ANC’s next steps on land reform


By Carl Niehaus


On the 18th and the 19th of May 2018 I was a participant in The African National Congress’s national workshop on Land Reform that was held at the Birchwood Conference Centre in Boksburg. The workshop was informed by the Resolution of the 54th National Conference of the ANC on Land Reform, to the effect that land expropriation has to be speeded up significantly, and identified the expropriation of land without compensation as a key mechanism in order to achieve this objective.


This Resolution formed the basis for the purpose of the Land Workshop, and as such the Workshop was not intended to re-open the debate about the appropriateness of land expropriation without compensation, but simply to be part of the process of implementation of the Resolution. As the highest decision making body of the African National Congress (ANC) the 54th National Conference of the ANC had adopted the said Resolution, that adoption of this Resolution is final, and is it therefore no longer open for debate. Therefore the intention of the Land Workshop was limited to bringing the Alliance Partners of the ANC together with various stake holders, progressive Non-Governmental Organisations (NGO’s), research organisations and academics, in order to engage with them about the modalities and time frames for the implementation of the Resolution on Land Reform. What follows are my observations about what transpired at the workshop, and how these outcomes should impact on the roadmap for the implementation of the 54th Conference’s Resolution on Land Reform.


In having convened this workshop the African National Congress acted true to its ages long tradition as the Leader of Society in engaging with, and bringing along all progressive forces within the South African community, in order to advance the National Democratic Revolution (NDR) and to address the needs of our people. This is a process very similar to what the ANC followed during the broad consultative process in 1956 that lead to the Conference of the People at Kliptown, and the adoption of the Freedom Charter.


The correctness of this approach – based on and informed by the binding decisions that our branch delegates took at the 54th National Conference – was confirmed by the extraordinary depth and quality of the discussions that took place both in the plenary and commission sessions. This was to a large extend due to the broad diversity and depth of experience and expertise of the participants in the Workshop.


As far as the broad and representative participation of interested parties and stake holders were concerned, the absence of the Contralesa, the House of Traditional Leaders and traditional leaders in general at the Workshop was unfortunate, and it is good that the ANC agreed that it will, as a matter of priority, meet with them in acknowledgement of the important stake holders and role players that they are with regards to land ownership and land reform.


The Workshop also served as an important gathering where information about ongoing work about Land and Agrarian Reform by various organisations and commissions was shared. As such a former President of the Republic, comrade Kgalema Motlanthe, was invited as Chairperson of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, to do a presentation on the findings of the High Level Panel with specific reference to the Panel’s findings concerning the slow progress made with regards to the implementation of Land Reform.


It must be emphasized that the presentation made by comrade Motlanthe was for information purposes only. This was true not only for his presentation, but also with regards to presentations that were made to the Commissions of the Workshop by various individual experts, organisations and NGO’s about the work and research that they are engaged in. It did not fall within the ambit of the scope of the Workshop to treat these presentations as anything more than the presentation of information, and the Workshop by its very nature never had any intention – nor any powers – to endorse or reject any of the research findings and/or recommendations contained in these presentations. I think it is important to clarify this because there was mischievous reporting by some media to the contrary. It must, however, be stated that these presentations were greatly appreciated by all of us as participants in the Workshop, and contributed to the quality of our deliberations.


The cornerstone of all the deliberations at the Land Workshop was the understanding that from its founding days, the ANC was committed to the struggle for the return of the land of Africans taken through colonialism, and that the Land Question was and remains a key pillar of our national democratic struggle. The ANC 54th National Conference Resolution on Land Redistribution was discussed in the context of this important historical understanding, and this informed the extensive debate about whether Section 25 of the Constitution needs to be amended to give effect to the principle of expropriation without compensation, or whether this can be achieved by passing the Expropriation Bill and Land Redistribution Bill.


The commission that dealt with this important issue recommended a multi-pronged approach that should be based on the following steps:


  • Immediately use Section 25 of the Constitution to press ahead with expropriation of land where it can be done in order to test the argument that the Constitution does permit expropriation without compensation in certain circumstances.


  • Immediately pass the Expropriation Bill and the Land Redistribution Bill in order to bring greater clarity to the transformative intent and impact of the Constitution.


  • Ensure that the Constitutional Review process is used to avoid ambiguity and to bring greater clarity to Section 25(2)(b) of the Constitution, if it is found that the current legal formulations (including the Constitution and any other law) impede or slow down effective land redistribution, in order to ensure the full realization of the principle of expropriation without compensation, as resolved at the 54th National Conference.


