A glimmer of good news on land? - News24

18 September 2019 - David Rakgase may soon have his land. This is to be celebrated. Will others be so fortunate?

Terence Corrigan
For a country starved of good news, any glimmer of the positive should be seized with all enthusiasm. So it is perhaps rather strange that a judgment handed down by the Pretoria High Court last Wednesday did not attract more attention. 

At the centre of this was a gentleman by the name of David Rakgase. He had been farming on a farm named Nooitgedacht in Limpopo since 1991 – that is, close to three decades, predating the transition to democracy. The farm was the property first of the erstwhile Bophuthatswana government, and then of South Africa's national government.

In 2002, he had applied to buy the property. This was hardly surprising. He was running what appears to have been a successful farming operation, and ownership would have given him greater opportunity to use the farm as he saw fit, and leverage it to raise capital. This is, after all, what commercial farmers are generally able to do.

More than that, it would have been in keeping with the stated objectives of the government of the time (and, supposedly, that of the present) to grow the participation of black people within the farming economy. Notably, the framework for this is that of redistribution. The comments of deposition for the Minister of Rural Development and Land Reform are worth quoting:

Land redistribution is that part of land reform whereby people apply for financial and other assistance with which to acquire land for farming, and sometimes settlement purposes. Whereas tenure reform is mainly affected through legislation and associated processes regarded as 'rights based' interventions, and the explicit function of restitution is to provide for restorative justice, the purpose of land redistribution is primarily economic, namely to rescue poverty and/or promote economic advancement through agriculture.

In 2003, the provincial grant committee of the Department of Agriculture approved Rakgase's application to purchase the property – something which he promptly accepted in writing. Official communications over the following years indicated that he had purchased the farm.

This came undone some seven years later, in July 2010, when the Deputy Director General for Land and Tenure Reform at the Department of Rural Development and Agriculture decided not to approve the sale. Rather, Rakgase could have a "long term lease". This might be renewed if his performance was deemed satisfactory.

He was only informed of this a year later, in 2011, when he was presented with a 5-year lease, apparently without the option to purchase. Rakgase reluctantly agreed to this, under the threat of being evicted, something that the court judgment recorded as having happened to some of his neighbours.

Despite repeated promises from officials that he would be able to acquire the farm as his own, when the lease expired, Rakgase was required to submit an application for another lease along with a business plan. His occupation then appears to have been maintained on a month-by-month basis, with a plan for a 30-year lease (with a possible extension for 20 years thereafter) eventually being offered.

By this point, Rakgase had reached his mid-70s.

To add to the problems, in 2016, a group of people had unlawfully moved onto the property. An application by Rakgase to have them evicted was opposed by the occupiers on the grounds that he lacked locus standi in the matter. It was only in October 2017 that the minister applied to have them removed. Rakgase pointed out that had he actually owned the property, he would have been in a position to deal with the matter himself.

The court ruled that the refusal to honour the agreement to sell the land was in breach of the principles of fairness, reasonableness, rationality and also of the state's constitutional responsibilities. The judgment reflected the absurdity of a situation in which a successful black farmer was being denied ownership just as a debate was raging about the failings of land reform.

The judgment commented:

There is no explanation why, when the well-motivated occasion for the conversion of a right presented itself, it was shied away from and the elderly Applicant was presented with a much lesser right, being a long term lease, the end of which he will not see in his lifetime. The argument on behalf of the Minister that the Applicant has security of tenure and that there is no imminent eviction prospects on his horizon smacks of callousness and cynicism , particularly given our country's historical deficiencies in dealing with land reform.

This is worth digesting. Rakgase is emblematic of the assumptions undergirding and undermining land reform. Inspiring rhetoric affirming the importance of property rights and ownership have been belied by the state's actions. Journalist Karyn Maughan accurately remarked in April that the case showed up the confusion and incoherence – if not deceit – inherent in the current trajectory: "President Cyril Ramaphosa has been adamant that the ANC does not support the nationalisation of land advocated for by the EFF, but explosive court papers have laid bare how the government has actively pushed for state land ownership for almost a decade."

Indeed, it should not be forgotten that it has been official policy for the better part of a decade not to provide ownership to those seeking land through the redistribution programme. This was codified in the State Land Lease and Disposal Policy of 2013. The aim has been to pass on "access" to assets, not property in any real sense.

This case raises a thorny issue. As the government drives towards a policy of expropriation without compensation, there is no evidence (words aside) that it intends anything other than expanding its own power and increasing its hold over people's assets.

Rakgase may soon have his land. This is to be celebrated. Will others be so fortunate?

Terence Corrigan is a project manager at the Institute of Race Relations.