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The Politics of Not Making Policy: The new Land Reform Green Paper

21 October 2011
Response to the Green Paper on Land Reform, released in Parliament on 31 August 2011 and published in the Government Gazette on 16 September 2011

 by Senior Researcher Dr Ruth Hall, September 2011

The new Green Paper on Land Reform offers little policy direction for the important but controversial work of land reform. It was the culmination of a long, hotly debated policy process which started with government’s acknowledgement at the National Land Summit in 2005 that land reform was not on track, and a commitment to review its ‘willing buyer, willing seller’ policy.

This about-turn was given added impetus at the ANC’s National Conference at Polokwane in 2007, where its resolutions provided a clear and progressive mandate for a pro-poor land reform, to expand the ‘role and productivity of modern small-holder farming’ while ‘maintaining a vibrant and competitive agricultural sector’. After the 2009 elections, Zuma’s government declared that reinvigorating rural development and land reform would be one of its top five priorities, and promised to unveil a new policy to replace the 1997 White Paper on South African Land Policy. That was two and a half years ago.

This wait has proved to be in vain. Those concerned about the future of rural South Africa have been dumbfounded at the vacuous Green Paper unveiled by Minister Gugile Nkwinti. Consisting of a mere eleven pages of rhetoric and vague proposals, it fudges all the most pressing questions facing the programme and falls far short of being the new policy framework that has been promised over the past six years.

The Emperor’s new clothes

The Green Paper describes a range of tenure types (most of which exist already) and proposes the establishment of three new institutions. Its proposals are:

  • A four-tier system of land tenure, comprising state land (to be leased out), privately owned freehold (with ‘limited extent’), land owned by foreigners (with ‘precarious tenure’) and communally owned land (under ‘communal tenure’);
  • A Land Management Commission to advise, provide guidelines, coordinate, regulate, audit and act as a reference point for the Ministry;
  • A Land Valuer-General to provide fair and consistent land values for rating and tax purposes, and determine compensation where land is expropriated;
  • A Land Rights Management Board to communicate with farm owners, farm dwellers and others, to develop systems to record and register land rights, and to provide legal representation where necessary.

What ‘limited extent’ and ‘precarious tenure’ mean is not defined. Nor is there any discussion about what changes will be made to the ‘communal tenure’ system on which most of the rural poor depend. Astoundingly, the paper offers no direction on the ‘willing buyer, willing seller’ approach, and offers no clarity on when and how the state will expropriate.

Earlier proposals for land market regulation have been abandoned – or at least they are not mentioned. A draft of the Green Paper leaked in September last year proposed a right of first refusal for the state on all land transactions; land taxes to incentivise large landowners to dispose of under-utilised land and punish those hoarding land for speculative purposes; and ceilings on the sizes of landholdings to limit agglomeration of land ownership in few hands.

Deciding on how land is to be acquired (whether through the market or via expropriation), and any land market regulation – functions that are core to the Ministry’s land reform mandate – are now to be the responsibility of a Land Management Commission. No direction is given as to how the LMC should use these wide-ranging powers. Rather, it seems that the Ministry is merely deferring these key policy decisions and outsourcing the normal policy making and implementation functions of its own department to this new body. How will this solve existing problems? Why create new institutions to carry out departmental functions? Why would the Department not make its own policy, and manage its own affairs?

In practical terms, transferring responsibility to the new body achieves nothing. But  politically it removes the policy process from public purview and lodges responsibility for making policy with a body which will be ‘autonomous’ but ‘not independent’ and responsible to the Minister and the Department. This makes sense only if the purpose is to centralise power and to obscure the locus and status of policy making.

Explaining policy paralysis

Why is there so little content to this Green Paper? One can only speculate. Three possible reasons come to mind. First, government has succumbed to deep ideological divisions on this issue within the ruling alliance, which prevent any agreement on the way forward. Indeed, last year the ANC’s national executive committee rejected earlier policy proposals, and the Ministry was sent back to the drawing board. Second, perhaps they really don’t know what to do – also a scary possibility. Third, it could be that government decided that the proposals being mooted were too controversial so it seemed easiest to put out a non-descript Green Paper just because it was promised – and then go on to implement land reform in any way it wishes, without a policy framework to guide it.

By obscuring the future direction of land reform, government has simply failed to make policy. Yet, if this policy-less Green Paper were to be formally adopted as a White Paper it will have real political effects. It will allow land reform to continue along its present path – of slow progress, unsustainable outcomes and elite capture. Not making policy is a political act.

