Equality in the Form of Expropriation: South Africa’s Attempt to Equalize Farming Opportunities by Seizing Farms Owned by White Farmers

By Tia Rowe

It is undeniable that white people in South Africa have benefited from government policies that gave them more access to resources than black South Africans had access to.[1] In particular, during Apartheid, black South Africans were denied the ability to own land and many were removed from their familial land, which was then given to white South Africans.[2] This effectively deprived the majority of people in South Africa of the ability to farm, the chance to profit from farming, and the opportunity to pass down the skills related to farming to their family members.[3] These Apartheid-era policies are no longer in force, but their effects are impacting the current state of farming in South Africa.[4] For instance, “[j]ust four per cent of privately-held farmland is owned by black South Africans, . . . while [white South Africans] account for 72 per cent, . . . The overall population of the country is just 9 per cent white, and 76 per cent black.”[5] It was this clear inequality, among other justifications, that caused the President of South Africa, Cyril Ramaphosa, to declare that his government would be proposing an amendment to the Constitution to explicitly allow for government expropriation of land without compensating those from whom the land is taken.[6] This proposed amendment has made international headlines; for instance it even inspired a tweet from United States of America President Donald Trump.[7] Needless to say, the debate around South Africa’s efforts for land ownership reform by way of expropriation without compensation has created a contentious atmosphere both in South Africa and abroad.[8]

This widespread attention begs the question of what the current South African Constitution allows and whether land expropriation without compensation is the best way for the government to address past inequalities. President Ramaphosa argues that the South African Constitution permits expropriation without compensation because the process would stay true to the property clause’s “fundamental principles.”[9] The deprivation of property would not be arbitrary and the amendment would be used to expropriate land such as “unused land‚ derelict buildings‚ purely speculative land holdings‚ or circumstances where occupiers have strong historical rights and title holders do not occupy or use their land‚ such as labour tenancy‚ informal settlements and abandoned inner-city buildings.”[10] However, Section 25 of the South African Constitution does not explicitly state that expropriation can be done without compensation, which is why the President has proposed an amendment to make it clearer that expropriation without compensation is constitutionally permissible.[11] Section 25 of the Bill of Rights states that “Property may be expropriated only in terms of law of general application – (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.”[12] While this section may seem to limit the government’s ability to expropriate land without compensation, the last provision in this section states that “(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination.”[13] This last provision illustrates the importance of addressing the inequalities in land ownership that was caused by decades of discriminatory laws; regardless of the prior guidelines for property, if the legislature takes land to compensate for past racial inequalities, then it is constitutionally allowed to do so.[14] Thus, the South African Constitution, in the Bill of Rights, allows for land reform ­– and presumably expropriation – in any measure so long as that reform is for the purpose of “redress[ing] the results of past racial discrimination.”[15] President Ramaphosa has stated that the purpose of the land expropriation would be to address past wrongs and narrow the gap of inequality between white South Africans and black South Africans.[16] Therefore, it would appear that land expropriation without compensation is constitutionally allowable.[17]

Despite the constitutionality of the government’s land reform proposal, some people in South Africa argue that giving black South Africans farms will not help narrow the inequality gap because many black South Africans do not have the training necessary to successfully farm and make a profit.[18] There are also concerns that the government is not appropriately handling the farms it does provide for black South Africans.[19] It is these concerns that have led at least one white South African farmer to offer a training program on cow husbandry to “660 black ‘emerging’ farmers.”[20] This training program is illustrative of a potential solution to narrowing the gap in farming knowledge between white South African farmers and black South African farmers.[21] The lack of training and knowledge about how to farm has some agricultural federations, like Agri SA, worried that the proposed land reform measures will lead to less productive farms which will hurt the overall economy.[22]

