewed focus on urban land needs.
• In Zimbabwe, the editor of the Chipinge Time has reportedly received threats, following exposure of land grab stories in the newspaper (MISA 28 Sept 2020).
• The website How We Made It in Africa carries reports on the development of a Land Hunters mobile phone App which matches Zimbabwe’s farmers with vacant plots. Umojalands co-founder Agatha Mandovha said the app helps simplify the process of finding available land – whether state-owned or from a private landowner.
• In Botswana, the Ministry of Environment, Natural Resources Conservation and Tourism is reported to have embarked on a project to restore degraded land and soil in order to achieve land degradation neutrality in Botswana.
• In Namibia, a review of the progress of land reform has found that the Namibian government has spent about 2, 3 billion Namibian dollars or about hundred and US$55 million to buy 558 farms covering 3,4 million ha since independence in 1990, as part of its land reform programme (Southern Times 2 October 2020). The Windhoek Express (8 October 2020) cites researchers and analysts who emphasise that land still remains “a hot potato” in the country where “almost 5000 predominantly white commercial farmers own 48% of the land in Namibia, while 35% is reserved for communal use and the state holds another 17% of the land. Although land has been redistributed, it is arguably not enough and it also hasn’t reached enough of its intended target audience, the poor and the landless”.
• Fair Planet (16 October 2020) runs a story about concerns over fracking plans on the Namibia Botswana border, where a Canadian oil and gas firm is planning to start hydraulic fracturing in one of Africa’s most sensitive environmental areas.
• Much of the other news reported relates to World Food Day and mounting food insecurity due to the impact of Covid-19 on people’s livelihoods, health and food systems (Africanews 16 October 2020).

 

Land News: Weeks 34 – 38  17 August – 20 September, 2020

The changing Covid context

As of the 24^th September 2020 South Africa’s official Covid-19 figures were a cumulative total 667 049 positive identified cases with 16 283 deaths and a recovery rate of 89.3%. However  according to radically different estimates Dr Ryan Noach CEO of Discovery Health estimates that 13 million South Africans have actually been infected. The Discovery team based their estimates on the high number of 42,000 ‘excess natural deaths’ reported by the Medical Research Council. Drawing on this data Discovery estimates that there have been around 37,000 deaths in total. However, the good news is that rates of infection are on the decline.

Turning now to land related news for the period under review.

Expropriation

ENCA reported (16 Sept 2020) that Afriforum was back in the courts seeking to challenge the Parliamentary report which opened the door for expropriation without compensation. Apparently Afriforum seeks to belatedly argue that the 2018 report was unconstitutional because it allegedly excluded more than 170,000 submissions which rejected amendment of the Constitution. Advocate Tembeka Ngcukaitobi arguing on behalf of Parliament stated that Afriforum’s bid to have the report declared invalid was a “wholly pointless exercise as the report was not binding on anybody”.

Farmworkers

Farmworker retrenchment, evictions and the persistence of the dop system in the form of unethically cheap wine sales have featured in the news during this period.

In the Eastern Cape, DispatchLive (22 August 2020) reported on a Kei Road family threatened with unlawful eviction. This follows the purchase of the farm where they lived by the husband of the MEC For Transport, Safety and Liaison in the province who is alleged to have threatened to bulldoze the home of the Moyeni family who live on the farm. It is interesting to note that an earlier bid to apply Section 4 of the Extension of Security of Tenure Act to purchase the land on behalf of the farm dweller family had been turned down.

A subsequent article published in DispatchLive (8 Sept) indicated that the Deputy Minister of Agriculture, Land Reform and Rural Development had intervened to find “an amicable solution to the impasse” – a somewhat strange response given that the Department is constitutionally bound to protect the rights of the occupiers in terms of ESTA. Hopefully DispatchLive will print a follow up story to monitor the results of the Minister’s intervention.

Anna Majavu writing in New Frame (25th of August 2020) exposes how land redistribution has led to the eviction of an 88-year-old woman who had lived and worked on the property for decades. According to the article the new owner just arrived and straightaway told the farmworker family to leave:

 “He didn’t even have a meeting with us. He just told me I am old so I cannot work. I must look for a house in the location. He said if we stayed, we would probably make a land claim, so we had to get out”.

All of this provides further evidence of the ways in which land reform is failing to benefit poorer and more vulnerable households and may even be deepening the likelihood of their displacement by more wealthy and better politically connected citizens.

In other news, Food for Mzansi (10 Sept 2020) reports there is rising resistance from some actors in the wine sector to the continued sale and distribution of very cheap wine in unbranded packaging for  under R20 a litre. In 2019 42,000,000 litres of cheap wine, or a total of 5% of total wine production was sold in plastic containers. Alex Milner of Natte Valleij Estate argues that:

“Unethically cheap booze must go, we won’t see the difference tomorrow, but in 20 years we will be in a far better space on all social fronts”.

However, Colette Solomons co-director of Women on Farms says that the more fundamental question that the industry should be addressing is its legal, financial and moral responsibility for the intergenerational legacy of the dop system.

In related news IOL (30th of August 2020) reported that black women in the South African wine industry marched to Parliament to protest against the economic exclusion of their businesses during the development of a national wine industry strategy. They demanded an urgent high-level intervention from the government stating that:

“The department is not supporting black wine businesses in South Africa and is largely to be blamed for the slow transformation in the sector”.

Food security

With the ongoing food insecurity as a consequence of the COVID-19 pandemic there have been numerous news stories about how smallholder farmers and gardeners are producing produce for sale and own consumption. Despite this, the not-for-profit food redistribution organisation Food Forward SA has pointed to the rising numbers of vulnerable people needing access to food. This was corroborated by a Parliamentary reply in September which suggested that they were unprecedented levels of hunger being experienced by people in KwaZulu Natal where an estimated 24.5% of people living in the province were reported as being food insecure.

Meanwhile a recent BFAP report has predicted that although the farming sector recorded growth of 27, 8% in the first quarter of 2020, South African agriculture was likely to obtain more modest levels of growth going forward. BFAP also indicated that there were large gaps in the available agricultural production data, particularly when it came to the contribution of smallholder farmers to the informal agricultural economy in South Africa. BFAP cites a recent  study undertaken for the South African Pork Producers Organisation which estimated that the total informal pig herd comprised almost 900,000 animals with an estimated value of R1.2 billion which generated the equivalent of 29,550 livelihoods.

AgriSA Economist Dr Tracy Davids has highlighted how the margins for field crops in particular are coming under increasing pressure, requiring sustainable productivity gains, rotation systems and diversification. However it seems that the real conversation about the cumulative impacts of industrialised, chemicalised, genetically manipulated farming systems has yet to seriously begin in South Africa. It seems that we have some way to go before the lessons from the pandemic (or the ‘syndemic’ as the Lancet has recently characterisied it)  are fully absorbed and the linkages between climate change, production and food systems, hunger, poverty and inequality are better understood.

In the third week of August it was announced that the COVID-19 farmer support vouchers will be extended for another month to 30th of September. The Department of Agriculture, Land Reform and Rural Development reported experiencing delays in the printing of vouchers which meant that many farmers were not able to redeem these in time. By the end of August Minister Thoko Didiza reported that approximately 15,000 farmers had already received vouchers from the relief fund.

On 8th September BizCommunity reported that the department had set aside one hundred million rand for a COVID-19 grant scheme available through the Land Bank to smallholder farmers who have loans to pay, but who are in financial distress as a consequence of the pandemic. The maximum that a single client may access for this non-repayable financial support is limited to R2 million. Application for this funding is open until the 16th of October 2020. However, it was noted “over indebted customers and those with distressed accounts due to other reasons which are not COVID-19 related will be excluded from the support”. Careful oversight will be needed for this initiative as state bailouts quickly become a site for patronage and capture.

Land governance and administration

The Cape Town Deeds Office which has been frequently in the news in recent months due to repeated closures as a consequence of the pandemic has reported that it is now engaging on a major upgrade of its IT system to try and address backlogs in property transfers. The new initiative is designed to assist officials to work and inspect documents from home.

In other news (IOL 10 September 2020) the minister revealed that the department has paid R3.9 million to 2 top officials who are on suspension in the office of the Surveyor General. Both officials are reportedly facing disciplinary action and the matter has been set down more than three times but did not proceed. In the meantime, the officials remain on full pay and benefits.

The troubled Ingonyama Trust continues to make the news. In one of the more recent developments the chairperson of the board Jerome Ngwenya has been asked by Chief Justice Mogoeng Mogoeng to desist from calling himself a judge. Apparently Ngwenya had been appointed as a judge in 2000 but had subsequently resigned. He had later re-applied, but his application had been unsuccessful. Ngwenya was recently re-appointed as chairperson of an interim board from the 1st of September as the Royal Nominee.

Land ownership

Popular historian Patric Tariq Mellet has recently brought out a new book entitled The lie of 1652: a decolonised history of land published by Tafelberg. According to publicity materials the author “retells and debunks establish precolonial and colonial land dispossession history. He provides a radically new, fresh perspective on South African history and highlights 176 years of San/Khoe colonial resistance”. Mellet provides insightful critique on contemporary South Africa so his rendering of this contested history will be valuable.

Land policy

Deputy President David Mabuza recently announced that government plans to undertake an assessment of failed land reform projects. When the president Cyril Ramaphosa came to power, he stated that there was a need for a census of land reform projects to determine their current status. However, this seemed to fall off the policy agenda for a long period and perhaps has now been reinstated. The report will no doubt cost millions of rand to produce. Of course, the big questions will be

1. Will anyone ever read it?
2. Will government ever act on the recommendations?

The lack of practical government response to the report of the High-Level Panel and numerous other reviews suggests that this assessment will have to buck the trends if it is to provide solutions to the vexing problems facing many land reform projects.

Land rights and mining

Kevin Bloom writing in the Daily Maverick (21 August 2020) tries to wade through the labyrinthine complexity to unravel the case of the missing millions of the Bapo Ba Mogale. This case involves a community investment company which made a secret and ultimately fraudulent deal to swap the 12% annual royalties from the platinum mines on the Bapo land for a once off hundred million rand in cash and R540 million in equity from Lonmin plc. However, the deal was never endorsed by the community. Thereafter almost all the money disappeared and to date no-one has been held accountable (Where might you have heard this before?)

Mining is an extremely murky sector and Dr Mpho Tsepiso Tlale, a Daily Maverick opinionista provides important perspectives on the legal status of mining on communal land (28 August 2020) examining the relationship between the MPRDA and IPILRA. The full version of her analysis is available through the Potchefstroom Electronic Law Journal.

Perhaps the most sobering story in recent weeks (Daily Maverick 14 Sept) recounts how since 2016 there have been at least 38 assassinations and 14 attempted assassinations in mining localities in KwaZulu Natal. The article examines the situation at Epembeni near Richards Bay. Back in 2017 the local traditional authority informed residents that some people would have to move because of a mining project which had been approved by the King. When local residents and activists sought clarity about the mining project and to resist their removal a ruthless wave of assassinations began. The elite compacts which form around mining opportunities seem to follow the same script:

• Deals are made in secret behind local residents’ backs
• Local resistance to mining is met with threats, violence and death
• SLAPP suits are brought by mining companies seek to muzzle individuals and organizations exposing dodgy mining deals
• Residents in mining affected communities lose access to land and housing and are poorly compensated
• Revenues from mining intended to benefit local communities are either stolen or channeled to the connected few
• Local livelihoods and landscapes are destroyed.

Rural development

There has been a renewed focus on attacks on farmers and workers in the farming sector. In response the Chair of the Agriculture Parliamentary Portfolio Committee issued a statement condemning recent murders and robbery taking place on farm in the Northern Cape, the North-West and KwaZulu Natal.

“Attacks on farms threaten the food security, employment figures and the economy of our country. Both farmworkers and farm owners are equal importance in the agricultural chain”.

At the same time the Portfolio Committee cautioned against labeling farm attacks as racial crimes, noting that black and white commercial farmers and farmworkers have been victims of such attacks. (IOL 2 Sept 2020)

AgriSA is reported to have welcomed the “considerable attention” being given by government to crime and murder on farms in recent months. (IOL 3 September 2020) This includes a plan recently developed by an inter-ministerial committee to improve rural safety. (IOL 15 September 2020).

Urban land

Our urban land pages have been particularly busy in recent weeks and we can only attempt a brief summary of the many stories featured there.

These include:

• The attempts by the city of Cape Town to defend its eviction policy following legal action taken by the Human Rights Commission, the LRC and the EFF to prevent demolitions without court oversight. (GroundUp 22 August 2020). This resulted in the Western Cape High Court ruling against the City – a ruling which has subsequently been challenged through further legal action
• The furor over the City of Cape Town extending low-cost leases for golf clubs which led to the council withdrawing the advertisement (GroundUp 24 August 2020) and abandoning the public participation process (IOL 26 August 2020)
• The landmark Tafelberg judgment rescinding the sale of public land in Seapoint and requiring the City to take adequate steps to address spatial inequality and provide affordable and well located social housing. The provincial Premier recently announced the decision of the Province to appeal this decision characterizing the judgment as judicial overreach. (Weekend Argus 19 Sept)
• In Cape Town relations between the City and housing activists continue to deteriorate with accusations by Councillors that activists are directly responsible for the spike in land occupations which analysts attribute to the eviction of backyard shack dwellers from township houses for defaulting on their rent as a consequence of the economic impacts of the pandemic.
• At the same time there have been moves to “rein in” the City’s law enforcement unit and improve its public accountability.
• Ongoing contestation over land occupations and housing development countryside – often with negative consequences for the vulnerable.
• There are continuing reports of evictions in cities across the country carried out by councils controlled by different political parties. There are also reports of ongoing evictions by vigilante groupings in Alexandra.

All of the above attest to the mounting challenges facing the management, planning and equitable delivery of services in South African cities – challenges exacerbated by poverty, unemployment, the economic crisis triggered by the pandemic, exacerbated by corrupt practices and the failure of many municipalities to fulfil their constitutional obligations.

African land news

Zimbabwe

ZANU PF’s decided earlier in August to compensate white farmers who lost their land in Zimbabwe as a consequence of the ‘fast track land reform programme’. This decision and responses to it have dominated the African news pages.

Moneyweb (01 Sept 2020) reported that foreign farmers could apply to get back land which had been seized and which had been protected by investment agreements. If this proved to be impracticable they could be offered land elsewhere.

Three days later the BBC asked whether Zimbabwe was “extending an olive branch to white farmers” with its offers to pay for land which was seized 20 years before. The BBC noted that this move was designed to bring an end to sanctions and mend relations with the west.

The Daily Maverick subsequently reported what many people suspected – that Zimbabwe would be unable to afford to pay the billions to former white commercial farmers and that they were now going to offer land instead. (4 September 2020). This option was not well received. AllAfrica (4 September 2020) quoted a farmer stating that most former white land owners wanted cash compensation as opposed to getting land back arguing that farm infrastructure had been destroyed and assets stripped in many instances.

The Zimbabwe Mail (7 September 2020) reported that thousands of farmworkers who had been dispossessed and made jobless as a consequence of fast track land reform were unhappy that no consideration had been given to them in compensation agreements.

Then just as it looked that in Zimbabwe was making progress in its bid to re-establish economic ties and remove sanctions the media carried stories on ongoing land grabs

• Some 300 black smallholder families were being kicked out of a farm near Banket in a land grab by government officials.
• A week later a story made the headlines about one of the few remaining white farmers being summarily evicted from a leased farm in Ruwa that he had been working for the past 22 years.

Then in more recent news EWN (16 September 2020) reported opposition by war veterans to the government’s offer of compensation to former white commercial farmers. This was followed by a story in New Zimbabwe which reported that the war veterans were threatening to sue the President over the compensation deal.

Clearly there is a long road to be travelled before there is final resolution to the land issue in Zimbabwe.

See our African land news pages for coverage of:

• Changes to the law in Botswana allowing married women to own land in their own right
• Unresolved land struggles in the Mau forest in Kenya
• Election pledges of major land reforms in Tanzania
• Moves in Malawi to address long standing land disputes
• Conflict over the alleged failure of the government in Namibia to address the urban housing crisis and make available serviced sites for construction
• The linkages between climate change and the growing threat of locusts posing a threat to food security in SADC
• Lesotho’s rethinking of the contribution of agriculture to its economy and food security
• The complexity of the food system and the need for food security for all in Kenya

Week 33: Monday 10 August – Sunday, 16 August 2020

Our changing Covid-19 context

As of 16^th August 2020, South Africa had 587 345 cumulative cases of Covid-19 with 11 839 fatalities. Gauteng has taken over from the Western Cape as the epicentre of the virus in South Africa. KwaZulu-Natal has now overtaken the Western Cape as the second most affected province after Gauteng. Cases are currently reported to be declining, although with the reopening of the economy and interprovincial travel, the pandemic is likely to spread to provinces which to date have had to cope with relatively few cases.

Farm workers

News24 (13 August 2020) reports on the anticipated retrenchment of permanent workers in the farming sector as a consequence of Covid 19. Women on Farms Director Carmen Louw was presenting as part of a webinar hosted by the Centre of Excellence in Food Security in which she examined the impacts of lockdown and the alcohol ban, particularly on the wine sector. A depressed wine sector would also result in limited employment opportunities and greater uncertainty for seasonal workers. WFP made the case for the introduction of the Basic Income Grant to cushion the impacts of the pandemic on households affected by unemployment and food insecurity.

Land governance and administration

The ongoing closure of the deeds office in Cape Town continued to make the news with the Western Cape Minister of Finance and Economic Opportunities calling on the Minister of Agriculture, Rural Development and Land Reform to intervene. The MEC highlighted the negative impact the closure of the deeds office was having on the property and real estate industry in the Western Cape. BizNews (12 August 2020) reported that the deeds office was facing challenges in that many of the staff employed there were unable to work from home, lacking Internet connectivity and the ability to access online systems. The following day IOL (13 August 2020) reported that the Minister had intervened to address the challenges faced by the deeds office in Cape Town. The Minister spoke of a plan to put in place emergency measures to improve social distancing and safety of staff on the deeds office premises, and to provide tools and equipment to enable staff to work from home more effectively.

However perhaps the most sobering story of the week was carried in GroundUp (13 August 2020). Bernard Chiguvare records the fate of the inhabitants of 33 villages which were affected by the construction of the R373 million Nandomi dam near Thohoyandou in Limpopo in 1998. According to GroundUp some 405 homesteads from 33 villages had to be relocated, losing land and livelihoods in the process. When compensation was not paid in full villagers approached the Public Protector who issued an 81 page report in 2009. Despite the intervention of the PP the majority of the complaints still remain unresolved, leaving people frustrated and angry.

“If the department does not compensate us soon then we are going to open all dam valves and let the water out. Maybe that is the language the department understands better.”

As has been pointed out by numerous commentators the real victims of expropriation without compensation in South Africa have largely been poor black South Africans who have lost land and houses due to mining activity and large dam construction. In 2019 it was reported that most villagers in Limpopo’s Vhembe district municipality were without water. These included those villages which were on the banks of the dam.

Restitution

Further stories were published this week on a contested land claim lodged by different clans of the Mamahule in 1996. News24 (14 August 2020) carried an update on the complex dispute.

In 1996, the Mojapelo clan lodged a claim for the entire Kalkfontein farm in terms of the Restitution of Land Rights Act. Part of the farms were restored to different clans except for portion 41. In 2015 the Mojapelo clan claimed portion 41 as its own and… started to demarcate residential sites which was sold to unsuspecting members of the public.

Unfortunately, like most of the stories published on this land dispute the reader finishes the article without much further enlightenment on the background and facts of the case.

In other Restitution related news  the Southern African Agri Initiative (SAAI) released a media statement on Politicsweb (14 August 2020) expressing concern about “the number of land claims actively processed in the run-up to the 2021 local elections”. SAAI chairperson Theo de Jager expressed concern about the lack of transparency in the process and the unavailability of key documents including claim forms and research reports assessing the validity of the claims and promised the support of SAAI to land owners whose property is under claim.

The SAAI website contains an agricultural manifesto which states that it is “not a traditional agricultural union, but rather a network based on cooperation and the application of modern technology and pure principles”. Presumably, the latter relates to the statement that the network is “unashamedly based on Christian values” while “irrefutably believing in democratic principles without discrimination based on race, riches, age, descent, language or gender”.

According to the SAAI website, De Jager was re-elected as president of the ‘World Agricultural Organisation’ (WAO) in Luxembourg in 2019. Internet searches by KB.L failed to identify any further information about this organisation.  However, after some digging it turns out De Jager is actually President of the World Farmers Organisation.  According the FAO’s Family Farming Knowledge Platform the WFO is involved in the following areas of work: Agroecology, Farming typologies, Food chains, Indigenous peoples and Mountain farming – categories which makes WFO sound more like Via Campesina! (This most likely reflects the limitations of standard vocabularies used by FAO and other international agencies to describe and categorise organisations and land issues for ease of data sharing).

So what is the WFO? Its website describes it as a member-based association, bringing together national farmers’ organizations and agricultural cooperatives from all over the world. According to the WFO strategic plan, the WFO was established in 2011 and by 2016 had grown to represent 71 farmers organisations from 49 countries. Its members include including AFASA and AgriSA from South Africa.

De Jager was apparently nominated for a second term by the Zimbabwe Commercial Farmers Union of which he is an honorary member. De Jager’s re-election to the WFO  was welcomed by Afriforum which also refers to the non-existent WAO. Afriforum reported that they were working together with SAAI to address “issues of common interest – such as farm security and opposing expropriation without compensation”. According to the Citizen (8 July 2020) De Jager recently endorsed a call by AfriForum’s head of community safety Ian Cameron who stated that “It is time that we encourage our rural communities to fight back and arm themselves”. De Jager is also reported to have called for a Commission of Enquiry into farm attacks.

Traditional leaders

An ongoing dispute over the chairmanship of the Eastern Cape House of Traditional Leaders continues. Nkosi Mwelo Nonkonyana recently obtained an interim court order challenging his removal from the position and interdicting the house from appointing a new chairperson. (News24 11 August 2020).

Urban land

News reported on our urban land pages continues to feature clashes over access to land and housing ranging from Soshanguve to Du Noon and Duduza. The Citizen (12 August 2020) reports on how some 2000 people were evicted after illegally occupying the Fleurhof housing development after they occupied flats built as social rental housing in Johannnesburg.

Minister Lindiwe Sisulu said that “the illegal act of taking occupation of housing units in Fleurhof with the express intent of coercing government into providing housing for illegal invaders, on a preferential basis, will never be tolerated”.

“Government will not tolerate those who seek to set back development and undermine the rights of other deserving people who have been on the database for many years waiting for their houses.

Africa land news

A wide range of articles can be found on our Africa land news pages. The most recent include:

• The possibility of the Zimbabwe government using land itself as security if it fails to secure  international guarantees for the 30-year sovereign bond it wants to issue to raise US$3.5bn to compensate white farmers (Fin 24 13 August 2020).
• Corruption allegations over urban land allocations in Okahandja in Namibia (The Namibian 13 August 2020).
• The scaling up of food aid to the DRC which is reported to be facing the world’s second biggest hunger emergency (News24 14 August 2020).

 

Weeks 31 – 32: Monday 27 July – Sunday, 11 August 2020

Our changing Covid-19 context

As of 10^th August 2020, South Africa had 563 598 cumulative cases of Covid-19 with 10 671 fatalities. Gauteng has taken over from the Western Cape as the epicentre of the virus in South Africa. KwaZulu-Natal has now overtaken the Eastern Cape as the two other most affected provinces. According to the TIPs Economy and Pandemic Tracker, new cases continued their downward trend in the past two weeks. As of 9^th August, they were over 40% lower than at their peak in mid-July. However, because deaths typically have a three-week lag time from date of infection, fatalities have increased by over 50% in the last two weeks across the country.

Farm workers

GroundUp (5 August 2020) reports on the perennial problem of evictions from farms. At an online webinar organised by the NGO Women on Farms, evicted farmworkers spoke about the trauma of eviction and the many hardships they have faced including a lack of alternative and safe housing. This remains a stubborn systemic problem which the state has failed to address. Back in 2017 the report of the High-Level Panel noted that evictions have continued “despite laws that were meant to curtail them”.

The HLP found that:

Evictions, which require a court order, can only be achieved under two circumstances. Firstly, if the occupier breaches his contract of residence by causing unlawful damage to property or persons on the land, by intimidating and threatening other occupiers, and by assisting the unlawful occupation of private land. Secondly evictions are allowed if the relationship between employer and employee has collapsed and cannot be repaired. (Pp 288- 289)

The HLP also found that laws and provisions (ESTA Section 4) that require the Minister of Rural Development and Land Reform to provide independent land rights to farm workers (in on-farm and off farm settlements) are not complied with. The Department has acknowledged that implementation of ESTA has been undermined by “a total system failure”. It is this failure that has to be addressed if equitable solutions are to be found. Solution finding has to simultaneously engage to counter other factors which adversely impact on farm labour as a consequence of the rapidly changing global food and agricultural economic systems.

Evictions already have immense social impacts under ‘ordinary circumstances’. However, in the context of Covid 19, evicted households are placed at substantially increased risk. It has been convincingly argued that poverty and inequality in South Africa are “deeply racialised, gendered and spatialised”. Where people are evicted with no alternatives other than temporary accommodation in densely settled informal settlements, they are unable to socially distance. Inadequate access to water and sanitation increases the risk of infection and accelerated community transmission with impacts that stretch far beyond the local communities in question.

In a case currently before the Western Cape High Court, Advocate Pete Haythorn has asked that the Court order the Drakenstein municipality to report to it on the steps that it is taking to address the plight of evicted farmworkers.

The Municipality must be required to set out what steps it is taking to address the situation. In a report it should provide timelines so that it can be held to account, as to when those steps will be taken.

Such a measure can be seen as a mark of desperation. Overall while an increasingly common strategy, it remains questionable as to whether it is the function of the Courts to oversee the work of municipalities  so as to ensure that they fulfill their constitutionally mandated functions. There is mounting evidence across the country where government departments and ministers been found to be in contempt of repeated court orders, without sanction or consequence. This highlights the depth of dysfunction undermining governance and service delivery across the country.

Food security

Xolisa Philip writing an op-ed in the business Maverick (30 July 2020) highlights the counterintuitive budget cuts outlined in the Ministry of Agriculture Land Reform and Rural Development’s budget adjustment presentation to the Portfolio Committee in Parliament. This includes a total of R1.9 billion to be cut from the department’s food security, land redistribution and restitution programmes. The remainder of the budget cuts impact on the AgriBEE fund which essentially means that transformation in the agricultural sector “will take a back seat”. Philip also notes concerns about the plight of 40,000 small-scale farmers who applied for Covid 19 relief and whose applications were rejected.

Creamer Media’s Engineering News (31 July 2020) reports on how South Africa’s National Solidarity fund is seeking to enhance its efforts to provide relief to those affected by the Covid 19 pandemic. According to the article the fund has set aside R175 million for the second phase of its food relief programme and is in the final stages of planning its food voucher rollout to both urban and rural people in need. Simultaneously it is reported to be making preparations to roll out farming input vouchers to rural communities.

Again, the question remains whether a voucher system is the best way to go. Globally cash transfers are considered to be the most effective way to reach poor households – more effective than food distribution and less open (although not immune) to corruption. Direct cash transfers also limit the siphoning off of funds by middlemen, who take their slice along the fund transfer chain.

Wandile Sihlobo reiterates his argument that South Africa needs to refocus its vision of agricultural development based on chapter 6 of the National Development Plan, and that any future development must address underutilised land in communal areas and on land transferred through land reform. He advocates a private sector led model based on joint ventures which he argues is key to recovery and the rebuilding of a post Covid 19 economy. However the article fails to acknowledge the negligible benefits provided for land reform beneficiaries and farmworkers involved in joint venture partners to date. The lessons from the Covid 19 pandemic and the related threats of climate change suggest that new thinking is required across-the-board on sustainable food and production systems and the development of new inclusive business development models.

Minister Didiza recently presented to the African Union Agricultural Ministers noting that:

We should, while dealing with the immediate challenges visited upon us by COVID-19, also appreciate the window of opportunity that COVID-19 has provided for us to reimagine, reset and reposition our agriculture post this disaster.

Presenting at the same meeting Minister Patel recorded at the African continent imported agricultural products to the value of R1.14 trillion in 2019 and runs an agricultural trade deficit with the rest of the world of some R380 billion – a deficit that was projected to widen over the next 10 years.

African countries are learning the hard lesson that we cannot simply remain exporters of raw materials and importers of medical supplies and food products.

Land governance and administration

The Mail and Guardian (2 August 2020) reported on moves by the Ingonyama Trust Board to retrench 50 workers employed by the trust including both the CEO and the Chief Financial Officer, effectively rendering the trust without capacity to fulfil its functions. It seems as if this is an exercise in brinkmanship in response to government withholding of the Trust’s budget allocation, due to its failure to submit its annual report, financial reports and performance planned by the end of the financial year. Perhaps it provides the opportunity to act on recommendations of government commissions to fundamentally review the legal mandate, operations and management of the ITB.

In response to multiple shutdowns of the Cape Town Deeds Office there have been calls to digitise deeds registration in South Africa “placing the deeds registration process on virtual platforms underpinned by block chain technology”. (IOL 6 August 2020). According to critics in the property sector this would help to address the now substantial backlog of almost 12,000 unresolved transfers lodged between 12 May and 3 June 2020. This backlog can be expected to have risen further in the interim.

Restitution

In the past two weeks there have been numerous (and partially reported) stories on a contested land claim lodged by different clans of the Mamahule in 1996. The case came  before the Constitutional Court in 2017 and the Court Judgment provides some essential background on the matter, all of which points to fundamental problems with the land restitution process.

During May 1996 the second applicant, the Mamahule Community, together with the Mothiba, Tholongwe, Mothapo and Mojapelo communities, lodged claims in terms of the Restitution of Land Rights Act (Restitution Act) for the restitution of five farms in Limpopo Province.  The farms included Kalkfontein 1001 LS (farm).  A settlement agreement was drafted in accordance with the provisions of section 42D of the Restitution Act.  The agreement was never signed as the second applicant approached the Land Claims Court to contest the beneficiaries in the claimants’ verification list.  That dispute remains unresolved by the Land Claims Court.  Whilst resolution was pending, the community started demarcating and allocating plots on the farm.

This precipitated an application in the High Court of South Africa, Gauteng Division, Pretoria by the Minister of Rural Development and Land Reform (Minister) against the community.  The Minister sought orders interdicting the demarcation and allocation of plots; declaring that the members of the community were unlawful occupiers as defined in PIE; and evicting the community from the farm.  That application was settled, with the community making an undertaking to desist from their conduct.  Notwithstanding this, the demarcation and allocation of plots continued.

The Constitutional Court Judgment (CCT179/16) [2017] declared that the Mamahule Communal Property Association, the Mamahule Community, the Mamahule Traditional Authority and Occupiers of the farm Kalkfontein 1001 LS are unlawful occupiers of the farm.

However, the back story to this case still remains frustratingly unclear and the question remains is how the dispute around the section 42D agreement remained unresolved for so long, leaving the door open to people occupying the land under claim.

This unresolved land claim has precipitated an increasingly tense conflict over the rights of access, occupation and illegal construction of houses on Kalkfontein 1001 LS also known as Ramathlodi Park, Mamahule or Morena Seaka View.  The case is crying out for some in-depth research to establish the facts and to identify lessons for the restitution process.

Urban land

News reporting on our urban land pages continues to be dominated by the contestation between metro councils and people occupying land to construct shacks. One story this week captures this best of all. Karabo Mafolo writing on land matters in the Daily Maverick (7 August 2020) delivers some of what we need to understand behind the headlines.

For five years, Nyameka Mantambo and her five children were backyard dwellers in Town 2 in Khayelitsha. When the Covid-19 lockdown was enforced in late March, she was unable to pay her monthly R500 rent. After she was evicted, Mantambo built a shack at Empolweni, on City-owned land. In April, when shacks were demolished there, she and the other residents were left homeless.

No neat binaries in this story of a woman with five children evicted from a backyard shack. Although evicted shack dwellers won a court case requiring the city to return their building materials, Mantambo never received her allocation as the materials distributed were captured by more powerful individuals. These same people then seek to extort R1000 from the woman to ‘give’ her a piece of land on which to rebuild.

A community leader subsequently sold her shack for R2500 elsewhere in Khayelitsha which Mantambo is paying off monthly. And yes, not everyone is out to steal and extort. Mantambo reports how people in eThembeni have helped her and her children with food and other needs.

The urban land struggles being waged across the country give new meaning to the statement ‘when complex is as simple as it gets’. Mantambo’s story and many others reported on our urban land pages highlight the accelerating chasm which is opening up between national housing policy and the needs of poor South Africans to access land and livelihoods in the city.

African land news

A wide range of articles can be found on our Africa land news pages. These report on:

• The impact of Corona virus to limit the flow of migrant remittances to families in sub-Saharan Africa and thereby remove a critical source of income. Currently there is an estimated 23 percent decline in the flow of remittances into sub-Saharan Africa (SSA), which is expected to “heavily impact the livelihoods of households and countries that rely on them for food and other basic expenditures, such as health and education”.
• The use of Participatory 3-Dimensional Modelling (P3DM) to validate indigenous land rights in Kenya and investment in the second phase of Kenya’s informal settlements improvement project involving funding of US$150 million by the World Bank.
• The mounting incidence of drought, rising temperatures and extreme weather events and their impact on livelihoods in Lesotho.
• The approach of the newly elected government in Malawi to address illegal land sales facilitated by government officials and to provide affordable inputs to Malawian smallholder farmers.
• The increasing demands for both urban and rural land in Namibia to address the deeply skewed patterns of land ownership which remains within the country and the argument that Germany needs to step up and honour its responsibility to support national redress.
• Zimbabwe’s decision to pay US$ 3.5 billion in compensation to evicted white farmers and the responses to this decision – including that of the EFF in South Africa.
• The multiple pandemics including rising levels of food insecurity and political repression in Zimbabwe where an estimated 60% of the population are threatened by hunger.

 

Weeks 26 – 30 : Monday 22 June – Sunday, 26 July 2020

Our changing Covid-19 context

As of Sunday 26 July 2020, South Africa had 445 433 cumulative cases of Covid-19 with 6769 fatalities. Gauteng has taken over from the Western Cape as the epicentre of the virus in South Africa. The Eastern Cape and KwaZulu-Natal are the two other most affected provinces.

However significant doubts have been raised concerning the accuracy of the Covid-19 data. A report by the Medical Research Council has highlighted that between 6 May and 14 July 2020 there has been an excess of 17,019 deaths of people over one year old from natural causes. The number of excess deaths per week is calculated as the number of all-cause deaths in that week, less the number that might be assumed to have occurred had the Covid 19 epidemic not been in force. For people aged between 1-59 years the excess deaths number is 5899 while the excess deaths for people age 60 and above are 11,175.

Farm workers

Farm workers have not featured prominently in our news pages in the past four weeks. Some of the stories making the news include the long-standing contestation between rival factions in the Food and Allied workers Union which represents many farmworkers. The Mail and Guardian (22 June 2020) reported that FAWU had fired its Deputy General Secretary again. The union has been planning to hold a Congress, however Covid 19 has prevented this from taking place.

Ground up (10 July 2020) reports on the plight of farmworkers who had been relocated from Soetendaal farm five years previously to an informal settlement in Wellington. Evicted farmworkers have faced many difficulties including shack fires which have seen their possessions destroyed, together with rising crime levels in the New Rest informal settlement where they were relocated by the Drakenstein municipality. Many shacks had since been built around them as the informal settlement continues to expand. This prompted one of the evicted used to remark that “we lived better on farms”.

Food security

As the Covid 19 pandemic has dramatically increased levels of joblessness and eroded informal sector incomes, the majority of the South African population have faced increasingly severe food insecurity. During this period concerns have been raised that food safety might also be at risk and that this needed to be avoided at all costs as South Africa could not afford another food borne disease outbreak like the listeriosis cases in 2017 (BizCommunity 22 June).

Health eNews (26 June 2020) highlighted that food insecurity and nutrition are very closely linked. Food insecurity is not simply an absence of food to eat, but crucially of nutritious food contributing to good health. The stark inequalities in South African society have impacted on people’s diets, resulting in undernutrition and stunting children. Undernutrition has also contributed to the rising incidence of obesity and a range of other noncommunicable diseases.

In KwaZulu-Natal (IOL 29 June) there was speculation that the increasing numbers of farm attacks could in part be attributed to mounting food insecurity. This was not something that could be prevented by investment in policing alone, and would require addressing the root causes of poverty and food insecurity in the country, both in the context of Covid 19 and more broadly.

The Farmer’s weekly (2 July 2020) reported that the Agricultural Research Council was R138 million in debt, and planned to cut a thousand jobs.

Several stories focused on the inadequacy of Covid-19 relief to small farmers, with one farmer interviewed in IOL (5 July 2020) describing the support as ‘pitiable’. The Department of Agriculture, Land Reform and Rural Development responded by arguing that the relief packages to farmers were not intended to provide comprehensive support. In a related story in Food for Mzansi (7 July 2020) small-scale and communal farmers who were interviewed alleged that the vendors who had been approved by government to honour relief vouchers, were profiteering by substantially increasing their mark-ups on the inputs that farmers can buy with their vouchers.

The relief to small farmers has also taken place against the backdrop of significant budget cuts, which have impacted severely on the ability of government to push forward with the land reform programme.

Also in this category, several stories focused on the resignation of the Agriculture DG. The Farmer’s ‘Weekly (03 July 2020) published a story stating that it was the DG’s frustration with the “lack of a work ethic” within the agriculture department which had prompted him to resign. However it was not long before this version of events was challenged and stories emerged about a Public Service Commission investigation in November 2019, which had come to a very different conclusion (Uncensored Opinion). This found that the DG had displayed an “overall failure and lack of leadership” in his management of the Department and that he had failed to implement recommendations contained in forensic reports, or manage conflicts of interest that he was associated with. A former Deputy Director-General released a media statement which revealed an alarming state of affairs within the Department, indicative of factional political affiliations which had come to dominate the department’s  work.

There have been a number of Op-Eds on the topic of how to get agriculture growing after Covid 19. Wandile Sihlobo, prolific columnist and advocate for private sector led land reform (Daily Maverick 14 July 2020) has argued that part of the solution lies in getting underutilised arable land in the former bantustans back in production. How to do this remains the challenge.  Miyelani Mkhabela (IOL 13 July 2020) also argues that a post Covid-19 landscape could provide the opportunity to “reshape national production through the development of rural agriculture and agro processing… Post Covid-19, nothing less than a revolution in rural sustainable development can prevent another crisis”.

Whatever needs to be done to get agriculture growing is going to have to deal with Covid 19 budget realities. National Treasury is proposing the introduction of zero-based budgeting which requires the departments will have to justify programme expenses, rather than simply going with historical budget lines. Denene Erasmus (Farmers Weekly 14 July 2020) proposes a number of cuts to the Department’s budget. These include R90 million allocated to the National Rural Youth Services Corps, R121 million allocated annually to the KwaZulu-Natal, Ingonyama Trust Board and R144  million allocated to the Office of the Valuer General. She also queries the value of the 4.4 billion Rand spent on employee salaries within what has probably been one of the worst performing departments in government. Erasmus asked whether money would be better spent on extension programs run by the private sector. A number of news outlets carried stories on the implication of the budget cuts for agriculture and land reform. See our food security page for more.

In one of the more dispiriting indicators of state failure, an article in Food for Mzansi (22 July 2020) revealed how the Department of Agriculture Rural Development and Land Reform had failed to award the three winners of the 2019 Youth in Agriculture Forestry And Fisheries their prize money totalling R400,000 – 200,000 for the winner and R100,000 each for the two runners-up. A sheepish spokesperson for the Minister offered the explanation that “the Department has since resorted to buying the winners agricultural inputs or equipment equivalent to their prize money. The process took longer than anticipated due to most of the suppliers identified by the winners not meeting the requirements”.

One of the prize winners is reportedly so fed up that he stated:

 “I’ve already decided that I want nothing to do with the money. I know the money is owed to me, but seriously how long must I still wait? In farming you have to be quick. If I need fertilizer, I need it now. I can’t wait for two months because then it will be too late.

In an important op-ed in the Daily Maverick (22 July 2020) on the need for a new agro ecologically sound approach to farming Prof Raymond Auerbach highlighted how much agricultural research is out of step with the rapidly changing global environment and the impacts of climate change.

The bulk of research projects aim at genetic improvement for crops and animals, and short-term productivity through synthetic fertilisers and agrochemicals for crops, and hormones and antibiotics for animals.

This will not solve our food security challenges…If SA wants to achieve food and nutrition sustainability, agriculture policies will need to shift away from chemical subsidies to support for partnerships, mentorship, shorter value chains, increased biodiversity and a long-term approach to soil fertility and animal nutrition. Undoubtedly, agroecology has an important role to play in this process.

A recent report by the Economic Development Partnership (EDP) in the Western Cape has revealed the rising levels of hunger as a consequence of the Covid 19 lockdown, while there are diminishing levels of resources and support for community feeding schemes.

The Solidarity Fund distributed 31 579 food parcels in the Western Cape. The Western Cape Government has spent over R80m on humanitarian and food aid. The City of Cape Town has allocated R10m (albeit very slowly) to 55 NGOs for distribution of food parcels. Civil society organisations (CSOs), backed by private donors, provided over 3,1m meals and distributed 77 000 food parcels in the first 74 days of the lockdown (data compiled by the Western Cape Food Relief Coordination Forum).

In mid-June, in a survey of NGO members of the Western Cape NGO-Government Food Relief Coordination Forum, 89% indicated that they were experiencing an increase in requests for food in poor and vulnerable communities. At the same time, 70% indicated that they were experiencing dwindling resources, due to donor and volunteer fatigue.

Agri SA has called on government and the private sector to contribute to a one billion rand food drive initiative recognising the need for a massive collective effort to tackle food insecurity.

All around the country there are important initiatives to address food insecurity by donating food as well as providing stimulus for ‘grow your own’ initiatives. The Rhodes University Community Engagement  programme has been distributing seedlings and the Victory Garden initiative with support from Food and Trees for Africa and partnering with the Assumption Development Centre.

Land governance and administration

July has not been a good month for the Ingonyama Trust. First GroundUp (17 July 2020) reported on how King Goodwill Zwelethini’s Ingonyama Trust has been prevented from taking control of 9,000 hectares of farmland in KwaZulu-Natal, worth almost 1 billion rand. The land claim was first lodged in 1998 by the Emakhasaneni, Entembeni, Mthonjaneni and Isizwe sakwa Dludla communities. The land will be registered in the name of Communal Property Associations, which are expected to hold and administer the land on behalf of the claimant communities. This was followed by an article in the Daily Maverick (21 July 2020) reporting on how Judge Jerome Ngwenya had pulled out of a Zoom meeting, where he was being questioned on the Ingonyama Trust’s adverse audit reports.

Land ownership

The Covid-19 pandemic is playing havoc with the operations of the Deeds Office, which has closed and reopened several times. IOL (19 July 2020) reports that there is currently a backlog of 14000 deeds awaiting transfer. This is said to have a major impact on the property market and real estate services.

Land policy

The passing of former Ambassador to Denmark, Zindzi Mandela aged 59 came as a shock for many. Her death prompted the ANC caucus to reassert its intention to amend the Constitution to enable expropriation without compensation. (EWN 13 July 2020)

Restitution

Finally the Bulldozers and excavators are back in District Six, but this time to start building. Marian Merten (Daily Maverick 10 July 2020) provides some history to the forced removals:

By 1982, 60,000 residents had been forcibly removed, shattering their lives, social networks and easy access to work in Cape Town’s city centre, and the land was bulldozed. Left standing were the churches and mosques.

