Land Matters: South Africa’s Failed Land Reforms and the Road Ahead 9781776095964, 9781776095971, 1776095960

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Praise for Land Matters This historically grounded book makes a significant contribution to ongoing debates and discussions about the many dimensions of the enduring and unresolved land crisis in South Africa.’ – Lungisile Ntsebeza, Emeritus Professor of African Studies and Sociology, University of Cape Town ‘“Our Constitution,” Ngcukaitobi writes, “is potentially expansive, radical and revolutionary …” And yet, a quarter of a century later, we have yet to use this potential. In these pages is a guide to far-reaching and meaningful land redistribution governed by the rule of law.’ – Jonny Steinberg

Praise for The Land Is Ours ‘A highly impressive work of historical scholarship which speaks potently to the crisis-ridden South Africa of today.’ – Bill Nasson ‘An enthralling account of the first black lawyers and their battles to find a just, liberal order for all people in South Africa. I cannot remember any book in recent times that broadened my understanding of white–black relations so comprehensively and incisively.’ – Hermann Giliomee ‘In this important work – released in the middle of a raging land debate – Ngcukaitobi separates facts from myths. He also unpicks urban legends about ownership while debunking the concept of white meritocracy in SA. The structural pillars of the country’s economy were, after all, built on black suffering.’ – Xolisa Phillip, Business Day ‘This is an excruciating book of loss of crucial black talent, of how all-encompassing the colonial and apartheid systems were in destroying all manner of black lives. But it is also testimony to the resilience of the black spirit.’ – Mphuthumi Ntabeni, Spotlight Africa ‘A historical approach cannot fail to open up the discussion about land and lay bare the salient facts, especially when those who prefer to obfuscate the issue tend to imply that the debate is stale, that it has to do with the events of hundreds of years ago, as opposed to the realities and legacies that are experienced by people today. For one thing, the personal histories Ngcukaitobi surfaces put a human face on matters that are often diminished by politics and dialectic debate. And the inclusion of the stories of the ordinary people who were the lawyers’ clients makes the rendition of historical land dispossession more than merely factual: it takes you there as a witness, to watch as it happened.’ – Perfect Hlongwane, Johannesburg Review of Books

Published by Penguin Books an imprint of Penguin Random House South Africa (Pty) Ltd Reg. No. 1953/000441/07 The Estuaries No. 4, Oxbow Crescent, Century Avenue, Century City, 7441 PO Box 1144, Cape Town, 8000, South Africa www.penguinrandomhouse.co.za

First published 2021 1 3 5 7 9 10 8 6 4 2 Publication © Penguin Random House 2021 Text © Tembeka Ngcukaitobi 2021 All rights reserved. No part of this publication may be reproduced,stored in a retrieval system or transmitted, in any form or by any means,electronic, mechanical, photocopying, recording or otherwise,without the prior written permission of the copyright owners. PUBLISHER: Marlene Fryer MANAGING EDITOR: Robert Plummer EDITOR: Dane Wallace PROOFREADER: Alice Inggs COVER DESIGNER: Ryan Africa TYPESETTER: Monique van den Berg INDEXER: Sanet le Roux

ISBN 978 1 77609 596 4 (print) ISBN 978 1 77609 597 1 (ePub)

During the writing of this book, my most beloved aunt Vuyelwa Pamela Mbulawa passed on. This book is dedicated to her memory.

Contents

Preface Abbreviations Introduction Part I: Dispossession 1. The Crime of Apartheid 2. Apartheid, Capitalism and Land 3. Race and Dispossession 4. About the Stolen Cattle 5. Chiefly Power Part II: Property and Liberation 6. Property and the Franchise 7. Private Property and Liberation 8. The Settlement of the 1990s Part III: Land Trials and Errors: Restitution, Redistribution and Tenure 9. Whither Restitution? 10.Inequality in Land Redistribution 11.Our Mysterious Land Tenure 12.Women’s Rights to Land Part IV: The Future of Land Compensation 13.Justice and Equity in Compensation 14.Expropriation and the Banks 15.Is the Constitutional Amendment a Panacea? Conclusion: The Future of Land Reform Acknowledgements Notes Index

Preface Postcolonial societies must grapple with redress. A usual feature of colonial conquest is the dislocation of conquered people from their land. South Africa’s indigenous people are no exception. Colonial societies adopt a language of justification in the interests of the occupying force. In South Africa, the British used race, civilisation and development. Official use of race for discriminatory purposes has largely been discarded. Race itself is no longer the explicit, definable ‘object’ that it once was during the nineteenth century. Yet its progenies, racism and racial discrimination, remain. Structural racism and cultural racism continue to play a significant role in defining access to property. When South Africa became a free and democratic country in 1994, its constitutional foundations promised redress. The redress of property relations – and land in particular – was a predictable area of focus during the transitional negotiations from the apartheid state to democracy. The result was not the entrenchment of property as an unqualified right. Instead, the Constitution guaranteed a version of property founded on transforming the relations of people to their land. Some unique elements of the constitutional property clause which affirm this intention include the explicit power of the state to expropriate property in the public interest, the right to land restitution for victims of forced removals, and the right to ‘equitable access’ in land. While constitutionalism – a state founded on values of equality, freedom and dignity, sourced from an overarching Constitution – has flourished since 1994, land redress has lagged. Questions about the causes of the failure to transform property relations and where the future of land reform lies are now asked with greater urgency than in the first two decades of democracy. In this book I attempt to provide an answer in four parts. The first part calls for a deeper understanding of the nature of colonial and apartheid dispossession, which included the introduction of notions of private ownership of land, the alteration of relations between traditional institutions and the governed people, the use of law to justify racialised land taking, and numerous episodes of large-scale cattle dispossession. The second part focuses on how the liberation phase approached ideas about private property. Since colonialism had drawn connections between franchise rights and property, some of the demands to property rights reified private ownership. In this sense, the private property rights of Africans came to be seen as one of the central goals of the liberation, but the existing private property paradigm was not seriously contested, despite its inherently constraining logic. The third part is about the attempts and failures of land reform. In chapters on restitution, redistribution, tenure reform, and women and land, I try to provide a systematic analysis of the structural flaws in the design of land reform. The last part looks towards the future. While expropriation of land without compensation has been touted as an attractive solution to some of the flaws of land reform in South Africa, its transformative potential is limited. Our failure to explore other forms of land tenure beyond private title, and the narrow lenses with which land is viewed, will continue to bedevil the land reform programme. We need to rethink the meaning of land. Our Constitution requires us to do so. We need new ways of imagining the future. Now, with a future that sometimes appears precarious, we should affirm the country’s commitment to the rule of law. The book offers some suggestions for the journey ahead. TEMBEKA NGCUKAITOBI JOHANNESBURG, FEBRUARY 2021

Abbreviations ANC: African National Congress AMCU: Association of Mineworkers and Construction Union BP: British Petroleum BSAC: British South Africa Company CODESA: Convention for a Democratic South Africa CPA: communal property association GEAR: Growth, Employment and Redistribution IFP: Inkatha Freedom Party IMF: International Monetary Fund IPILRA: Interim Protection of Informal Land Rights Act LRAD: Land Redistribution for Agricultural Development MDC: Movement for Democratic Change NRC: Native Representative Council NUM: National Union of Mineworkers PLAS: Proactive Land Acquisition Strategy RDP: Reconstruction and Development Programme SANAC: South African Native Affairs Commission SIU: Special Investigating Unit SWAPO: South West Africa People’s Organisation TEC: Transitional Executive Council TRC: Truth and Reconciliation Commission ZANU-PF: Zimbabwe African National Union–Patriotic Front

Introduction Africa’s land fate was decided in Berlin In the streets of Johannesburg, Cape Town, Port Elizabeth, there is a cry for land. The land that was taken by Europeans when they conquered Africa. Our ancestors fought for this land. But in the pitiful, brutal and genocidal wars of conquest, the land was lost. In the Eastern Cape, we recall the words of British governor Harry Smith, who regarded the ‘extermination’ of the Xhosa as ‘the only principle to guide us’.1 He was not the first to make these pronouncements. At the end of the Fourth Frontier War in 1812, Lieutenant Colonel John Graham proclaimed the ‘total expulsion of the Kaffir tribes from His Majesty’s territories’, a feat that had been achieved with ‘so trifling a loss on our part’.2 In Namibia, the story of Lothar von Trotha is remembered, a general of the Second Reich who declared the ethnic killing of the Herero and Nama people: ‘The exercise of violence with crass terrorism and even with gruesomeness was and is my politic. I destroy the African tribes with streams of blood and streams of money. Only following this cleansing can something new emerge, which will remain.’3 Africa’s land fate was sealed not in Africa but in Europe. Berlin, to be exact. The year was 1885. The conference was chaired by German chancellor Otto von Bismarck. Taking Africa as a blank canvas, Europeans formalised their ‘Scramble for Africa’ in the years leading to the conference. Boundaries between and within African states were constructed to suit Europe’s wishes. Foreign languages were imposed throughout the continent. Families, clans and communities were split down the middle by arbitrarily imposed borders. From that moment, every piece of African ground was ruled from Europe. South Africa was no exception. The Dutch and the British had long demarcated this land. When the British and the Boers fought a war over sovereignty and the control of South Africa’s land and minerals in the Anglo-Boer War of 1899– 1902, its end entrenched British political and economic hegemony for a time and cemented land dispossession. In the year that the war ended, the Native Reserve Location Act was passed,4 making provision for ‘native locations’ to be created at the whim of the European-appointed governor-general, who enjoyed despotic powers over Africans. Cooperation between the Dutch and British settlers produced the Union of South Africa in 1910. The model of the Union drew from the British colonies of New Zealand, Australia and Canada, which had been created after the genocidal killing of the native populations of those territories. The Union inherited South African territory and continued with the idea of native reserves, converting the land’s native people into wage labourers to support the emerging settler agriculture. Arbitrary taxes were also imposed, which prevented sustainable farming on any meaningful scale by native labourers and pushed them into the towns. By design or consequence, the reserves irrevocably disrupted the social and economic structures of native life: families were broken apart as the administrators replicated the native labour system in the Transvaal and ruthlessly enforced it with pass laws. In Zululand, Bhambatha kaMancinza led an uprising against the oppressive taxes. When the Natal colonial government crushed that uprising in 1906 with the connivance of the British government, scores of young Zulu men were forced to seek employment first in the mines of Johannesburg, then on the farms and in all the secondary and tertiary industries that sprang out of the mining and farming economies. Their employment through the ‘contract labour’ system produced conditions comparable to indentured labour with draconian forms of punishment and control, such as whipping, arbitrary arrests for ‘dodging work’, and the rigid enforcement of pass laws to control the movement of labour. The Transvaal mining economy drew labourers from the whole of southern Africa, so the legal definition of ‘native’ included Damaras, Hottentots, Bushmen and any aboriginal people of southern and central Africa. The historical significance of King Sekhukhune I, leader of the resistance movement by the Bapedi of the Transvaal to the imperial project, is apparent from the announcement of the London Times of 30 August 1882: There is yet no sign of permanent peace among the native races of South Africa. We hear this morning from Durban of the death of one of the bravest of our former enemies, the Chief Sekhukhune. He with his son and fourteen followers, has been killed … The news carries us some years back to the time when the name of Sekhukhune was a name of dread, first to the Dutch and then to the English Colonists of the Transvaal and Natal … It was, indeed to a great extent the danger caused by the neighbourhood of this formidable chief that led to the annexation of the Transvaal by England.5

The timing of Sekhukhune’s defeat and the crushing of the Bapedi in 1879 coincided with the

final defeat of the Xhosas in 1878 and the Zulus after Isandlwana in 1879.

Lessons from southern Africa With politics, war and economic power having decided the destiny of the native races, new laws could be laid out. The first item was land – the formalisation of conquest. It became illegal for native people to hold land in their name. When the Natives Land Act of 1913 was passed, native people were further restricted into small and overcrowded native reserves. The policy of apartheid began formally in 1948. Its sponsors called it ‘separate development’. It perpetrated racial segregation and the Balkanisation of the country into separate homelands, a process that began taking shape in 1963, with the grant of self-government to the Transkei, the first Bantustan. In South West Africa, the same goals were achieved when the Odendaal Commission completed its work in the same year. This commission reduced the seventeen reserves into seven ethnic homelands. South Africa did not quite produce seventeen homelands, but it came close with ten. The lie, of course, was that these homelands would allow separate development along ethnic lines, considering the nature of the land allocated for these purposes. The soil of the Transkei, Ciskei and Bophuthatswana was not as fertile as other parts of the country. The struggle for freedom was therefore the struggle for land. In the 1980s, apartheid experienced internal ruptures, and external pressures resulted in its collapse. A new promise for the return of the land emerged. Now, with conditions that differed from those that underpinned the struggle for freedom, a new struggle began. It would be guided by the principle of constitutional supremacy. Zimbabwe, in 1979, had negotiated its independence at Lancaster House in the United Kingdom. A contentious issue in those negotiations was how to deal with land. The question was, should the land taken from the native people during colonialism be returned? And if so, on what conditions? The Lancaster House negotiations produced a constitution, which contained four clauses dealing specifically with land: • Private property, including land, was protected from seizure by the state. • The state was granted limited powers in the coercive taking of property. Specific instances were spelt out: national defence, public safety, public order, public morality, public health, town and country planning, the use of land to promote the public benefit, or, in the case of its underutilisation, the settlement of land for agricultural purposes. • In the event of compulsory state seizure of land, prompt payment of adequate compensation was guaranteed, as decided by a court. • The right of access to courts to arbitrate compensation disputes was guaranteed. At the outset, the constitutional property clause guaranteed the white population of the new Zimbabwe state that it would retain all the land acquired under colonialism. However, the democratic state could forcibly take the land it needed for the public benefit, which included the resettlement of persons without land. By the year 2000, after twenty years of trial and error, the model had collapsed, with the failure of the central government to use the legal tools at its disposal. Ironically, however, when Robert Mugabe’s government produced a draft property clause in 2000, it failed to overhaul the Lancaster House agreement – meaning the country’s land reform would largely follow a market fundamentalist trajectory. The Movement for Democratic Change (MDC), established in 1999, advocated for an alternative property clause, although this too remained market-friendly, with a strong emphasis on the protection of private property rights. Mugabe’s party, the Zimbabwe African National Union–Patriotic Front (ZANU-PF), lost the constitutional referendum of 2000. But the great lesson from that loss was the recognition of the failure of the market-driven approach to land reform. From that moment, the political slate for land would be revised. ZANU-PF now cannibalised the MDC’s approach to land. But it also distorted the MDC’s original idea. ZANU-PF would use land for narrow, populist and chauvinistic ends. A casualty was the rule of law. Judges, black or white, who insisted on fair process in dealing with land were instructed to resign; as a result, some fled the country, and those who remained were trapped in a climate of hostility. Military rule had displaced the rule of law. Those with access to state power shared the spoils of the land. Today, Zimbabwe wishes to return to the status quo ante bellum – which promises the return of the land to white settlers, along with financial compensation. Official explanations include that this new ‘land reform programme’ in Zimbabwe is about implementing the Zimbabwean Constitution, which guarantees compensation for improvements on land. Nevertheless, it is impossible to put the genie back into the bottle – hence the inevitable slide back into military authoritarianism to enforce the ‘return’ of the land to white ‘owners’. Zimbabwe’s land reform collapsed under the weight of market fundamentalism, disrespect of the rule of law, corruption and bureaucratic inefficiency. We should show solidarity with the people of Zimbabwe to forge their own way forward, recalibrate their country’s commitment to the rule of law, restore the hope of its citizens and rebuild its economy from the ruins. Zimbabwe’s model of the constitutionalisation of land reform was followed by Namibia, some ten years after Lancaster House. Article 16 of the Namibian Constitution guarantees existing property holdings. The land relations created under colonialism and consolidated by apartheid were left intact. The Namibian government was granted the power of the compulsory taking of

the land. This time, it was called ‘expropriation’. Unlike the Zimbabwean Constitution, in Namibia the state was not required to pay the price of the land or adequate compensation in the case of expropriation – instead, the compensation should be ‘just’. But the four constitutional elements related to property that had first been established for Zimbabwe now found their way into the Namibian Constitution. In November 2018, I asked the president of Namibia, Hage Geingob, about the circumstances surrounding the land compromises in the Namibian Constitution in 1989. He pointed to a confluence of factors that had driven the approach of the South West Africa People’s Organisation (SWAPO) at the negotiations: the emerging global economic order that was dominated by the West, Namibia’s strategic importance for South Africa’s own independence, and that at the time the failures of the land reform programme in Zimbabwe were not yet evident. Within four years of Namibia’s independence, South Africa entered the family of free African states. As in Zimbabwe and Namibia, property was a major sticking point in the negotiations towards democracy. A formula borrowed from Zimbabwe, and perfected in Namibia, would be applied. Property acquired during colonialism and apartheid would not be redistributed at once. Instead, the state would have the power to expropriate for resettlement or land reform, subject to the payment of just and equitable compensation. More than twenty-five years after the attainment of freedom in South Africa, the dream of the land being returned has yet to be realised. The return of the land of African people is a shattered dream. A new reality is emerging – not controlled from the centre but springing from the ground, asking difficult questions of the unfinished business of the liberation struggle: until and unless there is a confrontation with the negotiated settlement of the transitional period, it is impossible to speak of freedom, equality and dignity, values that we cherish. Property relations were at the heart of the transition. Thus, the notion of expropriation without compensation has gained ground. Now, with the benefit of hindsight, we can see that neither Zimbabwe nor Namibia got the constitutional scheme for land reform right. Ancestral lands have yet to be returned. Quibbles about definitions of who is entitled to what dominate the discourse. Commercial agricultural land remains in the hands of the few. Many are unable to enter the property market owing to a lack of access to finance. In sum, millions remain desperately poor while a fortunate few enjoy the wealth from the land in the country. In this book, I sketch a few avenues open for expansive land reforms under the rule of law.

