Bongani Diako and Theunis Roux crossfire
In his response to our article on the Chatha claim, the regional land claims commissioner for the Eastern Cape makes a number of statements that cannot be left uncontradicted (“‘Betterment’ was a violation of land rights”, December 1 to 7). In between the various slurs, commissioner Tozamile Gwanya makes the following points. First, that our article argued that “betterment does not constitute violation of rights”. Second, that we accept at face value the apartheid government’s rationale for betterment. And third, that we fail to understand the objectives of the restitution indaba that was convened to discuss the way in which betterment claims should be resolved. All three of these points wilfully misrepresent our argument. Nowhere do we say that the policy of betterment did not violate rights. Our statement that “removals undertaken in the name of betterment were certainly racist” is a clear indication that we find this policy morally reprehensible. The point we were making was simply that, on a technical reading of the Slamdien case, it was arguable that betterment claims do not qualify for restitution. The Eastern Cape indaba took the decision in respect of this issue away from the Land Claims Court and thus signalled a different approach to land reform from that pursued hitherto. In saying that the new approach was different, we did not suggest that it was wrong. Indeed, our article contains a strong statement against the reference of politically controversial decisions to “unelected judges” whose use of “arcane legal principles” may be seen to be anti-democratic. Since our political commitment to land reform is questioned in the commissioner’s response, it is relevant to mention that one of us (Theunis Roux) was a member of the African National Congress Land Claims Court working group that drafted the initial version of what later became the Restitution of Land Rights Act. The definition of “right in land” in that Act was expressly worded to include previously unrecognised rights so as to make it possible for victims of betterment to qualify for restitution. The Slamdien case, by contrast, turned on the interpretation of the phrase “racially discriminatory laws or practices” a qualification on the right to restitution that was added after the 1996 Constitution took effect. The other of us (Bongani Diako) recently submitted a longer version of the argument contained in our Mail & Guardian article to an academic journal for publication. In the longer version, betterment removals are distinguished from the type of removal at issue in the Slamdien case. The basis of the distinction, however, is not whether betterment violated rights (which is legally uncontroversial), but whether the Slamdien decision, in interpreting the phrase “racially based laws or practices”, did so in an overly broad manner that potentially excludes betterment claims. The as yet unpublished article concludes that there is a legal basis for distinguishing betterment claims from the type of claim considered in Slamdien, and therefore that such claims should be dealt with in terms of the restitution process. In light of the above, the commissioner’s second point, that we accept at face value the apartheid government’s justification for betterment, is clearly without substance. As legal academics we are entitled to speculate about how a court might approach the question of the “proximate cause” of betterment removals without being tendentiously accused of supporting this policy.
Finally, on the objectives of the restitution indaba, we fail to understand how our interpretation differs from that of Gwanya. The principal objective, as he confirms, was to resolve a politically controversial question through negotiation rather than litigation. We agree that this is a sound approach, provided people who may be aggrieved by it are able to access court to challenge the fairness of any decision affecting their statutory rights. This is a core element of the rule of law, and a principle that no servant of South Africa’s constitutional democracy should so glibly dismiss. In saying in our article that “the settlement of the Chatha claim raises several issues that require further debate” we hardly expected that we would provoke a response of this kind. Detoxified of its venom, there is much in the commissioner’s response with which we might have productively engaged. For example, the question whether rights may be limited by budgetary constraints is absolutely central to the social transformation project under way in South Africa. Unfortunately, it seems that the primary aim of Gwanya’s response was to parody our argument to make it appear offensive to our intended audience. In the circumstances, all we have space to do is to defend ourselves against the most egregious of his misrepresentations and let the original article speak (to less prejudiced readers) for itself. Bongani Diako and Theunis Roux are in the Land Rights Research Programme at the Centre for Applied Legal Studies at the University of the Witwatersrand