1. 1
SPEECH
BY
DAVE
STEWARD,
EXECUTIVE
DIRECTOR
OF
THE
FW
DE
KLERK
FOUNDATION
TO
THE
CONFERENCE
ON
LAND
OWNERSHIP
IN
SOUTH
AFRICA
HAKUNAMATATA,
GAUTENG,
31
MAY
2013
LAND,
THE
CONSTITUTION
AND
PROPERTY
RIGHTS
Perhaps
one
of
the
most
unpalatable
truths
of
our
time
is
that
our
government
has
embarked
on
a
comprehensive
and
conscious
campaign
to
harm
the
interests
of
South
African
citizens
on
the
basis
of
their
race.
A
central
element
of
this
campaign
is
the
elimination
of
what
the
ANC
calls
"the
legacy
of
apartheid
super-­‐exploitation
and
inequality,
and
the
redistribution
of
wealth
and
income
to
benefit
society
as
a
whole,
especially
the
poor".
In
effect,
the
government
is
planning
a
multi-­‐pronged
assault
on
the
property
rights
of
white
South
African
citizens
on
the
basis
of
their
race.
The
assault
includes
the
following
elements:
• The
proposals
in
the
2011
Green
Paper
on
Land
Reform;
• The
implications
for
farmers
of
the
Land
Tenure
Security
Bill,
2010;
• Proposals
at
the
2012
ANC
Policy
Conference
that
the
government
should
be
able
to
use
the
assets
of
insurance
and
pension
funds
for
state
developmental
projects;
• The
Restitution
of
Land
Rights
Amendment
Bill
which
will
set
a
new
cut-­‐off
date
for
restitution
claims
and
that
will
make
it
possible
to
submit
claims
for
the
dispossession
of
land
before
1913;
• Tokyo
Sexwale’s
announcement
last
week
regarding
the
"deracialisation
of
white
suburbs";
and
• The
draft
Expropriation
Bill
which
has
recently
been
released
for
comment
by
the
Department
of
Public
Works.
THE
GREEN
PAPER
ON
LAND
REFORM
The
Green
Paper
advocates
a
process
of
'Agrarian
Transformation
-­‐
which
it
describes
as
"a
rapid
and
fundamental
change
in
…systems
and
patterns
of
ownership
and
control…
of
land,
livestock,
cropping
and
community".
It
proposes
fundamental
changes
to
traditional
forms
of
land
ownership
in
terms
of
which
there
would
be
four
categories
of
land
tenure:
• state
and
public
land
that
would
be
subject
to
leasehold;
• privately
owned
land
-­‐
that
would
be
freehold
but
with
'limited
extent';
• foreigners
would
not
be
allowed
to
own
freehold
land
at
all;
and
• communal
land
with
communal
tenure
and
institutionalised
use
rights.

2. 2
The
idea
of
freehold
"with
limited
extent"
is
vague
and
would
be
difficult
to
implement.
Any
limitation
of
existing
freehold
rights
would
have
to
be
compensated
by
the
government
in
terms
of
section
25
of
the
Constitution.
THE
LAND
TENURE
SECURITY
BILL,
2010
The
new
system
would
go
hand
in
hand
with
the
implementation
of
the
Land
Tenure
Security
Bill,
2010.
According
to
AgriSA,
the
Bill
would
give
farm
dwellers
and
their
dependents
unlimited
and
comprehensive
rights
in
respect
of
stock-­‐farming
and
cropping,
services,
training
housing
and
roads
-­‐
and
would
create
unlimited
obligations
for
farmers.
PENSION
AND
INSURANCE
FUNDS
The
proposal
that
the
government
should
be
able
to
use
the
assets
of
insurance
and
pension
funds
for
state
developmental
projects
could
seriously
erode
the
retirement
and
insurance
investments
of
ordinary
citizens.
DERACIALISING
WHITE
SUBURBS
Minister
Sexwale’s
plan
to
"deracialise
white
suburbs"
might
erode
the
value
of
the
most
important
asset
that
most
South
Africans
own
-­‐
their
homes.
No
reasonable
person
would
object
to
proposals
for
better
human
settlements
-­‐
including
the
development
of
inner
city
housing
schemes
to
bring
people
closer
to
their
jobs;
the
development
of
new
non-­‐racial
communities
and
the
upgrading
of
existing
townships.
