OPINION: Amending the property clause risks making poor more vulnerable to dispossession without compensation
A man sitting next to me at a land workshop in Rustenburg last month asked me sadly whether the problems on the platinum belt meant, as some younger delegates alleged, that Mandela had indeed sold black people out during the negotiations leading up to the 1994 transition to democracy. People were sharing their experiences of being evicted by mining companies from land they had owned for generations; of waiting over twenty years for land restitution with no hope in sight; of government officials blocking their claims and stealing their land.
Our connection goes back to the 1980s when I was a field worker for the Black Sash and he was one of the Mogopa leaders who resisted forced removal from their land near Ventersdorp. He and others were ultimately removed at gun- point on the 14th February 1984. Large brick houses were bulldozed as their owners were carted off in Government Garage trucks. They are now struggling to hold diamond mines to account on the land that was restored to them in 1994.
President Cyril Ramophosa’s recent announcement that the ANC would spearhead the amendment of section 25 of the Constitution to enable land redistribution appeared to confirm my friend’s dread that Mandela, and the ANC, had indeed betrayed black South Africans by agreeing to the property clause in the first place.
I doubt this is what Ramaphosa intended to convey. It appears that the levels of pain and despair expressed at the public hearings conducted by the Constitutional Review Committee precipitated the statement. The ANC was publically humiliated in the hearings, which played directly into the hands of opposition parties, particularly the EFF, but also the DA.
In many hearings, no context was provided about what section 25 of the Constitution actually says and means. The nature and scope of the possible amendments was not discussed. But in a departure from past practice, every speaker had to say upfront whether they were for or against its amendment. Black people who spoke against amending the Constitution were booed. People who had burning things to say about what has gone wrong with land reform, and how this should be fixed, had to prefix their remarks by agreeing that the Constitution must be amended.
This binary approach handed the hearings to the EFF and the DA on a plate. The EFF claimed that it was championing ‘radical change’, while the DA championed ‘property rights for all’. As the party in power, the ANC was left with egg on its face as people’s terrible experiences with failed, and in many areas non-existent land reform poured out. The ANC chairs struggled to control the hearings. Julius Malema stepped in to control the crowd in early hearings, but after a while he sat back and let Vincent Smith be seen to struggle and fail to assert his authority in some hearings.
Parliamentary public hearings are not meant to be party political theatre. Our research centre at UCT has monitored hundreds of public hearings and never before seen Members of Parliament use them to lobby voters in this way. Ordinarily, MPs sit and listen rather than rile the crowd. When organisers failed to provide food for people who had traveled long hours to get to the venues, the EFF and DA filled the breach by dispensing food and party regalia from their own colour-coded stalls.
Ramaphosa confirmed the intensely party political nature of these hearings by making his pre-emptive announcement of the ANC’s decision to support amendment without waiting for the Constitutional Review Committee to report to Parliament. This kind of damage control by the ANC will only dig it deeper into the trap that the EFF has sprung for it. It will need EFF support to reach the two-thirds majority necessary to amend the Constitution. If the EFF continues to set the agenda, as it has done so far, the next issue will be state ownership of all expropriated land.
State ownership is the system that the National Party put in place for the homelands it created. It enabled dispossession during apartheid, which is continuing for the poorest of the poor under the leadership of the ANC government. Under laws adopted since 1994, licenses to mine in former homelands supersede the customary ownership rights that people have inherited over generations to their homes, their fields, their grazing land, and the graves of their ancestors. The land rights of rural people are simply confiscated by the holders of the mining license.
Because customary rights are not recognised as property rights and the Department of Mineral Resources routinely ignores the requirements of the Interim Protection of Informal Land Rights Act of 1996 (IPILRA), they are not even expropriated. IPILRA requires that people with informal rights to land must consent to any decision affecting those rights. If they refuse, those rights must be expropriated with, for now, at least, the payment of compensation.
