State custodianship | 'Calcification' of power: Anthea Jeffery responds to Tembeka Ngcukaitobi - News24

15 June 2021 - Advocate Tembeka Ngcukaitobi SC seems almost to welcome recent ANC and EFF proposals for state custodianship over all land, as reflected in the most recent version of the expropriation-without-compensation (EWC) Constitutional Amendment Bill put forward on 31 May 2021.


Anthea Jeffery 
Advocate Tembeka Ngcukaitobi SC seems almost to welcome recent ANC and EFF proposals for state custodianship over all land, as reflected in the most recent version of the expropriation-without-compensation (EWC) Constitutional Amendment Bill put forward on 31 May 2021.

He denies that this would mean land nationalisation, saying custodianship has many possible interpretations and could leave "actual ownership" unchanged. In this situation, he suggests, the state would merely have increased administrative powers over the way that land is used. But how these powers would differ from the government's already extensive capacity to control land use under zoning and related laws is not explained. 

Advocate Ngcukaitobi also claims that neither the ANC nor the EFF favour, "... an extreme form of state land custodianship in which all private title over all forms of land is abolished". But this, of course, is precisely what the EFF's Julius Malema said in 2018 when he vowed that, "... every title deed would be meaningless when the state took custodianship of all land".

Issue of title deeds

"Market fundamentalists" are wrong to see the custodianship idea as "inappropriate", Ngcukaitobi adds. Yet, he also warns that custodianship could result in "the calcification" of state power over land, which would be "of no use" in extending access to it. 

He adds that this negative outcome could echo what has already happened with customary land, where the custodianship claimed by traditional leaders has "ossified chiefly power" while "marginalising and further impoverishing" communities.

What, then, does Advocate Ngcukaitobi want? "A system that guarantees access to the land by the many who need it but cannot afford to pay for it." Yet, he does not want black South Africans to be given title deeds to land, as the government recently did for 25 black farmers in Tafelkop in Limpopo. He claims that, without explaining why, title deeds would bring benefits to the few while excluding the many and so, "... closing them out of access to land".' 

But this overlooks the fact that close to nine million black people already own formal houses – though many still need the registered title deeds that would confirm their ownership rights and increase the value of their assets. It also ignores the 17 million or so black families with limited customary land-use rights that could too be converted into ownership. 

Providing title deeds to these 26 million individuals and households could be done at a minimal cost. It would give them a strong asset base, bring their "dead capital" to life, and provide a vital boost to the struggling economy as well. From this foundation, increased investment, growth, and employment – helped by appropriate housing, farming, and other policies – could extend home and land ownership to millions more.

Private ownership is a proven basis for prosperity all around the world. International data collected over many years shows that average incomes in countries that best uphold property rights and limit state power (at $44 200 per capita) are almost eight times higher than average incomes (at $5 750 per capita) in countries that do the worst in these spheres. This advantage is not limited to the rich, moreover, but extends to the poorest 10%. 

Private property rights 

Advocate Ngcukaitobi's opposition to private ownership is nevertheless so strong that he also seems to blame land reform failures over the past 27 years on a (supposed) preference for "private property rights" – and an (apparent) insistence on the "public-private partnerships" that Agri SA and others have long battled to secure. 

This assessment brushes aside the critical reasons for land reform failures as identified by the High-Level Panel of Parliament in its 2017 report. Prime among those reasons, says the panel, is the state's refusal to grant individual title to land reform beneficiaries. This bars them from using their land as collateral and leaves them dependent on a hopelessly inefficient bureaucracy for financial and other support. Other important reasons for failure include minuscule land reform budgets, elite capture, and corruption.

Advocate Ngcukaitobi is entirely correct, however, in one of his most important points. South Africa already has a constitutional framework that enables land reform, but it has failed to use this effectively. "Changing the framework" by amending Section 25, as he notes, will therefore not guarantee success any more than the existing framework has done. 

This is a powerful reason for leaving Section 25 as it is and restarting the entire debate around land, housing, investment, growth, employment, and wide-ranging prosperity. By contrast, as Advocate Ngcukaitobi seems to acknowledge at times, the worst possible approach would be to entrench state custodianship in the Constitution. 

Inevitably, this would choke off investment, limit growth, erode property rights, expand government control, worsen maladministration, deepen corruption and bring about, as Advocate Ngcukaitobi warns, "... the calcification of power over the land in the state, its bureaucracy, and their auxiliaries". 

- Anthea Jeffery is head of policy research at the Institute of Race Relations.