Thus, a two phase strategy running simultaneously, to give expression to the implementation of land expropriation without compensation emerged from the Workshop:


Firstly, the urgency to proceed without delay with the return of the land to the people as its rightful owners was given expression to by the emphasis on the immediate passing of the Expropriation Bill and the Land Redistribution Bill, as well as the immediate using and testing of Section 25 of the Constitution to expropriate land without compensation, and to test whether the comprehensive intention of the 54th Conference’s Resolution on Land Reform can be accommodated within it’s current provisions.


Secondly, a clear, unambiguous, commitment emerged from the Workshop that if the current provisions of Section 25 prove to be an impediment to the letter and spirit of the Land Reform Resolution, that land expropriation without compensation must be a key  mechanism to achieve its objectives, then Section 25 will with urgency have to be amended in order to remove any such impediments.


The urgency for immediate action that informed all the deliberations at the Workshop is informed by the following immediate steps that emerged from our deliberations, and must be taken in the next 12 months, while the Constitutional process is under way:


  • All municipalities, provincial premiers and various provincial departments, and at least seven national ministers already have expropriating powers in terms of various legislation. The state should therefore not await the various Constitutional Review and legislative processes to actively demonstrate the political will to use existing powers, including those of expropriation, to drive land reform in both the urban and rural sectors. We must actively demonstrate in the immediate, to the land hungry, the homeless, and those with tenure insecurity, that we are serious about driving transformation.  


  • The draft Expropriation Bill must be amended to include the principle of expropriation without compensation and clearly define the circumstances where this would be appropriate. The President should be encouraged to explore the option of referring the Expropriation Bill, as duly amended, to the Constitutional Court to test the principle of expropriation without compensation.


  • Institutional reforms: The Land Claims Commission; the Land Claims Court; and the Department of Rural Development and Land Affairs must be strengthened by the provision of necessary resources, and where necessary legislative changes should be prioritized.


  • National legislation to give effect to land redistribution, as provided for in section 25(5) of the Constitution, will be prepared and introduced to the National Assembly. In this regard, state owned, privately owned, commercial farm land, and urban land will be given priority for purposes of redistribution. Expropriation of land without compensation will be one of the critical measures to enable the state to achieve the acquisition of land.


  • Government policy should change to align it with the Constitution in regard to prices paid for land acquired in terms of section 25(2)(a) in the public interest. It is noted that the policy of “willing seller, willing buyer” is not provided for in the Constitution. The government policy on land acquisition should reflect the constitutional injunction of “just and equitable” compensation in practice and principle.


  • The current Expropriation Bill before Parliament should be amended to state the power of the state to expropriate land in the public interest, for land redistribution to include the principle of expropriation without compensation in the public interest.


  • Parliament should initiate a process to amend all laws which provide for expropriation and redistribution of land to align with the framework legislation on expropriations, which would include the principle of expropriation without compensation.  


  • Any expropriation of land should take into consideration the precarious nature of land tenure rights held by Africans. Expropriation of land should not result in further dispossession of land held by Africans, and their impoverishment. Expropriation of land should strengthen rights of Africans over land and contribute to the alleviation of poverty and contribute to the economy.


  • Both the expropriation bill and the redistribution act must be finalized before the end of the current Parliamentary term.


  • Research should be conducted on the necessity of introducing a land tax or levy, and a report should be delivered within 6 months.  


  • Research should be conducted on the necessity of a land use map a South Africa Map and a proactive approach for claimants. The map can be used to identify beneficiaries based on available historical material instead of waiting for claimants.


  • Expedite the spatial and land use management act that will guide all land use and transform the apartheid spatial patterns.


The Workshop emphasized the importance for the ANC to take the lead in forging unity in order to effectively implement these steps on the road to the full and speedy implementation of the Land Reform Resolution of the 54th National Conference. Land reform should improve the economic performance of the country; strengthen rights of people affected; improve investor confidence in the economy of South Africa; and contribute to national cohesion and unity of South Africa.


In this regard the closing remarks to the Workshop, by President Cyril Ramaphosa, was of great importance, when he reminded the participants that the very raison d’être for the formation, and continuing existence of the African National Congress, was to address the Land Question, and to return the land to the people as the rightful owners.


The Land Reform Resolution of the 54th National Conference provides the ANC with a unique historical opportunity to finally achieve that goal, and to make true on the covenant that it made at its formation with our people in 1912, and reiterated again in 1956 with the adoption of the Freedom Charter.


*Carl Niehaus is an NEC Member of the Umkhonto we Size Military Veterans Association (MKMVA) and National Spokesperson for MKMVA