Crucial pieces of land ownership knowledge still missing

In broad terms 36% of the Eastern Cape is owned by the state and 64% privately, though the real situation is more complex.

What the Expropriation without Compensation (EWC) debate reveals is that all participants are handicapped by the paucity of facts about land. It is understandable that land is debated with emotion, but it needs a generally accepted foundation of fact. This article tries to provide an overview of land distribution and ownership in the Eastern Cape.

It is now common cause that the state’s two land audits (of state land in 2015, and privately owned land in 2017) are full of errors. For example, the area of state land in the Eastern Cape is reported as 9%, when in fact it is 36% of the province. The audit says there are 35939 Indian landowners, yet the total Indian population of the province is only 27929! Unbelievably, the 2017 audit even recommends basing the way forward for land reform on the 1936 Native Trust and Land Act. The AgriSA audit of 2017 is not much help at provincial level as their reported data is national. There are no answers to the questions that are crucial to sensible debate.

These include:

• How much state land is there?
• How much is available for land reform?
• How much is black-owned or -occupied and therefore not available for expropriation?
• How many white commercial farms are there that might be expropriated without endangering food security?
• How much land might be expropriated for distribution to black beneficiaries? and
• Where is it?

Land records
Land tenure is recorded in two separate systems: a formal system of survey, deeds registration and transfer of land parcels (farms and erven) which is accurate, fast, and expensive; a less formal system of rights on communal land held under:

• Customary tenure with no formal records;
• Permission to Occupy certificates mapped and recorded in land registers by magistrates until 1996 but now collapsing;
• Quitrent title, which is registered but limited; and
• Illegal sales by traditional leaders of communal land and by chancers in informal settlements.

The Surveyor-General EC and three Deeds Registrars say the informal system could easily be absorbed to create a unitary, equitable system.

State land
The government tried to divert attention from state land in both its audits. Land owned by state owned enterprises such as Transnet and Sanral is omitted from the audit. Cobbled together from various sources, the following figures emerge:

Eastern Cape state land

Communal land
(Customary, PTO, Quitrent)  4800000ha, 28 % of EC;
Sanparks & provincial parks 600000ha;
In state use (forestry, hospitals, SAPS etc) 400000ha;
State owned enterprises (Sanral, Transnet etc) Unknown;
Municipal land (including commonage) 200000 ? ha;
State agric land (Cisk/Transk untransferred) 125000 ? ha;
Untransferred land reform (CPAs, PLAs) 500 000 ? ha;
Total: +- 6600000ha, 36% of EC

At least half a million hectares of state land are available for redistribution to beneficiaries, most by simple transfer of title deed from state to beneficiary. This would be by far the most immediate, efficient route for land redistribution. However, it requires a reversal of policy, which – since 2009 – has been to refuse title deeds to anyone.State land should be the first land subjected to EWC to get the state moving on land reform, but who would administer it – the department that has failed to do so for ten years or more?

Black-owned or -occupied
This is more complex and wider in area than the audit indicates, especially in the Eastern Cape. It includes:

Communal land holders occupy 4.5m ha under customary allocation, permissions to occupy, quitrent and, increasingly, illegal sales by traditional leaders. None of these meet the section 25 requirement for secure tenure. They are precariously protected only by the Interim Protection of Informal Land Rights Act. After 24 years this government has not put in place land tenure reform for the majority of Eastern Cape, and South African, people. Expropriation is not a substitute. This land does not belong to traditional leaders.

• Community Property Associations, created for land reform but not given title to their land. Examples are those at Dwesa-Cwebe and Mkhambati.
• State agricultural land not transferred (40 years in limbo on “caretaker agreements” and leases after expropriation by apartheid government), eg Peddie South/Ngqushwa;
• 70000 quitrent title holders on about 210000ha in Transkei (not deemed freehold under Act 112), and not mentioned in the land audit at all;
• More than 300 white-owned farms bought by the state for land reform and leased (never transferred) to beneficiaries, who therefore have no title;
• Black-owned family trusts and companies. The number and area they cover are unknown. Buyambo Mantashe’s 521ha farm outside Khowa is not black-owned – not, at least, according to the state land audit, because it is part of the 61% of SA owned by trusts or companies that supposedly cannot be identified racially.
• CBOs account for 3.5millionha nationally, an unknown portion of which is black-owned (part of the 61%); and
• Black-owned land: 250000ha according to the state audit, but considerably more transferred/ purchased by previously disadvantaged people, according to the AgriSA audit.
• Owned by coloureds and Indians, which may be included under black-owned land, depending on who is doing the classification. (The audit refers to Africans, not blacks).
• Reportedly over one million RDP householders without the title deeds promised in the constitution, some of these in the Eastern Cape.
• The total of black-owned and black-occupied land is therefore at least 5425000ha, or 34% of the E Cape – a considerable area which (whatever the form of black tenure) is certainly not owned by whites.

