OPENING ADDRESS BY THE MINISTER OF LAND AFFAIRS DEREK HANEKOM MP
NATIONAL CONFERENCE ON LAND POLICY 31 August 1995
Issued by: Department of Land Affairs
It is a great pleasure for me to welcome you to this conference.
This conference is part of a process of intensive research, consultation and debate about a new land policy for our country. It flows directly from the work of a number of expert groups which I appointed to advise me on the key issues around land policy and land reform. The expert groups produced a document which I released for comment. I referred the comments to them, and they then produced further proposals. Those proposals form the basis of the document which you all have, and which I hope you have read.
This is not a policy-making conference. It is a consultative conference. I am here to listen to the views of participants, who represent all the key role-players in this area. After the confe- rence we will publish a Green Paper, taking into account what we have heard here. There will then be a brief further period for comment, after which we will produce a White Paper which will be submitted to Parliament early next year.
It is sometimes said that the style which government has adopted, of consulting widely before making major policy, slows down the policy-making process. That is of course true. But we have adopted this style quite consciously, aware of its difficulties. It is the way to give effect to our new culture of democracy. The days are over when policy is formulated behind closed doors, and simply imposed on the people. I have no doubt that the policy which emerges will be better and richer because of the way in which it has been produced. That is one of the practical benefits of democracy.
Because of the nature of this meeting, it would not be right for me to attempt here to lay down the detail of future land policy. That would defeat the purpose of the conference. As I have said, I am here to listen and learn, not to lay down the answers. Ultimate- ly, of course, I have to take responsibility for formulating policy on behalf of the government, and placing that before Parliament.
The context
It would be wrong and misleading, however, to suggest that we are now formulating policy on a blank slate. We start from two basic realities: the legacy which we have inherited from apartheid, and the policy premises of the new government. I want to say something about both of those.
We have inherited a shameful legacy. We live in a large country which is rich in resources - but very many of our people are home- less or landless, and have no access to a fair share of those resources. Inequality in our country has actually increased as a result of government policies and practices. Those policies and practices dispossessed and disempowered South Africans. The result is a country in which, according to social scientists, the extent of social inequality is greater than in any other country in the world for which it has been measured. It is as stark as that. It is simply a disgrace.
No-one should be in any doubt that we are determined to address this issue, and that we WILL do so. Those who have come to this conference hoping that nothing will change, are wasting their time. Of course, today very few people say out loud that things must stay the same. We hear repeatedly and from all sorts of people that we have to address the consequences of our past. But talk is cheap. The real test is whether IN PRACTICE people are willing to face the need for change, and to work for it.
One of the things that will make it possible for ours to be a successful nation is that so many people, even some of those who created or supported the old system, are willing to work sincerely and wholeheartedly for change. I respect all of those who have been able to embrace the need for a new South Africa, whatever their past. I must say I have little patience and even less time for those who mouth the need for change, but oppose any attempt to bring about change in practice. There are few things which are more offensive than the spectacle of those who brought about the current disgraceful situation complaining that we are trying to change it.
All change is uncomfortable, and can lead to conflict. But that discomfort is nothing compared with the discomfort which the majo- rity of our people have already experienced, and still experience, as a result of past policies. And the conflict which may be produced by change is nothing compared with the conflict all South Africans will suffer if things don't change, and in fundamental ways.
No-one should underestimate the government's commitment to equitable and sustainable land distribution and use in our country. We have to be realistic - not in our ideals, but in our recognition of how difficult it is to create change on the ground. It is one thing to announce land reform. It is another thing to make it happen. All over the world, countries have struggled with this issue, even where they do not have our shameful legacy. Land reform will only take place if we create the necessary framework, structures and capacity, both inside and outside government. That is the challenge which all of us face. As we discuss a new government land policy, we must constantly ask ourselves: is this achievable? and what do we need to do to make it achievable?
The importance of land reform
Land reform is an issue of fundamental importance in our country.
Land is a basic necessity of life. Some people need it as a place where they can make a home. Others need it as a place where they can generate what they need to sustain themselves. The whole country needs effective and sustainable land use for the many benefits which the land can bring for all.
