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ALMOST TWO DECADES after the Salem claim was first lodged, the failure of land reform in South Africa was laid bare in the High Level Panel report on ‘key legislation and the acceleration of fundamental change’. The report is a document over 600 pages long, written by a panel chaired by former interim president Kgalema Motlanthe, and was released in November 2017, a month before Cyril Ramaphosa emerged from a bloody battle at the ANC’s Nasrec conference to secure the party presidency. The report covers everything from refugees to nation-building, but its key theme is land, specifically the redistribution and restitution thereof, as well as the upgrading of tenure for those who ‘have’ land but do not formally own it. It also contains a host of allegations about the breakdown of land administration and pervasive corruption, none of which were revelatory, but that they were published in an important, government-approved document was significant.

The modern South African land reform programme is a process started in 1997 by a white paper tabled in Parliament, with the aim of addressing a sector-specific legacy of apartheid’s uneven resource allocation.

There is little that is unique about South Africa’s land conflict and resolution. From the occupation of Petrograd during the Bolshevik Revolution in Russia, which explicitly centred on the redistribution of land to the peasant class, to the Cuban National Institute for Agrarian Reform under Che Guevara, to the landlord oligarchs of Chile who played a decisive role in Augusto Pinochet’s rise to power, to the modern-day reform in Ukraine, which lifted a long-standing ban on the sale of private land as part of its pivot to the European Union, land is elsewhere also perceived as the most fundamental resource, and the lack of it as the root of all other inequality. This paradigm is falling apart under the Fourth Industrial Revolution, but remains strong in places where the wounds of history are still so fresh.

In South Africa, the process of attempting a more equal distribution of land has, broadly speaking, assumed three faces: restitution, redistribution and tenure security.

Salem was an example of a restitution claim, which is citizen-led. Citizens can come forward and make a claim to land that they were dispossessed of due to racist or discriminatory practices by government after the passing of the 1913 Land Act. As we’ve seen, the reason for the cut-off date is obvious: the process of identifying a ‘justified’ or ‘rightful’ owner becomes interminably complex by dint of sheer historical ambiguity the further back you go, especially into the nineteenth century, when conquest was still considered a legitimate way of obtaining possession of land. There have been frequent calls by more radical black nationalist politicians to do away with the cut-off date, apparently unaware that this would lead to multiple conflicting claims on the same land by different groups, particularly around the Highveld and the country’s northern borders. Not to mention the claims of descendants of the Khoikhoi and San peoples, the latter being able to justifiably make a case for the entirety of South Africa were the elapse of time the only criterion for valid claims.

The process of adjudicating on and disposing of claims has been slow, cumbersome and expensive, hampered by fraud and graft. The entire process was intended to be wrapped up within five years – claims lodged within a certain timeframe, verified and dispensed with, and the country able to move on. Instead, it has been drawn out over two decades and shows little sign of concluding in the near future. Its interminable drag has not been helped by the reopening of the window for lodging claims in 2014, purportedly due to the high volume of people who failed to lodge their claims during the initial period. The decision was eventually struck down by the judiciary as irrational, but not before another few thousand claims had been lodged, further clogging up the bureaucratic plumbing.

The process of redistribution, by contrast, is government-led and continual. The state takes the lead in identifying, acquiring and distributing land to beneficiaries in order to try to address the racially disproportionate patterns of ownership. The process is (or, perhaps more accurately, was) market-based, and its efficiency hinges on government functioning smoothly and honestly, as the state keeps vast and often extremely expensive tracts of land in trust, with discretion as to who receives them. The selection criteria for beneficiaries of the redistribution programme were essentially non-existent until very recently. Redistribution comprises the bulk of land reform, but restitution tends to grab the headlines – when handover ceremonies are held and politicians can make a song and dance of it, or when land claims are lodged and white landowners lose, as in the Salem case.

