(John McCann/M&G)
In its current form, the Constitution constrains land reform. My generation has an obligation to revisit it comprehensively to chart a new path.
This realisation came to me when senior counsel Tembeka Ngcukaitobi, speaking at a dialogue titled Does Land Still Matter? and hosted by the Nelson Mandela Foundation on 2 November, asked: “What is the fear of charting a new path as the existing 1994 agreement is not working?”
Ngcukaitobi’s question deserves the attention of anyone who is seriously involved in the emancipatory struggle of black people in South Africa.
Post-democracy, the majority of black people suffer extremely high levels of income poverty and unemployment, especially the youth. It is often sobering being in a township at midday and witnessing these statistics personified.
South Africa remains the most unequal country in the world. And yet, our transition and progressive Constitution are lauded the world over. We can place blame on the government, and some responsibility for this state of affairs can certainly be laid at the government’s door. But, as a country and a generation, we have a duty to confront the insufficiencies of the democratic pact we made in 1994 as a primary root cause of our present socio-economic realities.
Sumaya Hendricks, the foundation’s head of dialogue and advocacy, opened the event saying that we will be haunted by the land question until we have meaningfully addressed it as a country. I agree.
As a descendant of the victims of forced removals in KwaZulu-Natal, with the passing of time and the land unrestored, the wounds are deepening and increasingly impairing rationality about the issue.
The unresolved land injustice haunts me and my generation and will probably haunt future generations too. The struggle for land and economic emancipation will not resolve itself, we must do it. This is our generation’s mission, which we can either fulfil or betray.
Land and property were not the only things that were lost. Also destroyed was a sense of belonging in one’s homeland, culture and a spiritual connection to the land. Many forms of dispossession continue to this day.
Land reform, an instrument to reverse this history of dispossession, is provided for in the Constitution through the rights to restitution, redistribution (equitable access) and tenure security. Although these three rights are connected, the dialogue’s focus was on restitution and redistribution.
It is widely documented that land reform has been a failure in South Africa and has not succeeded in reversing the legacy of colonial and apartheid dispossession. Former president Kgalema Motlanthe estimated that it would take 709 years for all restitution claims to be resolved. This is an indictment of our society.
Reflecting on Ngcukaitobi’s account of the dismal failure of our efforts at land restoration, it felt to me as though we may have forgotten what land reform was intended to achieve.
For the sake of our collective memory and consciousness, I believe that it would serve us well to locate the land reform discourse within the history of violent, fraudulent and forceful land dispossessions that took place under colonialism and apartheid, and which scattered families. Migration to urban areas is linked to this historical dispossession — the systematic destruction of tenure rights through unjust laws and the exploitation of African labour have exacerbated urban land hunger to this day.
I believe that one of the primary objectives of land reform is to right the wrongs of the past, which continue in the present, as evidenced by racially skewed land ownership patterns and persistent land hunger among black populations. Land reform is about reparative justice and is foundational for any meaningful sense of nationhood and for the health of the nation.
Locating land reform within this history enables us to confront the problem outlined during the dialogue about land reform within the law and policy, and its practice, not as a technical debate but as a substantive interrogation of the fitness of these instruments to achieve the desired outcomes of justice for land. My reflection will focus primarily on the law.
Ngcukaitobi believes that the Constitution establishes a base for substantive land reform.
Section 25 protects the individual’s right to property, which asserts that no law may permit arbitrary deprivation of property. This section must be viewed in the context of the history of deprivation for the majority of black people, which the ANC would have wanted to protect.
He also sees the explicit provision for expropriation and non-market-based compensation as successful outcomes of the negotiations to deliver a Constitution at the end of apartheid.
According to Ngcukaitobi, it is the subsequent shift in the ANC government’s policy and practice towards the willing buyer-willing seller model and the party’s reluctance to use its constitutionally enshrined expropriation powers for the purposes of redistribution that have been a source of the failure of land reform.
Failure has also been a result of the concentrated efforts on the limited and challenged instrument of restitution.
Ngcukaitobi proposes maintaining restitution because of its symbolic value as justice for those who were forcibly removed, regardless of its productivity and economic performance. But he also calls for greater focus to be placed on redistribution for the future by aggressively using the tool of expropriation at just and equitable compensation, as already provided for in the Constitution.
The law was an instrument for colonial and apartheid dispossession, and many other forms of oppression in South Africa, therefore, we cannot take it as justice in itself. We have a duty to courageously interrogate it if it is not leading us to the intended outcomes for justice. Thirty years into democracy, we have to question the government’s policy and practice, but we also have to question the law and its foundations.
Reflections on other matters of policy and practice that deserve our attention, such as budgetary constraints, capacity constraints, beneficiary selection, post-transfer support and corruption have been adequately covered in other discussions.
There are those who would argue that if we invested our efforts in these failings, land reform would turn around. I believe that although these issues deserve priority, as the performance shows, land acquisition has been a significant inhibitor to the progress of land reform.
Land acquisition depends on law and policy, which in turn rest on the foundational beliefs about the world we seek to create. Where land reform is concerned, the history of dispossession and associated injustices we are seeking to reverse dictate where we should place our ambitions for land reform, and it is in this light that we have to interrogate the law and its foundations and not only implementation failures.
As I reflect on the dialogue, a humbling take away from Ngcukaitobi’s closing is that the founders of our democracy chose peace and the rule of law as the foundation to build South Africa. They chose the tool of dialogue to resolve the deepest conflicts concerning our past, despite the options of violence that were present at the time. This is our inheritance.
The product of this historical dialogue on the instrument of law may not be perfect, and it is the work of transformation and activism to continuously challenge the law and the gap between the law’s promise and its practice in fulfilling the demands of justice.
The law, however, is vital. Without it, societies are ruled by those with guns and money to the detriment of the poor, marginalised and weak.
Therefore, the work being done to sustain the discussion is critical, and we must use and amplify it as a tool, by uniting this land dialogue with other struggles as we continue to advocate for just laws and to narrow the gap between the promise of law and its practice.
Where the land struggle is concerned, as a generation, we need to chart a new path, because the one agreed to in 1994 is not working for us. A path that places justice at the centre and allows it to serve as a yardstick of where we are and where we need to go.
This path, I believe, should start with a commitment to urgently rethink the law where land is concerned, not superficially for political point-scoring, but for the sake of the unfulfilled demands of justice for land restoration for many South Africans.
Pius Langa, the former chief justice, said: “Transformation is a permanent ideal, a way of looking at the world that creates a space in which dialogue and contestation are truly possible, in which new ways of being are constantly explored and created, accepted and rejected, and in which change is unpredictable but the idea of change is constant. This is perhaps the ultimate vision of a transformative, rather than a transitional Constitution.”
Yoliswa Msweli has recently concluded her master’s in public policy and is also an accountant who has dedicated career to issues of economic, social and racial justice.