She questions what will be built to commemorate this incalculable loss? Like all Restitution claims, the value of claim is a complex balancing act between what is just and what is affordable for restitution to be effected at scale.  Merten expresses concern that:

The plans look cheap: a mix of terraced duplexes and multi-storey walk-ups without any green spaces for residents to enjoy, for children to play, and generally to be a green lung in an inner city area.

She observes that:

How cities shape their public spaces and how public memory is expressed are fundamental indicators of a society’s values. Alongside utilitarian needs of housing, transport and the like, public spaces can celebrate achievement – and to reflect the common commitment never again to allow the undemocratic, the brutal and the dehumanising. A commitment against forgetting, so to speak.

District Six is such a space.

In Limpopo restitution has also been making headlines but for the wrong reasons. The land in question is the disputed property of Kalkfontein, where the Mojapelo, Mothiba, Tholongwe and Mothapo clans, collectively known as Mamahule – lodged a land claim under the Restitution of Land Rights Act in 1996. The land claim was never settled due to disputes among the claimants and the land was bought for R14 535 000 in 2010, but seemingly not developed. In the interim, the Mojapelo Traditional Authority were reported to have informally demarcated and sold residential sites on the property. Some 200 people are said to have bought land there and now stand to lose everything.

Agriculture and rural development

The ban on alcohol imposed as part of the Covid-19 lockdown regime has had massive economic consequences. The alcohol industry has applied for deferment of the payment of R5bn in excise tax (Bizcommunity 20 July 2020),while roleplayers in the industry speak of a “job massacre”. Currently over a dozen wine farms are preparing to take the government to court to lift the blanket ban on alcohol sales (GroundUp 21 July 2020). Other reports project that South Africa could lose 90% of its wine producers (Fin24 23 July 2020). The crisis has deepened as wine cellars cancel 2021 grape purchases due to the liquor ban (Farmer’s Weekly 24 July 2020). Lockdown measures to prevent the sale of alcohol are clearly having impacts which may prove to be more costly long term impacts than the stated short-term benefits.

Urban land

Hardly a day goes past without our uploading news items to our urban land pages which feature ongoing land occupations and attempts by municipalities to dislodge the occupiers. There seem to be various interpretations of what is going on. Municipalities seem to favour conspiracies in which organised syndicates stake out and occupy land, selling off sites to desperate people. Civil society and community organisations highlight systemic issues of structural poverty, amplified by the devasting impacts of Covid 19 on livelihoods, employment and household incomes. They point to the failure of urban policy to fundamentally engage with these realities. The Covid crisis has led to township property owners illegally evicting tenants from their backyards because they can no longer afford to pay rent. Faced with the combination of eviction and hunger, people have been left with no alternative but to occupy vacant land. Here they lead a precarious existence in unserviced informal settlements, facing the threat of further eviction by landowners and municipalities. This is creating a cycle of desperation which is rending our already fragile social fabric.

In Khayelitsha, the eviction of Bulelani Qolani symbolised the extent to which millions of the urban poor have been rendered naked – literally, socially and economically. However, the singular focus on the actions of the City of Cape Town in response to this incident, has served to obscure the ubiquity of land occupations and evictions and state sponsored violence which are happening countrywide.

This brings to mind the uncompromising writing of Abahlali baseMjondolo’s S’bu Zikode and his eloquent response to the demonisation of shack dwellers countrywide. Back in 2005 state actors were alleging that Abahlali were being manipulated by a shadowy Third Force, acting as urban askaris, reprising apartheid era dirty tricks. Zikode responded:

I must warn those comrades, government officials, politicians and intellectuals who speak about the Third Force that they have no idea what they are talking about. They are too high to really feel what we feel. They always want to talk for us and about us, but they must allow us to talk about our lives and our struggles.

We need to get things clear. There definitely is a Third Force. The question is what is it and who is part of the Third Force? Well, I am Third Force myself. The Third Force is all the pain and the suffering that the poor are subjected to every second in our lives. The shack dwellers have many things to say about the Third Force. It is time for us to speak out and to say this is who we are, this is where we are and this how we live. The life that we are living makes our communities the Third Force…

Those in power are blind to our suffering. This is because they have not seen what we see, they have not felt what we are feeling every second, every day. My appeal is that leaders who are concerned about peoples’ lives must come and stay at least one week in the jondolos. They must feel the mud. They must share 6 toilets with 6 000 people. They must dispose of their own refuse while living next to the dump. They must come with us while we look for work.

We discovered that our municipality does not listen to us when we speak to them in Zulu. We tried English. Now we realise that they won’t understood Xhosa or Sotho either. The only language that they understand is when we put thousands of people on the street.

Fifteen years later we must ask what has changed? State capture and corruption have accelerated to unimaginable levels. Many of those municipalities which still manage to function remain deaf and blind to the day to day realities of the urban poor in which poverty, landlessness, food insecurity and the pandemic are creating the equivalent of war economies, where people must do what it takes to survive.

Even a superficial analysis of the many stories on our urban land pages exposes the overwhelming inability of local, provincial and national government to listen and properly take stock. This prevents us from articulating a meaningful national vision to formulate the bold steps required to confront poverty and inequality; remake our cities and restore the trust of South African citizens that a better life for all remains a possibility. South African policy makers – if indeed we can still speak of these – remain insulated from reality and stuck in reactive mode. There is a critical failure to understand and respond to the perfect storm building at the intersection of pre-existing spatial inequality, mounting joblessness, hunger and desperation that have been starkly revealed and further inflamed by Covid-19.

Africa land news

Our Africa land news section is starting to expand. In this period a wide range of issues have surfaced across the continent, many of them referencing the rapid and underreported spread of Covid-19 and its impact on livelihoods of rural and urban people.

Covid 19 related coverage includes:

• a WWF appeal to shutdown risky bushmeat markets to reduce the risk of animal to human transmission of potentially new and deadly viral threats;
• an appeal not to lose focus on diseases of poverty in the midst of the Covid-19 crisis;
• the relationship between Covid-19, political instability, armed conflict, forced migration and mounting continental food insecurity;
• the work of predominantly women community health workers providing advice and support to those living in dense urban informal settlements;
• warnings by Oxfam International that while corrupt local and global elites are finding ways to profit from the virus, as many as 12,000 people could die every day from hunger across the continent;
• overall more than 19 million people were reported to be facing food insecurity in West and Central Africa.

There continues to be coverage of devastating locust invasions in East Africa which further aggravated a situation in which the region is still dealing with the aftermath of damaging floods and the new threats posed by the pandemic.

Both Angola and the DRC are reported to be experiencing devastating forest and agricultural fires. Articles explore agricultural investment in Angola and the ways in which these have led to land grabs which have undermined land rights of Angolan citizens.  The Borgen Project (24 July 2020) has examined the causes and prevalence of hunger in the country – one of which relates to loss of land rights as a consequence of land grabs. News also includes a focus on shortage of water which is putting a brake on agricultural production of agricultural cooperatives in the municipalities of Viana and Belas in the capital Luanda, together with reports on an IFAD programme to promote sustainable agriculture in the face of the impacts of climate change.

In Botswana there have been numerous reports about a conservation disaster in which hundreds of elephants have died from an as yet undiagnosed/unrevealed cause in the Chobe games reserve in the north-east of the country. There are also reports that the opposition BDP is planning to present a Land Reform Bill in the Botswana Parliament (Weekend Post 27 July 2020).

In Burundi, our focus is on the promotion and adoption of agro ecological farming methods in a bid to increase the food security of the population.

The DRC continues to experience the impacts of civil conflict, with UNHCR reporting that Uganda had opened the border to a stream of refugees fleeing escalating violence. Elephant (17 July 2020) has published a review entitled “The hands that steal: who is benefiting from aid to the DRC?”. This reports on the findings of an antifraud task force investigating massive corruption in the DRC, involving employees of the UN and international NGOs.

In Kenya Elephant has turned its focus on informal settlement evictions involving thousands of people from a low income settlement in Nairobi known as Kariobangi North. The article explores the linkages between land allocation and local patronage systems.

In Lesotho there are reports that the incoming Minister responsible for Local Government and Chieftainship has dissolved the country’s Land Administration Authority, alleging failure of corporate governance. The Borgen project (27 July 2020) has also published an article on the state of homelessness enlisted to as a consequence of rapid and uncontrolled urban development and a corresponding lack of affordable housing.

Elections in Malawi have featured, prominently in country coverage. Researchers investigating former Malawi President Bingu wa Mutharika revealed that he benefited from a Zimbabwean farm scheme in the form of a R2.1 million gift from the Zimbabwean government in 2007, which was channelled through the Reserve Bank of Zimbabwe. (DispatchLive 20 July 2020)

From Mozambique there are reports of a water project which has boosted yields for farmers who had been battling with drought and climate extremes, while hundreds of households are threatened with eviction in Pemba.

From Namibia there are reports (AllAfrica 23 July 2020) that the Town Council of Okahandja will be rolling out a land delivery programme to provide to make available urban sites for settlement. On the 27 July Namibian President received a report from the Ancestral Lands Commission and a draft Ancestral Lands and Restitution Bill. (Namibian Sun 27 July 2020). This follows processes of public consultations in all 121 constituencies which saw approximately 8 891 people appear before the Commission which received some 4 000 written and oral testimonies.

News from Zambia focuses on the unfulfilled promises of President Lungu to provide land to more than 8000 miners were retrenched in 2015. According to the report only 10% of the miners had been allocated land. Other news focuses on allegations that council officials are allocating land illegally (Lusaka Times 24 July 2020).

And finally, a wide range of news articles have been published on the mounting crisis and systemic corruption of the ZANUPF government in Zimbabwe. Articles include a report by CNN (29 June 2020) on the shooting of two Zimbabwean mineworkers workers by a Chinese boss, purported to be symptomatic of systematic and widespread abuse faced by locals in Chinese run mining operations.

The Zimbabwe government is also threatening to repossess farms allocated to people who are not making optimal use of them. At the same time Zimbabwe has denied that it is targeting white owned farms in ongoing land seizures. President Mnangagwa is reported to have offered a $3.5 billion settlement in compensation for land seizures under the fast track land reform programme. However, it is unclear how Zimbabwe would be able to afford payment of this compensation. A story in New Zimbabwe (6 July 2020) alleges that Zimbabwe’s Sports Minister, former Olympic swimmer Kirsty Coventry had recently seized a farm from the late Robert Mugabe’s nephew for her personal use.

However the big story in Zimbabwe is by well-known researcher and analyst Alex Magaisa (18 July 2020 ZWnews) who provides analysis of the corruption and cronyism associated with $200 million RBZ farm mechanisation scheme. The Zimbabweland blog continues to publish in-depth analysis on rural issues in Zimbabwe with several new blog posts published in the period under review. Finally an article in the Global Press Journal (26 July 2020) also seeks to get to the bottom of issues impacting on land allocation and levels of production in the country.

Weeks 24 – 25 : Monday 8 June – Sunday, 21 June 2020

As of Sunday 21 June 2020, South Africa had recorded 97,302 cumulative cases of Covid-19 of which 43 764 were active and 1930 fatalities. A total of 27 264 cases have been reported over the last seven days. The Western Cape remains the epicentre of the virus in South Africa, while the Eastern Cape is the province with the next highest number of infections and fatalities.

Food security

Food for Mzansi (10 June 2020) carries a report from a webinar on 101 reasons to eat local. The webinar focused in part on the yet unrealised potential of South Africa’s indigenous food heritage. Researcher Qinisani Qwabe argued that indigenous vegetables play a very important nutritional role in rural areas, while also noting that in many cases the input costs in the production of these crops are lower compared to other vegetables. Indigenous vegetables are often also more drought resistant and adaptive to marginal areas.

Chandré Gould and Sello Hatang writing for ISS (10 June 2020) highlight how  “food insecurity and violence are close companions”. They note how:

There’s a significant shortfall between the value of social grants and the amount of money a household needs to feed itself. The Pietermaritzburg Economic Justice and Dignity Group tracked the cost of 38 basic items. It found that a month’s food for an average family costs R3,470 – far more than any government grant, and far more than many employed South Africans earn.

At the same time, they observe how information sharing between groups that previously worked independently of each other has enabled rapid rethinking of food supply and distribution networks. They also point to how community-based organisations have stepped up in the crisis.

There are excellent examples of how well organised low-income communities are feeding up to 20,000 people a day in response to the food crisis caused by lockdown. The Bonteheuwel Development Forum in the Western Cape is organised at street-level, has a soup kitchen on all 17 blocks in Bonteheuwel, and is establishing community food gardens.

They call for good leadership to build on this momentum to structurally address South Africa’s hunger problem.

While the coronavirus pandemic has revealed major flaws in the food system which are closely linked to increasing concentration and vertical integration, PepsiCo’s South Africa subsidiary Simba recently acquired Pioneer Foods in a transaction reportedly worth R28 billion (Farmer’s Weekly 10 June 2020). Pepsico is the largest food and beverage business in North America and the second largest in the world.

Although the deal combines a B-BBEE ownership plan, protection against merger related retrenchments for five years, the introduction of ‘food innovation valleys’ and a R300 million investment in developing the capacity of emerging farmers, (Pioneer Foods 9 March 2020) internationally Pepsico’s record has strong critics. Serious concerns have been raised alleging Pepsico’s “destructive and opaque supply chains” “corporate greenwashing” and aggressive protection of plant patents, including the prosecution of small Indian farmers for “obtaining seeds that did not belong to them’’. According to Research World (April 1 2020) Pepsico, Unilever and H&M are the top three companies under media scrutiny over their impacts on the environment. Pepsico has a reputation for making progressive green public statements which it then qualifies with small print cautionary statements. You can access the Full Competition Commission report approving the deal from their website.

Prof Corinna Walsh (IOL 15 June 2020) President of the Nutrition Society shines the light on malnutrition in South Africa and the  persistence of child undernutrition and stunting while cautioning that:

Nationally, efforts to contain the spread of COVID-19 have resulted in worsening of food shortages, nutrition deficits, and an interruption of social and other nutrition support services on which the most marginalised groups of our country rely. The lockdown also poses challenges with regard to the accessibility and affordability of healthy food which has increased the chances of food secure households becoming food insecure.

She notes that in consequence maternal and child mortality are likely to increase directly and indirectly as a result of the Covid-19 outbreak.

PLAAS researcher Nkanyiso Gumede (Daily Maverick 16 June 2020) examines the impacts of the lockdown on smallholder farmers and land reform beneficiaries in South Africa, and the ways in which they lost access to informal markets. Smallholder farmers interviewed by Gumede expressed concerns about prescriptive nature of government support in the form of vouchers:

What if I have inputs and medication, and want to use the relief fund to pay my employees? These vouchers need to be flexible and respond to our needs. They must consult us before taking decisions.

Land reform beneficiaries reported rising incidents of stock theft:

People are stealing livestock to feed themselves. It is slaughtered in the dongas. You just find the head, feet and the skin. These animals are not sold, but are stolen and slaughtered because people are locked in their homes, and they are hungry.

Gumede concludes that “support that comes in the form of vouchers other than cash restricts farmers. It fails to offer farmers an opportunity to use the relief support to respond adequately to their needs”. World over the evidence is strong that putting cash in people’s pockets is the most effective way to deal with disaster.

Click on our food security page for up date coverage on this theme.

Land governance and administration

The Covid-19 lockdown and infections among Deeds Office staff has meant that the Deeds office has remained closed leading to a backlog in property transfers. This prompted the Cape Attorneys Association and the Institute of Estate Agents to apply for a court order to force the reopening of the Deeds office. The order was granted in the Western Cape High Court requiring the deeds office to reopen and operate in line with hygiene and social distancing protocols.

Land policy

Wandile Sihlobo, the prominent agricultural economist and researcher has compiled a book entitled Finding common ground: land, equity and agriculture based on a selection of articles from his Business Day column backed up with commentary and context.

Rob Davies, Alex Mashilo and Jeremy Cronin writing in Business Day (10 June 2020) make the argument for new Reserve Bank policy to enable a sustained stimulus package to reinvigorate the economy battered by the Covid 19 pandemic. They paint a sobering picture noting that:

A global pandemic of the kind we are now experiencing was predictable and predicted. Even bigger threats loom from the destructive effect of climate change, which if not thwarted will make large parts of the world uninhabitable.

They make a forceful argument cautioning against trying to go back to “the crisis before this crisis” and advocating for “serious land reform that finally begins to abolish health-risky and unproductive apartheid urban settlement patterns, rural destitution and food insecurity.

Land rights and mining

Much of the media coverage in this period has focused on the legal SLAPP suit against six environmental activists brought by the Australian mining company Mineral Commodities Ltd (MRC). Strategic litigation against public participation”, or SLAPP suits are widely regarded as an abuse of court process in an attempt to silence public critics. The company has accused six activists of defaming it through public criticism and seeks millions of rand in damages.

The court case is taking place online via Zoom. Advocate Steven Budlender from the defence team argued that the “only logical explanation for suing six people for such a huge sum was the ulterior motive of discouraging and censoring criticism of the company. The intention was to silence members of the public and amounted to an abuse of the court processes that force people without money into costly, long and undesirable litigation”. The formidable father and son legal team together with advocate Sha’ista Kazee are representing the defendants for free.

Restitution

GroundUp (10 June 2020) reports on a supreme Court of Appeal decision on the long drawn out restitution case of the contested Prudhoe community land claim in the Eastern Cape. This case has featured in our news summary in previous months and involves two conflicting claims lodged on a piece of land in the Eastern Cape which includes the Fish River Sun resort. The Land Claims Court had originally awarded the land to the Prudhoe community but the Amazizi community which had lodged a counterclaim appealed against the decision. The appeal was overturned by the Supreme Court of Appeal. Ohene Yaw Ampofo-Anti, the author of the article provides important insights into the complexities of settling restitution claims and the nature of the multifaceted disputes and divergent interpretations of the past which these often surface.

Rural development

Food for Mzansi (16 June 2020) reports on an interview with Najwah Allie-Edries, the Deputy Director General of Employment Facilitation for the Jobs Fund which focuses on the Jobs Fund agricultural portfolio which has been prioritised given the opportunities that agriculture presents for employment creation.

Urban land

Coverage on our urban land pages focuses on the destruction of shacks in Hangberg by the City of Cape Town and their subsequent questioning by the Parliamentary Portfolio Committee on Cooperative Governance and Traditional Affairs on why the City was evicting residents,despite the prohibition on evictions as part of the lockdown regulation (Daily Maverick 12 June 2020).

In the Eastern Cape GroundUp (12 June 2020) reported on clashes over access to land in Uitenhage which provides a window into the workings of informal land allocation processes and the conflict that can result when these go wrong. Some 50 families from the Meoggesukkel informal settlement had their shacks broken down, following a dispute between two opposing community groups over occupation of a piece of municipal owned land in the area.

Africa land news

Our Africa land news pages carry a wide range of stories from different countries in Southern, Central and Eastern Africa. Here in South Africa New Frame’s Jan Bornman and photographer James Oatway provide important insights into how the ongoing lockdown in South Africa has confined vulnerable refugees and asylum seekers to cramped and dangerous spaces which has impacted negatively on their mental health.

Other coverage from the New Humanitarian and CNBC focus on the impacts of drought and coronavirus in the subcontinent. New Humanitarian (17 June 2020) publishes an instalment in the drought diaries which focuses on six families in three countries (Kenya, Somalia and Zimbabwe) over a period of six months. The article provides different national perspectives on the impacts of drought on families in widely different settings. CNBC (June 16, 2020) reviews a report prepared by the Economic Commission for Africa on the impacts of corona virus in African cities.

Another New Frame article (17 June 2020) provides a stark coverage of the state demolition of the Kariobangi informal settlement in Nairobi, Kenya which is reported to have left thousands of people homeless in the midst of the coronavirus pandemic.

The Southern African Human Rights Roundup in the Daily Maverick (19 June 2020) has an important focus on the violation of mineworkers rights during the Covi-19 lockdown. This ranges from enforced quarantine of 6000 workers at copper and cobalt mines in the DRC to ensure the continuity of mining which is regarded as an essential service. In South Africa miners were forced back to work as they were no longer paid after the first 21 days of lockdown. The nature of working conditions on the mine makes them high risk spaces conducive to the rapid spread of the virus. The article also highlights the plight of intercontinental migrant workers in South Africa, Botswana and Namibia and Tanzania and the DRC.

While there is a deepening global consensus that “workers and businesses are facing catastrophe, in both developed and developing economies” there is still a long way to go before there is agreement on what constitutes “the right, urgent measures (which) could make the difference between survival and collapse”.

Weeks 14 – 17: Monday 31 March – Sunday, 26 April 2020

With South Africa in extended lockdown much of our news focuses on land news related to Covid-19. As South Africa’s confirmed cases rise to over 4361 with 86 confirmed deaths (26 April 2019), there are growing concerns about food security, the impact of a prolonged shutdown on the economy and the plight of poor and vulnerable South Africans. While social distancing may be feasible for the elite and middle-class South Africans, for many of our citizens living in overcrowded township housing, backyard shacks, informal settlements and hostels this is almost impossible to put into practice. The shutdown impacts on the local economy and critically on food security as many people are no longer able to work and many of them are now unable to secure a livelihood.

We explore some of the issues which have surfaced in the South African news for weeks 14 – 17.

Farm workers

Farmers large and small and farm workers provide essential services to ensure that food is produced, harvested, packed and processed for both local and export markets. News this month has focused on how the lockdown regulations have impacted on farmers and workers.

The Portfolio Committee on Agriculture, Land Reform and Rural Development set the tone (The Citizen 31 March, 2020) by urging farmers to ensure that adequate arrangements are in place to enable hygiene and social distancing  and to keep the agricultural sector safe. The Committee sought to send out a strong message that violation of farm worker rights would not be tolerated, noting that South Africa relies on them to feed the nation.

The Farmers Weekly (01 April, 2020) highlighted aspects of the lock down regulations relating to agriculture. They noted that “while not a legal requirement, agribusinesses have been encouraged to make use of the labour force that can be accommodated on site or isolated from other communities as far as possible”. Given that there has been a long-standing trend to casualise and externalise farm labour, with many casual workers living in poor conditions, often in informal settlements ringing rural towns, this poses a real challenge for the agricultural sector in the context of the pandemic.

With rising levels of community transmission it is a matter of time before Covid 19 finds its way to the farms, pack houses and processing facilities which will raise the risk threshold with respect to food safety. The Farmer’s Weekly cites recommendations made by the World Health Organisation including:

• The temperature of all employees must be checked before they enter the workplace. Employees with an elevated temperature (37,7 – 39,4°C) or high temperature (above 39,4°C) should be asked to go home and self-quarantine for 14 days;
• Those administering the temperature tests should wear gloves, and use new disposable lens filters in the case of ear thermometers or forehead thermometers;
• Ensure that the workplace is set-up to allow for social distancing between employees (2m apart);
• All surfaces and objects must be are regularly disinfected;
• Hand washing facilities and sanitising hand rub dispensers must be located in prominent places around the workplace and these dispensers must be regularly refilled.

Dr John Purchase, CEO of Agbiz who is also one of the representatives of organised agriculture on the Department of Agriculture Covid 19 task team, urged farmers and agribusinesses to strictly adhere to published regulations and hold each other accountable to comply with the law.

GroundUp (1 April, 2020) reports on alleged health violations taking place in the agricultural sector. They cite an official from the Department of Labour who stated that they had received “numerous complaints from workers that some employers are forcing them to work without the necessary personal protective equipment”. The Department was reported to have closed down a few unspecified businesses in the previous week.

Activists working with farmworkers reported that social distancing was not in place – particularly when workers were transported to and from the farm and also with in pack houses. However, we are just beginning to grasp the implications that the regulations pose for day-to-day farming operations. Farmers’ transport costs will rise significantly if they are to observe social distancing. More trips will need to be made, or additional transport procured which may not be available or affordable.

A tragic road accident (EWN 8 April 2020) which took place on 7 April on the N1 between Touws River and De Doorns claimed the lives of nine workers and placed another 18 in hospital, may reflect the mounting pressures on farmworker transport. The case of culpable homicide has been opened. In commentary on the accident, farm worker rights groups have raised concerns about the transport of workers in open trucks without seat belts. However, with the accelerating risks of Covid-19 infection this may turn out to be preferable and safer than transporting people in closed transport.

Workers are also feeling the pressure in pack houses which are designed for pre Covid-19 work processes, in which the ratio of workers to pack house tables does not make allowance for social distancing. Most pack houses will not have sufficient packing tables to ensure the correct distance between workers packing fresh produce. There are no easy solutions here, as workers desperately need employment. As pack houses are forced to reduce shift sizes and stagger working hours to enable proper social distancing, this will cause loss of worker income and also slow down the packing process, impacting on the enterprise as a whole.

The impacts of Covid-19 on the agricultural sector raises questions about how things will change to accommodate the ‘new normal’. In an op-ed (Daily Maverick 5 April 2020) Wandile Sihlobo asked whether the pandemic might structurally change the agricultural labour market. He observed that the current labour shortage challenge in Europe and the US could result in a focus on increased automation in the agricultural sector post Covid-19, noting that “any changes in major agricultural producing countries will in the long run will be transferred to the domestic market”.

On 9 April president Cyril Ramaphosa announced that the Covid-19 lockdown would be extended to the end of the month. This raised serious concerns about mounting hunger in the country. GroundUp (14 April 2020) reported on the risk to farmworkers, especially women who were already facing a crisis of hunger just two weeks into the lockdown. According to Colette Solomon, director of Women on Farms the crisis was exacerbated by two key factors – the inability of seasonal workers to claim unemployment insurance due to the closure of the UIF offices and the failure to provide sufficient access to food for vulnerable households. A farm worker from Rawsonville explained how they were being squeezed by rising prices and not being able to claim UIF.

“We haven’t got our UIF, plus many things are more expensive in the shops here in Rawsonville. How are we going to survive? The President must open the Labour Centres. He doesn’t know how we are suffering.”

Women on Farms made a range of recommendations to double the amount of all social grants for the duration of the lockdown, and to take measures to introduce a basic income grant or social wage to include all 10 million unemployed South Africans. Solomons concluded:

Covid-19 has exposed South Africa’s inequalities in wealth, healthcare, housing, water and sanitation, but surely the most perverse is the fact that women farm workers, the producers of our food, do not have enough food to feed their families.

GroundUp (16 April 2020) also reported how safety measures had been ramped up at a Ceres fruit pack house after an employee had reportedly tested positive for Covid 19. In a follow-up article on 24 April GroundUp reported that the pack house was still in operation under strict guidance and supervision of the Department of Health who had tested workers allowing those who tested negative to return to work. The report records that the Department of Agriculture has been providing support services to various agricultural stakeholders across the province, such as providing farm workers with face masks and sanitisers.

An article (EWN 7 April 2020) reported how people working at a fresh produce market in KwaZulu-Natal complained about inadequate safety compliance after an employee tested positive for the virus. The decision was taken not to shut down the market as it would have negatively affected food security in the province. These articles indicate that Covid-19 infection is starting to work its way up the food system from retail to pack houses and fresh produce markets. This highlights the need for careful adherence to hygiene and social distancing standards throughout the food chain.

Food security

The lockdown in a bid to flatten the Covid-19 infection curve has been accompanied by a nation and continent-wide focus on risks to food security.

The Institute for Poverty, Land and Agrarian Studies were the first to blow the whistle on the disastrous effects of lock down on poor people’s access to food and the informal food economy (PLAAS 1 April 2020). They made important recommendations including the urgent need to:

Amend the lockdown regulations to allow any supplier of food items to operate. These measures would legalise certain exemptions to the lockdown for poor people – as small-scale farmers, fishers, street traders and spazas – to produce, transport and sell food. This must include spaza shops (not only those that are registered) plus a public clarification that no distinction is drawn between spazas operated by foreigners and citizens. Informal street vendors must be allowed to sell food and also to transport their produce. Small-scale farmers and small-scale fishers must be able to move to and from their farms and fishing sites and to transport their produce, and systems set up especially by large corporate players within their sector to make available the infrastructure that can help them to do so safely.

Opt for cash instead of vouchers: Proposals for food vouchers should be replaced with straight cash transfers, to put decision making into people’s hands. The attempt to control what poor people buy is patronising and ineffectual, and there is evidence from elsewhere and in the past that food vouchers get sold for cash, at a discount. It is far better to protect and build up the buying power of poor people to survive.

Initially reports allayed the concerns of South Africans with the Bureau for Food and Agricultural Policy reporting on 3 April that South Africa had ample supplies and that people should not be concerned about the availability of food during the pandemic. BFAP reported that empty food shelves were “a reflection of consumer stockpiling rather than disrupted food supply chains”, noting that “South Africa is a surplus producer of food and that the value of South African food exports exceeds imports by a significant margin”. The report did note however that the country’s biggest source of food and agricultural imports was the European Union which is currently the centre of the Covid-19 outbreak. Due to global transport logistics backlogs products destined for export may need to be diverted into the local market. While this could benefit local consumers in the short term, this would impact heavily on producers who would receive lower prices for their produce, while South Africa would not earn much-needed foreign exchange from food exports.

Rebecca Campbell reporting for Creamer Media’s Engineering News (16 April 2020) cited a recent report by the Bureau for Food and Agricultural Policy (BFAP) which provides a sobering assessment of how agricultural input supply chains could be affected by Covid-19.

South Africa is highly dependent on imports of agricultural inputs. For instance, it is estimated that more than 80% of domestic fertiliser demand and more than 95% of plant protection chemicals are imported… And this country also imports other agricultural inputs, such as tractors, machinery, implements and the spare parts that they all require.

The risks associated with the high dependence on imports for critical inputs are twofold: Firstly, it relates to availability, either due to supply disruptions in major sourcing countries, or logistical and distribution challenges arising from Covid-19 containment measures. Secondly, there are also risks related to affordability, which is linked to availability but also influenced by the macroeconomic environment, where the relative weakness of the exchange rate, for instance, has the potential to cause substantial price volatility.

A former President of AgriSA, Dan Kriek (News24 5 April 2020) warned that “the Covid-19 pandemic will accentuate levels of inequality in ways we have not anticipated, unless we start paying closer attention to food security amongst the poorest of the poor.” He observed how:

The new regulations do not take into account the complex food supply systems in townships and poor communities. While farmers, farmworkers and retailers all classified as essential services and quickly and easily obtain permits to work and move around, informal food supplies did not. However, the haste with which regulations were promulgated for various sub-sectors of the economy has resulted in unforeseen and unintended consequences. The informal food supply systems were already so complex, and the quick changes in regulations saw a significant impact on the informal food market.

The informal food market is a complex food delivery system, consisting of spaza shops, bakkie traders, vendors and hawkers. Estimates are that 30% of South Africa’s food is distributed through the informal market to our rural areas, townships and informal settlements. Although major retail outlets expanded their operations into townships, the informal market continues to play a critical role in the everyday life of millions of South Africans.

These sentiments were echoed by Western Cape Premier Alan Winde in an interview on CapeTalk on 10 April 2020. Winde highlighted the serious economic impacts of the lockdown regulations stating that:

It takes just two weeks – two weeks without a paycheck, two weeks without your business trading… It doesn’t matter who it is that is involved in that value chain – everybody is seriously impacted.

Winde noted that we have to get more food into the system “because as soon as you don’t have that paycheck and you fall outside of a social grants system you are now in a sort of no man’s land… We need to trace where more and more people are sitting abiding by the rules, locked up in their home but the cupboard is bare”.

A number of industry and civil society initiatives prompted the government recognition of the mounting food and livelihoods crisis in urban townships. This led to the amendment of the regulations to allow informal traders to operate with permits (TimesLive 7 April 2020). By the 9^th April the City of Cape had issued 934 permits to informal traders under strict conditions:

As stipulated in government’s amended regulations, goods that are allowed to be sold include fruit and vegetables, fresh meat and fish and sweets and cool drinks.

As part of the conditions, trading can only take place between 8am and 5pm, personal protective equipment like masks and gloves must be used, a distance of a metre apart should be maintained between trading stalls and banned items like cigarettes must not be sold. (EWN 9 April 2020)

At the same time the City was issuing warnings to other traders selling non-essential goods that their stock would be confiscated if found trading in breach of the regulations.

Food for Mzansi and Grobank joined forces to organise a massive farmers webinar which brought together more than 1300 people (Food for Mzansi 16 April 2020). Keynote speaker Dr Naudé Malan identified the need for a new agriculture based on “resilient and circular agricultural enterprise” while Mandla Paahla, a Guateng farmer spelt out that there is no returning to normal after Covid-19, but there is a path forward – and that path is to transforming the South African food systems”. This is an important observation – one that clearly recognises the issues and challenges emerging across the land in the month of April.

Lloyd Philips writing in the Farmer’s Weekly (10 April 2020) highlighted how both the World Bank and the African Union had drawn attention to how border closures can impede critically needed food trade within sub-Saharan Africa. According to the World Bank there would be at least a 5% contraction in economic growth in sub-Saharan Africa for 2020, and that on its own Africa would not be able to contain Covid-19 and its effects.

A number of media articles focused on how small-scale farmers were eligible to obtain support from government,  but raised concerns about how this R1.2 billion fund was being administered. Siyanda Sishuba, writing in the Farmer’s weekly (15 April 2020) echoed concerns raised by Theo de Jager of SAAI (15 April 2020). These included the narrow window available for making applications to the fund which opened on 8 April and was set to close by 22 April, and the numerous constraints faced by small holder farmers to both obtain, complete and submit the application form.

These concerns have also been raised by activists in the land sector. One activist in KwaZulu-Natal reported that:

It has taken me three days so far to complete 32 forms. Only one or two of these farmers had heard about the relief; not one has seen an official during the announcement. Two extension officers did call me back but were not able to come and assist me to fill in forms and a DLRRD official could not assist with property information because he is working from home and the information is in the office.

Overall, there seems to be a significant mismatch between meeting the requirements set out in the application form and the capacity available to assist farmers to complete and submit these applications. This will likely mean that those small-scale producers most in need may not qualify for relief from government funding. It also raises the risk that those who are better digitally and politically connected are able to access support, while those who are most vulnerable may be excluded.

The pandemic has seen a resurgence of activism in favour of a citizen’s basic income grant (BIG) to protect household wellbeing and food security. Vishwas Satgar in an op ed in the (Daily Maverick 15 April, 2020) noted that:

Just before lockdown the Climate Justice Charter process called for stronger mitigation measures such as a substantive basic income grant, together with the trade union federation Saftu. This has also been echoed by the C-19 People’s Coalition.

He argues that if a substantive BIG is implemented now this could provide a means to prevent hunger and provide a cushion against unemployment.

The Citizen (18 April 2020) and other news outlets have highlighted a rise in incidences of violence and looting as a response by some to the mounting food crisis. These protests are not because there is no food, but because household incomes in the informal sector have dried up. Many families now have no money to buy food to eat.

Prof Julian May Director of the Centre of Excellence in Food Security, at the University of the Western Cape was reported as saying:

There’s a bunch of us at home getting fat and there’s a bunch of people who really have nothing. And it speaks a lot about the inequalities in South Africa (that) are likely to come out. As people are not getting food parcels or hear of other people getting parcels they are starting to react. And I don’t think that’s going to ease unless there’s more rapid delivery of food to people in poor areas.

Scott Drimie of the Southern Africa Food Lab characterised the current situation as “very, very dangerous”.

The Health Minister Zweli Mkhize (The Citizen 19 April 2020) reassured South Africans that the government was looking at “all the options to save our people from both hunger and infection. It’s not either or”.

On Tuesday 20^th April President Ramaphosa announced an increase in the child support grant of R300 for May and R500 from June to October and an increase of R250 per month for all other grants over the next six months. A special Covid-19 social relief of distress grant of R350 per month for the next six months for all who are unemployed and not receiving grants or UIF payments.

Initially it was thought that the increase in the child support grant was per child, but as was clarified later (Mail and Guardian 23 April) the top up grant was for caregivers and was not indexed to the number of children they cared for. The C19 People’s Coalition, an alliance of social movements, unions, non-profits and community organisations has expressed their concern that the grants would still be insufficient to counter extreme poverty and loss of livelihoods.

Urban land

Our urban land pages have been filled with the struggles of people living in townships and informal settlements during the pandemic. One of the controversial state responses to Covid 19 has been to propose the ‘thinning’ of densely settled areas in a bid to slow the speed of community viral transmission. These plans have been met with scepticism by residents of informal settlements who argued that such measures, taken without adequate consultation, would meet with resistance and be destined for failure.

A group of civil society organisations have provided a critique of the proposed de-densification of informal settlements as a crisis response to Covid-19 which they characterised as “bad short-term thinking”. (Daily Maverick 20 April 2020). The organisations argued that:

Focusing significant resources on only 29 selected settlements for de-densification/TRAs is highly problematic…Covid-19 impacts on all informal settlements and hence the short-term responses for protecting informal settlers from Covid-19 risk must be fairly distributed across all informal settlements. The provision and maintenance of basic services, communication, social learning and behaviour change support, the provision of medical care through testing and well-located field hospitals, and food relief can be rolled out at scale across all informal settlements in the country.

Meanwhile, despite an injunction in the Covid-19 regulations to cease with evictions, several metros proceeded to demolish shacks in informal settlements and eject people from abandoned buildings occupied in the inner city.

The shack dwellers organisation Abahlali baseMjondolo reported facing violence, evictions and demolitions at the hands of the eThekwini municipality, but according to the Durban Mayor “Covid-19 does not mean that there must be a holiday in respecting the laws of the country”. In the eThekwini case the courts validated the position taken by the Durban council, declaring their demolitions and evictions to be legal in the Ekuphumleni, Marianhill and the Azania settlements in Cato Manor.

However, in a recent evictions case carried out by the City of Johannesburg, the court found that the city had acted unlawfully and unconstitutionally. In Cape Town, the City demolished structures in Makhaza, claiming that they were not evicting people but demolishing uninhabited structures which had been erected on a speculative basis.

Numerous stories published in GroundUp chronicle the battle between community activists and law enforcement agencies in Khayelitsha. In one story (GroundUp 11 April 2020) it was reported on how a land occupation was a direct result of the Covid-19 lockdown. As the incomes of tenants occupying backyard shacks in the township have dried up, so they have been illegally evicted by the property owners to make way for those who can afford to pay rent. With nowhere to go, people opted for building shacks on unoccupied municipal land.

In what some have characterised as a return to the ANC versus DA political playbook the Minister of Human Settlements vowed to get to the bottom of illegal evictions in Khayelitsha. More important perhaps is the action taken by the Legal Resources Centre which has taken the City of Cape Town to court to prevent further demolition of shacks and eviction of residents from Empolweni in Khayelitsha (IOL 15 April 2020). Actions by municipalities and law enforcement agencies across the country prompted civil society to write to the President expressing concern over the treatment of poor people in South Africa during lockdown (Radio 702 15 April 2020).

On 17 April IOL carried a story entitled Families watch in horror as City of Joburg demolishes their homes. The article carries a photograph of a front-end loader destroying a house built of bricks and mortar, complete with a tiled roof in Lawley, after the council alleged that the land on which the houses had been built had been illegally occupied. In response to criticism of the demolitions the City stated that “criminal syndicates” were using the current national lockdown “to invade open spaces and land”.

When asked whether the city had a court order to evict the Lawley residents, Joburg spokesperson Nthatisi Modingoane reissued the statement quoted above without answering the questions.

This led Human Settlements Minister Lindiwe Sisulu to stress once again that evictions are illegal during lockdown, condemning the evictions of people from informal settlements by the City of Joburg and the Red Ants in Gauteng.

An important piece by Lauren Royston and Maanda Makwarela (Daily Vox 15 April 2020) has drawn attention to the need to find long lasting solutions for South Africa’s informal settlement residents. The authors from the Socio Economic Rights Institute (SERI),  highlight how urban land has not featured on the land reform agenda to date. They unpack the systemic constraints which render poor township and informal settlement dwellers largely invisible to state services and protection.

Approximately 60% of people living in South Africa do not have the benefits that access to the formal property system is meant to confer. For the majority of people therefore, your rights and claims are not recorded… Our policies do not even possess the language to describe these “off-register” arrangements which people have made in the absence of private sector delivery and inadequate state provision. Without recognition, access to water, sanitation and refuse removal are constrained because municipal systems of billing, taxation and land use cannot “see” you. As a result, you lack the protections that the system confers: against eviction (whether market, state or familial); locally unwanted land uses; environmentally unsound services which threaten your health and safety; crime, violence and abuse; fire and, as we now anticipate, disease.

The authors provide concrete recommendations for strategic responses in both the short and longer term which draw on the as yet unimplemented recommendations from the reports of the High Level Panel and the Presidential Advisory Panel. Royston and Makwarela see the pandemic as an opportunity:

As crisis measures are planned and implemented, an opportunity also exists to ensure that those people most affected are never again ignored, invisibilised or unrecognised because they are poor.

Africa Land News

In Week 16 we have begun the process of expanding our land related news coverage to include countries in Southern, Central and Eastern Africa. Knowledgebase.land is now working with the Land Portal Foundation to extend their and our coverage of African land related news. See our new Africa Land News page launched last week. We will be researching a series of African country profiles in the months ahead in a bid to expand understanding of land issues across the continent.

Week 13: Monday 22 March – Sunday, 29 March 2020

With South Africa in lockdown much of our news focuses on land news related to Covid-19. As South Africa’s confirmed cases continue to rise rapidly, there are numerous concerns about food security, the impact on the economy of a prolonged shutdown and the plight of poor and vulnerable South Africans. While social distancing may be feasible for the elite and middle-class South Africans, for many of our citizens living in overcrowded township housing, backyard shacks, informal settlements and hostels this is almost impossible to put into practice. The shutdown impacts on the local economy as many people are no longer able to work and many of them are now unable to secure a livelihood. We explore some of the issues which have surfaced in the news for week 13.

Farm workers

There are ongoing calls on civil society organisations for the government to impose a moratorium on all evictions – whether of farm workers and dwellers or of people in informal settlements or inner-city contexts.

Food security

The Farmer’s Weekly (25 March 2020) reports on the formation of an agricultural industry task team to manage the corona virus crisis overseen by Minister Thoko Didiza. The task team is to focus on three work streams – the economy, social impact and communication.

At the heart will be to ensure continuous food availability to all, at affordable prices, as well as that all supply chains function, and both imports and exports of agricultural goods are maintained.

Agricultural economist Wandile Sihlobo has released a working paper on the impact of Corona virus on food security stating that from a national perspective it was unlikely that South Africa would experience food shortages for most food products over the next 12 months (IOL 24 March, 2020). However, he noted that the implications of Covid-19 on food price inflation was still to be understood. Sihlobo noted that any potential shortages would be more likely due to logistical challenges in the transport of food imports, rather than a decline in essential grain supplies.

This week stats SA released the results for the latest Census of Commercial Agriculture which was undertaken in 2017. Thea Liebenberg writing for Agri SA in  Politicsweb (24 March 2020) notes that:

This census is incomplete in that it does not cover the entire agricultural spectrum for example, it does not include information on former homelands, subsistence farming and beneficiaries of land reform. The results only cover commercial agriculture’s core 40,122 farming units.

Stats SA data highlights that the total number of persons employed in commercial agriculture on 30 June 2018 was 757, 628 which was down from 769,594 on 28 February 2007 – a decrease of 1.6%.