Tenure security, the third face of land reform, is the amendment and introduction of laws allowing people who have no proper right or title to lands or homes they’ve inhabited for generations to protect themselves against eviction and removal. Arguably, it is both the most important and the most neglected stream of redress. The large majority of farm labourers and people living under the authority of a chief (of whom there are millions – a third of KwaZulu-Natal, for instance) stand to benefit most from this process, but the project has been so mired in inefficiency that some scholars claim that the rights of these people are now less secure than in 1994.

The underlying policy of land reform has changed frequently over the years, but its inefficacy has remained. Every few years, government attempts prophylactic measures – merging departments, promulgating more legislation, appointing an inter-ministerial committee or assembling a specialist task team. All these measures add more layers of bureaucracy, and few of the extant layers ever fall away. Policy has been consistently reactive as the state makes a hash of every attempt at reform, from the Settlement Land Grants (SLAGs) of the late 1990s – a demand-led process of financial aid for qualifying individuals intended to sift those who truly wanted to farm from opportunists – to the Land Redistribution for Agricultural Development (LRAD) programme, which aimed to establish a class of commercial black farmers, to the disastrous Proactive Land Acquisition Strategy (PLAS) so often in the news for its corruption potential, to the recapitalisation of the PLAS fund, the money for which is rumoured to have been looted. Over the years, land reform policy has shifted from an agricultural focus to a far broader emphasis on ‘land’ in general, and now includes housing and often, by implication, capital – concepts that generally fall under other spheres of government service provision.

PLAS seems to be the current dominant policy and unfortunately involves the state leasing out land rather than transferring titles, vesting ownership in government while having little impact on the statistics regarding black landownership. Eligibility for PLAS is ‘broad and unclear’, as the High Level Report notes, and has worryingly widened the discretionary power of officials.

The opportunities for land reform corruption are myriad, from inflating land prices in the acquisition process to kickbacks from corrupt farmers and beneficiaries for tenders to supply equipment and produce, among other schemes.

Scams take many forms. In 2015, premier candidate Senzo Mchunu revealed how officials in the KwaZulu-Natal Department for Land Affairs and Rural Development were using the identities of dead people, forming fake trusts and listing minors as beneficiaries to fill beneficiary lists for land claim purposes, opting for compensation rather than restoration, and then diverting the money into their own pockets while the land went begging. Many of the fake claims were lodged when government reopened the restitution claims process for a second round while thousands of the previous rounds’ claims were still outstanding, despite the fact that part of the ANC’s promise in relaunching the claims process was to criminalise the lodging of fraudulent claims. Prosecutions have been thin on the ground.

South Africa has been highly unfortunate in the choice of those who lead governmental departments concerned with land and agriculture, which have undergone numerous reconfigurations since the portfolios for the Departments of Agriculture and Land Affairs were merged in 1996.

Lulama Xingwana was minister of this portfolio from 2006 to 2009. No stranger to controversy, she caught hell for remarks she made about white farmers ‘raping’ workers in 2007, and in 2009 Rapport accused her of lugging around an expensive, specially made portable toilet to land-handover events. Her career was described by the Daily Maverick as ‘something like the twenty-two-car pile-up on the N1 … multiple wrecks with no real explanation for why and how the crashes occurred. Xingwana must be the ultimate survivor, wreaking havoc in the three ministries she has served in and yet still able to hang on to a position in Cabinet.’

In 2009, President Jacob Zuma divided the portfolio into two branches: the Department of Agriculture, Forestry and Fisheries (DAFF) and the Department of Rural Development and Land Reform. The Department of Rural Development and Land Reform experienced its fair share of torrid leadership. Gugile Nkwinti, who has often called for the 1913 cut-off date for land claims to be erased, assumed ministerial office at the new department’s inception in 2009. His tenure was eventful. In 2017, Public Protector Busisiwe Mkhwebane initiated an investigation into Nkwinti’s role in the Bekendvlei farm scandal, a deal transferring a land reform farm in Limpopo to the minister’s friends. It was widely reported that these ‘friends’ were Luthuli House employee Errol Velile Present, a former ANC official who was later arrested during an attempted cash-in-transit heist and was linked to several others, and his business associate Moses Boshomane. Nkwinti’s incentive in making sure his mates were in pole position to receive the property was an alleged R2 million kickback. The farm had cost the state R97 million.