However,
the
proposal
to
"deracialise
white
suburbs"
is
perplexing,
disturbing
and
unnecessary.
This
would
be
achieved
by
"obliging"
banks
"to
provide
loans
to
black
people
to
purchase
property
in
previously
exclusive
white
suburbs".
There
are
no
longer
any
"exclusively
white
suburbs".
Mr
Sexwale
and
most
of
his
colleagues
in
the
black
elite
know
this
very
well
-­‐
because
that
is
where
they
live.
People
-­‐
whatever
their
race
-­‐
can
buy
homes
anywhere
they
like
provided
they
can
pay
the
prevailing
market
price.
Middle
class
black,
Indian
and
coloured
families
have
been
moving
into
former
"white"
suburbs
all
over
the
country
with
very
little
trouble
or
opposition.
The
city
centre
areas
of
several
of
our
major
cities
have
been
taken
over
by
black
South
Africans
without
the
passage
of
any
laws.
All
over
the
country
vibrant
multi-­‐cultural
neighbourhoods
are
developing
on
the
basis
of
free
choice.
We
do
not
need
a
new
bout
of
racial
engineering
that
would
subvert
this
entirely
natural
process.
We
should
also
accept
and
respect
the
tendency
for
cultural
groups
to
live
together
in
communities
-­‐
if
they
so
wish
-­‐
just
as
they
do
throughout
the
world
-­‐
provided
that
they
do
not
exclude
anyone
on
the
basis
of
race.
RESTITUTION
BEFORE
1913
The
ANC
has
now
announced
its
intention
of
creating
a
new
cut-­‐off
date
for
restitution
claims
-­‐
and
to
pushing
back
the
date
before
1913
from
restitution
claims
by
descendants
of
the
San
people.
It
should
be
remembered
that
a
large
majority
of
restitution
claimants
have
settled
for
cash
rather
than
the
return
of
their
land.
Also,
tampering
with
the
1913
threshold
date
would
require
a
constitutional
amendment.

3. 3
THE
EXPROPRIATION
BILL
The
keystone
to
the
ANC’s
new
approach
to
property
is
the
draft
Expropriation
Bill
which
was
recently
released
for
comment
by
the
Department
of
Public
Works.
The
Bill
contains
a
number
of
threats
to
bona
fide
property
rights
-­‐
even
though
it
no
longer
tries
to
circumvent
the
requirement
that
compensation
must
be
decided
or
approved
by
a
court
-­‐
as
its
2008
predecessor
did.
Although
in
line
with
section
25
of
the
Constitution,
the
inclusion
of
"public
interest"
as
grounds
for
expropriation
-­‐
without
clearly
defining
its
meaning
-­‐
could
result
in
a
dilution
of
property
rights
when
left
to
subjective
interpretation
by
expropriating
authorities.
The
Bill's
definition
of
"public
interest"
incorporates
the
Constitution’s
formulation
that
the
"public
interest
includes
the
nation’s
commitment
to
land
reform,
and
reforms
to
bring
about
equitable
access
to
all
South
Africa’s
natural
resources".
However,
it
then
adds
the
words
“and
other
related
reforms
in
order
to
redress
the
results
of
past
racial
discriminatory
laws
or
practices".
This
could
conceivably
be
used
to
justify
the
expropriation
of
virtually
any
property
owned
by
white
South
Africans
which
might
be
obliquely
linked
in
some
way
or
the
other
to
"past
racial
discriminatory
laws
and
practices."
Another
problem
arises
from
the
fact
that
possession
of
expropriated
property
can
take
place
before
the
payment
of
compensation.
In
addition,
compensation
becomes
payable
only
when
the
amount
has
been
agreed
by
the
state
or
decided
by
the
courts.
Should
expropriated
property
owners
decide
to
challenge
the
proposed
compensation,
they
could
find
themselves
deprived
of
their
property
and
any
income
that
it
might
produce
pending
the
court’s
decision.
Since
this
process
might
take
years
to
complete,
expropriated
property
owners
would
be
under
considerable
pressure
to
accept
whatever
offer
the
expropriating
authority
might
choose
to
make.
