Current and apartheid land-tenure restrictions compared

Attorney Gary Moore was recently asked to explain the restriction that current critics of the government’s land policy are talking about when they say that the government in substance imposes on blacks the same land-tenure restrictions as were imposed under apartheid. Mr Moore responded:

“We explain this as follows. The government now imposes conditions when granting property to land-reform beneficiaries, which stipulate that the property is liable to forfeiture for prescribed reasons, that disposal of the land to a third party requires official consent, and that officials may repossess the property if the holder does not use the property to official satisfaction or is not in personal occupation. These are substantially the same as restrictions which applied under apartheid. Under apartheid, there was no security of tenure, rights of occupation were subject to forfeiture for prescribed reasons, and disposals required official consent. The government or statutory bodies owned the land. These racially-based land measures have been formally abolished. Yet the government administratively imposes what are in our respectful view substantially the same restrictions.

For example, under apartheid, rural residential or arable allotments could not, without permission in writing of the commissioner, be used for any purpose other than that for which occupation was authorised. The rights of the holder in or to the allotment or any improvements thereon could not be transferred, mortgaged, leased or otherwise disposed of except in accordance with the commissioner’s prior written approval. This permission in no case entitled the holder to compensation from the government’s land Trust for any improvements on such land; and such improvements would as a rule upon termination of the holder’s rights to the allotment, or cancellation of the permission to occupy, become property of the Trust without payment of compensation. A permission to occupy could be cancelled if the holder failed to comply with any of the conditions of such permission or no longer used the allotment for the purpose for which it was granted.

In 1991 all apartheid land laws were repealed by a statute for abolition of racially-based land measures. That statute provided for repeal or substitution of land-tenure proclamations and regulations made under the repealed laws in order to readjust matters in a non-racial manner. Yet the government continues administratively now to impose what are in our view substantially the same restrictions. Currently the government leases, and does not sell or grant outright, agricultural plots to land-reform beneficiaries, and ties the lessees to onerous lease obligations to farm the land or lose their rights. The government applies similar restrictive conditions and controls to residential housing allocated under the Reconstruction and Development Programme (RDP). These properties are commonly subject to an eight-year prohibition against selling or letting, and a condition that there be only one dwelling per property. Occupants are in the invidious position of not being able to realise their equity.

A leasing policy keeps the government in control of redistributed land and recipients. Officials repossess properties from land-reform recipients who are not using them to their satisfaction, or who are not in personal occupation. Blacks continue to get racially-inferior land tenure on farms and houses, not wealth-creating full ownership title. This prolongs the apartheid legacy. It perpetuates and exacerbates the problem of poverty in the new South Africa. It is assumed within the government that blacks act irresponsibly if they dispose of their property. But people sell or let their most valuable asset only after careful consideration. They usually need the money more than the property. They usually need the funds for legitimate reasons. Good reasons include moving elsewhere with better job prospects, starting a small business, educating children, or health care.

We submit that the government should not tie beneficiaries to the land by restricting their free right to dispose of the property. This imposes the government’s view and ignores beneficiaries’ own views of what will best sustain their livelihoods, employment and incomes. The government should not retain ownership or control of disposals of land the way it did under apartheid. The government should immediately redistribute its own land. A small proportion of superfluous government land will suffice to provide, free, to all landless and homeless South Africans the full unambiguous freely-tradable ownership of a plot of urban residential land or viable agricultural land. All land parcels permanently held by black South Africans on government- or municipal-owned land should be summarily converted to full unambiguous freely-tradable ownership at zero cost to beneficiaries.”

AUTHOR Gary Moore is a lawyer and specialist in the field of law reform. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Free market Foundation.

FMF Policy Bulletin / 29 November 2011