The dispossession underway today is made possible by the interplay between the Mineral and Petroleum Resources Development Act of 2002 and the Traditional Leadership and Governance Framework Act of 2003 (TLGFA). In combination, these laws deny the property rights vesting in ordinary black South Africans in favour of mining licenses issued by a state that nationalized mineral rights through the MPRDA.
Poor black people living in the former homelands are being routinely stripped of the residual assets they managed to salvage from colonialism and apartheid. This is more far-reaching than expropriation without compensation because it is premised on the denial of the ownership of land they have inherited over generations. What is denied is not worthy of expropriation and compensation.
What have sectorial interest groups who propound their belief in property rights and the free market economy such as Business Leadership South Africa, the Minerals Council, and the ever-strident Institute of Race Relations had to say about this ongoing dispossession of the property rights of the poorest and most vulnerable South Africans.
In order to buy influence with senior ANC leaders and their allies, it was worth it for mining companies to cut prominent figures into the mining industry through the 26% black ownership share required in terms of the MPRDA. White mining capital decided it could live with the MPRDA and the Mining charter if that was the key concession that the new government demanded of them. They even let the Department of Minerals and Energy dictate who their black economic empowerment partners would be in many instances.
By 2000, the mining boom had shifted from the depleted gold reserves of the Witwatersrand to the extraordinarily rich platinum deposits in the former homelands of Bophuthatswana and Lebowa – now the provinces of North West and Limpopo, where land and citizenship rights are circumvented by the way in which the TLGFA has been interpreted and used by government. This law superimposes contested tribal boundaries and identities created under apartheid on all the people living within the former homelands.
While the MPRDA cuts black capitalists into mining, the TLGFA undercuts the property rights of rural people to their platinum-rich land and consigns them to the status of tribal subjects, bound by the decisions of traditional leaders with unaccountable powers.
Concerted opposition did stop two laws that would have compounded this marginalization. The Communal Land Rights Act of 2004 was struck down by the Constitutional Court in 2010, and the Traditional Courts Bill of 2008 could not muster the required support of the majority of provinces in Parliament. But versions of both are back before Parliament with every indication that the government wants them passed before the 2019 election. And in the meanwhile, the government has continued to treat traditional leaders as though they do have the sole authority those laws would have given them to sign mining deals binding the land rights of rural people without consulting them or obtaining their consent.
The government has conceded, however, that many of these mining deals are legally precarious because the laws that would have given traditional leaders such powers have not survived.
To head off any potential challenge and to provide a veneer of legality to mining agreements signed without consultation, consent or compensation, the ruling party is attempting to rush various bills through Parliament. The motivation for a proposed amendment to the TLGFA includes the concession that decisions of existing Traditional Councils may be legally vulnerable, but the proposed Traditional and Khoi-San Leadership Bill (TKLB), which would replace the TLGFA, goes much further. It is justified as providing recognition to Khoi-San traditional leaders for the first time, but hidden in its voluminous 99 pages is clause 24, which would explicitly authorize traditional leaders to sign deals with third parties binding the land rights of all those within their apartheid-era boundaries, without their consent.
The clause is necessary only because while this has been happening at scale, there has been no legal authority underpinning it. All that the TKLB can do is buy time for these precarious deals, because it too will be struck down in time as abrogating the property rights and tenure security promised by section 25 of the Constitution. That is, if section 25 survives the ruling party’s promise to amend the Constitution.
I told my friend from Mogopa that I didn’t think it was Nelson Mandela who betrayed people living in former homelands. It was those ANC leaders who put the MPRDA and TLGFA in place, and have grown staggeringly rich from mining deals at the expense of the impoverishment and property rights of the rural people whose homes and rural livelihoods are being destroyed in the process. If the ANC cared about them, it would stop the TKLB, not amend the property clause.
This article first appeared in Mail & Guardian on 8 August 2018.
Aninka Claassens is director of the Land and Accountability Research Centre in the Department of Public Law at UCT