Nkwinti was shuffled to the Department of Water and Sanitation in 2018 and replaced by Maite Nkoana-Mashabane. NPO Corruption Watch subsequently released a damning report into Nkoana-Mashabane’s affairs during her brief tenure, alleging how she had immediately set about deliberately suspending disciplinary hearings and reinstated officials implicated in fraud and corruption.

The latest incarnation of the department was created by President Ramaphosa in June 2019 by merging DAFF with the Department of Rural Development and Land Reform, calling it the Department of Agriculture, Land Reform and Rural Development. Thoko Didiza, the minister of Agriculture and Land Affairs from 1999 to 2006, reassumed the newly titled position.

The department has seen some of the worst examples of tainted officials being redeployed. Director-general of the pre-amalgamated Department of Rural Development and Land Reform Petrus Mdu Shabane was fired in 2017 for ‘serious misconduct’ involving ‘breaches of the Public Finance Management Act in a contract to digitise deeds records, and hundreds of millions of rand in wasteful expenditure’, as the Daily Maverick reported. Shabane was reinstated in late 2019 via a Presidential Minute, and a labour court ruling against him was dismissed and his legal fees bill footed by government. His is just one of several cases.

The director-general of DAFF who had joined Shabane under Didiza’s stewardship in the new department, Mike Mlengana, was the subject of a virulent Public Service Commission (PSC) report in November 2019, which held that Mlengana had driven the department ‘to ruin’ through mismanagement. ‘The department under his leadership had to return R30-million to the National Treasury after failing to use it to establish a monitoring and evaluation unit to assist in the support of upcoming farmers,’ reported Farmer’s Weekly, quoting directly from the report. ‘The PSC is seriously concerned by the toxic, divisive, factionalised and unprofessional environment within the department. This report does show some of the most unprofessional conduct by the responses of some of the employees to the outcomes of the PSC’s investigation.’ Mlengana had been the subject of an internal investigation in 2017 for ‘financial mismanagement’, the findings of which were overturned on a technicality by the courts. By late June 2020, he resigned from his post, citing an ‘absolute lack of delivery knowledge and work ethic’ within the department in communications with Farmer’s Weekly.

In March 2018, the state’s Special Investigative Unit (SIU) submitted a report on land reform fraud to the Presidency. It had investigated 148 land reform projects and found fraud ‘on an enormous scale’, with government officials dealing out farmland to anyone for the right price, and recommended prosecutions for forty-two individuals. Business Day obtained the report a year later through a Promotion of Access to Information Act request and made good work of publishing its contents. News reports noted with tentative worry that despite the recommendation of the SIU, no prosecutions had yet been made, and the matter faded into the quagmire of political scandals South Africans are bombarded with on an almost monthly basis.

In May 2019, around the same time Didiza again assumed control of the department, the Mail & Guardian published the results of a four-year investigation into land reform fraud by the Special Assignment team of investigative journalists. The report revealed nothing ‘new’, but the scale and detail of the graft was shocking, even to hardened cynics. The paper dubbed the central corrupt practice ‘farm flipping’ – ‘buying farms in distress at low prices, selling them to government at heavily inflated prices and returning to the farm as strategic partners to further profit, allegedly often at the expense of the intended beneficiaries of agricultural land reform’. These schemes, the report says, involve foreign multinationals that work through local BEE partners and their ruling-party contacts, creating an array of shelf companies in order to launder money and defraud funding for the projects. Chief among those implicated in the report is none other than Gugile Nkwinti.

