(John McCann/M&G)
The concerns and challenges of being an attorney in a practice that has been dominated by cases that involve land claims have, until now, largely been structural and political. These are cases where entities and families have bemoaned insecure land tenure, where land is needed for commercial purposes, together with eviction applications involving mineworkers, waste recyclers and illegal occupiers.
It is well-documented that the budget allocation for the department of land reform, rural development and agriculture has progressively dwindled over the past 18 years, resulting in the castration of the effectiveness of key institutions such as the Commission of Restitution of Land Rights. The commission is at the centre of resolving land claims, given its statutory mandate to research, investigate, mediate and settle land claims for approval by the land claims court.
The backlog in restitution cases has persisted, often leading to the land claims court itself having to exercise its judicial powers to progress the speed and finalisation of cases that have been in a state of flux for years. The first land claim case that I handled as a newly appointed director, remains unresolved after 17 years.
The absence of a statute that governs how land need is to be governed and regulated has impeded the state’s constitutional imperative of enabling citizens to gain access to land equitably and in an open and transparent manner.
Having been a member of the expert presidential advisory panel of land reform and agriculture in 2018 and 2019, I witnessed glimpses of some of the recommendations made by the panel seemingly being taken forward by the department. These include an introduction of a land donations policy and a policy on beneficiary selection and allocation of land.
These policies remain within the scope and ambit of the department as internal policies, the implementation of which is devoid of transparency.
It may be argued that these policies ought to be introduced as pieces of legislation in order to subject them to a process of checks and balances and parliamentary oversight.
The need and significance of introducing legislation that deals with the beneficiary selection and allocation of land are necessary to determine the criteria for land need, given the widespread demand for land, especially in urban and peri-urban areas.
A Redistribution Act that informs citizens how land may be accessed and where, has the potential to resolve the widespread occurrence of so-called “land grabs” or illegal land occupations, often on unserviced land and under unhygienic and dangerous conditions.
The so-called housing waiting list for RDP homes has equally become a phantom tool leaving many citizens with the false hope of one day having a house.
Urban land need in proximity to social and economic opportunities such as jobs, ease of transportation and access to schools, libraries and other public facilities has become more pronounced especially during and after the Covid-19 pandemic.
Litigation involving municipalities, landowners and unlawful occupiers in urban and peri-urban areas has become commonplace, often leading to a protracted period of time to resolve disputes, with the inevitable result that courts find themselves playing a supervisory role, compelling municipalities to provide temporary emergency accommodation.
To add insult to the injury, the state has remained lethargic in using its expropriation powers stated in section 25(3) of the Constitution as a tool that may be used in releasing land for reform purposes.
My fervent belief has been that none of the challenges, weaknesses and state failures outlined above is insurmountable. At least that was the belief I held until March 2021.
Unlawful arrest
It was for the first time in 20 years as a lawyer in land matters that I became privy to an orchestrated pattern of spurious unlawful arrests being meted against the leadership and members of Abahlali baseMjondolo, pretty much with impunity.
Abahlali baseMjondolo — colloquially known as “shack dwellers” — is an organisation that has over the past two decades represented the interests of mainly those who have remained landless and homeless, by creating safety in numbers in various parts of the country.
Abahlali represents a sort of peaceful uprising and a response to the ANC-led land and housing policies that have failed over almost three decades. Abahlali is a critical voice in the emergence of social movements aimed at civic action and active citizenry to drive and progress the land reform agenda in urban areas.
The voices of organisations such as Abahlali have become critical to the grassroots experiences and interaction with land for so many who have remained unseen and unheard in the post-democratic era in South Africa.
Abahlali has rejected the tendency by the government to relocate or evict landless people away from urban centres to the outskirts of society, preferring to improve, upgrade and better the lives of the poor by adopting self-reliance practices such as growing food and by building a socialist network of interdependence.
Abahlali’s work has included advocating for access to water, sanitation, schools, libraries and a sense of community and dignity.
While tasked to assist cases that involve evictions in urban areas, reports of police brutality, harassment and unlawful arrests of the leaders and members of the eKhanana commune, in Durban, surfaced.
News reports of the gut-wrenching murder of the 30-year-old leader of Abahlali, Ayanda Ngila, surfaced.
Ngila had been described by his peers as a committed, young leader with passion and energy.
His murder followed another murder, that of Vusi Shandu, who was also killed at the informal settlement of eKhanana in March 2021. Ngila was murdered a year later.
On 20 August this year, 28-year-old Lindokuhle Mnguni — the chairperson of Abahlali — was gunned down. Mnguni was closely involved in the day-to-day running of the eKhanana commune and spoke with pained conviction and lamented the plight of landless people, often quoting Frantz Fanon, Thomas Sankara and Steve Biko. Mnguni seemed to have accepted the constant threat of death as a fact in his chosen path in life.
It is reported that in the process of taking statements to assist with the investigation into the murder of Ngila, Nokuthula Mabaso was interviewed as a witness. Nokuthula was referred to as “Mabaso” by her peers, referencing the popular character Jack Mabaso in the SABC1 soapie Generations, a heartless villain notorious for his quick wit.
Mabaso was likened to that character. She was resolute. Despite her harrowing account having witnessed Ngila’s murder, it was reported that she remained stern and stoic, refusing to be swallowed by the bloodshed and horror that she had witnessed.
It is not difficult to conclude that the indignity and hardship that Mabaso had experienced did not permit her sometimes to allow even the most basic forms of human traits — the permission to grieve and to feel.
Mabaso was a mother not only to the children that she birthed but was the matriarch of the movement.
When we heard of Mabaso’s assassination in May 2022 — in the presence of her children and husband, with seven bullets pumped into her body — my team and I, as observers and participants in land reform cases, felt a level of hopelessness and helplessness that we had not experienced.
We came to the realisation that the struggle for land justice had become ominously bloody and, indeed, a matter of life and death.
Dire need for land justice
The plainly orchestrated and synchronised murders of Shandu, Ngila, Mnguni and Mabaso must sound ominous alarm bells to everyone who cherishes our constitutional democracy. These murders call for a concerted effort by law enforcement agencies, officials and the state to prioritise, investigate and ultimately prosecute those responsible, who are intent on their murderous conduct and obliterating the voices of the most vulnerable members of our society.
South Africa is not only faced with an urgent and dire need for land justice, particularly after the aftermath of the consequences of the pandemic, but the spirits of the leaders of Abahlali are also echoing the words of Fanon: “For a colonised people the most essential value, because the most concrete, is first and foremost the land; the land which will bring them bread and, above all, dignity.”
The voices and actions of those who remain must exercise them to galvanise urgent state action for a coherent implementation of land legislation and policy. We need the voices of social movements such as Abahlali. The spirits of Shandu, Ngila, Mnguni and Mabaso deserve for us to do better. They cannot be silenced for good.
Bulelwa Mabasa is a director and head of the land reform restitution and tenure practice at Werksmans Attorneys. She serves as the only attorney on the presidential advisory panel on land reform and is the co-author and co-editor of Land in South Africa: Contested Meanings and Nation-Formation and her memoir, My Land Obsession. She writes in her personal capacity.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.