Your land is my land Bachelor Thesis - Political Science - LNU
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Bachelor Thesis – Political Science
Your land is my land
A case study on South Africa’s land expropriation
policy under transition
Author: Adam Karlsson
Supervisor: Emil Uddhammar
Examiner: Patric Lindgren
Term: Spring 2020
Subject: Political Science
Level: UndergraduateAbstract The poverty issues in South Africa is reaching unbearable levels. The land reform policy in place from 1994, which offered fair compensation for the land to be redistributed, had shown little results in dealing with the issue of poverty. In 2018 it was proposed that no compensation should be considered an option which eventually leads to the proposed bill to amend article 25 on property rights. The proposal saw a lot of outrage. This theory consuming study aims to give more context to the inclusivity of the proposal and how it contrasts to the original Article 25. By using inclusive institutions theory as a foundation, the study found that both the constitution under Article 25 and the proposed amendment can be explained and reasoned with inclusive institutions theory, but that the context of South Africa’s demographic and economic inequalities changes the justification for how radical the land reform should be according to the theory. Keywords Expropriation; Inclusive institutions; Land reform; South Africa Acknowledgements I would like to express gratitude for my supervisor, Emil Uddhammar, for his initial support and enthusiasm over the subject. Furthermore, a massive thank you to my dear family and friends whos’ support I would not have been able to do without during the longwinded period of writing this thesis. Thank you!
Table of contents
1 Introduction 1
1.1 Purpose and research questions 2
1.2 Delimitations 3
1.3 Disposition 3
2 Background 4
2.1 Native Land Acts and Pre-Apartheid 4
2.2 Apartheid 5
3 Previous research 6
3.1 Land reform 6
3.2 Property and poverty 8
3.2.1 Formalisation theory 8
4 Theoretical framework 10
4.1 Discussion 10
4.2 Inclusive and extractive institutions 11
4.2.1 Inclusive and extractive economic institutions 11
4.2.2 Inclusive and extractive political institutions 12
5 Methodology 14
5.1 Method 14
5.1.1 Research design 14
5.2 Material 15
5.2.1 Source criticism 16
5.3 Operationalisation 16
6 Results 18
6.1 Current policy 18
6.1.1 Constitutional property rights 18
6.2 Lay of the land 21
6.3 Implications of amending the constitution 22
7 Conclusion 24
8 References 271 Introduction
Poverty and inequality are indisputable facts in South Africa’s society and have
proven difficult to solve. Close to half of the adult population in South Africa live in
what is considered poverty (Statistics South Africa, 2019). Many people outside of
South Africa might have expected that the issues of segregation and inequality would
have been solved with the end of the Apartheid regime, but the fact remains that it is
still a largely unequal society with many different issues. Thus, in a country where
land holds a considerable economic weight, a discussion about land and its
distribution by demographic becomes an ever more present issue.
When the new president, former vice-president, Cyril Ramaphosa, entered office in
the middle of February 2018 it did not take long for new action to take place. There
had been a surge of political interest for political change under the previous
presidency of Jacob Zuma who resigned under pressure on the 14th of February 2018.
Half a decade earlier, the Economic Freedom Fighters (EFF) party was founded, as
the name might suggest, as a response to the perceived political inaction towards
bridging the inequality gap in society under Zuma’s government. A pivotal point in
the expropriation process occurred on 27th of February 2018, after a motion in the
South-African parliament, proposed by the EFF and later supported by the ANC and
the new president, it was agreed that expropriation could occur without compensation,
where it is deemed in the interest of the public (Parliament of South Africa, 2018).
Eventually, a committee was set up to review the possibility of amending the
constitution to allow for expropriation without compensation, and the bill was finally
accepted on the 17th of December 2019 as the accelerated land reform programme
and opened for an ad hoc review committee to amend the constitution by March 2020.
Unfortunately, several extensions of the deadline had already been made by May
(Baloyi, 2020) and it was finally interrupted by the novel virus COVID-19 which
postponed the final decision for the undisclosed future until the parliament could be
assembled for better discussion on the amendment (Head, 2020a). With the delay and
difficulties COVID-19 brought with it, Ramaphosa and his government have shifted
their focus to recovery after the pandemic, making grandee promises in their relief
1(30)packages for the needing all within the parameters of expropriation without
compensation (Head, 2020b).
Since this is where the amendment has taken a pause it has opened an opportunity to
test and discuss the bill of amendment in detail with established research methods and
theories. With that said, this study will be examining the constitution and the
amendment bill on article 25 according to the theory on inclusive and extractive
institutions coined by Daron Acemoglu and James A. Robinson in their book “Why
nations fail” (2003). Inclusive institutions attempts to answer why some nations are
ridden with poverty, stagnation, and no innovation, and why some succeed in the
same endeavour based mainly on the institutions of a nation's inclusivity (Acemoglu
and Robinson, 2003), as such the theory is appropriate for an examination of a
constitution. The result will be substituted with previous research on land reform in
South Africa and already completed studies on formalisation theory in South Africa,
as well as other perspectives on socioeconomic development and more. The study
will be using a theory-testing case study as its research method to compare the
differences between the constitution under article 25 and the drafted amendment
according to the theory and control the applicability.