But perhaps the biggest slap in the face of the South African public was the 2013 MalaMala case, another of Nkwinti’s projects. It is the single largest amount paid for a land restitution project in South Africa’s history, coming in at an estimated R1 billion and wiping out the department’s annual budget. To put the enormity of this sum into context, the investigative group Oxpeckers noted that ‘the price of 36 489 claims involving about 85 000 urban households made by December 2002 was R1.2 billion … In the year prior to the MalaMala deal, R1.6 billion was used nationally to buy land for 549 claims, and in 2011 less than R1 billion was spent on 252 claims.’

The claim was so controversial and shrouded in secrecy that it is still being investigated and picked apart eight years later. The settlement between the state and the farm owners was reached out of court, hence the difficulty in obtaining details, highlighting the lack of transparency entrenched in the land reform programme.

The land under claim comprised areas within some of the most luxurious game resorts in the world at the western border of the Kruger National Park. The 960 claimants lodged their paperwork in 2002. A secret deal was struck in 2013, after government rejected the initial valuation of R750 million as too expensive, and a new company was incorporated to share ownership between the previous owners and the community, which was herded into a Communal Property Association (CPA) for this purpose. By 2019 the CPA was riven with infighting and had gone to court several times, accusing its own lawyer and numerous government officials of hoarding the payouts under the agreements for themselves. The claimants had been divided among various villages at the time of their forced removal in the 1940s, and scholars who had worked on the initial claim raised the issue that some of these claimants had never been part of an overarching ‘community’ or ‘tribe’. It later emerged that this ‘community’ had not actually been eligible for restitution in the first place. The original owners remain in control, and several state officials conceivably found themselves with fatter bank accounts.

Corrupt state officials aren’t the only guilty parties. In South Africa, wherever state cash is being splashed, grifters tend to emerge.

In 2016, private investigator Paul O’Sullivan opened a case of fraud against Pieter Visagie, a well-known businessman in Mpumalanga. O’Sullivan claimed that Visagie had colluded with provincial officials to artificially inflate the prices of a number of dairy and vegetable farms in the Badplaas valley, Mpumalanga, which were up for sale to the state.

The web spread back to the early 2000s, and involved a financial entity called the Ndwandwa Trust, headed by Visagie. O’Sullivan alleged that the trust had been used as the main vehicle for the graft, defrauding the state to the tune of tens of millions of rands by lodging fake claims and overcharging for the farms. These claims were backed up by a whistle-blower named Fred Daniel, who’d been involved with land reform around Badplaas since the early ’90s, but at the time of writing have yet to coalesce into a court hearing or result in any convictions.

A previous case against Visagie and some of his alleged co-conspirators had been withdrawn from the Nelspruit Regional Court in 2013, but the claims resurfaced in the media in 2015, this time also involving senior politicians, including David ‘the Cat’ Mabuza, then premier of the province. It was alleged that Mabuza, who was MEC for agriculture and land administration between 2008 and 2009, had signed off on a task team report that helped disguise the worth of the land. Mabuza’s office strenuously denied the allegations. He is now deputy president of South Africa and chair of the inter-ministerial committee on land reform.

That these same politicians insist that the market has failed and that the state should take an even greater role in implementing land reform is almost beyond belief. And yet, in December 2017, the ANC passed an official resolution at its annual national conference in Nasrec vowing to ‘accelerate’ land reform by amending the Constitution to allow for the expropriation of land without compensation. The conference had been convened under the theme ‘Remember Tambo: Towards Unity, Renewal and Radical Socio-Economic Transformation’.

EWC was reportedly the poisoned chalice from which Ramaphosa had to drink to ensure his victory and has since remained the hottest political topic. But the resolution was almost inevitable, given that ever since the radical Economic Freedom Fighters (EFF) rose to prominence as the ideological stick to the ANC’s carrot, the country’s younger, urban black generations have increasingly taken up calls for ‘revolution’ in response to South Africa’s patent inequalities.