The real effects of a policy vacuum

The failure to make policy is not a neutral position. It serves very real agendas. The past five years illustrate this very well. On the one hand, there has been a political message that delivery must be speeded up, but the implementation drive has occurred without any framing policy about how the pie is to be divided. In this context, the path of least resistance, taken by local-level implementers, becomes de facto policy. These implementers focus on serving what they understand to be their political heads’ wishes, and do what they can to please. For the most part this has meant chasing the numbers: pushing up the figures for hectares transferred, and ‘picking winners’ by favouring certain types of applicants, with scant regard to whether this serves the interests of inclusive growth or poverty reduction.

Since 2006, through the proactive land acquisition strategy (PLAS), government has taken to buying farms and leasing them out. In the process, it has spent just over R3.7 billion buying farms, but much of the land has not been allocated to anyone. Only 397 households were listed as beneficiaries by the middle of last year. This means that vast areas are standing unused, or that a handful of people are getting great windfalls from the national fiscus. No policy either endorses or prohibits such practices. Without any policy to determine who should be prioritised, or how public money should be rationed, it is not even clear whether these practices formally constitute abuse – though they are certainly at odds with the existing White Paper, and contradict the resolution adopted at Polokwane.

My point then is not that the Green Paper is barking up the wrong tree. The problem is, it is barking up none. It is just barking. Official policy – the White Paper from 1997 – has long been overtaken by politics and practice. In the meantime, real decisions are being made every day about how public money will be spent, to buy what land, for whom, for what purpose. None of this is informed by official policy, and most of it occurs outside public scrutiny. If the current Green Paper is confirmed in its current form, such rudderless practices will continue.

Let’s dialogue anyway

The Minister has failed to provide the leadership South Africa needs. It is up to ordinary South African citizens to take up this challenge. A constructive national dialogue about a better future for the rural areas, and the role of land reform in bringing this about, should address at least these questions:

  • Who should benefit from land reform? Is this a programme for the poor, with the aim of rural poverty alleviation (as was the case under the Reconstruction and Development Programme) or is its purpose to attract black investors into agriculture to create a black commercial farming class (as was the case under Mbeki)? What is its class agenda and how broadly or narrowly should public funds be shared?
  • What changes should land reform bring about in land uses and farm sizes? And what should it leave intact? Is subdivision of farms going to be pursued to make available modest plots in order to promote a smallholder sector, is the expectation that groups of people should collectively own and manage farms, or is this about transferring whole commercial farms from one individual owner to another? Each of these options has profound implications. Which is it to be?
  • Where should land reform be targeted? What land should be prioritised for redistribution, and who should determine this? How can priorities be set in participatory ways, by the public in tandem with different spheres of government (especially municipalities) that need to play a role supporting land reform? What are the spatial considerations and where are the priority zones? Are these the high-rainfall areas close to high population densities? Or areas adjacent to the ex-Bantustans where many small farmers lack adequate land and infrastructure?
  • How will land be acquired for redistribution? Confiscation (as proposed by the ANC Youth League at its congress earlier this year) is not on the cards, but between confiscation and a ‘willing buyer, willing seller’ approach lies a broad spectrum of possible approaches. Is ‘willing buyer, willing seller’ still to be the major way in which land is acquired, even if the ‘willing buyer’ is now the state? Will expropriation become a more prominent means of acquiring land for redistribution – or not? Will the state aim to drive down compensation for expropriated properties below market prices, as allowed in the Constitution – or not? When and under what conditions will government opt to expropriate?
  • How can projects be better designed, to improve on the dismal performance of the programme to date? What agricultural and other support services can be introduced to ensure that redistributed land is well used and improves the livelihoods of beneficiaries as well as surrounding communities? The same Minister who has repeatedly (and morosely) claimed that 90% of his department’s projects are failing (but never published the data on which this estimate is based), has now unveiled a policy that makes no proposal to improve on this less-than-mediocre track record. What will prevent this pattern being perpetuated?
  • How can tenure rights be secured? By focusing on the first three tiers of the ‘four-tier tenure system’, the policy addresses the rights of those who either own or rent property – a small proportion of our population. Farm workers and dwellers, and residents of the ex-Bantustan areas continue to have insecure rights in practice. What is to be done to secure their tenure? What about tenure rights on redistributed land – what rights will beneficiaries have vis-a-vis the state? Is the idea for the state to become the owner of all redistributed land, so that beneficiaries become tenants of the state (as has been the practice since 2006) or for them to get private title to the land allocated to them (as was originally set out in policy)? Or a mix? Which, and why?

None of these is clarified in the Green Paper. But that should not stop us from asking, and answering, the hard questions.

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