Finally,
the
definition
of
property
is
so
vague
that
it
could
result
in
the
expropriation
of
virtually
any
type
of
property,
including
land,
moveable
and
immovable
property,
shares
and
mining
rights.
The
Bill
also
extends
far-­‐reaching
powers
to
initiate
expropriation
not
only
to
the
national
government
but
to
provincial
governments,
municipalities
and
to
numerous
other
organs
of
state.
In
considering
a
more
precise
definition
of
the
"public
interest"
the
drafters
of
the
Bill
would
do
well
to
note
that
experience
throughout
the
world
and
throughout
history
has
incontrovertibly
shown
that
secure
property
rights
are
essential
for
economic
stability,
growth
and
well-­‐being
of
any
society.
They
are
indisputably
a
core
element
of
any
objective
assessment
of
the
“public
interest”.
THE
NATIONAL
DEMOCRATIC
REVOLUTION
What
then
is
the
origin
of
this
multi-­‐pronged
attack
on
white
property
rights?
Why
has
the
ANC
embarked
on
a
course
of
action
that
-­‐
to
an
objective
observer
-­‐
would
appear
to
be
so
destructive
of
national
unity
and
that
would
have
such
catastrophic
consequences
for
the
economy?

4. 4
The
answer
lies
in
the
National
Democratic
Revolution
(NDR)
-­‐
which
is
the
guiding
ideology
of
the
ruling
alliance.
The
NDR’s
primary
goal
is
"the
resolution
of
the
antagonistic
contradictions
between
the
oppressed
majority
(blacks)
and
their
oppressors
(whites);
as
well
as
the
resolution
of
the
national
grievance
arising
from
the
colonial
relations".
The
ANC’s
view
of
the
1994
settlement
differs
profoundly
from
that
of
its
negotiating
partners.
For
non-­‐ANC
parties
1994
was
the
culmination
of
the
process:
for
the
ANC
it
was
simply
an
important
milestone
on
the
route
toward
the
achievement
of
its
National
Democratic
Revolution.
As
the
ANC
puts
it:
"…The
notion
that
South
Africans
embraced
and
made
up
(after
the
1994
settlement),
and
thus
erased
the
root
causes
of
previous
conflict,
is
thoroughly
misleading.
April
1994
was
neither
the
beginning
nor
the
end
of
history.
The
essential
contradictions
spawned
by
the
system
of
apartheid
colonialism
were
as
much
prevalent
the
day
after
the
inauguration
of
the
new
government
as
they
were
the
day
before."
According
to
the
ANC’s
Strategy
and
Tactics
documents,
"a
critical
element
of
the
programme
for
national
emancipation
should
be
the
elimination
of
apartheid
property
relations.
This
requires:
the
de-­‐racialisation
of
ownership
and
control
of
wealth,
including
land;
equity
and
affirmative
action
in
the
provision
of
skills
and
access
to
positions
of
management...
It
requires
the
elimination
of
the
legacy
of
apartheid
super-­‐
exploitation
and
inequality,
and
the
redistribution
of
wealth
and
income
to
benefit
society
as
a
whole,
especially
the
poor."
According
to
the
ANC’s
2007
Strategy
and
Tactics
document,
this
is
still
very
much
a
work
in
progress.
"The
progress
made
since
the
attainment
of
democracy
is
such
that
we
are
still
some
way
from
the
ideal
society
of
national
democracy.
The
ownership
and
control
of
wealth
and
income,
the
poverty
trap,
access
to
opportunity
and
so
on
-­‐
are
all
in
the
main
defined,
as
under
apartheid,
on
the
basis
of
race
and
gender."
Accordingly,
"the
central
task
in
the
current
period
is
the
eradication
of
the
socio-­‐economic
legacy
of
apartheid;
and
this
will
remain
so
for
many
years
to
come."
In
the
ANC’s
view
this
is
a
continuing
struggle
"which,
as
a
matter
of
historical
necessity,
will
loom
ever
larger
as
we
proceed
along
the
path
of
fundamental
change".
THE
SECOND
PHASE
In
March
last
year,
the
ANC
announced
that
the
time
had
at
last
arrived
for
it
to
proceed
more
vigorously
with
its
efforts
to
eradicate
the
socio-­‐economic
legacy
of
apartheid.