1.1 Purpose and research questions
The purpose of this study is to analyse how the land reform policy in South Africa,
employed in the current constitution under article 25 has developed, and if it aligns
with the theory of inclusive institutions. A comparison of the result with the
amendment proposed in December 2019 is also made from a sustainable development
perspective that is evident in inclusive institutions. To this end, two research questions
have been chosen and they are as follows:
• How does the current South African constitution on property juxtapose with
inclusive institutions criteria?
• How can inclusive institutions be applied to the proposed amendment to the
constitution in South Africa?
2(30)1.2 Delimitations
Only article 25 of the constitution, which concerns itself with property rights will be
examined as it is the only relevant part of the constitution. This study also does not
concern itself with making any attempts to propose solutions to the intricate issue of
land reform and land expropriation.
1.3 Disposition
The thesis’ first chapter has been presented with an introduction of the research
problem and purpose. The succeeding chapter will present a background of the
situational analysis of South Africa at the end of apartheid. In chapter three, previous
research will be presented split into a part with discourse regarding land reform in
South Africa and discourse based on inclusive socio-economic justice. Chapter four
presents the theoretical framework based on research on inclusive and extractive
institutions theory along with an attempt to operationalise the theory to be useful for
the result. Following that, chapter five discusses the method and material chosen for
the thesis. The penultimate part consists of the empirical review of the accumulated
material in chapter six and, finally, a conclusion of the thesis where the research
questions will be answered in the last chapter which also includes closing statements
and suggestions for future research.
3(30)2 Background
This chapter contains a historical background to the South Africa of today, it serves
to bring context to the reader about the land reform.
2.1 Native Land Acts and Pre-Apartheid
Initially isolated from the world, the African tribes lived as hunters and gathers. At
some point unclear to historians some tribes started to farm and engage in pastoral
farming practices. They were first visited by Portuguese explorers who confined their
stay to the Western Cape but had little interest in colonising as they already held
several other outposts in today’s Angola and Mozambique. The area in the Western
Cape was later settled by Dutch in the middle of the 17th century who created the
foundation of the Cape Colony or as we know as Cape town today. A period of
conflicts followed with Khoisan tribes until the British Empire conquered the Cape
Colony in 1795, and again in 1806, during the turmoil in Europe where the Dutch
temporarily lost their sovereignty (Thompson, 1996: 31-33, 52).
Under British rule the Cape Colony was integrated into the empire, the Dutch settlers
were pushed eastwards, and a lot of native-owned lands were confiscated from the
Khoisan in the Western Cape area. For over a century, the native land would be
confiscated, wars would be fought with both the natives and the Dutch settlers who
remained as “Afrikaners'', and resources would be exploited. Eventually in 1910, the
British created what was known as the “Union of South Africa'' joining the British
Afrikaner colonies together into a self-governing dominion of the British Empire. At
the time, the population estimates were about 4 million blacks, 750 thousand others
and about little over 1 million whites (Thompson, 1996: 52-53, 76, 85, 153).
The Union of South Africa did not start with Apartheid in 1910. It was a gradual affair
which stripped blacks and other minorities of their rights to property and eventually
dispossessed all but a few tribal areas. The white elite had already started to
consolidate their possessions.
The “Native Land Act” of 1913, or otherwise referred to as the “Black Land Act”
infamously, was enacted to prohibit black people from acquiring new property. It was
4(30)specified that blacks could only buy land that was connected to a territory owned by
a native person or group. At the time, the land reserved for blacks was down to 8% as
a result. With this law, a new wall between the whites and the blacks were created
and would lay the foundation of what would later become Apartheid. At this point,
the belief that segregation was a desirable thing came into action, and any attempts to
breach the law was punished by imprisonment and/or forced labour (Kloppers &
Pienaar, 2014: 5-7).
Fast forward to the “Native Trust and Land Act” enacted in 1936 and the government
had created a state agency, the “South African Native Trust'', with the intent to govern
land in the stead of the native black population. The act also revoked the right to
owning land for individual blacks, as such small-scale farming was abolished. A lot
of the land previously allocated for black natives was transferred to the state agency
for “safe-keeping” which meant that native settlements within the agency-controlled
territory had no control over the development of the land. Black lands within South
Africa had been increased to 13% by 1936, but the act also made it problematic for
black people to live outside of the assigned territory without government approval.
Funds from the land were used to further expropriate any black-owned land outside
of the determined area for “fair market value of the land without any improvements”
(Kloppers & Pienaar, 2014: 7-9). As far as acts go, the “Native Trust and Land Act”
served to further increase the segregation between whites and blacks.
2.2 Apartheid
The segregation that the Apartheid government enforced culminated in two acts. The
first was the “Group Areas Act 41”, enacted in 1950 and was the first true Apartheid
act. It split the land of the country into three uneven groups that were declared
designated areas for each of the three races in the country. It also allowed the
government to forcibly remove anyone privately owned property within the “wrong”
area based on their racial group alone. The second act was the “Group Areas Act 36”
enacted in 1966. Serving mostly to consolidate the act of 1950, the “Group Areas Act
36” also enabled government leaders to change group assigned areas to move people
around. To enforce the new act the “South African Police Force” were also granted
5(30)more powers, restrictions that previously necessitated warrants were removed
(Kloppers & Pienaar, 2014: 9-11).