Avenues for change So, how do we move forward, bearing in mind that a country of 123 million hectares was divided up in 1913? Nine million people were living here then; now we have fifty-eight million living on the same land. The cultures, languages and even racial complexions of the people from whom the land was taken have changed over time. In light of the structural transformation of the economy, it is not altogether clear that the importance of land has remained constant. Unlike some three hundred years ago, land now competes with stocks, bonds and other classes of assets as symbols of wealth, perhaps in the same way that cattle, rather than land, were once the most visible sign of wealth among Africans. If the Constitution is to be a lodestar for change in land relations, the first step in understanding its role is to examine how the land would be acquired. I have referred to the difficulties of constitutional property protections and their restrictive design. Yet our Constitution is potentially expansive, radical and revolutionary in character. It contains an explicit power to expropriate ‘in the public interest’. When that power is used, the Constitution gives no guarantee that the owner will receive a ‘market-based’ price or value for the land. It simply talks of ‘just compensation’. The shift from ‘value’ to ‘compensation’ is significant, as it also reflects the possibility of non-financial forms of compensation. We should re-examine our attachment to purely financial forms of compensation. Second, if expropriation will be a mechanism for the acquisition of land, the notion of ‘just and equitable’ compensation comes up for debate. ‘Just’ compensation, which has not been defined, is based on the idea of justice. Expropriation in the public interest is not intended to cause future injustices but rather to reverse past injustices. Despite the existence of a permissive Constitution, we have stagnated in the area of land reform. Instead of providing concrete and tangible meanings to the Constitution that are consistent with its anti-colonial character, we have praised it as being ‘the best’, ‘the most progressive’, and so on. Terms of veneration. Terms of praise. Yet we forget that a constitution is primarily a guide for collective action. Yes, it is also a symbol of our collective soul and vision. Some of its tenets are fixed, like the powers of institutions and elements of the Bill of Rights. But it remains a guide for political action. It is not self-executing. By hallowing the Constitution, we have hollowed out its true meaning. My argument is that it is time to take the Constitution off the shelf. Dust it off. And put it to work on the land. Nelson Mandela intended for the Constitution to liberate us, not consign us to further dispossession. He believed that equality was the pinnacle of justice, and said so. In 1962, when he refused to appear before a white magistrate, these were his words: ‘I am without land because the white minority has taken a lion’s share of my country and forced me to occupy poverty-stricken Reserves, over-populated and over-stocked. We are ravaged by starvation and

disease …’6 We should define the content of ‘just and equitable compensation’, a phrase that appears in Section 25 of the Constitution. In doing so, we should not answer past questions but those of today. The Constitution itself contains a few clues as to the factors that may be considered to arrive at a figure: how the land was acquired, what investment was made by the state, what input was provided by the owner, whether the land was acquired for speculation or is being used productively, and if the owner has alternative land. Many candidates present themselves for immediate expropriation without compensation: vacant land, underutilised land, abandoned land, land held by absentee landlords, land held for speculation, and illegally acquired land. Third, we should take the question of ancestral land seriously. The meaning of this term need not be contentious. In many instances, we can work out with relative certainty what areas were occupied by what groups at the time of colonial conquest. But this topic is sometimes employed to open up ethnic cleavages, a clever tactic of the apartheid and colonial state. We should resist this. It is by sheer historical happenstance that the largest concentration of isiXhosa-speaking people is in the Eastern Cape. So, land is important. But the country is more important. Land should be distributed according to need, not ethnicity. Fourth, working out who was where at which time in history need not have the same goal of resettlement in those same areas. The legitimacy of a claim to a particular piece of ground should not be conflated with entitlement to that land. Tribal, ethnic or ancestral claims must yield necessarily to the national interest. Samora Machel reminded us eloquently that ‘for the nation to live, the tribe must die’.7 The issue of ancestral claims to the land, however, remains significant. The focal point, as always, is the reversal of the obliteration of history, of memory, and of the existence of a people. The restoration of these precepts is sometimes emotional, often spiritual, and always about belonging. The changing of street, town and municipality names, for instance, to reflect the multicultural heritage of South Africa, could be a major step forward in the long run. John Graham, George Grey and Harry Smith, for example, do not deserve to have towns named after them. Also, there would be significant symbolism in passing a law that entitles everyone to access their sites of spiritual significance, such as graves, without any payment to the present owners of the land. If land cannot contribute to nation-building, it has not served its purpose. If returning the land simply results in splitting the nation, then how different are we from those who came to this continent by boat, to pillage and to plunder it? Fifth, the debate about expropriation without compensation should be taken with an appropriate level of proportionality and a careful balancing of interests. In some countries in Europe, it has long been the law that expropriation without compensation is not unlawful per se, but it should not impose excessive burdens on the affected individuals. Expropriating property without compensation can be justifiable in certain circumstances. The focus should be on striking the proper equilibrium between the interests of the nation in land reform, the landless and those who must ultimately give up the land. Mandela’s idea of land reform drew connections with nation-building, as he noted in 1998: ‘The experience of all countries everywhere is that if such wrongs are not put right, then the bitterness lives on for many generations. Our land reform programme helps redress the injustices of apartheid. It fosters national reconciliation and stability. It underpins economic growth and improves household welfare and food security.’8 Sixth, it is now plain for everybody to see that land reform in Zimbabwe enriched the political elite at the expense of the nation. Those with access to state machinery were the clear winners who took all, until there was an internal rupture about sharing the spoils of land looting. The South African land reform programme is challenged by crony capitalism, which will further marginalise true subaltern interests. We cannot accept a narrow nationalistic discourse underpinned by ethnic chauvinism. We need a truly progressive land reform that privileges the interests of the marginalised. To achieve this, we should not be happy with rhetoric that uses the notion of ‘our people’ only to enrich the elite. We should be demanding greater transparency and accountability. We should ask who has benefited from farm allocation, what criteria were used, how much was paid, and where that money went. In as much as land reform should create conditions for national unity, it must recognise that class remains one of the major threats to democracy. The fundamental question remains: What is the class agenda behind land reform? Seventh, focusing on the question of class challenges us to face the issue of the ethics that drive land reform. In The Wretched of the Earth, in the chapter ‘The Pitfalls of National Consciousness’, Frantz Fanon pointed to the irony of freedom – having defeated the French, the new Algerian ruling elite had adopted their morally corrupt ways. In South Africa, we make the argument explicit: now that we have defeated the colonial and apartheid rule imposed by white settlers, have we not adopted their morally corrupt ways?

When will this end? It is often asked: When will this come to an end? Can we not implement land reform and move on? I think that it’s wrong to think of land reform as a destination. Rather, it is a way of imagining the world, and of being in it. The disparity of wealth between South Africans is a strong indicator of the failure of the constitutional project. The cynical use of the Constitution in

defence of the privileges of apartheid is another. Imagining ways to confront these issues and overcome them is a constant challenge for committed constitutionalists. In forging ahead with the struggle for a just society, we always look back to understand the present. We remember the words of the novelist William Faulkner, who wrote: ‘The past is not dead. In fact, it’s not even past.’9 The cries of Sharpeville, of Langa, of Soweto reverberate with us once again. We should remember where this all started. With land.

PART I

Dispossession

1

The Crime of Apartheid Where does one begin? Let us begin in New York on 30 November 1973. On that date the United Nations General Assembly passed one of its most important resolutions, adopting the Convention on the Suppression and Punishment of the Crime of Apartheid. In the opening paragraph, the Convention declared apartheid a ‘crime against humanity’. It went on to state that the ‘inhumane acts resulting from the policies and practices of apartheid’ violated the principles of international law and the Charter of the United Nations and were a serious threat to international peace and security. The organisations, institutions and individuals responsible for the design and enforcement of apartheid were condemned as criminally culpable.1 From its inception, the United Nations Charter had set itself against racial discrimination. But until the Convention on Apartheid was passed, the world had tolerated South Africa’s obnoxious policy of apartheid, occupying itself with the maintenance of world peace, the decolonisation of Africa and Asia, and the global economic reconstruction after the Second World War. Now, the gaze of the world was turned to South Africa in the pursuit of commitments contained in the Charter. Apartheid, a policy founded on racial supremacy, was not only incompatible with the principles of the United Nations but also constituted a crime in international law. The significance of the Convention was immediately apparent. In a departure from the standard understanding of crimes as offences by individuals, apartheid was recognised as a systematic crime committed by a state against the majority of its people. In Article II of the Convention, the elements of the crime of apartheid were defined in essence as ‘inhuman acts’ committed to establish and maintain racial domination and systematic oppression. Several such acts were identified. First, the deliberate imposition on a racial group of living conditions calculated to cause its physical destruction in whole or in part. Second, laws calculated to prevent a racial group from participating in the political, social, economic and cultural life of the country. Third, the deliberate creation of conditions preventing the full development of a racial group, denying them basic freedoms, including education, nationality and freedom of movement. Fourth, the creation of ‘separate reserves and ghettos’. Fifth, ‘the expropriation of land and property belonging to a racial group or groups or to members thereof’. And finally, the exploitation of the labour of members of a racial group, in particular by submitting them to forced labour. The Convention thus captured the core features of apartheid in three respects. It shifted the locus of accountability from the individual to the state; it recognised that apartheid was, by its nature, a systematic crime (not isolated acts of individuals driven by racial hatred); and as a systematic crime, culpability for apartheid extended to all those who derived a benefit or advantage (including economically) from the system. Hendrik Verwoerd, prime minister of South Africa from 1958 until his assassination in 1966, and a key proponent of apartheid, once described it as ‘a policy of good neighbourliness’.2 The 1973 declaration by the United Nations exposed the façade of separate development. Apartheid was the expropriation of African land, the exploitation of African labour, and the deprivation of Africans’ fundamental rights and freedoms. Different races did not each develop separately but equally alongside each other, as apartheid’s supporters claimed. The development of the white race was achieved at the expense of black people. Blacks lived alongside whites, but in a subordinate position. When Africans were stripped of their South African citizenship, the effect was to sustain their perpetual subordination. Now, the United Nations had revealed this fact to a global audience. There was also a moral imperative in its declaration. When the United Nations was founded in 1945, it committed itself in its Charter to promote and encourage ‘respect for and observance of human rights and for fundamental freedoms’ for all ‘without distinction as to race, sex, language, or religion’.3 The International Covenant on Civil and Political Rights, adopted in 1966, was based on the principle of the universal extension of human rights. State parties undertook to give effect to the terms of the Charter and the Covenant within their territories and not to be party to external violations. Bearing this in mind, it was morally untenable for the United Nations to stand idly by in the face of the explicit racial discrimination of apartheid. Yet immorality aside, there was also a legal imperative. Some thirty years earlier, the Holocaust in Adolf Hitler’s Germany had been declared a crime against humanity.4 From this declaration, victors’ justice, exemplified by the Nuremberg trials, followed. Hitler’s policies were

condemned, but unlike what had transpired in Nazi Germany, the trialists were not gassed or shot in the back but put through open and public trials where they defended themselves, were found guilty and duly sentenced. It was this type of justice that was envisaged in Article V of the Convention on Apartheid, which declared that persons charged for committing crimes of apartheid could be ‘tried by a competent tribunal’ or ‘by an internal penal tribunal’.5 Naturally, upon conviction, criminal sanctions would ensue. If the racialised policy of land dispossession, the denial of access to education and the exploitation of labour on racial grounds constituted a crime against humanity, what ‘sanctions’ were appropriate for the crime? The aftermath of the German Holocaust might help us navigate this topic.

What to do with crimes against humanity? In 1947, two years after the Second World War, the United States passed Military Government Law No. 59. Its purpose was the restoration of identifiable property that had been seized on racial, political or religious grounds under Nazi rule. According to this law, those who had property taken from them were entitled to restitution. In May 1948, when the National Party of Daniel François Malan took power in South Africa under the slogan of apartheid, the state of Israel was being born. Three years later, in September 1951, the first chancellor of the Federal Republic of Germany (or West Germany), Konrad Adenauer, delivered a landmark address explaining his country’s ‘attitude towards Jews’.6 Noting ‘the terrible crimes of a past epoch’, he observed that Germany’s position was the recognition that all persons are equal before the law and that no one may be prejudiced or privileged because of their race, language, nationality or religion. The dignity of man is inviolable, Adenauer pronounced. Anyone could say these words, of course, but what was important were the practical steps taken to meet these commitments. If no concrete actions were taken, the words would remain just that – words. Adenauer accepted the ‘immeasurable suffering that was brought to bear upon the Jews in Germany … during the period of national socialism’. Even though some German people had rejected national socialism and the actions of Hitler’s party, Adenauer conceded that ‘unspeakable crimes’ had been perpetrated in the name of the German people. That fact imposed upon Germans ‘the obligation to make moral and material amends’, as regards the individual and collective damage suffered by Jews. As a result, restitution legislation would be brought into operation and Jewish property returned. The government, Adenauer committed, was prepared ‘to bring about a solution of the material reparation problem in order to facilitate a way to a spiritual purging of … suffering. It is fully convinced that the spirit of clear humanity must once more become alive and bear fruit.’7 Germany had accepted the moral responsibility for the crimes committed in the name of the German people. Moreover, it had accepted a legal framework for the reparations. Yet by the very act of determining the ambit of moral responsibility and the legal framework for restitution, it was entrenching its national superiority over its victims. Unless the victims of fascism had a say in the restitution, the very point of restitution could be defeated.