You can access the full copy of the report from the Stats SA website or click on this link to download a full copy of the report (2 MB).

Restitution

The Citizen (26 March, 2020) carries a warning from the Chief Land Claims Commissioner concerning a land claim scam in the Eastern Cape. It has been reported that land claimants from rural areas across the Eastern Cape had been deceived by scammers into paying thousands of rand in exchange for ‘fast track settlement’ of their land claims. The Commissioner advised claimants to seek advice from the office of the Land Claims Commission in the Eastern Cape, rather than fall prey to people making false promises.

Rural development

It has been a week where many reassurances have been given, but at the same time the gravity of the economic and social impacts of the Corona virus is just starting to be understood. The chairman of Fruit South Africa Justin Chadwick was quoted as saying that “agricultural operations will continue” but “it would be wrong to say it is business as usual”. (Fresh Fruit Portal 24 March 2020) Currently the South African citrus, pome fruit and avocado seasons are in full swing. While there remain at least another two weeks for the harvesting of table grapes. Fruit South Africa stated that it had developed a set of guidelines to educate the industry and that it was critical that those who allowed to continue operating do so responsibly.

Anton Rabe Executive Director of Hortgro observed how:

Dis-information fuels anxiety. We are asking producers to keep their workforce informed with the correct information and to keep everyone calm, by following protocols.

Vinpro Managing Director Rico Basson responded to ill-conceived announcements associated with the lockdown which initially prohibited wine grape harvesting, cellar processes and the sale of alcohol. The harvesting and cellar process bans have since been lifted. The industry is still reeling following cancellation of wine orders by China which closed its ports. Much wine farm income comes from wine linked tourism which has now also collapsed (Fin24 28 March 2020).

Agriculture Minister Thoko Didiza is reported to have allocated a 100 million rand to the Land Bank to help farmers in distress (TimesLive 24 March 2020). However, no detail is yet available about who is eligible and what steps are required to apply.

The NGO Women on Farms (IOL, 26 March 2020) has noted that while government has focused on measures to support business, there has been very little focus on how the Corona virus will impact on farm workers living on and off farm.

We demand extraordinary interventions for farmworkers, with a financial guarantee from the government for farmers to cover the lost wages of farmworkers who are forced to stop working by farmers as a result of the coronavirus.

Urban land

As civil society groups press for a countrywide ban on evictions Vincent Lali (GroundUp 23 March 2020) reports on the eviction of 29 households from Zweledinga Informal Settlement in Khayelitsha. The Anti-Land Invasion Unit was reportedly enforcing a court order prohibiting people from occupying city owned land.

Many of those whose shacks were destroyed were former backyard shack dwellers. Noluvuyo Mdledle, 33, had moved onto the land with her family a day before her shack was demolished by officials.

 “I begged them to leave my building materials alone and assured them that I would not rebuild my shack, but they ordered me to vacate my shack”.

She previously rented a shack in Section 32, Makhaza for R600 per month. She sells fruit and vegetables to support her three young children and unemployed sister.

Many stories this week focus on the threat that Corona virus poses to people living in informal settlements. Abahlali baseMjondolo has called on government to end evictions and prioritise water and sanitation provision to informal settlements. Meanwhile the Citizen (24 March, 2020) reports that Human Settlements, Water and Sanitation Minister Lindiwe Sisulu has identified 29 unspecified areas which are “heavily populated and could be breeding grounds for the spread of Covid-19”. She spoke of measures to provide water and sanitation to settlements while apparently considering measures to lower the densities in high risk areas.

IOL (25 March 2020) quote Abahlali president S’bu Zikode who stated that many of the measures announced by the Minister have not yet been implemented.

“This is urgent, its a matter of life and death. There’s no water, nothing has been provided and nobody communicates anything to the informal settlements”.

Shaazia Ebrahim and Tim Fish Hodgson contributed an Op Ed in the Daily Maverick (27 March 2020) which quoted Abahlali extensively while highlighting that:

The problem is that the recommended measures in South Africa, similarly to those of the World Health Organisation, assume that everyone lives in a house. A house which is at no risk of being destroyed by the state or private owners of the land upon which it is built: a house with access to water, sanitation and other basic services. But the reality is that millions of South Africans do not live in a house, but in rudimentary structures in poor conditions.

The onset of Covid-19 reemphasises what housing activists have been arguing for years that access to land, housing, water and sanitation are essential if we are to provide safe and dignified living conditions for our people and manage the pandemic both now and in the future. This was echoed by a recent protest by informal settlement dwellers outside the Civic Centre in Cape Town (GroundUp 26 March 2020)

The group sang and danced while adhering to the one-meter distance rule as they waved placards that read: “Ramaphosa: Wash your hands” Informal settlement resident: “Ngantoni?” (with what?)”, “No fight, we just want water”, and “Water before lockdown”.

Finally on a practical note Mark Weston writing in the Mail and Guardian (27 March 2020) provides a thoughtful look at how to tackle Covid-19 in informal settlements. He provides eight ideas for policy makers:

1. Adapt to the context
2. Test and tailor education messages
3. Don’t expect to eliminate risk
4. Focus resources on the vulnerable
5. Enlist and support community leaders
6. Don’t forget human rights
7. Empower the youth
8. Don’t forget long term challenges

Each of these ideas is elaborated in the article which is well worth a read. Until next week, keep safe, find courage and be kind.

Week 12: Monday 16 March 24 – Sunday, 22 March 2020

Just 12 weeks into 2020 the rapid spread of COVID-19 and measures to contain this are the focus of much national news. The pandemic exposes the deep impacts of inequality and the inadequate safety nets for the poor South Africans who are the majority citizens.  This gives renewed emphasis on equitable access to land for housing and livelihoods as well as clean water, proper sanitation and other essential services.

Expropriation

For the first time in months the media has abandoned its focus on expropriation and the process of amending the constitution to make clear the circumstances under which land could be expropriated without compensation being payable. On Monday, 16 March the Chair of the ad hoc committee announced the postponement of the public hearings as a result of the COVID-19 outbreak in the country (EWN 16 March 2020)

Farm workers

in last week’s land news update we reported on how GroundUp carried a right to reply written by one of the owners of Anura Farm who sought to place his version of events on record with regard to the eviction of the Petersen family. This week sees Carmen Louw a director of the NGO Women on Farms publicly counter the owner’s story (GroundUp 18 March 2020). According to Louw, Petersen had been unfairly dismissed, ostensibly because of a broken window in the cellar – and not absenteeism as the owner had alleged. According to Louw, Petersen had taken the matter to the CCMA and she received a settlement amount. Louw disputes the owner’s account that Petersen had told the sheriff who served an eviction order on her that she wanted to be dumped on the street outside the farm so as to get maximum publicity. Petersen did not want to be taken to La Rochelle – an overcrowded and poorly serviced informal settlement with a high crime rate. With respect to the owner’s allegations that Petersen’s husband had been arrested for stealing farm diesel, Louw alleges that this was an attempt to criminalise the family on spurious grounds and that no formal charges were ever laid by the owner.

With regard to the eviction order granted by the Paarl Magistrate’s Court and confirmed by the Land Claims Court, Louw counters by stating that magistrates often misinterpreted the rights of occupiers in terms of ESTA and that the land claims court is under serious pressure with no permanent judges. An Internet search failed to turn up a copy of the eviction proceedings.

Women on Farms has consistently highlighted what they regard as the shortcomings in the extension of security of tenure act (ESTA)

ESTA currently does not reflect the situation of farm dwellers like Petersen who was born on a farm, lived and raised her children there, but was traumatically, albeit it “legally”, removed from the farm and “legally” dumped at the roadside. ESTA stipulates that the courts should not grant evictions unless municipalities are able to provide alternative accommodation. However, courts are clearly granting evictions even if evicted families like the Petersens are going to be dumped on the side of the road.

In other news a group of 25 seasonal farmworkers reported that they had been dismissed without warning with two days’ pay – allegedly due to the impacts of Corona virus. (GroundUp 23 March 2020), although no detail was given in this regard.  Female farm workers and dwellers picketed outside the South African Human Rights Commission in protest over a range of issues on farms including evictions, occupational health hazards, wages and living conditions. One of their spokespersons was Wendy Pekeur representing the Ubuntu Rural Women and Youth Movement. Pekeur was a former General Secretary of the now disbanded farm dweller union Sikhula Sonke.

Land Policy

An Op-Ed in the Daily Maverick by SAIRR’s publicist Terence Corrigan (Daily Maverick 17 March, 2020) explores the implications of Zimbabwe’s decision to compensate Zimbabwean farmers whose land was confiscated  and in some cases enable farmers to reacquire their properties. Corrigan examines South Africa’s role in supporting the Mugabe government, but highlights that these new moves by Zimbabwean President Emerson Munangagwa had met with the support of unnamed South African diplomatic representatives in Zimbabwe.

Land rights and mining

An Op-Ed in Business Day (18 March 2020) reviews the impacts of elite capture in the mining sector on poor rural communities. The writers representing organized mining affected communities argue that:

The practical outcomes of mining in SA have left communities poorer, and our own research suggests that communities benefit from as little as 0.2% of value created in the mining sector, while they carry all the negative burdens of mining…

Social and labour plans required by law have delivered very little of value to local communities. Much of the R7.5bn supposedly earmarked for community development never found its way to the ground. Much of these resources have been captured and misappropriated.

In various social audits conducted by Mining Affected Communities United in Action (Macua) we found ample evidence of corruption and false reporting on community investment initiatives. One example is of a mining company that claimed to have invested millions in food gardens, only for our audit to find that it was a small garden in someone’s backyard.

Food security and rural development

The Farmer’s Weekly (16 March, 2020) reports that the Royal show in Pietermaritzberg has been cancelled following the Presidential directive prohibiting gatherings of more than a 100 people. Other events such as the annual Nampo harvest day are also likely to be cancelled.

With the onset of Corona pandemic and the declaration of a State of Disaster by President Ramaphosa concerns have bee raised about the nation’s food security. This has prompted a number of statements seeking to reassure South Africans.

AgriSA released a statement (20 March, 2020) stating that:

South Africans should stay calm and work together to overcome this pandemic. Consumers should refrain from panic buying as South Africa will remain food secure for the foreseeable future thanks to our farmers.

However, at the same time AgriSA noted that exports may be affected due to logistics constraints and the availability of shipping while on the supply side, given South Africa’s vertically integrated value chains, there could be a shortage of agricultural inputs.

Traditional leadership

King Dalindyebo who was given a special remission of sentence in December 2029 after being imprisoned in December 15 2015 on seven counts of kidnapping, three of assault and arson, one of defeating the ends of justice and one of culpable homicide. The King was originally charged and convicted followed the kidnapping of a woman and her six children, the burning their homes to the ground and the assault of four youths, one of whom subsequently died from their injuries – apparently, all because one of their relatives had failed to present himself before the king’s traditional court.

Three months after his release it was reported that the King had been rearrested (TimesLive 13 March, 2020) after a case had been opened against him by his son and acting regent. King Dalindyebo was reported to have allegedly stormed the Great Place carrying an axe, before throwing out clothing and destroying furniture. The King has apparently subsequently been released while Contralesa has volunteered to intervene and mediate after his son filed for a protection order against his father.

Urban land

As the COVID-19 crisis escalates news articles focus on evictions with civil society groups pressing for a moratorium during this period. While human rights organisations are forced to close their walk in services they continue to consult online. Meanwhile people who have long occupied various facilities in protest against the lack of social housing face uncertain times. GroundUp (19 March, 2020)  reports that the occupied Woodstock hospital which now houses about 1000 people has put in place “stringent protective measures” to limit the spread of the virus with communication moving to WhatsApp rather than large meetings. However, at the occupied Helen Bowden Nurses Home in Sea Point little had changed and occupiers appeared uniformed about the dangers they face. Likewise African migrants seeking repatriation and located in various occupation settings were also completely unprepared and with little resources to protect themselves.

Week 11: Monday 9 March – Sunday, 15 March 2020

National news has predictably been preoccupied with the battle to contain the outbreak of COVID-19. As a result, land news for this week has been somewhat thin. We focus on expropriation, farm workers and land policy in this weekly news update.

Expropriation

The Vryheid Herald (13 March 2020) runs a story by Lolo Madonsela who was reporting on public hearings on the expropriation of land without compensation at the Cecil Emmett Hall earlier in the month. A number of contrary views were expressed by people attending the hearing including a member of the ANC who reportedly went off script stating that “we get assistance from white farmers therefore we do need them, we need to have an equitable share with them.” This apparently provoked outrage amongst other ANC supporters which was further aggravated when a white farmer attending the hearing “got up and danced”. Parliamentary officials were called in to try and contain what was described as a “volatile situation”.

People attending the hearing proposed a number of new amendments to Section 25. There seemed to be a strong call for land to be owned by citizens and not by the government. Local resident Sibusiso Nkosi moved that:

Government must address the issue of corruption that seems to plague the Department of Land Affairs. It is also an insult to people to suggest that the state must be custodian of the land, as if black people are incapable of looking after their valuable assets. When the land is expropriated it must be given to the people not the state. The revelations of the Zondo Commission has showed us how deep is the corruption in this government and there is no political will to deal with it, therefore it cannot be trusted with the responsibility to look after land on behalf of the people.

Meanwhile in Cape Town community representatives called for the government to speed up the process to expropriate land without compensation. Dr Mathole Motshekga, chair of the ad hoc committee stated that:

The majority of contributions made during the hearing supported the amendment because it is about addressing the historical injustices of land dispossession of the black majority.

However, he also noted that the committee had been warned that the amendment would put dire strain on the economy and could undermine food security. (IOL 15 March, 2020).

At another public hearing in Germiston an ANC member argued that “the land had already been compensated for by the blood that we share during apartheid. We are not asking for it we are taking it. No one should be compensated, that was done when the blood of our forefathers was shared in Apartheid times”.

And then following the declaration of a national state of disaster on Sunday by President Ramaphosa to combat the COVID- 19 outbreak in the country, Parliament announced that it had postponed all further public hearings on land expropriation. Motshekga noted that the situation meant that “it was in the interest of all South Africans to postpone the hearings until further notice”.

Farm workers

In the previous weeks KB.L has featured stories from GroundUp and other media on the eviction of workers from Anura Vineyards. These evictions led to protest action and the brief arrest of a co-director of the NGO Women on Farms. In week 9 we observed up that “unfortunately, as with much reporting on land and eviction issues, the circumstances of the eviction case remain unclear”. This week GroundUp gave Lance Bouma, one of the owners of the property the right to reply. (GroundUp 12 March 2020) According to his version of events the farm worker was dismissed for chronic absenteeism and had been offered alternative accommodation.

Bouma stated that the Francina Petersen, the evicted farmworker was “a more absent than present bottle packer for five years”, whose husband had been arrested along with her father for allegedly stealing and reselling diesel on the farm. Bouma also had words for Women on Farms which had characterised the eviction as “leaving another farm family destitute” recording that the farmworker’s husband was employed in the construction sector as an earthmoving operator earning more than a farmworker’s wage. Bouma closed his piece by noting that:

In accordance with the rule of law in which — astonishingly, not only the farmworker but the farmer has rights — the Paarl Magistrates’ Court and Land Claims Court weighed the evidence and competing rights of the Petersens and the Boumas and granted an eviction order against the Petersens on 15 October 2019. This gave the Petersens just under four months, until 7 February 2020, to find alternative accommodation.

According to Bouma alternative accommodation had been offered in La Rochelle which had been rejected, although no specifics were supplied. What will emerge as his version is contested? Watch this space.

Also in the news was a report on a study by the Research Planning and Policy Directorate in the Department of Labour (13 March, 2020) which sampled 4055 employees and 210 employers. This report found that “a whopping 77, 7% of workers in agriculture are not union members”. Other studies indicate that trade union membership varies substantially according to where a worker is located within the agricultural value chain. The ILO found that:

Membership of trade unions was very rare amongst workers in the formal sector of the agricultural industry who have employment of a limited or unspecified duration. Within the category of workers with employment of a permanent nature, the incidence of trade union membership was low for farmhands and labourers (11.4%), motorized farm and forestry plant operators (13.4%) and hand-packers and other manufacturing labourers (19.3%). (ILO, 2015: 30)

A report on the Department of Labour study was also carried in Business Day (15 March, 2020).

Land Policy

The Parliamentary Portfolio Committee on Agriculture, Land Reform and Rural Development met on 10^th March to receive a briefing from Mr Mdu Shabane, Director-General (DG) for Land Reform and Rural Development: DALRRD. (PMG 10 March, 2020) The briefing covered DALRRD’s response to the recommendations of the Presidential Advisory Committee where 60 of the 73 recommendations of the Panel were accepted. Regarding new policy development Busi Mdaka, Chief Director for Inter-Governmental Relations: DALRRD laid out the plans of the Department.

Policy frameworks, policies and legislation targeted for 2020/2021 to 2024/2025 include:

• Deeds Transformation Policy and Bill;
• Land Administration Policy and Bill;
• Agrarian Reform Policy;
• ​Revised White Paper on Land Policy and the Land Redistribution Bill;
• Land Valuations; and
• Land Compensation Policy and Urban Land Policy.

The Portfolio Committee were also briefed on the implementation of the Spatial Planning and Land Use Management Act.

Rural Development

Wytske Chamberlain and Karin Kleinbooi write about the failure of the South African government to meet their commitments to smallholder farmers in the 2014 AU Malabo Declaration on Accelerated Agricultural Growth and Transformation for Shared Prosperity and Improved Livelihoods.

The second biennial review finds that Southern Africa as a region does not reach the on-track score on any of the seven commitments^[1]. Although overall progress has been made since 2017, this is not sufficient to remain in line with the interim targets. A number of negative developments stand out. Firstly, the agreed commitment to allocate 10% of annual public expenditure to agriculture is not achieved by any of the member states in Southern Africa.

[1] The seven Malabo Declaration commitments are: 1. recommitment to the principles and values of the CAADP process; 2. enhancing investment finance in agriculture; 3. ending hunger by 2025; 4. halving poverty through agriculture by 2025, 5. boosting intra-African trade in agricultural commodities and services; 6. enhancing resilience to climate variability; 7enhancing mutual accountability for actions and results.

Week 10: Monday 1 March  24 – Sunday, 8 March 2020

Expropriation

The Council for the Advancement of the South African constitution (CASAC) published their written submission to the National Assembly’s Ad Hoc Committee on amending Section 25 of the Constitution. CASAC’s submission was prepared by Advocate Tembeka Ngcukaitobi.

The submission makes clear that the whole amendment process is premised on an incorrect assumption that the Constitution as it stands does not enable expropriation without compensation. The submission notes that expropriation of land is expressly mandated and allowed in the constitution, arguing that section 25(8) of the constitution which gives the state power to address the results of past racial discrimination also allows the state to “restrict any entitlement to compensation which may be claimed by property owners. However, the section has not been put to use and accordingly little or no attention has been paid to it”.

CASAC argues that “without some fundamental changes to the entire programme of land reform by the state it is not likely that any changes in the Constitution or the law will shift the land holding patterns to achieve the vision of the Constitution”. The submission also states that no land reform can succeed if it is not based on the rule of law.

Kallie Kriel CEO of Afriforum writes in the SowetanLive (6 March, 2020) that Afriforum agrees with the Minister Naledi Pandor in her article land reform is legal that measures are required to reduce poverty and inequality. Kriel argues however that the lessons of expropriation without compensation and the erosion of property rights should be learnt from the experience of Zimbabwe, According to Kriel the unemployment rate of 90%, hyperinflation, food and fuel shortages can all be attributed to so called fast track land reform.

However Kriel states that:

The fact that AfriForum is fighting expropriation without compensation in no way implies that it is opposed to land restitution. AfriForum supports the notion that cases where black people were unlawfully dispossessed of their land should be rectified.

The Farmer’s Weekly (4^th March, 2020) wrote a feature on the submission made by the Association for Rural Advancement (AFRA) to the Ad Hoc Committee on the Amendment of Section 25 of the Constitution. AFRA puts forward its own proposals for amending section 25. Reading through the AFRA submission and that of CASAC, noting that they are just two of many thousands of submissions which have been put forward, provides a small insight into the extraordinarily difficult task facing the ad hoc committee, if they are serious about fulfilling the mandate which has been given to them.

The irony in the whole process is that, as Advocate Ngcukaitobi has pointed out in the CASAC submission and elsewhere, the constitution already allows for both expropriation and for expropriation to be nil depending on the circumstances of the case. Ngcukaitobi  argues that what has been lacking all along is the political will to carry out an effective land reform programme.

While these constitutional deliberations proceed, the 2020 budget speech confirms that the amount of money spent on VIP protection will exceed the national land reform budget for a second year in a row. (As if Advocate Ngcukaitobi needed any more evidence).

Farm workers

Women on Farms followed up on the protest action of the previous week which saw their director arrested on charges of public violence that were later withdrawn. The NGO organised a march following an open dialogue at the Huguenot community hall. The NGO seeks to put pressure on the municipality to put a farm worker eviction plan in place, particularly as evicted farmworkers ended up in overcrowded informal settlements with serious social consequences for their family life and the future of their children.

Restitution

The Daily Maverick (6 March, 2020) reports on the continuing saga surrounding the settlement of the District Six land claim. In this episode the former Minister of Land Reform and Rural Development Maite Nkoana-Mashabane applied for leave to appeal a Land Claims Court ruling handed down by Acting Judge Tembeka Ngcukaitobi in April 2019.   Mashabane was found in contempt of court for not complying with a court ruling requiring that a plan be presented to resettle former residents of District Six back on the land from they had forcibly been removed. Acting Judge Ngcukaitobi had ordered “Minister Mashabane …to pay the costs of the proceedings on 17 April 2019, including preparation and appearance, in her own personal capacity, on an attorney and own client scale, such costs to include the costs of senior and junior counsel.”

Matters were adjourned in the case because there was no clarity as to who had actually applied for leave to appeal. There will no doubt be more on this story in coming weeks.

Redistribution

Food for Mzansi (2 March, 2020) reports on the strange case of Petros Sithole (64) a former extension officer in the provincial Department of Agriculture, Forestry and Fisheries. Sithole reportedly retired to become a full-time farmer, who entered into a caretakership agreement with rights to utilise a land reform farm in 2009.

However, the story however is frustratingly unclear about how Sithole lost the rights to continue to use the farm after he had been on the land for more than a decade, referring to an unspecified and “apparent miscommunication amongst officials within the provincial Department of rural development and land reform which left him landless”. Sithole who is a Cotton SA award-winning farmer also produced sugarcane and vegetables.

Urban land

Urban land issues are at the heart of a new film entitled Azibuye – The Occupation by award-winning documentary film maker Dylan Valley (ScreenAfrica 2 March, 2020). The film focuses on an actress and a trade unionist who occupy a suburban mansion which – according to the article – had been vacant for almost 20 years. As the filmmaker observes “it’s hard to mention the underlying issues in the film without getting into spoilers, but I hope the film challenges viewers assumptions about the issues and the characters”. Since its completion, Azibuye became the first South African film to be selected as part of Sundance Film Festival’s New Frontier Exhibitions programme.

GroundUp (4 March 2020) reports on an occupation and a land conflict which definitely is not art, but certainly in need of documenting. In Port Elizabeth residents of two informal settlements and a group of backyard shack dwellers have come into conflict over who should be allocated service sites in a new development. The relocation of residents from Vasrap informal settlement to new sites at Jaagvlakte was halted on Monday after residents of another informal settlement Qunu demanded 50% of the sites. Then a third group known as the Ward 29 backyard shack dwellers “stormed the offices of the local ward councillor demanding 10% of the serviced sites”. The Jaagvalkte story highlights the high levels of desperation and volatility associated with urban land struggles and their potential  to spark violent conflict if poorly handled.

Week 9: Monday February 24 – Sunday, 1 March 2020

Expropriation

In Week 8 US Secretary of State Mike Pompeo was reported as stating that moves to amend the constitution and expropriate land without compensation would be disastrous for South Africa’s economy and people. However, a more measured view has since been put forward by US Ambassador Designate to South Africa Lana Marks, who stated that she was “100% satisfied in the way in which President Ramaphosa is handling everything – in a totally open and transparent manner”. (Mail and Guardian 26 February 2020) Marks said she was not consulted by the US State Department ahead of Pompeo’s remarks the previous week. The ambassador is reported to have gone further to state that she had been informed that “there would be no confiscation of any private land whatsoever”.

In response Presidential spokesperson Khusela Diko made it clear that the government intended to accelerate land reform, but stated that this would be done within the strict confines of South African law. While Ambassador Marks has stated her ambition to elevate South Africa into a top 20 trading partner with the US (it is currently 39^th), Anthea Jeffery continues to beat the Zimbabwean drum (BizNews 27 February 2020) citing De Soto advocate Craig Richardson that the root cause of Zimbabwe’s economic decline was “the expropriation of land without compensation (which) destroyed property rights – the foundation of the economy – and led to a chain reaction…” According to Jeffrey, South Africa “still remains far away from this haunting tale of woe” but she cautions that “there is no room for complacency”.

If you’re looking to take a deep dive to try to better understand the contemporary situation in Zimbabwe, a good place to start is Ian Scoones’ Zimbabweland blog. Prof Scoones who is a Fellow at the Institute for Development Studies at Sussex University  has asked  why is there food insecurity in Zimbabwe (9 December 2019). His answer analyses a range of contributory factors rather attributing everything to a single story of the erosion of property rights.

Back home the Democratic Alliance released a statement on 28 February that it has submitted more than 94,000 public inputs on the proposed section 25 amendment. DA spokesperson Annelie Lotriet argues that “the failure of land reform over the past 24 years has been the lack of action by government to ensure justice is served and land ownership patterns are addressed”. (Politicsweb 28 February 2020)

Farm workers

Several stories this week feature farmworker protests led by the NGO Women on Farms in response to the eviction of six people from Anura Farm in Simondium near Paarl, apparently following a court order. Media coverage of the event has focused primarily on the arrest of WOF co-director Colette Solomons on charges of public violence which were subsequently dropped. Unfortunately, as with much reporting on land and eviction issues, the circumstances of the eviction case remain unclear.

The Anura farms website is silent on the case. However, you can read about the farm’s development journey, opportunities for gourmet food and wine as well as investment in the planned Vini Fera estate “a novel development in the Winelands area… characterised by low density living and an effortless daily life”. A world unimaginable for those who work on farms and seemingly blind to their realities.

Restitution

Public Works Minister Patricia De Lille continues to make the news with how she is “pushing ahead with the release of hundreds of land parcels to South Africans as part of addressing the land reform programme”. (IOL 24 February 2020) And the Minister provides some detail on what land is being transferred. This includes 14,105 ha released in October 2019 which was followed by a further 648 ha of land, state and properties in settlement of restitution claims in the Eastern Cape and the Northern Cape as well as in KwaZulu-Natal. The Minister reported that she had acceded to release a portion of the farm Elandsfontein in Gauteng which would allow for the building of 4000 houses to accommodate people living in surrounding informal settlements.

Rural development, agriculture and the budget

Denene Erasmus (Farmer’s Weekly 26 February 2020) reflects on the tabling of the 2020 budget by Finance Minister Tito Mboweni and its significance for agriculture, land reform and rural development.

Inclusive of all additional grant and government programme funding through various departments, the consolidated spending on agriculture and rural development functions was expected to amount to just over R28 billion, which represents a mere 1,43% of total government expenditure for 2020/2021.

Key features of the budget include:

• 500 million Rand allocated to finalise outstanding land claims
• 500 million Rand provisionally set aside for disaster management including floods and drought
• 957 million Rand for expanding extension services and training extension workers
• 495 million Rand for improved biosafety controls to protect exports
• 40 million Rand to fund a national livestock identification and tracing system
• a transfer of one, R1.2 billion to the Land Bank to finance 450 black commercial farmers Urban land

Meanwhile in other news (IOL 1 March 2020) reports on the upcoming appearance of a North-West businessman Derrick Montshwe who has been called to appear before the provincial legislatures Portfolio Committee on Economic Development.

Montshwe was due to be questioned on alleged dodgy deals including the delivery of 25 cattle worth 1.5 million Rand to former Pres Zuma’s homestead in Nkandla in October 2016. It is also alleged that his company delivered sheep and cattle worth millions to a farm owned by the former North West Premier Supra Mahumapelo. This followed the award of a tender with 650 million Rand which appointed Montshwe’s company Agridelight as the implementing agent for agricultural rural development programmes in North-West in 2014. The story first broke in the Mail and Guardian in May 2018 which reported that a senior official in Agridelight (Montshwe) had sought to turn state witness in the face of an investigation by the Hawks into the looting of public funds in the province.

However, according to a report in the South African (3 March 2020) despite prior media hype Montshwe’s testimony was evasive,  and all questions relating to senior politicians were evaded. Jaqueline Theologo, DA spokesperson on agriculture and rural development subsequently stated that Montshwe had deliberately misled the committee by the omission of critical details, characterising him as “nothing other than a hostile agent”. In the end it seems that no beans were spilled after all.

Urban land

In Cape Town housing activists launched a protest action by occupying the Rondebosch golf course where an area the size of 45 rugby fields is rented out by the City of Cape Town for just R88.17 a month. Housing activists have long argued that this land could be put to much better use for mixed use and mixed income housing and urban development to provide improved access to the city. (IOL 1 March 2020)

Michael Clark from Ndifuna Ukwazi was quoted as saying:

“With these leases, the City is not even reaping financial benefits. It’s actually externalising the cost of not providing housing to hundreds of thousands of people who have to live in informal settlements and spend money on travel costs to their workplaces,”

Clark noted that Cities such as Hong Kong in China and Canberra in Australia, public land-leasing programmes raise revenue  to fund infrastructure. Not so in Cape Town.

“If we keep renewing these leases without considering their impact, then we are just reproducing colonial and apartheid spatial planning. This is simply unacceptable in a constitutional democracy that prioritises spatial justice”.

Week 8: Monday February 17 – Sunday, February 23, 2020

Expropriation

For a change there has not been that much coverage on expropriation this week.  Theunis Roux – a law professor, attempted to disentangle the politics behind the move to amend the property clause. (19 Feb, 2020) He observes that it’s hard to comment on a draft constitutional amendment which does not appear to be in its final form. He notes that as the Constitution 18^th Amendment Bill currently stands section 25(2)(b) would be changed to provide that:

a court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil.

In addition, a new section 25(3A) would be inserted authorising parliament to set out the circumstances in which such an order could be made, subject to the Constitution. Roux highlights the factional divisions in the ANC:

The ANC is currently split between a pragmatic, market-respecting faction aligned to President Cyril Ramaphosa, and a radical economic transformation faction associated with secretary general, Ace Magashule. Decision-making in the organisation is therefore a reflection of the relative strength of those factions.

Against this background, the proposed amendment to the property clause is not so much a populist containment measure as a political wedge.

Positive public response to the Bill will ensure that it passes as is, which will constitute a victory for the Magashule faction and by extension the EFF. However, if the public response is more muted the pragmatic faction aligned to the President may gain advantage. Whichever way it plays according to Roux:

The proposed amendment to section 25 represents a critical juncture in South African constitutional politics. The outcome of the current public consultation process will shape the nature of its constitutional democracy for years to come.

Land policy and the budget

Jeandré van der Walt (Farmer’s Weekly 21 February 2020) examines the gap between budget promises and implementation realities. These include the allocation of 1.8 billion last year for the implementation of 262 priority land reform projects over three years. According to Annette Steyn DA member on the Agriculture, Rural Development and Land Reform Portfolio Committee the government had still not provided a list of these projects and how they would be executed. Dr Vuyo Mahlati of AFASA urged the Minister of Finance to pay particular attention to drought relief and forward-looking measures to address the impacts of climate change. Overall there were questions about whether the budget for land reform would increase, given repeated criticism that the allocation of land reform had been consistently too low to enable the programme to be effective.

Farm workers

Barbara Maragele (GroundUp 20 February 2020) writes how farm worker Eric Lolo plans to take the Drakenstein Municipality and the Provincial Department of Human Settlements to court for their “failure to meet its constitutional obligation by not providing adequate emergency housing” to families facing eviction. The NGO Women on Farms has been admitted as a friend of the court. According to the article Lolo was retrenched at the Langkloof Roses farm in 2014, but he remained in his house on the farm. The farm owners subsequently sought to evict him in terms of the Extension of Security of Tenure Act (ESTA) as they wanted to allocate the house to other workers on the farm. Lolo says he has nowhere to go, although reportedly he has found work in Simondium. Apparently, the municipality offered him emergency housing at an informal settlement in Simondium which Lolo refused on the grounds that the informal settlement was poorly serviced and not a safe place to live.

Veteran land rights lawyer Johan van der Merwe seek to compel the municipality to use its own resources to house those evicted from farms, rather than rely on funding from provincial government. Interestingly however. It seems the legal team are not seeking an order compelling the Department of Rural Development and Land Reform which is responsible for ESTA to take responsibility to find solutions and provide resources, making use of the neglected Section 4 of the Act. In the view of the Executive Director of Community Services at Drakenstein Municipality:

“The National Department of Rural Development and Land Reform is the lead government institution to address evictions on farms in terms of the Extension of Security Tenure Act. They must provide legal representation and also secure the permanent tenure [alternative accommodation] of evictees”.

The case is being argued in the context of a deepening housing backlog. People wait years to access a subsidised house, so people evicted from farms – many of whom are not registered on the municipal data base – are inevitably regarded as ‘queue jumpers’, irrespective of their circumstances. Allocating housing to evicted farm dwellers can quickly become a flashpoint for conflict. There have been cases where members of local communities have threatened to mobilise to eject farm dwellers who have been allocated houses ahead of them. All of this makes for very messy and complicated local politics. Farm evictions remain a complex issue which is unlikely to be resolved any time soon.

Land governance and administration

The Minister of Public Works has been making much of the reported release of 167 portions of land measuring 14,105 ha held by the Department. However an article in News24 (23 February 2020) which purports to quote the Minister, displays little understanding of land reform. It makes reference to “redistribution claims” and provides a garbled history of the dispossession of the amaMfengu community of their property in 1927 – something effected according to the article in terms of the Black Administration Act of 1972!

Land policy

US secretary of state Mike Pompeo speaking in Addis Ababa waded into the South African land reform debate, characterising proposed moves to amend the constitution and expropriated land without compensation as being disastrous for the economy and the South African people.

Meanwhile Prof Brian Ganson (BusinessTech 22 February 2020), Head of the African Centre for Dispute Resolution at the University of Stellenbosch Business School has characterised the current land reform debate in South Africa as “a dialogue of the deaf” in which the protagonists do not listen, and cannot hear each other. Ganson argues that the land question will only start to be resolved if we as a nation employ conflict resolution skills by building bridging principles and recognising the power of AND as opposed to EITHER/ OR.

“We can insist that the interests of the poor, vulnerable, and dispossessed in land restitution and land distribution be put first – AND readily agree that we must have answers for those whose lives and businesses will be inevitably be disrupted.”

Rural development

On 18 February Minister Thoko Didiza lifted the ban on animal movements to auctions three months after it was imposed due to the FMD outbreak. However, while she lifted the ban, she emphasised that livestock auctions need to be conducted under stringent conditions and all livestock agents must be registered with the Agricultural Produce Agents Council. She noted that while the ban had been lifted, this did not necessarily mean that animal health was safe and urged preventative disease control measures by all livestock owners and auctioneers.

Agbiz chief economist Wandile Sihlobo cautioned that it will take time for the livestock industry to recover as the latest FMD outbreak followed quickly in the wake of the 2019 epidemic. The livestock industry was still reeling from the prolonged effects of drought.

Urban land

With unemployment running at unprecedented levels people are on the move in search of livelihood opportunities. However, with a housing backlog that was estimated to be 2.1 million units in 2018, life in a shack is the only option for many poor and jobless households. IOL (21 February 2020) runs a story about how retired residents of a four-storey apartment block in Isipingo Beach face off with the poorly serviced Dakota informal settlement which has sprung up on adjacent land. This has contributed to rising tensions between property owners and informal settlement dwellers.

In Port Elizabeth residents of Vastrap, an informal settlement consisting of more than a thousand shacks report “being flooded with empty promises by the human settlements officials”. Resident’s frustrations boiled over as promises that they would be relocated, failed to materialise. People are reported to have taken to the streets in protest, burning tyres and torching vehicles including a municipal ambulance (TimesLive 22 February 2020).

Week 7: Monday February 10 – Sunday, February 16, 2020

 

State of the Nation

The news this week was dominated by the President’s State of the Nation Address which was delivered on 13 February 2020. However the speech paid very little attention to land reform with the president seeking to reassure citizens and investors that South Africa was in turnaround mode. With respect to urban land the president announced a social housing programme which was at the implementation stage and would result in the construction of 37,000 rental apartments. He also announced state investment of R64 billion in accommodation for students. It was unclear whether this initiative was going to conducted independently of the universities and colleges in need of such accommodation, or whether the investment would form part of the package of financial support which government provides to the tertiary education sector.

The speech noted that “government stands ready to implement key recommendations of the Presidential Advisory Panel on Land Reform and Agriculture, so as to accelerate land redistribution, expand production and transform the economy”. Again, quite how this was going to be done will presumably be addressed in the Minister Didiza’s budget speech. The Minister of Agriculture, Land Reform and Rural Development along with the Minister of Public Works will need to provide details of how and where 700,000 ha state land will be released for agricultural production, as stated by the President. His speech also alluded to a new beneficiary selection policy which will require compulsory training for potential beneficiaries, before land can be allocated to them, together with the implementation of wide-ranging drought mitigation strategies. The SONA focus on expropriation was limited to a single paragraph stating that:

Government stands ready – following the completion of the Parliamentary process to amend Section 25 of the constitution – to table an Expropriation Bill that outlines the circumstances under which expropriation of land without compensation would be permissible.

Perhaps Ramaphosa’s speech was more significant for what he left out, rather than what he put in. There was no mention at all of the downgrading of the Land Bank to junk status by Moody’s, no word of traditional leaders and the passing of the controversial TKLB; nothing about the immense challenges facing the restitution programme and the thousands of outstanding land claims, or what to do about land which has already been transferred but is no longer in production. His speech was also silent on land rights and mining.

Given the lack of substantive content in the SONA address, comment on the future land policy direction was fairly muted in the days that followed. Bulelwa Mabasa writing an op-ed in the Financial Mail (13 February 2020), praised the publication of the beneficiary selection and land allocation policy as being “a big step in the right direction”. However, Mabasa singles out some of the more curious features of this draft policy including the rightful spouses of public servants to be able to access land noting that

“Land benefits in the context of marriages would ordinarily follow marital regimes, so the express inclusion of this category appears self-serving”.

Mabasa approves the establishment of an independent land allocation panel, but notes that that its success will hinge on the capacity and resources which are allocated to it. Mabasa highlights how the panellists will have to find the difficult balance between prioritising the poor and vulnerable and advancing the agricultural economy.

John Purchase of Agbiz had some positive feedback for the President. Organised agriculture was reportedly pleased with the emphasis on improved logistics and the overhaull of South Africa’s ports, as this will improve global competitiveness of many value chains in the agricultural sector. However predictably Agbiz reiterated their opposition to the constitutional amendment to enable expropriation without compensation.

Expropriation

If the SONA speech was low-key with regard to expropriation, this has not been the case with the local media in the days leading up to the President’s address. In an article published in BusinessTech (10 February, 2020) the Cape Chamber of Commerce and Industry waded into the debate around the role of the courts in regulating the extent of compensation payable in expropriation cases. This follows earlier remarks made by the Chair of the Parliamentary Constitutional Review Committee, who indicated that this should be a matter for the executive, rather than the courts. The CCCI issued a statement saying that such proposals were “outrageous” and warned of the backlash associated with government moves which it regards as “blasting holes in the Constitution and the Bill of Rights”.

On the same day Pierre Venter from BASA was interviewed by Nompu Siziba on Moneyweb to answer whether will you still have to pay your bond if your land gets taken away? Siziba noted that according to the Draft Expropriation Bill of 2019, a mortgage bond would be automatically terminated on the date of expropriation, when ownership of the property would pass to the state. However, the question remained as to who would be responsible to pay the balance of the bond owed to the financial institution – the expropriated owner of the property, or the state?

Venter noted that BASA had approached the Department of Rural Development and Land Reform back in 2011 to argue that this would place an undue burden on the property owner. According to Venter, DRDLR presented a policy framework to Cabinet, which was reportedly approved, that the state would guarantee the difference between the compensation that a property owner received, and the outstanding balance owed on a bond. However, apparently this was never transformed into legislation or regulation. Venter noted that commercial banks currently have an exposure of around R150 billion in the agricultural sector. This was moderate when compared to exposure of around R1.6 trillion in the residential and commercial property markets. Venter notes that in terms of the original 1975 Expropriation Act the state was required to pay market -related compensation plus a solatium – redress for the ‘pain and suffering’ experienced by the landowner whose property is expropriated.

The BASA representative tried to strike a balance between recognising the need for land reform, while mitigating potential instability in the banking sector and hence the economy:

First of all, let me say that we do believe that it’s absolutely essential that we have a comprehensive land-reform programme in this country, and that we rectify the injustices of the past. Having said that, though, we need to protect property rights and the bank sits in an invidious position where they need to protect borrowers as well as depositors. And if it’s going to translate into losses, if severe enough, it could cause instability in the banking sector and in turn our entire economy.

BASA had called on the ad hoc committee to ensure that even if land was expropriated with zero compensation, the state would guarantee to pay the difference between the level of compensation decided on, and the outstanding debt on the property.

Cas Coovadia MD of BASA also weighed in on the debate in an op-ed published in Business Day (12 February, 2020), warning that the property market and economic growth would be “severely affected by the expropriation of land”, irrespective of the form that this took. He noted that “the possibility of expropriation without compensation has already started discouraging essential investment by farmers and others into their properties”. From BASA’s perspective, urban land reform is a high priority given that 1.2 million families live in informal settlements.

Land rights and mining

GroundUp (11 February, 2020) reported on an application in the North Gauteng High Court by the Amadiba Crisis Committee and the Centre for Applied Legal Studies that all mining applications should be public documents. The applicants are seeking a declaratory order directing that communities are provided with full information on any mining application, so as to enable meaningful consultation and prevent future litigation, which would drain time and resources of both the community and the court.

Land restitution

Lucas Ledwaba provides important insights into the complexities associated with the settlement of restitution claims by setting out the case of the Maila community claim (12 February, 2020). He details the ways in which members of the community were progressively transformed from owners and occupiers of the land into labour tenants, who were forced to pay a fee to graze their cattle on land they had occupied for generations. Legal complexities, a grainy historical record, coupled with competing land claims from neighbouring communities has forced the CRLR to offer compensation. All this has left the Maila community asking ‘where is our land’? – a question that remains unanswered.

Rural development

The Letaba Herald (11 February, 2020) notes that one more case of foot-and-mouth disease was reported in January, but it now seems that the outbreak is under control. According to the Herald both game and cattle farmers are holding their breath, waiting for government to lift restrictions on the movement of livestock and the resumption of auctions.

In more sobering news, the Farmer’s Weekly (13 February, 2020) confirms that stumbling sugar giant Tongaat Hulett has frozen operations at the Darnall sugar mill – the smallest of four sugar mills operated by the company. A forensic investigation conducted in 2019 found that the company’s financials had been deliberately misrepresented to obscure operational losses. The closure of the mill will result in the retrenchment of almost 400 employees. It also has major impacts on smallholder farmers and other producers who deliver cane to the mill, whose transport costs now be increased by having to divert their harvest to other mills at a distance.