Prior to the fall of Apartheid, the government made efforts to ease tensions by
reneging on some of the older laws that prevented black people, and other minorities,
from acquiring land. The “Abolition of Racially Based Land Measures Act” of 1991
was one such measure that reverted all previous acts restricting land acquisition based
on race (Kloppers & Pienaar, 2014: 12). Society was no longer divided by three
groups according to law and all races could once more own property everywhere in
the country in theory.
3 Previous research
This chapter contains a compilation of previous research relevant to the study that
will give a deeper context to the empirical review.
3.1 Land reform
Land reform has been researched numerous times. For this study, a few have been
selected to broaden the perspective.
There is an issue of negligence in the land reform programme. Hall and Kepe (2017)
write that land reform in South Africa is deep trouble. They bring a perspective that
the policy the government has pursued since 2005 has not brought the intended effect.
The new farmers are given land under a leasing program from the state and their
partners. Failure to pay rent leads to what they call “caretakerships” to absolve the
need to pay. Under those conditions, the renters are not bound to work on the land for
more than three months and can be evicted at 30 days’ notice by the state. Hall and
Keep argue that this is against the goal of proper distribution of land and undermines
any investment in any received property since failure to pay can lead them to be
revoked easily. This leaves little in the way of property security (Hall and Kepe,
2017).
As a neighbouring country that went a different route to South Africa regarding land
reform and is often used as a counterargument for the expropriation of land in South
6(30)Africa. Sibanda (2010) investigated the matter and concluded that the countries have
many similarities, but also important differences.
In the study, it is revealed that land has incredible meaning to the population and a
huge factor for stability in both countries. When stability and support reached
dangerously low levels in Zimbabwe the government acted on it and promised new
land to the indigenous population expropriated from white farmers. The government
also supported the violence and raids conducted on white-owned farms which left part
of the population unprotected by state and law, many died. Contrast this with South
Africa who has declared these types of invasions unlawful and unconstitutional. All
land must transfer through legal means as to not disrupt the economy or lose the state
to anarchy. Another lesson is the continued support for new landowners after
redistribution as if left to their own resources and ability their productivity might not
fulfil the quota that is necessary to ensure continued food security in the country.
Therefore, South Africa must also support farmers even after the transaction is
complete or else face a food crisis. According to Sibanda, South Africa did not give
enough government support to farmers within the country. Sibanda also notes that the
land reform in South Africa has been too slow and that the result has been a build-up
of informal housing in urban centres and more poverty (Sibanda, 2010: 96-101).
A little has been written on the new expropriation bill. Sibanda (2019) took to writing
after the bill was proposed at the end of 2018. In the paper, it is argued that land
ownership, specifically that of commercially arable land, should be a social-obligated
matter that requires the owner to fully utilize the potential of the land and not be left
to be neglected and unused. Concerns are raised over efficiency in commercial farms
and food security. Sibanda continues with the historical definition of ownership and
highlights that property is not a right in and of itself but serves a function in society
to benefit the community. He argues that property should not be given without
expectations and that this is necessary to avoid a crisis (Sibanda, 2019: 130-3, 144-
5).
7(30)3.2 Property and poverty
3.2.1 Formalisation theory
The value of land changes with the connotations it has in society and depends on
philosophy. Hernando de Soto (2003) attempted to demystify the apparent failure of
capitalism outside the western world in his book “The Mystery of Capital”. In it, he
presents the result of conducted surveys across five cities in the Third World, as well
as gathered facts across the different continents, the last decade of the 21st century to
measure the accessibility of capital (Soto, 2003: 5). He compiled this book on the
principle that Capitalism and the market can respect the desires of the people. While
De Soto does not consider himself a “die-hard” supporter of capitalism, he says that
it’s the only way to achieve equality and freedom across the board because it alone
can support and generate economic growth and surplus beyond limits of other
economic systems (Soto, 2003: 228).
De Soto operates under the concept of “Braudel’s bell jar” which describes the
disparity of capital accessibility from “inside” and “outside” the supposed “bell jar”
with the proposed goal to “lift it” entirely. The inside consists of the established elite,
along with foreign investors, which form a privileged group owning commodified
property protected by law and expensive social orders the poor cannot access (Soto,
2003: 67). The outside constitutes those who live without those privileges. Since those
who are outside of the “bell jar” do not own their property within the legal framework
they often must turn to extra-legal activities (Soto, 2003: 156).
It is the extra-legal activities that lead to what de Soto calls “dead capital”, something
that is very rampant yet almost invisible from a financial perspective. “Dead capital”
creates uncertainty as there are no legal mechanics to enforce rules, and since neither
documentation nor safety nets exist it is impossible to exchange, hold deals, and
owners accountable. The uncertainty leaves proceedings unstable and personal
investments risky which do not create incentives to develop capital. It is the
underdeveloped capital that could generate a lot of wealth across the developing
world. Contemporary estimates held that the world lost trillions in revenue by missing
out on “dead capital” and remains unresolved (Soto, 2003: 32, 35).