Minister
Jeff
Radebe,
the
ANC’s
Policy
Chief,
proclaimed
that
"having
concluded
our
first
transition
with
its
focus
in
the
main,
on
political
democratization,
we
need
a
vision
that
must
focus
on
the
social
and
economic
transformation
of
SA
over
the
next
30
to
50
years".
According
to
Radebe,
South
Africa
needed
a
second
transition
for
the
following
reasons:

5. 5
"Firstly,
our
first
transition
embodied
a
framework
and
a
national
consensus
that
may
have
been
appropriate
for
political
emancipation,
a
political
transition,
but
has
proven
inadequate
and
inappropriate
for
our
social
and
economic
transformation
phase".
"Secondly,
the
balance
of
forces
at
the
time
of
our
transition
ruled
out
some
options
and
weighted
choices
towards
others.
Thus
the
negotiated
nature
of
the
transition
meant
that
capital
reform
would
necessarily
be
an
incremental,
market
focused
process,
engaging
with
the
current
owners
of
capital."
THE
ANC’S
2012
POLICY
CONFERENCE
Radebe’s
views
were
subsequently
endorsed
by
the
ANC’s
National
Policy
Conference
at
the
end
of
June
2012.
In
his
opening
address
to
the
conference
President
Zuma
said
that
the
ANC
intended
"to
democratise
and
de-­‐racialise
the
ownership
and
control
of
the
economy
by
empowering
Africans
and
the
working
class
in
particular
to
play
a
leading
role".
He
said
that
the
government
could
not
take
such
measures
in
1994
because
it
needed
"to
make
certain
compromises
in
the
national
interest
…we
had
to
be
cautious
about
restructuring
the
economy,
in
order
to
maintain
economic
stability
and
confidence
at
the
time".
Although
the
Policy
Conference
preferred
the
term
"Second
Phase"
to
"Second
Transition"
it
reached
broad
agreement
that
"we
are
in
a
continuing
transition
from
Apartheid
colonialism
to
a
National
Democratic
Society.
The
interventions
required
to
speed
up
change,
especially
with
regard
to
economic
transformation,
can
be
understood
as
marking
a
new
phase
in
the
transition
to
a
National
Democratic
Society.
This
second
phase
of
the
transition
should
be
characterised
by
more
radical
policies
and
decisive
action
to
effect
thorough-­‐going
socio-­‐economic
and
continued
democratic
transformation,
as
well
as
the
renewal
of
the
ANC,
the
Alliance
and
the
broad
democratic
forces".
MANGAUNG
The
ANC’s
National
Conference
at
Mangaung
in
December
last
year
endorsed
the
central
elements
of
the
"Second
Phase"
approach:
"We
engaged
in
vigorous
and
searching
debates
on
the
persistence
of
the
legacy
of
apartheid
colonialism,
reflected
in
the
triple
challenges
of
poverty,
inequality
and
unemployment.
Responding
to
these
challenges,
we
are
boldly
entering
the
second
phase
of
the
transition
from
apartheid
colonialism
to
a
national
democratic
society.
This
phase
will
be
characterised
by
decisive
action
to
effect
economic
transformation
and
democratic
consolidation,
critical
both
to
improve
the
quality
of
life
of
all
South
Africans
and
to
promote
nation-­‐building
and
social
cohesion".
The
Mangaung
Conference
also
endorsed
the
Land
Reform
proposals
in
the
Green
Paper
and
called
for
the
early
adoption
of
a
new
Expropriation
Act.
CONCLUSION
There
can
accordingly
be
very
little
doubt
about
the
seriousness
of
the
ANC’s
commitment
to
the
redistribution
of
white-­‐owned
land
and
property.
It
will
proceed
as
quickly
as
the

6. 6
objective
circumstances
and
developing
balance
of
power
will
permit.
In
considering
all
of
this
we
should
bear
the
following
points
in
mind:
• Not
all
elements
in
the
ANC
support
the
radical
implementation
of
the
NDR;
• It
is
being
driven
primarliy
by
the
SACP
which
believes
that
the
NDR
is
an
essential
staging
post
on
its
route
to
the
establishment
of
a
communist
state;
and
• The
second
phase
implementation
of
the
NDR
is
entirely
irreconcilable
with
the
National
Development
Plan
that
the
ANC
also
supports.