‘WE WILL GIVE TIP WHEN YOU RETURN THE LAND’, University of Cape Town student Wandile Dlamini wrote on the bill a young white waitress brought him at a restaurant in Observatory in Cape Town in 2016. The waitress, Ashleigh Schultz, was a twenty-four-year-old from a poor background who was nursing her terminally ill mother. She broke down in tears when she read the message. Dlamini’s friend, Ntokozo Qwabe, published a description of the incident on Facebook, concluding:

Moral of the story: the time has come when no white person will be absolved. We are tired of ‘not all white people’ and all other bullshit. We are here, and we want the stolen land back. No white person will be out here living their best life while we are out here being a landless and dispossessed black mass. NO white person shall rest. It is irrelevant whether you personally have land/wealth or you don’t. Go to your fellow white people & mobilise for them to give us the land back. That will be the starting point of all our interactions from now. We will agitate all our spaces with the big question: WHERE IS THE LAND?

Qwabe had been at the forefront of the ‘Fallist’ campaigns that began with #RhodesMustFall in 2015. He was, ironically, a Rhodes Scholar and had been studying at Oxford University on the back of the famous study fund created by arch-imperialist Cecil John Rhodes when the incident occurred. His friends and peers are poets, graphic designers and PhD students – people who live in urban centres and write about intersectionality and queer theory as part of the land debate. As Qwabe indicated in his post, ‘land’ and ‘wealth’ are considered interchangeable – at least according to some. Much of this kind of rhetoric is derived from anti-colonial writers like Frantz Fanon, who wrote in his influential 1961 treatise, The Wretched of the Earth: ‘For a colonized people the most essential value, because the most concrete, is first and foremost the land: the land which will bring them bread and, above all, dignity.’ This line is ubiquitous in the new land debate, appearing in forums as varied as High Court judgments, political rallies and Facebook posts. The inherently flexible concept of ‘dignity’, in particular, has taken on a resonance that brooks no argument and is frequently invoked, to the ire of those who tend to think in more concrete and tangible terms. Incidents like this are a good summation of the new, fraught conversation about land in this country, where the goalposts are constantly shifted.

What exactly is meant when the EFF and individuals like Qwabe and his Fallist comrades demand that whites ‘return the land’? When it was first launched, the land reform programme had a very defined purpose, and much of it centred on agricultural land. Rough estimates of the number of commercial farmers in South Africa today range from 30 000 to 40 000. It doesn’t take an analyst to deduce that even if every single farmer were to be replaced by an emerging black farmer, it would hardly make a dent in the impoverished masses’ landownership statistics. Contemporary politics has transformed the cause’s esoteric aims, and the later stages of the land reform progamme are a far more general call for the redistribution of resources, with ‘land’ as a catch-all justification.

The most pressing aspect of the land debate is arguably in and around urban metros. Minister of human settlements Lindiwe Sisulu tacitly acknowledged this when she announced during the July 2019 budget vote that her department would be ‘the first expropriators’ – specifically that ‘with the new draft legislation for expropriation in the pipeline we will make sure that we are the first takers in the queue for expropriated land’. This was followed by various statements about state-owned land being released for housing, and an indefinite national moratorium on the release of any land owned by state entities for purposes other than that.

EWC appears to be a mechanism by which many of the biggest pressures on state coffers may be relieved, a hammer with which to smash every inequity of the past, all stemming from the great colonial land grab. The recent spate of reports and committees appointed by government as part of the process of amending the Constitution all focus on the very broad ‘land question’, which now encompasses everything from urban housing to economic opportunity.

The way that EWC has been framed and sold, with all the talk of ‘returning the land’ and colonial land-grabbing being put right, many people, white and black, often conceive of it as a specific and targeted plan. When it was first mooted, it was seen as a way to seize that most obvious sign of illegitimate white wealth and the base of Afrikaner identity – farms. This idea was due in part to a comparison with what happened across the border in Zimbabwe, but the situations are different. Farms are by no means safe, but EWC is a far more nefarious concept than the ‘fast-track land reform’ of South Africa’s northern neighbour. If explained correctly, EWC would most likely generate a far less enthusiastic response from proponents outside government. More importantly, it would be far harder to sell, as it is not a quick one-two punch to the beneficiaries of colonialism and apartheid but a subtle deepening of state power across the board. Officials like Sisulu are quite open about what EWC means to them, and that the scope of land reform has extended beyond its original aims, but the emotional core of the debate remains the same as it was back in 1997 – whites took the land and must now return it.

