Rural Development and Land Reform Minister Gugile Nkwinti.  Picture: TREVOR SAMSON
Rural Development and Land Reform Minister Gugile Nkwinti. Picture: TREVOR SAMSON

BY THE government’s own admission, 50%-90% of land-reform projects have failed, yet the state now plans to embark on an open-ended process of land restitution in which earlier cut-off dates will be jettisoned, opening the way to thousands more claims. This is to be done under the Restitution of Land Rights Amendment Bill, which was gazetted on May 23 for public comment within 30 days.

The bill is brief, for its key change is to extend the deadline for lodging land restitution claims from December 1998 to December 2018 to assist those who did not know about the existing restitution process or found the 1998 deadline too tight; people dispossessed of land under “betterment schemes” in the former homelands; and those who lost their land before June 19 1913, the cut-off date in the bill of rights (for whose benefit a constitutional amendment will also be required).

Restitution involves the return of land to black people who were dispossessed of it after 1913 under the Land Acts, the Group Areas Acts and other racial laws. Since 1994, this leg of land reform has been widely seen as necessary to redress a deep historical injustice and has been broadly endorsed.

However, the restitution policy also assumes a widespread hunger for land to farm, which the government has repeatedly asserted but done little to substantiate. The bill is also premised on a huge unmet demand for the return of farming land, its explanatory memorandum emphasising that only about 80,000 claims have been lodged, while 3.5-million people (more accurately, about 2-million) were forcibly evicted from their land or otherwise shifted to the homelands in the apartheid era; and about 4-million people lost land under “betterment” schemes.

Betterment was largely a National Party policy, which aimed at halting soil erosion, rehabilitating land and improving crop yields in the homelands. This was done mainly by culling cattle and dividing communal land into residential, arable and grazing zones. Often the result was to reduce the plots allotted to households to one or two morgen, leaving families with too little land to sustain themselves through subsistence farming. Many households were left landless altogether. Land deprivation added greatly to suffering in the overcrowded homelands and provoked significant resistance.

Under earlier land-reform policy, victims of betterment were to be helped via land redistribution rather than restitution. This made sense, as restitution would have involved the taking of land from other former homeland residents who had probably experienced great hardship. How the wrongs of betterment are now to be rectified via restitution is not explained in the bill.

The bill might be short, but it has major economic ramifications — in part because problems in the existing restitution process have been legion.

Some of the claims lodged have lacked a historical foundation, while at times the same parcel of land has been claimed by more than one community, making verification difficult. State officials have also inflated claims, most notably in Magoebaskloof, in Limpopo, where six claims lodged by local communities have since spiralled to more than 600 as gazetted by officials.

Once land is under claim, farmers have less incentive to make major investments in their farms. In addition, the processing of claims has often been dogged by gross administrative inefficiency. Writes journalist Stephan Hofstatter: “A community leader who had to wait eight years for a reply to a fax sums it up for me.”

The process has been costly, too. Since 1994, according to the Presidency, about R23bn has been spent on land restitution, of which about R13bn has gone on transferring about 2.8-million hectares of land to 1.6-million black South Africans, R6bn on cash compensation and R4.2bn on post-settlement grants. Between 50% and 90% of land restitution projects have nevertheless failed — previously productive farms no longer generating any marketable surplus. In the past three years, the government has thus spent another R2.14bn on recapitalising dysfunctional farms. By December last year, restored farms had reportedly generated a net income of R126m — hardly a substantial return on the state’s investment.

The government has long assumed a major land hunger among South Africans, which restitution is supposed to help fulfil. However, in April, Rural Development and Land Reform Minister Gugile Nkwinti finally acknowledged that few claimants wanted land, for 93% (about 71,000 out of 76,000) had opted for financial compensation instead. Said Nkwinti: “We thought everybody, when they got a chance to get land, they would jump for it. Now, only 5,856 have opted for land restoration.” People wanted money because of poverty and unemployment, but they had also become urbanised and “deculturised” in terms of tilling land. “We no longer have a peasantry; we have wage earners now.”

Despite this admission, Nkwinti is now intent on reopening the restitution process.

According to Theo de Jager, the vice-president of Agri SA, which is the national voice of commercial agriculture, part of the reason is that would-be claimants have realised that claims are no longer being adequately verified. In the past, says De Jager, when people anticipated proper investigation, they hesitated to put in bogus claims. But now that probes are no longer rigorous, lodging land claims has become “a free-for-all, in which the only criterion is a claim form”.

The result, he says, is that Nkwinti’s department had substantially more outstanding claims before it last year than the number it reported in 2009 or received before the 1998 cut-off date.

It also cannot account for this anomaly (although reopening the claims process would in time help provide an explanation).

The lodging of thousands of new claims under the bill could see more farms falling out of productive use.

It could also stir up a hornet’s nest as existing restitution beneficiaries find the land that was restored to them under fresh claim from newcomers.

In addition, it will increase the administrative burden on the state, making it harder still to clear the existing backlog of unresolved claims.

The main risk, however, is that Nkwinti will use the bill to implement his earlier warnings of large-scale farm expropriations at less than market value. Once land is under claim, other bills now also in the pipeline (such as the Expropriation and Property Valuation Bills) will make it easy for the state to expropriate the land in question at less than market value and without reference to additional loss suffered.

In fact, the compensation payable will primarily be decided by a state official — the new “valuer-general”.

Such expropriations will set a damaging precedent for other sectors of the economy, further undermine property rights and help to bring about the incremental nationalisation of land. Land reform in Zimbabwe — which Nkwinti was recently at pains to praise — has left virtually all land in the hands of the government, which leases it to people on a “use it or lose it” basis. This has given President Robert Mugabe’s administration a powerful instrument of political control. South Africa’s ruling party may also want the same for itself as its already declining electoral support withers further in the future.

Jeffery is head of special research at the South African Institute of Race Relations.