Victims and reparations Adenauer’s commitments opened the way for the larger question of reparations, accountability and moral restitution. But it was Jews themselves who drove the movement towards reparations, basing their arguments on the admitted responsibility and accountability of the German state. In this way, rather than relying on the benevolence of Germany, the country responsible for their suffering, Jews could become active agents for their material and psychological renewal. The Conference on Jewish Material Claims Against Germany was established in New York in 1951. In its resolution passed in October that year, the Conference supported the claim of US$1.5 billion for the restitution of Jewish victims of Nazi persecution. Yet, as the Conference supported these demands of material restitution, it was acknowledged that no amount of financial payments ‘can make good the destruction of human life and cultural values’ or atone for the ‘agony of the men, women and children, tortured or put to death by every inhuman device’.8 Restitution, however, remained non-negotiable. A series of agreements were concluded on 10 September 1952 with the German government. These became known as the Luxembourg Protocols, and financial reparation was their main goal. However, the departure point required the determination of the applicable legal standard to qualify for financial restitution. Broad qualification criteria were agreed. Deprivation of liberty by persecution was the yardstick. But what did this mean? Here, specific acts were identified: compulsory labour or deprivation of decent living conditions by reason of deliberate state policy was regarded as constituting ‘deprivation of liberty by reason of persecution’.9 This definition considerably expanded the class of persons eligible for reparations. The class of beneficiaries for restitutive claims could not be restricted to the victims of Auschwitz and other concentration camps. Many Jewish people could not pinpoint relatives whose lives were stamped out in the camps, who inhaled lethal fumes in gas chambers or who were shot in the back by the murderous Gestapo. Hitler’s national socialism was a racial system of oppression, depriving Jews of their property for the benefit of Nazi Germany and exploiting

their labour to advance an idealised German race. If the class of beneficiaries was limited to direct victims of the Holocaust, the point of the exercise would be lost. The intergenerational effects of national socialism would remain. And the ultimate rationale behind the reparations would not be achieved. The broader the class of beneficiaries, the more likely the reparations would serve their purpose. So, what was the substance of the Protocols? The Luxembourg Protocols were premised on two foundational principles. The first was an acknowledgement by the German Federal Republic that it was liable to pay compensation in respect of claims that emanated from the conduct of Nazi Germany. This principle was important for several reasons. Germany denied that it was legally the ‘successor state’ to Nazi Germany. It argued that national socialism was so gross an aberration to the manner in which states should deal with their people that it could not be considered conduct ascribable to a state at all, but to the perverse deeds of individuals. But, even as this argument was mounted, liability was conceded because the actions of Nazi Germany were perpetrated in the name of the German people. Germans were the prime beneficiaries of Jewish oppression. To be liable, Germany did not have to be a legal successor state to Nazi Germany; it sufficed that national socialism was carried out in the name of Germans. The second principle concerned who would pay. Germany was itself a divided state between East and West. West Germany subscribed to principles of Western capitalism, while East Germany (the German Democratic Republic) was under the influence of communism. West Germany would pay two-thirds of all state claims against the Holocaust, and East Germany would take on the remaining portion. Despite its claims to international socialism, which rested on the principle of equality, East Germany had benefited from a racist system of fascism and had a duty to contribute to the reconstruction of the Jewish state. It was taken for granted that the superior economic position of West Germany owed its existence – at least in part – to the labour camps, the systematic elimination of competition, and the compulsory taking of property from Jews in favour of the Nazi government’s chosen few. Speaking of these agreements, the leader of the nascent state of Israel, David Ben-Gurion, noted on 17 September 1952 that, although it was too early to assess the practical significance of the agreements, it was ‘difficult to over-emphasize its moral and political significance’.10 He accepted that Germany would most likely fulfil its promise. But Germany could not be taken at its word in light of previous experience. Consequently, Ben-Gurion proposed that the promised funds must be secured by physical payment – the money had to be controlled by Israel, not Germany. Having overseen the destruction of Jewish society, Germany could not dictate the terms of its reconstruction. Beyond the financial compensation, the Luxembourg Protocols were also morally and politically significant. As Ben-Gurion argued, For the first time in the history of relations between peoples, a precedent has been established whereby a Great Power undertakes, under moral pressure only, to pay reparations to victims of its former Government. For the first time in the history of the Jewish people, oppressed and plundered for hundreds of years in all countries of the Old World, the oppressor and plunderer has had to hand back some of the spoils and pay collective compensation for part of the material losses.

If Germany fulfilled its obligations under the agreement, the Protocols would ‘serve as an impressive contribution towards consolidating the economic independence of Israel and as a substantial compensation to those victims of Nazi persecution who are still alive’.11 The Luxembourg agreements were a watershed in international relations. No state had previously accepted moral responsibility and financial accountability for crimes against humanity that had been perpetrated by its leaders. In at least two African states, there was hard evidence of crimes against humanity. The first was in the Congo, where Belgium was responsible for the genocide of more than ten million Congolese between 1885 and 1908.12 Closer to home, in Namibia, Germany’s genocide of the Nama and Herero peoples between 1904 and 1905 had long been described as a crime against humanity.13 Yet neither Belgium nor Germany has been prepared to unequivocally admit the fact that the roots of crimes against humanity run deep in their history – and that the first crimes against humanity were committed in Africa. Given this history, Germany’s acceptance concerning the Holocaust was a transformative moment. It would come to serve as an anchor for the struggles of reparations across the world. But the full scope of the reparative project in Nazi Germany must be understood. And we cannot understand that scope without considering corporate accountability.

Compensation for free labour The signing of the Luxembourg Protocols ignited a cross-national movement for the payment of reparations to Jewish people. Austria, Hitler’s native country and another site of Jewish persecution, committed to reparations. Beyond states, corporations were viewed as liable for reparations too. Companies like Friedrich Krupp, Siemens, AEG-Telefunken and Rheinmetall agreed to pay compensation for ‘years of Jewish slave labour at [their] factories’.14 Methods of enforcement also evolved. Ben-Gurion, no doubt, was pleased that the Luxembourg Protocols

were a product of moral persuasion. But they did not stay that way for long. By 1997, some forty years after the agreements were signed, moral persuasion was no longer sufficient to guarantee financial settlements. In March that year, a class action lawsuit was filed with the United States district court in New York against German insurance companies, seeking the recovery of Holocaust-era insurance policies. Similar class action lawsuits were filed against German banks and enterprises for compensation regarding slave labour during the Nazi regime. Some of these claims were resolved in subsequent years, such as when Credit Suisse and UBS agreed to pay out US$1.25 billion, and Volkswagen instituted a US$12 million compensation fund. In the US district court, Edward Corman approved the allocation plan for US$1.25 billion to be paid by Swiss banks in response to the class action instituted in 1997.15 More than fifty years since the Holocaust, Germany’s commitment towards reparations for Jews has not abated. In 2016 another agreement was signed between the Claims Conference and the German government, under which Germany agreed that it would provide home-care funding for Holocaust victims until 2018. For 2016, Germany pledged €282 million, followed by €315 million for 2017 and €350 million for 2018.16 The classes of victims have also been fundamentally transformed as the nature and sources of the funds available for reparations have multiplied. It is against this background that we return to the recognition of apartheid as a crime against humanity. Apartheid was not the same as the Holocaust, and there is no point in comparing victimhood. But the fact is that apartheid also comprised ‘inhuman acts’. It is condemned because it denied and violated the humanity of its victims. The focus of a crime against humanity is not the race of the victims but their humanity. Yet there have been no meaningful financial or material reparations for the victims of apartheid, a point which calls for further interrogation. In thinking about reparations, we should locate apartheid in its moral, political and historical contexts. While formal apartheid has been abolished, social and economic apartheid remain. In 2018, the World Bank delivered a brutal and frank assessment of the enduring legacy of the apartheid economic order. It revealed that race, geography and gender continue to be the key indicators of wealth – precisely the way apartheid was designed.17 The forced dispossession of the land held by black people in South Africa was the act that most decisively deprived black South Africans of their means to resist being reduced to a labouring subclass under apartheid. It is, at once, the most visible symbol of apartheid and colonialism. The restoration of land must, therefore, be understood as an imperative of justice – and a necessary measure of reparations for the crime of apartheid.

2

Apartheid, Capitalism and Land Dispossession by law The country we know as South Africa was born in 1910, under the South Africa Act. Its distinctive birthmark was the legal inscription to deny the rights of citizenship to its indigenous people. Section 35 of the South Africa Act defined eligibility for franchise. Only male adults could vote, and voting rights were effectively limited to Europeans.1 Two languages, Dutch and English, were recognised, both of which came from Europe. Political office was reserved for ‘British subjects of European descent’ and white people who had resided in the Union for at least five years before the Act came into operation. When apartheid was installed as the political ideology of the new government in 1948, the intention was to turn South Africa into a white man’s land. The legalisation of racial conquest, however, had long been part of the fabric of South Africa before apartheid officially began. On 10 June 1891, the Transvaal Volksraad passed a resolution to ‘instruct all Commissioners and Sub-Commissioners through the Superintendent of Natives to see that henceforth no natives may reside on Government grounds, not intended for location grounds on such fines and penalties as the Government may deem necessary’.2 In 1894, Cecil John Rhodes, then governor of the Cape, spearheaded the Glen Grey Act, which restricted land and cattle ownership by native people. Rhodes made this plain: My idea is that the natives should be kept in these native reserves and not be mixed with the white man at all. Are you going to sanction the idea, with all the difficulties of the poor whites before us, that these people should be mixed up with white men, and white children grow up in the middle of native locations? In the interest of the white people themselves we must never let this happen. White labour cannot compete with black labour in this country – physical labour I mean.3

While the Glen Grey Act initially applied to parts of the Northern Cape, it would later be extended to the Transkei. Rhodes argued that the Act would be a ‘bill of Africa’,4 and it served as a prototype for the 1913 Land Act. After the Anglo-Boer War, Alfred Milner, the colonial representative responsible for the Transvaal, appointed the South African Native Affairs Commission (SANAC) to seek solutions for the severe shortage of African mineworkers, who could be paid low wages.5 SANAC delivered one of the most influential reports to give ideological justifications not only to institutionalise a harsh form of African labour repression but also to entrench the principle of migrant labour with subsistence in rural areas. The migrant labour system that played such a decisive role in the gold mines during the twentieth century can be regarded as a direct result of SANAC’s recommendations. SANAC recommended that Africans’ access to land and farming should be curtailed to proletarianise Africans in order to induce large numbers to enter lowpaying wage labour.6 This philosophy was accepted when the Land Act was promulgated in 1913. The Chamber of Mines was empowered to recruit migrant labour in the African reserves (and in neighbouring countries), while white farmers were given the power to evict African sharecroppers, squatters and tenants who would not submit to the full control of their time and labour by the landowner. The Natives Land Act included a ‘Schedule of Native Areas’, which listed the existing reserves, farms and locations that had been set aside for occupation by Africans, constituting 8 per cent of South Africa’s surface area. Section 1 of the Act forbade a ‘native’ to enter into ‘any agreement … for the purchase, hire, or other acquisition from a person other than a native’ of land outside the scheduled native areas, save with the permission of the governor-general, which for all intents and purposes meant the minister of native affairs. A corresponding provision, aimed at neutralising the discriminatory impact of the Act, prohibited a ‘non-native’ from acquiring or hiring land from a ‘native’ inside the designated native areas. Agreements made in breach of the Act were void, and the parties to the agreement were, in terms of Section 5, guilty of an offence punishable with a fine or imprisonment of up to six months. Section 2 of the Act provided for the appointment of a commission that was to report on what areas should be set apart for exclusive use by natives and non-natives, respectively. The Native Trust and Land Act was passed in 1936. It made provision for the establishment of the South African Native Trust, a state agency to administer trust land ‘for the settlement, support, benefit, and material welfare of the natives of the Union’. While disallowing individual landownership by black people, the Act introduced trust tenure. The South African Development

Trust, a government body, was responsible for purchasing land in ‘released areas’ for black settlement. These laws were consolidated by the Group Areas Act of 1950, which established group areas and imposed restrictions over land purchases in certain areas. Three racial groups were recognised: whites, natives and coloureds. Each of these groups had to stay in a designated area, failing which they would be criminally prosecuted. In 1966, the Group Areas Act was reenacted to consolidate the laws related to the establishment of group areas and to regulate control over the acquisition of immovable property and the occupation of land and premises. Under this Act, ‘natives’ were referred to as ‘Bantu’. Massive forced removals followed. According to one set of figures, it resulted in the removal by 1976 of 305 739 coloureds, 155 230 Asians and only 5 898 whites.7 As for Africans, the figures for forced removals are staggering. The estimates for 1960 to 1983 exceed three million people, including 1 129 000 people removed as a result of evictions from farms; 614 000 people removed as a result of ‘black spot’8 removal and homeland consolidation; 730 000 people removed under the pass laws from major metropolitan areas; 130 000 people removed from urban informal settlements, owing also to laws curbing ‘illegal squatting’; and 860 400 people removed as a result of the group areas legislation.9 Writing in 1969, Cosmas Desmond sought to ‘illustrate what apartheid means in practice’ in his book The Discarded People.10 Between May and September 1969, he travelled across South Africa to document apartheid’s forced removals. His book, which describes the horrors of the policy, resulted in an international outcry as it laid bare the callous ingenuity of apartheid South Africa – discarding its unwanted people. It describes how several million Africans were removed from their homes on land that had been declared ‘white’. They were categorised as ‘superfluous’ and ‘unproductive’. They were not wanted in white cities, towns and farming areas. Declared aliens in the land of their birth, they were dumped in the homelands, which were often remote rural slums, areas for which the government took no responsibility. Whoever was not seen as useful to the ‘European labour market’ – the aged, the unfit, widows, women with dependent children and families, and even professionals such as doctors, attorneys, agents, traders and industrialists who were ‘not essential for serving their compatriots in the European areas’ – or who was in an area regarded as ‘badly situated’ was discarded. Desmond summed up the policy: I have seen the bewilderment of simple rural people when they are told that they must leave their homes where they have lived for generations and go to a strange place. I have heard their cries of helplessness and resignation and their pleas for help. I have seen the sufferings of whole families living in a tent or a tiny tin hut. Of children sick with typhoid, or their bodies emaciated with malnutrition and even dying of plain starvation. The enormity of relocation only hits the traveller when driving through the bantustans … Dispossession and exclusion lie at the heart of apartheid.11

It was these laws, the racialised dispossession of cattle, the turning of property holders into wage labourers, and the ultimate act of marginalisation – of people being discarded – that moved the international community, finally, to declare that apartheid was a crime against humanity. As we have seen, apartheid was not only a system of racial categorisation. It was an edifice built from black land dispossession and the exploitation of black labour.

Axis of law, labour and apartheid capitalism In 1985, some twelve years after the resolution of the United Nations condemning apartheid as a crime, State President Pieter Willem Botha was expected to ‘cross the Rubicon’. But he would not. Instead, wagging a finger in Parliament, he entrenched South Africa’s position as the skunk of the world. Apartheid would not go away, he protested. Nelson Mandela’s life sentence in prison would continue. As Botha bellowed in Parliament, military tanks, armoured vehicles and police Casspirs were driving into black townships, engulfing them in smoke from tear-gas canisters. The vehicles were oiled and fuelled by the large petroleum companies of the world: Shell, British Petroleum (BP) and Mobil. Collectively, these companies controlled more than 80 per cent of South Africa’s market for petroleum products. It is often said that companies in South Africa made super profits during the 1960s, 1970s and 1980s. But what is spoken about less is that this was achieved by oppressed labour under apartheid. The symbiotic relationship between the white administration and white businesses is perfectly clear from the following laws and regulations, passed by the apartheid administration. First, there were the pass laws to control migrant workers. The pass laws have a chequered history in South Africa. According to the report of the Truth and Reconciliation Commission (TRC), migration control regulations were first drafted by the Chamber of Mines’ Native Labour Department in 1895 as a response to perceived state reluctance to organise a stable and constant labour supply.12 The stated intention of the migration control laws was ‘to have a hold on the native whom we have brought to the mines’.13 Hennen Jennings, president of the Chamber of Mines, once described the pass laws as ‘a most excellent law which should enable us to have complete control over the kaffirs’.14 The pass laws of the 1950s up to the 1980s still served the dual function of maintaining administrative and political control over black people, but their insidious effect was the control of labour for the benefit of white businesses.