Commercial farms
We are still left with critical unanswered questions of fact: How many white farmers are there? How many black farmers? Where has the 30% target been met? And 30% of what?For the purposes of debating land reform and, more recently, EWC, it is surely essential to know how many farms and farmers there are – but no-one knows for sure.

So the big unanswered questions are: how many commercial farmers are there, on how many operational farms, and over what area?

Certainly, there are not 11680 private individual farmers as the audit appears superficially to suggest; in part because in the audit “farm” means a surveyed land unit, a portion or remainder, not an operational farm in the everyday sense. But it leaves 54% of private land out of the results, this being the area it has not been possible to racially categorise because it is owned by companies, trusts and corporations.

There appears to be no up-to-date source. The department of agriculture’s data is for 1991. The most authoritative source is the StatsSA survey of commercial farms in 2007 giving 3500 commercial farms, of which most were individual, family and partner-owned farms.

Unfortunately, Stats SA has not been able to secure funding for this activity in the past 10 years so we do not even know how many commercial farms there are in 2018, let alone how many are white-owned. But if there were 3500 ten years ago and the trend has been downwards for many years, how many now? AgriSA EC has just over 3000 members, and is aware of some unregistered farmers.

The government’s 30% target is set in hectares, not number of farms, so what is the area of white-owned farms? Again, we do not know. The “race unknown” trusts and companies may be owned in the same proportions as racially categorised individual ownership, but no one knows for sure. If we estimate crudely, for want of any other method, that the racial division of the 54% is the same as that for individually owned land, then white-owned companies, trusts and so on own a further 3.9million ha.

Added to the three million ha of individually white-owned land, this comes to about 6.9million ha, or 40% of Eastern Cape.

Land reform so far
Since 1994 about 900 projects (farms?) totalling 600000ha have been acquired by the state from willing white sellers under a succession of redistribution programmes. At least a third, perhaps half, of these remain state land that has not been transferred to black beneficiaries.

Since 2009 they have been given short-term leases, useless for raising finance or encouraging commitment from new farmers. In fact, this is the same policy under which the farms in Ciskei – still in limbo 40 years later – were expropriated by the apartheid state. Ironically, because of the geography of the province, white farms – the target for expropriation – are predominantly in the drier western half, where cropping is an option only under capital and management-intensive irrigation, and smallstock and wildlife on large areas are the enterprises of choice.The restitution programme has left 200 Community Property Associations without title – some on formerly white farms, some on communal land, as the state favours traditional leaders over the constitution.

The most consistent record of land reform successes and failures in the Eastern Cape over twenty years has been the Farmers Weekly, publishing factual farm reports with photographs at frequent intervals.

Urban ownership
The urban picture is very different from the rural. Black ownership (361469 or 56%) is greater than white (169622 or 26%) in terms of number of individual land owners, but this is only part of a complicated situation of white suburbs becoming mixed; apartheid-derived forms of tenure, some since converted to ownership, some still municipal rentals; RDP houses with 8-year title restrictions, many still without title.

Most formal urban dwellings (60%) are paid off or bonded, 15% are rented.The 43% urban population of three million people in 762560 households live on private erven covering 139839ha and 130000 informal sites. Informal housing is found in every town, with 130000 households in 370 settlements with shaky tenure, some owned, many rented, most “rent free”.

Municipalities are struggling to cope with progressively formalising tenure so services can be provided. Some are on municipal land, some on private, some even on communal, all needing different processes of administration.If we put together what we do know with estimates of what is missing, then racial land ownership, provincially, may look something like the pie graph.

On the basis of this analysis, what realistic scope is there for expropriation without compensation? There are three very different potential target areas:

• State land (identified but not transferred with title to beneficiaries, lying on both communal land and acquired formerly white farms);
• White-owned farms;
• Land on which informal settlements are long established, whether municipal, private or state.

The first is easy technically, requiring only political will. The second needs careful thought in terms of the conditions of the parliamentary resolution, and the agricultural limitations touched on earlier. The third is complex, needing major resources of expertise, negotiation and policy development.

Coleman is a rural development, land and agricultural planning consultant in the Eastern Cape.