Urban land

Stephen Robins, writing in GroundUp, republished in Maverick Citizen (12 February, 2020) writes an interesting, if inconclusive piece, on how informal settlements can be better planned. The focus of his article is to compare re-blocking initiatives carried out by local NGOs ,versus what is described as ‘super blocking’ planning conducted by local government, and the critique that such approaches can engender. It seems that neither the approach of NGOs or government can avoid conflict in attempts to replan informal settlements, as contestation over access to land is never far from the surface. He highlights the primacy of local politics in driving conflict:

Where conflict is most likely to be generated in re-blocking and super-blocking exercises is when there is fear of displacement, or where there is concern that individual plot size will be reduced. These fears are often manipulated by shacklords and local politicians who seek to extend their own influence and access to land.

However, despite the struggles and challenges facing localised attempts to support informal settlement dwellers, Robins highlights examples of good practice which indicate that such approaches have potential to improve living conditions in informal settlements.

Week 6: Monday 3 February – Sunday 9 February, 2020

Expropriation

So, as reported in our roundup for January the Constitutional Review Committee agreed to extend the deadline for submissions on the proposed Constitutional 18^th Amendment Bill. Bekezela Phakathi (Business Day 5 February, 2020) writes about the pressure which had been brought to bear by a range of civil society organisations and lobby groups to have the deadline extended. The first round of oral hearings on the bill is scheduled to take place between the 20^th and 24th February in Limpopo and the Northern Cape.

Frans Cronje of the Institute of Race Relations (BizNews 5 February) writes a column reflecting on the decision by SA home loans to take to social media to explain that if the state expropriated a bonded property, then the bondholder would be liable to pay the bank the outstanding balance, despite no longer being the owner of the property.

Cronje argues that:

“If expropriation is a social good, and the country as a whole is thus to benefit from it, then whatever costs are attached to any expropriation should be carried by the broader society and not by expropriated individuals. Hence the cost of loans that remain outstanding following EWC appropriations should be carried by the taxpayer”.

Cronje critiques what he describes as the ANC’s ‘policy incrementalism’ asserting that “it is particularly skilled at stepping back in time from demands it is made in order to lull society into a false sense of security”. In this respect he highlights the requirement in the Bill that the courts are responsible to determine just and equitable compensation, while at the same time the ANC has been arguing that compensation should be determined by the executive rather than by the courts. In familiar IRR strident style, the article concludes with dire warnings for  the country of what will follow if the Constitutional Amendment Bill and Expropriation Bill are passed by Parliament: namely that “South Africa will come to stand at the age of an abyss from which its economy may not recover for a very long time”.

Land policy

Stephen Meintjes writes an op-ed in Business Day (3 February, 2020) which makes the argument for levying rents on all land. He notes that countries that have opted to raise revenue from land instead of taxing labour, capital and consumption have prospered. He gives the examples of Hong Kong, Singapore and Taiwan.

In any event it stands to reason that if you charge land value rentals and lower tax inefficiently used or speculatively held land will either be developed or come to market. So you have a double whammy: land becomes more affordable and the economy gets a kickstart. It then gets better: as taxation gradually reduces and land rent rises, those areas with minimal locational advantage (read vast swathes of our rural areas and former homelands), which had been taxed out of business can resume normal economic activity. Absent ruinous retrogressive VAT and insane fuel taxes, they get a further boost. In the urban engines of the economy these carrot and stick incentives are even more powerful.

On 7 February, 2020 the Department of Rural Development and Land Reform published the draft Land Donations Policy in the Government Gazette. Members of the public have 60 days to comment on the policy. The stated objectives of this policy are to:

• Increase opportunities for land ownership amongst farm dwellers, labour tenants, small families and cooperative farmers, the landless in informal settlements, women, youth, and persons l with disabilities;
• Ensure that the lower strata of peri-urban and rural citizens are afforded meaningful opportunities to participate in the economy;
• Promote primary shelter within proximity to employment opportunities including agricultural allotments, urban agriculture and agri-villages and urban agriculture;
• Contribute to the development of sustainable human settlements as well as economic and public amenities;
• Contribute land for facilities for incubation of youth and new entrants as well as enterprise development and innovation centres;
• Provide a framework to respond to the various forms and configurations in which land donations come;
• Provide a framework for managing risks associated with property donations, and
• Provide for the processes and institutional arrangements through which donations will be managed

The policy targets large institutional landowners as potential donors including agribusiness, mining companies, financial institutions churches and others.

The policy envisages two types of donation – one where land is donated and the land owner identifies preselected beneficiaries and the other where land that is donated has now identified beneficiaries.

Restitution

The settlement of the District Six land claim and the redevelopment of the area feature in our restitution pages. You can listen to Refilwe Moloto from Cape Talk interview Nicky van’t Reit a director at legal firm Norton Rose Fulbright, South Africa who took up the claimant’s case and was involved in pro bono litigation for two years before finally succeeding to extract a plan of action from state.

On 4th February News 24 reported that the District Six land claimants, together with their legal team were supportive of the land reform department’s plan for the redevelopment of the area. The implementation of the almost 200 page plan is subject to a structural interdict which requires the Minister to report to the court every three months on progress made. The plan was presented to the land claimants for their approval. District Six committee chairperson Shahied Ajam was reported as saying that “the project had spurred an unprecedented level of positive political will and friendly cooperation between all three tiers of government”. The plan is estimated to cost R1.5 billion over a period of four years. However, where this finance was to come from was not explicitly stated. The legal team has followed up the Minister requesting clarity on the sources of funding.

Weeks 1-5: Wed 1 January  – Thursday 31 January 2020

Welcome to 2020. We took a break for the holidays so we have packaged land news for January into a single update. From next week we will revert to our weekly update and linked podcast format.

Expropriation

The Constitution 18^th Amendment Bill was gazetted on December 6, 2019 and the period for public comment closes on January 31, 2020. The amendment bill has drawn wide ranging comment. Late in December the Economic Freedom Fighters (EFF) expressed concern that the bill had been published just before Christmas, without “adequate publicity” and called on the public to share the bill far and wide. Agri SA released a statement calling for a three-month consultation period to enable submissions to be prepared and heard on the proposed changes to the constitution. The EFF were amongst the first parties to make the news in 2020 (IOL 2 January, 2020) with their concerns that the Bill would only bring about superficial changes and will not result in a fundamental restructuring of property rights in South Africa.

In his address marking 108 years since the formation of the ANC in Galeshewe township in Kimberley, President Ramaphosa promised that land expropriation was going to happen in South Africa and in the Northern Cape. According to the Northern Cape Premier white people constituted just 7% of the population in the province, yet they still owned 85% of the land. (TimesLive 8 January, 2020). Meanwhile ANC Treasurer General Paul Mashatile assured ANC youth that the party had not forgotten its Nasrec policies which included nationalising the Reserve Bank and enabling the expropriation of land without compensation. Mashatile (IOL 9 January, 2020) was quoted as saying:

If I’m asked if radical economic transformation is still the policy of the ANC, my answer is yes. If I’m asked if the Nasrec policy resolutions will be fulfilled, my answer will be yes.

From the middle of January newspaper articles warned of the approaching deadline for written submissions on the Constitution 18^th Amendment Bill. At the same time pressure started to mount on Parliament to extend the comment period on the Bill, particularly because it was published during the festive season when many people were on holiday.

Around mid-January national conversation started to heat up with regard to the content of the Amendment Bill. Businesstech (17 January, 2020) drew attention to the fact that they had been no talks with South African banks on the likely impacts of land expropriation on property bonds and loans. At the same time President Ramaphosa was reported as making an appeal to the business community to present “solutions to resolve the centuries old problem of land”.

Dr Simon Hull (Daily Maverick 16 January, 2020) argued in an op-ed that “We shouldn’t be too hasty to oppose this bill, because it might actually open the door to the very thing we need.” He notes that as the constitution currently stands “property is not limited to land and the purposes of expropriation are not limited to land reform”. In his view the “Amendment Bill will impose these limitations on the constitution” as it makes it “explicit that EWC may only apply to land and buildings expropriated for the purposes of land reform… which could be a good thing for property security”.

Hull goes on to argue along with many others that:

…the constitution is not the main impediment to land reform. It is ineptitude, mismanagement, maladministration, greed and corruption that are at the heart of the slow place and, in some cases, failure of land reform.

His main concern is with the wording of Subsection 3a which leaves unclear the “specific circumstances” under which a court may determine that no compensation is valid. As he points out this is where the “rubber hits the road and where public comment will be crucially important”. In the end however it seems that Hull can’t quite make up his mind about whether to support the bill or not, due to the lack of clarity about the overall rationale and the vulnerabilities implicit in the unspecified “specific circumstances’ highlighted above. Subsection 3a has since proved to be the focus of much commentary as it reiterates the need for a law of general application such as an expropriation law to be adopted by Parliament.

As Marion Merton has pointed out (Daily Maverick 28 January, 2020) to date “democratic South Africa has failed to adopt expropriation legislation, leaving the Apartheid 1975 Expropriation Act in force”. She provides important background on the Parliamentary process around the Expropriation Bill and the various versions this has been through, noting that in the 2019 version the Bill states that:

It may be just and equitable for no compensation to be paid where land is expropriated in the public interest having regard to all relevant circumstances.

Merton notes that the constitutional amendment cannot exclude recourse to the courts which would be unconstitutional. She rather unpacks the factional ANC politicking around the constitutional amendment and expropriation processes, which conveniently ignores that “Ministers have expropriation powers already, as do Premiers and Mayors” – powers they have not used.

Thando Maeko (Mail and Guardian 17 January, 2020) reports that the DA, the Freedom Front Plus and the African Christian Democratic Party have all called for this clause to be scrapped, cautioning that the current wording “it makes it possible for extremely arbitrary circumstances to be proposed through legislation” which only requires a 51% majority to pass in the House of Assembly. Ina Gous, a political analyst from the University of the Free State, takes the opposite position to Simon Hull above, arguing that the amendment will create more uncertainty in the land reform process.

It is problematic that, in this amendment, property is not only limited to land and that any property – for example, cash, computers and vehicles – may be expropriated. It is also problematic that lawmakers, specifically the governing party in any administration, may change the circumstances of expropriation without compensation at any time.

According to Committee Chair Dr Mathole Motshekga:

South Africans want certainty. They want to know where we are going. We think if land is released, we won’t be complaining about unemployment. There will be work for everyone to do. We think this is the key to the future.

There is a significant conceptual leap between the release of land and the eradication of unemployment. The irony to date is that it can be argued that land reform as currently implemented has probably contributed to a net loss of jobs in the economy, up and down the agricultural value chain.

Businesstech (23 January, 2020) reported on an interview with Dr Motshekga on ENCA where he is reported to have stated that the ANC does not support the Section 3a of the amendment which gives the power to a court to determine the circumstances under which the amount of compensation paid for land would be nil. He argued that this power should have been “given to the executive”.

Suren Naidoo (Moneyweb 28 January, 2020) reported that the Banking Association of South Africa (BASA) and Business Unity South Africa (BUSA) would strongly oppose any attempts to reduce the power of the courts to determine just and equitable compensation, and the circumstances under which nil compensation would be payable. The article also quotes Neil Gopal CEO of SAPOA as stating that:

If the courts are removed from this process, the protection of property rights in South Africa is likely to diminish, resulting in a downward investment in agriculture as well as in property investments.

BUSA acting CEO Cas Coovadia was critical of Dr Motshekga arguing that:

We can’t have irresponsible statements at this crucial time, especially with ratings agency Moody’s watching us so closely. The SA economy is facing less than 1% growth this year and investment is critical right now.

In the midst of all the politicking there is a helpful interview with Associate Prof Elmien du Plessis which you can listen to on Capetalk . Du Plessis is an expert on constitutional and expropriation law who confirms that parties are unhappy with executive decisions has the right to approach a court for review. She notes that currently the amendment states that in all cases where nil compensation is payable this decision must be taken by a court, where as the ANC says no – a decision about nil compensation should follow the normal procedure and where party object they have still retained the right to approach the courts.

So is it all a storm in the proverbial teacup? That’s not clear yet. After many months of stating that the deadline for submissions would not be extended beyond 31 January 2020 the ad hoc committee announced that the deadline would now be extended to 29 February. So, you can be sure that in the month ahead the debate will intensify over the pros and cons of the Constitutional 18^th Amendment Bill. In the process it seems likely that the whole process of land reform itself, and its impacts to date will find itself increasingly under the spotlight.

Farmworkers

Very little news about farmworkers has made it into the media in the first month of 2020. A good news story promoted by GCIS and reproduced in Sowetanlive (2 January, 2020) profiles the case of Nitalfo Pty trading as Protea farm, a land reform initiative managed by Marilyn Siegel, a farmworker’s daughter, who received the award of the 2019 Top Entrepreneur in Commercial Agriculture in the Western Cape.

Elsewhere in Mpumalanga it was reported that the Department of Labour was investigating illegal deductions by Cameron Boedery from farmworkers’ wages. According to workers interviewed by the Sowetan (14 January, 2020) these deductions accounted for almost half of their wage bill. Interestingly however, the story indicates that one of the major deductions was for the cost of grazing livestock owned by the farmworkers. The story does not provide any indication of how many stock the workers were allowed to keep, or what the terms of the agreement was between them and the farm owner. Workers complaints prompted an inspection by the Department of Labour. Penwell Dlamini for the Sowetan reported that the owner of the farm was not available for comment on the matter.

Land governance and administration

An editorial in the Mail and Guardian (31 January, 2020) reflects on progress with the implementation of resolutions taken at the 45^th National Congress of the ANC in December 2017. Among these resolutions was a commitment to secure the tenure of 18 million South Africans living in communal areas. This included an undertaking to “democratise control and administration of areas under communal land tenure”. The editorial revisits recommendations made by the reports of the Motlanthe High-Level Panel and the Presidential Advisory Panel, both of which recommended that the legislation which created the Ingonyama Trust either be repealed or substantially amended. As highlighted in a previous weekly land news update, the Minister for Agriculture, Land Reform and Rural Development Thoko Didiza had sidestepped this recommendation in her statement made in December, which set out government’s response to the panel’s proposals.

The editorial reports that at the Cabinet planning session held earlier in January, which set out to identify priorities for the year ahead, “the issue had been returned to the backburner, where it has stewed for the past quarter-century”. The editorial concludes that once again “political expediency has trumped principled action”.

An op ed in City Press (10 January, 2020)  by Zakhele Mthembu of the Free Market Foundation reviews the implications of the signing into law of the Traditional and Khoisan Leadership Act in 2019. He focuses in particular on the significance of section 24 “which gives traditional councils the power to enter into agreements with third parties, such as mining companies, on behalf of the community. Mthembu argues that “the effect of this section will remove property rights from individuals and give them to a council. This is an injustice that may include deprivation of land”.

Land ownership

The ongoing saga around 79-year-old David Rakgase’s bid to buy land he has leased from the Department for decades returns to the news. Business Day (19 January, 2020) reports that while the Department of Agriculture, Land Reform and Rural Development had abandoned its appeal against the judgement that required it to sell Mr Rakgase the land, it now sought a price nine times more than that indicated by the Pretoria High Court as just and equitable.

Land -related laws

Moneyweb (29 January, 2020) reports how “72 year old Agnes Sithole went to court to challenge a sexist law – and won not only a share of her husband’s property but a legal victory that will protect some 400,000 other black South African women”. The article notes that black women married prior to 1998 were subjected to a discriminatory clause within the Matrimonial Property Act of 1984 and subsequent amendments. This gave the husband ownership of all matrimonial assets and the right to sell them without consulting his wife. The Legal Resources Centre assisted Sithole to challenge this outdated law and to assert her independent rights to property accumulated during her marriage. The LRC is planning to hold workshops in rural areas to educate people about this important ruling which advances the property rights of women.

Land policy

The Department of Agriculture, Rural Development and Land Reform gazetted a new draft Policy for Beneficiary Selection and Land Allocation on 3 January 2020. The policy document is prefaced with a problem statement that:

Currently within the land redistribution programme vulnerable groups and the marginalised have not been given sufficient opportunities to have access to land. It is therefore critical for the state to prioritise the most marginalised and the vulnerable groups.

The document also highlights “the lack of a credible and transparent process for land allocation and beneficiary selection which has resulted in the manipulation of the process”. Importantly, the document acknowledges that “the lack of access to land by poor municipalities in rural and peri-urban areas for commonage and settlement purposes has resulted in a lack of access to land for production and settlement by vulnerable groups”.

The policy seeks to:

• ensure equitable access to land;
• address diverse land needs;
• promote urban agriculture;
• create credible and transparent system for land allocation and beneficiary selection;
• target the rural poor, landless, poor municipalities and per-iurban residents to gain access to land;
• create an independent selection panel for land allocation.

The policy seeks to privilege online applications for people seeking access to land, but undertakes to provide walk in support for those without access to the Internet, or the requisite skills to complete the application. The policy identifies four categories of land need and proposes that all applicants will be “subjected to a skills audit and assessment before being allocated land to inform training requirements and to ensure sustainability and utilisation of assets being allocated”.

Despite the undertaking to address the needs of local municipalities for commonage, the policy explicitly states that the Department will not acquire new farms for commonage, but will release existing state land to support these applications. This of course assumes that there is sufficient and appropriately located state land to release. There does seem to be some contingency provision as the policy later notes that “qualifying municipalities and communities in communal areas may apply directly to the Department for the acquisition of strategically located properties to address particular and urgent needs”.

The policy provides a long list of those who are disqualified from accessing land, including employees of the state and state owned enterprises, although it seems to make an exception for traditional leaders, provided that they disclose their status and remuneration by the state, and can prove that they are involved in farming. In this instance the Minister makes the final determination.

With respect to beneficiary selection, the policy document acknowledges the recommendation of the Presidential Advisory Panel that the beneficiary selection process should follow the guidelines set down by FAO on the responsible governance of tenure of land, fisheries and forests.

The policy proposes that all agricultural graduates applying for land will be subjected to a three-year apprenticeship programme and will be placed on a farm under a “Master Farmer who has gone through a master training programme and qualified”. Who qualifies to be a master farmer remains unclear.

The policy proposes the establishment of a national and provincial land allocation and selection panel established as a non-statutory body with diverse representatives. The national panel has responsibility for the allocation of land worth more than 50 million Rand, whereas the provincial panels may allocate land under this threshold.

The centralisation of the selection panel may have the unintended consequence of excluding poor and vulnerable applicants, who would be better identified and assessed at local municipality scale, as part of a localised land reform, land acquisition and agricultural development planning process, undertaken as a sector plan within the municipal IDP.

The public have 60 calendar days from 3 January to submit comments on the draft policy, which represents an important development with some potential to begin to address the corruption and elite capture which has increasingly overwhelmed the land allocation process.

Redistribution

The Citizen (21 January, 2020) reports on a statement by the Democratic Alliance Spokesperson on Agriculture and Rural Development Jacques Smalle in which he stated that of 818 farms acquired through land reform in Limpopo province, only 218 (26%) were leased to beneficiaries, while the remaining 609 (74%) had not been leased. The rental income obtained from the 218 leased farms was just R252,391. The article does not make clear whether this was an annual or a monthly rental figure. It also does not clarify whether the 74% of farms remain unutilised, or allocated by means of caretaker agreements and other such mechanisms. These details notwithstanding, such data, if it is accurate (no data source is disclosed) represents a very worrying trend.

Restitution

A number of stories focus on restitution in the month of January. The DispatchLive (6 January, 2020) reports on the loss-making Fish River Sun Hotel which was purchased by the Department of Rural Development and Land Reform in 2017 for 75 million Rand as part of the Prudhoe restitution claim in Peddie, Eastern Cape. The hotel had closed in December in November 2017 but the Department reopened the resort in 2018 despite having received advice not to buy the facility. According to the article the department had been warned that “the price and terms of the purchase from Sun International would cost the state 33.9 million Rand annually in operating losses. This was projected to be four times as high as projected income. The Department was reportedly inviting new service providers to lease and operate the facility.

District Six is back in the news. IOL (9 January, 2020) reports that the City of Cape Town is in talks with the Department of Agriculture, Rural  development and Land Reform to discuss the redevelopment of the area and the infrastructure required for its redevelopment. A plan submitted by Minister Thoko Didiza contains details of 954 housing units which are to be allocated to individual claimants and leaves 13 ha available for other high-density developments. This plan seeks to finally address the claims lodged in the first round of restitution in 1998. Apparently an additional 1500 claims were lodged when former President Zuma reopened the land claims process – only to have the lodgment of new claims halted by a judgement of the Constitutional Court.

Michelle Nel writing in the Mail and Guardian (21 January, 2020) reviews the implementation of South Africa’s largest and most expensive land claim on the Mala Mala exclusive game reserve. The claim was settled in 2013 in a deal which saw the state pay R1.1 billion – 300 million Rand more than the asking price to the private owners of the reserve. So, what has happened since then? According to Nel, there were 960 claimants eligible for compensation from the payout, but apparently an elite group of 250 people have captured the majority of these payments.

Right from the outset there were question marks over the identification of the claimants and the packaging of the claim. Emeritus Prof Peter Delius, one of South Africa’s leading historians with in-depth experience of forced removals and land restitution claim verification stated that “our research team argued very specifically in the original land claim that the group of claimants was not a true community”. It seems that the Commission on Restitution of Land Rights had batched a number of separate land claims into a single settlement agreement. Those in the group of 250, claim that the remainder of the verified claimants have been “foisted” on them by the Land Claims Commissioner.

Given the revenue flows coming into the CPA it’s clear that the stakes are high. Between 2014 and 2017 the CPA was paid 36 million rand in rentals and earned 5, 5 million rand through community tourism levies. A further 40 million Rand dividend was received in 2018.

A recent High Court judgement was obtained against the Communal Property Association which had been set up to manage the funds. The CPA executive had been accused of “running the CPA like their own spaza shop”. The judgement handed down by Judge NV Khumalo directed that the CPA must be subjected to forensic investigation and that all financials of the Mala Mala deal must be made public. The judge also ordered that the beneficiary list must be properly verified and the interim committee should be replaced through a new committee elected at an annual general meeting to be held within 60 days of the judgement. However, Nel reports that six months later nothing has been done and that the Department is in contempt of court.

According to Prof Delius:

Mala Mala is a critical example of state capture. There should be no political interference in land claims. The Mala Mala restitution should be stopped in its tracks and sent back to the Land Claims Court.

Much of the news about the Public Protector has focused on proceedings launched in Parliament to challenge her fitness to hold office. However Rebecca Davies writing in the Daily Maverick (28 January, 2020) examines a new Public Protector report on another bungled land restitution claim in Limpopo province. In this instance the Tshwale people lodged a claim in 1996, but it appears that the land which they claimed was awarded to their neighbours of the Pheeha community. Davies describes this as an “absurd saga”. Reading through the article one can only agree. Apparently in a memorandum dated 2010 the then DRDLR acknowledged that the wrong portions of land were given to the Pheeha community and recommended that they should be negotiations between the two groupings to enable the restoration of the land to those entitled to it.

However, since receiving the Public Protector’s report it appears that the Chief Land Claims Commissioner backpedalled on this admission and now claims that in fact the land was correctly allocated after all. The Public Protector was unconvinced by this explanation and has found that the DRDLR  acted improperly and has ordered the Commissioner to apologise in writing to the Tshwale community and to refer the matter to the Land Claims Court for adjudication within 30 days.

Rural development

The ongoing foot-and-mouth epidemic continues to attract news coverage with the reported arrest of a Limpopo auctioneer on charges of violating the foot-and-mouth ban and a statement by the Democratic Alliance that the government’s inadequate response to the epidemic has been damaging to the country and the economy.

Perhaps the most fantastical story to appear in this section for a while, appeared in DispatchLive (31 January 2020) where Adrienne Carlilse reports on government’s grand plans to turn the bankrupt Magwa and Majola tea estates near Lusikisiki into “a new Dubai”. The MEC for Rural Development and Agrarian Reform in the Eastern Cape Nomakhosana Meth was reported as saying: “I feel like today is Christmas; I have never felt this good. The kind of development I have seen has pumped me up and given me confidence and energy to speed up the process”.

Meth announced plans for diversification of crops, including “avocado hemp and macadamia nuts, the construction of a majestic glass bridge over the Magwa Falls, a lift to enable tourists to move up and down the gorge, an 18-hole golf estate, amphitheatre, cultural village, conference centre and a five-star multi-storey hotel with an infinity pool”. Given the experience of the Fish River Sun outlined above, one could be forgiven for asking what MEC Meth has been smoking.

Urban land

Any doubt that urban land has become the priority for land reform can quickly be put aside after a scan of stories appearing in January in our urban land section. In Johannesburg the MEC for Human Settlements, Corporate Governance and Traditional Affairs vowed to evict people illegally occupying flats in Mamelodi Extension 15. This followed a court action which the occupiers lost and according to IOL (21 January, 2020) subsequently torched the office of the municipal councillor in the area.

The City of Cape Town is under enormous pressure from housing activists after it reportedly renewed the lease for a 45.99 ha golf course for a token sum of R1000 a year (News 24 18 January, 2020). Housing activists have long argued that land allocated for golf courses provides a means of creating buffer strips which continue to segregate the city. Meanwhile the city has argued that the land in question is not suitable for residential development.

A range of other reports curated on this page examine other cases of land occupation and eviction in different parts of the country. We will cover more information on these trends in next week’s land-use update.

 

Week 50-51: Monday 9 December – Sunday 22 December

Expropriation

The FW De Klerk and the Institute for Race Relations Team have been busy in the last couple of weeks writing commentary on the implications of the proposed Section 25 constitutional amendment. Dave Steward for the FW de Klerk Foundation notes that although this is the 18^th amendment to the Constitution it is the first amendment to the Bill of Rights since the adoption of the final constitution in 1996. The Foundation makes the point that while the Constitution Amendment Bill will require a two thirds majority to pass, once it becomes law, this would then leave “the determination of the circumstances in which zero compensation may be paid to be stipulated in ordinary legislation that can, of course, be adopted or amended by a simple majority”. Steward and other commentators regard the current wording of the amendment as the Trojan horse which will erode the security of property rights and by implication retain the fundamentally unequal status quo.

Ivo Vegter writing in the Daily Maverick seeks to constitutionally limit the circumstances under which zero compensation could be payable arguing that these “should themselves be enshrined in the Constitution. Changes to those circumstances should require a Constitutional Amendment.”

Similar stances are taken by Corrigan and Jeffery representing the Institute of Race Relations. Corrigan, like Steward, argues the way that 18^th Amendment Bill is currently worded could potentially  allow for a subsequent Act of Parliament to be passed which would, by simple majority allow all land to pass into the custody of state “as in the case of water and mineral rights”.

Labour tenants

Lloyd Phillips from the Farmer’s Weekly reports on the swearing in of Prof Richard Levine as the Special Master to oversee the process of settling stalled labour tenant claims. This followed an order by the Constitutional Court. According to Siya Sithole the land rights coordinator at AFRA, cited in the article “The Special Master is an extension of the Land Claims Court and will provide an independent monitoring mechanism to ensure implementation of a plan to settle labour tenant claims, which must be submitted to the Constitutional Court by 31 March 2020”. According to Sithole:

Representatives of the agriculture department would thereafter have to periodically, and under oath, provide the Land Claims Court with progress reports on the implementation of the plan.

Land policy

On 19th December Minister Thoko Didiza briefed the media on government’s responses to the recommendations of the Presidential Advisory Panel on Land Reform and Agriculture. The report was handed to the President on 24 July, and government departments were given two months to read the report and respond to the recommendations.

The boxes below summarise the main recommendations of the Presidential Advisory Panel.

Recommendations for immediate action

Developing a consolidated integrated planning and land information system supported by a single national data portal for all land of related information Provision of a full range of technical, financial, resource, administrative, accounting and other support to claimants who receive restoration of land The review and reallocation of dysfunctional farms from previous landform schemes The development of a proactive targeted land acquisition and allocation programme based on a thorough land demand analysis Clarifying the procedures and institutions to give effect to expropriation without compensation The development of clear beneficiary guidelines for both rural and urban settings to clarify who should benefit from land reform and how prioritisation of land reform beneficiaries should be made The establishment of a national spatial fund to acquire well located land to redress urban spatial inequality The establishment of a national land reform fund enabling capital donations, developmental finance at preferential rates and joint-venture funding Review and refocusing of private partnerships to learn the lessons from successful initiatives Preferential procurement to support access to markets by household and small-scale farmers and other measures to deepen diversity within the agro food system.

 

Recommendations to refocus land reform policy

Recognising diverse tenure systems and rights in law through the passing of the Land Records Bill Development of an urban land policy to address spatial inequality and enable equitable access to land Development of a Land Administration Framework Act following a process of piloting and the establishment of a reference group on land administration The need for institutional reform, including the establishment of a Land and Agrarian Reform Agency.

 

Recommendations towards a consolidated land reform policy framework

A new White Paper on South African land policy by 2021 The focusing of land reform through an agreed vision of agrarian reform The passing of a national land reform framework Bill as recommended by the HLP The prioritisation of old order claims for settlement by the Commission on Restitution of Land Rights The strengthening of the capacity of the CRLR A targeted approach to land redistribution with a renewed focus on area-based planning The prioritisation of farm dwellers, Labour tenants and subsistence farmers as well as smallholder farmers as land reform beneficiaries The need to embed land reform planning into municipal idps Promoting a just transition to a low carbon and climate resilient economy through the promotion of sustainable land use practices and the creation of jobs and livelihoods which take into account climate variability The reallocation of water rights to smallholder farmers The development of the land donations policy The signing into law of the subdivision of agricultural land act and a policy decision to expedite subdivisions of agricultural and non-agricultural land to make available smallholdings for poor people The development of a compensation policy with key elements formulated as regulations to the expropriation act The development of a Land Records Bill to enable the registration of off register rights and the establishment of local land boards similar to those established in Botswana The establishment of a land reform fund to co-finance land reform The reinstatement and reinvigoration of the municipal commonage programme The need to purposefully redress gender imbalances in landholding The reconstitution of an ESTA task team to monitor trends, popularise the law and respond to cases The prioritisation of labour tenants in the land reform process The need for a land audit The need to review legislation which entrenches the bantustans and to reform the Ingonyama Trust The appointment of a land tax enquiry to consider increased rates on agricultural land to dis-incentivise retention of large unproductive land holdings by individuals The need for an in-depth assessment on conditions for applying land ceilings Improved oversight to prevent and investigate corruption The need for a Land Rights Protector The vesting of land rights in the residents of communal areas rather than traditional councils or leaders and the passing of the Protection of Land Rights Act to replace the Interim Protection of Informal Land Rights Act. The need for outcome indicators to improve land reform monitoring and evaluation.

 

The Minister’s response to the panel’s recommendations was not particularly substantive. Rather than indicating which of the recommendations were supported, and setting out a plan of how these recommendations would be acted upon, the Minister chose to speak to those recommendations which were not supported by government. And even here there was not much clarity. The reasons why some of the recommendations were not accepted appear to be fairly arbitrary. For example, the Cabinet did not support the recommendation that land reform should be informed by an agreed vision for agrarian reform. It rather held that that the 1997 White Paper on land policy “was still adequate in this regard”. Cabinet identified certain challenges with respect to the recommendations proposing the creation of more inclusive towns and cities, but in her statement, the Minister did not elaborate on what these were.

Likewise, government did not support the establishment of the proposed land reform fund as “the optimum and judicious use of the current budget allocation can still address the resources required for land reform”. The proposal for a Land and Agrarian Reform Agency as an implementing agent, was deemed to be unnecessary as the new configuration of the Department would address the concerns of the panel. Finally, Cabinet was of the view that some of the other recommendations may require further work and in this they chose to single out conditions to be imposed on the application for land ceilings.

So, it’s unclear in the end where the recommendations of the Presidential Advisory Panel have actually fallen. Are we to assume that all the recommendations which were made and not specifically rejected in the statement have now been accepted? On the face of it the Minister’s statement looked rather like a box ticking exercise on a ‘To Do’ list entitled Things to Get Done before the End of the Year. This raises serious questions about the value of constituting such panels, if the state remains so anodyne in its response to expert recommendations.

Numerous news outlets and commentators have reported on the Minister’s statement. See our land policy page for a range of selected responses, which we do not cover here.

Restitution

On the positive side, Minister Thoko Didiza was reported to have submitted a detailed plan on the redevelopment of District Six to the Land Claims Court. This included a conceptual layout for redevelopment, details of programme funding mechanisms, estimated timeframes for implementation and methodology for allocating residential units to claimants. According to Suné Payne writing in the Daily Maverick, if the redevelopment plan is accepted claimants could move back to the area within three years. Given the delays to date, this would be a near miraculous outcome. As a gesture of acknowledgement to the dispossessed District Six families, Keizersgracht Street was officially renamed Hanover Street on Heritage Day.

Rural development

News in this section continues to be dominated by the spread of foot-and-mouth disease, with several stories focusing on the financial woes of Onderstepoort – the state owned animal vaccine manufacturing company. These concerns have been subsequently denied.

Traditional leadership

Finally, as the year ended, President Ramaphosa used his powers to grant a special remission of sentence to certain categories of prisoners. These included the release of the AbaThembu King Dalindyebo who was sentenced in 2009 to 15 years in jail on seven counts of kidnapping, three of assault and arson, one of defeating the ends of justice and one of culpable homicide. The King was charged and convicted followed the kidnapping of a woman and her six children, the burning their homes to the ground and the assault of four youths, one of whom subsequently died from their injuries – apparently, all because one of their relatives had failed to present himself before the king’s traditional court. King Dalindyebo started to serve his sentence (which was subsequently reduced to 12 years by the supreme Court of Appeal) on December 31, 2015. Contralesa has argues that the real reason for jailing the king was that he switched his support to the DA. Analysts report that the President has been under pressure to both release and pardon the AbaThembu king.

Week 49: Monday 2 November – Sunday 8 December

Expropriation

A number of news items this week have focused on the work of the ad hoc committee responsible for redrafting the property clause of the constitution. Bekezela Phakathi writing in Business Day cites the Chairperson of the ad hoc committee Mathole Motshekga who dismissed suggestions that South Africa was following the same path as Zimbabwe in its drive to amend the constitution and create the possibility of expropriating land without compensation. Motshekga noted that unlike Zimbabwe, South Africa was a multiparty democracy that listens “to all the voices”.

Agri SA released a statement on 5 December requesting that the publication of the Amendment Bill be postponed until after the December festive period to ensure that there was adequate time for public participation and comment.

AgriSA noted that:

The economy is in a technical recession with spiralling unemployment levels and a dangerous debt GDP ratio and the currency reacting negatively to the news that the country’s economy has shrunk by 0,6 % in the third quarter. We are concerned that international investment treaties will be in jeopardy where payment is not based on fair market value. The banking sector’s exposure is approximately R180 billion to the sector and lending are based on the underlying security of property.

Marianne Merton writing in the Daily Maverick provides all the background to this process which got underway in February 2018. On Thursday the Committee agreed to publish the draft Constitutional Amendment Bill ahead of public comments which open from the 2^nd to 31^st January. Once the comments window closes, this will be followed by public hearings in mid-February before MPs deliberate further, ahead of a planned adoption of the bill by the Committee on 20^th  March and its subsequent tabling in the National Assembly for a vote by the end of the first quarter of 2020.

A draft of the Constitution Eighteenth Amendment Bill is now available on the Parliamentary website.

Merten reminds us that:

Fundamental to any expropriation with, or without, compensation is constitutionally compliant expropriation legislation. Over the past 12 years, three attempts have been made to bring such a law, but each attempt was abandoned. Most recently, the Expropriation Bill was withdrawn in August 2018 by the Parliamentary Public Works Committee, pending the outcome of the Section 25 constitutional review and amendment process.

Land policy

Researchers William Beinart and Peter Delius provide an important critical assessment of the Presidential Advisory Panel Report on Land Reform. They express skepticism that the report can meet the weight of expectation which has been placed upon it. The analysts highlight what they describe as key contradictions at the heart of the document. On the one hand they note that the document acknowledges persistent capacity constraints and endemic corruption within the state while simultaneously making recommendations about how the state should play a central role in passing new legislation and establishing new implementation agencies to re-engineer the land reform process.

Beinart and Delius caution that all of the proposals set out in the panel’s report have to be addressed within severe constraints on the department’s budget. The budget is due to decrease to 10, 67 billion in 2020/21, before increasing again to 11, 35 billion in 2021/2022.

In their examination of the future of the restitution programme, they cite the position recently taken by Treasury in their paper entitled ‘Economic Transformation, Inclusive Growth, and Competitiveness: Towards an Economic Strategy for South Africa’. This notes that:

Numerous restitution projects are not productive, and some have even collapsed completely, which drastically reduces the impact on poverty alleviation and job creation

There are increasing concerns by researchers and analysts that despite the best of intentions, South Africa’s restitution programme may prove to have been of our most costly policy mistakes. These concerns are fueled by mounting evidence that in the majority of instances the programme has comprehensively failed to meet its objectives.

Beinart and Delius note that to date about 10% of the country’s agricultural land has been transferred through land reform (4% through restitution and 6% through redistribution). They argue that when considering who owns what, the former homeland areas should be added to the calculation, as these comprise around 14% of South Africa’s land. With this addition between 28 – 30% of the land in the country is held by African people. They note that the advisory panel report has failed to address the fact that smallholder agriculture, both within the former homelands and on transferred land “has probably not been expanding” – a polite way of saying that it has been declining. The report notes that there is much underutilised land in the former homelands, while at the same time there is massive rural unemployment. Beinart and Delius observe that neither the advisory panel nor the Treasury report have asked “why do smallholders not maximise use of their land and why do most unemployed younger members of households avoid putting the labour into that land?”. They propose that “the state should prioritise engaging more effectively with the smallholders who can mobilise resources of land and inputs in both the former homelands and on transferred land”. They argue that far more could be produced on this land which could provide an important development opportunity for the poorest rural districts.

They question the feasibility of implementing many of the recommendations in the presidential advisory panel report. These include passing a land reform act, a land register act, the restructuring of the Department of Rural Development and Land Reform. They remain skeptical about “the state’s capacity to generate successful new bureaucracies, when existing departments are struggling.” They note that the key constraint remains a lack of capacity to implement successful land reform.

Beinart and Delius recommend a focus on the following priorities:

• planning for increased urbanisation;
• the need to work with successful commercial agriculture rather than against it;
• the need to strengthen existing institutions and support services such as extension and access to finance.

Having read through their commentary it’s difficult to avoid the conclusion that the duo may have also failed to adequately think through the practical implications of their recommendations. Currently almost everybody agrees that land reform has become horribly stuck. Digging the vehicle out of the mud and setting it back on the road requires a major joint effort by  those wanting land, government, business, farmers and civil society. Perhaps this requires going back to basics and starting to focus on diverse  local municipalities in order to properly understand the context and develop a realistic set of interventions, both to acquire new land, provide appropriate support services and to revitalise failed land reform projects which have cost the state an enormous amount of money.

While the Presidential Advisory Panel has made far-reaching recommendations, all of which presume a cleaned up and capable state, a sobering article in TimesLive by Zingiswa Mvumvu provides an indication of just how far we have to go before this could become a reality. The article is headlined Government official fired for ‘theft’ starts new job in Eastern Cape five days later. The story focuses on a former deputy director-general the national Department of Agriculture Forestry and Fisheries, who was fired a week ago for the alleged theft of abalone worth R7 million . According to the article, the Eastern Cape Premier approved the fired official’s appointment as the new head of the Department of Rural Development and Agrarian Reform in the province just five days later. For the record, the article records that the official has denied having stolen three tons of abalone worth 7 million Rand.

Land and water policy

The failure to make the link between land reform and water policy has long been a criticism of researchers and activists working in the land sector. On 28th November the Minister of Human Settlements Water and Sanitation, Lindiwe Sisulu launched a national water and sanitation masterplan. The plan acknowledges that:

The water sector has, over the past 20 years, failed to deliver on its mandate for water allocation reform, or the reallocation of water to black water users.

It also notes that the reallocation of water has not gone alongside the transfer of land, pointing to instances where the previous land owners have traded away their water rights so that when land reform beneficiaries acquire land, they often lack access to water for production.

So what is to be done about this? The master plan proposes that “a joint land, water and agrarian reform programme, to be led by the Department of Rural Development and Land Reform be established to ensure that the reallocation of both land and water are aligned and take place within a framework of agrarian reform and effective rural development”.

Unfortunately, the lackluster performance of this department to date does not inspire confidence that this recommendation will be implemented, or bring about the desired change any time soon.

Land rights and mining

On 5^th  December Creamer Media’s Mining Weekly reported that the Department of Mineral Resources and Energy had gazetted draft amendments to the Mineral Resources and Petroleum Development Act, together with new mine community resettlement guidelines. The MPRDA amendments are reported to focus on the sections of the act dealing with social and labour plans, environmental regulations for mineral development, as well as pollution and waste control issues. The resettlement guidelines set out requirements to be followed when mining activity results in the resettlement of people living on the land. Members of the public have until January 31, 2022 respond to the proposed amendments and the new resettlement guidelines.

Meanwhile writing in the Daily Maverick Lucas Ledwaba tells the story of hardships and uncertainties faced by Limpopo’s unlicensed artisanal miners involved in informal chrome mining in the Sekhukhune area. He notes how the shutting of the Bokoni platinum mine and the Twickenham mine by Anglo-American Platinum meant a loss of jobs and increased poverty and desperation in the surrounding villages. This has fueled dangerous and desperate informal zama zama style mining in the area while the state appears to remain directionless on the matter.

Rural development and climate change

In international news Brenda Masilela  reporting for IOL examines how the negotiating group for Africa recently proposed that the particular risks to the continent posed by climate change should be recognised as a priority at a UN climate change conference underway in Madrid. This intervention follows research by the African Adaptation Initiative which found “that seven out of ten African nations are now at high risk of debt stress, following the debt build up from disasters caused by global warming”.

It was argued that the role that mining place in the economies of many African countries also requires a special dispensation. The Egyptian ambassador Mahomed Nasr asked if African nations cannot mine these resources in terms of the Paris agreement, then viable alternatives will need to be found for countries who are already paying between 2 and 9% of their GDP to fund adaption measures. “Hence the requirement for a special needs and circumstances proposal to develop a resilient and sustainable policy approach that does not incur high debt for future generations”.

Tenure reform

Philip De Wet in a piece for Business Insider records how the Interim Protection of Informal Land Rights Act – temporary legislation passed in 1996 and originally due to expire in 1997 –  has just been renewed yet again for a further year, more than 22 years after it was introduced. Until now the Act has been the sole legal protection for 18 million people living in the former homelands to ensure that their land rights cannot be alienated without their consent. However, with the recent signing of the Traditional and Khoisan Leadership Bill (TKLB) into law, it appears that the protections offered by IPILRA have been swept aside. Unless there is a successful legal challenge to the constitutionality of the controversial TKLB, it may be that in 2020 IPILRA will not be extended again.

Urban land

News about various illegal occupations of land feature in the news this week. In Gauteng the Department of Human Settlements has obtained an interdict barring land invaders from occupying land at Eikenoff, south of Johannesburg. According to a report by Manyane Manyane in IOL “the invaders said they were not backing down on their intention to occupy Southern Farm“.

