In South Africa, Land Apartheid Lives On

Friday marks the 150th anniversary of Gen. William Tecumseh Sherman’s famous field order to confiscate 400,000 acres of land from former slave-owners and distribute it to former slaves — the promise of 40 acres and mule that we so often hear about.

In the wake of the Civil War, the United States could have provided a solid foundation for black economic development. But the government failed to follow through with General Sherman’s ambitious land reform initiative; instead his order was repealed by President Andrew Johnson in the fall of 1865 and former slaves were drawn into various forms of peonage, which kept them in economic bondage.

Today, 21 years after the end of apartheid, South Africa finds itself at a moment of comparable significance. The country has a land reform program, but its implementation is in many ways undermining instead of promoting black economic development.

Due to colonial and apartheid-era land theft, when South Africa held its first democratic election in 1994 whites owned about 87 percent of the country’s total land, although they constituted just over 10 percent of the population. The post-apartheid state has tried to address past land theft through a multifaceted land reform strategy that includes land restitution — a program providing compensation to individuals and communities dispossessed of land after 1913 as a result of racially discriminatory laws and practices. Although the South African government has made significant investments in land reform, the ruling African National Congress has made decisions and promoted policies that are calcifying the existing economic order rather than transforming it.

In the course of 150 interviews with people who received compensation through the land restitution program, it became clear that the government’s policy is deeply flawed.

Of the nearly 80,000 claims filed primarily by blacks, the post-apartheid state has settled about 70 percent by distributing a Standard Settlement Offer, which is symbolic monetary compensation that is unrelated to the current or past market value of the property confiscated. Such compensation was particularly unjust for former owners like the Majolas, a black family that had owned property in Sophiatown — a once-vibrant, mixed-race community near downtown Johannesburg, which apartheid authorities uprooted to create a white suburb called Triumph. (We have used a pseudonym to protect the family’s privacy.)

South Africa’s land restitution authorities did not give the dispossessed residents of Sophiatown the option of receiving land in their former neighborhood or elsewhere. Instead, the state paid them a mere 40,000 rand per claim (approximately $3,500). In the case of the Majola family, the law mandated that each of the six surviving siblings receive about 6,600 rand ($570), since their deceased parents owned the home. As one family member said, “It was a case of take the money and go type of thing.” Sadly, these small sums were all the Majolas and their former neighbors were offered, despite the fact that several houses in Sophiatown are currently on the market for upwards of 700,000 rand ($60,000), about 20 times the value of the compensation the siblings received.

Although the situation is deeply unfair for families like the Majolas, defenders of the current policy argue that the South African government has no viable alternatives because it has a limited budget and it must spend on other costly priorities like education and health. Others believe that this is the price South Africans had to pay to end apartheid without a full-scale civil war and keep the economy intact.

The problem is that white South Africans are receiving far more compensation than blacks.

When the post-apartheid state wants to put the Majolas and other dispossessed blacks back into their homes, it pays the current owners market-related compensation through voluntary exchange or by exercising eminent domain. This most often involves amounts that are several orders of magnitude higher than a typical settlement offer proposed to dispossessed blacks. For instance, this month a white farmer was paid nearly 1.5 million rand ($130,000) for 165 hectares in the northern Mpumalanga region. It is patently unfair for current owners (who are mostly white) to systematically receive higher compensation than owners dispossessed by prior governments (who are mostly black).

Furthermore, when the government allows current owners to keep their property, they receive a significant additional benefit. The modest payment given to families like the Majolas negates any outstanding claims to their former properties — effectively sanitizing the property rights of current owners by removing the stench of past land theft, but without properly compensating blacks.

Given the state of public opinion, this inequity could have devastating consequences for South Africa’s future. Professor James Gibson of Washington University, St. Louis, surveyed 3,700 South Africans and found that two of every three blacks agreed with the statement: “Land must be returned to blacks in South Africa, no matter what the consequences are for the current owners and for political stability in the country.”

South Africa may have avoided civil war during the transition to democracy two decades ago, but that does not mean the country’s impoverished majority is content with their lot or that the risk of instability has disappeared.

The United States failed to institute meaningful land reform when it had the opportunity 150 years ago, and today we are living with the consequences in the form of persistent racial inequalities.

South Africa must not make the same mistake. The country began its second round of land restitution in June 2014; this time the government must get it right.

Bernadette Atuahene is a professor of law at Chicago-Kent College of Law and the author of “We Want What’s Ours: Learning From South Africa’s Land Restitution Program.” Alfred L. Brophy is a professor of law at the University of North Carolina.

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