Then there was the Masters and Servants Act – introduced in 1841 but which remained active in various guises until 1974 – which made it a criminal offence punishable by imprisonment for a black worker to break his or her contract of employment by desertion, insubordination or by refusing to carry out their employer’s command. By contrast, an employer’s breach of the contract was a matter for the civil courts to enforce, not criminal law. The Industrial Conciliation Act of 1924 and its successor, the Native Labour Act of 1953, prohibited Africans from joining trade unions or having any organised labour rights. Third were the influx-control regulations. Although they were justified by the government on the grounds of their compatibility with the policy of separate development, the reality is that these regulations served the important commercial goal of redirecting black labour from towns to farms and mines. The design of the legal order thus enabled apartheid capitalism to thrive. When the international community declared this systematic dispossession and racialised forced labour as crimes against humanity, culpability went beyond the state – businesses that were complicit with the apartheid government also fell within the net of criminal responsibility. A declaration of criminal conduct, however, would not deter businesses. Positive action was necessary. Economic boycotts and sanctions against the apartheid state were adopted by many countries. The TRC condemned the business sector for complicity in apartheid. According to Volume 4 of its report, Business was central to the economy that sustained the South African state during the apartheid years. Certain businesses, especially the mining industry, were involved in helping to design and implement apartheid policies. Other businesses benefited from co-operating with the security structures of the former state. Most businesses benefited from operating in a racially structured context.15

Although sanctions were imposed against South Africa by the international community, the economic machinery of apartheid never stopped. For corporates breaking the sanctions, the promise of profits outweighed their desire for the freedom of black South Africans. For oil companies, their loyalty to apartheid South Africa was handsomely rewarded in 1985 when cabinet member Chris Heunis announced the Equalisation Fund.16 BP, Shell and Mobil were to be paid at more than the prevailing market rate for providing fuel to South Africa’s police and military vehicles. In their cooperation and co-dependence with the apartheid state, the oil companies were not out of step with their domestic counterparts. According to the TRC, in 1976 the mining giant Anglo American held a 20 per cent holding of Barlow Rand, which was a major producer of defence electronics, purchased primarily by the state. Barlow Rand paid dividends to its parent company, Anglo American. Three members of the Barlow Rand board of executives (including the chairperson) were members of the Defence Advisory Board under then president P.W. Botha. Anglo American chair Gavin Relly served on the board for Armscor, the government’s arms manufacturer. Armscor’s board comprised ‘no less than thirteen prominent businessmen including the Chairman of Anglo American, Gavin Relly and the representatives of Barlow Rand’.17 When apartheid became intolerable to the global community in the 1980s, business anxieties were not its obliteration but its salvation in different guises. Gavin Relly rejected the idea of one man, one vote ‘at this point in time in our history’.18 Similar sentiments were shared by Anton Rupert of Rembrandt, who pronounced in 1981 that ‘after many African countries became free they got dictators like [Idi] Amin. We have to find a solution that won’t end up giving us one man one vote’.19 Harry Oppenheimer was also not an enthusiastic supporter of a one-man, one-vote system in a unified South Africa: Since we are not going to get the Nationalists out of power so quickly – much as I’d like to see the Progressive Federal Party come in – one has got to find a means of doing social justice in a way that the reasonable people in the National Party might go for. This does shut out going for one man one vote in a unitary state, although clearly one’s got to go for one man one vote in some form. I used to be very keen on a qualified franchise, but it is no longer practical. I think therefore one should go for everybody voting in some sort of federal society. We have to go to look for our salvation to that fascinating business of constitution making.20

While business was close to Botha’s government, some within its ranks were sending out feelers to the liberation movement. That ‘fascinating business of constitution making’ had to begin. On 13 September 1985, a group of leading businesspeople met with the African National Congress (ANC) in Zambia. They included Gavin Relly; Tony Bloom, the chair of Premier Milling; and Zach de Beer of Johannesburg Consolidated Investments. With these overtures, Botha’s government remained in apparent denial about South Africa’s crisis. His friends in business only served to create a protective wall around him. In 1987 the Anglo American chair’s annual statement by Relly regarded the state of emergency, which was an instrument of repression, as ‘regrettable’ but ‘necessary’.21 This view would be shared by Trust Bank when it declared in October 1988 that the ‘60 percent increase in South Africa’s security expenditure over the past two years was

clearly essential in the circumstances. In fact, the damper put on socio-political instability by the security forces has definitely played a role in the recently improved performance of the economy.’22 Until its very last days, the apartheid government was maintained by big business. But big business was adept at playing a double game. As it saw the inevitable demise of apartheid, it engineered a role for itself in the new democratic government. An internal convulsion in the National Party led to Botha’s purge and his replacement by Frederik Willem de Klerk in 1989. Within a short time after assuming office, De Klerk unbanned all political parties and released Nelson Mandela from prison, and negotiations towards a democratic South Africa ensued. A key aspect of the agreements reached in this regard was the establishment of the TRC as a platform for truth, amnesty and reconciliation. But with apartheid having been a crime against humanity that benefited big business, who would take responsibility for it?

The ‘truth’ about the role of business during apartheid In her book Country of My Skull, Antjie Krog describes the first day of the hearings into the role of business during apartheid before the TRC on 11 November 1997. There was a ‘touch of surrealism,’ she writes. The ‘breathtakingly wealthy’ captains of industry, Nicky Oppenheimer, Bobby Godsell and Julian Ogilvie Thompson, dressed in designer suits, sat to be questioned by the commissioners ‘just as hundreds of others have sat before them’. An illusion of equality was created. ‘Not even the rich’ were above the law.23 In the first few days, business representatives began on a note of denial, pleading innocence and ignorance. Johann Rupert led the chorus. ‘Rembrandt was started by Afrikaners and sustained by Afrikaners long before the Afrikaner had financial clout’, he protested. By the third day, Krog noted, it had dawned on the captains of industry that their pleas of innocence were ‘bad for business’. No facts were forthcoming. Little truth was told. Yet pleas for forgiveness came in abundance: ‘Forgive us for Steve Biko,’ Rupert pleaded. When business spoke at the hearings, many promises were made to set things right, seemingly designed to ‘look good on the eight o’clock news’.24 Yet when the hearings were concluded, it was pretty much business as usual. The oil companies that were responsible for putting petrol into the apartheid military vehicles simply did not show up at all. Many other businesses simply shelved their submissions and carried on as they had done before. The TRC had special powers of subpoena, yet it failed to exercise them and only expressed ‘regret’ at the failure of the oil companies to present evidence.25 When it came to the impact of land dispossession in furthering the aims of apartheid, it was expected that agricultural businesses and their organisations would own up to the past by attending the hearing. The reality, however, was different. The South African Agricultural Union, representing the vast majority of farm owners, refused to appear before the TRC, claiming that no specific questions had been posed to it. Yet in the ANC’s submissions, the entire agricultural sector was squarely put in the dock. The ANC argued that the sector should accept its role in apartheid’s forced removals of the 1960s and 1970s. Those removals were not mere aberrations of ideologically blinkered bureaucrats but were ‘inextricably linked to important changes in agriculture’.26 According to the ANC, the 1960s saw an important change in the organisation of labour in agriculture from labour tenancy to a contract labour system. Although workers under the labour tenancy arrangement could live on farms with their families by agreeing to work a portion of the farmer’s land, the contract labour system introduced a different dimension. Labourers who agreed to work on farms could only stay for the period specified in their contract. As the ANC said in its submission, A sizeable proportion of the millions of people forcibly removed from rural areas proclaimed white to the Bantustans in the 1960’s and 1970’s were former labour tenants – ‘surplus people’ that no longer ministered to the needs of white farmers who were forcibly evicted often from the areas where they had been born.27

The surrealism that Krog spoke about pervaded not only the atmosphere at the hearings but also the content of the submissions. Rupert’s plea to be forgiven for Steve Biko was perplexing, comprising an admission and denial at the same time. Biko’s life was taken at the hands of police officers – agents of the state. It was very strange to have a captain of industry asking for forgiveness for his murder. Yet he denied that Afrikaner businesses needed apartheid to thrive. So, on whose behalf was he asking for forgiveness? And for what? It was these vacuous gestures that lay at the heart of the business submissions – the sort where forgiveness was sought but no facts were adduced. It was left to the academic Sampie Terreblanche to blow apart the thick wall of denials.

Why business should pay its share for apartheid Sampie Terreblanche, a former professor of economic history at Stellenbosch University, was once a supporter of apartheid, but later denounced it. When the business hearings at the TRC

opened, he was the first speaker. Terreblanche made key arguments on the impact of racial capitalism on African development and why business should pay its share for apartheid. First was the deprivation of land. It is often forgotten that despite the wars of conquest, Africans were still conducting productive farming activities until this was disrupted by the 1913 Natives Land Act. With no land and no capacity to independently subsist, Africans were forced to provide their labour to white farmers. On the other hand, the property rights of whites were protected, and they had access to cheap and unpaid labour. In addition, as Terreblanche pointed out, ‘the agricultural sector received from 1910 until 1980 more state subsidies than any other sector – especially in the period of 1948 to 1980. White governments also spent billions of rands to improve marketing conditions for white agriculture.’28 Second, for decades, millions of Africans were paid exploitative wages, mainly in gold mining and agriculture. Through the migrant labour system, the cost of gold mining was experienced primarily in the native reserves, which provided the labour base for mining companies. By 1902 South Africa had passed its own Native Reserve Location Act, which compelled every native person to reside in a native area and only to visit cities as a wage labourer. This was enforced through the pass laws. The contract labour system produced conditions comparable to indentured labour. Third, legislation made it difficult for Africans to acquire skills, particularly when the Bantu Education Act was passed in 1953. The primary purpose of this legislation was to formalise racial segregation in education. Quite apart from the skewed allocation of public funds, with gross and chronic underfunding of education for Africans, the content offered to Africans was also vastly inferior. On its face, the Act was intended to transfer the control of education from the provincial administrations to the central government. Yet, in effect, the transfer was also disruptive to independent schools and churches that provided education to Africans. By concentrating the control of education centrally, the state could monitor the implementation of apartheid at schools. Education, then, became an engine room for the enforcement of segregation and subordination. Fourth, the prevailing socio-economic power structures made it impossible for Africans to accumulate human capital. The uneven and grossly unequal government spending on education, health and housing created two worlds in one country: Africans were in the Third World and whites were in the First World. Fifth, the restrictions on the rights to property ownership and the conducting of business deprived Africans of their ability to accumulate and build wealth independently of state assistance. The key legislation in this regard was the Group Areas Act. One of its effects was to exclude black-owned businesses from central business districts. Undoubtedly this benefited white-owned businesses, which were insulated from competition from black entrepreneurs. And apart from the racialised exclusion of Africans from the city centres, in the limited areas where blacks could run businesses, arbitrary regulations – such as the fact that blacks could not obtain a permit for more than one business – served to entrench the marginalisation of Africans. Sixth, it was not only individuals that were impoverished by the system of racialised capitalism but African societies as a whole. The need for labour often meant the breaking up of families. Sometimes breadwinners were killed in acts of repression by the police. Mass killings, such as in Sharpeville in 1960, Soweto in 1976, or Langa in 1985, did not only leave hundreds of dead bodies but also highly traumatised societies where that trauma was passed from generation to generation, often distributed internally, leaving broken people and broken societies. In his TRC submission, Terreblanche proposed a wealth tax, to be paid by whites for the benefit of blacks. Opposition ensued. The idea lost steam. A similar recommendation by the TRC was rejected by the government. A sum of R30 000 per family was instead deemed appropriate in respect of those individuals and families that qualified for reparations.29 Businesses got away scot-free. And so did farm owners. Whites kept the land and retained the benefits obtained from it. Most still had farmworkers – retained under much the same conditions as during apartheid. The crime of apartheid had many elements that drove it: the systematic land dispossession, the displacement of persons on account of their race, and the creation of conditions akin to forced labour. The perpetrators of the crime against humanity that was the Holocaust faced their comeuppance at Nuremberg. The German state accepted responsibility for the suffering of Jews. Businesses that had benefited from this oppression contributed their share for the reconstruction of Jewish society. Apartheid, on the other hand, appears to have been a crime without perpetrators or beneficiaries. At the TRC hearings, the last apartheid president, F.W. de Klerk, would only accept ‘collective responsibility’ for apartheid. In Volume 5 of the TRC Report, the section intended to address De Klerk’s alleged culpability for gross violations of human rights was blacked out. As the primary beneficiaries of forced labour, English and Afrikaner businesses took no responsibility for benefiting from a system of racialised capitalism. Many would not even honour the invitation to account publicly before the TRC. Apartheid legacies question the claim in the preamble to the 1996 Constitution that South Africa belongs to all who live in it, united in their diversity. While the apartheid state reified race as a political instrument, it did not invent it. To understand the link between race and dispossession, we must go back to the colonial state,

which preceded apartheid.