But Shepherd Masiza, from Freedom Park, is quoted as saying that they were promised stands by the ANC in Southern Farm in 2017 after they had occupied land near the R559 outside Freedom Park. When this promise did not materialise

 “We decided the best way forward was to find land so we can build for ourselves “We did this because many people here are old and living in the back rooms with their parents, which is not fair because I have five children and there are other children at home. Just imagine that mess,”

Meanwhile Clive Ndou writing in the Witness examines the rising instances of illegal occupation of private and municipally and land in Msundduzi Local Municipality in KwaZulu-Natal, where apparently those organising the occupation had taken things to the next level apparently bringing in in graders to clear land in preparation for building houses! The leader of this group was reported as saying:

“We didn’t just wake up one day and decide to come and invade, we are acting on the instructions of homeless people in France, Imbali and other surrounding areas who have been sleeping on the streets despite the fact that there is land a stone’s throw away that has not be utilised for several years,”

However the reporters on the Witness tell a different story:

 The land grabs are the latest in a string of invasions that have hit farmers in the Bisley and Thornville areas. Farms that have been taken over by invaders include Leliesfontein Farm in Thornville where in March more than 300 occupiers threatened the owner with violence when he attempted to enforce a court eviction order he had obtained against them. The invaders, some of whom have since built houses worth close to a R1 million on Leliesfontein, continue to occupy the property.

According to farm owners who have fallen victim to the invasions, the invaders are led by a few ring leaders who once the property falls under their control, slice it into smaller pieces which they then sell to members of the public for anything up to R200 000 a portion.

Week 48: Monday 25 November – Sunday 1 December

Expropriation

Lamez Omarjee writing in Fin24 reports on a briefing made by the Deputy Director general of Department of Trade and Industry to the ad hoc committee on legislation amending Section 25 of the constitution. The DDG-based his submission on the departments experience with bilateral investment treaties. He noted how a foreign investor would have legal recourse in terms of the treaties to challenge government’s decision to expropriate property. He noted how international treaties can trump (poor choice of word) South African national law. The DDG reported on a case in which government had failed to adequately protect the property of the Swiss investor. This resulted in international arbitrators ordering government to compensate the investor to the value of €5 million. Apparently, even when government terminates an agreement, so-called survival clauses within the agreement continue to protect the investment for a period of time, which could be as long as 20 years.

Farm workers

President Cyril Ramaphosa has not been having a good week. On 27 November IOL reported that the President might soon find himself summonsed in a Labour Court case following what seems to be his strategic misstep in personally retrenching 22 workers on his Ntabanyoni farm in Badplaas, Mpumalanga, a month before Christmas. In the same week Ramaphosa signed into law the deeply discriminatory Traditional and Khoisan Leadership Bill along with the Traditional Leadership and Governance Framework Amendment Act which we cover in more detail in the section on traditional leadership below.

Labour tenants

Meanwhile Clive Ndou writes an article in the Witness on 25 November entitled  Land projects fail. This tracks the history of some 57 farms bought in the Middelrus Mooi River in settlement of labour tenant claims some 10 years ago. According to the article, just three remain in production, although the rural development and land reform national spokesperson Phuthi Mabelebele was quoted as denying that the projects that collapsed. A number of explanations are put forward in the article ranging from allegations of corruption and the diversion of funds intended for the projects into personal bank accounts, lack of training and business knowledge and delays in the transfer of approved grant finance. The article cites sociologist Dr Mzingayi Xaba whose PhD focused on the developmental impacts of restitution in the Eastern Cape, as saying that government was too focused on land acquisition to the exclusion of land reform implementation and what happens afterwards. The article returns us to long-standing questions about the socio-economic benefits of land reform as currently conceptualised and implemented, to which South Africans urgently need to find practical answers.

Land Governance and Administration

Last week we covered initial responses to the unanticipated postponement of the landmark case brought by CASAC, the Rural Women’s Movement and seven rural residents of KwaZulu-Natal against the Ingonyama trust

Several more articles followed this week, providing analysis of the implications of the postponement of this case.  Kevin Bloom from Our Burning Planet team at the Daily Maverick provides an in-depth background to why the case was lodged. He tells the story of Zakhele Nkwanka whose permission to occupy certificate surreptitiously metamorphosed into a lease with an annual rental payment due to the Ingonyama trust. As Bloom puts it:

At stake, aside from the collection of hundreds of millions in allegedly unlawful rent, was the apparent breach of section 25(6) of the constitution, which had been written to protect people or communities whose land tenure had become legally insecure as a result of past racially discriminatory laws or practices.

Being forced to pay for the right to reside on the land that had been in uninterrupted occupation for many decades has no place in living customary law. Professor Thadabantu Nhlapo a renowned expert in this field has cautioned in a supporting affidavit that there are fundamental differences between customary and common-law ownership. In customary law land rights are best understood as “a system of complementary interests held simultaneously”. Nhlapo explains:

Customary land relations were created by and mirror the bonds and relations between people. Access to land is a function of membership at different levels of rural society for example membership of the family, lineage village or wider community.

Prof Nhlapo examines how:

Colonial and then apartheid legislators, administrators and courts superimposed to paradigms derived from common-law constructs of exclusive ownership and individual rights on the nuanced customary law systems of relative and overlapping rights and entitlements.

He notes that by imposing lease agreements the Ingonyama trust has downgraded the lessees customary ownership of land to that of a tenant, whose continued occupation of the land is conditional on the payment of rent.

But the story doesn’t end there. Bloom posits a connection between the postponement of the CASAC case and another legal battle over the deeply contested issue of coal mining in the former KwaZulu bantustan. In 2018 local people and activists mounted a legal challenge to mining at Tendele on the grounds that no environmental authorisation, municipal planning approval or permits to shift ancestral graves had been issued. This matter went to court in August 2018, only to be dismissed and the costs of the case awarded against the activists who brought the action.

The back story to this case is set out in an insightful article by Bridget Pitt which appeared on 15 November 2019, also in the Daily Maverick. The Supreme Court of Appeal is due to hear an appeal against the judgment in the Pietermaritzburg High Court in February 2020. Bloom argues that the outcome of the now postponed CASAC case could have had a bearing on this matter, and that the delay ultimately serves the interests of the mining houses and their allies in the Ingonyama Trust.

Zenande Booi, the lead land researcher at LARC, observes how this case is symptomatic of the continuing failure of the state to pass a law as required by the constitution to ensure the security of tenure of those living in the former bantustan areas. She notes that:

A vacuum has arisen as the minister and parliament have failed to make use of the powers available to secure people’s rights through the constitution, Protection of Informal Land Rights Act or provincial laws on permission to occupy… In this vacuum it was easy for the trust to unilaterally exploit an opportunity to adopt and implement a policy to convert occupation rights and customary ownership rights to leases — with onerous terms and with the trust as the lessor.

Traditional leadership

While all discussion has been going on around the CASAC case, the legal terrain shifted sharply this week when Pres Ramaphosa signed the TKLB into law. Mark Heywood writing in Maverick Citizen provides background on how and why the president has opted to sign away rural people’s rights. The TKLB has been the focus of a concerted #StoptheBantustanBills campaign led by the Alliance for Rural Democracy. Constance Mogale, the ARD national co-ordinator, speaks about how despite their best efforts and being appointed to sit on a government reference group “all of our suggestions were ignored”.

Andisiwe Makinana writing in Times Live notes that land activists were expecting that the president would refer the Bill back to Parliament after both the Motlanthe high-level panel and the Presidential Advisory Panel had warned that provisions it contained were in breach of fundamental constitutional rights. But it seems that this was not to be, as another move has just been made in the long game of South African political chess.

Unimpressed by these manoeuvres, ANC veteran Mavuso Msimang has put it succinctly:

We have not just sold-out people in the rural areas – we have adopted what the apartheid government used to do.

Urban land

The news in Cape Town this week has been dominated by  the Tafelberg court case originally initiated in 2017 to overturn the designation of a high-value Seapoint property as “surplus” and to use the land to construct social housing to address the legacy of spatial apartheid in the city. As Madison Yauger reports, the court case seeks to set a precedent on what can be done with inner-city state owned land. Countering the arguments put by the applicants, the legal team representing the City of Cape Town has argued that Reclaim the City and Nifuna Ukwazi are in effect asking the province to “not dispense so much of the housing budget on the homeless, but rather on social housing for people with jobs and accommodation”. The city’s counter argument was “do we accomodate 100 people in the CBD or 10,000 elsewhere”. But perhaps things are not quite as simple as the city would have us believe. In an interesting twist, the national Department of Human Settlements also launched an application against the Western Cape government which is being heard together with Reclaim the City’s application. The advocate representing the National Department argued that the province had failed to coordinate with the national government on the sale of the Tafelburg site. As Sune Payne put it later in the week: social housing in Seapoint is becoming a serious political hot potato.

Week 47: Monday 18 November – Sunday 24 November

Expropriation

November 15 was the deadline by which political parties should have made submissions on the draft Section 25 Amendment Bill. Different parties have taken different positions. The chairperson of the Democratic Alliance parliamentary caucus Annelie Lotriet, noted in a statement distributed on politicsweb that the party would not be making a submission, as the constitution quote was “not and never has been a barrier to land reform.”

The statement quotes from the Presidential Advisory Panel on Land Reform and Agriculture which also argues that amending the constitution is unnecessary:

Without a constitutional amendment to section 25, the State is currently able and within its powers to expropriate land for land reform purposes, based on just and equitable compensation. If, however, the purpose of the amendment is to implement expropriation without compensation wholesale and without conditions, then such a motion would offend section 1 of the Constitution and would in effect, collapse the core underlying values of our Constitution.

Land Governance and Administration

The big story this week carried by Tony Carnie in GroundUp and syndicated in The Citizen was the unanticipated postponement of the landmark case brought by CASAC, the Rural Women’s Movement and seven rural residents of KwaZulu-Natal. As reported in week 46 the applicants represented by the LRC, seek an order declaring that the Ingonyama Trust has acted unlawfully and in violation of the Constitution by cancelling original permissions to occupy (PTOs) and concluding residential lease agreements with holders of PTOs and/or informal land rights. The case seeks an order declaring this practice illegal and the refund of rentals that have been paid to the Trust.

Such an order would strike a serious blow at the legitimacy of the Ingonyama trust, which has ready been sharply criticised in the reports of both the Motlanthe High Level Panel and the Presidential Advisory Panel.

Ostensibly, the reason for the postponement stems from a last-minute decision by the KZN Judge President Achmat Jappie, that the matter should be heard by a full bench due to the serious nature of the issues involved.

CASAC’s Lawson Naidoo was not persuaded by this rationale and he asked:

Why wait for the 11^th hour to announce this when this case was set down for hearing months and months ago? We don’t understand that and at the very least, we would have expected to have been given an opportunity to make representations before the decision [to postpone] was made.

It now seems as if the case will not be heard until 2020.

Land Policy

Tembeka Ngcukaitobi writing in New Frame argued that while land redistribution is vital to address the injustices of the past, we need a transformative vision of the constitution and political action guided by law to make land reform effective. He notes that:

Land reform seeks to reconcile three intersecting and overlapping currents: correcting historical wrongs; confronting the present social and economic inequities; and securing an equality-based future for all. If land reform is unable to meet these goals, it will be a failure.

Ngcukaitobi dissects the failings of the land reform programme noting that in the case of restitution:

the “experts” – historians, advocates, attorneys, anthropologists, property valuers – have displaced the landed and the landless as the central players in the struggle for the return of the land.

He records how the land reform programme has been “bedevilled by gross incompetence and corruption”. He identifies “a sense of directionlessness which prevails amongst the bureaucracy” which is confronted by an overwhelming “policy congestion”.

Ngcukaitobi proposes a redistributional model for land reform, but one which must be implemented with particular conditions. He prioritises the need to redistribute land where the landholders are currently not using it productively. But he observes that “access to rural farmland will not satisfy land hunger, and that urban land must be factored into the frame.”

He points to other policy instruments which could be employed to speed up land acquisition, particularly focusing on land taxes which seem to have fallen out of current policy thinking.

In his conclusion Ngcukaitobi argues that:

The Constitution’s ultimate goal is to dismantle the colonial and apartheid state. The unequal land patterns are colonialism’s most enduring legacy. But it cannot be resolved by chaos and elite land grabbing, but through deliberate political action guided by the rule of law.

Rosalie Kingwill writing in the Daily Maverick reflects on what South Africa can expect from the Presidential land reform report. She describes the report as a pivotal moment in South Africa’s fraught land reform programme. In July, all relevant departments and directorates were given two months to read and respond to the report – a deadline which expired three months ago – yet civil society remains in the dark as to the way forward.

However, despite her concerns over the delay Kingwill remains optimistic that land administration was identified as a critical land reform issue. The focus of land administration requires the development of “overall policy and management frameworks for the regulation and administration of land and access rights”.

Kingwill seeks reassurance from government that “the justification for the Panel was deeper than electioneering and pacifying an expectant public” and argues that government needs to re-engage with civil society, to help reconstruct the institutions undermined during the nine wasted years under President Zuma.

Land Rights and Mining

Ernest Mabuza in Dispatch Live reports how a coalition of environmental activists celebrated a decision by the Constitutional Court to refuse Atha Africa’s bid to mine coal  inside the Mabola protected area, near Wakkerstoom in Mpumalanga.  Approvals had previously been given to the company by both the then Minister of Mineral Resources Mosebenzi Zwane and the late Environmental Affairs Minister Edna Molewa.

This authorisation was challenged in the High Court in 2018 which set aside the Minister’s approval. The High Court refused Atha Africa leave to appeal, and the Supreme Court of appeal also followed suit. This prompted the company to approach the Constitutional Court which also dismissed the application with costs as it bore no reasonable prospect of success. The Coalition (the Mining and Environmental Justice Community Network of South Africa, GroundWork, Earthlife Africa Johannesburg, BirdLife South Africa, the Endangered Wildlife Trust, the Federation for a Sustainable Environment, the Association for Water and Rural Development and the Benchmarks Foundation) was represented by the Centre for Environmental Rights.

However John Yeld writing in GroundUp cautions that the decision of the Constitutional Court does not yet necessarily mark the end of the line. Apparently, elements within the Mpumalanga provincial government are now attempting to excise the proposed mining properties from the protected area. The MEC for Agriculture, Vusi Shongwe, published notice of his intention in this regard earlier this year in August. The coalition has threatened to return to court stating there is “no rational or justifiable basis for any exclusion, particularly in the light of available science and policy highlighted in the coalition’s objection”.

Redistribution

Marianne Thamm, writing in the Daily Maverick reports on the joint Landbouweekblad/PALS symposium entitled Land reform in practice – Practical solutions held on the 14^th and 15^th of November in Ceres.

She focuses in part on the words of Pieter Prinsloo, a Xhosa speaking dentist who farms in the Komani district of the Eastern Cape and who is a member of the Eastern Cape Pals steering committee. Prinsloo said the solutions to the land issue had to come from farmers themselves.

According to Prinsloo the current land debate “is driven by fear”:

We are scared of what is going to happen, instead of being straight and honest about fear and addressing the fear, coming to the table and talking about what we fear. I don’t think the changing of the Constitution was ever intended to dispossess people who are producing off the land… We have identified common ground, we must talk as a collective. My message is, change the narrative.

Closing the symposium, Minister Thoko Didiza said she had listened to, and had heard what farmers had said. According to the Minister, the showcase of successful partnerships had proved that there was a “new way of doing things that can bring us together as South Africans”.

Restitution

Nelisiwe Msomi and  Pontsho Pilane from Health eNews write about the forgotten people of Platfontein near Kimberly in the Northern Cape in a piece in the Mail and Guardian. Members of the Platfontein community featured in an article on public hearings around the National Health Insurance Bill. This story was first documented by Eddie Koch back in 1995 in an article which also appeared in the Mail and Guardian

The !Xu and Khwe community consists of some 550 South African National Defence Force soldiers and their dependants who come mainly from southern Angola and the eastern Caprivi of Namibia. After the Portuguese left and Angola’s civil war began, the !Xu fled south and lived amongst the Khwe in the Caprivi Strip of what was then South West Africa. “We were employed by the South African army because of our skills at tracking and knowledge of the bush. We had been chased off our traditional lands; we had no economic alternatives.” In 1990, during the run-up to Namibia’s independence elections, most of the members of the two communities, fearing persecution at the hands of a Swapo-led government, decided to pull out with the South African army and settle at Schmidtsdrift, where they were given automatic South African citizenship and rows of canvas tents.

But the Schmidtsdrift Army base where they were resettled was itself under a land claim which meant that two groups were eventually relocated to Platfontein. Now according to the article some 7000 people live at Platfontein, where they have remained largely forgotten – intergenerational casualties as the displacement associated with apartheid wars in the region lives on.

Rural development

The primary focus in our rural development section this week is on the measures to try and contain a serious outbreak of foot and mouth disease which had spread from a livestock auction near Dendron to four feedlots in Limpopo. Foot-and-mouth is a notifiable disease in livestock. It is a highly contagious affecting cattle and pigs. It can also affect sheep and goats. In Limpopo, the area between Kruger National Park and Limpopo is a declared red zone. This is because wild buffaloes are the carriers of the FMD. Livestock gets infected because they drink from the same rivers as the buffalos. The disease is in KZN, Mpumalanga and Limpopo, especially in the Vhembe district. The World Organisation for Animal Health (OIE) standards require that the animals be culled and the Department has to compensate affected farmers. Despite this FMD can be the cause of huge financial losses for farmers – many of whom are already facing the impacts of drought.

A statement from Neo Masithela of AFASA emphasised the seriousness of the outbreak and the economic risks that it represented. He noted that an outbreak in 2011 in KwaZulu-Natal had resulted in a ban on South African meat exports, costing the country R4 billion in lost revenue.

In other news Fin 24 reports on the launch of Farmbeats – an agriculture research platform funded by Microsoft which aims to make the benefits of artificial intelligence available to farmers. Farmbeats monitors soil temperature and moisture levels to augment farmers existing knowledge to enable them to make more effective decisions. Proceedings at the Africa Agri-Indaba have aimed to create awareness about this new platform and two pilot projects in KwaZulu-Natal and Limpopo seek to test out the facility.

Traditional leadership

Amanda Khosa, writes in New Frame about how the Ndwedwe Development Committee has gone head-to-head with the local inkosi Nduduzo Ngcobo, who, it is alleged has pulled the plug on a R40 million development authorised by the local municipality. This was reportedly on the grounds that the development was taking place on tribal land under the control of the Ingonyama Trust without its permission.

This appears to be a long-standing dispute which seems to have been underreported as there have been protests which saw both the tribal court and the inkosi’s house being burnt. Khosa writes that when she contacted the Inkosi for comment he responded that she was posing “rubbish questions”. She quotes him as saying that:

Firstly, you visited that community without the council’s permission… If you want to know what is happening in my community, I have a tribal court that you can visit and you can speak directly to me and not to speak to community members about me.

The notion that permission is required from the traditional council before a visit can be made to a community, indicates the level of control which the council seeks to wield over the people it regards as its subjects.

In the same week Soyiso Maliti writing in the Dispatchlive reports on how the Eastern Cape government has endorsed the Traditional Courts Bill at a COGTA committee meeting in Bisho on Wednesday. This endorsement was despite substantive objections from activists such as the Alliance for Rural Democracy and Sonke Gender Justice about the rights of rural citizens and women being undermined by the Bill. Both of these reports suggest that democracy is persistently undermined in the former bantustans and that the old apartheid order remains alive and well in the countryside.

Urban land

The puzzling case of the Alexandra Renewal Project is back in the news this week, with the denial by the former Gauteng MEC and premier Nomvula Mokonyane that the project failed on her watch. At the heart of matter are allegations about the misuse of a supposed 1.3 billion rand of government money over a seven-year period. Mokonyane denies that this money was ever allocated to the project. This echoes another denial, this time by Mbhazima Shilowa, also a former Gauteng Premier who was summoned to appear before the South African Human Rights Commission and Public Protector enquiry into the Alexandra renewal project. Shilowa testified that the 1.3 billion was approved, but never actually allocated. This suggest that while there was a lot of hype about renewal in Alexandra there has not been any real commitment to it, although a variety of role players insist that they have delivered services and housing in the congested township. Perhaps the SAHRC finally shed some light on the allegations of corruption and misappropriation of funds.

In Cape Town GroundUp reports on a protest by Reclaim The City who are contesting what they regard as the illegal sale by the City of Cape Town of the Tafelberg – a disused property in Sea point to a private school developer.  RTC and the Ndifuna Ukwazi Law Centre initiated a court case in 2017 to overturn the designation of the Tafelberg property as “surplus” and address the legacy of spatial apartheid in the city. That case will be heard next week, more than two years after it was initiated.

Week 46 Monday 11 November – Sunday 17 November

Expropriation

Jan Gerber writing in News 24 provides an update on the process of amending the constitution to enable expropriation of land without compensation. He asks three substantive questions about the process. The answer to the first question – is it too late to object to amending Section 25 – is yes. The ad hoc committee is in the process of initiating and introducing legislation to this effect. So, next Gerber asks is expropriation without compensation a done deal? His answer is ‘almost’. The reason why the amendment may not go through is that it needs to be passed by a two thirds majority in the National Assembly. This requires 267 votes. Currently those parties who are on record as opposing an amendment have 114 seats, so all eyes will be on the EFF, as the ANC would need 44 EFF votes to carry the amendment. The EFF could decide not to support the amendment introduced by the ANC if they regarded it has been too weak and inadequate. This would leave the ANC in an embarrassing position. Question number three posed by Gerber is whether the nationalisation of land is a possibility to which the answer is no as this would demand a rewrite of much of the constitution and existing law.

Dr Anthea Jeffery of the Institute for Race Relations writes a commentary on the amendments being proposed by the ad hoc committee which we reported on in Week 45. In her view the second option being proposed by the committee – namely the insertion of a new subsection 25(4A) which would read:

Notwithstanding the requirement for compensation in section 25(2)(3) and (4), land may be expropriated without the payment of any compensation is a legitimate option for land reform in order to redress the results of past racial discrimination.

would take the decision on zero compensation away from the courts and into the hands of what she describes as ‘ANCs deployed cadre’.

To date the most detailed and legally sound interpretation  of the constitutionality of the different amendments has been prepared by a team of constitutional lawyers: Profs ZsaZsa Boggenpoel (US), Danie Brand (Free State Centre for Human Rights UFS), Jackie Dugard (WITS), Elmien du Plessis (NWU) and Mrs Nompumelelo Seme (WITS). This was recently presented as a submission to the ad committee. A link will be provided soon.

Farm workers

Barbara Maragele writing in Ground Up reflects on the seven years which have passed since farm workers went on strike in De Doorns in November 2012. Betty Fortuin, one of the local leaders of the strike looks back:

We didn’t ask for much. We really just wanted the basics – like higher wages, a toilet in the vineyards, clean water and for all workers to be treated fairly. That is all.

Fortuin locates the origins of the mass action in a successful strike which originated on Keurboschkloof farm in September 2012. In this instance workers who had been paid between R90 – R130/day – already much higher rates of pay than comparative wages on other farms – managed to secure an increase which brought their wages up to R150 a day. According to Fortuin once other workers saw the results of this action, they began to mobilise to also obtain R150 a day as a minimum wage.

Striking farmworkers handed over a list of 21 demands (The list provided by GroundUp mentions 19 demands)

1. R150 per day wage
2. Moratorium on farm evictions
3. Full maternity benefits for all workers including seasonal workers
4. Housing contracts to include both partner’s names (securing tenure rights for women)
5. Workers to do 40 hours a week
6. Safe and decent transport to and from the farm
7. Freedom of association (particularly union affiliations)
8. No rent deductions for adult family members living in the farm house
9. No deductions for water and electricity usage
10. Job grading and pay scale to be introduced
11. Provident fund
12. Agricultural sector to set up bargaining/statutory council
13. Ban on labour brokers
14. Labour department to set up seasonal worker desk to track and service needs of seasonal workers
15. Interministerial task team to look into farm worker and dweller issues
16. Child grant to be made accessible for farmworker communities
17. Fund to assist with substance abuse, FAS and GBV
18. Transformation of the agri sector
19. Free access to healthcare.

In response to the strike the Minister of Labour increased the minimum wage from R69 – R105 per day. With the introduction of the national minimum wage seven years later, the rate for farmworkers was set at 18 rand/ hour or 162 Rand per day and is due to rise to R20/hour by 2020. Very few of the other demands on the list have been addressed and much of the value of the wage increase has been offset by employers putting a value on services which were previously free. The Labour Relations Act sets 45 hours per week as the maximum which puts paid to the demand for a 40 hour week. According to a representative of Agri SA the Agricultural Sector Provident Fund has been established and activities to promote contributions to the fund were planned for 2020.

All in all according to Fortuin workers are getting to the point where “we will definitely see another strike soon with a demand for R250 rand day”.

Food security

One of the most illuminating articles this week is by Kevin Bloom writing in the Daily Maverick. Bloom heads up the Our Burning Planet team which examines the evidence of climate and ecosystem collapse and the implications for food security in South Africa. Recently the team accessed the detailed submissions of 16 SA conglomerates to the global Carbon Disclosure Project. The article contains a revealing link to a submission by Checkers, South Africa’s largest food retailer which makes for truly a sobering read. The submission provides a window into how this multibillion-rand conglomerate reads the future and anticipates the impacts of the increased frequency of drought -like conditions on the availability of food and the escalation of prices.

Bloom argues that South African government and big business need to pool their resources to urgently come up with a set of adaptation measures that properly acknowledge the seriousness of the threats we face. It is a message we all need to take to heart and push to the top of the policy agenda. The impacts of climate systems collapse on food security, the economy and state investment in land reform need to be properly understood.

Rural development

On a similar note Siphelele Dludla in the IOL Business Report reviews recent warnings issued by Agri SA on the serious impacts of the prevailing drought. Agri SA highlights the potential of the drought to “collapse rural economies and decimate the agricultural industry”. The head of the Agri SA Disaster Management Centre Willem Symington stated that in the Western Cape has been a loss of 25% in the value of export crops while job losses in the agricultural sector were projected at between 20 and 25% in the Northern Cape and the Free State.

Symington observed that:

As a country, we are not managing climatic disasters very well,” he said. “We have a lot of work to do. Drought can change our status as a food secure country.

The article quotes Grain SA chief executive Jannie de Villiers who said that South Africa had only received close to half the rain it required.

We are late, we are worried, we are not in a crisis yet, but have real concerns. We are pleading with the government for an insurance system for these kinds of situations to maintain our food security.

Omri van Zyl, Agri SA executive director, is reported as making a number of recommendations to government, including the establishment of a National Drought Management Commission and the establishment of a Disaster Fund. However combating climate change will require much more than this and demands a complete overhaul of current farming systems and agriculture’s contribution to rapid global warming.

Redistribution

There is usually a shortage of positive news about land redistribution particularly in the Eastern Cape which has been devastated by drought. However, this week the Herald Live reports on the success of Aviwe Gxotiwe in the Eastern Cape who leases land obtained through the Proactive Land Acquisition Strategy. Gxotiwe, who studied law at the University of the Free State is a livestock and crop farmer from Somerset East in the Eastern Cape. He harvested 36 tons of chicory in 2018, and in 2019 he planted lucerne, which is mainly used for animal feed for his 1500 sheep. According to Gxotiwe “Agriculture presents huge opportunities. Many people just do traditional farming, but the possibilities are endless”.

Land Governance and Administration

Kathleen Wootten, an intern at the Legal Resources Centre provides background on an upcoming court case in the Pietermaritzburg High Court on 22 November which challenges the right of the Ingonyama Trust board to force residents living on land controlled by Trust to sign lease agreements. This is a landmark case that will establish the rights of 5.2 million South Africans living in former KwaZulu to their homes, land and security of tenure. The article notes that:

The disputed lease agreements compel people to fence their properties and conduct surveys on their lands, both expensive procedures, at their own cost. They are prohibited from building or altering structures on the lands without prior consent, and should they be permitted to build, these improvements are deemed to belong to the Trust. In other words, the homes they have built now belong to the Trust.

The Council for the Advancement of the South African Constitution, the Rural Women’s Movement and seven informal land rights holders represented by the LRC, seek an order declaring that the Ingonyama Trust has acted unlawfully and in violation of the Constitution by cancelling original permissions to occupy (PTOs) and concluding residential lease agreements with holders of PTOs and/or informal land rights and refunding the rentals that have been paid.

Such an order would strike a serious blow at the legitimacy of the Ingonyama trust which has ready been sharply criticised in the reports of both the Motlanthe high-level panel and the Presidential Advisory Panel.

Meanwhile, Business Day  reports that Justice Minister Ronald Lamola is overseeing the drafting of the bill for the creation of a Land Court with greater powers to adjudicate on land redistribution and restitution issues. The article notes that the Land Claims Court set up in 1996 to manage land restitution claims lacks permanent judges and consequently is wrestling with an enormous backlog of cases. The Land Court Bill seeks to capacitate the Court and extend its mandate to include land reform as a whole.

Land Rights and Mining

Dineo Skosana writing in New Frame focuses on how mining companies and some heritage consultants have failed to understand (or wilfully ignored) the meaning of land and the sacred nature of graves and ancestral remains for African communities. Skosana reports on research carried out in process of studying for her PhD in which she studied the relocation of 120 families between 2012 and 2016 and the exhumation of almost a thousand graves as a consequence of mining activity. Her research revealed how the relocations left the families “feeling spiritually vulnerable and disconnected from their ancestors”.

Relocating graves for mining activities removes the material obstacles to a company’s desire to make a profit. For the affected families, though, the relocation erases the evidence of their historical ties to a place and, above all, disrespects their ancestors.

Relocated families complained that the treatment of their ancestral remains – such as putting them in plastic garbage bags during the relocations and using child-like coffins for the reburial – caused them and the ancestors distress.

Urban land

Malusi Booi, Mayoral Committee Member for Human Settlements in the City of Cape Town was interviewed on Cape Talk earlier this week about how a feasibility analysis was being planned to assess the proposed citywide proposed ‘inclusionary housing policy’.

Ironically, a few days later GroundUp reported that on 28 October the Western Cape Government had confronted the City of Cape Town over its service delivery failure in DuNoon. The City of Cape Town was given notice by the Western Cape Environmental Affairs and Development Planning Ministry of its intention to issue a directive in terms of Section 28(4) of the National Environmental Management Act to “immediately repair all the blocked toilets in the area by replacing faulty infrastructure; provide toilets to accommodate all the inhabitants of the area… provide an operation plan to deal with the waste management issues around the township such as the ad hoc illegal dumping sites.”

However in response, the City has denied that it was in breach of its responsibilities in terms of NEMA arguing that:

Section 28 of NEMA is directed at persons or entities causing pollution. The City has a service delivery obligation but is not itself the cause of the pollution. The City continues to demonstrate commitment to providing services to residents in this increasingly densely populated area.

Meanwhile Nation Nyoka writing in New Frame reports on the plight of the members of the group known as Singabalapha who took over the vacant Arcadia Place old age home and who were subsequently evicted on 2 October. Members of the group continue to sleep in tents in front of the building.

According to a City of Cape Town spokesperson the occupation was a private matter and the city was not obligated by any court order or mandate to provide accommodation. Certainly, there is a long way to go before a meaningful inclusionary housing policy can be enacted to address housing backlog in Cape Town.

In the Eastern Cape the Buffalo City Municipality was reported to be about to evict people who had illegally occupied RDP houses at Fynbos in East London. This follows an earlier unsuccessful attempt to evict the occupants. Buffalo City Municipality spokesperson Samkelo Ngwenya was quoted as saying:

This time around we are with law enforcement agencies and we are also putting in the due beneficiaries onto the houses as soon as we evict those that have been occupying the houses illegally. We know that the issue of housing is a very sensitive issue however we cannot tolerate the issue of the illegal invasion of homes.

The Eastern Cape Development Corporation also launched eviction proceedings against 45 tenants who reportedly owe the Corporation R40 million rand in rent. The ECDC reportedly has a property portfolio of 212 flat units, 99 standalone houses and 175 industrial properties in Butterworth.

RNews reports that

Some clients are also sub-letting ECDC properties and collecting rentals while not paying their dues to the Corporation. The vast majority of these tenants are economically active and can afford ECDC rentals.

Week 45: Monday 4^th – Sunday 10^th November

Expropriation

The media continue add to the hundreds of articles on expropriation, as MPs move closer to drafting a bill proposing amendments to the constitution later in November. The Chair of the ad hoc committee Dr Mathole Motshekga is again reported as saying that legislation will be gazetted in December for public comment. Motshekga has been at pains to assert that no party political agenda will be imposed on the process, and that the amendment of section 25 of the constitution is a matter which is in the national interest. It seems that this is to have us believe that it has been the perceived inability to expropriate land which has somehow impeded the land reform process. As both the reports of the Motlanthe High-Level Panel in 2018 and the Presidential Advisory Panel of 2019 make abundantly clear – the failure of land reform has nothing to do with expropriation and the levels of compensation payable. Expropriation without compensation – as Advocate Tembeka Ncugkaitobi, Prof Elmien du Plessis and other leading legal minds have consistently argued – has always been possible in terms of the constitution. As former president Kgalema Motlanthe has so eloquently put it: “That’s not where the horse is buried”. The land reform horse has been ailing from the outset and was laid out for burial under Minister Nkwinti. It remains to be seen whether the return of Minister Didiza can breathe life into it once more.

On Friday Motshekga again appealed to MPs to put aside their differences with respect to land expropriation while a report in BusinessTech examines the advice provided by Parliamentary Legal Services which has advised that there are 2 main options for amending section 25 of the constitution.

Option 1 is to amend section 25(2)(b) and Section 25(3)(b) which would allow for a court to determine that under certain circumstances no compensation would be payable in the event of expropriation of land for the purpose of land reform. This seeks to make more explicit what legal experts argue is already contained in the constitution.

Option 2 is to insert a new subsection:

Notwithstanding the requirement for compensation contemplated in subsections (2), (3) and (4), land may be expropriated without the payment of any compensation as a legitimate option for land reform in order to redress the results of past racial discrimination.”

The keyword here is ‘may’. Again, the courts will decide the circumstances under which such option would be just and equitable.

Farm workers

In our section on farmworkers UCT news featured a story entitled “restoring ancestors to their home through transformational UCT process”. According to the feature:

After an archiving audit of the UCT Human Skeletal Collection in 2017, the university discovered that it had 11 skeletons in its collection that were unethically obtained by the institution in the 1920s. The university has acknowledged this past injustice, which forms part of its history. Nine of these individuals were brought to the university in the 1920s from Sutherland in the Northern Cape. UCT is working with the community of Sutherland to return the skeletal remains of these nine individuals to their descendants.

Emeritus Associate Prof Simon Hall of the UCT Archaeological Department played a key role in providing historical links to living relatives. The Abraham and Stuuruman families in Sutherland were identified as descendants of some of the individuals whose remains were illegally exhumed and removed from the farm.

Hall explained how the UCT team had worked “to put faces – historical, physical faces, literally [and] figuratively – to these individuals. It has been a privilege to be part of this and to make a contribution to getting closure for these people on this.”

The desecration of graves and the unlawful exhumation of human remains has played a significant part in the rending of the South African social fabric. Forced removals played an enormous role in this regard – causing intergenerational social costs which have yet to be counted.  Mining has also been a major contributor in this regard.

For example, between 2000 and 2012, Anglo Platinum relocated more than 2200 graves in Mapela near the Mogalakwena Platinum Mine in Limpopo province. It transpired that many of the exhumations were undertaken in an illegal and unprofessional manner. This resulted in the mixing of the bones of the deceased. Despite a rectification process being implemented, many of the problems could not be fixed.  There remain many grievances regarding the compensation awarded and the siting of the relocated graves. Anglo’s award of R1500 per grave, was considered too little to adequately compensate for the social and spiritual disruption that the grave relocations has caused families. Culturally ancestors are revered throughout much of South Africa. They may be consulted for guidance and favour, through prayer and ceremony. The failure to lay the dead to rest appropriately and to tend their graves is a potent marker of disrespect which can bring misfortune to the living.

Traditional leadership, land governance and administration

Motlatelo Mohale, a Daily maverick opinionista wrote a column on 6 November entitled Traditional leadership bullying needs to stop. He speaks about the patriarchal, undemocratic and unconstitutional practices which have elevated a lot of traditional leaders to become elites in rural communities. He notes that South African traditional leaders currently cost the taxpayers over R250 million a year while their “bullying tactics puts democracy under threat”.

Dr Aninka Claassens, senior researcher at The Land and Accountability Research Centre at UCT writes a disturbing Op-Ed in the Daily Maverick. She notes how the Traditional Courts Bill, which the ANC pushed through the National Assembly just before the 2019 elections, was now on a fast track through the National Council of Provinces.

Claassens explains that:

The current bill compels the 18 million South Africans living in the boundaries of the former homelands to subject themselves to a legal system where traditional leaders are accorded coercive powers that surpass any that chiefs had during colonialism and apartheid

Like Mohale, Claassens chronicles a litany of abuses taking place in the former homelands. While the Xolobeni struggle is relatively well-known, many of the other cases are not. For example, who knew that in November 2018, King Ndamase Ndamase of Western Pondoland signed a lease with a Chinese investment company in which he undertook clear all the inhabitants from a 30 km stretch of coastline around Port St Johns, in exchange for a rent of a paltry R1 million a year.

Then, in February 2019 judgement was handed down in the Mthatha High Court to interdict a head woman from demolishing houses on sites which had been allocated to local women because they refused to pay an ‘occupation fee’ of R10,000 that she demanded. Claassens notes – and this is the essence of the TCB – that had this law already been enacted, these women could have been forced to subject themselves to the traditional court presided over by the very head woman who was illegally extorting funds from them.

Claassens concludes that:

State capture is not just about corruption. It is quintessentially about the state adopting laws and policies that reward its benefactors at the expense of the public good. These laws do just that. They reward traditional leaders and big business at the expense of black property and citizenship rights.

Restitution

Two major stories appeared on restitution this week: Lucas Ledwaba writing in the Daily Maverick writes about the struggle of the Vhembe Communal Property Association to get back control of 27,000 ha of land following the settlement of their land claim in 2004. Part of the land was occupied by the South African Defence Force due to its strategic location on the border with Zimbabwe. The Department of Public Works proposed that the SANDF remain on 16,000 ha of the land and that a ninety-nine year lease be entered into on this portion of the property. The CPA rejected this deal and proposed a five year lease on 10,000 ha of land with the stipulation that the land should not be used for military training. According to Ledwaba “the deadlock over the terms of the lease agreement has led to a delay in the issuing of a title deed to the Vhembe CPA”. Despite their land claim being settled it appears that the CPA has very little control over much of the land which has been nominally restored to them.

Sifiso Mnguni, Grower Affairs head at South African Farmers Development Association writes an opinion piece in IOL Business Report examines the challenges facing the sugar industry and reduction of land farmed by smallholders obtained through the land restitution programme. He notes that government has spent more than R2, 3 billion in acquisition of restitution farms for more than 231 communal property institutions – both trusts and CPAs. A wide range of business models have been attempted on land under sugar including lease backs, self-management, joint ventures and co management. Mnguni expresses concern that although 40% of the land under sugar is in black hands, black small-scale and land reform farmers have only managed to contribute between 12 and 15% of gross production in the industry each year.

Mnguni highlights some of the distortions created by leasebacks.

I am currently involved in the transaction advisory process and have recently witnessed a senior government official literally begging the community to sign R65 million worth of a land transfer deal, that will result in the land being bought by the government and transferred to the community on condition that it will be immediately be leased back to the same farmer for at least the next 18 years.

Mnguni concludes that:

When it comes to restituted land, there can only be one of two situations. Either the land is returned, and the community is benefiting, or the community is being fooled to believe that the land has been returned, when the current owner is still in possession, working and profiting from the land.

While Mnguni’s frustrations are justified perhaps this binary is something of a simplification. Restitution and the early waves of the redistribution programme have all unsuccessfully grappled with how large communities can actually benefit from land reform. As Mnguni notes earlier in the article “it is common knowledge that one farm which has been supporting one family cannot be expected to suddenly be able to support the whole community”. South Africa is currently facing a massive crisis of unemployment and recent research has indicated that in most instances land reform has led to a net loss of jobs. Contrary to Mnguni’s assertion above, one farm does not just support one family. It provides both direct and indirect employment opportunities. It employs both permanent and seasonal workers, while other jobs are indirectly created and supported up and down the sugar value chain. If a farm restored through restitution fails to produce, there are implications which ripple through the whole local economy. The question remains is how can land reform promote employment and livelihood intensity?

Rural development

In our rural development section this week there is a combination of good and bad news stories. On the negative side Farmer’s Weekly reports that rabbit farmers have been left in the lurch after the liquidation of one of the biggest role players in the industry was liquidated in October. Apparently Coniglio Rabbit Meat Farms had been “operating like a pyramid scheme, using money from one investor to pay another” until they ran out of road. Some 114 farmers who supplied the company with rabbit meat have now lost their market and face hard times and possible bankruptcy themselves.

On the plus side Business Day reported on new investments pledged at the 2^nd investment conference headed by Presidents Cyril Ramaphosa. However, when one reads that the state owned logistics firm Transnet, among others, has formed promised billions in new investment in South Africa one may be justified in a little scepticism. Quite where Transnet gets billions for investment seems a little unclear, given that the rail system in South Africa is on its knees and state owned entities have been hollowed out. At the conference new development funds were also pledged through the newly established South African Agriculture Development Agency, which is reported to have raised about R12,9 billion to develop and promote the agricultural industry and provide support for subsistence and emerging farmers.

Urban land

Finally, in our section on urban land Public Works Minister Patricia de Lille has been in the news as she pledges to distribute state land to support the land reform programme. Jan Gerber writing in News 24 reported on a spat between de Lille and the DA in Cape Town in which the Minister accused the official opposition of playing “crèche politics” and demanded to see their plans to address the legacies of apartheid spatial planning.

Interestingly in the same week the Municipal Planning Tribunal rejected a proposed development in Woodstock. Karen Hendriks from Reclaim the City was reported as saying that the exclusion of coloured and black people living in the city was the foundational premise informing this development. She noted that a household would have to earn a minimum of R36,781 a month in order to afford a one-bedroom fact flat in the proposed development. This meant that only 6, 6% of coloured households could afford this flat. She asked for whom is this development and who will benefit if it excludes poor and working-class people who have survived the group areas act and apartheid? The answer to that question seems abundantly clear.

 

Week 44: Monday 28 October – Sunday 3 November

 

Expropriation

On 1 November the Citizen lead with a story on expropriation with an eye catching headline that read Expropriating land is vital for the economy – Ramaphosa. Strange that the article below it makes no mention of this. A bored subeditor or a deliberate case of clickbait? According the report “government was committed to the acceleration of land reforms as it is essential for the transformation of society” and that Cabinet still needed to “finalise its deliberations on the findings and recommendations” of the Presidential Advisory Panel report. The Panel had found that the land expropriation without compensation was “one of a range of methods that could be used to acquire land for land reform.” Nothing new here and certainly nothing to suggest that government’s economic policy advisers were posing wholesale expropriation as a strategy to boost the economy and grow employment as the headline suggests.

On the same day a similarly confused story appeared on IOL where President Ramaphosa was reported to have insisted that the government will “not allow land invasions during the expropriation of land without compensation”.

(Perhaps these stories are being auto generated by an app employing key word algorithms somewhere? Far fetched? Not really. A recent piece entitled The Next Word in the New Yorker asked the question whether a machine employing artificial intelligence could write an article that would meet the publication standards… but we digress)

In other news Terence Corrigan from the Institute of Race Relations writing in IOL voices his frustrations that the banking sector in South Africa do not seem to share his doomsday reading of the implementation of expropriation without compensation.

