SECURITY OF PROPERTY RIGHTS IN SOUTH AFRICA A CRITICAL RESPONSE TO EXPROPRIATION WITHOUT COMPENSATION The edited papers in this book were presented at a Free Market Foundation conference on the security of property rights and land reform held in Sandton on 20 and 21 November 2018. Some papers which could not be presented at the conference were written in the months thereafter. The conference was made possible by the involvement and support of the Atlas Network and generous South African donors. FREE MARKET FOUNDATION The Free Market Foundation (FMF) is an independent public benefit organisation founded in 1975 to promote and foster an open society, the Rule of Law, personal liberty, and economic and press freedom as fundamental components of its advocacy of human rights and democracy based on classical liberal principles. It is financed by membership subscriptions, donations, and sponsorships. Most of the work of the FMF is devoted to promoting economic freedom as the empirically best policy for bringing about economic growth, wealth creation, employment, poverty reduction, and greater human welfare. www.freemarketfoundation.com DISCLAIMER This book represents the views and opinions of the contributors exclusively, and not necessarily those of the FMF, which has no corporate view. SECURITY OF PROPERTY RIGHTS IN SOUTH AFRICA A CRITICAL RESPONSE TO EXPROPRIATION WITHOUT COMPENSATION Foreword by Temba A Nolutshungu BOOKS JOHANNESBURG 2020 Copyright © 2020 All rights reserved – Free Market Foundation Published by the Free Market Foundation in February 2020 No part of this book may be reproduced or transmitted in any form or by any means, graphic, electronic, or mechanical, including photocopying, recording, taping, or by any information storage retrieval system, without the permission, in writing, from the publisher. FMF Books A product of the Free Market Foundation 170 Curzon Road, Block 5 Bryanston Gate Johannesburg, Gauteng, South Africa www.freemarketfoundation.com ISBN 978-0-9921788-8-8 Printed in the Republic of South Africa by FourColourPrint, Johannesburg Edited by Joan Evans and Martin van Staden Cover by Julie Kins Design Own images or public domain CONTENTS Contributors ................................................................................................... i Foreword by Temba A Nolutshungu ................................................................................................ vi 1. INTRODUCTION by Martin van Staden ........................................................................................... 1 2. REMAKING SOUTH AFRICA: UNFINISHED BUSINESS by Pennuell Maduna .......................................................................................... 18 3. EWC IS A CONVENIENT TOOL TO HIDE GOVERNMENT FAILURE by Petrus Sitho ................................................................................................. 27 4. THE LESSONS FROM…................................................................................. 33 INDIA by Barun Mitra ............................................................................................ 34 ZIMBABWE by Rejoice Ngwenya ...................................................................................... 41 NIGERIA by Olumayowa Okediran ................................................................................ 53 GHANA by Franklin Cudjoe ........................................................................................ 65 KENYA by Linda Kavuka ........................................................................................... 79 BURUNDI by Aimable Manirakiza ................................................................................... 90 EGYPT by Adel Elhemaily ......................................................................................... 96 5. THE SOLUTIONS ....................................................................................... 109 FAST, AFFORDABLE, SIMPLE: THE STORY OF KHAYA LAM by Eustace Davie ........................................................................................ 110 RDP HOUSING AND THE PRE-EMPTIVE CLAUSE – A RIGHTS PERSPECTIVE by Candice Pillay ........................................................................................ 113 ENABLE SMALL-SCALE FARMING AND END ‘MEGA-FARMING’ BY REPEALING SUBDIVISION RESTRICTIONS by Martin van Staden .................................................................................. 130 EWC: YET ANOTHER BARRIER TO ENTRY FOR MILLIONS OF DISADVANTAGED SOUTH AFRICANS by Devon Windvogel ................................................................................... 137 Annexure: FMF Submission on the draft Constitution Eighteenth Amendment Bill ...................................................................... 