8(30)De Soto also states that the developing world is slow to catch up with the west in
terms of capital is not the lack of resources or even technology, it is the rapid transition
that has been made which causes growing pain. Catching up centuries of industrial
development in countries tenfold the relatively minor population that the west
fashioned at the beginning of the 1800s in only a few decades is not only ridiculously
hard, but it is also bound to create unique problems that the West did not have to deal
with in their gradual transformation. Cities that were designed with infrastructure to
support a limited number are experiencing mass immigration from the countryside
that the authority had trouble both accommodating and keeping track of. A logical
conclusion would then be that extra-legal activity was the only choice for most of the
newcomers, and the only “system” they could tap into (ibid: 70-71, 73).
Application of the formalisation theory in South Africa has been done before
(Kingwill, Rosalie, Ben Cousins, Tessa Cousins, Donna Hornby, and Lauren
Royston, 2006). In their paper, de Soto’s formalisation theory is written off as too
simplistic an idea to explain and solve poverty based on evidence found in South
Africa. They extrapolate that the formalisation theory would have consequences for
the impoverished based on de Soto’s overgeneralization of all poor people’s situation.
The formalisation of all property, or titling, does not have to mean that properties are
protected from other actors, instead, it would even increase the costs to unliveable
levels of the many impoverished which would also increase homelessness. They also
claim that De Soto’s solution would undermine current informal property schemes
solutions to housing without proposing any counteraction to remedy this and affecting
the poor negatively. Finally, De Soto’s lens does not work in rural areas where rules
of ownership today are never confined to a simple property owner. Instead, the
authors suggest that custom solutions must be applied in poor areas with regards to
informal tenure in extra-legal sectors, not rely on Western capitalist models (Kingwill,
et al., 2006).
Another usage of the formalisation theory in South Africa was made by Rudman
(2010) who studied disenfranchised women’s accessibility to properties post-
Apartheid with a feminist perspective. She presents arguments that formalisation of
land would lead to increased value and demand for titled land which would likely hurt
female landowners and women’s property rights because they are often vulnerable to
9(30)extortion and would need more protection (Rudman, 2010: 80-81). Rudman reiterates
some points from Kingwill, et al. (2006) such as the oversimplification of poverty and
mentions that formalisation of property ownership usually reverts to the male in a
household instead of shared ownership as in informal arrangements. She also states
that some functions of property such as livelihood and identity are duly ignored by
De Soto. As is the idea of redistribution of property, only protecting the current formal
titles, which does not exist within de Soto’s work according to Rudman which she
argues is missing the problem in South Africa. It is further argued that land lived on
by poor disenfranchised women are already owned by landlords and the state, and by
de Soto’s interest, it is only informal land that should be turned into more formal land
which does not serve in the interest of the poor (2010: 253-255).
4 Theoretical framework
This chapter will present the preconceived concepts and the theoretical framework
upon which this thesis rests upon. Firstly, a short discussion introduces the theory.
The theory is inclusive institutions and has been split into two parts, economic and
political that follow the discussion and the chapter ends with an operationalisation.
4.1 Discussion
In the previous chapter, formalisation theory was introduced as was its application on
the South African land reform programme as it was before the proposed expropriation
bill. The previous research shows unfavourable results while using formalisation
theory as a theoretical base, therefore a different theory is called for. Introducing
inclusive institutions or inclusive economic institutions, as coined by Daron
Acemoglu and James A. Robinson in their book “Why nations fail” published for the
first time in 2012. In it, Acemoglu and Robinson searched for the explanation as to
why two otherwise similar nations could have so very different economic growth and
prosperity or why countries in different parts of the world turned out the way it
eventually did (2012: 1-5). The authors discredit a few other theories that they claim
are too weak to explain inequality in the world and the “lay of the land”. The
geographical hypothesis is described as inequality based on location and climate, that
10(30)a temperate climate makes for better economic success than a tropical climate because
it is easier to work in. Jared Diamond who argued for the available flora and fauna
contributed the most to the topic of why some societies developed and while others
did not. Nevertheless, Acemoglu and Robinson criticized this theory on the account
of being unable to explain modern examples of poverty in the modern world or
variation between countries on the same geographical landmass (2012: 48-9, 51-4).
The culture hypothesis suggests that beliefs, values, and ethics influence the levels of
prosperity to such a degree that it should be considered relevant which is also
discredited not only because it has proven to be largely irrelevant because the reason
why technological advancement historically was not necessary for many societies in
the past, but also because of the implications that some people just cannot build
prosperity because of cultural identity (Acemoglu & Robinson, 2012: 56-8, 60).
Lastly, A. and R. debunk the hypothesis of ignorance, that political leaders in some
places are not capable of reversing poverty and stagnated economies and need
expertise that other places have. The hypothesis mistakenly assumes that issues of
things such as poverty could be solved by simply employing enlightened ideas, which
A. and R. do not find to be true because institutional patterns employed in a
“successful country” might be devastating to another. Thus, bringing all the
hypotheses together, A and R argue that each country must instead be judged after
the efficiency of the state and governance as leaders do not create poverty by mistake
but with an intention to satisfy demands within the political climate within a country
itself (2012: 63-4, 67-8).
4.2 Inclusive and extractive institutions
Acemoglu and Robison distinguish inclusive and extractive institutions into two
interdependent categories: economic and political institutions of a state.
