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Land expropriation: Legislation was used to dispossess us, now we must use it for redress


Oscar van Heerden is a scholar of International Relations (IR), where he focuses on International Political Economy, with an emphasis on Africa, and SADC in particular. He completed his PhD and Masters studies at the University of Cambridge (UK). His undergraduate studies were at Turfloop and Wits. He is currently a Deputy Vice-Chancellor at Fort Hare University and writes in his personal capacity.

While most people who comment on the land question in South Africa always refer to the Land Act of 1913, when legislation was used to dispossess the majority of black people in the country of their birth, everyone knows that it did not start there.

The history of land dispossession started with the early arrival of European settlers.

It was Jan van Riebeeck who first started building fixed structures at the Cape in order to accommodate the passing ships on their way to the East. The local Khoi and San people, who up to this point graciously had agreed that the settlers could use some of the land for their purposes but never agreed to fixed structures, questioned this and became the first martyrs to fall at the barrel of the gun.

It was followed by all those who mercilessly died in the subsequent frontier wars, which was in its essence about land, let alone freedom of movement of people and cattle. This dispossession continued throughout the Great Trek of the Afrikaners and, of course, with the arrival of major conglomerates, once gold was discovered on the Vaal Reef.

It was after the establishment of the Union of South Africa where universal suffrage was stripped from the black majority that the 1913 Land Act came into being. This Act further cemented the dispossession of blacks with regards to all communal and tribal land in the entire country.

So when President Cyril Ramaphosa reminds us that surely there can be no one who can deny this history and its concomitant effects, he assumes we all can see why there remains a need to redress the imbalances of the past with regards to the land question. Justice and economic redress surely must be unanimously agreed to.

I heard a nonsensical argument the other day from some white people who suggested that since the blacks at the time in the Cape could not provide their white counterparts with some form of proof that the land was theirs, a form of security of tenure, then how can they lay claim to such land?

It is nonsensical because such an argument is equivalent to some Jewish people arguing, “how can the Arabs claim that the land is theirs in the Middle East when their respective countries only came into being after the colonial period of the 1950/60s?”. In other words, the Holy State of Israel is as old as most of the countries in the region because it was established more or less at the same historical time. So how can the Arabs make such a claim that the land is theirs when we supposedly all arrived and settled here at the same time?

The less said about such opportunistic arguments the better.

Europeans cannot deny that they found indigenous peoples here on the shores of Mzansi. Perhaps in some cases they crossed paths only a little further inland but they found black people here, just like the Jews found the Arab people in that region of the Middle East, whether they now subscribe to modern-day vestiges of colonialism and its arbitrary drawing of borders to constitute different countries or not. After all, this is usually the first step in the rules book of conquering – divide and rule. This is why it was so important for the apartheid regime to make sure that we too subscribe and agree to tribal homelands to divide and rule blacks in South Africa as well.

The bottom line, and we must all agree, is that blacks have been systematically dispossessed of their land for more than three centuries and the time has arrived for redress to take place.

The question we should all be concerned with is how.

First, we have operated and continue to operate within a rules-based environment, regulated by laws and conventions, with the supreme law being the Constitution of the Republic. There will be no land grabs as a result of the change of the law. I mention this because as indicated elsewhere before, though the ANC and the EFF have agreed on this resolution to change clause 25 of the Constitution, it does not mean that they agree on the HOW part.

Professor Ruth Hall explains it thus:

While many applauded the unprecedented agreement between the ANC and the EFF, we need to recognise their key ideological differences.

In its resolution at its 54th national conference at Nasrec in December, the ANC called for land expropriation without compensation to be ‘included among the mechanisms at our disposal’, and did so again during the president’s State of the Nation Address two weeks ago. So the ANC is proposing that government should have this as one option among others – such as buying on the market, negotiating, expropriating and paying compensation.

The EFF interprets ‘expropriation without compensation’ as not just one option for the state, but that it is to be applied across the board. The EFF wants the state to be the ‘custodian of all South African land’.”

The ruling party goes further in that it has stated that all this can happen only if food security is guaranteed and that the entire agricultural sector will not be disrupted as a result. I hear others saying that this amendment simply means that nothing will happen in the end. This I’m afraid is too short-sighted, for there is an urban and rural component to this land question.

Arable land and farming land might be the purview of our rural communities, and yes, it will have to be managed so that the above two principles of food security and non-disruption in the sector are ensured. However, the urban communities want to get their security of tenure. They want to have their respective title deeds in order to have security of tenure. They want this because it will unlock an infinite number of opportunities. They will be able to leave it to their offspring as inheritance; they will be able to use their asset as collateral in wanting to make loans for entrepreneurial purposes, and so much more.

We equally also all know of the “invisible people” with regards to the land question. Our rural people are suffering the brunt of this. We have a farmer who together with three black families has worked and tilled the land for more than three decades. He is tired and getting close to retirement age, so he decides to sell the farm to a younger family member at a reasonable price.

The new owner wastes no time to inform the three black families that they have one month to vacate his land and he is prepared to sweeten the deal with a once-off payment of R100,000. None of the black families has any form of security of tenure, no title deed to prove that they have been living there for more than three decades. So, one family accepts and they leave their homestead for good, while the other two families refuse to leave because they have nowhere to they go, the kids are in the local schools, and they have put so much into their respective houses to make them homes.

I’m afraid there will be no recourse for these invisible people, no one will come to their aid, they possess no money to afford lawyers and they are continuously intimidated and harassed to “hit the road”.

Another example of the invisible people are local tribal chiefs selling land from under the noses of their subjects, and without their permission, to mining houses. Those who refuse to move will eventually have to because the blasting nearby damages their houses, cracking the walls, damaging the roof, and so on. Dispossession of a different kind, still taking place as we speak?

The next major concern from certain quarters is the fact that a constitutional change and/or amendment have been proposed. This I argue must not be feared, it has been 25 years, a quarter of a century, so why can we not relook at certain clauses in our Constitution? As long as the Bill of Rights and our fundamental human rights are not affected, I see no problem with constitutional changes. After all, it is a document borne out of a political compromise and not all its clauses remain relevant to this day.

In fact, changes have been happening over the last 25 years – it’s not a new phenomenon. Certain changes, endorsed of course by our Apex court, have been changed and effected into law; this latest amendment will undergo a similar process. A constitutional change is not necessarily needed, some may argue, while others including me are saying there is no problem with it either.

Anyone who takes an interest in our history will know that legislation was used to dispossess our people and therefore logically it must be legislation that must be used to redress and correct this historical injustice.??

Now I know that private property relations remain the cornerstone of the capitalist system, but if not through legislation, which will speak to land redistribution, restitution, secure of tenure and expropriation, how else would you propose we go about it???

All this will take time and we must work together towards its successful implementation. Even though tempers and emotions run high when it comes to the land question, irrational and illegal behaviour could compromise all that we have worked for in South Africa to date.

Like Achilles, we blacks must not be fooled by our strength and allow a simple arrow such as land to bring us all down. DM


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