PROPAGANDA
FOR
THE
SECOND
PHASE
The
ANC
is
preparing
the
ground
for
the
Second
Phase
by
concentrating
on
three
basic
arguments:
THE
LEGACY
OF
THE
PAST
The
first
arises
from
its
version
of
South
African
history
in
terms
of
which
everything
that
happened
before
1994
was
irredeemably
evil.
The
Government
is
ramping
up
its
rhetoric.
In
a
relatively
short
address
to
parliament
earlier
this
year
Jeff
Radebe
referred
no
fewer
than
seven
times
to
the
depredations
of
the
past
-­‐
• to
"apartheid
colonialism";
• to
"the
struggle
against
colonialism
and
apartheid";
• to
"the
forces
of
colonialism
and
later
of
apartheid,
on
the
one
side,
arrayed
…against
the
forces
of
freedom
and
democracy
on
the
other
side";
• to
"…
the
heroic
stance
by
the
United
Nations
when
It
declared
apartheid
a
crime
against
humanity
and
a
threat
to
world
peace";
• to
"…the
untold
suffering,
strife
and
racial
hatred
sowed
by
apartheid…";
and
• to
"…the
poverty
trap
and
vicious
cycle
of
inequality
perpetrated
by
the
legacy
of
apartheid
and
colonialism…"
Increasing
use
is
made
of
the
term
"apartheid
colonialism"
-­‐
implying
that
whites
are
transient
alien
interlopers.
For
example,
the
Green
Paper
on
Land
Reform
proclaims
that
"all
anti-­‐colonial
struggles
are
at
the
core
about
two
things,
repossession
of
lost
land
and
restoring
the
centrality
of
indigenous
culture."
Such
references
pepper
most
policy
statements
made
by
the
ANC.
Whatever
their
historic
merit
-­‐
or
lack
of
merit
-­‐
it
would
be
surprising
if
they
do
not
stir
up
some
degree
of
racial
animosity
-­‐
or
at
the
very
least
-­‐
reinforce
perceptions
of
white
moral
inferiority
and
black
entitlement.
Inevitably
they
fuel
demands
for
restitution
-­‐
particularly
of
land
-­‐
which
most
black
South
Africans
firmly
believe
was
stolen
from
their
ancestors.
Special
accent
is
being
placed
on
mobilising
public
opinion
to
support
radical
land
reform
on
and
around
the
100th
anniversary
of
the
1913
Land
Act.
NOTHING
HAS
CHANGED
The
second
leitmotif
is
the
notion
that
economically
and
socially
nothing
has
changed.

7. 7
• When
he
opened
the
2012
Policy
Conference
President
Zuma
said
that
"the
economic
power
relations
of
the
apartheid
era
have
in
the
main
remained
intact.
The
ownership
of
the
economy
is
still
primarily
in
the
hands
of
white
males
as
it
has
always
been."
• The
Policy
Conferrence
concluded
that
"…the
structural
legacy
of
Colonialism
of
Special
Type,
including
patriarchy,
remains
deeply
entrenched
as
reflected
in
the
colonial,
racist
and
sexist
structure
and
character
of
our
economy;
the
spatial
and
gender
patterns
of
development
and
underdevelopmentand
with
regards
to
the
social,
human
resources
and
infrastructure
backlogs."
• On
2
October
2012
Minister
Rob
Davies
said
that
"We
cannot
expect
to
grow
and
develop
as
a
country
if
the
leadership
of
the
economy
is
still
in
the
hands
of
only
a
small
minority
of
the
society."
However,
it
is
untrue
that
the
leadership
of
the
economy
is
still
solely
in
the
hands
of
whites.
There
have
been
significant
shifts
in
the
racial
distribution
of
wealth
and
income
since
1994.
-­‐
mostly
in
favour
of
the
new
black
middle
class.
Black
South
Africans
control
economic,
labour
and
fiscal
policy
as
well
as
the
30%
of
economy
that
is
controlled
by
the
state.
More
than
60%
of
the
top
decile
of
income
earners
are
now
black.