4.2.1 Inclusive and extractive economic institutions
According to A. and R., “countries differ in their economic success because of their
different institutions, the rules influence how the economy works, and the incentives
that motivate people.” (Acemoglu and Robinson, 2012: 73). What A. and R. are doing
here is shifting the direct responsibility for prosperity from the population to the
11(30)political decision-makers. It is through an equal opportunity society with freedom of
choice both privately and publicly, adequate public services that protect the interests
of the law-abiding population and help with providing basic needs through
infrastructure, and a reliable law system that protects private property, the rights to
do business and utilise skills to the best of the abilities of the citizens. These rights
support economic growth as citizens with guaranteed freedoms and secure property
rights are more willing to invest their hard-earned capital and effort to build
something for themselves or to innovate. Contrasted to the citizen who expects their
investment to be taken from them at the whims of the government or other actors
within the country. The caveat is that for a country to be considered to have an
inclusive economic institution, the rights must apply for all participants in society,
else it is an extractive institution. For example, slave-based economies do not count
as inclusive regardless of how the free population is treated with regards to rights,
security and resources since the unfree population do not have access to the same
liberties or opportunities and are therefore considered missed opportunities for
innovation and economic growth. In the end, such societies have institutions that are
considered extractive (A. and R., 2012: 74-6).
This view of property rights and inclusivity of the entire society will be important for
this study as we will later see as it paints a clear picture how property should be
protected according to Acemoglu and Robinson’s equation.
4.2.2 Inclusive and extractive political institutions
As already hinted at, the state plays the most important role in society with inclusive
institutions. It is the only player with the power to act as a central authority efficient
enough to provide for the people in society (Acemoglu and Robinson, 2012: 76).
States are governed by politics, and politics is in turn chosen by the society it exists
within. Politics are important factors to take into consideration when discussing
institutions because the stakeholder’s interests and incentives might not align with
inclusive economic institutions. In cases where a landed elite of a minority groups
holds political control of a country without much in the way of political opposition,
for example during Apartheid in South Africa, inclusivity is downright
12(30)disadvantageous for the status quo and have little incentive to give away their power
to their demise. Conflicts over control over the institutions are won depending on
political power distribution within society. Those with this power decide the outcome
of the political institution's status as inclusive or extractive. An institution can
typically only be considered inclusive if the political power is spread out between
multiple groups in society and not confined to a small elite group. A. and R. have
noted a correlation between pluralist power division and inclusive economic
institutions (A. and R., 2012: 79-80).
A second factor regarding inclusive political institutions is the power of the central
authority itself. A weak state with powerful individuals or groups of stakeholders will
fall into chaos as justice and violence are taken into their own hands. Without some
degree of centralisation and “monopoly on violence” a state cannot satisfactorily
provide the public with the necessary components to make their economic institutions
inclusive (A. and R., 2012: 80).
To summarise, inclusive political institutions are assigned states that are pluralistic
and centralised, and inclusive political institutions, in turn, foster inclusive economic
institutions. Acemoglu and Robinson, argue that there is a stronger connection
between inclusive institutions and the same applies to extractive political institutions
who are more likely to create exclusive economic institutions (2012: 81).
13(30)5 Methodology
In this chapter, the choice of method for the study will be presented, it also contains
scientific backing as well as a presentation of the material and source-criticism.
5.1 Method
In this study, the empirical evidence is broken down into three parts; the legal
application of property rights and accessibility in the constitution currently enforced,
the actual socio-economic situation presented through statistics, and a part dedicated
to the implications of the expropriation bill. To reach a satisfactory result, a relevant
method needs to be defined.
5.1.1 Research design
Choosing what would be the correct research method for this study depends heavily
on the research questions. It is also the most important for selecting the patch of a
research process according to Esaiasson, et al, (2017: 87).
To select research design it must first be known if the research problem is descriptive,
that it means to explain what a phenomenon is or how it is to come about, or
explanatory, where “why”-questions are asked to go even deeper into answering the
problem (Esaiasson, et al, 2017: 88-9). Additionally, an explanatory approach is
further distinct from theory testing and theory consuming research design which
differs how central the case is for the study or if the theory is more central, even if the
serious difference between the two approaches is slight (Esaiasson, et al, 2017: 42-3).
This study is associated with the former.
The selected research questions are heavily dependent on the theory presented in
chapter four and is trying to evaluate the usefulness of applying inclusive institutions
to the modern discussion on land expropriation in South Africa to see if it holds up to
scrutiny. Since the purpose is to apply the theory to South Africa’s land reform policy,
the study then becomes a case study. Case studies are best suited for the variety of
empirical material that has been selected, and by taking the research questions into
account, which are based on “how” and “why” type questions, becomes a good
14(30)foundation to justify the use of a case study design (Yin and Nilsson, 2007: 22-24).
Therefore, this study chooses to apply a theory-consuming case study as a research
method.
5.2 Material
With part of the research design in place, the analysis model used to work with the
data collected for this study needs to be defined. Data can be analysed in many ways.
For this study, using a qualitative content analysis has been deemed the most relevant.
According to Esaiasson, and company, qualitative content analysis is used to derive
meaning from the text’s relevant parts. The advantage of this method is that the
material can systematise the content for easier inspection. By reading and analysing
the material holistically the most relevant information can be collected and then be
applied to answer the research questions (Esaiasson, et al, 2017: 211-4). With this
study, the focus is to critically evaluate the alignment of the documents per the
inclusive institution theory and is thus idea central. It does not matter what ideas the
actor, in our case the government who wrote the constitution and expropriation bill,
holds but rather that the idea holds in accordance with the theory (Esaiasson, et al,
2017: 224).