There are still many land scholars who argue that addressing inequality is a bottom-up process and who are attempting to narrow the focus back to finding solutions for rural subsistence farmers in order to stem the flood of people to the country’s metros, for example. These far less emotive issues are a matter of common sense, comprising trends and patterns that government isn’t blind to but seemingly prefers to keep on the down-low in order to avoid a more sensible policy-making process. There is evidence that government is aware of the looming urbanisation crisis in state-commissioned reports; for example, there is this from a 450-page Rural Development Plan for the Fezile Dabi district in the Free State province, published in November 2016 in terms of the Comprehensive Rural Development Programme launched by the Department of Rural Development and Land Reform:

The development of a[n] RDP (Rural Development Plan) is done within an environment characterised by strong emerging trends, which include: i. Strong urbanisation trend where 80% of South Africa’s population is expected to be urbanised by 2050 ii. the rapid densification of urban informal settlements (and the areas on the fringes of major towns), and the emergence of rural settlements forms [sic] which continue to rely less on agriculture and more on urban cash economies, especially in the construction, trade and transport sectors iii. the emergence of a rural-urban space economy that is now complicated by declining rural poverty share (due to massive increase in social grants and remittances), and rising urban poverty (due to rural-urban migration), and the implication for planning intervention iv. the rapid shift away from agricultural employment in favour of wage employment even in the former traditional areas as evidenced by the declining contribution of agriculture to household income, and the existence of large areas of underutilised arable land v. the continued failure of development programmes to revitalise rural areas despite huge capital expenditures and outlays.

Or this, from a similar plan for the ZF Mgcawu district in the Northern Cape, published in March 2017:

Globally, the world has entered an age of de-industrialisation. In South Africa, there is a marked contrast between the former commercial farming areas and the former homeland or communal areas, where large numbers of rural people still migrate to urban areas to seek employment. Rural settlements are often large and sprawling, infrastructure is frequently lacking, and arable land is scarce, particularly in the arid climate of the Northern Cape. Rural households in these areas also have markedly lower household incomes than urban households or their commercial farming neighbours, with many falling below the minimum living level or poverty line. As a result, people are forced to seek employment elsewhere in the towns and cities creating strong urban linkages and dependencies for the majority of households.

Population growth in ZF Mgcawu DM has been slow, averaging just 0.7 per cent over the past fifteen years. This may be due to out-migration that has been observed in the Northern Cape as a whole (possibly due to the decline in mining and agriculture industries, as well as the increased mechanisation of these industries.)

Or this, from another Rural Development Plan for the Namakwa District Municipality in the Northern Cape, also published in March 2017:

[I]t is evident that both the poverty pocket concentrations and economic potential is aligned which proofs [sic] that migration towards built up areas is a real cause of concern. Urban built up areas cannot accommodate the current migration patterns from rural to urban settlements.

This issue is found in government reports but never in government speeches or the policy sold to the masses. Land for housing in urban areas is most certainly part of the EWC plan, but it does not easily fit into the idea that ‘land’ generally was stolen, and therefore ‘land’ generally must be taken back.

Activists tend to speak about ‘the land’ in symbolic terms. In contrast, framing these real issues in specific, workable terms makes them easier to try to ameliorate or solve, but doing so also makes it much harder to justify supremely invasive changes to the constitutional order.

One consequence of how the land debate has lately been framed occurred in 2019, when the story of a murdered landowner battling a land grab in the Western Cape Winelands came to be grossly misrepresented as a symbolic moment in the fight for land between black and white South Africans, when really it was something altogether more personal.

Much like the push for accelerated, broad-based ‘land reform’, in reality, it’s all about the money.