3

Race and Dispossession The idea of race ‘The conquest of the earth,’ writes Joseph Conrad in his novel Heart of Darkness, ‘which mostly means the taking it away from those who have a different complexion or slightly flatter noses than ourselves, is not a pretty thing when you look into it too much. What redeems it is the idea only. An idea at the back of it; not a sentimental pretence but an idea; and an unselfish belief in the idea – something you can set up, and bow down before, and offer a sacrifice to.’1 Conrad’s point is that colonialism was palatable to many Europeans, including the colonists at the site of his novel, the Belgian Congo, because of the idea that white is supreme. It follows that we should place the taking of African land in the larger context of European domination. Our preoccupation is not with the experience of racism but with race as a distinct idea. Undoubtedly, as Saul Dubow points out, racism is part of the historical structure of South African society, upon which myths of superiority are founded.2 We are concerned, however, with the presumed superiority of a race because of supposed biological differences. Anchored in the concept of race are societal myths that venerate difference, exclusivity and superiority. It was these myths that justified the slave ‘trade’, which involved the large-scale abduction of able-bodied black- and brown-skinned people from Africa to the Americas to work on the plantations and cotton fields there. Racial theories did not abate with the abolition of legalised slavery in the 1830s. Notions of racial superiority transmogrified into institutionalised colonialism and cultural imperialism. At the heart of this was the externalisation of presumed racial biological differences. But biology alone could not sustain the concept of racial difference. The idea needed backers – intellectuals, prophets and theorists. In Victorian England, the most influential of these was Thomas Carlyle. Writing in Fraser’s Magazine for Town and Country in February 1849, Carlyle addressed the ‘Colonial and Negro Question’.3 It was his ‘painful duty’, he noted, to appraise his audience ‘upon the rights of Negros’. He appealed to his audience to accept labour compounds for the economic sustainability of Jamaica. Yet the work in the labour compounds was reserved for the ‘negro race’. He propounded work, as opposed to idleness, as the way of the future: ‘it must be done everywhere’. He argued that it was the responsibility of the Jamaican legislative bodies to compel black West Indians to work. For black workers, his race theory was that they were born to work: ‘You will have to be servants to those that are born wiser than you; that are born lords of you – servants to the whites, if they are (as what mortal can doubt they are?) born wiser than you.’ It was these ideas of influential Victorian men that shaped most of the thinking in Europe as it encountered the black ‘races’ of Africa and Asia. Carlyle was not only an influential writer but also a personal friend to Charles Darwin, the writer of arguably the most important book of the nineteenth century, On the Origin of Species, which debunked the myth of creation and planted the seeds for evolutionary thought on the origin of life. Yet a book intended to shed light on the development of all life was reduced into a manifesto for racial superiority. It must be said, however, that even as Darwin’s ideas were gaining traction in Europe, they were by no means universal. Friedrich Nietzsche, for instance, presented a moralist critique of Darwinism in its social and biological guises: In a warlike and restless clan, for example, the sicklier man may have occasion to be alone, and may therefore become quieter and wiser; the one-eyed man will have one eye the stronger; the blind man may see deeper inwardly, and certainly hear better. To this extent, the famous theory of the survival of the fittest does not seem to be the only viewpoint from which to explain the progress of strengthening of a man or of a race.4

In the Cape, however, Darwinism found fertile ground. One of Darwin’s personal friends was Sir George Grey, probably the most important agent of British imperialism in the Cape, responsible for laying down the foundations for racial segregation and the establishment of racial supremacy there. Grey’s vision for the Colony, expressed in the Cape Parliament in 1853 and ultimately transposed to the rest of South Africa, was of the ‘ultimate frontier’, which would be ‘partly native’ and ‘partly European’, where natives would be ‘won by our exertions to Christianity, trained by us in agriculture and in simple arts … accustomed to our laws and aware of their advantages, attached to us from a sense of benefits received, respecting us for our strength and generosity’.5 For decades before Grey’s arrival in the Cape, the racial supremacy of the British had been

sustained by violence. In the war of dispossession in 1812 between the Xhosa and the British, the Xhosa lost their lands in the area now called Makhanda (formerly Grahamstown). John Graham, after whom the town was originally named, announced to John Cradock on 26 February 1812 the ‘total expulsion of the Kaffir tribes from His Majesty’s territories’, a feat that had been achieved with ‘so trifling a loss on our part’.6 For his part, Cradock, the governor of the Cape, would boastfully advise Lord Liverpool, the prime minister of the United Kingdom, of the ‘expediency of destroying the Kaffir kraals, laying waste their gardens and fields, and in fact totally removing every object that could hold out to their chiefs an inducement to revisit the regained territory’. Indeed, Cradock was ‘very happy to add that in the course of this service there has not been shed more Kaffir blood than would seem to be necessary to impress on the minds of these savages a proper degree of terror and respect’.7 Added to the political and intellectual justifications, race needed its own science. If political theory could not sustain the concept of race, ‘science’ could. Race found apparent scientific support in the writings of John Knox, a young medical surgeon posted to the Cape Colony as part of the British Army in 1817.8 Knox remained in the Cape for three years, studying the indigenous population. He was fascinated by the apparent anatomical and physiological differences between the different local populations. As part of his ‘medical experiments’, he would collect human skulls from different native ‘tribes’, which he presented at a university museum in Edinburgh, Scotland. In 1823 at the Wernerian Natural History Society, he delivered a paper titled ‘Inquiry into the Origin and Characteristic Differences of the Native Races Inhabiting the Extra-Tropical Parts of South Africa’. 9 His paper distinguished three indigenous ‘races’ in the Cape, which he called the ‘Hottentots, Darmaras and Kaffres’. He sought to compare their anatomy and head measurements with those of other racial types, including the Negro. Today the pseudo-scientific experiments of weighing human skulls to determine intelligence appear revolting. As Neil Davie points out, Robert Knox was not unique.10 In the early nineteenth century, there was an explosion in the global trade of human body parts. Dr Samuel Morton, an American physician, had amassed a collection of 1 035 skulls by the 1830s and went on to publish his ‘findings’ in 1839 and 1844. Dr Joseph Barnard Davis collected 1 474 skulls, which he displayed on the walls of his medical practice, primarily collected from British territories. His findings were published in 1856 in the book Crania Britannica. Knox was part of a larger intellectual and scientific movement. What it hoped to discover were intellectual explanations for the different races of man. The human skull became the object of their enquiry because it houses the brain. By examining the skull, it was said, one could establish the ‘religious, aesthetic and intellectual differences amongst human populations’.11 Race had solidified into religion, science, politics and economics. Explaining the racism of the colonial and apartheid eras only through its ‘scientific’ justifications may be an oversimplification. In the book Science, Race Relations and Resistance,12 Douglas Lorimer has traced how the concepts of ‘race’, ‘racism’ and ‘race relations’ have transformed over time. He points out that much of what dominated and justified the race discrimination of the Victorian age was ‘cultural racism’, and he emphasises the ‘role and utility of ideas about culture and civilisation in constructing national character and world inequality’.13 Thus the racial dominance of the West was sustained not by ‘science’ as such, but by the construction of cultural, social and economic institutions that promoted ideas about Western superiority. In the Cape, it was these institutions on which social engineering grounded on race was based. Racial classifications would constitute the centre of the Cape administration’s policies, transcending geographic boundaries and consuming the whole of South Africa. The South African state would be founded on race and racial superiority.14 It is this idea that sustained the social structures of apartheid. One of the manifestations of race – perhaps a key one – has been its relationship with the land. As a result, landownership was given a special racial character.

Whoever owns the land, it is not the natives The colonial state altered relations to the land and rendered fragile any hold over land by Africans. In 1875 a dispute arose on the diamond fields of Kimberley. It was not a dispute about diamonds but land. At issue was who owned the land in which the diamonds were found. Whoever owned the land owned the diamonds. On behalf of the Griqua community was a law agent by the name of David Arnot, who was born of a marriage between a Scottish man and a Griqua woman. Arnot was classified as ‘coloured’ in official records but self-identified as a Griqua. He was described in writings as a ‘clever attorney’, an ‘astute agent’ and a ‘coloured attorney’.15 A number of potential claimants presented themselves: the Afrikaners of the two Boer Republics of the Transvaal and Orange Free State, and the diamond diggers. The Griquas, represented by Arnot, based their claim on prior occupation. Their argument was that the area had been occupied by Griquas – a people of mixed racial origins between Khoikhoi and whites – in the eighteenth century when they fled from discrimination in the Cape. When the British proclaimed the area as their own, rights of prior occupation were not extinguished. Consider, for

instance, a similar proclamation in relation to the Richtersveld community in 1887: ‘Land … occupied bona fide and beneficially without title deed at the date of the extension of the colonial limits beyond it … shall not be considered or treated as Crown land for the purpose of this Act, until the claim thereto, in each case, shall have been decided on by the Governor’.16 So, unless the colonial government explicitly took customary lands, no presumption could be made that customary titles were extinguished. In the case of Griqualand West, the British government set up the first Land Court in South Africa in 1875 to decide such claims. Andries Stockenström was appointed to preside over the court. The Griquas argued their case on ownership by referring to detailed research and prior treaties concluded with the British, under the colonial governor Benjamin D’Urban, in 1834. Stockenström rejected the Griquas’ claims by reasoning that they were a nomadic people. The jurisdiction of their chiefs, he said, was over people, not a specific fixed land or area. Stockenström’s findings were much more significant than a mere refusal of the Griquas’ claim to the land. The notion of private property held by way of title was virtually unknown among Africans. But this is not the same thing as saying that Africans did not recognise any form of landownership. For them, ownership could be individual, shared by a family, or even held communally. But it was never exclusive. By distorting the nature of landownership by Africans, Stockenström could deny their ownership in its entirety. This was the same idea that informed the Transvaal Supreme Court’s approach some thirty years later, when it ruled that African laws and customs did not recognise ‘separate ownership in land’.17 Between 1871 and 1879, chiefs of the Bapo ba Mogale community purported to sign agreements with the Hermannsburg Mission Society, a German missionary society in southern Africa, which had the effect of transferring land. This was against the resolution of the Transvaal government, Volksraad Besluit No. 159, which was passed in 1855 and stated: ‘No one who is not a recognised burgher shall have any right to possess immovable property in freehold. All coloured persons are excluded from burgher rights.’ As explained in the decision of the Supreme Court, its effect was that [a]ll coloured persons were excluded from the right to possess immovable property in freehold and because of that we are asked to say that no native could lease land, or could hold or dispose of leasehold rights. I am not prepared to say that. We must give to the words of the Volksraad Besluit their clear meaning. It was illegal for a native to own land in freehold, but all contracts by natives regarding land were not on that account illegal and void.

Despite the rules prohibiting the acquisition and ownership of land by Africans, it was argued that the sale of valuable lands to whites should be recognised. The court agreed that the sale was lawful. But it laid down a general rule regarding the concept of landownership by Africans: ‘When they were governed by their own customs and laws the notion of separate ownership in land or of the alienation of land by a chief or any one else was foreign to their ideas.’ This idea was widely held by judges in the British colonies. As Chief Justice Rayner stated in 1898 in the Report on Land Tenure in West Africa: The next fact which it is important to bear in mind in order to understand the native land law is that the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual. All the members of the community, village or family have an equal right to the land, but in every case the Chief or Headman of the community or village, or head of the family, has charge of the land, and in loose mode of speech is sometimes called the owner. He is to some extent in the position of a trustee, and as such holds the land for the use of the community or family. He has control of it, and any member who wants a piece of it to cultivate or build a house upon, goes to him for it. But the land so given still remains the property of the community or family. He cannot make any important disposition of the land without consulting the elders of the community or family, and their consent must in all cases be given before a grant can be made to a stranger. This is a pure native custom along the whole length of this coast, and wherever we find, as in Lagos, individual owners, this is again due to the introduction of English ideas. But the native idea still has a firm hold on the people, and in most cases, even in Lagos, land is held by the family. This is so even in cases of land purporting to be held under Crown grants and English conveyances. The original grantee may have held as an individual owner, but on his death all his family claim an interest, which is always recognised, and thus the land becomes again family land. My experience in Lagos leads me to the conclusion that except where land has been bought by the present owner there are very few natives who are individual owners of land.

The distortion in this statement is plain. While individual ownership to the exclusion of others was foreign, ownership as such was not. The focus of Africans’ hold over land was exclusivity versus co-extensiveness. Africans believed in a non-exclusionary possession of land: that it wasn’t individually owned did not mean it wasn’t owned at all. Yet this misrepresentation of African rights over land is precisely what happened in Rhodesia some twenty years later. On 26 July 1918, the Judicial Committee of the United Kingdom’s Privy Council published a ruling that endorsed the British Crown’s claim over the entire land territory of Southern Rhodesia.18 By a combination of trickery and violence, the territory had been invaded by Cecil John Rhodes’s British South Africa Company (BSAC). A puppet government was set up in

Southern Rhodesia, which ruled in the country for thirty years. When the white settler population agitated for self-rule, it seized all lands and declared that they belonged to the company and that the indigenous people had no rights over them. At the Privy Council, arguments raised on behalf of the natives of Southern Rhodesia were summarily dismissed: ‘Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.’ The backstory to the claims included concessions over land and minerals purported to have been signed between Rhodes and Lobengula, king of the Ndebeles, the indigenous people of Southern Rhodesia, in 1888. While the nature of the documented agreement –marked with an ‘X’ by the Ndebele king – was dubious from the outset, its existence was not in dispute. But Lobengula had been duped into believing that only a few whites would survey Ndebele land, and then strictly under the laws of the Ndebeles. Upon realising that the paper he had ‘signed’ was a transfer of rights to their land and minerals – the so-called Rudd Concession – Lobengula baulked, relying on the sovereignty of the Ndebele nation against the British Crown. But in legal terms, the court reasoned, Lobengula’s agreement had been overridden by war, in 1893, between the British and the Ndebeles. As such, the land was neither Lobengula’s nor the BSAC’s: the land belonged to the Crown. The court ruled that whatever the nature of the rights held by the indigenous population prior to conquest, these were simply extinguished by war and were not binding on ‘successors to [Lobengula’s] sovereignty who came to it by right of the sword’. Lord Sumner explained: ‘Whoever now owns the unalienated lands, the natives do not.’19 Hence, all land was declared property of the Crown, with the BSAC receiving compensation for its role in the country’s administration: some £6 000 000 and the right to retain extensive mineral rights, commercial assets and land it had allocated to itself. The instrumentalisation of legal doctrines to justify the taking of land was also used in Swaziland, in Sobhuza II v. Allister M. Miller and Others. In a concession granted under the late King Mbandzeni on 26 July 1889, John Thorburn and Frank Watkins were granted exclusive grazing, agricultural and planting rights for fifty years, with the right of renewal at an annual rate of £50. They agreed to respect all prior existing rights and not to interfere with the rights of the native subjects of Swaziland. The king undertook to protect the concessionaires in the exercise of their rights under the agreement. A problem arose when Thorburn and Watkins began to evict Swazis from the land. The person who had negotiated the concession on their behalf was one Allister Miller, who doubled as an advisor to King Mbandzeni, and it was he who carried out the evictions. He had been asked to do this by Thorburn and Watkins, as the concessionaires. The Privy Council posed the question thus: ‘what is the meaning of a protectorate?’ In answering this, it noted that ‘a manifestation by Orders in Council of the intention of the Crown to exercise full dominion over lands which are unallotted is sufficient for the establishment of complete power’.20 As ‘an act of state’, this was a ‘method of peacefully extending British dominion’; as such, it was ‘unquestionable’. Then, in an analysis of land rights, it held that ‘the notion of individual ownership is foreign to native ideas. Land belongs to the community and to the individual. The title of the native community generally takes the form of a usufructuary right, a mere qualification of a burden on the radical or final title of whoever is sovereign.’ This right of usufruct, or land use, ‘may be extinguished by the action of the paramount power which assumes possession or the entire control of the land’. An abiding idea of the colonial era has been that of race. When it was understood in purely biological terms, its significance was largely neutral. But as soon as race transmuted into a political concept, it defined access to resources. Under late colonialism, race calcified into a legal concept. It then acquired the force of law, defining and regulating the legal relationship between people and land. In justification of conquest, colonial judges purported to use African conceptions of land rights and ownership. Yet in doing so, they distorted these principles in ways that served colonial purposes. So pervasive was this distortion that it came to be accepted as part and parcel of the South African legal system. This is why thinking about the land must include new theoretical approaches to our understanding of the law and its connection to this issue, which we will explore in later chapters. But first, we will turn to a forgotten but important element of dispossession.

4

About the Stolen Cattle The story of land dispossession will never be complete without an understanding of the loss of indigenous people’s cattle. Cattle, more than land, were a visible sign of wealth. Unlike land, cattle could be owned, disposed of and transacted with. Customary practices were performed by exchanging or slaughtering cattle. Cattle were used in plough-fields, as means to transport people and goods, and as a source of food. In this chapter we consider the key phases of cattle dispossession.

