Insight: Complex legacy of 1913 Land Act ‘held captive’
The centenary of the Land Act occurs 18 years after the South African constitution was enacted into law. While the function of the constitution in any society is broader than redressing past injustices; there can be no question that such redress is central in laying foundations for a society based on justice, freedom and equality – in all meanings.
There is general acceptance that South Africa’s land reform and redress has been frustratingly low. This is acknowledged by the leaders of the country as it is equally experienced by the communities who live with the legacy of that dispossession. Why is this so?
In trying to address these questions, it is important that South Africans pay close attention to Section 25 of the Bill of Rights in order to understand the constitutional commitments and imperatives to redressing this legacy.
A closer reading of the constitution reveals that contrary to popular belief, the inability to address the land question is not a result of the constitution. Rather, it is a product of policy choices and a clear lack of political will by leaders of the country and powerful constituencies in South Africa.
It is important to recall here that the South African constitution is a product of a negotiated process. So it bears the hallmarks of our history, but its legacies live in the present. Of course, discussions on the land question have always been part of South Africa’s political and economic debate.
Section 25 of the constitution seeks to strike a balance between competing interests, the historical injustice of dispossession and the reality of the redress and its importance in the post-apartheid dispensation.
As far back as 1988, Judge Dicott warned: “... a bill of rights cannot afford ... to protect private property with such zeal that in entrenches privilege. A major problem which any future South African government is bound to face will be the problem of poverty, of its alleviation and the need for the country’s wealth to be shared more equitably ... Should a bill of rights obstruct government of the day when that direction is taken, should it make the urgent task of social or economic reform impossible or difficult to undertake, we shall have on our hands a crisis of the first order, endangering the Bill of Rights as a whole and the survival of the constitutional government itself”.
The property clause did, however, make it to the interim constitution and to the final constitution in 1995. This probably reflects the extent to which the negotiation process necessitated compromise. However, a reading of Section 25 also reveals the complexity and contestation of the land question. And it shows the extent to which this was grappled with in the negotiation process and the compromises that were made.
Considering the limitations placed by this section on the land redistribution programme, it is important to recall that this carefully worded section also seeks to balance the limitations that may derive from the property clause.
In general discourse, Section 25 has been read to mean that the “willing buyer, willing seller” model is the main determinant of the land reform and redress process. It is also considered to be the main prohibitive clause. Notwithstanding what is dominant in the public discourse, it is important to emphasise that this section does not in fact, limit the extent of land redistribution.
A closer reading of Section 25, shows that the “willing buyer, willing seller” model on the value determined by the market, is not in the constitution.
There are different explanations for the policy and choices that have been made since 1994.
All these are premised on two primary problems. The first is the skewed policy programme for redress. The second, and most damaging, is the intersection of power – political and economic – which have held meaningful redress captive.
All three components of South Africa’s land reform programme – land restitution to those dispossessed in 1913, land redistribution of land to redress ownership resulting from 1913 and the tenure reform system to provide security of tenure to those disadvantaged by discriminatory laws and practices – are severely limited by policy choices rather than constitutional constraints.
They are also undermined by the alliance between the private sector, government and traditional leaders.
This is evident in the struggles seen in South Africa in recent years. From Xolobeni to Marikana, beneath the surface lies a complex legacy of the 1913 Land Act and the new forms of dispossession. Some of the legislation that is being considered by parliament will entrench inequality and lack of access to land even further.
In fact, the Traditional Courts Bill and the National Traditional Affairs Bill are some of the processes that will specifically entrench inequality and disenfranchise the majority of South Africans.
These proposed laws, therefore, undermine whatever constitutional promise there may exist to address the land question in South Africa.
This year presents an opportunity to ask difficult questions – not just about the failure to address the legacy of the land question but also to confront these new forms of inequality. How do these relationships work between these powerful constituencies, government, traditional leadership and mining companies promoting new and old forms of plundering?
Both the 1913 Land Act and the 1936 Act consolidated dispossession and dislocation that actually began before these laws were established.
The legacies of the Land Act of 1913 are multifaceted.
We need to examine the past in the present and determine how this will shape the future. Engagement on this will provide us with imaginative ideas on how to mitigate against the past shaping the present and future in negative ways.
A sustained process that seeks to reverse this trend and put an end to corruption, dispossession and plunder has become urgent in South Africa today. Questioning and rejecting political tap dancing about the present and the future of our freedoms and shared humanity is the probably the most important way in which we can address the legacy of the 1913 Act.
Nomboniso Gasa is a researcher and analyst on gender, politics and cultural issues
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