THE
LEGACY
OF
THE
PAST
IS
RESPONSIBLE
FOR
THE
PROBLEMS
OF
THE
PRESENT
The
third
theme
is
the
ANC’s
insistence
that
most
of
the
country’s
current
problems
-­‐
and
especially
the
triple
crisis
of
inequality,
poverty
and
unemployment
-­‐
may
be
ascribed
to
the
legacy
of
the
past.
• The
2012
Policy
Conference
claimed
that
the
"historical
and
primary
contradictions
…
which
were
inherent
to
Colonialism
of
a
Special
Kind"
were
the
cause
of
"the
triple
challenges
of
unemployment,
poverty
and
inequality."
• According
to
President
Zuma’s
8
January
statement
this
year
"Monopoly
domination
of
the
economy"
(whatever
that
means)
and
the
"skewed
patterns
of
ownership
and
production"
are
responsible
for
the
"inequality,
dualism
and
marginalization"
that
characterise
the
economy.
• Recently
Minister
Angie
Motshekga
claimed
that
all
black
education
before
1994
was
intended
only
to
produce
"labourers"
-­‐
despite
the
fact
that
she
herself
(and
many
of
her
colleagues)
were
graduates
of
Turfloop
University.
Also,
by
1994
there
were
more
black
students
registered
at
university
than
whites.
RESPONSES
The
question
-­‐
as
always
-­‐
is
what
is
to
be
done?
I
would
suggest
the
following
responses:
• White
South
Africans
should
wake
up
to
the
unpleasant
fact
that
they
are
the
main
target
of
the
NDR.
Their
government
has
launched
a
multi-­‐faceted
campaign
to
undermine
their
legitimate
interests
and
rights
on
the
basis
of
their
race.
They
are
like
the
proverbial
frogs
in
the
pot:
the
water
is
simmering
and
the
ANC
is
turning
up
the
heat.

8. 8
• We
should
dispel
any
remaining
illusions
that
we
might
have
regarding
the
ANC’s
intentions.
They
are
there
for
all
to
see.
In
particular,
we
should
not
allow
ourselves
to
be
placated
by
what
the
ANC
regards
as
"dexterity
of
tact".
• We
should
firmly
reject
racist
policies
from
any
quarter.
We
should
reject
the
notion
that
we
are
morally
second-­‐class
citizens
-­‐
or
that
some
South
Africans
are
"central"
and
others
peripheral.
• We
should
work
for
a
more
balanced
understanding
of
our
history
-­‐
and
we
should,
in
particular
-­‐
reject
the
ANC’s
hopelessly
skewed
version
of
the
past.
We
need
to
put
the
record
straight
regarding
the
history
of
land
ownership.
• We
should
work
for
a
more
balanced
and
accurate
understanding
of
the
present
-­‐
and
particularly
of
the
constructive
-­‐
and
indeed,
indispensible
role
-­‐
that
much
maligned
whites
play
in
the
economy
and
in
society.
• We
should
engage
the
ANC
on
the
battlefield
of
ideas
-­‐
where
we
should
point
to
the
catastrophic
implications
of
the
second
phase
course
upon
which
it
has
embarked.
• We
should
seek
to
engage
the
ANC
leadership
at
the
highest
possible
level
in
very
frank
debate
about
these
issues.
The
really
scary
possibility
is
that
the
ANC
actually
believes
its
own
propaganda.
• Above
all
we
should
defend
the
Constitution,
the
values
that
it
espouses
and
the
rights
it
protects
-­‐
from
forces
that
are
increasingly
attempting
to
erode
it.
We
should
reject
any
suggestion
that
it
was
just
a
temporary
accommodation
that
can
be
dispensed
with
at
the
whim
of
the
government
of
the
day.
We
should
remind
the
ANC
that
South
Africa
belongs
to
all
its
people,
united
in
our
diversity.
We
should
stress
that
South
Africa
has
been
founded
-­‐
among
others
-­‐
on
the
values
of
human
dignity,
equality
and
non-­‐racialism.
We
should
also
draw
the
ANC’s
attention
to
the
core
right
that
the
State
may
not
unfairly
discriminate
directly
or
indirectly
against
anyone
on
one
or
more
grounds
-­‐
including
race.