First phase: The shipwreck In 1647, the Haarlem, a ship owned by the Dutch East India Company, was wrecked near Table Bay, off the coast of what would become Cape Town. Its intended final destination had been Batavia (today’s Jakarta in Indonesia), which was part of the spice trade that the Company controlled as an economically dominant force in Europe. While some of the Haarlem’s crew found passage on other ships, more than half stayed behind at the Cape for several months with the indigenous people of the land, the Khoikhoi, to look after their salvaged cargo until help arrived. One of the members of the rescue team was Johan Anthoniszoon van Riebeeck (known as Jan van Riebeeck), who remained in the Cape for some three weeks in 1648. The following year, Leendert Jansz of the Haarlem wrote a letter to the Company titled ‘A short exposition of the advantages to be derived by the company from a fort and garden at the Cape of Good Hope’. He set to persuade the Company to occupy the Cape permanently. ‘The soil is very good in the valley,’ Jansz recorded. ‘Everything will grow there as well as in any other part of the world, especially pumpkin, watermelon, cabbage, carrot, radish, turnip, onion, garlic, and all kinds of vegetables.’ He also noted that the Company would benefit from the labour of the indigenous people, as they could be taught the Dutch language and ‘some of their children may afterwards be employed as servants and educated in the Christian religion’. That way, ‘many souls will be brought to the Christian Reformed Religion and to God’.1 Jansz had also witnessed how his countrymen related to the indigenous people during the few months that they had stayed with them. Colonial perceptions of the native people and their inherent ‘savagery’ were pervasive among the Dutch. But his own experiences were that the savagery came from the Dutch themselves: Others will say that the Natives are brutal and cannibals, from whom no good can be expected, and that we will have to be continually on our guard, but this is a vulgar error, as will be shown further on. We do not deny that they live without laws or police, like many Indians, nor that some boatmen and soldiers have been killed by them, but the cause is generally not stated by your people, in order to excuse themselves. We are quite convinced that the peasants of this country, in case their cattle are shot down or taken away without payment, would not be a hair better than these Natives if they had not to fear the law.

The local people had been welcoming to the Dutch, showing them generosity: ‘Natives came with all the friendliness to trade with us at the fort which we had thrown up during our five months stay, bringing cattle and sheep in numbers.’ It was these cattle and sheep that kept the stranded crew members of the Haarlem shipwreck alive. Two of them, a carpenter and a corporal, sought accommodation among the Khoikhoi, ‘who received and treated them kindly, whilst they might easily have killed them if they had been inclined to cannibalism’. As such, Jansz noted that instances of the Dutch being killed by the Khoikhoi were undoubtedly acts of revenge ‘when their cattle is seized, and not because they are cannibals’. One act – a particularly gruesome and unexpected one – was narrated by Jansz. In 1648, a fleet commanded by the Dutch captain Wollebrant Geleynsen at Table Bay ‘shot down eight or nine [Khoikhoi] cattle and took them away without payment’. The savagery in the killing and confiscation of these cattle was made worse by the fact that the Khoikhoi had been willing to trade cattle at reasonable prices.2 The proposal by Jansz to the Company was selectively endorsed, which led to the appointment of Jan van Riebeeck to carry it out in establishing a fort. Van Riebeeck’s letter to the Company in June 1651 was already foreboding of what was to come in the relations between the Dutch and the Khoikhoi people. Although Jansz ‘does not seem to have any fear of the Natives, I beg to state as my opinion that they are not to be trusted, being a brutal gang, living without any conscience,’ Van Riebeeck stated.3 Far from establishing a fort based on friendly relations with the indigenous

people, Van Riebeeck’s idea was founded on military aggression. But the commercial value of the settlement at the Cape was not lost on him: I have also read in the statement that besides cattle and sheep at the Cape, a multitude of elands, steen bucks and other wild animals are to be had. If this be true, and a satisfactory intercourse established with the natives, in addition to the refreshments obtained, much profit might be derived from the skins of the beasts mentioned, which dried in quantity, and packed closely together … might be shipped into the outward bound vessels, which, having consumed part of their provisions on fuel, would have sufficient storage room, and by them taken to Batavia whence they could be sent on to Japan, where especially the steen buck skins … are in good demand, and will produce a good deal.

When Van Riebeeck and his crew arrived at the Cape on Saturday 6 April 1652, the local population was familiar with the Europeans. Not only did they know of the Dutch, but they also knew of the English, the Portuguese and the Spanish. For more than 140 years, European traders, fortune hunters and travellers had met and formed brief relations with the Khoikhoi. From these interactions, the Khoikhoi had gained the impression of Europeans as temporary visitors to the Cape. The 1647 shipwreck incident did not change this perception, as the Dutch crew had not stayed for longer than five months. It can be inferred from these early experiences and encounters that at the time of Van Riebeeck’s arrival, the Khoikhoi did not know that the Dutch intended to settle permanently. In his book Khoikhoi and the Founding of White South Africa, Richard Elphick has pointed to a temporary interlude of amicable cattle trade and bartering between the Dutch and the Khoikhoi from 1652 to 1662. Although conducted peacefully, the terms of the cattle trade were grossly exploitative. Often, the Dutch traded tobacco, bracelets, copper beads and Dutch guilders in exchange for cattle or sheep, which the Dutch mostly slaughtered for food. But soon they discovered the value of these animals beyond subsistence and began to sell them to French and English ships. In 1656 Van Riebeeck sold cattle at about twenty-five guilders per head and sheep for about five guilders per head. Considering that he paid less than five guilders per head of cattle and about one guilder for sheep, he made profits of close to 400 per cent in the trade.4 As the demand for meat increased among the Dutch, the Khoikhoi were becoming reluctant to trade, either because they had realised the futility of acquiring bracelets for cattle or because they simply did not have enough cattle. As the conditions of trade changed, so did Dutch attitudes towards upholding the voluntary nature of the cattle exchanges. By the 1680s, Elphick points out, the Khoikhoi were doing all in their power to avoid trade. They misled expeditions, they hid their stock, and when their options ran out, they sold sheep instead of cattle. But the Dutch traders would not take no for an answer. They threatened that the governor would punish Khoikhoi chiefs who refused to trade. The terms of the ‘trade’ became wholly one-sided, with prices set by the Company. An exchange that took place in 1699 perfectly captures the imbalance: Ambrosius Zasse, a trader on behalf of the Company, told the Khoikhoi chief Gaukou that he could not return to the Cape with the few cattle that the Khoikhoi had offered. He asked, ‘What will the Governor say?’ Gaukou responded, ‘The Governor will take me to the Cape and set me in the black hole [a dungeon]. Is that barter?’5 The imposition of unfair bartering terms were not isolated instances by a few employees of the Company but were sanctioned by Van Riebeeck himself, with acts of compulsion against the Khoikhoi. On 29 May 1655, Van Riebeeck noted in his diary, The Natives are shown every friendship and generosity, so that in the event of a suitable occasion arising and the interests of the honourable company requiring it, their cattle and persons can be seized and held in the company’s power. This they richly deserve, and every day there are ample opportunities for carrying it out. There will be even more and better opportunities later as a result of the kind treatment we have mentioned, for these Natives now bring their cattle within sight of the company’s fortress nearly every day.6

The unfair cattle trade and dispossession did not on its own mark the demise of Khoikhoi society. Land, too, was part of the story. From 1657 a number of Company employees were released from Company service and granted land to farm. They were referred to as ‘the freemen’ or ‘free burghers’. The directors of the Company – the Council of Seventeen – passed a resolution ‘to give the freemen a helping hand wherever necessary so that they can make an early and favourable start and progress’. These acts of assistance included ‘freehold’ in land, slaves and ploughing implements.7 Moreover, the freemen ‘shall be exempt from any taxes’ for a period of three years. The land – taken from the Khoikhoi and given to the freemen by the Company – would ‘remain their property forever to do with it as they like, that is, they may sell, lease or otherwise alienate it’. The Company would also guarantee access to the market as ‘[a]ll the produce would be bought by the Company’. In exchange, there was only one condition imposed on the freemen: ‘The cattle required for ploughing, and in due course for breeding purposes, they must buy from the Company.’ In this manner, the Company closed off any potential competition for access to Khoikhoi cattle. On these terms, with free land, slave labour, access to markets and capital, and the availability of farming implements, the Company set in motion the agricultural economy of the Cape. This also marked the beginning of the demise of Khoikhoi society.

These actions, sanctioned by the Company, established a climate in which cattle – a most valuable source of wealth among the indigenous people – could be systematically taken away by a combination of theft, unfair terms of trade and direct dispossession. When the Dutch wars against the Khoikhoi began, large-scale cattle confiscation was common, as tributes or spoils of war. The 1713 smallpox epidemic, usually cited for the demise of Khoikhoi society, found a people already displaced and wretched. The loss of cattle played a significant part in this rupture and collapse. Elphick includes the following in detailing the causes of this: (1) processes by which Khoikhoi livestock were directly transferred to whites; (2) features of traditional Khoikhoi society that made economic decline frequent and recovery difficult; and (3) processes engendered by the Dutch presence that exacerbated problems in the Khoikhoi economy, such as the spread of new diseases, the exploitation of internal differences, the expropriation of land, and the demand for Khoikhoi labour.8 It was these processes that fed into and created an atmosphere in which a once self-sufficient people was ultimately driven into starvation. This phase can be described as the first in a period of massive cattle dispossession. The second phase would occur during the British conquest of the Cape.

Second phase: Cattle tributes in times of colonial war In the last Frontier War in the Eastern Cape, in 1878, the Xhosas were ‘thoroughly beaten’. Sarhili, their king, was a hunted fugitive. Various chiefs, such as Sandile, Siyolo and Xhoxho, were imprisoned on Robben Island after sham trials. Thousands were killed, while women and children were driven into exile. But the greatest loss, as John Milton writes in The Edges of War, was their loss of cattle, which amounted to some 45 000 animals.9 Yet this was hardly their first experience of such loss. Each Frontier War had been marked by cattle ransom, with the surrender of cattle as a suit for peace. In his autobiography, Harry Smith, writing about the throes of the Sixth Frontier War, refers to a ‘capture of 5 000 head of cattle’ in one day alone in August 1836, and another 14 000 from ‘Maccomo’s kraal’ in that same year.10 When that war ended, Benjamin D’Urban, colonial governor of the Cape, claimed that ‘there have been taken from [the Xhosa] also, besides the conquest and alienation of their country, about 60 000 head of cattle, almost all their goats, their habitations everywhere else destroyed, and their gardens and cornfields laid waste’.11 According to Jeff Peires, although this number given by D’Urban is enormous, it was only the tip of the iceberg of the cattle actually lost. Many were killed by the colonial troops for food. In cases when the Xhosa took their cattle to neutral territory where there was no war, ‘numberless hundreds, especially calves, died from exposure’. Others ‘slipped on the narrow ledges of the Amatola and plunged down the steep kloofs; others were killed by frantic goading, as their herders attempted to hurry them ahead of the advancing soldiers’.12 The colonial strategy was thus not only conquest over land. Nor was it limited to political control. It was for the total annihilation of the indigenous peoples’ economic independence and their complete subjugation to white rule. Without cattle, the Xhosa would be dependent on a wage economy. Peires sums up the pitiful sight of the Xhosa after the Sixth Frontier War: ‘Their houses burnt, their crops destroyed, their cattle dead, many of the Xhosa who succeeded in surviving the war were utterly ruined. The network of mutual aid which normally carried individuals through bad times was sadly impaired, for most men found their neighbours as destitute as themselves.’13 It was to the same colonial government that had destroyed their livelihoods that they turned for survival against their ‘unprecedented distress … from starvation’.14 In April 1835, Smith had also demanded a ransom of some 25 000 head of cattle from King Hintsa of the Xhosa, who refused and was murdered by George Southey along the Nqabara River. The taking of Xhosa cattle by the British was not always a by-product of war. Sometimes it was its object. The Seventh Frontier War of 1846–1847 was fought by the Ngqika side of the Xhosa, during the era of chief Mgolombane Sandile. The British army was supported by some Khoikhoi, Mfengus and Boer commandos. An instruction was given to the British riflemen to confiscate Xhosa cattle. The Natal Witness of 21 August 1846 exalted the successes of the British in taking a large number of Xhosa cattle in a single day, 17 July 1846: ‘350 cattle was captured by Capt. Melville’s company, killing two kaffirs.’ There were more cattle seized, the Boer commandos being at the forefront. ‘The Swellendam burghers distinguished themselves by great gallantry.’ One Captain Groenewald was praised for the seizure of some ‘2,000 head of cattle, in the face of the enemy’. The day ended with the ‘capture of about 5,300 head of cattle with a further loss to the enemy of forty men’.15 On the Gcaleka side of the Xhosa there were cattle losses too. In the Eighth Frontier War – the War of Mlanjeni – between 1850 and 1853, some 30 000 cattle were confiscated by the British, led by Smith. The volunteers in the war on the side of the British, mainly Boer commandos, were not always paid in cash. They were attracted to fighting by the prospect of seizing large herds for their personal gain. In Mlanjeni’s War, some of these Boers came from as far away as Colesberg for the cattle. As that war entered its third year in 1852, the Xhosa had suffered casualties, but Sarhili, their king, would not surrender. The British wanted an immediate victory, so the governor, George Cathcart, issued a proclamation on 1 July 1852 calling upon ‘all the

burghers of the eastern division of the colony capable of bearing arms to take the field’.16 The proclamation required the burghers to ‘despoil Kreli [Sarhili] of his cattle as the best means of effectually bringing him to submission and thereby terminating the present troublesome hostilities’. Indeed in August 1852, ‘Cathcart invaded Sarhili’s territory east of the Kei, burnt the chief’s Great Place and brought back 10 000 head of cattle’.17 The war ended in January 1853, but the confiscated cattle were never recovered. But the story of the Xhosa’s losses can never be complete without reference to the prophecies of Nongqawuse and the great cattle-killing that followed. The Graham’s Town Journal of 9 August 1856 reported on the ‘extraordinary proceedings in Kafirland’, where, a few months earlier, ‘a Kafir girl had a dream, in which, as she said, she saw two of their eldest prophets [Nxele] and another [Mlanjeni]’. She prophesied that all the Xhosa who ‘attended mission stations would shortly disappear from the face of the earth’. While this story was the subject of ‘excitement’ at the time, it soon faded away. Then Nongqawuse prophesied that all Xhosa cattle must be killed, and the cornfields destroyed. ‘When all this shall be accomplished then, at a given signal … all their slain cattle will arise from the dead, together with their forefathers, who will come out of a pit … then a strong wind will sweep away all the white men together with their reserved cattle from the face of the earth.’18 The cattle were killed according to Nongqawuse’s visions, but her prophecies came to naught. In The Dead Will Arise, Peires estimates that 400 000 cattle died, either by killing or by starvation, as no one was allowed to cultivate them. At the height of the cattle-killing frenzy, some 40 000 people died of hunger, starvation and disease.19 Crime increased. Cannibalism was reported to have occurred in certain instances. In one of her diary entries titled ‘the cattle delusion’, Mrs Charles Brownlee, wife of the commissioner for the Ngqika branch of the Xhosa, who witnessed the cattle-killing events, vividly described the immediate impoverishment that set in: Messengers were sent to tell [the Xhosa] that they would obtain food at farms and towns, but it was not till many deaths had taken place that they began to move. By this delay they were so reduced that many died by the way. One poor old man was found dead with his head overhanging his corn pit … Those who reached us were most pitiable figures, breathing skeletons, with hollow eyes and parched lips. The innocent children looked like old men and women in miniature…Oh! the pity, the heart-breaking grief, the sad horror of it all.20