Overall nothing particularly insightful on this topic in week 44.

Farm workers

An op-ed in Fin24 by Terry Bell provides a sobering assessment of the state of South Africa’s labour movement. This has been featured on KB.L in previous weeks and surfaced strongly at the Future of Farm Workers Conference held in mid-October. Bell cites figures provided by the registrar of trade unions to show how individual unions are proliferating, while the five national trade union federations are riven with controversy and political infighting, not to mention corruption and capture. According to the Bell:

“There are now 207 registered trading unions – an increase of 17 over the past year – with a total membership of some 3.8 million workers. If agricultural, forestry and domestic workers are taken into account, this would barely constitute 20% of a workforce which, according to stats SA, has less than a 60% participation rate in the economy”.

Bell presciently observes that “with the impact of automation and the digital revolution being increasingly felt, the unions – as putative protectors of the working majority and potential pillars of democracy – had better move fast if they wish to remain relevant in future”.

Land governance and administration

The Ingonyama trust comes under scrutiny again in a critical piece in the Daily Maverick by Mary de Haas, a veteran independent violence monitor from KwaZulu-Natal. De Haas provides evidence to counter the persistent complaints from Zulu King Goodwill Zwelithini that the Ingonyama Trust Board has been inadequately consulted about options for the future. She also takes issue with the claims that the king could rightfully claim ownership of the land even if Ingonyama trust had never been set up by law. She notes that:

The office of traditional leadership today is largely a product of colonialism and apartheid. Since the 19^th century, chiefs have not been “chiefs by their people… [W}ith the formalisation of the policy of indirect rule chiefs became accountable to the government which paid their salaries and defined their domains.

De Haas argues that the push for the dismantling of the Ingonyama trust is not based on a distrust of King Zwelithini as a leader. The real concerns are about the functions of the trust board which acts as a “virtual parallel government, itself issuing leases which often cloaked in secrecy, and which trample on the legally protected rights to the land of the people living there.”

Land Policy

We featured an extract from Bheki Mashile’s letter from Umjindi in Week 40. Mashile has now penned an open letter to the Minister of Land Reform concerning the issuing and duration of leases on farms owned by the state acquired through the Proactive Land Acquisition Strategy of the Department of Agriculture, Rural Development and Land Reform. As Mashile puts it “one minute people on this land are informed that their leases are to be cancelled and the next that this decision is under review”. He highlights how the lack of a long-term lease prevents landholders from qualifying for state support and accessing loan finance.

Jan Gerber writing in News 24 reports that President Ramaphosa has made an undertaking in Parliament to also consider the minority report produced by two members of the Presidential advisory panel – AgriSA’s Dan Kriek and Nic Serfontein. The dissident duo refused to endorse the report panned by the other panelists under the Chair of Dr Vuyo Mahlati. According to Ramaphosa “both reports are before the Cabinet and they are going to be considered”. However, he provided no clarity on question which everyone asking: How long will it take before government makes up its mind about the way forward with land reform?

The old adage of ‘follow the money’ usually provides an accurate indicator of how serious government is about land reform. The Farmers Weekly reported on Tito Mboweni’s medium term budget policy statement in which they observe that only passing reference was made to agriculture and land, noting that if land reform was to be accelerated it would have to be done without any significant additional budget allocation from the national fiscus. In fact, the opposite was more likely – that the Department would have to do more with less, as there were downward adjustments made to the 2019/ 2020 budget allocations for both the former Department of Agriculture, Forestry and Fisheries and the former Department of Rural Development and Land Reform. These two departments are only expected to be merged by 1 April 2020.

Meanwhile IOL reported on the Bridge Building Land Summit held in Paarl on 24^th of October. Other sources cite this as a gathering of “Christ centred experts” seeking solutions to the key challenges “facing South Africa’s agricultural landscape” According to the organiser of the summit, Jan Oosthuizen:

“We need to build bridges in South Africa, we need to find national cohesion. We hear enough about the problems, we need solutions now”.

An organisation called Future Farmers was advanced as an example of the type of solutions proposed by the summit. The project aims to train and qualify men and women and place them on large commercial farms so that they can gain experience and become successful commercial farm managers or farmers in their own right.

Restitution

A team of writers from the Legal Resources Centre have reflected on the lessons from the Prudhoe community restitution claim. According to the LRC, the land claim is a case study that reveals the ineffectiveness of the institutions which have been given responsibility for the land restitution process.

Staff lack proper legal and historical training and high turnover contributes to poor institutional memory. Record keeping in the Commission is often in disarray, while research reports are inaccessible or simply absent. This results in a lengthy and frustrating process that has seen many claimants wait more than 20 years to have their claims adjudicated. In the Prudhoe case the Commission produced three different, sometimes conflicting, research reports for the purpose of investigating the merits of the claims. The reports each took nearly five years to complete and when they were finally released the Prudhoe Community still had to appoint an independent historical expert to clarify some of the inaccuracies in the reports. During the course of the Prudhoe trial, the parties realised that the Commission had failed to notify dozens of affected land owners when many arrived at court after reading about the case in the media. This happened twice, even after the Commission had outsources (sic) the function to a private firm of attorneys.  The court was forced to postpone the matter for a further six months. Since the institution of the land claim (in 1998), 109 of the original 124 heads of households have passed away in poverty and never saw their land returned to them.

These findings fit well with the conclusions reached by the Motlanthe High level Panel which Phuhlisani NPC has summarised here.

Rural development

More stories on the devastating impacts of the drought continue to be featured in this section. News 24 reported on a presentation of research by Dr Bongani Ncube at the 20^th Waternet symposium on freshwater management. Dr Ncube’s research how highlighted how ill-prepared smallholder farmers were to cope with the severity of the drought. Ncube observes that one of the highest social impacts as a consequence of the drought was the rising levels of theft.

Smallholder farmers “associated drought with pain and a disaster that they couldn’t find words to describe… a ‘killer’ in the farming business”. Dr Ncube highlighted the need for the development of coping and adaptation strategies to mitigate drought and adapt in the context of the mounting climate crisis.

Urban land

As usual our urban land section carries a diversity of news. In previous weeks we have reported on the illegal evictions carried out by the group known Dudula in Alexandra and River Park in Johannesburg. This week the Northeastern Tribune reports on a series of investigations which have been launched into the matter. Apparently separate investigations are being made by the City of Johannesburg, the Public Protector, the Human Rights Commission and the provincial government. Now the Hawks are reported to have settled on the case as well.  Meanwhile those evicted remain forced to squat on small portions of vacant land waiting for an outcome. Given all the actors involved they may have to wait for some time to come.

Plain speaking Sbu Zikode, former President of Abahlali baseMjondolo, the shack dwellers’ social movement, recently addressed a constitutional dialogue convened by the HSRC.  His speech was reproduced in the Daily Maverick. Zikode reflected on the struggles of the urban poor to make their voices heard in post-apartheid South Africa and chronicled the repression they have faced at the hands of the municipal security apparatus:

During 25 years in democracy the self-organising of impoverished communities has been seen as some form of conspiracy. This is done to justify violence on us. Organising outside the ruling party and the state has cost us lives. We have lost 18 housing activists since 2009 who insisted that land and wealth must be shared amongst those who work it. Many of us have scars just for insisting that impoverished people count in our society.

Brutal and unlawful evictions continue to terrorise our communities. The organised izinkabi like Land Invasion Unit of eThekwini, the banned Red Ants of the City of Johannesburg and Law Enforcement Agencies of City of Cape Town have subverted the law and use violent force on landless people. We have lost lives under the operations of these izinkabi. This is what happen when the political leadership has been replaced by gangster politicians. This is what happens when a democratic state is replaced by a police state

After almost 15 years of struggle we remain committed to building radical democracy from below. The wealth, the cities and land must be shared. The right to participate in discussions and to make decisions must be shared. This is the mission that confronts our generation.

Ironically News 24 reported in the same week that the suspension order on the banned Red Ants has been lifted. According to the judgment

“Given the severely restrained economic climate in South Africa, where thousands of people are retrenched every month and millions are unemployed, it is clear to me that the factors of irreparable harm and balance of convenience favour the applicants”.

It noted there were sheriffs with nine “long-overdue evictions” and 22 “long-overdue removals” that still needed to be executed. The Red Ants now have to apply for permission on a case by case basis to undertake demolitions and evictions.

At the same time EWN reported that the Gauteng Human Settlements Department was in the High Court, seeking a blanket eviction order  to help police remove land invaders off government property immediately. without having to apply for an individual eviction order every time, thus delaying the process.

It is becoming increasingly clear that the struggles for land and livelihood opportunities are now converging in the urban space. It remains to be seen how South African policy makers and urban planners will respond to this pressure. Can real political leadership be provided – or has this been totally subverted by those that Zikode characterises as gangster politicians?

Week 43: 21 – 27 October

Expropriation

Expropriation is back in the headlines with a number of stories this week reporting on the work of the ad hoc committee tasked with drafting a bill to propose an amendment to section 25 of the constitution. Bekezela Phakathi writing in Business Day on the 21 October provides an overview of the decision to establish the committee and its plans to conclude the process by March 2020 Quotes to make explicit that which is implicit in the constitution, regarding appropriation of land without compensation, as a legitimate option for land reform”.

Committee Chair Mathole Motshekga has assured citizens that they will have the right to comment on the draft bill. Motshekga is reported as saying that: “the committee does not have a monopoly on wisdom involved local and international experts in its work”. Given all the hundreds of submissions that have been made to date it’s difficult to imagine what fresh contributions can be made on this issue. Presumably the focus will be on the actual wording of the draft bill and its implications – legal as well as economic. The committee plans to meet in December when Parliament will be in recess ensure that it meets the March 2020 deadline. Tucked away at the end of the article is a recommendation by Parliament’s legal advisers that the committee will also have to refer the bill to the National House of Traditional Leaders as well as provincial legislatures, the logistics of which pose some challenges for meeting the March 2020 deadline.

The previous week an extract from a speech by former President Kgalema Motlanthe to the Real Estate Industry Summit was widely reported. A link to the video of his speech is available on the REIS site. In the speech Motlanthe characterised the initiative to amend section 25 of the constitution as “a detour”. Interestingly different media reports put a different spin on what Motlanthe said in his speech. The SABC was reported that the former president had said that expropriation would not take place in a hundred years while Moneyweb quoted  Motlanthe more accurately saying that:

The problem is that [government] lacks the political will to address the land question,” he said, adding that parliamentarians in their wisdom decided that section 25 is not explicit enough. They want to amend it so that it might be explicitly clear that it shall be expropriation without compensation. Let’s hope it won’t happen in a hundred years.

A series of reports (EWN, News 24 and IOL) featured assurances by Deputy President David Mabuza answering questions in Parliament that the ad hoc committee would complete its work on deadline. Mabuza was quoted as saying:

We’d like to assure this house that the amendment of the Constitution of South Africa 1996 in order to allow for the appropriation of land without compensation remains a commitment and priority of this administration. Government will not deviate from this policy.

The Deputy President was also quoted as saying that “the land reform process would be pursued in a responsible manner” and that land invasions would not be allowed.

On 23 October IOL carried a story quoting Cedric Frolick, National Assembly House Chairperson is reported to have stated that the draft bill would be ready by mid-December so that the public would have the rest of January to comment. Commentators have pointed to a pattern in Parliamentary process whereby sensitive bills are introduced at the end of year holiday period, placing limits on the amount of time available for public comment and response. According to Frolick

Immediately after the closing date has been reached, the committee will meet to consider the public submissions made and then may have public hearings here in Parliament and outside Parliament considered views in the written submissions.

Clearly the committee will have its work cut out to meet its deadline of 31 March 2020.

Farmworkers

We undertook last week to try and provide some insights into the research papers presented at the future of farmworkers conference held at UWC from the 16 to 18 October. A paper presented by Leonard Le Roux sought to explore the effects on households of migration farms noting that this was taking place for both voluntary and involuntary reasons. Le Roux sought to explore how the living standards of farm dwellers changed when they migrated or were displaced to urban areas. He sought to find evidence from data collected as part the longitudinal National Income Dynamics Study which is sought to track 28,000 individuals in 7300 households from a nationally representative baseline sample compiled 2008. This data revealed that 25% of farm dwellers interviewed in different survey waves had moved to urban areas by 2017. This data showed that migration was having economic benefits with a 17% increase in per capita income for those interviewed in the study. However, migration was most inevitably associated with a decline in housing quality with a 15% reduction in probability of living in a brick house. Le Roux also explored the relationship between increasing concentration in the agricultural sector and its implications for farmworker earnings. He presented data which showed clearly that the wages received by employees of large firms employing 50 or more workers were consistently higher than those working for enterprises which employed 10 workers or less.

Some of the farmworkers present expressed frustration with the presentation of research findings particularly where these did not seem to corroborate their own lived experience. However the US farm labour activist Baldemar Velasquez cautioned that workers needed to understand processes of globalisation and the impacts on both farmers and workers. He argued that it is global supply chains that marginalise farmers, who in turn marginalise the employees. A concerted effort is required to counter the greed that drives these global supply chains into improve working conditions in the industry. He argued that corporations can make freedom of association for workers on farms a condition for product purchase. Only once workers were better organised would we begin to see real change in the sector. Velazquez also argued that intellectuals and academics have an important contribution to make to workers struggles:

Their job is to write and to take on the intellectuals of the other side. They can research the things that we need to form our strategies to make possible the collectivisation of the workers that need a collective voice. Somewhere, somehow, we can find a way to do this together. So, let us work together to make that happen now, not tomorrow.

In the days after the conference a piece by Ivar Anderson from the Swedish paper Arbetet reports on how farmworker Claudine van Wyk and local representative of the union CSAAWU was allegedly facing disciplinary proceedings for having spoken to the media about working conditions on a South African wine farm.

In the article Van Wyk was quoted as criticising how management at Leeuwenkuil were making more use of day labourers and replacing long-standing permanent workers with temporary employees. However, management at Leeuwenkuil state that Van Wyk’s right to free speech is not in dispute arguing that:

The hearing is not about speaking to the media or whomever, it is about giving false information. Never has anybody ordered anyone to stay-at-home, those who do so do it out of free will. We are running a business and need work to be done on time.

The union CSAAWU has countered that this workplace has a long history of problems and that it featured prominently in the controversial Bitter Grapes video. They cite the findings of a Department of Labour inspection made soon after the video was aired which required that the farm:

• demolish a house on the farm which was structurally unsound and were not fit for people to live in.
• comply with the Basic Conditions of Employment Act concerning sick leave, as workers were not paid – even when they had made a written sick-leave document as stipulated in the law.
• Improve the quality of drinking water available to workers on the property

Restitution

Turning to restitution now one of the more bizarre land news stories this week comes from the DispatchLive which reports on a NCOP select committee hearing in Mthatha in response to a petition filed by the chief protocol officer of the “Thembuland Royal Empire”. Votani Majola, who according to the Dispatch calls himself Emperor Thembu II to the AbaThembu Royal Empire claims he represents AbaThembu from all nine provinces and that every bit of land in South Africa belongs to the AbaThembu.

But Nkosi Bhovulengwe Mtirara, who was also at the meeting, said as a traditional leader, he distanced himself from the petition. “There is no way that I can claim all of SA. I know my jurisdiction”.

Rural development

Stories on the devastating droughts in rural areas of the Western and Eastern Cape dominate the news in our rural development section this week. Yamkela Ntshongwana, a photojournalist writing for GroundUp reports how 5 villages in the Tsomo area of the Eastern Cape have been without water for 3 months.

Villagers in Gqogqorha confirmed that there is a water tank for the community but they say it is dry and has not been filled since drought gripped the area. Madoda Plaatjie, a pensioner and farmer, said he had lost 20 of his sheep and 40 of 90 lambs this year. He said his funds were now exhausted from trying to keep his stock alive.

Meanwhile in the Western Cape Times live reports that drought hit farmers will be given 50 million Rand in emergency funding to buy fodder for their livestock. Agriculture MEC Ivan Meyer said the money would go to farmers in the Central Karoo, Matzikama and the Little Karoo areas.

Urban land

in the Cape High Court judgement was reserved in the case where Philippi Horticultural Area campaign has sought to oppose development of the area arguing that land zoned for agriculture had unlawfully been rezoned for urban development by the MEC.

In a letter responding to a GroundUp article reporting on the case Richard Bryant wrote the following letter:

Here is a simple question. Why would a property development company by a piece of agricultural land outside the urban edge and then not farm it? If you knew at some stage in the future, the urban edge could be moved, then one day the value of the land would change from 10,000 Rand /hectare to 10 million Rand /hectare.

Bryant cites the example of a farm in Durbanville where “a portion of land valued at R25 million was eventually rezoned and given development rights. The same land was then reportedly sold to a developer R1.5 billion”. As he says: “Nice when the state plays Father Christmas.”

Week 42: Monday Oct 14^th – Sunday October 20^th 2019

Farm workers

The big story this week was the national conference on the future of farmworkers in South Africa which took place from the 16^th to 18th October at the University of the Western Cape. This large, well attended conference brought together farmworkers and dwellers, representatives of trade unions and NGOs as well as academics with a guest appearance by the Minister of Employment and Labour. Conference themes included farm worker rights, farm worker resistance, labour force trends, agrarian transformations, the land debate, migration, food insecurity, and social protection. Organised agriculture was invited to attend but declined the invitation. The only representatives from the commercial farming sector came from the Boschendal Valley.

In a preconference interview on Cape Talk on 14 October Prof Ruth Hall from the Institute of Poverty, Land and Agrarian studies at UWC spoke about wide-ranging changes in the agricultural sector labour market.

“What we’re seeing is not only a shrinking of the population farmworkers, but also a lot of them being evicted or moving off and living in informal settlements around the farms or in the small towns”

Prof Hall highlighted how the ratio of permanent to seasonal workers had been inverted and that the vast majority of agricultural workers were now only able to obtain seasonal employment and lived off farm.

In a follow-up interview on Smile FM the following day Hall spoke about how many farmworkers who produced South Africa’s food were food insecure themselves. Prof Stephen Devereux who joined Ruth Hall on the show spoke about how the conference had been planned to launch on World Food Day. He spoke about a recent study in the Northern Cape which found that as many as 88% of women farmworkers experienced severe food insecurity during the winter months when work is scarce. A worrying 49% of those interviews reported food insecurity during the harvest season as when work is meant to be more plentiful.

In coverage of the conference Mzi Velapi writing in Elitsha quoted Betty Fortein, one of the leaders of the 2012 farmworkers strike who spoke about how little had changed farmworkers despite the successful 52% wage increase secured as a consequence of the strike. Farm owners had clawed back most of the gains either through charging for services which had previously been free, or employing workers for fewer hours in order to contain their costs.

He cited Colette Solomon from Women on Farms who spoke about a study commissioned on labour rights violations in 2017 which revealed that many women farmworkers are underpaid and are not always paid the minimum wage. Solomon noted  how many workers were forced to take out loans to supplement their salaries and fall victim to loan sharks in the process. She highlighted many other problems and indignities faced by women farmworkers and seasonal workers.

Most of the working areas do not have toilets and when women are on their periods they have to bury the sanitary pad in the vineyard or take it home with them

One of the striking features of the conference was the contested relations between trade union formations. On the first day there were incidents where members of rival unions heckled one another. The conference programme seemed  to have missed the opportunity for a deep discussion about the challenges of organising farm workers, despite there being much experience in the room. A notable omission from the panel discussion which attempted this was the rise and fall of Sikhula Sonke which could have provided important lessons. The story is about how Women On Farms supported women’s rights groups which evolved into farm and district committees, which in turn were transformed into the trade union Sikhula Sonke. As the union grew in strength and independence it broke away from the organisation which had supported its emergence and relations deteriorated between them. This was documented in an insightful book chapter by WFP Director Colette Solomon in 2013.  Two years later following an initial period of some success the union was deregistered on 23^rd April 2015. The deregistration notice issued by the Registrar of Labour Relations stated that this was because:

• the trade union ceased to function as a genuine trade union as envisaged by the Act;
• the union failed to comply with sections 98, 99 and 100 of the Act (to keep accounting records and conduct audits, a duty to keep records and a duty to provide information to the registrar);
• the union ceased to function in terms of its constitution.

There  are many lessons here which speak to the relationship between NGOs and Unions. This is increasingly relevant in a context where the Trade Union movement has been increasingly negatively impacted by alleged corruption and failures in accountable governance. The Food and Agricultural Workers Union which was originally established in 1941 grew to have an estimated 126 000 members countrywide was a COSATU affiliate before switching to join the rival federation SAFTU. The Labour Relations Registrar recently threatened to deregister FAWU or to approach the Labour Court to have the union placed under administration. The Union is reportedly riven with “factional battles and a multimillion rand financial scandal”.

The Minister of Employment and Labour Thulas Nxesi made an appearance at the conference where he faced tough questions from farmworkers and representatives. What was disturbing about Nxesi’s responses was how he invoked the threat of foreign workers taking the jobs of South Africans as a blame shifting mechanism. Minister Nxesi was criticised by some workers for not having a good grasp of conditions in the industry. It was proposed that he follow in the footsteps of the legendary Drum journalist Henry Nxumalo and go under cover for a week to experience working life on the farms first hand. Unsurprisingly the Minister did not respond enthusiastically to this suggestion. However the Minister did undertake to return sponsored by the Department with senior officials to discuss farm worker concerns in more depth

For more information on the conference debates and discussion visit the website of the Centre of Excellence in Food Security where a number of articles written by Mologadi Makwela cover key aspects of the proceedings over the three days. We will cover more substantive content from the Future of Farmworkers conference in our summary of next week’s news.

Land governance and administration

An article from the Witness was reproduced in Pressreader on 14 October which reported how the Ingonyama trust had collected R118, 4 million in rental income from people living on land owned by the Trust over the past financial year. This was a rental increase of 19% compared to the previous year. The Parliamentary Portfolio committee on Rural Development and Land Reform ordered the management of the trust to return to Parliament with comprehensive reports on how rental income had been used to benefit the landusers over the past 5 years. The Chair of the Trust Judge Jerome Ngwenya is reported to have argued that it was under no obligation to report on anything over and above the approximately 20 million Rand it received from government for administrative costs every year. He also observed that in July the President had announced that discussions would take place between about future of the Ingonyama trust following recommendations by the High Level panel and the Presidential Advisory Committee that Ingonyama Trust Act be repealed or significantly amended. These discussions have yet to attack place.

Land ownership

In our land ownership section Property Value Peter Meakin argued in a letter to BizNews land ownership is not a prerequisite for a successful business. He critiques an article by IRR’s Terence Corrigan on the David Rakgase story arguing  that he erred in claiming that “land ownership would have given Rakgase greater opportunity to use the farm as he saw fit and leverage it to raise capital. Meakin says he is wrong because Mr Rakgase says he built a good business without owning the land. He noted that:

Many firms in the Victoria and Alfred Waterfront, everyone in Hong Kong and most Singaporeans are in the same position. The latter two pay more land rents than taxes. The defining advantage to tenants is that long leases grant the same opportunities as ownership but with nil capital costs or mortgage obligations. Lessees can then deploy more capital in their businesses.

Rural development

Our rural development section carries welcome news about improved prospects for stone fruit exports despite the drought as a consequence of new orchards coming into productions and an increase in availability of irrigation water in some of the stone fruit growing areas. However, this trend is by far from uniform as the Little Karoo remains tightly in the grip of unrelieved drought, devastating the livelihoods of farmers and workers in the sector.

Urban land

A number of stories feature in our urban land section this week. In Cape Town the Phillipi farmers challenges the City of Cape Town in the Cape High Court, where Judge Kate Savage is presiding in a case disputing plans to rezone part of the Phillipi agricultural area for development. Madison Yauger writing in GroundUp has been closely following this issue.  She writes how Advocate Murray Bridgman, for the campaign, argued that the proposed developments ignore the PFA’s continued role in food security, heritage, protection of the Cape Flats aquifer and the potential for land reform in the area. Bridgman also questioned whether the national Department of Agriculture should have jurisdiction to determine if the land in question is considered “agricultural’” under the Subdivision of Agricultural Land Act.

The City of Cape Town has disputed the claim by the Phillipi farmers stating that

Claims that we want to pave over the PHA are incorrect. There’s a core PHA area where the farming happens, of about 1,900 hectares. That area is not in court today. That area is already protected by the Municipal Spatial Development Framework, which has defined that area as a critical natural area, so nothing can be developed there.

In other news Public Works Minister Patricia de Lille is reported to have released 14000 ha of state owned land for development of human settlements. However, the statement did not indicate where this land was located.

Finally in the news this week we feature an extract from a new book by Crispian Olver which focuses on the bitter dispute over the than management of the City of Cape Town which cost then Mayor Patricia De Lille her job. He questions the narrative advanced by De Lille that:

The conservatives in the party will tell you that there is virtually no available land in Cape Town suitable to accommodate poorer people … Unpalatable as it is, the truth is that the DA-led City of Cape Town does not believe that integration is a priority. If it did, it would begin to bring coloured and black Capetonians who were forcefully removed under apartheid back into the city and its suburbs.

Olver is sceptical about this interpretation:

I’m not so sure. Even if conservative elements within the DA did oppose her ambitions, the mayor was far from blameless. De Lille broke the power of the administration and ran the city by executive fiat.She targeted “obstructive” spatial planners and cast aside “constraining” planning instruments such as the urban edge and the CTSDF, yet planners and their tools were precisely what she needed to deracialise the city and drive spatial integration.

Clearly a book which deserves a close read, particularly after Olver’s previous investigation on city capture: How to steal a city: The battle for Nelson Mandela Bay which examines how the administration was entirely captured and bled dry by a criminal syndicate, how factional politics within the ruling party abetted that corruption, and how a clean-up was eventually attempted.

 

Week 41: 7 October – 13 October 2019

Weekly news updates are also now available as a podcast on SoundCloud.com

Farm workers

Farmworkers will feature prominently in the news in Week 41 and week 42 with an upcoming conference at the University of the Western Cape by the SA/UK Bilateral Research Chair in Social Protection for Food Security; the DST-NRF Centre of Excellence in Food Security and the Institute for Poverty, Land and Agrarian Studies, in association with Women on Farms Project and the Institute for Social Development at UWC.

In a conference curtain raiser Stephen Devereux, Ruth Hall and Colette Solomon writing in the Mail and Guardian report on research carried out in the Northern Cape under the headline The farmworkers who produce our food are the most vulnerable to hunger. The article references a 2019 study which examines the food insecurity experienced by 80% of seasonal farmworkers in the months when there is no work in the agricultural sector. The article critiques the inadequacy of the R18 per hour minimum wage for farmworkers introduced in terms of the National Minimum Wage Act. This amount is insufficient to meet the cost of a nutritious basket of food to feed a family of four. Seasonal workers rely on family members with access to child support grants or pensions, but these remain inadequate to feed entire families. The precarious position of seasonal workers forces them into indebtedness as they are forced to borrow money from loan sharks in order to purchase food to survive.

Of course, food insecurity is not a problem that is unique to farmworkers. In 2017, the late David Sanders, Professor of Public Health at UWC and his colleagues have examined how malnutrition remains a key driver of under-five mortality across South Africa as a whole. The 2016 Demographic Health Survey found that 27% of South African children under five were stunted – a sign of chronic malnutrition. Sanders et al wrote that within South Africa as a whole:

Poverty and unemployment continue to undermine household food security: 62% of children live in households with a monthly income of less than R965 a person. And, according to the 2016 Community Survey, 20% of households ran out of money for food in the past year — that is, one in five households. It is therefore not surprising that only 23% of infants aged six to 23 months have the minimum acceptable diet.

Land Governance and Administration

This week the Hazyview Herald profiled Nester Mathebula, Treasurer of the Giba Communal Property Association which is supported by the Vumelana Advisory Fund. CPAs have received very little support from the state and many have experienced significant difficulties in carrying out their functions as  land holding and tenure rights management entities. However, with support to develop management and financial systems the Giba CPA is reported to have entered into a commercial partnership and concluded two lease agreements.

The Ingonyama Trust

Writing in Timeslive Andisiwe Makinana reports on how members of the Ingonyama Trust Board played hide and seek with MPs in the Portfolio Committee who were asking questions about the adverse opinion of the Auditor General on the trust accounts for the second year in a row. The auditor general had noted that the Trust was not properly accounting for property, plant and equipment and there was also question of potential evasion of liability for the payment of municipal rates. The Trust rejected the Auditor General’s opinion and questioned the appropriateness of the auditing standards used. Trust administrators argued that in the main the Public Finance Management Act did not apply to them because the Ingonyama trust was not a listed public entity terms of the Act.

Land ownership

Thoko Didiza went on the record this week to apologise for David Rakgase’s 17 year wait to be allowed to purchase the land which he had previously leased from the state. There had been some confusion over the Department of Agriculture, Rural Development and Land Reform’s response to an earlier High Court ruling that Mr Rakgase was entitled to purchase the land. Initially, it was reported that the Department had applied for leave to appeal. However, Minister Didiza announced that this application had been withdrawn.

“We actually have to extend our apologies to Farmer Rakgase. Indeed, his matter should have been resolved a long time ago”.

Land policy

The Minister also delivered an address to the third Afasa Agribusiness Transformation Conference in which she spoke about the merger of the Department of Rural Development and Land Reform and the Department of Agriculture. The Minister announced government’s plans to introduce a district development model to help coordinate and align governance services and profile each district.

This profiling will look at the population size, the demographics, economic potential in the area and what government and the three spheres are doing or planning to do. A common plan will be developed and budgets will be aligned. Private sector participation will be encouraged… More importantly communities will be active participants… in the development of their areas.

What the Minister did not speak about however, was what the Department had learned from its previous attempts at district scale planning. There have been several failed attempts to strategically locate land reform as part of local spatial development planning. The department introduced area-based plans or ABP’s as they were known in 2006. The ABP sought to embed land reform as a sector plan within the municipal integrated development plan – the IDP. However, the process degenerated into a consultant driven compilation of large documents of mixed quality which cost between 20 and 30 million Rand to produce. Very few, if any of the plans drawn up were approved by district and local municipalities which prevented them from being recognised as a sector plan within the IDP. The problem with the ABP’s is that they were not described in any piece of legislation. For the minister’s district scale plans to gain traction they will need to be anchored in legislation which clearly sets out the obligations of national, provincial and local government and which makes available budgetary resources to match these responsibilities.

Redistribution

Writing in the Mail and Guardian Sobantu Mzwakali argued that land reform in South Africa had failed to address the land needs of women. He noted that women only constitute 23% of land reform beneficiaries in South Africa and in a review of failed government initiatives he concluded that:

No-one could reasonably argue that the challenge of women’s land listless is not on the South African agenda: it gets a mention in almost every cabinet level speech and most of the policy documents that flow from our bloated executive. However, where it is less present is on the credit side of the balance sheets that weigh rhetoric against delivery, intention against outcome and policy against product.

Timeslive reported on corruption charges laid against the City of Tshwane and three companies who allegedly colluded in buying land and then selling it a few hours later onto the City at inflated prices. Afriforum who laid the charges, reported that one of the companies paid a total of R117 million to the landowners before selling the same portion of land to the city for R211 million land on the same day. The price escalations onother properties purchased were of a similar scale, with one farm being purchased for R53 million before being sold on to the city for R85, 5 million also on the same day

Rural development

Several stories emerged this week about how South Africa’s emerging black farmers were in line to benefit from a fund that businessman Patrice Motsepe plans to establish. No details of the fund and how it will be managed are currently available.

Urban land

Perhaps the most sobering news story this week is written by Leseho Manala in Alex news.

A family that was illegally evicted from the Alex home month ago by a group called Dudula is out in cold. The widowed mother and six children now squat in an open space used by waste collectors barely a hundred metres from their former brick and mortar how in a neatly arranged row of houses on goal Street in extension seven. Her husband from Mozambique who died in 2007 was seemingly regularised citizen. He and his wife Veronica Gazeta was born in Bushbuckridge are stated in the title deeds and the government housing subsidy documents as the owners of the house.

In an earlier edition of Alex news RDP eviction chaos, the Dudula group said they weren’t vigilantes and that they would continue with DIY evictions that would return RDP houses to the ‘rightful owners’ said to be on a long-standing housing waiting list, presumably once compiled locally.

This and other similar stories of the failure of the police and government to protect vulnerable households from arbitrary extrajudicial evictions and vigilante expropriation are  powerful indicators of the mounting incapacity of the institutions meant to defend citizens rights in our democracy.

[1] SANDERS, D., REYNOLDS, L. & LAKE, L. 2017. Op Ed: Hunger is still killing South Africa’s children [Online]. Mail and Guardian. Available: https://mg.co.za/article/2017-12-01-00-hunger-is-still-killing-south-africas-children [Accessed 1 October 2019].

Week 40: 30th September – 6th October 2019

Expropriation

In an interview with EWN Dr Mathole Motshekga who is the chair of the ad hoc committee tasked with changing Section 25 of the Constitution said he anticipated that there would be fierce debate on the wording of the proposed amendment. He noted that the amendment should not be pushed through on the basis of a parliamentary majority, but that a consensus formulation should be reached if possible.

The amendment is not for party political purposes but is something that must meet the expectations of the people of South Africa as a whole

However, Dr Motshekga noted that if no consensus could be reached, a majority vote would decide the wording of the amendment.

An op-ed in City Press by Alexander Hammond contrasted President Ramaphosa’s push for a new African Continental Free-Trade Area with projected impacts on investment, if the constitution is amended to enable expropriation without compensation. The article cited an economic impact assessment prepared in 2018 by Professor Ilse Botha from the University of Johannesburg, and Roelof Botha, an economist at the University of Pretoria which forecast “a downgrade of the country sovereign bonds to junk status, high internal interest rates, a fairly sharp decline in taxation revenues and a deep recession” should land expropriation without compenssation become a reality.

Hammond argued that secure property rights provide the foundation for investment:

For a nation to benefit from free-trade, it must first have something to produce, and without strong property rights ensuring the fruits of one’s labour are protected, the incentive for people and businesses to invest, produce, and create no longer exists.

Farmworkers and the minimum wage

Writing in the Mail and Guardian Musawenkosi Cabe reported on the third annual conference of shop stewards and union officials held by the Commission for Conciliation, Mediation and Arbitration (CCMA). The theme of the conference was the implementation of the National Minimum Wage Act, which came into force on 1 January 2019. The Act prescribes a minimum wage of R20/ hour for all workers, with the exception of farmworkers, domestic workers and people employed on Public Works programmes. According to the Act by 1 January 2021 all workers should be earning the same minimum wage of R20/hour.

In terms of the legislation an employer can apply for exemption, which applies for a period of 12 months. If granted, such an exemption permits the employer to pay 10% below the relevant minimum wage rate. Some 475 exemption applications had been received between 1 January and 19 August 2019, of which 289 had been approved. Interestingly the majority of applications for exemption came from organisations working in the non-profit sector, as opposed to farming enterprises or businesses. Workers organisations represented at the conference argued that R20/hr could not be regarded as a living wage. They also expressed concern about the capability of the Department of Labour to oversee the implementation of the law.

Land administration

This week President Ramaphosa signed into law the Electronic Deeds Registration System Act. According to the Registrar of Deeds, (cited in a BusinessTech article with a curiously misleading title):

The new system will enable the electronic processing, preparation and lodgement of deeds and documents by conveyancers and the registrar of deeds. It will also enable the registration of large volumes of deeds effectively.

Land policy

Custom Contested, the blog curated by the Land and Accountability Research Centre at UCT, reproduced a link to an article appearing in the French publication Le Monde Diplomatique entitled South Africa’s lands must be shared. The article provides an overview of the contested land reform process in South Africa. It focuses in part on the workings of the Ingonyama Trust and the ways in which the Trust has turned the ownership rights of those living on the 2, 8 million ha it controls into tenants, who are required to pay annual rents of up to R3000. Both the High Level Panel and the report of the Presidential Advisory Panel recommended that the Trust be wound up, or that the Act be substantially amended. However, an expert cited in the article, who requested to remain anonymous was pessimistic about the possibility of change:

The government won’t dismantle this mediaeval trust, this state within the state because they don’t want civil war.

Smallholder leases and PLAS

Bheki Mashile writing in Noseweekonline records how black smallholder farmers in the Umjindi area, who have obtained land through the PLAS programme operated by the Department of Rural Development and Land Reform have recently received letters headed “Termination and nonrenewal of lease agreement”, purportedly on the basis that the lessees had failed to effectively utilise the properties.

Mashile highlights the predicament of people leasing land under the PLAS programme:

Funny enough it all boils down to the exact thing the government now wants to deny us: our leases. And they’re not just leases mind you, but long-term leases for about 30 years – at least that’s what they told us back in 2014. Now here is the problem: without those leases, which had been under consideration ever since 2014 – that’s five whole years – most of us of not been able to raise the necessary capital to work the farms. I mean guys like the Land Bank and other institutions have simply refused to provide loans or grants without those leases – which of course makes sense.

He recounts his experience in obtaining Recapitalisation Funds and trying to obtain lowest loan finance without a secure lease. It is a long story, which is due to be told in more detail in a follow-up instalment; but one which raises important issues about tenure security, access to finance and what constitutes appropriate support for those acquiring land through the land reform programme.

Rural development

Devastating drought impacts

The past week has seen a number of articles curated under this category. Carolize Jansen writing in Fresh Plaza highlights the devasting impacts of the drought on fruit production in Bot River and the Klein Karoo. She highlights how there are “previously productive stone fruit farms where every single tree has died and all the farmworkers have lost their livelihoods. More than 300 ha of orchards have been taken out. Producers get no government subsidies in South Africa, nor has the area been proclaimed a disaster area which would enable emergency government aid.”

It seems that all the media focus around the drought was captured by Metropolitan Cape Town and the day zero narrative. Meanwhile drought impacts in large areas of the Klein Karoo, the Eastern and Northern Cape have gone largely underreported. Looking forward, it’s also clear that the forecast of a climate change linked 2° temperature rise, will have major impacts for deciduous fruit production.

Biodiversity impacts

Earlier in September, Barbara Creecey, the Minister for Environmental Affairs released the National Biodiversity Assessment report for 2018 highlighting major impacts of South Africa’s development path and climate change on the environment. The report indicated that one in seven of indigenous species is considered to be threatened with extinction while 12% of the mammal population is also endangered. The report also questioned the sustainability of the trade in medicinal plants as part of the informal African traditional medicine industry which is estimated to be worth R18 billion a year.

High value agriculture as a job creator

Dennis Webster, writing in New Frame picks up on proposals made by Nimrod Zalk, a former DDG in the Department of Trade and Industry, who argues that the potential of high-value agriculture to expand employment in rural South Africa has been “hiding in plain sight”.

According to Zalk:

“Around 200,000 jobs could be created if we expand our production of high-value, export orientated crops like flowers, certain fruits and nuts”.

This in turn would lead to the creation of a further 100 000 jobs located in up and downstream manufacturing and services.

Webster notes that “agriculture in South Africa remains heavy on land but light on labour. On average, only 0.02 workers are employed on every hectare of dairy, maize, poultry, beef, wheat, soybeans, eggs, pork, sheep and canola”. Some 9 million ha of land were dedicated to these crops in 2011.

In a commentary on Zalk’s proposals Ben Cousins from PLAAS has argued that without substantial redistribution of land to productive small-scale farmers Zalk’s approach contains some “blindspots”. However, Cousins notes that fresh produce and fruit production are suitable for small-scale black farmers producing on land that could be redistributed by land reform. Cousins also draws attention to the climate crisis and raises concerns about the transport related carbon emissions linked to a focus on export-led growth pathways. However, Zalk has argued that this is a price that will need to be paid, if South Africa is to find ways to rapidly increase employment.

Legalising dagga – unintended consequences for poor rural growers in Pondoland

Christopher Clark, writing in GroundUp and republished in Sowetanlive reports on an unintended consequence of the landmark decision of the Constitutional Court taken in September 18 which ruled that “the use, possession and cultivation” of cannabis in “private dwellings” was not illegal. Dagga growers in Pondoland who have been supplying the South African market for decades report that with the relaxation of the law, prices have taken a dive and that buyers are increasingly hard to find.

I’m worried that now everyone will be off to plant their own dagga in their own homes, so we won’t be able to make money from selling what we are growing here. Even at the end of last year, the buyers were very scarce, so prices were down.

Thuliswa Gumbe – Pondoland grower

Clark notes that many of the local women growing dagga are widows and this forms a central part of their livelihood strategy. He adds that:

Currently the only route to the legal cannabis trade in South Africa is by obtaining a South African products regulatory authority licence for medical marijuana cultivation… But for rural farmers there are considerable barriers to entry, including an extensive list of quality control measures and infrastructure that needs to be implemented, accompanied by prohibitive costs

The article cites the cautionary example of Lesotho which was one of the first countries to legalise the growing of marijuana for medicinal purposes. However, the market was very quickly dominated by foreign companies with local growers marginalised in process.

Traditional leadership

Clive Ndou writing in the Witness reports that traditional leaders in KwaZulu-Natal, who had previously threatened to go to war if government tried to nationalise land under the Ingonyama Trust, have since softened their position and have said that they are now willing to talk. Inkosi Phathisizwe Chiliza, the chairperson of the KZN House of Traditional Leaders was quoted as saying that:

We have resolved to visit and consult with all local houses to ascertain the input of traditional leaders on how the land should be distributed and to whom. We have established a task team that will consult on behalf of the House on all land matters, whether it is the Ingonyama Trust land, state or private land.

Urban land

Cape Town featured strongly in the urban land section this week, with the unfolding story of township residents who occupied a vacant and derelict old age home in Observatory owned by the Cape Peninsula Organisation for the Aged (CPOA). Moira Levy and Ashraf Hendricks writing in GroundUp highlight the predicament of desperate people living in backyard shacks in the city’s townships who have been on the waiting list for many years and who appear no nearer to being allocated a house.

However, by 4^th October, IOL reported that people occupying the building had been evicted. The article carried photographs of their belongings piled up on the street. A spokesperson for the CPOA explained that half of the site had been sold to a developer for an extension of the existing Pick n Pay, but that above this extension social housing apartments would be built. On the remaining part of the land CPOA will rebuild the old-age home to accommodate the previous residents and provide welfare retirement to needy aged persons.

On the following day GroundUp carried a story about 100 RDP houses in Khayelitsha which remain unfinished since 2012, and where residents are reportedly living without ceilings, toilet doors or gutters. The Acting Mayoral Committee for Human Settlements clarified that residents were part of a community driven People’s Housing Process project, where the contractors went into liquidation and left the work unfinished.

That’s all for our summary of week 40. We are not able to cover every land related article published during the week. So, be sure to browse the news categories to catch up with other stories making the news. You can also search our extensive archives which now contains over 2300 articles, and which is growing every day.

Week 39: 23^rd to 29^th of September

Farmworkers

On 23rd September the Cape Business News reported how workers union CSAAAWU had handed over a set of demands to the Norwegian and Swedish consulates over the weekend for improved conditions of farmworkers producing wines for export to Nordic markets. The union threatened to call for a boycott of wines and other agricultural products from South Africa by Nordic consumers if the alleged ‘slave-like’ working conditions of black farmworkers were not addressed. The union has demanded a minimum wage of R250 a day and a monthly salary of R8500 for farmworkers to be phased in over the next three years.

Nersishka Singh writing an Op-Ed in Business Day on 25 September draws attention to the fact that the extension of security of tenure act was designed to do much more than to protect farmworkers and dwellers from unlawful eviction. She notes that Esther protects farm dwellers right to access basic services which means that a farm owner is prevented from cutting off their access to any basic service. She cites a case in the High Court in Pietermaritzburg earlier this year which highlighted the failure of both farm owners and the municipality to provide access to basic services to 200 farm dwellers. The court found that this was in consistent with the constitution and an affront to their dignity.

