South Africa’s inability to address the land question effectively nearly three decades into democracy is unfortunate, but if eventually done, could not only unite those who were dispossessed of land, but the entire country.   

This is according to Bulelwa Mabasa, director and head of the land reform, restitution and tenure practice at Werksmans Attorneys. She was in conversation with Daily Maverick’s editor-at-large Richard Poplak on Wednesday.   

Mabasa is the author of the recently published memoir, My Land Obsession, in which she writes about her upbringing in Meadowlands, Soweto, and the ever-present question of land dispossession in South Africa, which shaped her upbringing and her journey into law. 

In 2018, Mabasa was among the country’s top legal minds appointed to form part of the 10-member Advisory Panel on Land Reform.  

Section 25, justice and healing

Poplak questioned Mabasa on whether the Constitution, particularly section 25, could bring about justice and healing to those whose land was dispossessed.

“My view is that it is the land reform issues that stand to unite our country, stand to make everyone feel like they’re a citizen, everyone feel like they belong. And when we were part of the… presidential advisory panel, we realised that the state has not used its powers to expropriate, obviously not as a wholesale programme, but where it can, where the circumstances and the facts of the case allow for it,” said Mabasa.

“So we don’t even have court precedents where this expropriation debate has been tested.”

She argued that the state has not used its ability within the current constitutional framework to test the debate, and has failed to amend the Expropriation Act of 1975 to align with the Constitution.

“We have had enough time to change it and, in fact, that 1975 act is still being used today.”

Mabasa said that while the act remained on the statute books, it didn’t include the required promotion of administrative justice principles. For example, the current legislation did not make provision for people who did not have grandparents whose land was dispossessed, but were in need of land, and generally, how land could be made available.  

“So far, our government has relied on internal policies of the Department of Land and Land Reform, neither of which are transparent enough. And they don’t have the grounding of legislation which goes through all the checks and balances.”  

‘Let down by Parliament’

As a result, Mabasa suggested that the country had been let down by Parliament in charting a way forward on land policy.  

“We have been let down by Parliament and the executive in setting a path forward in the national vision on land policy. That is something every citizen should really be behind and understand. 

“You don’t have to look further than seeing the budgets — the allocation to the Department of Land Reform is probably the least of all the budgets,” she said.  

Poplak reflected on the government’s brutality in removing people on illegally occupied land, particularly through the Red Ants colluding with gun-toting police — this did not contribute to healing.  

Mabasa highlighted the importance of a special focus on healing the divisions of the past and argued that the government had a major role to play.   

But she slammed the government’s lack of support in cases when people were given land: “If there isn’t a legislative framework that allows people to have resources, how do you make sure that the land is sustainable? How do you make sure that the land continues to be productive?” DM