Since the Conference of Berlin 1884, where the colonialisation of Africa was mapped out and institutionalised by her colonial masters, has the quest to regain land been in the hearts and minds of the African people. In South Africa, the establishment of the Union of South Africa in 1910 and the subsequent passing of the Native Lands Act of 1913 further entrenched this historic injustice after Berlin.
The Native Land Act, promulgated in 1913, dispossessed the African people of their land and allocated only seven percent of the arable landscape of South Africa to African people. It was to be the first piece of legislation, followed by many other Apartheid laws, that would lay the foundations of racial segregation. If anything, the Native Land Act can and did illustrate just how deeply unjust the law can be.
Today, South Africa is debating the modality of the expropriation of land without compensation. To its credit both the ANC and the EFF have pursued the process of exploring the modalities, which will inevitably have constitutional ramifications, through a legal process. They are doing it within the bounds of the law and they must be commended for this. Even though there may be evidence to suggest that the EFF has, on occasion, occupied land illegally, it is they who led the motion in the National Assembly to commence the legal process.
This is important because in any democracy the rule of law is paramount. We must exercise and explore our democratic dispensation within the bounds of the law. Some may suggest that democracy only benefits the ruling class and the elite, for it is they who get to make laws. While others may suggest that while the rule of law is cardinal, equality before the law, albeit a rule, is often more in theory than in practice. Yet the rule of law must exist.
Some quarters have suggested that South Africa and the ANC in particular, as the governing party, will be contravening the Constitution of the Republic and international treaties if it were to go ahead and implement expropriation without compensation. Others have suggested that all property will come under threat and therefore international investors must be weary of their property. A scenario of lawlessness is sketched. Nothing could be further from the truth because based on the evidence thus far, that the ANC as the ruling party, has been pursuing matters legally suggests the opposite.
In their book, The Promise of Land: Undoing a Century of Dispossession in South Africa, eminent academics Professors Fred Hendricks, Lungisile Ntsbeza and Kirk Helliker, premise their argument on the notion that the dispossession of land was wrong both during colonialism and during Apartheid. In fact, they contend, in no other form was racial discrimination as stark and evident as it was in the question of land. Through studying the patterns of land ownership and what was allocated to whom one could clearly trace and illustrate colonialism and Apartheid.
These academics summarise the contributions made in the book by suggesting that the failure of the ANC government to meet their own targets will ignite a response from the ground from grassroots. They point out the Marikana massacre and the farmworkers strike in the Western Cape as examples of this pursuit of the oppressed, the landless, to gain voice.
But these academics are also explicit in their view of the Constitution of the Republic. If it, as a covenant of the people, is not matched with political and moral will, they suggest, it will simply be an obstruction to the achievement of restorative justice and therefore nation building. According to the Helen Suzman Foundation’s review on the book, some authors even suggest a Zimbabwean model of redistribution but the ANC, as we have seen in recent weeks, has shied away from such an approach.
For the last two and a half decades, the ANC, as the governing party, has given ample room for the redistribution of land. Indeed, one may suggest that like BEE, before it became BBEEE, only a handful of people benefitted from the redistribution of land while the vast majority of recipients have often opt to cash out their claim. At the same time, we must acknowledge that government has been lacking in providing real assistance to emerging Black farmers, often leaving these to their own devices.
The ANC must therefore be commended that it chooses to approach the review and possible amendment of section 25 of the Constitution with a caveat. Expropriation of land without compensation, as a principle and as a policy, must not destabilise the economy, it cannot interfere with food security and must ensure that the agricultural sector, as untransformed as it may be, is not negatively affected.
Here the Land Audit released by government last November becomes key. It gives us a scientific basis on which to argue the possession and re-possession of land in our country. While the Audit, in this edition, gives a clear delineation of the private ownership, according to race, gender and nationality, it makes three key recommendations. The second recommendation, in particular, pertains to questions of law.
The recommendation rightfully articulates that the principle espoused by the Constitution, “that South Africa belongs to all its people”, must be literally realised. National legislation, suggests the Audit, and one assumes the Constitution is included in this respect, must ensure the rights, responsibilities and restrictions of all South Africans in respect of land. A land tenure system must be devised which will then lead to a land governance framework for those owning the land. More importantly, aspects of the Extension of Security of Tenure Act (ESTA), the Community Property Associations Act (CPAA), the Protection of Informal Rights Act as well as the Communal Land Tenure Rights Bill must be examined and re-worked.
Yet one cannot ignore the historic moment that this policy, finalised by the ANC at its last National Conference, has been announced. We must not ignore the people who have been instrumental in ensuring that the question of land remains high of the agenda of a decolonised society. We cannot speak of a process of decolonisation or engage in the quest of identity, as communities or as a nation, without addressing the question of land.
From the Landless People’s Movement to Abahlali baseMjondolo, from the miners at Marikana to the farmworkers in the Western Cape, extraordinary citizens have been working their communities to ensure that the quest for land remains paramount. The ANC has heard the cries of the people. Political parties like the EFF have played their role. Now it is for the ruling class to meet the demands of the people.
Khalid Sayed is the Provincial Chairperson of the ANC Youth League in the Western Cape & Buyile Matiwane is the Western Cape Provincial Chairperson of the South African Students Congress