Singh also notes that ESTA seeks to detect a farm dwellers right to maintain a family life consistent with their cultural and religious beliefs. This includes the rights of farm dwellers to bury and visit the graves of their dead:

One of the greatest obstacles to ESTA’s implementation is a lack of awareness of its breadth

Presidential Advisory Panel

Donwald Pressly writing in the Farmer’s Weekly reports on a speech made by Dr Vuyo Mahlati to the Cape Town Press Club. In a wide-ranging address Dr Mahlati summarised recommendations from the presidential advisory report with regard to tenure security and titling. She also highlighted how special attention need to needed to be paid to ensuring tenure security for women, particularly when it came to providing long-term leasehold agreements on state-owned land. With regard to the approach recommended towards land expropriation Mahlati provided a careful response reiterating that:

“Expropriation without compensation is just one form of land acquisition. There are different forms … [such as] negotiated settlements. The approach is not wholesale expropriation of everything and everyone. It is in terms of targeted areas.

Mahlati also recommended that Treasury needed to explore tax incentives to encourage donation of land and buildings. However, there was a concern that landowners might come forward to donate unproductive land of little value to the land reform programme.

President Ramaphosa delivered a keynote address at the Heritage Day celebrations in Upington where he reiterated the need for wide-ranging land reform.

We must say it very clearly our history, identity as South Africans is closely linked to the question of land and it is for that reason that we can say that land must be returned to our people because that is what really shapes our identity.

Land rights and mining

Dr Aninka Claassens writing an op-ed in Business Day on 26 September highlighted the consequences of what she described as the states ‘mining bias’ for poor rural South Africans. Claassens notes that in addition to the reports of the HighLevel Panel in 2017 and the Presidential Advisory Panel in 2019 the findings of the Baloyi commission “explains how politically connected traditional leaders are able to enrich themselves at the expense of rural people. Government collusion is an ingredient as is the conduct of big mining companies and legal and accounting firms”.

The Baloyi Commission has investigated mining deals entered into by Kgosi Nyalala Pilane with a range of mining companies since 2004.

The report details how Pilane has failed to account for the deals to either his traditional council or the 32 villages that make up the Bakgatla community. It describes the many unauthorised accounts into which he has deposited money and his refusal to account for it, which has made it impossible for the auditor-general (or anyone else) to audit community assets. The Bakgatla have little to show for these multibillion-rand deals. Instead the villages continue to be characterised by deep poverty and fury at the way in which their birthright has been squandered.

Claassens also explores how Contralesa, the organisation of traditional leaders (of which Pilane is deputy chairperson) has pressured government to enact the Traditional and Khoisan Leadership Bill (TKLB). This law would undo the safety net provided by the Interim Protection of Informal Land Rights Act (IPILRA) requiring the informed consent of rural citizens before the disposal of any right in land may be lawfully permitted. The TKLB seeks to allow traditional leaders a freehand and independent authority sign mining deals.

Land reform successes in North West?

On 25 September SowetanLive syndicated a story from the Government Communication and Information Service (GCIS) featuring a family run cooperative Batlhako Temo Services which it is reported “has become a leading citrus producer in the North West”. The co-operative is the first black-owned citrus producer in North West province to sell its produce on export markets to the Middle East and Taiwan. The provincial Department of Agriculture had reportedly divided R1.6 million  worth of funding and support between 2014 and 2017 to improve irrigation and provide technical advice.

The Small Enterprise Development Agency (SEDA) reports that members of an unregistered co-op approached them in 2010. SEDA connected them with the Department of Rural Development and Land Reform which enabled them to access a 60 ha citrus farm. According to the article members of the cooperative have been supported with training and assistance to access markets as well as the purchase of plant and equipment.

Restitution: Heritage Day name changes

In Cape Town Sune Payne writing in the Daily Maverick reports that on Heritage Day Mayor Dan Plato, Minister of Agriculture, Land Reform and Rural Development Thoko Didiza and District Six Working Committee (D6WC) chairperson Shahied Ajam unveiled a plaque commemorating the restoration of Hanover Street in District Six

Today we celebrate the renaming of Hanover Street and doing away with the street name of Keizersgracht, with all its ties to painful colonial and apartheid injustice. This symbolic act of restitution is a great milestone in our fight for justice for this community.

The decision to change the name followed an application by the District Six Working Committee in June with 97% of 1,200 comments as part of a public participation exercise being in support of reverting to the original Street name.

While the street names may be changing much work still needs to be done to effect restitution to those dispossessed by the District Six forced removals which changed the face of the City of Cape Town.

Week 38 16 – 22 Sept 2019

Farmworkers

GroundUp reports on a meeting between activists, farmworkers and the Deputy Minister of Rural Development and Land Reform who belong to at least six different equity schemes in the Witzenberg area. Farmworkers complain that despite the investment of state funds in equity schemes, they have not seen the benefits that they expected.

According to the chairperson of the African Farmers Association in the Western Cape, Ismail Motala, white farmers are captured the benefits of share equity schemes “in terms of marketing, BEE status and to expand their own businesses by accessing funds over the years”.

“From legal documents the projects may seem above board but from a moral perspective, it doesn’t bring home the bacon for the people it was really intended for”.

The Deputy Minister has undertaken to launch a forensic investigation into selected farm equity schemes. The Witzenberg Rural Development Centre was demanding an investigation into all 52 projects funded through this mechanism in the area.

Department of Agriculture, Land Reform and Rural Development

Just as Minister Thoko Didiza tries to get her house in order, City Press reports that Corruption Watch had raised concerns about the reinstatement of departmental officials who had been either suspended or fired following allegations of corruption and maladministration. These officials include Director-General Mduduzi Shabane, and several others.

In their letter to Didiza, Corruption Watch demands that an investigation into what it describes as the “abuse and weaponisation of disciplinary processes” in the department by her predecessor Nkoana-Mashabane.

“We request that you urgently undertake an audit of all ongoing and suspended disciplinary processes to determine the reasons for the suspension of the processes and reversal of sanctions, in some instances, and the continuation and imposition of sanctions in others. In addition, we request that you investigate the circumstances under which dismissed officials were reinstated.”

A spokesperson for the Minister acknowledged receipt of the letter and stated that the she would soon respond to the Corruption Watch request.

Land ownership

An op-ed in News 24 IRR reports on a judgement handed down by the Pretoria High Court that recquired that the state sell 77 year old David Rakgase land which he had been leasing from the state to farm since 1991. He had previously applied to buy the property, a request that had been approved by the provincial grant committee of the Department of Agriculture in 2003. However, in 2010 a deputy director-general for land and tenure reform decided not to approve the sale. Instead Mr Rakgase was offered a long lease. The judgment recorded that:

The argument on behalf of the Minister that the Applicant has security of tenure and that there is no imminent eviction prospects on his horizon smacks of callousness and cynicism, particularly given our country’s historical deficiencies in dealing with land reform.

Land policy

There is more to land reform than expropriation without compensation

Minister Patricia De Lille was interviewed by News24. She criticised those who had dismissed the report of the Presidential Advisory Panel because of its cautious stance on expropriation without compensation. The Panel had acknowledged that there were circumstances under which expropriation without compensation would be just and equitable. However, they indicated that this type of expropriation would take place in exceptional and tightly circumscribed circumstances. De Lille expressed concern that:

The whole thing in the country is about expropriation without compensation. How dumb can you be?… I think we need to change our communication around land and begin to show South Africans that land reform means lots more things.”

IRR policy proposals for land reform

The Institute for Race Relations released Reaching the promised land, a proposed alternative to the report to the Presidential Advisory Panel. According to Anthea Jeffery:

The IRR’s Ipulazi policy captures the essential requirements for rural reform. Policy must shift from the transfer of land – often soon rendered unproductive – to increasing the number of successful commercial farmers. Those who want to farm must be helped to do so via adequate finance.

However, it remains difficult to determine how such an approach is going to be effective in addressing rural poverty. Simply replacing white commercial farmers with black commercial farmers cannot provide a sustainable solution. The IRR argues that the key demand for land is urban, although their proposed approach appears silent on the need to address spatial inequality, focusing rather on the promotion of alternative housing delivery mechanisms, via housing vouchers for the poor and public-private partnerships to speed up land provision.

Urban land

In Week 34 we carried news about the Klein Akker eviction case noting that the National Department of Agriculture, Rural Development and Land Reform had stepped in to provide accommodation for affected persons on a state farm near Stellenbosch. We recorded some scepticism about the motive for, and sustainability of this intervention, noting that there are no quick fixes or easy solutions for the problems associated with rapid urbanisation in a context of sharp social and economic inequality.

In recent weeks a political struggle has developed over this case, with the Democratic Alliance reporting Deputy Minister Skwatsha to the South African Human Rights Commission for “abandoning the vulnerable people of Klein Akker on a farm that is not fit for human habitation”. The Citizen subsequently reported on a court ruling which had interdicted the Deputy Minister from settling any “more vulnerable people in subhuman conditions” on the state farm in Stellenbosch.

GroundUp reports that this interdict followed a complaint and an application to the Western Cape High Court by Ricardo Green. He lodged the application on behalf of the Mesco Farmworkers Cooperative, who lease the land from the state. Green argued that a “once-in-a-lifetime opportunity to engage in an agricultural enterprise, as the owner of that enterprise rather than as salaried employees would be lost” if the farm became a place to relocate evicted families. He asked the court to order that the families leave the farm to occupy emergency housing offered by the City of Cape Town. The court will rule on the application to evict people resettled on the farm next month.

Also in Cape Town IOL reported on the disruption of a land auction to sell off 34 portions of prime land owned by the City of Cape Town. Brett Herron, a former member of Mayco, but now representing the Good Party observed that:

These proposed sales are taking place despite an affordable housing crisis and a failure to address the apartheid urban structure of our city. “This government (must) understand that the land belongs to all of us and they are the temporary custodians of public land. Their job is to employ that public land to address public needs, but we continue to see irreversible disposals. This will exacerbate our crisis of affordable housing.

While the City proceeds to auction public land, low income households continue to be evicted in Woodstock. This week the eviction of an 80-year-old man and his family from a house which they had occupied for 40 years, became the focus of widespread condemnation of metropolitan government and protest action by housing activists affiliated with the civil society organisation Reclaim the City.

Week 37: 9 – 15 September

Expropriation

Mathole Moshekga, the Chair of the ad hoc committee which has the responsibility of preparing a proposed amendment to Section 25 of the Constitution in order to accommodate expropriation without compensation announced that the committee was planning to meet with land specialists and constitutional experts. The Committee will first review existing reports including those of the High Level Panel, the Presidential Advisory Panel  and the committee appointed by Parliament to hold public hearings on expropriation. Moshekga  was reported as saying that “we will set aside politics and decide what is in the best interests of all South Africans” (Jan Gerber News 24). The deadline for the committee to finalise its work is 31 March 2020.

Farmworkers

The North Coast Courier has drawn attention to looming retrenchments in the sugar industry in KwaZulu-Natal with thousands due to lose their jobs at the end of the month at Tongaat Hewlett. Reportedly, sugar production in South Africa has dropped by 1/3 between 2002 and 2012. Illovo Sugar has reduced their workforce by 25% between 2009 and 2014. At the Maidstone Mill some 210 families living on company land were served with eviction notices told to vacate the property. Some workers are reported to have refused to sign the letter notifying them of their eviction as they have not been given an opportunity to find alternative accommodation. It is unclear from the report whether the evictions are proceeding in terms of the processes required by the Extension of Security of Tenure Act. Retrenchments and displacement workers continue on surrounding farms.

In the agricultural sector in the Western Cape Daneel Rosseau argues that partnerships in agriculture are now more important than ever. However, this comes at a time when there are widespread questions being asked about alleged abuses by land owners of farmworker equity schemes. Land sector activists argue that these have benefited landowners and employers, but deliver little or nothing to the workers in whose name funds have been secured.

Ingonyama Trust

Those allied with the Ingonyama Trust have been waging a fightback against recommendations in both the HLP and Presidential Advisory Panel reports that the Trust should be wound up, or alternatively the Act should be substantially amended. Business Day reports that Zulu King Goodwill Zwelithini and the Ingonyama Trust Board have briefed lawyers to fight such initiatives and that they are preparing to approach the International Court of Justice in the Hague should their case fail in South African courts.

Land policy

News 24 carried an interview with Public Works and Infrastructure Minister Patricia De Lille who has criticised the emergence of A singular focus on expropriation without compensation which she argues has distorted much of the South African debate on land.

“The whole thing in the country is about expropriation without compensation. How dumb can you be? I think we need to change our communication around land and begin to show South Africans that land reform means lots more things.”

Land rights and mining

Sabelo Ngubeni writing in the Mail and Guardian critically reviews the recent Xolobeni judgment which requires that the Minerals and Petroleum Resources Development Act and the Interim Protection of Informal Land Rights Act be read together. This is to ensure that in customary tenure contexts, communities must be adequately consulted to provide informed consent before mining activities can take place on their land. He highlights the failure of the Department of Land Affairs and its successors to pass regulations to guide the implementation of IPILRA which makes the process of obtaining informed consent difficult to implement.

Meanwhile the South Coast Herald published part one in a series on mining in Pondoland, profiling the uncertainties hanging over communities in the area. The Minister of Mineral Resources has announced that the Department will appeal the Xolobeni judgement and that a survey will be conducted in the area to clarify the community’s views on the granting of a mining licence. The report highlights the enormous divisions that have been opened up in the Xolobeni community. To date it is reported that some 12 people have been murdered in the area as part of the ongoing contestation over mining rights.

“It’s a huge problem, so much so that family members no longer attend the same events or ceremonies, or eat the same food as they are worried they will be poisoned. Some people use lightning to attack those who are not in favour of the mining.”

Redistribution

Earlier in the week a series of reports stated that government was going to announce plans to redistribute certain state land. However subsequently it appears that the land is actually reserved for restitution. A report in the Farmers weekly states that 278 parcels of land alluded to by the Deputy President in follow-up questions at the NCOP were intended for restitution to settle land claims lodged with the Commission on Restitution of Land Rights.

Urban land

IOL and other news outlets carried reports that the NGO Ndifuna Ukwazi was planning to take the City of Cape Town to court to review or set aside the city’s approval of a 39-story mixed-use development in Buitengracht Street known as the Vogue. The NGO has objected to the absence of affordable housing as part of the high-rise development. The NGO states that the approval of the development ignores an undertaking in August 2018 made by the city to develop an inclusionary housing policy to increase the number of residential units in the city and other well-located areas for families earning between 3500 and 18,000 rand a month. How such units would be allocated and applicants approved poses major challenges for the already compromised housing demand data base.

 

Week 36: 2 – 8 September

Expropriation

Mathole Moshekga was unanimously elected chairperson of the Parliamentary Committee that will propose amendments to Section 25 of the Constitution to enable expropriation without compensation. (News24)

Land governance and administration

Former president Kgalema Motlanthe who chaired the high-level panel spoke about political compromises made during the transition to democracy in South Africa (IOL). A key mistake according to Motlanthe was entertaining the demands of homeland leaders for a federal state which resulted in the formation of the Ingonyama Trust and the nine provinces which encapsulated the former bantustans.

Farm workers

The Southern African Catholic Bishops Conference Justice and Peace Commission shared their approach to secure basic rights for rural farm workers. The Commission highlights the importance of understanding the global trend of labour precarity and the way this manifests in the rural labour market. It profiles the Casual Workers Advice Office and their work to establish a forum for non-unionised workers known as the Simunye Workers Forum. The Gommission highlights the need to address reforms within the CCMA to address budgetary and capacity constraints as well as geographical inaccessibility. The Commission draws attention to the need to reform Rule 25 of the CCMA which creates obstacles for paralegals who seek to represent nonunionised workers. They highlight how many farmworkers are excluded from the minimum wage and that this needs to be upscaled to 3500 rand a month in order to provide the basis of a living wage. The commission also focuses on tenure insecurity stating that:

Governments policies have failed to prevent the eviction of farmworkers and ensure tenure for the rural poor

Land rights and mining

The Daily Maverick published part three in in a series focusing on local mining fraud by Kevin Bloom with a focus on the case of the Bakgatla Ba Kgafela which it characterised as the “largest state sanction, corporate sponsored fraud in the history of big mining in democratic South Africa”.

Restitution

In KwaZulu-Natal there have been continued reports of violent clashes between interest groups whose land claims were bundled together by the Commission on Restitution of Land Rights. The Farmer’s Weekly reports on the intervention by Minister Thoko Didiza in complex conflicts which have erupted on these properties. In the case of the Sibuyelwe Matiwane Community Trust which had successfully claimed 8000 ha of land through the land restitution programme, members of the claimant community had alleged that local indunas had been selling land to people from outside the community.

Urban land

Alex News continues to report on Dudula eviction squads operating in Alexandra Township – an indicator of deep contestation and corruption in the housing allocation system. Dudula member Liefie Madigane explained Dudula’s approach which takes over the functions of the Departments of Home Affairs, Human Settlements as well as the Courts:

“We assess occupants’ documents to prove their legal standing in the country before we act on them…We approach those we target with relevant information about the house’s rightful owner and where requested, give the illegal occupants notice to seek alternative accommodation pending the eviction…We don’t break doors, are not armed and sometimes ask neighbours to keep the evictees’ property while they seek alternative places”.

Dudula members deny that they are a vigilante group.

Week 35: 26^th August – 1 Sept

After a lot of coverage on the report of the Presidential Advisory Panel in preceding weeks land issues have not featured prominently in the news in week 35. We pick out some highlights from articles curated on the knowledgebase.land website.

Parliamentary Advisory Panel

In an op-ed published in Pambazuka News Marc Wegerif characterises the report of the advisory panel as another missed opportunity for meaningful agrarian change in South Africa. He highlights the lack of consensus on the vision for agriculture:

Without a vision of what kind of agriculture, what kind of food system, and what kind of rural society we are building it is hard to understand what is informing the suggestions in the report. Indeed, what one finds are limited and, in some cases, contradictory recommendations based on a limited analysis of the current situation in South Africa and how this was created.

Expropriation

A 25 minute documentary on Al Jazeera features two South African farmers – Shimo Jonas Makoka and Leon Borchers providing their perspectives on land expropriation and land reform.

Pesticides on farms

On 29 August Women on Farms staged a march on Parliament calling for a ban on 67 pesticides used in the wine and fruit sectors. They also handed over memorandum signed by concerned German consumers. Women on Farms drew attention to specific chemicals including Paraquat, Roundup, Dormex and Dursban pesticides.

Hortgro subsequently released a statement confirming that these pesticides were registered for use in South Africa but noting that Dormex and Dursban could only legally be used when deciduous fruit and vines were in dormant state in the winter. Hortgro argues that South African reproducers work according to rigorous production standards such as GlobalGap which regulate the use of pesticides and impose stringent conditions with respect to worker health and safety with regard to pesticide handling and use.

Despite these assurances serious concerns remain concerning the health and environmental impacts of many herbicides and pesticides. In April 2019 the Cancer Association of South Africa (CANSA) commissioned research to develop a fact sheet and position statement on Glyphosate which is marketed under the name Roundup which has been characterised as a Group 2A carcinogen which is probably carcinogenic to humans with strong evidence that it can cause cancer, although at present unlike Group 1 carcinogens this evidence is not yet regarded as being conclusive.

Ingonyama trust

The newly elected Inkatha Freedom party leader secretary general Siphosethu Ngcobo called on the government to release all unused state land for redistribution while Velenkosini Hlabisa the newly elected party leader rejected calls for the Ingonyama Trust Act to be repealed arguing that:

Our belief is that the trust is the only example in South Africa were a large part of the land is in the hands of the black majority. Communal land must remain in the hands of the people under the custodianship of traditional leaders with the provincial government providing support to traditional leaders and emerging farmers

Meanwhile IOL carried a story about alleged land grabs by Inkosi Mqoqi Bernard Ngcobo, in Inanda since 2016, who it is alleged has facilitated the sale of various pieces of land which he states belong to his people and the Ingonyama trust – a statement refuted by the Tea Estate Farming Organisation which accused him of illegally selling off privately owned land.

Urban land and informal settlements

GroundUp reports that shack dwellers at Mpukwini informal settlement who occupied the land in Makhaza in Khayelitsha are preparing to square off with the municipality in court next month. They want the eviction order against them scrapped and the City of Cape Town to build them houses on the land.

In Johannesburg residents from Eldorado Park, Diepkloof, Freedom Park, Meadowlands, Klipspruit, Ennerdale and Vryhof. Staged a march to demand that the Gauteng Premier release land for housing for people who wanted to build their own housing.

Week 34: 19^th – 25^th August

 

The Advisory Panel Report

In a continuing series in Business Day Prof Johann Kirsten has argued that donations to the proposed land reform fund – one of the proposals made by the Panel will take the burden off farmers. Meanwhile, this week in Parliament President Ramaphosa was asked a question about whether he intends to implement the recommendations of the Presidential Advisory Panel on Land Reform and Agriculture? In reply the President noted that:

The report of the Advisory Panel has been presented to Cabinet and has been made available to the public. The report provides a detailed and critical assessment on progress since 1994 and outlines some of the weaknesses in our policies and programmes. This report recommends legal mechanisms to recognise, register, record and enforce a continuum of land rights, so that all our people become rights holders.
The Panel argues that expropriation without compensation is not, by itself, a solution to land reform, but is just one of the means of acquiring land.
The report goes much further to address questions of who should benefit, and promotes a participatory and democratic, area-based approach to identifying land needs.

 

While the President was answering questions in Parliament, living conditions on farms and evictions continue to make the headlines.

Farm housing and hostel conditions

There have been a series of articles in the media highlighting conflicting perspectives about the working, housing and hostel conditions on Oak Valley Farm Estate near Grabouw in the Western Cape. Trade union CSAAWU supported by the NGO TCOE have approached the Equality Court to investigate housing conditions and single sex hostels on the estate. Judge Owen Rogers called on the parties to make submissions as to why the matter should be heard in the Equality Court. These are due by 10 September with the matter being heard on 17 September. The Judge will clarify which courts have the jurisdiction to hear disputes about these issues: The Equality Court, the Labour Court or the Constitutional Court.

The Klein Akker eviction case

At Kraaifontein in the Cape Metropolitan area some 300 people were reported to be evicted from Klein Akker farm following an eviction application brought by a private landowner. The eviction follows court proceedings which were heard in the Western Cape High Court which passed  judgment in the matter on the 14^th October 2016. The court papers highlight the complex history preceding the granting an eviction order.

The property is situated on the border between the Cape Metro and Stellenbosch municipality and is 13 ha in extent. No evidence is cited in the judgment that the property been farmed, even though some reports speak of workers being employed as fruit pickers. Evidence in the court papers seems conclusive that the people living on the property were not employed there and that over time people occupied the property without consent as the property changed hands.

Court papers provide a timeline which indicate that the property was used as a bus depot between 1996 and 1997 and then after it changed ownership it appeared to have fallen into disuse. Around 2000 a number of people began to live on the property, apparently with the consent of a caretaker. There is an inference in the court papers that the caretaker and others associated with him may have received payments from people moving onto the land.

By 2016 it was reported that 79 households comprising 233 people lived on the property, some of whom stated they had been in occupation since 2000. There were no services provided. Electricity to the property had been cut off. There were three stand pipes supplying water and a few portable toilets.

The property changed hands several times. It was purchased in 1998 and sold again June 2005. The company which purchased the land went into voluntary liquidation in March 2009. The liquidators sought to sell the property to recover the debt but found it difficult to find a buyer to purchase the land without them being provided with vacant occupation – meaning that an application to evict the occupiers would have to be launched, and that they would have to be found alternative accommodation.

This Klein Akker case has a long history and it seems that a series of eviction orders were granted – one as early as 2000 following complaints by adjoining land owners. For one reason and another these were not finalised. At the same time the number of people living on the property increased. The most recent eviction order was granted over two years ago. Residents with the support of the LRC then applied for a stay of eviction while alternatives were sought. According to the City of Cape Town only five of the respondents’ names appeared on the City’s waiting list for housing. According to the City this made it difficult for them to prioritise finding alternative land. The judgment notes that:

The possible purchase of Klein Akker by the City was discussed. The City was not in favour because the property lay beyond the urban edge and would thus not be a suitable site for formal housing or as a temporary relocation area. The City argued that it was obliged to act within its available resources and fairly to all constituents. There were many desperate and needy people requiring the City’s assistance. It would be unlawful to prioritise one part of the community at the expense of others who had been waiting many years for assistance.

The Judge was not satisfied by the City’s response that it could not find alternative land or emergency accommodation and ordered it to identify suitable land/alternative accommodation.

 I am satisfied, in all the circumstances, that the City has failed in its obligation to provide the respondents with emergency accommodation sufficiently expeditiously to avoid unreasonable hardship to the owner. I am also unpersuaded that the City lacks the resources to provide land for the respondents at least on a temporary basis. Even if it does not currently have the resources, the City has the means of raising them, either by rates or by an application to the province. The latter has indicated its willingness in principle to provide funding.

The judge ordered that:

 The Occupiers are ordered to vacate Klein Akker by no later than Monday 10 July 2017, failing which the eviction order may be carried out on Wednesday 12 July 2017.

The third respondent must provide the Occupiers with emergency accommodation on land as near as possible to Klein Akker by Monday 26 June 2017, provided that they still reside at Klein Akker and have not voluntarily vacated it. The emergency accommodation must at a minimum comprise land with basic services not less than those currently provided to the Occupiers on Klein Akker and on which they can relocate the dwellings in which they currently reside on Klein Akker.

The City made offers of alternative land but these were rejected by the residents on the grounds of safety as the land was located in Phillipi and  Bloekombos – both areas with high levels of violent crime. Then the landowner forced matters to a head. On Monday (19 August) law enforcement officials and security guards arrived at Klein Akker to demolish shacks. A flurry of legal action ensued.

The SAHRC applied to the Western Cape High Court on Wednesday  21 August to challenge the eviction, and supported the counter application by the Legal Resources Centre for emergency accommodation and constitutional damages for those evicted from Klein Akker.

Since then the Department of Agriculture, Rural Development and Land reform has stepped in to provide accommodation for the evicted persons on a state farm near Stellenbosch. It remains to be seen how sustainable a solution this will be.

A detailed reading of this case suggests that there are no quick fixes or easy solutions for the problems associated with rapid urbanisation in a context of sharp social and economic inequality. There is a case to be made for more in depth reporting in the media to avoid the simplification of these complexities and to focus on finding just and equitable solutions for all.

Ingonyama Trust

The Inkatha Freedom Party has hit back at threats to amend or repeal the Ingonyama Trust Act while the President has stated that “no arbitrary action will be taken on the status of the Trust” –

More next week.

 

 

 

Week 33: 12 – 18 August 2019

The Inter-Ministerial Committee on Land Reform

Deputy President David Mabuza convened the second meeting of the Inter-Ministerial Committee on Land Reform on Thursday, 15 August. The committee is tasked with measures to “accelerate the redistribution of land, the extension of security of tenure, the provision of agricultural support and reversing spatial inequality within the broad and comprehensive land redistribution and agricultural development programme”.

This committee brings together a wide range of government departments including the Ministers of Agriculture, Forestry and Fisheries, Cooperative Governance and Traditional Affairs, Human Settlements, Justice and Correctional Services, Finance, Rural Development and Land Reform, Public Works, Public Enterprises, Water and Sanitation as well as Planning, Monitoring and Evaluation.

The business of the day included:

• the need for government departments to study and respond to the recommendations in the presidential advisory panel report on land reform;
• a focus on the draft National Spatial Development Framework as a basis for coordinating spatial planning and development priorities;
• a plan for the release and strategic utilisation of government owned land;
• the status of land claims;
• proposals for an integrated model for farmer support;
• a focus on finalising Land Courts Bill and the process for finalising the Expropriation Bill.

The BFAP Agricultural Outlook Report

Week 33 also saw the Bureau for Food And Agricultural Policy (BFAP) release its Baseline Agricultural Outlook report for the period 2018 to 2027. The report noted that:

One of the greatest uncertainties facing South African agriculture at present relates to the implementation of land reform policies, in particular the possibility of expropriation without compensation.

BFAP projected that the gross value of South Africa’s agricultural production for the current financial year is likely to be equivalent to that of 2015. Agricultural GDP was at its highest in 2017 on the back of record maize and soya crops. However, it is expected to decline sharply in 2018 season as a consequence of the drought and its impact on food exports. Overall, the report notes that certain sectors in the agricultural economy are performing well, particularly citrus and table grapes, which have substantially increased their global market share.

Importantly, given the high levels of unemployment BFAP reports that the cost of a basket of staple foods for a family of four fell from R479 rand/ month in 2016 to R425/ month in 2018. However, the cost of this food basket is expected to rise by at least 6% over the next ten years.

The future of Ingonyama Trust

We reported on a series of articles exposing events leading up to the formation of the Ingonyama trust in Week 32. This week the Inkatha Freedom party exercised its right of reply to dispute the earlier Mail and Guardian Ingonyama report. According to Mangosuthu Buthelezi, the Ingonyama Trust act was not drafted in secret as alleged, and that a copy of the draft Act and its schedule was given to Joseph Slovo and other ANC figures in advance at the Skukuza summit. It was at this summit on the 19^th April 1994 that amendments were proposed to Section 160 of the Interim Constitution to create provisions relating to the institution, role, authority and status of the traditional monarch which was to be recognised and protected in the Constitution.

Contralesa came out in support of Zulu King while the chairman of the Ingonyama trust denied financial mismanagement of the Trust’s assets. According to the chairperson:

Ingonyama trust is audited by the auditor general and that has been the norm for years. What is the auditor general said about finances? Where are they getting all they are saying because they did not speak to the Trust?

Unfortunately, the chairperson did not provide an answer to his own question. In 2018 it was reported that the Board of the Ingonyama trust had failed to provide supporting documents to the auditor general Kimi Makwetu. The AG was reported to have criticised the trust and the Chairperson for failing to account properly for a total of more than R28 billion in assets and for continuing to keep revenue from mining leases which is supposed to be contributed to the National Revenue Fund.

Khoisan Union Building protest

Outside the Union buildings a group of Khoisan leaders continued to press for their demands for recognition as a the first indigenous nation in South Africa, that Kwadi-Khoe must be listed as an official language while Khoisan groups must be given land and resources to  consolidate their culture and traditions.

The Presidential Advisory Panel

This week commentary on the report of the Presidential Advisory panel featured Op eds and analysis by:

• William Beinart and Peter Delius
• Nhlanhla Mbatha
• James Reeler and Mkhululi Silandela

Beinart and Delius expressed support for several of the panel’s recommendations including proposals to speed up and conclude the process of restitution and to abolish or radically reform the Ingonyama trust. They note however the ambiguities which characterise the report with regards to the role of traditional leaders in land reform and land administration.

Interestingly, despite the contribution of high-level agricultural economists to the report, Beinart and Delius argue that the report has underestimated the significance of commercial agriculture and its contribution to the economy and food security. They also note that:

In marked contrast, the report obscures the reality that smallholders’ agriculture has not been expanding. It recognises that there is much underutilised land and that there is massive unemployment in rural areas. However, it fails to ask why smallholders do not maximise their land and why unemployed younger members of parcels to not put their labour into that land.

The authors point out a fundamental error in the Panel report where it is stated that “more than 60% of the active population in southern Africa depend on land for their livelihoods, whereas rural and urban communities depend almost entirely on land as a source of food.”

They cite evidence from surveys of villages and settlements in the former homelands which indicate that households produce no more than 20% of their food needs from agricultural production and the vast majority of rural and urban residents are dependent on the purchase of their food needs.

Beinart and Delius expressed concern about the feasibility of ambitious plans that envisaged the establishment of new institutions and the development of associated capacity. They argue that the focus should be on developing the capacity of existing institutions and officials currently responsible for land reform.

Nhlanhla Mbatha argues that sections of the advisory panel report “seemed to gloss over the deep structural and systemic challenges in the current processes, for example, the painstakingly slow evaluation and finalisation land claims, of which there is a backlog of approximately 20,000 cases”. He notes that one of the main recommendations of the panel is for a new focus on land administration and the recording of off-register land rights. Mbatha asks what would be the primary purpose of formally recognising non-individual ownership rights? He sees some advantage for the purposes of advancing women’s rights to land, but questions whether recording rights will make any difference to a household’s ability to apply for finance, particularly in circumstances where land is held by entities such as Communal Property Associations. Mbatha expresses concerns that the recommendations of the panel could turn out to be a pipe dream and that the future of the land reform process will remain unclear.

Reeler and Silandela make an important contribution to the commentary on the report of the panel noting that:

The issues of land use and climate change are intricately entwined, which is why the newly released Intergovernmental Panel on Climate Change’s Special Report on Climate Change and Land should be required reading for anyone concerned about the land debate.

They argue for an approach that balances critical biodiversity and water reserves with essential agricultural land and the need to restructure our food systems. They focus on the persistence of diet -related stunting which affects more than ¼ of South African children under the age of five and the reduction of food waste which currently sees more than 1/3 of all food produced being thrown away.

District Six and urban land issues

District Six continues to make the headlines after acting Judge Tembeka Ngcukaitobi found that the former minister of rural development and land reform Maite Nkoana Mashabane had failed to properly appreciate her constitutional duty to finalise the land claims “diligently and without undue delay”. The judge found that the minister’s “reckless conduct” and negligence in the District Six case meant that a personal cost order was justified against her.

In a subsequent story the current Minister Thoko Didiza is reported to have requested that the various stakeholder groups with interests in the settlement of the District Six land claim agree on a development framework.

Elsewhere in the urban sector there was news that Cape Town Salt River Market would be rezoned for mixed-use development while the City of Cape Town issued a condemnation of the hijacking of buildings and the illegal occupation of land within the Metro.

More next week.

Week 32: 5 – 11 August 2019

Ingonyama Trust

Week 32 has been dominated by news and debate around the future of the Ingonyama Trust. (The Citizen 4 Aug) King Goodwill Zwelithini speaking to women at the Umkhosi Wesivivane in KwaNongoma was quoted as stating that:

I want you to know that this land belongs to the current reigning King of AmaZulu [and] previous Kings and Queens and will not be taken from us. It will not die or be taken during my reign and your time. If we allow that, history will judge us harshly.

The Inkatha Freedom Party leader Mangosuthu Buthelezi (IOL 4 Aug) has taken issue with the report of the Parliamentary Advisory Panel with respect to the Ingonyama Trust, questioning the government’s capability to manage the land if the recommendations in the report were to be adopted. Buthelezi was of the view that the Advisory Panel had made the same mistake as the High Level Panel in failing to consult with Ingonyama Trust board or the King. Buthelezi argued that:

What is now communally owned by the people will become wholly owned by the government, dispossessing communities of their most valuable asset. Taking the royal nation’s land is like taking its very soul.

However, neither the King nor the IFP leader responded to the substantive concerns raised by both reports that the trust had “unilaterally assumed the role of a landowner by converting the people’s permission to occupy certificates to leases and charging them escalating rentals for occupying the same land on which they had lived for many generations”.

Later in the week Lawson Naidoo from the Council for the Advancement of the South African Constitution (CASAC) was interviewed on Radio 702 by Bongani Bingwa. Naidoo highlighted mismanagement by the ITB:

What is clear is that the Auditor General has for years complained about the opaque financial records that have been kept by the trust. A trust is established for the benefit of its beneficiaries and not the king. The beneficiaries are the people who reside on the land. The trust has provided no evidence of how any of the money collected is used for the benefit of those people.

IOL (7 Aug) carried an article by Samkelo Mtshali which provides a brief review of King Zwelithini’s responses to both the High-Level Panel and the Presidential Advisory Panel reports on the Ingonyama trust.

The Mail and Guardian (7 Aug) carried a detailed article by Hilary Lynd providing the back story on the land deal regarded by many as a sweetener to bring the IFP into the 1994 elections. The article carried a rebuttal by the IFP leader who stated that the decision to participate in the 1994 elections had nothing to do with the passing of Ingonyama Trust Act. However, the article provides a day by day timeline of events leading to the passing of the Act.

On Friday, 22 April 1994 Buthelezi addressed the KwaZulu legislature stating that it was absolutely vital that the Ingonyama Trust Act should be passed before the elections, moving that “the rules of procedure be suspended so this bill can be finalised today”:

It is vital that we should do this, by getting the Bill concerning the land which is now entrusted to the KwaZulu Government, which will still exist now until the end of the month, passed so that the land that belongs to the nation, to the amakhosi and so on, can be secured, if we put it in a trust with His Majesty the King.

According to the article, news of the Trust broke in the press on May 20, 1994, immediately prompting speculation about a secret deal between De Klerk and Buthelezi. Mandela is reported to have issued an official statement denying ANC knowledge of this and the new Land Affairs Minister Derek Hanekom was quoted as being shocked at the transfer of 2.8 million hectares of State land to a trust with the King as the sole trustee. Effectively the formation of the Ingonyama Trust meant that the KwaZulu homeland was protected and would persist into the new democratic order.

Presidential Advisory Panel

There was further comment on the report of the Presidential Advisory Panel. Professor Johann Kirsten (Business Day 7 Aug) introduced part one of a series setting out proposals for “fast track land reform incentivised by the state but delivered by the private sector”. Kirsten acknowledged that the report provides key principles and conclusions providing clarity and certainty together with a clear direction for action. However, he notes that certain of the recommendations “are against agricultural economic logic and intuition” including expropriation without compensation and the proposals to set land ceilings.

Mondli Makhanya (City Press 5 Aug) wrote that the Presidential Advisory Panel report could be “a game changer” yet:

Despite this, our politicians are set to spend the next few months in an utterly useless exercise of trying to amend section 25 of the Constitution so that it can recklessly expropriate land without compensation.

Roy Jankielsohn, a DA MPL writing in The Daily Maverick (6 Aug) argued  that “the report is rich in suggestions, but poor in detail” – a view challenged by Prof Balthazaar – a pseudonym  also in the  Daily Maverick (6 Aug) who drew attention to:

The critical recommendation… to pass legislation which will operationalise “equitable access” and provide transversal frameworks for all aspects of land reform; to establish guiding principles for redistribution, restitution and tenure with land administration included as the fourth element of land reform; to set legal criteria for beneficiary selection; land acquisition and the choice of land for redistribution; to set in place measures to ensure transparency and accountability; enable allocation of secure long-term use and benefit rights; to provide for alternative dispute resolution and to establish a Land Rights Protector as an ombudsperson with a broad mandate across all land rights issues.

Balthazaar concluded that “a good start would be a deliberate and meaningful commitment to the implementation of the panel’s recommendations, which may well tilt the balance in favour of the constitutionalists in this country as opposed to the populists and their opportunistic discourse.”

Women’s land rights

National Women’s Day was accompanied by various calls to give female farmers greater access to land and credit. See (Food for Mzansi 6 Aug) for more.

More next week

 

Week 31: 29 July – 4 August 2019

As anticipated much land-related news coverage this week focused on responses to the Presidential Advisory Panel Report which was released at a press conference last Sunday. The final report of the panel noted that:

“The urgency and constitutional imperative of land reform in South Africa can neither be taken lightly nor postponed.”

Presidential Advisory Panel

The report of the expert panel has been met by a wide array of responses ranging from outright condemnation to cautious support. Two of the AgriSA linked panelists have released a minority report with a different set of recommendations. Despite numerous articles alluding to the existence of this report, thus far it has not appeared in the public domain. KB.L requested a copy of the report so that we could undertake a comparative analysis, but to date despite an undertaking to send the report, it has not been received.

Agri SA released a statement saying that it was concerned about several aspects of the report, particularly the recommendations which related to the amendment of the constitution. The executive director of AgriSA Omri Van Zyl  is reported to have stated that:

“If the recommendations contained in this report are implemented to the letter, food security for all South Africans will be compromised (Times LIVE 29 July)

The CEO of the Institute of Race Relations is reported to have condemned the report stating that some of the proposals contained within it amounted to “economic suicide” which would have “implications for the whole economy, as the principles inherent in expropriation without compensation spread to sectors as diverse as healthcare and financial services”. Similar sentiments have been advanced by the Democratic Alliance, AfriForum, the Transvaal Agricultural Union and the Free Market Foundation.

Denene Erasmus writing in the Farmer’s Weekly noted that there are many proposals in the report “that are problematic, or even somewhat out of touch with the economic realities facing South Africa”. However, the CEO of Agbiz Dr John Purchase argued that whatever the shortcomings of the report, it had taken the debate on sustainable land reform forward (Farmer’s Weekly 31 July). This article highlighted the key areas where the panelists had not been able to reach consensus. These included:

• expropriation without compensation,
• a moratorium on evictions of farmworkers and dwellers
• a proposal on a land tax to be paid by farm owners
• proposals relating to how to calculate compensation payable when the state acquired land.

Despite all this negative sentiment locally Public Finance International published an article titled ‘South African land reform panel holds back’ (30 July). This argued that in fact the panel had put forward very limited proposals for expropriation without compensation. The report noted that:

“The recommendation is unlikely to placate the country’s black majority, which is in favour of expropriation because white people – who make up just 9% of the population – still own 72% of farmland”.

Wandile Sihlobo, one of the members of the expert panel writing in the daily Maverick (30 July) argued that fundamental change is essential if agriculture is to help solve the jobs crisis. He drew attention to underutilised land in the former homelands and underperforming land reform farms which need to be brought into full production if job creation in South Africa’s agricultural sector is to materialize.

He notes that:

“The provinces containing former homelands still have tracts of underused land that can be prioritised for agricultural expansion are KwaZulu-Natal, the Eastern Cape and Limpopo. These provinces collectively have between 1.6 million to 1.8 million ha of underused land, according to a 2015 study by the McKinsey global Institute”.

Recommendations by the expert panel that the Ingonyama Trust Act should be extensively amended or repealed, have prompted widespread debate and predictable backlash from King Goodwill Zwelithini and those seeking political alignment with the Zulu monarch.

Theo de Jager of the Africa Agri-Initiative SAAI has stated that:

“SAAI rejects the panel’s demand that the state should take over, dissolve or destroy the Ingonyama Trust (or any other trust). This is an attack on both the cultural identity and the spiritual goods of the Zulu people, and on trusts as legitimate legal entities. Thousands of immovable properties in South Africa are held in trusts, and the panel does not shed light on how such draconian action will be limited to the Ingonyama Trust. There is no reason to expropriate the Zulu’s historic heartland or to grab it from their hands”.

Other commentators took a different view. Kevin Ritchie (IOL 3 August) notes that:

“Somehow the Ingonyama Trust, of which his majesty is both sole trustee and sole appointer of the board and which effectively holds 30% of KZN’s land, never seems to come into the conversation about taxpayer-funded handouts. The trust raked in R96m in the 2015/16 financial year in rents, but its books are a source of enduring despair to the auditor-general – while the royalties it has been collecting from mining companies for a quarter of a century remain resolutely undeclared. It’s a bizarre set-up spawned in the dying days of the apartheid regime, which is defended tooth and nail every time it comes under threat – for obvious reasons”.

Subsequently roposals by the presidential advisory panel on land reform and agriculture to scrap the Ingonyama Trust Board (ITB) have been backed by the chair of parliament’s agriculture and land reform portfolio committee, Mandla Mandela. (Mail and Guardian 1 August). Watch this space…

In the courts

On Friday the Land Claims Court found that the former minister of Rural Development and Land Reform had not complied with the court order to develop a plan for restitution in the long-delayed District Six land claim. District Six claimants are now reported to be more optimistic of finding a solution under the new Minister Thoko Didiza.

