The history of the indigenous people of South Africa being dispossessed of land by successive waves of Dutch, and other settlors, and by successive South African Governments, is a long and most unedifying tale.

With the advent of our South African Democracy, the vital importance of addressing the wrongs of the past was fully realized. The instrument to do so was our Constitution, arguably the finest in the world insofar as the advancement of human rights is concerned. One of the wrongs of the past to be remedied was the issue of the gross historical dispossession of land.

Our Constitution made the restoration of Land Rights to the previously dispossessed a Constitutional imperative. The bare framework for this, provided for in the Constitution, was that the State may expropriate land by means of a Law of General Application, for public purposes or the public weal (which included land restitution), that there was to be no more arbitrary deprivation of land, and that equitable compensation therefore was to be paid by the State. There was no suggestion that the only measure of equitable compensation was to be the market value of the expropriated land, and the use to which the land was put, the history of acquisition and ownership of the land, the extent of prior state subsidization or assistance in respect of the land, whether the land had been profitably used or not, were among the circumstances to be factored in.  There is not, and never has been, the so called “willing buyer, willing seller “ principle to be found in our land restitution laws. It is unfortunate that Politicians who ought to know better, than blame the States poor land restitution performance on this on existent belief.

By far the greater majority of non indigenous South Africans, including the descendants of the original Dutch farmer settlers, acknowledge and support the restitution of land in terms of the Constitution and related legislative enactments. The question arises then, how has the State discharged this obligation? Many farmers and their advisors will tell of inefficiencies in the relevant State departments dealing with the issue, which inefficiencies have had the effect of almost derailing the restitution program, but that is not the worst of the State’s failures.

In the 2016/2017 National Government Budget, the provision for land restitution was a paltry R26 Billion. The state has thus set aside a mere 2.6% of its total revenue to address the most pressing need faced by the Country.  Put another way, the Auditor General’s latest report showed that irregular or wasted expenditure by all organs of State exceeded R30 Billion last year. An even more tellingly, commentators and economists attempting to quantify the cost of the so called State Capture by a powerful and influential elite, set the figure at between R50Billion to R100 Billion. If the State made an effort to recover this looted money it’s recovery would bring into the equation an amount of money  between two and four times the amount actually set aside by the State for land restitution in 2016/2017.

In order to remedy the State’s dismal performance on Land Restitution, we now have the spectre of Expropriation Without Compensation (EWC). This is, however, to occur in such a way as to protect and secure food production, and with no adverse effect on the economy. These qualifications effectively spell the death knell for EWC. Consider the following:

The production of food by farmers is an extremely expensive undertaking, and farmers borrow money in order to acquire the means of food production.  In so doing, they offer their land as Security for the necessary loan. If land can no longer be used for this purpose, there will be fewer, if any, production loans granted. No loans, no food will be produced, and the protection of food security goes out the window.

There exists an enormous amount of talent and institutional knowledge within our Country’s farming community. Replace this talent lock stock and barrel with eager but untutored hopeful farmers, and once again, food production falls.

Our Country’s banks and other financial institutions reputedly have collective loans of R180 billion advanced to our farmers at any stage. EWC would leave the banks with vast irrecoverable debt, and they might then face the prospect of closure.  A banking sector under strain would scare away offshore investors, who are so vital to the health of our economy.

EWC is, simply stated, the transfer by the State of one of its primary Constitutional obligations, to a select few individuals. Apart from the dereliction of duty by the State which such transfer entails, it represents a breach of the affected farmers’ Human Rights.  The Constitution guarantees every South African the right to pursue his career. Consider, also, the plight of such farmer bereft of a career. He will, in all likelihood, have enormous debt to settle, without an income to service it, and without the land he formerly owned as Security.

EWC also raises the following questions.  Whose land is to be expropriated? What criteria for expropriation will be utilized? Who is to be the beneficiary under such expropriation?

As stated before, land restitution in order to redress the wrongs of the past has the support of the great majority of non indigenous South Africans. Even the formal farming organizations and associations are proponents of Land Restitution, but this must be done within the framework of the Constitution.  A Government seriously committed to constitutional land restitution, would be able to discharge its obligation in an orderly fashion, without threatening food security, and without damage to our economy.

By: Andrew Fisher – Conveyancer/Attorney