On 2 May 1857, the King Williamstown Gazette published an appeal to feed starving children of the Ndlambe branch: ‘[Their] great numbers are reduced (by no fault of their own, but the errors of their parents to a wretched existence on gum and roots, and even where these resources are now failing them’. These requests for charity were not always answered with kindness. The editorial of the same newspaper on 13 June 1857 argued that the Xhosa were not fit and proper subjects to receive charity. They had been told ‘that there is plenty of work for all those who would be industrious but there is no bread for the idle’.21 As the political and social structures of Xhosa society weakened, Sir George Grey, who was now occupying Smith’s old position as governor of the Cape Colony, saw the opportunity for further land seizure. There were political, economic and social advantages to the famine: ‘We can draw very great permanent advantages from the circumstance, which may be made a steppingstone for the future settlement of the country.’22 Those who could work were now fully subject to new labour contracts, the terms of which resembled slavery. To control this labour force, pass laws were strictly enforced. Divisions among Africans were also heightened. Special certificates of citizenship were given to loyal Mfengu but were not extended to the Xhosa. By 1857, more than 13 000 Xhosas had been sent to work in the Colony as labourers. According to Peires, although this number was large, ‘it had barely begun to relieve the desire of the Colonies for cheap labour’. As the carnage continued between July and August that year, ninety people died of starvation in one hospital alone. In this climate, with the African people’s loss of cattle, food, land and political authority, their subjugation was further entrenched. British agents at the Cape foresaw the impoverishment of the Xhosa arising from the cattlekilling at the time, but they lacked the will to stop it, even as they had the means to. In a letter to John Maclean, chief commissioner of British Kaffraria, dated 2 August 1856 (months before the cattle slaughter turned into a carnage), Charles Brownlee explained why the cattle-killing was in the interests of the British colonial administration: ‘in the ordinary course of events, though famine may induce people to commit riots and outrages, a starving people are not in a position to undertake an aggressive warfare; for the Kafirs say that famine always did more to conquer them than the forces brought against them’. Brownlee then proposed for the government to wait ‘until a famine does ensue’. That way, he predicted, with prescience: ‘I think we will find hundreds of these wretched people much more ready to take service in the Colony than to fight against us.’23 The loss of cattle, however, was not limited to the Cape. In the expeditions of the Boers against the Pedi of the Northern Transvaal, a similar story played out. In 1852 the Boers had embarked on a military expedition against the Pedi, using the pretext of ‘disobedience’ from Sekwati, one of the Pedi leaders. Sekwati was accused of having encouraged his subjects to reject Boer authority. An attack was launched by Boer commando units led by Hendrik Potgieter

and Pieter Nel. Although they failed to force the Pedi into submission, they seized 5 000 cattle and 6 000 small stock and captured some children.24 The cattle heists continued for the next thirty years. Peter Delius records that in the period from 1850 to 1876, the Pedi suffered heavy cattle losses. In July 1876, large numbers of cattle were captured. In fact, ‘booty in cattle was one of the main incentives to the operations of the contingents manning the forts’. The Boers denied the Pedi access to grazing lands, compounding their suffering. As such, the Pedi were forced to exchange cattle for grain. There were reports in February 1877 of starving children and women, as well as cattle that had been kept on the mountains with no access to grazing fields. Witnesses ‘also saw some three hundred to four hundred hides stacked at the Capital which gives some indication of the extent of cattle loss’.25 These losses were not confined to the field of war. They were also induced by law. In an editorial on 10 November 1884 in the newspaper Imvo Zabantsundu, John Tengo Jabavu considered the effects of taxation on Africans in the Cape. The Cape government threatened to impound cattle if taxes were not paid. He asked if the government was ‘not dealing with the people too harshly to threaten them with summary seizure of stock’ when one took into account that cattle were going ‘for comparatively nothing in the market’. Despite the low prices of cattle, the Xhosa were forced to sell them in order to pay their taxes. The government’s strategy, Jabavu pointed out, ‘would create a class of discontented impoverished people’, causing an increase in stock theft. In the wars in Zululand, thousands of Zulu cattle were lost, first to the Boers, then to the British. The Voortrekkers demanded 40 000 cattle in the debacle surrounding the death of the Zulu king Dingane, as a tribute to their role in his assassination.26 As early as October 1839, the Boers had struck a deal with Mpande ‘upon a combined attack on Dingane, his overthrow, and the establishment of Mpande as king’.27 After the assassination, Mpande refused the Boers’ demand for cattle, apparently not recognising an earlier promise to them by Dingane. The Boers, however, would not allow this. Since war was a possibility, Mpande finally promised to obey their rule. Andries Pretorius, leader of a Boer commando force, seized some 31 000 head of cattle, leaving Mpande, ‘the vassal king of an impoverished and diminished kingdom, bleeding from the unhealed wounds of civil war’.28 Sekonyela, king of the Tlokwa, had suffered a much more humiliating fate. Initially tricked by Piet Retief, one of the leaders of the Great Trek, he was handcuffed and imprisoned by the Boers. While in prison, the Tlokwa’s cattle were rounded up and taken by the Boer Trekkers. Retief would later write that ‘to punish Sekonyela he had made him deliver 100 head of cattle and also 63 horses and 11 guns for without those he could not have accomplished his theft’.29 The ‘theft’ was a pretext for the cattle raid, but at the time it was said to avenge Dingane’s loss to Sekonyela. The Boer Trekkers did not return the cattle to Dingane. More would be lost in the subsequent skirmishes and war. The cattle lost during the British invasions of Zulu territory are hard to count. They number in the hundreds of thousands. Cattle losses continued long after military conquests had ended, and they escalated when there were legal restrictions imposed on the ownership and use of land. Even the Natives Land Act of 1913 had a direct impact on cattle losses. Richard Msimang, an attorney and one of the early leaders of the South African Native National Congress (which later became the ANC), considered it a mistake to confine one’s understanding of this Act’s effects to the loss of land. For him, the true effects of the Act were the losses of tenure and property, particularly cattle. Yet the stories that he recorded illustrate not a ‘loss’ but a wholesale confiscation of cattle. With the land available to Africans having been reduced, the number of cattle they could keep also had to be reduced. Often, scam transactions were concluded, with Africans expected to sell their cattle in exchange for a place to stay. Farming implements were also exchanged. And, perhaps most valuably, labour was sold in exchange for accommodation. When one combines the losses by the indigenous peoples of South Africa, the numbers are staggering. In the Cape alone, the number of cattle lost is estimated at one million. When other regions are added to the equation, this figure rises exponentially, to an estimated five million. Over time, barring natural disasters, these cattle would have reproduced and multiplied, further increasing African wealth and creating prosperous nations.

Final phase: Cattle-culling in the age of ‘betterment’ One of the features of the Glen Grey Act of 1894 for the Cape Colony was individual tenure, with the government allocating surveyed plots of land to Africans in the native reserves, without granting them full title. This became known as the ‘one man, one plot’ scheme. But the plots were too small and could not provide enough food for proper subsistence. Inevitably these reserves became sources of labour, as the people could not live off the land. Another problem was the creation of a landless class that expanded because these individual allotments were uneconomical. With larger numbers of people occupying the land, the soil was eroded, overgrazed and its quality destroyed. In 1932 the government’s Native Economic Commission reported on the ‘Native economic problem’: ‘Our problem is therefore not only as it is in agriculture to teach the Native how to use their land more economically, but it is also a race against time to prevent the destruction of large grazing areas, the erosion and denudation of the

soil and the drying up of springs.’30 The proposed solution was not the provision of additional land for Africans. Under the Native Trust and Land Act of 1936, the government’s idea instead was ‘the limitation upon the number of the stock carried by the Native population in the Native areas’. Their justification was that the African population had increased, with the result that the land had become ‘smaller and smaller and owing to the congestion, shifting cultivation has not been possible’. It was argued that the reserves were ‘overstocked and in consequence, when the time arrives to plough, the animals are too weak to draw a plough, resulting in the lands being prepared too late, and just the surface scratched and naturally a very poor crop is reaped’.31 The government was blaming Africans for using poor farming methods, being unable to maintain their stock, and overgrazing the land. It soon found a solution: cattle-culling. This would be contained in Proclamation 31 of 1939, through a so-called ‘betterment’ or ‘rehabilitation’ scheme. Its stated intention was to improve the agricultural conditions in the reserves, including the production of better-quality cattle. In his unpublished memoir, W.M. Tsotsi, an attorney in the former Transkei and president of the All-African Convention in 1958, pointed to the problem: [T]he African reserves or homelands are grossly over-stocked. The basic cause of overstocking is overpopulation. The only reasonable solution is a radical redistribution of the land as between Black and White farmers. However, no White government is prepared to embark on such a programme since it would mean taking land at present owned by Whites for occupation by Blacks.32

Within a year after the National Party came to office, it passed Proclamation 116 of 1949 to replace the 1939 Proclamation. Its stated aim was the ‘Limitation, Control and Improvement of Livestock’ in designated ‘Bantu’ areas. This law, which did not go through Parliament, had been passed by the governor-general as the ‘supreme chief’ of all Africans. The 1949 Proclamation gave the minister of Bantu affairs (previously native affairs) the power to declare any such land a ‘betterment’ area. In these, the Bantu affairs commissioner could assess the number of ‘cattle units’ that could be kept. A cattle unit was defined as one head of large stock or five head of small stock – one cow or five calves. After this assessment, the commissioner was required to ensure that the cattle were counted. Cattle owners would be instructed to bring their cattle for tallying, the failure of which was an offence. If the cattle were in excess of the stipulated number, they had to be culled or removed from the betterment area. If a person ordered to slaughter or remove a cow failed to do so, the commissioner could impound that animal and remove it from the area. The commissioner’s powers included the authority to have any bull castrated that he deemed too old or of too low quality for breeding purposes. In practice, large scores of African cattle were removed or slaughtered. The government’s decisions on the capacity levels of betterment areas were often arbitrary and taken without consultation. Strife was inevitable. One of the communities upon which stock-limitation strategies were implemented was in Witsieshoek, on the border of Natal and Lesotho. When the scheme was introduced, the details of the government’s plan were met with confusion. The native affairs commissioner for the area reported in 1943 that the community had been willing to cull their cattle, but in 1944 they had changed their minds. As it turned out, the community had accepted livestock improvement – ‘betterment’. When it was made clear that stock improvement entailed culling, however, they opposed the plan. Yet cattle reduction was central to the success of the scheme from the government’s side. When the plan was announced to the community, their land was permitted to carry a maximum of 10 000 cattle, which required about a 30 per cent reduction. Grazing camps to facilitate stock rotation were also introduced. Witsieshoek was divided into five grazing camps, which were fenced and monitored by government employees, called rangers. But to find land for these grazing camps, other members of the community were forced to relocate. This created another category of landless people. In response, the government reduced the size of the land allocations to yet other members of the community. But the forced movement of people, the culling of their cattle, and the reallocation of their land created a combustible atmosphere. Exacerbating the conflict was another decision by the government to further reduce cattle numbers. On 4 January 1950, the government issued a notice to the community to surrender their cattle for culling, but this was openly defied. By August, the government realised that its engagements with the community were not yielding the reductions it had envisaged, causing it to change tack. On 27 November, the police were called in to smash a protest, armed with rifles, teargas and stun grenades. In the ensuing confrontation, the police opened fire, leaving thirteen dead, while two black police officers were also shot.33 In the following criminal trial, some seventy-nine members of the community were found guilty and either banished or imprisoned. The government’s push for cattle reduction continued. With no options left, community members surrendered their cattle and complied with the forced-removal instructions. While the people of Witsieshoek suffered from imposed stock limitations, the cattle-reduction programme continued across the country. In the book The Peasants’ Revolt, Govan Mbeki draws connections between the government’s cattle-culling strategies and the imposition of Bantu

authorities across the country, the latter of which resulted in a rebellion in Pondoland in 1960, which was also crushed by the government.34 It is not possible to estimate the numbers of cattle lost by Africans under the ‘betterment’ scheme. But it can be asserted that these programmes – the third wave of cattle dispossession – deepened the proletarianisation of African people living in the reserves. They could not support themselves on the available land and were compelled to seek wages in industrial centres such as Johannesburg. Bearing in mind the centrality of cattle to the African economy and culture, it is clear that the loss of cattle, together with the land, contributed substantially to the disintegration of African polities. It is not possible today to speak of the return of the cattle lost during colonial conquest and apartheid. But it is at least possible to widen the scope of the debate as to what was lost during the various phases of settler occupation.

5

Chiefly Power The distortion Theophilus Shepstone was one of the most influential theorists on Zulu customary law in South Africa. Credited in white circles for his expert knowledge of the Zulu system of government,1 his insights were constrained by his belief in the superiority of Western ‘civilisation’ of the ‘native tribes’. His biography is instructive: interpreter, clerk, resident agent of the Cape eastern frontier from 1835 to 1845, and diplomatic agent and secretary for native affairs in Natal from 1846 to 1876.2 Despite the claim of his expertise in ‘native law’, Shepstone in fact spearheaded its distortion and then its emasculation. In 1846–47, the Natal Land Commission,3 of which he was the leading member, subordinated customary law to colonial laws: [T]he natives’ own laws are superseded; the restraints which they furnished are removed. The government of their own chiefs is at an end; and, although it is a fact that British rule and law have been substituted in their stead, it is not less true that they are almost as inoperate as if they had not been proclaimed, from a want of the necessary representatives and agents to carry them out. Thus, in point of fact, 100,000 natives are at this moment living within a district of Her Majesty’s dominions without any law whatsoever actively and efficiently operating amongst them.4

The system sought to establish separate units of African communities under the colonial administration of Natal. These would be overseen by a magistrate, appointed by the government. The African chiefs had limited authority in relation to the colonial government, although their powers over the communities were considerable. Ultimate power was vested with the lieutenant governor – the ‘supreme chief’. The stated object was the ‘civilisation’ of Africans. The commission also noted that ‘it would be inexpedient and productive of no good effect to attempt to force upon [Africans] individual rights to particular spots of land; because the idea of property in land is not yet established in their minds’.5 While prominent, Shepstone did not act single-handedly in the achievement of European goals in the Natal colony. Benjamin Pine, lieutenant governor of Natal from 1851, had even more extreme views about the position of Africans within the structure of colonial society. Pine thought that the most effective way to achieve civilisation was the complete obliteration of the indigenous way of life of Africans. Decrying the failure of colonial society to ‘mould [Africans] more easily to our views’, he also noted that some African practices such as witchcraft ‘stood most in the way of [African] civilization’. Yet ‘civilisation’ was not his only concern. He also wished the Natal colony to place controls over African labour, noting: ‘How can an Englishman with one pair of hands compete with a native man with five to twenty slave wives?’6 Shepstone’s vision to place Africans under European rule was cemented by the Native Administration Act of 1875,7 which absorbed Africans under the formal system of colonial justice. Criminal cases involving Africans would be tried by magistrates. Chiefs would be responsible for civil cases only. Courts were reconstituted, and a new Native High Court under the colonial administration was set up. But it was the Code of Native Law of 1878, after Shepstone had left office, that defined his most important legacy. This Code relegated the status of African chiefs. A chief responsible for a section of an African community was a ‘minor deputy … and a Judicial officer, and holds such offices during the pleasure of the Supreme Chief’.8 The Code aligned the functions of chiefs with the needs of the Natal colonial administration. A chief’s role was to ensure the ‘good conduct of his tribe, the prompt supply of men for purposes of defence, or to suppress disorder or rebellion, or as labourers for public works, or for the general needs of the Colony’. As envisaged by Pine, the labour and defence needs of the colony would feature prominently. The supreme chief wielded power to appoint and dismiss chiefs and to compel Africans to provide military service and labour. New chiefdoms could be formed, existing ones destroyed, and others combined. While chiefs were generally reduced in status in relation to the administration, in some aspects the scope of their powers increased, such as their control over land and women. Land could only be allocated by a government-appointed chief. No exception was made for family lands. Women were firmly placed under the control of men, as perpetual minors: ‘The family head is the owner of all family property in his family home. He has charge, custody and control of the property attaching to the houses of his several wives and may in his discretion use the same for his personal wants and necessities, or for general family purposes or for the entertainment of

visitors.’ Under Section 22 of the Code, ‘the inmates’ of a family home ‘irrespective of sex or age shall in respect of all family matters be under the control of and owe obedience to the family head’. The Code was presented as reflective of Zulu custom. Yet, as David Welsh argues, before 1891 women were allowed to be independent of their husbands in cases such as labour contracts, and girls were allowed to marry persons of their choice. As far as property was concerned, Welsh writes, ‘it was a definite fallacy that women had no property in Zulu society. A father could give property to his daughter and that became her property. There are instances where a husband also bequeaths cattle and other property to his childless wife.’ 9 Zulu king Cetshwayo kaMpande gave evidence at a commission in 1883 that women, married or not, could acquire and hold property independently of their husbands. The changes to the law introduced by the Code altered the emerging economic phenomenon in the 1880s and 1890s of independence among women who had taken up employment as migrant labourers in the nascent white settler economy. With this changing economic climate, women asserted their independence, challenged the authority of men, and at times resisted domesticity. The new law, conferring the status of ‘kraal head’ to men, which granted them the authority to inflict corporal punishment, constrained any possibility for women to be economically independent. Overall, while chiefly power increased in certain respects, for the most part it was drastically reduced. Now, African chiefs could no longer administer land according to the wishes of their communities; it could only be done under the direction of colonial magistrates. Shepstone’s vast changes to Zulu law came to be accepted as ‘Zulu customary law’. The Natal Code of Zulu Law held sway until 1994, during which time it was seen as legitimate Zulu customary law rather than an externally imposed legal system. The last half of the nineteenth century can rightly be regarded as having planted the seeds of this distortion. A central attribute was in aligning chiefly interests with control over land. The Native Administration Act of 1927 proclaimed that it was intended to be ‘for the better control and management of native affairs’. Its opening section provided that the ‘Governor-General shall be the supreme chief of all natives exercising all such powers as may be vested either by custom or by law in a paramount chief, and that he may appoint officers under him to administer native affairs’. By so doing, the government not only elevated the governor-general above customary law institutions, processes and practices, but also rendered him the ultimate source of legal and political authority over Africans. Included in the powers of the governor-general was the power to remove any ‘tribe’ or portion thereof, or any native, ‘from any place to any other place within the country on any conditions he may determine’. The only restriction on such power was that the governor-general had to deem it ‘expedient in the general public interest’. If the governor-general wished to remove an entire ‘tribe’ from its land, he first had to obtain the approval of Parliament. Individuals failing to obey the governor-general’s instructions were guilty of an offence and were liable upon conviction to either a fine or imprisonment.