In Parliament

In its annual report presented to Parliament for 2018 2019 the land claims commission reported that it has paid more than one, 7 billion land in claims to 37902 beneficiaries and settled claims for 177,623 ha of land (IOL 3 August).

Week 30: 22 – 28 July

The week in review period is slightly extended this week in order to incorporate initial comment on the release of the report by the Presidential Panel on Land Reform and Agriculture on Sunday morning 28 July 2019.

Presidential Advisory Panel

Much of the news this week has focused on anticipating the findings of the presidential review panel. The South African government news service (25 July) reported that the Minister in the Presidency Jackson Mthembu has given cabinet ministers two months to study the report of the expert advisory panel.

In his response to the debate on the state of the nation address President Ramaphosa indicated that one of the key tasks of the new parliament was to finalise constitutional amendments which would specify the process required to expropriate land without compensation. This process would be set out within the Expropriation Bill.

Earlier in the week one of the contributors to the advisory panel report Advocate Tembeka Ngcukaitobi was cited (The Citizen 25 July) criticising the ANC’s lack of urgency with regard to the land issue and the failure to make land a priority in the state of the nation address.

“There are many competing priorities. A lot of people will perhaps say state capture is priority number one but I do not think any of those excuses should be allowed”

Key findings and recommendations of the Advisory panel: First impressions

After a quick scan of the 144-page report KB.L highlights some of the key findings and recommendations. We will provide more in-depth coverage of the report in the week ahead.

Refocusing land reform

The land reform panel supports an overall focus on the poor, but motivates for a strategy that includes both urban and rural vulnerable groups – the landless and semi-landless, farmworkers and dwellers, individual households as well as small-scale and aspiring farmers and entrepreneurs.

The report argues that to date land redistribution has focused mainly on agriculture and has largely ignored urban needs and rapid urbanisation. The panel recommends a renewed focus on urban land reform which includes a focus on the recording of land rights in informal settlements and other urban settings.

“The land reform agenda should deal with the reality that 80% of the South African population is mainly black and currently resides in urban areas peri-urban areas and townships.”

Developing a new White Paper on land reform

The panel report recommends the development of a new White Paper on South African Land Policy which should be completed by 2021. It also supports the HLP recommendation for the formulation of a National Land Reform Framework Bill and endorses the illustrative bill produced by the HLP.

Expropriation without compensation

The report explores ways to amend Section 25 of the Constitution. It recommends an amendment to the constitution by inserting a new section 25(2)(c) which simply reads that:

Parliament must enact legislation determining instances that warrant expropriation without compensation for the purposes of land reform envisaged in section 25(8).

The report cites at some length a legal opinion by Prof du Plessis exploring the relationship between Section 39 of the constitution (which requires that international law must be taken into account in the formulation of the constitution) and its implications for the interpretation of the property clause in section 25. She notes that given that each expropriation enquiry is contextual, it will be difficult to argue for a policy or law that lays down hard and fast rules for the determination of just and equitable compensation. She argues therefore that it will be better to leave the determination of just and equitable compensation to the courts.  The report records that it was in regard to this section and the discussion of willing buyer willing seller that the panel expereinced internal disagreement amongst its members.

Prioritising land administration

The report recommends a new focus on land administration which it argues should constitute the fourth leg of land reform (the other links being restitution, redistribution and tenure reform). It notes that the property rights of 60% of the population remain undocumented, legally insecure and off-register. The report acknowledges that:

Titling has not worked even within urban areas where millions are living RDP houses have yet to receive title

It argues that a key outcome of the land reform programme should be to enable recorded ownership and access rights which provide legal security. The report argues that recording and registering of rights would result in a shift in the current property structure with the potential to bring about spatial transformation. It proposes state support for a process of testing to develop a new integrated land rights administration system which recognises a continuum of rights.

Tenure in communal areas and protection of informal land rights

The section of the panel report which deals with tenure in communal areas and related property rights surfaces different perspectives within the panel concerning the role of traditional leaders, land rights and land administration in communal areas. The report echoes the HLP calling for the drafting of the permanent statutory protection in the form of the Protection of Informal Land rights Act in order to provide procedural safeguards for informal and customary land rights. The panel also endorses recommendations from the HLP with regard to the Ingonyama Trust, stating that the act needs to be reviewed or possibly repealed. The advisory panel report states that:

The Ingonyama Trust Act has perpetuated the existence of the KwaZulu homeland within a unitary state 25 years into the new democratic order

Amendment of the MPRDA: Free, prior and informed consent

The expert panel clarifies that in communal areas customary land rights coexist with mining rights awarded under the MPRDA. The panel argues that mining rights should not be awarded without a consultative process with rightsholders ensuring free, prior and informed consent from people and communities whose land rights are directly affected by mining related land use changes uses.

Farmworkers and dwellers

The report highlights the vulnerability of farmworkers and dwellers and the increasing number of evictions, noting that farm dwellers tenure remains “a poor relation within land reform policy”. The report recognises however that calling for a moratorium on evictions poses constitutional and legal problems. It follows the recommendations of the HLP to  properly enforce Section 4 of ESTA and enable processes by which farmworkers can register to secure access to their own land and obtain security of tenure.

Elite capture and corruption

The report highlights increasing evidence that land redistribution is benefiting elites and highlights concerns that currently there is no monitoring mechanism to prevent this. The report emphasises the need to stamp out corruption in the land reform programme. It highlights various examples of how corruption has tainted the programmes including

• bribery and manipulation of land prices,
• skewed beneficiary selection,
• processes of fronting and the establishment of inequitable joint ventures,
• meddling by government officials and political interference
• the illegitimate and unaccountable transacting of community owned land in the former bantustans.

Under budgeting for land reform

The report notes that despite the political priority accorded to land reform, the budget for land reform has consistently been below 1% of the total national budget, with the exception of two years 2006/2007

Improving land reform implementation support

The report proposes the creation of a new land and agrarian reform implementation agency (LARA) akin to the Housing Development Agency established by the Department of Human Settlements. The panel recommends that this should be responsible for providing transaction advice, economic and technical support to people acquiring land through the land reform programme including restitution.

Financing of land reform

The report has four recommendations to expand financing of the land reform programme. These include:

• the issuing of land reform bonds by the Land Bank
• capital donations
• the consolidation of state land-related budgets
• joint-venture financing models

The panel calls for voluntary financial donations from the financial services industry, mining and manufacturing sectors.

Revitalising commonage

The panel recommends that the municipal commonage program be reinstated and reinvigorated as a means to provide poor households on urban peripheries with access to land for grazing and food security.

Enabling subdivision

The report calls for the president to sign the repeal of the Subdivision of Agricultural Land Act into law. It envisages that this will enable land to be subdivided to create smallholdings for both residential and production purposes.

More next week…

Week 29: 15 – 21 July

In this week’s review of land related news, we have opted for a new framework to try and make clearer sense of key developments in this sphere. We plan to adjust and improve this framework as we go. We have organised the news under a series of headings below, to enable you to navigate to particular sections of interest and to find relevant stories and links faster.

Land related policy

Thoko Didiza, Minister of the newly amalgamated Department of Agriculture, Rural Development and Land Reform, and the Minister of Cooperative Government and Traditional Affairs, Dr Nkosazana Dlamini-Zuma presented their budget vote speeches this week.

The version of Minister Didiza’s Budget Vote speech (DAFF 16 July) made available online was characterised by an unusual proliferation of typographic errors and has met with widely differing responses from commentators. We highlight key aspects from her address below.

The Minister committed herself to dialogue to address the land question:

Addressing the land question and its productive use, will need a meaningful conversation with land owners, be they farmers, companies or trust (sic)

She highlighted a range of ‘legacy issues’ left over by the former minister which needed to be addressed, singling out the stalled restitution claim in District Six. However, the Minister remained silent on the big challenges of how to address the floundering land restitution programme and what to do with the thousands of new claims lodged when former President Zuma reopened the land claims process.

We have taken note of the Lamoosa judgement (sic) and the need for us to clarify how we will deal with the 1998 lodged claims going forward that have not be (sic) finalised till to date.

It seems that the focus of the Ministry remains on the commercialisation of black farmers with no mention of how to enlarge of the smallholder sector in both rural and urban areas. However, the Minister did announce that the department was working with Statistics South Africa to develop a farmer register to try and improve the quality of data available for planning, which is a welcome step. The Minister also undertook to review and strengthen the capacity of the Land Bank and its mandate to finance established and developing farmers. This was picked up in other reports (Business Day 16 July).

Of concern in the Minister’s speech was the section relating to Communal Property Associations. This contained some fundamental misconceptions about the Communal Property Associations Act.

The intention of the Communal Property Act was to create a holding facility for the recepients (sic) of land from government as beneficiaries in particular in groups. The Act provided for the establishment of the trust (sic) who will hold the land asset on behalf of communities. However in a majority of instances, such structures meaning the trusts, do not comply with the requirements of the law. They hardly convene meetings where they report on what is happening about the land either where such is leased to third parties (sic).

Communal Property Associations are land holding entities created in terms of the Communal Property Associations Act. CPAs are intended to be managed by democratically elected and accountable office bearers in terms of their duly adopted constitution. CPAs should not be confused with Trusts which are established in terms of the Trust Property Control Act and operate in a different manner.

In practice, once established CPAs have been left largely unsupported by the Department which lacks the capacity to provide the range of support services which they require. To make matters more complicated, many CPAs have had to establish additional legal entities such as trusts and companies to enable them to do business. It is here that many problems have arisen.

The Minister referred to the need to review systems of land acquisition to ensure that these “are not easily susceptible to corruption”.

The Minister highlighted concerns which had been raised about expenditure on Agri parks, but the budget vote speech appears to mount a defence of this approach, attributing criticism to poor communication of the concept:

The question we need to ask ourselves is whether or not in our implementation we have explained the concept in detail to those it is meant to serve? Have we trained and ensured that those in the Farmed (sic) Production Support Programme Unit (FPSU) are adequately trained to support farmers?

The Minister’s speech made no mention of the failure to pass legislation to secure the land rights of more than 60% of South African citizens which remain off register. The budget vote also did not specifically address the issue of expropriation. However, the Minister alluded to this in public briefing sessions to provide highlights from the budget speech. This resulted in EWN running a story with the perplexing headline “Expropriation of land without expropriation is inevitable”. (EWN 16 July). This reported that it remained up to the national legislature to develop the legislation that would enable expropriation to be implemented (with or without compensation).

In other news stories the minister was quoted as stating that there was a need for lasting solutions to the land question (IOL 17 July), while the official South African government news agency chose to focus on the rapid release of state owned land as a priority (SANews 18 July).

Traditional leaders

COGTA Minister Dr Nkosazana Dlamini-Zuma gave her budget vote speech a couple of days later. (Polity 18 July). Much of this focused on the dismal state of local government. She reported that “there are 40 municipalities which are currently under section 139 administration and many more that are dysfunctional or struggling”.

The COGTA Minister did not allude to the fierce contestation around the bantustan bills simply noting that:

We have tabled… bills in Parliament, namely, the Traditional and Khoisan Leadership Bill, the Traditional Leadership and Governance Framework Amendment Bill … in order to address gaps in legislation in our sector.

She announced her intention to “change the face of rural areas and our municipalities in these areas through agrarian revolution”.

The plan is to utilise the communal land in the hands of traditional leaders and rural communities…Through the programme, traditional leaders will participate at the centre of economic development at district level. They will identify land for cultivation, drive ploughing and harvest programmes and engage in building livestock herds and create markets for the people in rural areas.

Land politics

This week the wider social debate about the land question included stories on a motion in the Dutch Parliament (PoliticsWeb 17 July) condemning the perceived ANC policy direction of expropriating land without compensation. The Zinzi Mandela tweetstorm (Daily Maverick 18 July) also continued to feature.

In the courts

No significant land-related court judgements were captured in our news stream this week.

Land and tenure reform

Ongoing conflict in Mtwalume among members of Mathulini CPA in KwaZulu Natal featured in several stories (EWN 13 July) with an Institute of Race Relations critique of the conflict which it argued was indicative of the “steep price of state failure on land”  (News24 17 July).

Food security

In other coverage it was reported that South Africa has recently seen a resurgence of food gardens and small-scale agriculture. (Daily Maverick 17 July). In an op-ed Naude Malan noted that:

The most recent General Household Survey (StatsSA 2019) indicated that up to 2.2 million households have recently constructed food gardens at their homes in order to avert food insecurity. It is these farmers who hold the key to food system transformation, and our policy and developmental approaches need to meet them halfway if we want to transform our food system.

Water and environment

The collapse of the Department of Water and Sanitation (Daily Maverick 16 July) featured prominently, with Minister Sisulu reporting in a public briefing that “she was still trying to get to grips with the extent of the corruption problem and the amount of money that had been lost in the department”.

“I am still trying to understand the depth of this and to close those holes. But the figures are shocking, and I feel very sorry for the staff who had to sit and explain all this to Treasury, because I don’t think they understand the full extent of this.”

Mining in the communal areas

Two features carried this week contribute to the overwhelming evidence that the rural communities are further impoverished and socially divided by mining activities in former bantustan areas. Llewellyn Leonard  (The Conversation 14 July) reported on research into the role of traditional leaders in mining deals in Fuleni located in Northern KwaZulu-Natal.

I found that there was a lack of transparency on how decisions were made about mining developments within the Fuleni traditional council. And that decisions weren’t in the interest of the community. The support for mining development within the traditional council was due to benefits received from mining development.

I also found that South Africa’s laws weren’t being enforced.

Another article reported on the hijack of mining rights and benefits in Limpopo (News24 19 July) in which Micah Reddy of amaBhungane writes about:

A mine linked to Adriano Mazzotti, the controversial businessman and associate of Julius Malema, has left a rural Limpopo community reeling from infighting and violent protests. The traditional leadership is accused of hijacking the community trust and striking a deal with the mining company. It’s an all too common case of how permissive mining laws, disputes over customary law and the arrival of mining capital can create a toxic mix.

Urban spaces

News for the cities includes  the release by City of Cape Town releases forensic report into land sales to Growthpoint (Moneyweb 17 July) which have been much criticised. Elsewhere in the country there are increasing numbers of reports about violent confrontations between local residents and land invaders, as homeowners in local communities try to resist the proliferation of shacks. Stories include clashes in Lenasia (ENCA 17 July) and in Cato Manor in KwaZulu-Natal.

On the farms

Finally on the farms Suné Payne reports Deputy Minister Mcebisi Skwatsha as stating that the laws regarding farmworkers and evictions will be amended (Daily Maverick 18 July). The article quotes Prof Ruth Hall from PLAAS:

The real problems relate not to the law, but to the failure to enforce it, to defend farm dwellers from evictions, which are proceeding and are often taking place illegally… What is needed is for government to give effect to Section 4 of ESTA which says that the minister must make available funds to enable farm dwellers to upgrade their tenure, including to full ownership, either where they live on-farm, or elsewhere in off-farm settlements. There needs to be an application process to enable people to invoke this right, so that farm dwellers can benefit from land reform.

More next week.

Week 28:  8 – 14 July

 Much of the land news in the past week has focused on analysis of Ministerial budget speeches to determine the direction taken by different departments on land issues. Two speeches featured: 

• The Minister of Human Settlements – Lindiwe Sisulu Human Settlement Budget Vote 
• The Minister of Public Works and Infrastructure – Patricia de Lille Budget Policy Vote 

Minister Sisulu started in self-congratulatory mode noting that “with a few interruptions here and there, some of them unfortunately negative, we have done extremely well in this sector” arguing that South Africa has been through a “golden era of innovation in housing policy”. However, as Dennis Webster has observed (New Frame 13 July) there is “no new dawn for shackdwellers” emerging from this speech. 

Minister Sisulu seeks to take advantage of the clause in the Expropriation Bill relating to abandoned property and aims to extend this definition to include abandoned and hijacked buildings.  This featured in numerous news articles curated in the urban land and expropriation sections of the news on KB.L. Sisulu retains an emphasis of ‘catalytic projects’. Surprisingly, the speech contains a single reference to informal settlements, and here the emphasis is on surveillance and control rather than upgrading. 

The Fourth Industrial Revolution will assist us overcome some of the problems we have. We will for instance embrace this to ensure that through satellite technology we can monitor the growth of informal settlements, invasion of land and also provide us with on-time inspections of our construction sites. 

Despite the silence on informal settlements Webster notes that the Human Settlements department has made available a new grant worth 3 billion to municipalities and provincial housing departments for informal settlement upgrading. So within the department upgrading does reflect a priority – hopefully one that is not overtaken by the Minister’s fondness for ‘catalytic projects’ and a focus on new town construction. 

Despite the upbeat start the Minister concluded her speech with an acknowledgment that: 

We have had serious failures, fraud, corruption. You read about these on a regular basis. We are daily experiencing protests. This is where we need your support to help keep us constantly accountable.  

Public Works and Infrastructure Minister, Patricia De Lille has pledged transparency as a deterrent to corruption. She highlighted the irregular appointment of 11 of the 37 senior management staff and a further 94 staff at lower management levels, providing a window into the capture of the public service through improper staffing.  

De Lille included a section of her speech on land reform, noting that PWI had contributed to the rapid land release programme for land restitution, redistribution and land tenure.  However, despite a long and detailed speech the Minister, who is the only opposition MP in Cabinet, made no mention of making use of well-located state owner land to address spatial inequality – a key focus of her GOOD party manifesto, which seems to be on the back burner for now. 

On the ground in the urban sector IOL (10 July) reported a victory for urban housing activists In a victory for housing activists as the Municipal Planning Tribunal in Goodwood Cape Town  approved an affordable housing component in a Paarden Eiland property development. 

Robyn Park-Ross, researcher at Ndifuna Ukwazi addressed the tribunal arguing that: 

“As one of the most racially segregated and exclusive cities in the world, the City needs to incentivise inclusive growth, especially in well- located areas. Inclusionary housing contributes to the building of a more compact and therefore sustainable city by stimulating density and inclusive development. Importantly, it redresses spatial apartheid by bringing poor and working-class people closer to the opportunities of well-located areas.”  

Former President Motlanthe (News 24 11 July) warned of “anarchy and chaos if property rights were not respected and urged the sixth Parliament to reconsider the High Level Panel report after the fifth Parliament went “on a detour” following the ANC’s elective conference that resolved that the government implement a policy of expropriation without compensation. 

With regard to farm workers’ rights Sowetan Live (9 July) reported on a judgment by the Supreme Court of Appeal consolidating burial rights on farms as guaranteed by the Extension of Security of Tenure Act. 

In KwaZulu-Natal media reports (IOL 8 July) have featured an ogoing and violent conflict between members of the Mtwalume Communal Property Association (CPA) over control of 7500 ha farm reportedly worth 300 million rand. While reports have focused on violent acts and burning of cane fields there has been no analysis of the back story thus far. On Twitter a government official noted that while there is a back story, it could exacerbate the conflict to reveal it now. This conflict prompted the Portfolio Committee on Agriculture, Land Reform and Rural Development to release a press statement condemning “in the strongest terms the criminal acts arising from the recent attack and invasion.” 

Week 27: 1 – 7 July

News this week is largely dominated by urban land issues. In Cape Town evictions and violent protests were reported from Dunoon (News24 29 July).  The City of Cape Town stated that they demolished incomplete and unoccupied structures, (The Citizen 1 July) while Dunoon residents told a different story. City officials have pointed to the prevalence of what they describe as ‘shack farming’ where powerful individuals occupy land and rent out space or structures to people trying to establish a foothold in the city.  Still in Cape Town (IOL 2 July) a dispute over evictions between the city and the Vrygrond Community Forum which went to court was referred back for meaningful engagement and mediation to search for an out-of-court solution. If this fails the matter will be decided through the courts.

The Red Ants, a company widely associated with  carrying out evictions from inner city buildings and informal settlements had their business registration suspended (Times Live 2 July).  Business day (2 July) reported on the launch of a land fund to provide a boost for affordable housing primarily targeting the so-called gap market cash for low to middle-income families qualifying for  a finance linked individual subsidy on a sliding scale based on their income. News24 (3 July) carried further information on the South African Housing and Infrastructure Fund which aims to provide more than 100000 service stands over the next three years to reduce the housing shortfall. The focus on the delivery of serviced sites indicates a shift in approach in which people will be encouraged to build their own houses. 

In KwaZulu-Natal the Cato Manor suburb of Bonela has been hit by land invasions with invaders allegedly occupying existing stands and threatening those who protest, that their houses will be burnt (IOL 1 July). In Pietermaritzburg MK veterans are alleged to have hijacked houses owned by the municipality, including  the takeover of a shelter for abandoned children in the town (News 24 1 July).

An Op Ed (DM 4 July) proposes that land reform needs an increasingly urban focus and that informal settlement upgrading needs to move away from ‘one size fits all’ strategies to adopt processes which are increasingly place based and context specific. Lauren Royston and Tiffany Ebrahim write that:

State agencies have been unwilling to acknowledge the role of informal settlements. They are often reduced to illegal places to live and neglected as a viable approach for people to build a home in the city and secure a livelihood. Informal settlements are often relatively well located in terms of access to economic opportunities, transportation and social facilities. They provide affordable rental accommodation or land for self-built shelter. They are an entry point into an urban environment for urbanising households.

SERI’s research offers insights into an alternative approach to upgrading informal settlements. As a starting point, municipal and provincial interventions should begin by recognising the local norms, practices and agency which already exist in informal settlements. This requires government officials to work closely with residents and local leadership structures to both identify and understand lived realities, existing practices and challenges.

Elsewhere current approaches to reblocking informal settlements continue to meet with resistance in Emandleni (Benoni City Times 4 July)

In an OpEd Jeremy Cronin (politicsweb 4 July) examines why the Chinese can build new megacities from scratch and we can’t (and shouldn’t).

To justify the dream of a brand new South African city, President Ramaphosa in his SONA Chinese moment said “the cities of Johannesburg, Tshwane, Cape Town and eThekwini are running out of space.” This is, strictly, not the case. What is true is that in urban spaces dominated by a private and often highly speculative property market, government’s proclaimed intention to promote integrated, mixed-income, medium-density and well-located urban settlement patterns constantly run out of market-priced, affordable space.

By international standards, South Africa’s towns and cities are actually characterised by extreme urban sprawl. It is true that there are spaces in which there are extraordinarily high levels of population density, like Alexandra bursting at the seams, cheek-by-jowl with a high-rise and underpopulated Sandton. The 3-million plus RDP houses the post-apartheid government has built are mostly located on distant peripheries where the land was cheap. This has simply further entrenched apartheid-era settlement patterns and huge social inequalities.

Cronin adds:

 If there is anything we can learn from the Chinese it is that the former bantustan areas urgently require a major (and belated) land reform programme.

In the rural sphere an important article by Charlie Shackleton (The Conversation 3 July) reviews how smallholder crop farming is on the decline in South Africa and examines why this matters.  

Such a decline in cropping makes rural households, most of whom are poor, more reliant on food purchases, and at the mercy of price hikes. Such food is often of a lower diversity and nutritional quality. Additionally, the decline undermines the household and national food security and self-sufficiency. While this dynamic is not unique to South Africa, it has received little attention in the national debates around land and about agriculture.

On the land reform front an article on the Langkloof Farmers  argues that land reform can work (Food for Mzansi 2 July) while William Gumede writes about on why we need a social pact to secure the farming industry in order to lift market confidence more growth levels and industrial peace (News24 1 July)

Mutually beneficial social pacts between farmers and employees will strengthen rural safety, security and peace. Such social pacts at the farm level will better protect farmers against political “farmers” – politically connected opportunists, gangsters and local strongmen – who have increasingly tried to hijack farms under the guise of “restitution”, “redistribution” and “empowerment”.

The Ingonyama trust has also been in the news in statements by the Kwazulu-Natal Premier Sihle Zikalala (IOL 3 July) while King Goodwill Zwelithini is reported to be inviting women for the first time to attend the annual Zulu imbizo (Heraldlive 3 July). Meanwhile activists continue to protest about the lack of response by the President to their memorandum on the Bantustan Bills.

Finally in the mining sector the courts have frozen fracking activities until these are properly regulated. Carlyn Fritteli (Mondaq 2 July) has written on mining and local communities questioning the extent of the international principle of free, prior and informed consent.

Recent judgments, such as Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and Another and Baleni and Others v Minister of Mineral Resources and Other, have shown how the exploitation of natural resources has the potential to exploit host communities. As such, consent, specifically free, prior and informed consent (“FPIC”) of informal land rights holders, has been elevated in relation to the rights and obligations of mining rights holders.

Week 26: 24 – 30June, 2019

Much of the media focus this past week has been on the responses to State of the Nation Address (SONA). President Ramphosa’s speech came in for much criticism for being big on dreams and short on detail. The silences in the SONA on land were picked up in Parliamentary debate. The EFF continues to argue for nationalisation of the land, warning of a risk of “an unled revolution” if land expropriation does not take place. 

The ANC has countered that expropriation without compensation would only occur “in defined circumstances” and that expropriation was just one of the tools for land reform. Ramaphosa stated that the merger of the Department of Agriculture with the Department of Rural Development and Land Reform would provide:

 “The institutional basis for a comprehensive approach to the economic development of our rural areas”.Through this, we will unlock the potential of the sector by removing constraints in accessing land, finance, markets and water and improving safety in our rural areas. (News24, 26June)

Ramphosa focused again on the identification of suitable public land for human settlements and farming. He also highlighted the need to legally recognise citizen’s rights in land – individual, family and community – a potentially important focus given that the property rights of an estimated 60% of South Africans remain unrecorded. How this is to be addressed remains unclear. However Ramaphosa has stated that the Land Panel report will be made public soon (EWN 27 June) which he said would set out “a far reaching and transformative land reform programme”.

While the politicians debated SONA the media also carries stories about land occupations, evictions and related court proceedings:

In Tembisa (Citizen 28 June) residents of the Vusumzi settlement represented by Abahlali baseMjondolo and the Socio Economic Rights Institute (SERI) have argued the High Court in Johannesburg that an unlawful reblocking process has led to families being displaced and losing their belongings as their dwellings were demolished in a move to replan the settlement. [Reblocking involves site demarcation and reallocation of stands according to a planned grid. This is favoured by planners and is often undertaken as part of informal settlement upgrading initiatives.]

In Woodstock, Cape Town, (IOL 28 June) the residents of Bromwell Rd continue to contest the attempt to evict them by the Woodstock Hub. Residents raise concerns about their impending displacement to the Cape Flats as a consequence of a gentrification process. 

In East London 200 families who are reported to have illegally occupied RDP houses in Vergenoeg township were evicted:

A strong team of private security guards, who included tavern bouncers and professional rugby players overseen by public order police, stormed houses, smashed locked doors and threw out furniture.   (DispatchLIVE 28 June)

The report on the Vergenoeg eviction and occupation struggle also highlights allegations of discrimination against Coloured families in the housing allocation process. A ward sub committee member is reported to have stated  “coloured families were left with no choice but to invade the homes in July last year after only 10 coloured people appeared on the beneficiary list of 572 people”.

On the farms New Frame (25 June) published an in depth report on the long standing strike on Oak Valley farm in Grabouw. The report highlights the conditions in farm hostels which remain poorly regulated and without effective state oversight at national and provincial level. The report also provides insights into social contestation in the nearby township where the strike action had earlier been reported as having a racially polarising effect. CSAAWU, the union organising workers in this dispute has played a prominent role in the Robertson Winery strike. It also secured a recognition agreement at the Two a Day fruit packhouse in November last year following an arbitration process convened by the CCMA..

The much resisted Bantustan Bills also remain in the news as Ramphosa has still yet to respond on how he plans to react to demands that he return these laws to Parliament to be scrapped or fundamentally reviewed. Sindiso Mnisi Weeks (The Conversation 23 June) reviews the recent ARD protests against the Traditional and Khoisan Leadership Bill and the Traditional Courts BIll. She asks the hard question about what is ‘truly traditional’?. She notes how chiefs are fundamentally colonial constructs:

To understand the protesters, it is worth examining how the colonial fictions about traditional leadership and customary law have shaped rural people’s access to rights in South Africa. The historical record , rather than the colonial depiction of it, shows that communities have typically determined how they are led. Customary law is lived and agreed by community members . The historical and archaeological record also shows that communities did not have to have a senior traditional leader.The idea of a ‘chief’ beloved by colonialists, does not reflect the fact that societies in southern Africa were mostly governed by decisions made by groups of people.

The article argues that the creation of chiefs who receive salaries from the state creates fundamental conflicts of interest which have deep historical roots:

The new Traditional and Khoi-San Leadership Billis (are) based on the same hierarchy of leaders and authority as the Traditional Leadership and Governance Framework Act , which it replaces. And that, in turn, is based on colonial and apartheid-era definitions.

The issue of tenure security and the rights of citizens living in former bantustans and under the Ingonyama Trust in KwaZulu-Natal are some of the intractable issues to be faced by Thoko Didiza, Minister of the new amalgamated department, in which several senior management positions remain to be confirmed. 

Week 25: 17 – 25 June, 2019

Farm workers and evictions continue to make the news. Leila Dougan and Sune Payne (Daily Maverick 17 June) highlight the ongoing national policy vacuum with regard to farm worker tenure security, access to housing and evictions. The case of Sophie Maqubela exposes the intergenerational vulnerability of farm workers:

Under the Extension of Security of Tenure Act (ESTA), Maqubela’s parents were legally entitled to stay in the house, but their tenure rights were not transferable after their death and their two daughters face eviction despite growing up on the farm.

“We feel hurt because we don’t want to go; we don’t because our whole lives are here, this is where our children grew up, it doesn’t feel like we should move from here,” says Sophia Maqubela.

In terms of the Constitution a farm worker’s right to housing is a claim against the state, rather than the landowner or employer. This remains one of the central ambiguities with regard to the implementation of the Extension of Security of Tenure Act (ESTA). At the same time the plight of Sophie Maqubela and thousands of other farm dwellers represent an ongoing ‘total system failure’. In 2018 stakeholders participating in the Social Dialogue Platform for Decent Work in Agriculture and the Laborie Initiative made a submission urging an urgent policy review which provides useful background to the current focus on how land reform and housing policy have failed farm workers.

Meanwhile the Land Claims Court (IOL 20 June) dismissed the appeal of the May family, evicted from Windmeul Kelder. In delivering judgment Judge Canca criticised the family and the approach taken in the matter as an attempt to “coerce” the municipality to give them benefits to which they were not entitled.  

An article by Brittany Kesselman (The Conversation 18 June) explores the double burden of hunger and malnutrition in South Africa and provides examples from Brazil and elsewhere illustrating how innovative, integrated food and nutrition policies can address this problem.

Protests over the Bantustan Bills also feature significantly. Sindiso Mnisi Weeks (Daily Maverick 18 June) examines how:

The Traditional Leadership Bill fully revives separate territorial enclaves in which poor, black people are stripped of their citizenship rights and are instead forced to be governed as subjects by imposed authorities that the government names ‘traditional’.

In the social media space the Alliance for Rural Democracy (ARD) has  criticised government for failing to respond to their memorandum calling on the President to return the Bills to Parliament.

In the urban domain, the news continues to feature land occupations and attempted evictions. (TimesLive 17 June) focuses on the unresolved land occupation in Hermanus, while a day earlier (GroundUp 14 June) covered the story of shack demolitions and the burning of people’s possessions which commentators argue constitutes a serious infringement of their rights.

The State of the Nation Address by President Ramaphosa to the joint sitting of parliament and NCOP on Thursday 20th April has received much coverage. However, the President’s pronouncements on land remain vague. The SONA coincided with the 106th anniversary of the passing of the 1913 Land Act which provides the introduction to his address. The ANC seeks to reinstate the NDP as the guiding plan for South African growth and development. This is of some concern, as Chapter 6 of the NDP on the rural economy has been critiqued for its vagueness. But perhaps what is more significant is what was left out of the speech with regard to land reform.

There are no references to:

• Expropriation
• The widespread failure of land reform to date
• The unresolved challenges associated with the Restitution programme and the thousands of unsettled and frozen land claims
• Land rights and mining in communal areas
• Traditional leaders
• The Bantustan Bills and their implications for millions of rural citizens
• Farm evictions
• The collapse in land administration and tenure insecurity.

The main land related undertakings in the SONA are to:

• A clear property rights regime
• Accelerate the provision of well-located housing and land to poor South Africans
• Accelerated land reform in rural and urban areas based on the identification and release of public suitable for smart urban settlements and for farming
• Assessment of the recommendations of the Presidential Advisory Panel on Land Reform
• Allocation of 3,9 billion to the Land Bank to support balck commercial farmers

So for many in the land sector SONA has not provided any real clarity about the difficult choices to be made. More post SONA commentary will be included in our update at the end of the coming week.

(This weekly update corrected and edited for accuracy and clarity 22 June 2019.)

Week 24:  10 – 16 June 2019

This week the Presidential Advisory Panel finally submitted its report on land reform to President Ramaphosa. Previous news stories indicate that members of the panel differed sharply with each other on the content and recommendations contained in the final document which has yet to be publicly released. The report will be tabled in Cabinet before being  released.

One of the panellists Advocate Tembeka Ngcukaitobi made his position clear in an important comment published in the Mail and Guardian on 9th June. He notes that

“ Policy wise, the land space is occupied by two loud currents. On the one hand are empty slogans,posing as left-wing radicalism. On the other is a market-based fundamentalist dogma that refuses to accept the plain truth that the present land dispensation makes no economic sense.

Contrary to popular belief, section 25 of the Constitution does provide a legal basis for the policy interventions necessary for a fundamental shift in land relations in favour of the dispossessed, who remain without land and without property.”

The article highlights how key land reform institutions are not working – the Department, the Commission on Restitution of Land Rights and the Land Claims Court. It examines the fundamental and time consuming obstacles to be overcome to make land reform work for all.

William Gumede has identified twelve steps to successful land reform in a column in Business Day on 11th June. He argues that

“Land reform must fit within a long-term industrialisation strategy, bring new technology, diversify production and expand institutions supporting the agriculture value chain.”

Gumede is also of the view that communal land must also be transferred to individual households arguing that “the communal land system locks the majority of African in poverty”.

On the land rights and mining front attention continues to focus on the Perth based Minerals Commodities Company (MRC) which has launched SLAPP suits against environmental activists and members of communities resisting its bid to obtain rights to mine on communal land without community consent. Civil society organisations have united against alleged corporate censorship and bullying by forming a joint advocacy campaign.

In the urban space the failure to resolve the District Six land claim has appeared regularly in our restitution section during the month of June.

Finally on the State Owned Enterprises front an article in the Citizen reveals how the South African Forestry Company (SAFCOL) has come under the spotlight for irregular expenditure and a failure of corporate governance. There are reportedly 44 registered land claims on SAFCOL land.

Week 23:  3 – 9 June 2019

On the 30th May President Cyril Ramaphosa announced his new cabinet and the appointment of Thoko Didiza as the new Minister to head up the amalgamation of the Departments of Agriculture, Rural Development and Land Reform. Forestry and Fisheries are now the responsibility of the new Minister of Environment Barbara Creecy.

In the run up to the cabinet announcement many stakeholders had been pushing for the amalgamation of the DRDLR with Agriculture. However now this has been put in place Minister Didiza will have to overcome major challenges before she is able to oversee a working Ministry. Many of the senior management in DRDLR are in an acting capacity. There have been major concerns raised about land price collusion, processing of fake land claims and the allocation of land acquired under the programme to cronies. These allegations are alleged  to reach to the highest levels in Government.

The new Minister also has to address the failure of government to ensure security of tenure for vulnerable citizens in the former bantustans, on farms and on land already transferred through the land reform programme. On the 5th June a major protest was organised to Stop the Bantustan Bills . Communities and organisations  associated with the Alliance for Rural Democracy marched on the Union Buildings to hand over a memorandum to the President. Read more here. And then there is the whole expropriation debate which has to be put to bed.

An Op Ed in the Daily Maverick characterised land reform as the greatest challenge facing the sixth Parliament.

In the urban space news has continued to focus on widespread demolitions of informal dwellings. As pressure on land for housing grows the level of confrontation has been rising between informal settlement dwellers, municipalities and landowners. In Stellenbosch the murder of a farmer who had been involved in dispute with people who had occupied his land made international news

It has been a week which has highlighted the mounting pressure to sustainably address the many dimensions of the unresolved land question

Weekly updates resuming soon

We have been busy trying to ensure that the news feed remains up to date which has been a labour intensive undertaking. We will shortly resume providing weekly summaries with hyperlinks to a selection of the main stories breaking during the week.

Week ending 2 November 2018

The Joint Constitutional Review Committee concluded its public hearings into land reform on 26 October (Business Day, 26/10/18).  The Committee discussed the draft report in Parliament, and a statement by Parliament’s press office said there was “overwhelming support in the public hearings for a constitutional amendment”.

However, parties opposed to a constitutional amendment threatened to take the parliamentary process for legal review. It is contended that the Committee has not considered the 630 000+ written submissions made to the Committee. 65% of the written submissions reportedly opposed a change to the Consitution (Moneyweb, 2/11/18). The debate in the committee became quite heated, Committee co-chair Lewis Nzimande  at one stage stating, “Members, you are behaving like children and it is not acceptable”. (News 24, 1/11/18).

Meanwhile, ratings agency S&P noted concerns about land exporpriation as being one of two factors (the other being postponement of fiscal consolidation), that might make it consider lowering SA soverign rating (EWN, 30/10/18).

Week ending 26 October 2018

A new round of Constitutional Review Committee hearings commenced this week, with 13 interest groups due to make representations. (ENCA, 25/10/18)  A motion has been put forward to extend the deadline for the Committee’s report to be tabled until 30 November 2018 (EWN, 25/10/18, EWN, 25/10/18).

Dr Anthea Jeffery of the IRR, writing on Politics Web (25/10/18), questioned how far the Committee has got with the huge volume of submissions received (more than 700,000), and how it will possibly consider all these submissions by end of November. She concluded her article saying the Committee cannot simply shrug off its constitutional obligation to hold a meaningful public participation process in pursuit of “an unrealistic timetable and its own preferences on the EWC issue”.

Finance minister Tito Mboweni made his maiden speech to parliament, a first medium-term budget policy statement. He made no reference to expropriation without compensation in parliament but said that DRDLR / DAFF would transfer ZAR4.4bn to the land bank to support emerging farmers. He also mentioned private sector finance models that would help potential beneficiaries of redistribution gain access to capital. In a briefing prior to the statement, he reportedly said land reform should not reduce farms to forests. (Fin 24, 24/10/18).

A Cabinet statement noted the government is committed to supporting the sustainability of emerging agricultural enterprises, which includes 262 land reform-related projects across all provinces (Cabinet statement, 24/10/18).

Week ending 19 October 2018

A relatively quiet week in land news, which is unusual given the amount of media attention in recent months to the  issue of “expropriation without compensation”. The media’s frequent references to “expropriation without compensation” – some 25 000 times in the last year – saw the phrase being named as SA’s “word of the year” by the Pan South African Language Board this week. (IOL, 16/10/16).

Speaking at a handover of more than 4 000 hectares of land to a community  in northern KZN, president Cyril Ramaphosa stated that land redistribution was an undertaking in restitution, not redistribution. He stated, “We believe these consultations and the work currently being done by the Advisory Panel on Land Reform are destined to yield outcomes that will return people to the land and enable inclusive economic growth and social cohesion in our society”.  He also emphasised the importance of post-settlement support. (PoliticsWeb, 14/10/18)

The Banking Association of South Africa called for a “crisp and clear policy and legislative frameworks” around expropriation without compensation. In a statement BASA warned that prolonged uncertainty would impact on property values, and noted that while land prices had remained broadly stable,  there had been a slow down in the number of farm transactions and capital investment. (IOL, 18/10/18).

COPE president Mosiuoa Lekota speaking at a community meeting in Kliprivier in the Midval urged people to use the ballot box, but also stated that those expropriated must be compensated. He reportedly said cause a war in SA. (EWN, 13/10/18).

Andries du Toit, writing in the Daily Maverick, responded to Thabo Mbeki’s comments and Malusi Gigaba’s reaction thereto (see news, week ending 5 October 2018). Arguing, “Those of us who believe that Constitutionally entrenched democratic rights and equality under law are an essential part of ensuring racial justice in South Africa need to find better economic answers soon”. Du Toit emphatically made the case for land reform for the poor. (Daily Maverick, 18/10/18).

Week ending 12 October 2018

While the national news headlines this week were dominated by the replacement of Nhlanhla Nene as minister of finance with Tito Mboweni, there was some analysis of what Mboweni’s stance on expropriation without compensation might be. Ivo Vegter of the Daily Maverick referred to Mboweni as “the Marxist that wants to nationalise all land”, citing some of the new minister’s tweets, including one saying, “the land in Afrika belongs to all Africans” and another that land should be ceded to the democratic state who should then allocate it to “kings and communities, farmers, Municipalities, etc”. Vegter contends this aligns Mboweni’s views with those of the EFF. (Daily Maverick, 11/10/18) Other columnists chose to highlight Mbownei’s more light hearted posts about land expropriation. (Jenna Etheridge, News24, 9/10/18)

The Joint Constitutional Review Committee (CRC)  stated that parliament is to debate and vote on its report between 26-28 November, and that there will be no more extensions. (Jan Gerber, News24, 11/10/18)

The CRC has a new co-chair: ANC MP Stanford Maila replaced Vincent Smith after the latter was relieved of his position while the parliamentary ethics committee investigates allegations against him. (Emsie Ferreira, IOL, 11/10/18).

King  Goodwill Zwelithini, who controls 2.8m ha of land through the Ingonyama Trust, used his Shaka Day celebration speech as a platform to demand that president Cyril Ramaphosa guarantee that Trust land will not be touched (IOL, 7/10/18). Zwelithini also revealed that he had met lobby group Afriforum to oppose expropriation without compensation, saying it would pose a threat to food security and therefore a risk to the Zulu nation. He stated that a partnership will be formed between the two entities – an announcement  that has been met with some skepticism from commentators (Bongani Has, IOL, 10/10/18; Ra’eesa Pather, Mail & Guardian, 9/10/18; EWN, 09/10/18).

Week ending 5 October 2018

The banking sector has been in land-related news this week as FirstRand chair, Roger Jardine, writing in the group’s annual report, stated that while there was “tremendous upside” should property rights evolve to be more inclusive of South Africa’s real economy, expropriation of private property without compensation was a “ludicrous and dangerous fallacy” (Business Day, 05/10/18; First Rand Annual Integrated Report, 2018).

At a land indaba organised by City Press and Rapport, former South African state president, Kgalema Motlanthe spoke out against changing the constitution, reportedly saying that the ANC should worry less about changing the law and rather spend more time effecting land reform – Motlanthe drew particular attention to giving people title deeds (The Citizen, 03/10/18). At the same event, Adv Tembeka Ngcukaitobi, who is a member of President Ramaphosa’s ten-person land advisory panel, called for owners of large tracts of land to donate parcels of it to black South Africans and for the government to focus on redistribution instead of restitution (Daily Maverick, 4/10/18). Ngcukaitobi also criticised the Department of Rural Development and Land Reform, saying that it should be closed or brought under the supervision of National Treasury (The Citizen, 04/10/18).

Further afield, Namibian president Hage Geingob said that his country should give consideration to expropriating land, because the principle of willing-buyer, willing-seller has not yielded sufficient results (Finance 24, 02/10/18)