How far have we progressed on land reform?
The legislature
In February, Parliament decided to give its Constitutional Review Committee the task of reviewing Section 25 of the Constitution, and other clauses where necessary, to make it possible for the state to expropriate land in the public interest without compensation. The Committee was required to report by the end of August. It missed that deadline and was given an extension of a month. At its most recent meeting on 20 September, the Chairman reported that he had written to the Speaker requesting a further extension, the length of which was not specified.
The conundrum facing the Committee at present is how to adequately consider the large number of submissions it has received from the public. No-one knows the exact number. Several hundred thousand is the best estimate. The submissions are in two formats: paper copies and electronic files, and some submission are in both formats. Every member of the Committee should have access to all the submissions, preferably in an organised and manageable form. The best solution would be the construction of an electronic archive, but this would require the scanning of all documents, a major task which has not yet started.
And what would members do with an electronic archive once assembled? To adapt a calculation from a COPE member of the Committee, suppose that each document could be considered within the span of a single minute, and suppose, conservatively, that there are 400 000 documents. Then it would take the Committee over two years to work through the archive, even if they worked a 60 hour week every week of the year.
The intention was to use a service provider to assist the Committee by doing a content analysis of the submissions. Until the 20 September meeting, the identity of the service provider was a closely guarded secret. Then, a pair of inexperienced and hapless youngsters turned up to make a presentation. They introduced themselves by their first names only and initially made no mention of either who the service provider was, or of their positions in it. Their report had been circulated the previous evening, and they had a power point presentation. They ran into trouble immediately because the projector wasn’t working, and then attempted to jump from their report to their slides, confusing everyone. Members of the Committee were indignant that the presenters had not introduced themselves or their organisation properly, and it emerged that they were from a company called Isilumko, though no further information about it was supplied.
Isilumko is not a household name, so the more technological savvy members of the Committee opened up Google, and found a company which is a staffing solutions company or, as the EFF put it more bluntly, a labour broker. At one level, it is the ideal contractor to the state, being 67% black owned, 44% black women owned and a level 1 BEE company. But if this company is in fact the service provider, its fitness for the task is at least not obvious. After a great deal of wrangling, including complaints about the performance of the parliamentary administration in deciding upon the service provider, and a break during which a deal was negotiated, the Committee decided not to table the report or hear anything more about it, wished the youngsters the best for the rest of their lives, and sent them home. So much for them, though one doubts that the owners of Isilumko, who wisely did not themselves appear, will be the poorer as a result. The chairman then announced that the parliamentary administration should take charge of the process, and a representative from it is likely to be asked to appear before the Committee at a future meeting.
The Committee next dealt with the issue of whether there should be further verbal presentations to it by members of the public. Not everyone who asked to present during the hearings from 4 to 7 September were invited to do so, and some of those who were not invited are pushing hard to be heard. There is a list of about 120 people or organizations who initially hoped to present, of which 44 presented in early September. It soon emerged that the list was not complete. Opinions ranged from those who wanted no further hearings to those who want to hear ‘organizations with a constituency’ rather than isolated individuals. The latter view prevailed in a rather messy way, with no serious consideration of whether weeding out criteria could be defined in a legitimate way, or how to deal with omissions from the list. More trouble lies ahead for this issue.
The most successful part of the meeting was a verbal presentation of an unpublished draft report on the provincial consultations. The presentation was well done, though the drafter will have to cope with pressures from the various parties in the Committee to include public expressions of support for their positions.
The next meeting of the Committee is scheduled for some time in the first week of October. One can hardly wait.
The Executive
Following Parliament’s February decision, the reasonable expectation was that the Constitutional Review Committee would complete its work and submit its report, after which a parliamentary debate would follow. Then the government would decide what, if any, action it should take, and introduce appropriate legislation.
So it came as a surprise that the President announced, on 31 July, that the ANC had decided to change the Constitution to expropriate land without compensation. He added that the ANC would, through the parliamentary process, finalise a proposed amendment to the Constitution that outlines more clearly the conditions under which expropriation of land without compensation can take place.
On 20 September, he announced a further initiative, in the form of a ten person advisory committee to the Inter-Ministerial Committee on Land Reform chaired by the Deputy President. It has not been announced how long the Inter-Ministerial Committee has existed, nor when the panel will be first convened, nor when it will have completed its task.
Moreover the announcement of an economic recovery programme by the President on 20 September stated that agriculture has massive potential for job creation immediately and in the long term. Envisaged are support for black commercial farmers, and the direction of funding towards labour intensive crops for export. Land tenure for black commercial farmers who are beneficiaries of land reform is a controversial issue within the ANC, the positions ranging from freehold to tenancy at the will of the state. The compromise offered is a system of thirty year leases, presented as sufficient for farmers to mobilise funds for agricultural development. The issues of what, where, how and who in relation to labour-intensive export crops are not addressed at all. Set against all of this is the fact that rural areas are depopulating and that back to the land policies usually do not work without coercion.
Implications
These developments raise three issues.
Firstly, constitutional amendment is neither a necessary nor sufficient condition for land reform. What is needed is work one step down: identification of priorities, detailed policy development, and decisions about resource allocation. These will have legislative implications down the line, but in the first instance, these should be the concern of the Inter-Ministerial Committee.
Secondly, the nature of the relationship between the executive and legislature is at stake. Parliamentary and presidential systems are two ideal types, and there are points between, one of which South Africa occupies. Having the executive and legislature proceeding along separate, and not necessarily convergent tracks, either in content or in timing, pushes the system towards the presidential pole. What happens if the Constitutional Review Committee gets stuck? What happens if parts of the parliamentary process in respect of land reform are legally interdicted?
Thirdly, there are political questions. Is the President’s initiative designed to speed up land reform, or slow it down? And will its outcome be as intended? What are the chances of avoiding policy paralysis? At present, it seems that the probability is dropping that a constitutional amendment will be passed by the Fifth Parliament. If it is not passed, land reform will become a major, perhaps central, issue in the coming election. The ANC will fear the EFF more than the DA, a fear magnified by factionalism within the ANC itself. The problems facing the President are akin to those that have faced the Papacy down the centuries: managing the conflicts within, while contending with the heretics outside. The balance between inaction[1], accommodation and repression has to be adjusted as circumstances change. Not all the land cards are on the table yet, so there remain surprises to come.
Charles Simkins
Head of Research
charles@hsf.org.za
[1] The cause of Isabella of Castile remains before the Congregation of the Causes of the Saints five hundred years after her death. One sees the problem: on the one hand, she was a ruthless ruler who authorised the Inquisition and presided over the expulsion of both the Jews and the Moors, on the other, Spain is a bastion of Catholicism. The required miracle has not yet been discovered.