The material gathered for this thesis’ empirical chapter is mostly centred on open
official governmental documents, surveys, and drafts. The constitution under article
25 concerning land and property rights is central to the first part of the analysis
because it is the official source which discloses the stance on inclusive economic
institutions regarding property and accessibility. Any survey or statistic that makes
up the second part of the empirical evidence have been retrieved from the department
of agriculture of South Africa or other relevant departments. The last piece of the
empirical section is based solely on the expropriation bill that was introduced in
December 2019 titled “CONSTITUTION EIGHTEENTH AMENDMENT BILL”.
Anything complementing the empirical evidence will have been found by using the
keywords ‘land reform’, ‘South Africa’, ‘expropriation’, or ‘inclusive institutions’
through google searches or the database “OneSearch” available at LNU.se/ub/.
15(30)Previous research has been collected similarly by using similar collecting methods as
mentioned.
The usage of news articles and opinion pieces have been carefully and sparsely used
solely for context to events that transpired ignoring any irrelevant research and/or
conclusions. Among them is the online newspaper “The South African” which is an
independent news outlet (The South African, 2020).
5.2.1 Source criticism
It is important to be careful with the choice of sources and how to apply them with
context to avoid errors and falsehoods. The Metodpraktikan offers four different rules
or criteria to follow for a more secure and grounded assessment of the material:
authenticity, neutrality, simultaneity, and leaning (Esaiasson, et al, 2017: 288).
Because the central sources and empirical material were gathered directly from the
state’s official documents, including constitutions, amendments and official statistics
released for the public, it can be concluded that the validity is facilitated in the fact
that they are primary sources and valid. Each document was also published
simultaneously with the political timeline, every amendment updating the information
occurred at the onset of political change. To pinpoint the leaning of the documents
we must only look for the reason, for which the answer is simple; to inform the public
about political change and create transparency, to this end they are also written clearly
and encompassing. As such there should be little doubt about the reliability of the
official documents. Political events could also be strengthened with further reliability
through quotes and statements from official personnel and politicians (Esaiasson, et
al, 2017: 291-5).
5.3 Operationalisation
To ensure that the study can be replicated accurately without systematic error, it needs
to be operationalised by defining variables and indicators to make them work well
together (Esaiasson, et al., 2017: 56-7). Thus, the theoretical definition will be
operationalised with the following operational indicators:
16(30)Table 1. Operationalisation schedule
Concept Theoretical definition Operational indicator
-Inclusive economic -The state fosters -Property rights secure
institution economic growth -Liberties include all
through inclusive policy. citizens
-Inclusive political -The state is strong and -Everyone has a say in
institution has a pluralist power the transition
tradition -The state will be able to
enforce the change
17(30)6 Results
In this chapter, the aggregated research has been compiled into three subchapters.
The order is as follows, the first chapter deals with South African land reform policy
as it is today, the second subchapter presents the effectiveness of the land reform to
date, and the final subchapter discusses the amendment of Article 25 within the
realms of inclusive institutions.
6.1 Current policy
South Africa has been a democracy for twenty-five years now and along the years
they have worked extensively to redistribute the land. The land reform programme
has been a continuous process and to help achieve it, the government instituted 21
legislative changes to date. The government has stated that their land reform
commitment is to support black farmers and return native lands expropriation before
and under Apartheid (South African Government, 2020).
6.1.1 Constitutional property rights
Acemoglu and Robinson (2012) claim that secure property rights are pivotal for an
inclusive economic institution. To make any conclusions we must first look at the
current constitution on Article 25 and some of its relevant content as it was written
and adopted in 1996:
“25. Property
1. No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of property.
2. Property may be expropriated only in terms of law of general application
a. for a public purpose or in the public interest; and
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.
3. The amount of the compensation and the time and manner of payment must
be just and equitable, reflecting an equitable balance between the public interest
and the interests of those affected, having regard to all relevant circumstances,
including
a. the current use of the property;
18(30)b. the history of the acquisition and use of the property;
c. the market value of the property;
d. the extent of direct state investment and subsidy in the acquisition and
beneficial capital improvement of the property; and
e. the purpose of the expropriation.
4. For the purposes of this section
a. the public interest includes the nation's commitment to land reform, and to
reforms to bring about equitable access to all South Africa's natural resources;
and
b. property is not limited to land.
5. The state must take reasonable legislative and other measures, within its
available resources, to foster conditions which enable citizens to gain access to
land on an equitable basis.
6. A person or community whose tenure of land is legally insecure as a result of
past racially discriminatory laws or practices is entitled, to the extent provided
by an Act of Parliament, either to tenure which is legally secure or to comparable
redress.
7. A person or community dispossessed of property after 19 June 1913 as a result
of past racially discriminatory laws or practices is entitled, to the extent provided
by an Act of Parliament, either to restitution of that property or to equitable
redress.
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, provided that any departure from the
provisions of this section is in accordance with the provisions of section 36(1).
9. Parliament must enact the legislation referred to in subsection (6).”
Constitution of the Republic of South Africa (1996).
