26 April,
2013
THIS year
marks the centenary of the 1913 Land Act. Yet, very little is in the public
debate about its multiple legacies in the present.
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.