155 CONTRIBUTORS TEMBA A NOLUTSHUNGU is a director of the Free Market Foundation. As one of the pioneers of the black consciousness movement, his inevitable collision with the Apartheid state saw him traverse the ideological spectrum from an inveterate communist to an advocate of classical liberalism. Temba ascribes this metamorphosis to the fact that the Apartheid state was omnipotent, dictating the lives of blacks from cradle to grave. Having been detained twice under the Terrorism Act, his resolve to be instrumental in limiting the power of government was strengthened by his immersion in the writings of Friedrich Hayek, Milton Friedman, Walter Williams and Thomas Sowell. Dr PENUELL MADUNA is a former Minister of Minerals and Energy (1996-1999) and of Justice and Constitutional Development (1999-2004) in South Africa. He holds a Doctor of Laws from the University of South Africa. Maduna was arrested in the wake of the Soweto uprising in 1976 and again in 1977, being acquitted on both occasions. Maduna co- authored Fundamental Rights in the New Constitution in 1994. BARUN MITRA is the founder and director of the Liberty Institute, a policy research institute in New Delhi, India. Barun is currently working to develop insights from the policymaking process to the challenges of land and property rights. He has worked to strengthen property rights with the aim of securing economic prosperity and political freedoms for over two decades. He was presented with the Julian Simon Award in 2005 for his work in promoting market-based strategies to deal with environmental issues. i REJOICE NGWENYA is the founder and Executive Director of the Coalition for Market and Liberal Solutions (COMALISO) in Zimbabwe. He has participated in Cato University and the Friedrich Naumann Foundation liberal training programmes. COMALISO works for a Zimbabwe that respects the free market, property rights and constitutionalism. OLUMAYOWA OKEDIRAN is the Assistant Director of International Programs of Students For Liberty (SFL) and the founder of SFL’s Africa branch. Olumayowa was included in YNaija’s 2016 PowerList as one the most influential Nigerians under 40. He is also the Managing Director of AfricanLiberty.org and the author of Navigate: A Prospection of Nigeria’s Future to 2030, published in 2018. Olumayowa holds a master’s degree in humanitarian and refugee studies from the University of Ibadan. FRANKLIN CUDJOE is the Founding President and Chief Executive Officer of the IMANI Centre for Policy and Education in Ghana, a think tank dedicated to the promotion of a free society throughout Africa. IMANI is consistently ranked among Africa’s top ten most influential think tanks. In 2010, Franklin was named a Young Global Leader by the World Economic Forum. He is pursuing doctoral studies at Buckingham University in the United Kingdom and holds a degree in land economy from Kwame Nkrumah University of Science and Technology. LINDA KAVUKA KIGUHI is the African Programs Manager of Students For Liberty (SFL) and an Advocate of the High Court of Kenya. She holds a Bachelor of Laws degree from the University of Nairobi and a Postgraduate Diploma from the ii Kenya School of Law. Linda has been involved in activism for a free society with SFL since 2013 and has spoken at conferences in Kenya, Uganda, Tanzania, Malawi, the United States, Nigeria and Burundi. AIMABLE MANIRAKIZA is the founder and Chief Executive Director of the Centre for Development and Enterprises Great Lakes, based in Burundi, a think tank dedicated to promoting the principles of individual freedom, free markets and limited government. Aimable, who founded Students For Liberty (SFL)’s Burundi branch in 2015, has a degree in international relations and political sciences from the Light University of Bujumbura. He subsequently became SFL’s Regional Director in Eastern Africa. ADEL ELHEMAILY is a researcher in the properties programme in the Egyptian Center for Public Policy Studies. He is involved in researching the different types of properties in Egypt – land, real estate and intellectual property – to produce a set of policies that will improve and activate property rights. He graduated with a BA in veterinary sciences, and during his college years participated in many student activities such as Model European Union, Model American Congress and Model United Nations. EUSTACE DAVIE is a director at the Free Market Foundation and the author of Jobs for the Jobless: Special Exemption Certificates for the Unemployed and Unchain the Child: Abolish Compulsory Schooling Laws. He authored several chapters in the FMF’s books Nationalisation and Jobs Jobs Jobs. Eustace authors many of the FMF’s weekly feature articles and is iii regularly published in local and international media on