The government's land policy is based on these goals: equitable and secure access to land and other resources; social justice; and the sustainable and beneficial utilisation of a precious resource.
Without a comprehensive and coherent land policy, and without land reform which actually works, we will not achieve these goals.
The enormous response to this conference indicates the breadth of the concern about these issues. We originally planned a confe- rence of 800 participants. We now have almost a thousand. And we have reluctantly had to turn away almost as many people as we accepted. Your presence here indicates that you too recognise the centrality of land policy to the achievement of many of our national goals. We have been overwhelmed but also delighted by the response.
Some key issues
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As I have said, I do not want to talk about the detail of a new land policy. However, it may be helpful if I set out the broad para- meters of policy, and identify some of the key issues for debate.
We see three major elements to land reform: restitution, redis- tribution and tenure reform. In general, we believe that land reform in all of its aspects must be demand-driven. We take this view be- cause experience tells us that a centrally planned and directed pro- gramme is likely to lead to processes which are often inappropriate, and results which do not meet the real needs of the people con- cerned. The people know best what they need. The tasks of government are to formulate policy; to create a supportive legal framework and institutions; to act as facilitator; to act as part financier by providing grants and access to credit; and to monitor the process and make appropriate adjustments.
To go this demand-driven route is not as easy as acquiring land, parcelling it up, and making it available to selected beneficiaries. But the demand-driven route is, I believe, the way to achieve land reform which is long-term and sustainable, and not simply a showy and short-term demonstration. We have to recognise, however, that the demand-driven approach makes heavy demands on both government and the communities affected.
From the side of government, we have to ensure that we have staff who are skilled and sensitive in responding to community demands. That is no easy task. The process of transformation within the Department of Land Affairs is therefore critical to the land reform process.
The communities, on the other hand, have to organise themselves to identify and articulate their needs, to demonstrate that they are able to take control of the land and manage it, and to prepare them- selves for their role when they acquire land. They often need assis- tance in this. While Government should assist where it can, it is clear that NGOs have an absolutely central role to play in building capacity among the communities which need land, and in helping them to gain access to the land reform process. The NGOs are therefore essential to land reform. I have consistently urged foreign donors to support NGOs which are working on land issues, and I will con- tinue to do so. If NGOs were to fade away at this stage, it would be disastrous for the land reform programme.
Against that background, let me say something briefly about each of the three major elements of the land reform programme.
Restitution
I think we have all been frustrated by the slow start-up of the restitution process. There are many reasons for this, which I will not go into now. I feel confident that we now have a well-grounded process: an appropriate legislative framework; a Commission on Restitution of Land Rights which is run by people with excellent experience and skills in the area; and a Land Claims Court which will deal with claims and disputes with professional skill and a deep commitment to justice.
Troubling questions remain. In particular, it is repeatedly said that the restitution process is very limited - too limited to achieve full justice. That statement is true. The question is how to resolve the problem.
From the very outset, we have said that the restitution process must be accompanied by an effective redistribution process. If you do not have this, you force people who need land to formulate their need in terms of a claim to restitution. The redistribution policy is now emerging, and I will say more about that shortly. What I will say now is that I do not believe that the solution is to extend the restitution process so that it covers everyone who needs land.
The restitution process is to cover a particular sort of claim: the claims of those who were dispossessed of a specific piece of land, by apartheid processes. Broadly, it is for those who lost land within living memory, and who can point to a particular piece of land which they, their parents or their grandparents occupied.
If we create an open-ended restitution process, we will create more problems than we solve.
For example:
1 An open-ended process will lead to conflicting claims to the same land. In many instances, there were successive waves of dispos- session through conquest, treaty or trickery. An open-ended process will often result in two, three or even more groups of people validly claiming that they were dispossessed of the same land. I do not know how we could decide which of those dispos- sed groups should now get that land.
2 Most earlier claims will be based not on occupation of particular land by specific people, but on occupation by the ethnic group of which the claimant is a member. The way to obtain land will be to show that you are a member of a particular ethnic group, which at some time occupied an area of the country. To promote ethnic mobilisation as the means of satisfying the need for land will be divisive and destructive. Would any of us like to see ethnic mobilisation as the means of acquiring land?
