Anthony Holiday
Hear the vengeful racist talk among whites in rural pubs after there has been a farm burning or a farm killing. Sense the envious anger among the black dispossessed in squatter camps from the Boland to our northern borders and beyond.
In short, taste the lethal potion of racism and land-loss and you will see that there is something deeply defective about the notions of justice we bring to bear in trying to redress the wrongs we have done to one another.
The post-colonial imagination that of the formerly colonised quite as much as that of former colonisers can scarcely grasp the enormity of what the white settler land seizures meant. By this I do not intend only the sheer vastness of the extent of land expropriated by trekboers, trekker republicans and gold-hungry imperialists.
I do not mean even the cost in human lives and liberties the process of expropriation entailed the genocidal slaughter of the Khoisan clans, the loss of Xhosa lives in the Eastern Cape frontier wars and as a result of Sir George Grey’s cynical exploitation of the starvation that followed the Xhosa cattle killing.
What I mean is that, in order to do these things and to do them on the scale they did, it was necessary for the colonisers to view the indigenous inhabitants of the occupied territory as vermin, who could be harried, enslaved and done to death whenever and wherever their land occupancy and ways of life hampered or threatened to hamper European “progress” into the interior.
That the original inhabitants did not share white conceptions of land-ownership only served to confirm to the colonial mentality their semi-human or sub-human status.
It showed that “the native” was, in Kipling’s phrase, “half devil and half child”, whose own sense of being owned by the land could safely be disregarded.
There is clearly something grossly inadequate about trying to place injustice of this order under the rubric of “unfairness”. That would be rather like describing the Nazi genocide of Jews and Gypsies as unfair treatment of those peoples.
For surely what distinguishes the injustice done to South African victims of colonial expropriation from other, more easily conceivable kinds of injustice, is that they were regarded by their tormentors as being outside the credible compass of the very idea of unfairness.
They could not be treated unfairly, because, while they might experience pain and deprivation as an animal experiences such things, they could not be thought of as resenting inequity as a white settler would resent it.
A similar point has been made in respect of Aboriginal claims to land restitution by the Australian philosopher, Raimond Gaita, in his fine collection of essays, A Common Humanity.
Gaita praises the Australian high court’s decision in the famous Mabo case, precisely because a majority of the judges held that previous judgements had erred in failing to take the Aborigines’ own attitudes towards land they had traditionally occupied into account.
He supports the judgement, because he sees in it a recognition of an ancient people’s subjective relation to what was precious to them and argues that anything that falls short of such recognition, through clinging to an entirely Eurocentric notion of justice as fairness, collapses into racism.
There is, I believe, a crucial lesson for South Africa in this argument, yet I wonder how ready our politicians and jurisprudentialists are to learn it. The African National Congress, for instance, was founded in 1912 for the express purpose of resisting the land deprivations entailed by the 1913 Land Acts.
Yet the language in which the ANC’s early petitions and protests were framed was, of necessity, parasitic on ideas of equity derived from European legal concepts. The Freedom Charter speaks of restoring the land to those who toil on it. But it is silent on how this should be done, just as it is silent about what the land meant to those from whom it was taken.
The Democratic Alliance is somewhat timid in its support for some form of land restitution, seeming more anxious that such redistribution as does take place should do so strictly within the confines of a legal system which is founded on the neo-Kantian liberal idea of equitable justice.
As for what remains of the socialist “left” in the Congress of South African Trade Unions and in the South African Communist Party, it too remains trapped in a model of purely distributive or redistributive justice which takes the notion of fairness as its guiding principle.
This fixation on a single paradigm of justice as fairness will not relieve the anxieties of those who inherited the privileges and the burden of guilt that are the legacy of the land rape, nor will it quiet the inarticulate rage of the victims of the plunder.
Restitution of a material sort must certainly take place. Without it, all the apologies in the world will amount to no more than mockery. But restitution alone will constitute a merely arithmetical exercise and a dangerous one at that, since the adequacy of the calculations can always be challenged.
No, what is wanted above all else is a restatement and expansion of our most fundamental ideas about justice, based on some imaginative insight into the inner lives of those who were dispossessed.
We need to foster a reverend recognition of the way they saw themselves and their bond with the land, and to acknowledge both the complexity and intensity of their emotions in this regard.
To achieve this, I believe we need a national debate around the adequacy of our conception of justice. And the proper place for that debate to start is among the judges of our Constitutional Court. Let these learned lawyers use their debating sessions to discuss this issue.
Let them make the best results of their deliberations public. Let them draw other lawyers, philosophers, social scientists and, above all, the victims of colonial expropriation themselves into the discussion. To do that would be to put the Constitution’s highest instrument to the noblest of uses.
Dr Anthony Holiday teaches philosophy at the University of the Western Cape’s school of government and at the Institute of Political Sciences in Paris