What we can deduct from subsection one of article 25 is that a property owner in
South Africa that owns their own land privately, not bound by leasing or other means,
are secured by the state through law. The landowner is not obligated to sell their lands
or can have it be taken from them by the state without a valid reason. This is in
accordance with inclusive economic institutions, as A. and R. (2012) put it, the right
to secure property is a fundamental part of being a member of a state with inclusive
institutions.
Subsection two of article 25 specifies that for property to be expropriated, it must also
be bought from a restricted set of requirements that stops arbitrary expropriation
without good reason. The settlements would be settled in court under the right of law.
19(30)As far as inclusive mechanics, relying on an independent judicial system that handles
the disputes and the expropriation of land is supported by inclusive institutions. To
the inclusive economic institutions, it is more important for the criteria that the
freedom and ingenuity of their citizens are respected and given a safe platform to hone
their skills. While it is unfavourable to have a looming threat of expropriation, the
ultimate right to not have property taken with arbitrary means (Acemoglu and
Robinson, 2012).
This is further cemented in subsection three and four, where the right to compensation
is defined and required to be fair and beneficial to the landowners who are to sell. The
constitution respects the time, skill and capital invested into a property which is
important for it to be considered an inclusive economic institution. Property is ranked
from usage and efficiency, which to inclusive institutions is an advantage for
economic growth, the underutilised property is a waste of resources that inclusive
institutions do not abide. Another point is that the admirable goal of equity and
equality in society, the reasoning behind every expropriation is to further the life of
every South African and give them access to resources otherwise out of their reach.
Inclusive economic institutions require equal opportunity, which makes these parts
important mechanics to be upheld (Acemoglu and Robinson, 2012).
Subsection five, six, seven, and eight of the Article 25 details further engagement to
end inequality in South Africa, the imperative object here is clearly to make amends
for past mistakes. The blacks that lost their land to the racist land reforms in the early
20th century need have their lands returned or be compensated according to the
subsections which in total agreeance with inclusive economic institutions that
promote giving equal access to resources. Only when citizens have access to the
resources can they utilize their skills and abilities in favour of the state and contribute
to economic growth and prosperity (Acemoglu and Robinson, 2012). Furthermore,
the subsections also cover increasing property security for land that is currently
undermined by past legislations and deals which also plays into the property security
necessity championed by inclusive institutions.
To summarise, the constitution under article 25 is not unsound in terms on inclusive
institutions, it is very applicable to the different requirement for building a society
20(30)with inclusive institutions at face value but there obviously more to the story since it
is to be amended.
6.2 Lay of the land
Since the constitution is so applicable with the inclusive institutions the problem must
be found in the lay of the land. Inclusive institutions stress the importance of equal
accessibility (Acemoglu and Robinson, 2012), but the reality in South Africa is
different.
The land division in South Africa is based on an uneven distribution among the
demographics and the winners of the distribution are primarily whites who own most
of the private land. As of latest surveys from 2017 presented by the Department for
Rural Development and Land Reform (2018), white South Africans own
approximately 79% of the private land in South Africa, a number that includes all
types of land and property in South Africa, not arable land. Of the arable land circa
72% was owned by whites divided by approximately 95 673 individual owners with
the largest concentration around the Western Cape, Northern Cape, and Free State.
Only about 4% was owned by blacks. Inequity is also found within the gender-based
distribution. Only 13% of owners of arable land are women with another 11% found
in the category of men-women co-owned agricultural property, which means that men
have 71% of the arable land owned privately according to the Department for Rural
Development and Land Reform (2018).
The unbalance of the minority group owning most of the land and controlling the
economy is found within the criteria of extractive economic institutions, shown in the
theory chapter. Just because the rule of law is sound and inclusive, does not mean that
it is accessible. Inclusive institutions fall into the same trap as formalisation theory,
as noted by Rudman (2010), the land that is already formalised is protected at such a
degree that it is hard to redistribute to the poor. Because white landowners do not
have incentives to sell their lands and only source of income if they are profitable and
the alternatives are reliance on urbanisation and potential poverty down the line of
descendants. Acemoglu and Robinson do not blame the people for their inability to
21(30)aid the economic growth of the state, and so the state must be held accountable to
reach that goal (2012).
Instituting secure property in an already unequal society has some challenges that
prevent solutions to poverty and inequality. The constitution under article 25
subsection 1 does not take this into account, it is a compromise for the landowning
elite and the majority poverty induced population. By promising reforms, they can
maintain stability within the country for a while longer. Contra that with Zimbabwe
that did not go down that route and directly uprooted the agricultural sector, as found
by Sibanda (2010). South Africa maintains the rule of law and monopoly on violence
(Sibanda, 2010).
To summarise, the situation in South Africa is stagnating, the land will not be notably
redistributed unless there is an incentive for the landowners to sell their lands or a
change of policy.
6.3 Implications of amending the constitution
If a change of policy was the ultimate answer, this amendment might be the missing
puzzle piece. Since South Africa has been revealed to have highly extractive
institutions with regards to the access to resources and, with other words, property.