3 The land claims process involves judges deciding who should get what land. That is appropriate for restitution, but it is completely inappropriate for general redistribution. Decisions on redistribution must be made on policy grounds by people who are politically accountable, and not by judges.
4 The land claims process is necessarily complex, as it involves adjudicating on competing claims. That means a commission to investigate claims, court processes, collection and presentation of evidence, the presentation of argument, and so on. We don't need to go through those processes for broad redistribution actions.
5 If we over-burden the restitution process, it will collapse under the weight of an overwhelming number of claims, and it will not be able to assist anyone effectively.
For all of these reasons, I remain convinced that what we need is a limited restitution process, linked to a broader redistribution process. The question then becomes how to meet the needs of people who fall outside the restitution process. The government is commit- ted to doing this effectively.
Another problem with restitution is how to deal with urban claims. There are huge numbers of potential individual claims. Because of urban development, it is seldom possible to restore what was taken away, as it usually no longer exists in that form. We have to find a way of dealing with urban claims which is just, admini- stratively possible, and consistent with broad developmental objec- tives. I hope that emerging ideas about group-based urban develop- ment claims will provide part of the answer.
Redistribution
Redistribution, like restitution must be demand-driven. We have to meet the needs which people bring forward for attention.
While the market must be part of this process, it is not a market-driven process which we want. There is a fundamental fallacy in the thought that if you just open up the market, there will be automatic redistribution. A market-driven process is more likely to result in greater inequality than in redistribution. Certainly, there is no reason to assume that it will benefit the poor and landless.
What we have to do is identify and target the intended benefi- ciaries, and work out how to enable them to gain access. That involves doing what is necessary to assist them to obtain land - not simply to hope and pray that the market will do the job for us.
State land is a valuable resource in land redistribution. There is a great deal of State-owned land. Too often in the past, it has not been effectively used, or it has been allocated to those who already have land. We have to find ways of identifying beneficiaries and disposing of State land in such a way that it is used for land reform processes where possible. There is a tension here between speed and fair allocation processes which involve all those who have an interest. The development of state land policy is critical to the success of the redistribution programme.
Privately-owned land also needs to be made available for redis- tribution processes. But the government will not simply confiscate privately-owned land and distribute it. Where privately-owned land is distributed, it has to be paid for. It is in this sense that the market is a mechanism for redistributing land. What we have to do is facilitate land coming onto the market, and then assist targeted beneficiaries to acquire it.
The proposed Land Reform (Labour Tenants) Bill does just this. It targets labour tenants as beneficiaries. It brings the land onto the market by giving the labour tenants the right to acquire it. And it provides a system of subsidies to ensure that the labour tenants are in practice able to acquire the land, and that the present owners receive just and equitable payment.
The government will not simply give away land. It will provide grants or subsidies to those in need, to enable them to acquire State or privately-owned land. It will also open up access to credit for those who are in a position to borrow. The Commission on Rural Finance is producing very helpful advice on how to achieve this. In the ordinary course, there should not be a need to expropriate land, although government must have the power to do so where this is necessary. Government should free up the land market, and assist people to buy land.
The policy which is emerging is that one of the mechanisms for assisting those in need should be a rural basic needs grant, along the same lines as the urban housing subsidy.
There are difficult questions here: Is this the right approach? Who should the beneficiaries be - should there be a means test, for example? How large should the grant be? How should the grant be linked with the urban housing subsidy? And how should we provide assistance to groups which want to hold land on a shared basis?
The pilot projects are beginning to provide some of the answers to these and other questions. But redistribution can not be limited to the pilot projects, and we can not wait for the completion of the pilot projects before we expand the redistribution programme. I hope that these questions will be debated during this conference, and that you will give us some guidance.
Tenure reform
The core of land reform is the redistribution of rights in land. One of the ways of doing this is through tenure reform. Tenure reform can fundamentally change people's relationship with the land which they occupy and use.
