Post-1994 land laws mimic apartheid

Umhlaba! Izwe lethu! (Land! This land is ours!)” It is now more than 40 years since I first heard these slogans. Given the passion with which they were declared, I have tried to understand exactly what they meant.

Like many South Africans, I continue to grapple with the multiple meanings of the land question. For me, it is important to understand land dispossession as a structural process that played out over many centuries.

Much has been written about the Natives Land Act of 1913, the law that took the land away from African people with the stroke of the pen. Although that Act is an important and brutal turning point in the history of land dispossession and alienation in South Africa, it was neither the beginning nor the final act in this process.

The power of the 1913 Act was in redefining Africans’ relationship to the land, which white people had taken in a series of historical acts of aggression that forced black people into servitude. It is important to underscore the place, meaning and intention of the 1913 Act in the continuum of land dispossession and alienation in South Africa.

It is in unpacking these overlapping and at times obscure facts, laws and practices that we might hope to come to grips with the past alienation and the current forms of dispossession.

At the core of the issue lies the colonial state and its close links with the economic project of white accumulation. Land was taken and placed in private, white hands. The project of state formation was intertwined with this process to create a colonial authority in Southern Africa.

Unlike in parts of Anglophone West Africa, such as Nigeria, the colonial project in this region was direct and coexisted with those it had defeated and from whom land was taken. This alone makes for a complicated, though not necessarily exceptional, form of dispossession.

To consolidate the colonial state and its authority, an internal class drawn from among the colonised had to be brought in to oversee and control the “natives” on behalf of the colonial masters. Thus, it is not possible to understand land dispossession without interrogating its links to other forms of disempowerment and dislocation.

Colonialism took over and distorted everything. Everything. It redefined the customs of those who were dispossessed and subjugated, interpreting them through the lens of colonial logic, and gave it back to indigenous people as “official customary law”.

A community was defined as having a traditional leader – a tribal community whose cultures and practices were homogenised. It sought to standardise these “tribal” groups to eliminate diversity, complexity and the textures of African experience.

Though some scholars have written about the standardisation of customary law, we have yet to wrestle with its effects – especially in relation to land ownership, relationships among groups with land, marriage regimes, customary systems and layers of authority and governance.

Although African cultures in Southern Africa are undeniably patriarchal – something shared with cultures across many continents – there are nuances at the core of the structure of the family, the location of men and women within that structure, as well as property ownership and inheritance issues. Despite many centuries of absorption into the British and Roman-Dutch legal systems and sensibilities, many people continue to live in ways that contradict them.

What does this have to do with the land question? A lot, especially when we consider the concurrent laws and policies that the post-1994 government continues to put in place and the obliteration of the dynamism with which people have contested colonialism.

The 1913 Act forbade Africans to buy or own land. They were allowed to occupy land in designated “reserves”, but the law controlled the tenancy of black people everywhere. The framework and exclusions set out in 1913 were concretised in subsequent laws, in particular the 1936 Native and Land Trust Act, which broke South Africa into 10 distinct areas that became the foundations of the Bantustans. Whatever spaces may have existed for Africans to remain on white-owned land were wiped out in the subsequent forced removals that erased so-called “black spots” with massive aggression.

In 1994, when the democratic government was inaugurated, the multiple legacies of these Acts were still in place. Even in areas that were demarcated as “black homelands”, Africans were not allowed to own land. They could get “permission to occupy” from the Bantustan leaders who held the land “in trust” for the African people, but could not have any form of ownership. Democracy inherited this complex system of dispossession as well as the colonial institution of traditional leadership, which some had come to believe was the “real” African culture.

The first attempt to recreate and transform South Africa, and to reverse major aspects of dispossession and dehumanisation, is set out in the Constitution. It confirms the right to equality, including the right to own land anywhere in the country. In section 25, it defines and requires redistribution, restitution and security of tenure.

The potential and limitations of section 25 have never been tested in court. Instead, a closer reading of post-1994 lawmaking reveals an uncomfortable apartheid-era logic.

The Restitution of Land Rights Act of 1994 and the Communal Property Associations Act of 1996 enabled those whose land had been restored to hold title to it, but traditional leaders were not happy. Their opposition led to the adoption of the Traditional Leadership and Governance Framework Act of 2003, which directly echoes some of the most troubling aspects of the 1913 and 1936 Land Acts, especially in its creation of “traditional authorities” and its reinforcement of the old Bantustan boundaries.

The next step was to give meaning to the Act through a series of laws, including the Communal Land Rights Act of 2004 and the Traditional Courts Bill of 2008. These proposals would give extensive powers to traditional leaders and undermine the rights confirmed by the Constitution. Popular opposition to the Communal Land Rights Act led to it being struck down in 2010 by the Constitutional Court; fierce opposition to the Traditional Courts Bill resulted in its defeat in the National Council of Provinces in 2013. Contestation continues, however, and difficult challenges lie ahead.

South Africa has made little progress in any aspect of redressing the legacy of dispossession. Despite the billions of rands that have been spent, there is very little to show for them in terms of real transformation of the land ownership regime.

I was eight years old when I had my first major argument about land. Despite my reverence for my uncle, who just had returned from Robben Island, I could not understand his approach to the land question. His Pan-Africanist ideology conflicted with what I understood from my parents, who had taken the Freedom Charter route.

During a heated argument, I went outside and scooped soil from the garden and, holding it in my palms, I said: “Ufun’umhlaba? Nank’umhlaba. [You want land? Here it is.]”

From what I remember, I was told something like this: “My child, one day you will understand. You will understand why we are here, in these dry plains of Sabalele, when white people live in lush cities, their gardens kissed by the waves of the sea. You will understand that this [and he touched my belly button] ties you to your mother and the land.

“We are people of the land. The land is our mother, our home and place of belonging. When your [umbilical] cord fell, it was buried in the ground, connecting you to your ancestors and the land. Look at this village. Is this the life we chose for ourselves? No. One day you will ask these questions and reject the idea that this is your place in life.”

Today’s questions are as complex as ever. Umhlaba (land) remains a difficult issue partly because it intersects with the economy, history, identity and so much more.

South Africa’s land question is not going away anytime soon. New alliances – between mining companies, traditional leaders and government departments – will emerge. We need to recover the rights-based approach to land enshrined in the Constitution. Compromises and accommodations may be necessary, but to expect the dispossessed to make more sacrifices is not only unjust, it is also a betrayal of the very struggle many fought, died and live for.

Nomboniso Gasa is an analyst on gender, politics and cultural issues and a senior research associate at the University of Cape Town’s Centre for Law and Society. On February 27 at 7pm she will debate these issues with Deputy Chief Justice Dikgang Moseneke and Land Reform Minister Gugile Nkwinti at the Women’s Jail on Constitution Hill in Johannesburg. The debate is sponsored by the Centre for Law and Society and the Heinrich Böll Stiftung

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