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The land question in SA is immensely emotional and goes to the heart of the poverty problem in this country.
So, the issues that relate to the dispossession of land on the one hand, and the legitimate expectations of people that own land on the other, have to be approached with reverence, and with respect, and with careful thought.
Reading section 25 of the Constitution makes it clear that a great deal of work went into crafting that section.
The authors of the Constitution contemplated the three major vectors that are involved in this debate, which are redistribution, restitution, and security of tenure, and carefully balanced the competing aspirations, rights and policy goals that were inevitably going to arise.
The next big point is, throughout the world, any system of dealing with the land question is dependent on a capable state, and clearly defined distribution and restitution rules. These two have to be there, otherwise you end up with chaos.
It seems to me that in our case we’ve got the umbrella law, but what seems to be missing are some of the detailed pieces of legislation and most of the capacity required to give proper effect to redistribution, restitution and land tenure rights.
I think that the Kgalema Motlanthe high-level panel report on the issue makes these points very pursuasively, as do a number of other research reports and academic studies, including by Judge Albie Sachs, former Deputy Chief Justice Dikgang Moseneke and advocate Tembeka Ngcukaitobi.
What also emerges from the Motlanthe report is that some of the instruments that SA has put in place, either don't use the funds allocated to them completely, or the community structures that are allocated land are completely dysfunctional, corrupt, or hijacked.
Then you’ve got the issue of precarious tenure for the millions of people who have moved from the rural areas to come and live in the cities. And you've got the precarious tenure of farmworkers and rural dwellers.
The point is: the soft and hard infrastructure necessary to deal with all this is inadequate.
Then there's the issue of expropriation without compensation. Section 25 deals with it. There is nowhere in that section where it says you have to have the ‘willing buyer, willing seller’ principles.
It seems to me that there could very well be circumstances in which a court could determine that it’s appropriate not to pay for land.
I’ve read the motion that was passed in Parliament on ‘expropriation without compensation’ and also the ANC’s resolution from its conference, and I have read the president’s comments in Parliament on the issue.
I walk away with the impression that what people are actually saying is that one of the mechanisms for dealing with redistribution, restitution and land tenure should be the acquisition of land on the basis of expropriation without compensation, and the authorities must put in place modalities to do that.
And they must do that in a way that doesn't mess up the agricultural industry and doesn’t cause famine and doesn’t damage the economy. I can't see a difference between that and what is currently in the Constitution.
So I'm not panicked. What society is saying, is that SA needs a conversation – again – about redistribution, restitution and land tenure, and that South Africans must engage.
In my view, what is 'called for is engagement between the social partners, and a commitment to dealing with the issue with the reverence that it deserves.
We must make sure that there is proper justice in the process, both justice for people who don’t own land, as well as for people who do own land. And both groups happen to contain both black and white South Africans.
The same argument applies to the issue of nationalisation. The real issue is: what are people complaining about, and what are they concerned about?
They are concerned about the allocation of society’s benefits and burdens, assets etc., and they’re concerned that there are too many poor people and there is a small wealthy elite in our country.
And the existence of the two living cheek by jowl is not sustainable.
That's the real issue. So, when somebody living in Alexandra or in Soweto is furious, what are they furious about? They’re furious about the fact that they are excluded, they’re not part of the system, they don’t have a job, and yet, there are all these resources close by.
I don’t think most right-minded people believe in nationalisation for nationalisation’s sake. People believe in nationalisation because they think it’s the appropriate policy to deal with a Gini coefficient of 0.6.
I very respectfully – but very firmly – disagree that nationalisation is the correct policy instrument to address inequality.
In fact, all the international evidence is clear: nationalisation is a terrible idea. But you’d have to be blind and heartless not to understand where people are coming from.
So my view is that business should engage.
Let’s figure out a way to modernise and grow our economy, and how best to allocate the benefits and burdens in society, because the current configuration is not sustainable.
This is a shortened extract from an interview with Sim Tshabalala.
This article originally appeared in the 24 May edition of finweek. Buy and download the magazine here, or sign up for our weekly newsletter here.
