Looks as if the Minister of the DRDLR, Maite Nkoane Mashabane, (she of hole in the head fame) has decided to take the bull by the horns and expropriate two farms in Limpopo that are the subject of land claims. It’s worth a closer look.
First this is not EWC. The state made offers to buy the properties in settlement of the land claims and those offers were refused. The detail is vague but it’s fair to assume that the Valuer General determined the value of the offer made.
The Valuer General Act was the ANC government’s first attempt to deal with the “willing buyer, willing seller” problem. Basically the state was routinely paying way more than the market price for land acquired for land reform purposes.
The main reasons for this consistent overpayment have to do with lack of skills and capacity to negotiate, to prosecute land claims and corruption. The VG Act was intended to fix this. By precluding the State from acquiring land at a price higher than that determined by the VG.
Predictably it didn’t have that effect. Instead by appointing an overtly political and ideologically motivated official to determine land prices, land acquisitions ground to a halt because owners were no less her willing to sell for the low prices determined.
This failure contributed to the EWC saga. If owners won’t agree to sell we will expropriate. A predictable escalation. Escalating the force required to achieve something that could much more readily be achieved through skill and finesse. Swatting flies with a sledgehammer.
One of the DRDLR’s biggest frustrations has been its incapacity to successfully prosecute land claims. The good cases were easy and most were settled early on. Group areas act and black spot removals are the best examples.
But most claims are not so simple. They relate to land big and complex histories that unfolded over many decades, really a slow attrition of people’s rights through racially discriminatory laws and practices but driven by private land owners.
Proving these claims, as is required under the Restitution Act, is difficult and the claimants and the State are often times out-lawyered. The state also lacks the capacity to do the competent research required to prove that these were apartheid dispossession.
Then again many land claims filed are bad. They do not meet the requirements of the Act and cannot be proven. In the past many owners sold anyway because the price was right, but after the VG Act was passed, owners said “stuff you, prove your claim”, which the state can’t do.
To deal with this new and self created stalemate the state is no resorting to expropriation. It has been done before but has not been widely used. This is because it’s easier to negotiate a deal than to expropriate. But in its foolishness the state has closed that door.
The minister is in a hiding to nothing. Akkerland, the farm to be expropriated is subject to a land claim. The state tried to settle it by offering a price, fixed by the VG, that is way below what the owners will accept.
Negotiations having failed and prosecuting the land claim being way beyond its capacity, expropriation has been decided upon as the best way forward.
The Minister likely was moved to expropriate on the basis of her officials assurances that the land claim was “accepted” and that the “research report” shows the claim is a good one. The owner is just being greedy.
But this will not suffice. First, despite popular perception, the acceptance and gazette got of a land claim does not mean it is good. It means no more than that the claim was lodged in time, the basic formalities have been complied with and that it is not fraudulent.
Second most research reports, prepared by officials, rather than professional researchers and historians are rubbish. Cut and paste nonsense that will not stand up to any serious scrutiny.
So if the expropriation is reviewed, as it will be the Minister faces some serious challenges.
1. She can’t simply assume that the claim is good and her own research reports are a poor basis to assume they are.
1. She can’t simply assume that the claim is good and her own research reports are a poor basis to assume they are.
2. Even if the claim is good she can’t assume that the land claim court would have ordered restitution. In the circumstances financial compensation or the provision of alternative land may be more appropriate.
3. Even if the claim is good. And restitution is justified, that is the decision that the Land Claims Court must make, not the Minister. She has no authority to step into the shoes of the court and prejudge it’s determination.
4. She has no good reason to believe that the VG’s valuation is good and will be upheld by a Court. Market valuation is a fairly objective process, but when you start introducing political considerations you are going out on a limb. Good luck persuading a judge.
Conceptually expropriation is a perfectly lawful and reasonable option but this extraordinary remedy, as with extraordinary claims, requires extraordinary proofs. The state is simply not capable enough to succeed with this approach
What remains is a constitutional amendment to permit EWC. That, to my mind is a non-starter. It would not be fair and just, save in the most exceptional circumstances. (Exceptional, as in a tiny tiny number of cases, that I struggle even to conceptualize)
There is no cause for alarm. Our courts will not simply license the destruction that EWC will certainly cause. A constitutional democracy and the rule of law are a powerful safeguard against ignorance and populist sentiment.