The proposed amendment to the constitution under article 25 reportedly means to
institute expropriation without compensation. This has some implications, but to draw
any conclusion we must first look at the draft of “Constitution eighteenth amendment
bill” as it was given to review in December 2019:
“Amendment of section 25 of Constitution
(a) by the substitution in subsection (2) for paragraph (b) of the following
paragraph:
‘‘(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: Provided that in accordance with subsection (3A) a court
may, where land and any improvements thereon are expropriated for the
purposes of land reform, determine that the amount of compensation is nil.’’;
22(30)(b) by the substitution in subsection (3) for the words preceding paragraph (a) of
the following words:
‘‘(3) The amount of the compensation as contemplated in subsection (2)(b), and
the time and manner of any payment, must be just and equitable, reflecting an
equitable balance between the public interest and the interests of those affected,
having regard to all relevant circumstances, including—’’; and
(c) by the insertion after subsection (3) of the following subsection:
‘‘(3A) National legislation must, subject to subsections (2) and (3), set out
specific circumstances where a court may determine that the amount of
compensation is nil.’’.”
(Government of South Africa, 2019).
The draft shows a proposed addition to the article 25 subsection two under paragraph
b which states that land must be subject to compensation, which here, under paragraph
a means to include the court into the expropriation. It says that courts may
expropriation without any compensation for any improvements to the land. Inclusive
institution theory would see this as a violation of property rights and security because
it does not incentivise investment of capital or skill. However, since it has been
established that South Africa already has a very extractive economic institution, the
inclusive institutional qualities of the constitution under Article 25 would stand in the
way of remedying the reality of South Africa’s extractive economic institutions
(Acemoglu and Robinson, 2012).
Amending the constitution under article 25 allows for the uprooting of the remnants
of Apartheid and better inclusivity of all South Africans. The decision to give the
court the right to nullify any compensation requirements serves to speed up the
redistribution in the country. Inclusive institution views this as an absolute necessity
(Acemoglu and Robinson, 2012). Since the government have strong ethics of only
justifiable expropriation in subsection 1, the country does not have to fear total
anarchy. Only lands concerning the Native Land Acts of the 20th century will be
affected, righting wrongs for a better future for all South Africans, which often means
that parts of the land will be redistributed and the white farmers will retain the rest.
There is a promise to not sacrifice food security or prosperity (South Africa
Government, 2020).
23(30)Most of the constitution has not changed, so in many ways, the constitution is still
within the bounds of inclusive economic theory. With context, the new constitution
will increase the potential for innovation and who currently live in squalor or squatters
once they get out of poverty.
7 Conclusion
The study has attempted to show how inclusive institutions can apply to the land
reform policy in South Africa. This thesis has focused on answering two research
questions:
• How does the current South African constitution on property juxtapose with
inclusive institutions criteria?
• How can inclusive institutions be applied to the proposed amendment to the
constitution in South Africa?
The current constitution under Article 25 holds many of the aspects that makes
institutions inclusive.
It grants security to the people and ensures that property rights are respected under
the policy that no unlawful or unjustified. It also discerns that there are mechanics to
help people out of poverty by giving them land under the assumption that there is any
land to be given.
The contextual problem with the constitution is that there is no land to be redistributed
when people are given the option to give up land for other demographics for pay or
to keep their land without any ramifications. If the society is not equipped to distribute
resources or if the resources are already confined within one group, the inclusive
institutions only further cement the poor’s position in society as they cannot access
prosperity.
As for the proposed amendment. It is more in line with the solution to the extractive
problem of property in South Africa. The theory does not view the people as the ones
to be blamed for the injustice and instead expects the state or central authority to guide
the population to better more inclusive institutions. To this end, the proposed
24(30)amendment is successful as it gives tools to force people to comply with change and
perceived fairness within the bounds of reasonable interests. It would create change
where there previously was no incentive to change.
The major problem with the inclusive institution theory is that it does not concern
itself if it is wise to do so in the first place. There is no accountability for what
ramifications it would have to the society at large if a large portion of the commercial
farms that supply the country with food would be given over to smaller communities
that engage in local sustaining farming. But in all reality, the theory mostly fails
because it does not take every little detail into account, which is also true for other
theories on the same topic such as formalisation theory which only interests itself with
formalising, not redistributing land, an important detail for South Africa.
If any conclusion is to be made on the theoretical spectrum it is that it is incredibly
hard for a theory to be 100% applicable to the myriad of different scenarios that this
world has produced so far and maybe the answer is simply that there is a grain of truth
to be gathered from all theories that try to explain why the world looks the way it does
today and why certain systems fail in some countries.
Regardless, the theory has been successfully applied and the questions have been
answered to that end, but what remains is a deeper discussion over the morally right
thing to do. The issue is a delicate one and this study does not hold the answers to the
land reform problem in South Africa. Should South Africa continue with the land
reform in the interest of the people and at the possible expense of the economy and
or international investment incentives? Do certain groups of people in South Africa
want to farm on land to meet commercial demand? How long can the period of
transition be before it becomes unacceptable? What happens if nothing changes?
Further research on land reform in South Africa would have to be conducted, and
other theories might be warranted instead of using inclusive institutions. One idea
might be a theory that takes colonialism into account, and the transition of power and
supplies to a more inclusive proportion. Other methods might be to research ethical
redistribution and take further examples from other parts of the world where it has
been successful.
25(30)Change is difficult to do, and when standing in front of a democratic choice and the
choice with meaningful change we must ask ourselves how we received the rights
that we do have today.
26(30)8 References
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