In conclusion, it would appear that for the President’s land reform measures to be successful and for the inequality gap to truly narrow, black South Africans will need to have access to appropriate training programs to learn how to best utilize the land they would now have access to.[23] The Constitution makes it clear that land reform is a high priority in remedying past racial discriminations, but for land reform to have the desired positive impact it is equally important that training programs be offered to those who desire it.[24] President Ramaphosa’s proposed amendment to the Constitution might be more appealing to the local and international public if it included provisions that would help ensure the success of the farms being expropriated by offering training courses or resources. However, regardless of whether the proposed amendment contains provisions for farm training and resources, as long as the purpose is to “redress the results of past racial discrimination” then land expropriation without compensation should be considered Constitutional.[25]

*This blog post is a brief overview of a very complex and nuanced issue that has far reaching ramifications. There is a significant amount of history and race relations that form the background of the issue of land ownership in South Africa. This blog post should not be understood as a comprehensive evaluation of the policies and reasoning that led to South Africa’s current land ownership problem.

*This blog post is a brief overview of a very complex and nuanced issue that has far reaching ramifications. There is a significant amount of history and race relations that form the background of the issue of land ownership in South Africa. This blog post should not be understood as a comprehensive evaluation of the policies and reasoning that led to South Africa’s current land ownership problem.

[1] See A history of Apartheid in South Africa, SAHO, http://www.sahistory.org.za/article/history-apartheid-south-africa (last updated Mar. 15, 2018).

[2] See id.; Apartheid, Encyclopaedia Britannica, https://www.britannica.com/topic/apartheid#ref210040, (last visited Sept. 03, 2018).

[3] See Adrian Blomfield, White farmers warn of ‘new Zimbabwe’ as calls grow for land expropriation in South Africa, Telegraph (Aug. 31, 2018, 8:48 PM), https://www.telegraph.co.uk/news/2018/08/31/white-farmers-warn-new-zimbabwe-calls-grow-land-expropriation/.

[4] See Justina Crabtree, South Africa’s business-friendly president alarms investors with land grab proposal, CNBC AFR. (Aug. 03, 2018), https://www.cnbcafrica.com/news/2018/08/03/south-africas-business-friendly-president-alarms-investors-with-land-grab-proposal-2/.

[5] Blomfield, supra note 3.

[6] Crabtree, supra note 4.

[7] Naledi Shange, Trump wades into SA land debate with 'large scale killing of white farmers' tweet, Times Live (Aug. 23, 2018), https://www.timeslive.co.za/politics/2018-08-23-trumps-administration-to-monitor-land-expropriation-in-south-africa/.

[8] See id.; Blomfield, supra note 3.

[9] Ramaphosa outlines ANC’s position on land reform, Times Live (Aug. 23, 2018), https://www.timeslive.co.za/politics/2018-08-23-ramaphosa-outlines-ancs-position-on-land-reform/.

[10] Id. (quoting South African President Cyril Ramaphosa).

[11] See Id.; S. Afr. Const. Ch. 2 Sec. 25, 1996.

[12] Id. at Sec. 25(2)(b).

[13] Id. at Sec. 25(8). This provision goes on to state that when the government acts in accordance with this provision it must abide by Sec. 36(1).

[14] Luke Daniel, Land expropriation: Eight things the Constitution says about it, The S. Afr. (Sept. 03, 2018, 9:47 AM), https://www.thesouthafrican.com/land-expropriation-constitution-details-2018/.

[15] Id.; S. Afr. Const. Ch. 2 Sec. 25(8), 1996.

[16] Ramaphosa outlines ANC’s position on land reform, supra note 9.

[17] See Daniel, supra note 14.

[18] Blomfield, supra note 3.

[19] Id.

[20] Id. (quoting farmer Nick Serfontein).

[21] Id.

[22] Id.

[23] See generally id.

[24] S. Afr. Const. Ch. 2 Sec. 25(8), 1996.

[25] See S. Afr. Const. Ch. 2 Sec. 25(8), 1996; Daniel, supra note 14.