Our approach to tenure reform is basedon five overlapping principles:
1 Our starting-point is that people must have security of tenure. That is what makes it possible for people to live in security, and to invest their energy and resources in the land. We have to put an end to the system where people's land rights are dependent on the consent of someone with political power.
2 One of the legacies of the past is that many people hold land in a form which is either not legally recognised, or is recognised in a very weak form. We need to ensure that these rights and interests in land are legally recognised and effectively protected.
3. We should not take an ideological position for or against individual freehold or communal forms of ownership. We should make a range of secure tenure options available, and enable people to make their own choices
4. Tenure reform must give equal respect to the different rights and interests in land, of course in accordance with the content of those rights and interests. Where there are overlapping rights and interests in the same land, all must be respected.
5. Tenure reform must address a range of legal and other structures which prevent women from having independent access to land. Particularly but not only in the rural areas, we often have the paradoxical and unacceptable situation that while the women are in practice the people on the land, they do not have any independent land rights, but have rights only through a male family member.
An appropriate constitutional framework
Land reform and transformation are impossible unless there is a supportive constitutional framework. This of course raises the question of the entrenchment of existing property rights.
The Constitution must make effective land reform possible. If it obstructs or prevents land reform, we will soon find ourselves in a constitutional crisis, as tension develops between the popular demand and need for land, and constitutional provisions which make it impossible for government to respond to that demand.
As I have previously said, I can understand that as the prospect of a new government came closer, some people became very anxious and feared a policy of redistribution through confiscation. That was one of the reasons for the constitutional entrenchment of existing property rights. By now, it should be clear that those fears are groundless.
Personally, I do not see the need for a property clause in the Constitution. I believe that adequate protection would be provided by the common law and by various constitutional provisions, for example the protection of the security and dignity of the indivi- dual, and the prohibition of arbitrary, unfair or discriminatory government action. These provisions of the constitution would prevent the sorts of action the past government took, and rightly so. It is a deep irony that those who systematically denied and destroyed the property rights of black South Africans now pose as the defenders of property rights.
If we are to have constitutional protection of property rights, they must be formulated such in a way that the entrench the results of generations of apartheid and dis- possession. The constitution must make land reform possible. And whether or not existing property rights are constitutionally protected, the constitution should contain a right of land. Land is a fundamental need and the birthright of all South Africans. It is possible to formulate a right to land in a way which gives it real effect, while at the same time not making false promises or placing decisions about government spending in the hands of the courts.
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It is impossible, in this short address, to raise all the issues with which we have to deal. Some of them are fairly technical, but no less pressing. I will mention some of them here:
1 Our system of land registration provides strong and secure title, and avoids the uncertainties which are found in many other countries. However, it is also costly. Where small pieces of land are transferred, the transaction costs can become unacceptably high in relation to the value of the land. We need to find less costly ways to provide secure title which can be upgraded in due course.
2 There is a good deal of conflict around land issues. We need to develop mechanisms for managing and resolving conflict. In particular, we need to learn from the experience in other fields with third party intervention such as mediation. We will have to build capacity within government, and also create a system for gaining access to skilled dispute resolution services outside government.
3 The valuation of land remains a difficult problem. The Interim Constitution has created a new compensation formula, which we have to learn to implement in practice. I therefore appointed a Ministerial Committee to advise me, and I have recently received its report which will help us to deal with this issue. A reliable and fair land valuation system is essential to land reform. On the one hand, owners must be fairly compensated: on the other hand, public funds which are used to help people to obtain land must not be wasted on excessive payments. We will have to give continuing attention to this issue.
Conclusion
We face many problems in attempting to achieve effective land reform - but we also have tremendous opportunities. I sense that there is a real willingness on the part of many South Africans to do this work as a co-operative partnership. Your presence here is a token of that willingness.
Right now I want to learn from what you can tell me of your experience and insights. I would like to take this opportunity, now, to thank you for the help you have been giving me and will give me as I fulfill my responsibilities. I look forward to working in partnership with you in developing and implementing a just land policy of which we can all be proud, and which will show that here, too, we South Africans have something which we can teach the rest of the world.