Justice in land reform means being fair - News24

Gabriel Crouse

Senior Advocate Martin Brassey represented the Institute of Race Relations (IRR), as well as its 60 000 signatories, in making oral representations to the parliamentary committee to amend the Constitution. Brassey’s central claim on Wednesday was that justice is fairness.

It is not fair to force arbitrary individuals to pay bills that are owed by society as a whole. The call to dispossess select individuals in part or in whole for the national purpose of land restitution and reformation is therefore unjust. This syllogism is irresistible. Brassey did not mince his words. By violating property rights, even by merely watering them down, the state will sacrifice “human rights” and destroy the “fulcrum” upon which South Africa levers itself up as a state of justice.

Brassey went on to address the two proposed forms in which arbitrary individuals might be selected to bear the costs of society. First, on the basis of race. In particular a few white individuals might be forced to pay for all whites, but more accurately for the whole nation’s commitment to land reform. This, he argued, cannot be tolerated by anyone and will not be tolerated by the Constitutional Court.

Second, the state might assume custodianship of all landed property, thereby acting in a race-neutral way. Based on Brassey’s experience in the earlier Agri SA ConCourt case on mineral rights, he argued that such a move may well be allowed under the Constitution in its existing form.

Not only does this precedent render the EFF’s appeal to amend our Constitution to make the state a total land custodian irrational (premature and irrelevant), it also indicates the futility of such a move even if it were achieved. The ConCourt’s ruling that the state may assume custodianship over mineral rights in SA did not, and could not on a principle of fairness, do away with society’s obligation to respect vested interests that already existed in the mining sector. The same rule will have to apply to land. Even if the state assumes custodianship it will not be able to remove current occupants or incapacitate current owners without fairly compensating them for their loss.

In short, the state could be made custodian of all the land without moving an inch. All the remaining work to do in regards of land reform would lie ahead of it.

The IRR’s commitment to justice was contrasted by Roelf Meyer’s In Transformation Initiative, (ITI), which made an oral submission to Parliament moments before. ITI has done some excellent work, but it withered into the mode of appeasement before Parliament by suggesting that restitution be abandoned so that land reform occurs only through racial redistribution. 

Restitution is the process whereby the state compensates those who were directly dispossessed by under former racist laws. The grounds for ITI’s desertion was that justice is difficult to achieve and so we should give it up.

ITI, it seems, would treat someone who was directly dispossessed by apartheid exactly the same as someone who benefited from apartheid (by working in the tribal civil service for example) simply because they have similar levels of melanin in their skin. Justice is challenging. In fairness it is exactly the challenge that cannot be shirked.

To meet the challenges of restitution, reform and enlivening dead land capital the state must maintain its integrity and credibility. Brassey noted that the current path embarked upon of expropriation without compensation threatens both. Racial tensions are stoked through misrepresentations by political leaders and the economy withers before our eyes. The EFF MP’s general line was that SA has already hit rock bottom so nothing, not even the full force of expropriation without compensation, could possibly make things worse for social grant recipients. Brassey’s attempt to draw attention to Venezuela was answered by cheers and jeers.

As the rand slides, the economy slips into recession and SA’s creditworthiness threatens collapse, Brassey pleaded with the sitting MPs to reverse the trend and honour our social obligations. “Ask the state then, ask the ANC government if you like, to do the job that Section 25 legitimates. To do the process of transformation. To provide the requisite grants. To provide the skills and so on in order to uplift people.”

In these dire ambient conditions how can society, rather than an arbitrary selection of farmers, expect to pay for this? Brassey’s key term was “streamlining” the process. In the current financial year, for instance, R3.4bn has been allocated to land restitution, 0.2% of total expenditure and only 10% of the R30bn set aside for agriculture and land reform. It is also far less than the R12bn allocated to the salaries of officials in these departments.

Furthermore, SA pays three times the global average for agri-extension services while delivery is dismal, with over 85% of emerging farms not even being visited by state service providers. The state owns over 4 000 farms that are unproductive, dead capital estimated to be as much as 11% of SA’s land surface by ITI. 
Streamlining means redirecting money and land capital from inept bureaucrats towards emerging farmers and business development. IRR’s submission also notes that if the state stopped endlessly bailing out SAA it could pay for land reform many times over.

Brassey’s appeal to justice as fairness struck a chord straight through the committee. All phones went down. When he urged that this principle does not depend merely on the 1994 accord but fundamentally on how we see each other in the light of principle recognition flickered across even the most hardened faces. The problem before Parliament also stands before the country. 

It is not fair to off-load the debt of social responsibility onto a marginal selection of individuals – so are we fair and what about you?

- Crouse is an associate at the IRR.

https://m.news24.com/Columnists/GuestColumn/justice-in-land-reform-means-being-fair-20180906