How does one right the wrongs of the past? And how does one achieve justice without inflicting further injustice? These key questions still remain unresolved in South Africa 20 years after the end of apartheid. Land is a key issue and achieving a fair settlement on land without disrupting the key agricultural sector is one of the most difficult issues to deal with.

Here is one passionate argument from Theo de Jager, Deputy President of Agri-SA.


Land claims: Reopening Pandora’s Box

Theo de Jager says the restitution process up to now has been chaotic, mismanaged and corrupt

The reopening of land claims is just about the worst news the agricultural sector could have. 37 000 Commercial farmers are still reeling from the way the 79 000 land claims which were filed before 1998 were implemented, and are certainly not ready to face the estimated 400 000 more which the Department of Rural Development and Land Reform expects to be filed when the process will be reopened. Of the previous round, some 8 000 claims have not been addressed. That does not mean that claims have been made to 8 000 farms. In fact, one claim can affect 715 farms, as is the case in Magoebaskloof, or 665 farms like in the Hoedspruit claim.

It also does not mean that the remaining 71 000 claims have been finalised. In the case of the Magoebaskloof land claim, government bought and transferred 42 of the 715 farms, and the rest of the farms are still in the freezer box of uncertainty. No farm has been unlisted yet, and the claimants have an expectation to get those farms too, although they had listed only 6 farms on the original claim form in 1998.

The rest were added by incompetent and corrupt land officials, under the wide discretion the act bestows on the land claims commissioner. Tens of thousands of farms are caught up in this state of unresolved claims, and there is no indication when or how they will be finalised.

There are serious questions to be asked about the number of outstanding claims too. The department reported to parliament in 2000 that it had received 63 000 claims, and that number had grown annually ever since. Up to this day none of the numerous requests of Agri-SA to have a complete list of claims and the farms which are involved, could yield any response but a promise that the list would be made available as soon as it is compiled.

As soon as a claim is gazetted on a farm, the owner is forced to halt all further development or investment on the land. No owner in his right state of mind will invest on land if he is not certain that he will get his money back when his number comes up for land reform. This crisis has been perpetuated by the scrapping of the willing seller principle, the new Expropriation Bill, and government’s commitment to use it more aggressively as it no longer intends to pay market related prices in land reform.

A number of recent events have put a damper on agricultural investment lately. At an investment conference in November in Hanover, Germany, European agricultural businesses lashed the South African governments’ unilateral cancellation of its investment treaty earlier that month. They referred to proposals by the DRDLR to expropriate foreign held property, and exchange it for long term lease agreements. They lamented the disbandment of the SADC Tribunal, which adjudicated mostly on property right cases in the region, and linked that to the scrapping of the willing seller principle. They clearly fear that their investments are not safe in South Africa, and are taking precautionary steps to mitigate their risk.

Local farmers do not share that opportunity. They are delivered to the policy environment which has seen production in areas with a heavy burden of land claims plummeting like a rock. Between 2004 and 2007 agricultural output in Limpopo has dropped by 37% because of the restitution process, on government’s own account. Minister Nkwinti is on record that 90% of land reform farms have failed, and I am very sceptical of the “success” stories on the remaining 10%.

Despite pleas from organised agriculture government has no plan on doing anything different the next time round.

On occasion the government has offered assurances that it will not allow a further decline in productivity, and promises that farmers will not lose the investments they now make on their farms. But as the European investors scornfully pointed out at the agricultural conference in Hannover, similar promises were made about the reopening of land claims. Thoko Didiza went publicly on record as then minister of Agriculture and Land Reform no less than eight times that the ANC will not bow to such pressure, and her followers Lulu Xingwana and Nkwinti echoed it four times each.

There is simply no integrity in such promises if those making them cannot be held accountable for it in a court of law. Elsewhere in Africa the land issue has ever too often been the joker in the pack to be played by a ruling party when it gets caught with a weak hand before an election.

The ANC says that during Minister Nkwinti’s consultations with rural communities on the green paper on land reform, scores of people complained that they did not know that they could claim prior to 1998, and that is why the party was forced to abandon its commitments. But the minister did not hear them properly. People knew they could claim, but they didn’t realise at the time that the validity of land claims wouldn’t be tested, and that any claim where the owner is willing to sell, would result in getting a farm for free. If it is financial compensation the claimant demands no questions would be asked. If everybody knew before 1998 that the validity of a land claim would not matter at all, many more people would have filed claims!

Nkwinti was the one who broke the news to parliament that the vast majority of claimants opted for financial compensation. What he failed to add was that it became a free-for-all, yet another tool to get taxpayers money into the hands of the voting folk who are becoming ever less impressed with the lack of service delivery where it could really improve their circumstances.

None of the land claims which were settled with financial compensation have been unlisted since 2000, and those farmers are struggling every day to access financing, or to sell their properties on the open market, or to develop it. It is not even available for other channels of land reform such as the redistribution process!

Complaints, proposals on alternative administrative processes and even offers from the private sector to assist, had fallen on deaf ears in the department. Those officials want the chaotic conditions. They thrive in it. There is always some gain in it for them. Sometimes they go too far, and when they get caught, they get redeployed, as happened to a number of regional and even national land claims commissioners. The department has had a high turnover of senior managers.

Only in the last month the Special investigation Unit clamped down on two very large shady farm acquisitions benefiting officials themselves in KZN. When under pressure from parliament on the poor performance of land reform, it is as easy as falling from a tree to blame it on the willing seller principle, and on the few land owners who can afford to challenge the validity of claims in court, and who have the patience to wait the best part of a decade for the case to be heard.

The Namibians decided against land restitution, and give preference to those who lost their land because of colonisation or apartheid in the redistribution process. They are light years ahead of South Africa in the way they dealt with land reform. At a conference in Windhoek, one of their senior officials asked “how do you turn the clock on land use a century back? Everything, including the land itself has been developed since! One family who was dispossessed has, five generations later, literally hundreds of offspring, who would each have a valid claim on the same portion of land!”

In SA restitution has not worked; not for government, not for beneficiaries who are no better off and often abandon their land, not for food security, and most certainly not for the agricultural sector. Even if one tries to understand the short term benefits the reopening of claims can have for politicians who are desperate for the votes of potential beneficiaries, surely the reality must dawn on some of those in parliament that there will be a day after the elections when all these expectations must be met, and that it will cost money and effort?

A German magazine described the restitution process in SA as the biggest disaster to have struck the agricultural sector since the Anglo Boer War, and there is no indication to farmers, black and white, the agri business sector or investors in the sector, that the same officials who caused that disaster, now have an alternative plan to implement the second round.