Completing the distortion By the twentieth century, the ‘customary’ rules were firmly established: Africans had no ownership rights over the land, and women had fewer rights still. The Code of Zulu Law, which had emanated from colonial authorities, was made the ‘Law for Blacks in Natal’. Shepstone’s vision had come full circle. The foundation had been laid for the stripping of African land rights in the name of customary law. Often, we speak of African landownership amounting to 13 per cent of South Africa as a result of the Natives Land Act of 1913. This is not entirely accurate. That figure came from a later Act, the Native Trust and Land Act of 1936, which established the South African Native Trust in order to acquire a limited amount of land for Africans. This land could not exceed 7.25 million morgen (six million hectares) in extent, effectively confining blacks to 13 per cent of the land, giving whites the overwhelmingly larger share of 87 per cent. The Trust was controlled by the governor-general, and the designated Trust land was for the use and ‘benefit of natives’. But it could be sold or leased by the governor-general to Africans as he desired: he did not need their consent as occupants of the land. The nature of tenure was specified in the Bantu Areas Land Regulations. Only two forms of tenure were allowed: quitrent and permission to occupy. Quitrent, defined as a ‘title deed relating to land’, was misleading. Ordinarily, a title holder is the owner. But here, the Bantu affairs commissioner could enter the land at any time. And the land could not be sold without the government’s consent. Quitrent rights could also be summarily terminated if the holder was convicted either of certain crimes or to a certain period of imprisonment. The regulation of an African’s permission to occupy land was explicit in stating that it shall ‘not convey ownership’. The control over African lives was extensive. If a black person absented themselves from the allocated land, their rights of occupation would be lost and the land allocated to someone else or made part of communal ownership – a ‘commonage’. A version of African customary law applied, which governed succession. While the powers of traditional authorities in relation to the state were curtailed, they had enormous control over their own communities. No African could occupy land without ‘tribal’ authority approval. In this

way, the total transformation of Africans’ relations to land, their traditional leaders and the colonial state was complete. A link was established between political authority and access to land. To obtain access to land, one had to belong to a ‘tribe’, giving traditional authorities powers over individuals, families and communities that they had never enjoyed before. All of this was done under the guise of ‘indigenous’ or ‘customary law’. This distortion of rights served a larger project in the transformation of political and economic power between the colonial state and its subjects. The apartheid state used these distorted versions of African customs for further territorial segregation. Hendrik Verwoerd became minister of native affairs in 1950, two years after he had argued in Parliament that blacks and coloureds were ‘swarming everywhere, uncounted and uncontrolled’, mixing in the trams and trains, and ‘taking possession of the theatres and the streets’.10 If this ‘mixed development’ continued, he argued in a later speech, ‘it would lead to the most terrific clash of interests imaginable’. According to Verwoerd, the solution was the complete segregation of races. In his view, whites should control their own areas, while blacks, under the direction of the white government, should control their own. Verwoerd’s beliefs were based on the colonial idea of South Africa being an ‘empty land’ when the whites occupied it.11 When replying to British prime minister Harold Macmillan’s ‘Wind of Change’ speech in 1960, Verwoerd stated: We [the whites] settled a country that was bare. The Bantu too came to this country and settled certain portions for themselves. It is in line with the thinking on Africa to grant them there those rights, which … all people should have. We believe in providing those rights for those people in the fullest degree in that part of Southern Africa which their forefathers found for themselves and settled in.12

It was this notion that influenced the land allocated to Bantustans. Verwoerd’s line of thinking was continued by his successor as prime minister, Balthazar Johannes Vorster, in an interview with American journalist William Buckley Jr in 1974.13 In answer to the question why only 14 per cent of the land was reserved for Bantustans, Vorster explained, it so happens that … at the time when the whites moved up from the Cape, the blacks moved down from the middle of Africa, and they settled certain parts of what is now the Republic of South Africa. The Xhosas settled Transkei, the Zulus settled portions of Natal, the Tswanas settled portions of Western Transvaal, the Sothos settled portions of the Northern Transvaal … and the whites settled the rest.

Afrikaner historian Hermann Giliomee has suggested that Verwoerd’s ideas about an ‘empty land’ were not as preposterous as they appear today, considering what was known at the time and taught at Afrikaans schools. This is an unconvincing explanation, however, if one considers Vorster’s views, which were expressed more than a decade after Verwoerd’s comment. It seems this was part of Afrikaner myth-making to justify the forcible taking of land. Verwoerd’s notions of separate development cascaded to the establishment of black ‘homelands’. If blacks had ‘ambitions in the direction of full citizenship, then they have to go back to the areas that are theirs’,14 he had said in 1950. The Bantu Authorities Act of 1951 gave legal effect to this political vision. The government also needed ‘tribal’ authorities as a buffer against resistance. Rebellions in Sekhukhuneland and Pondoland in 1960 were a reminder that Africans in the rural areas would not accept the loss of land without a fight. Beyond Verwoerd, the government knew it was treading on questionable ground. In 1950, the government had appointed Frederick Tomlinson, professor of agricultural economics at Stellenbosch University, to investigate the sustainability of Bantustans. His report, delivered in eighteen volumes in 1955, effectively found that Bantustans were simply not economically viable. By then the ‘native reserves’ were already extremely poor. For the commission, this was because of a primitive subsistence economy, which through bad husbandry and over-stocking is destroying soil fertility. Yields per acre are deplorably low and in the area as a whole livestock exceed the estimated optimum carrying capacity of the land … given the nearly 500,000 adult males are away from the Reserves working in the industrial areas and the average man divides his time almost equally between agriculture and industrial work. The Commission stresses the fact that no real progress can be expected without a radical change in the whole structure.15

The commission recommended the introduction of freehold tenure in both rural and urban areas as an essential precondition for agricultural reform. To coordinate financing the rural areas, the commission had suggested the establishment of a Development Corporation for the Bantu Areas, rather than the Native Affairs Department. Ultimately, Bantustans as envisioned by Verwoerd were established, but with no additional capital, no change to land tenure, and no change to ‘tribal’ laws. On 6 September 1966, Verwoerd was assassinated in Parliament by Dimitri Tsafendas, but his legacy lived on. The Bantu Homelands Citizenship Act of 1970 and the Bantu Homelands Constitution Act of 1971

entrenched the Balkanisation of South Africa. Africans belonged in the homelands. They had no claim to any part of ‘white’ South Africa. Their role would be the provision of labour. By a constellation of laws that began in the colonial era, were consolidated by judicial determinations and applied during apartheid, Africans had no title to land.

Ingonyama Trust Land: Continuity of conquest? When the new democratic government assumed power in 1994, the dismantling of Bantustans was inevitable. But how to undo the legacies of ‘native’ land tenure? A few days before the elections, the story of chiefly power over land in traditional communities returned to where it began: KwaZulu-Natal. Like the first time, the context was politics. The date of the first democratic elections, 27 April, had been announced. One of the major political forces of the time, the Inkatha Freedom Party (IFP), which had a stronghold in KwaZulu-Natal, had initially refused to participate in the elections. But on 19 April 1994, Prince Mangosuthu Buthelezi, leader of the IFP, announced his party’s intention to participate. It has been argued that this change of heart came about as a result of a ‘land bribe’ in the form of land held by the Ingonyama Trust – Ingonyama being the king of the Zulu nation. The claims of bribery are not new. Buthelezi’s biographer, Ben Temkin, sought to discredit them in his 2002 book on Buthelezi. What transpired is that a year before the elections, in June 1993, a dispute arose at the Convention for a Democratic South Africa (CODESA) about whether the country should be a full unitary state or a federation. The IFP had proposed the latter. Despite this, the chair of the meeting declared that there was ‘sufficient consensus’ that South Africa would be a unitary state. Buthelezi protested and withdrew from the negotiations. Thus began a protracted struggle for his return. The IFP played a double game. While continuing with the secret paramilitary-style training of ‘self-protection units’ at Matikulu and Mlaba (about 3 000 of them), it publicly proclaimed its commitment to a peaceful negotiated settlement if its ‘demands’ were met. The key among these were the recognition of the Zulu monarchy and the country becoming a federation. Nelson Mandela ultimately took matters into his own hands. On 1 March 1994, he met with Buthelezi, who committed to participating in the April elections if there was international mediation over his demands. It seems there was some sort of understanding about this, as the mediators did arrive, headed by Henry Kissinger of the United States. No mediation took place, however, as the ANC and National Party seem to have rejected it. Kissinger promptly left. But another mediator, Kenyan diplomat Washington Okumu, remained behind. He would later facilitate the deal that brought Buthelezi back to the negotiating table. Temkin says that on 15 April 1994, Okumu called Buthelezi to a meeting with F.W. de Klerk. ‘Buthelezi was already on a flight, but his plane developed engine trouble and turned back. An important development, resulting from an agreement struck during their negotiations, was the setting up of the Ingonyama Trust Act, which by the then South African government transferred some two-thirds of the land of KwaZulu-Natal – about 80 000 square kilometres – to the control of the monarchy’.16 Thus ended the impasse. There would be no federalism and no absolute monarchy, but KwaZulu-Natal chiefs would control the land. With Buthelezi having been placated by the promise of control over land, on 19 April he announced the IFP’s participation in the elections. De Klerk also delivered on his land promise: on 24 April 1994, the Ingonyama Trust Act was passed into law. Buthelezi has protested against the insinuation of a ‘land bribe’, arguing that a draft of his proposed law on the Ingonyama Trust land was given to the leaders of the ANC at the time, but they showed little interest in its contents.17 What is undeniable, however, is that in any version, the promise of the Ingonyama Trust land was an important political development that finally persuaded Buthelezi to participate in the elections. Although the Ingonyama Trust Act acquired such prominence in the prelude to the 1994 elections, it was a continuation of chiefly authority being imposed from above, in much the same way as the apartheid state had done for decades. Its key tenets are a modern version of ‘Zulu law’, which Shepstone had in mind in the late nineteenth century: the stripping of land rights from individuals and families; the concentration of power in chiefs; and the dilution of customary norms, replacing them with distorted Western ideas based on indirect governmental rule. Prominent among these features is the idea of ‘trusteeship’. The Trust land vests in King Goodwill Zwelithini, as the trustee on behalf of the community members. The powers of the Trust are vast. It administers the land for the benefit, material welfare and social well-being of the tribe and community members as set out in the KwaZulu Amakhosi and Iziphakanyiswa Act, and may deal with the land in accordance with Zulu indigenous law. The king may not encumber, pledge, lease, alienate or otherwise dispose of any of the said land, or any interest or real right in the land, unless he has obtained the prior written consent of the traditional authority or community authority concerned. There is no requirement for the individuals affected by these decisions to consent or be consulted. In fact, even the government’s land reform programmes are subject to consultation with the Ingonyama Trust if they impact on land under the aegis of the Trust. It was inevitable that there would be clashes. One area of contestation has been between land occupiers and the Trust. Yet another is between the Trust and the national government, which

has a mandate for land reform. The question of ownership over that land has been resolved in tentative terms. In one case, it was held that the Trust ‘enjoys the sole and exclusive right to deal with the land registered in its name and not apportioned to any particular tribe or community’.18 This ruling might be seen as further entrenching the dispossession of families and people who occupy land within the Trust’s jurisdiction. But it is perfectly compatible with the vision of chiefly lordship over communities. Two years after the promulgation of the Ingonyama Trust Act, Nelson Mandela’s government passed another Act that would regulate the status of traditional communities in the rest of the country, the Interim Protection of Informal Land Rights Act (IPILRA) of 1996. It was titled as interim because it was envisaged to apply during the transition from apartheid rule to the democratic order while the government worked through a final legislative scheme to regulate the land rights of traditional communities. Yet it is especially important in its terms. First, there is its definition of an ‘informal right’ to land. This is extensive and includes the use or occupation of, or access to, land under the ‘tribal’, customary or indigenous laws of ‘tribes’ or communities, including the rights acquired by citizens of former Bantustans who did not have rights of ownership. Second is the notion of ‘beneficial occupation’, which is any occupation of land by a person, as if he or she is the owner, without force, openly and without the permission of the registered owner. Third is the protection against the deprivation of rights to land, which can only happen ‘in accordance with custom and usage of that community’. There is also a guarantee for compensation to any person who is deprived of an informal right to land. Finally, in the event of any sale or disposition of land, the informal rights are not automatically extinguished. The existence of two contradictory statutes dealing with the same subject matter can only be explained by the politics of the transition: compromise, uncertainty and accommodation. The dispossession of land by other means has not ended with the coming into effect of the new Constitution. One of the laws that justifies the grabbing of land is in mining legislation. When mining houses want more land, they tend to consult with chiefs, who represent communities. The chiefs, in turn, grant concessions to the mining operations, which include the right to evict communities from their land. The Interim Protection Act has received a recent revival in the courts by communities resisting the encroachment of mines and the power held by chiefs over communal land. The Constitutional Court has noted that ‘given the invasive nature of a mining right, there can be no denying that when exercising her rights, the mining right holder, would intrude into the rights of the owner of the land to which the mining right relates’.19 Eviction was disallowed because ‘an informal land rights holder under IPILRA could even consent to the granting of a mining right, but may still be entitled to occupation’. As such, ‘the award of a mining right does not without more nullify occupational rights under IPILRA’. More substantively, even the granting of the right to mine is itself subject to the rights of the people who occupy that land.20 Despite the IPILRA’s interim protections, the tenure rights of people living on communal land remain precarious, under pressure from mining companies and chiefs. In the article ‘Communal Land is Private Property’ in the Daily Dispatch on 6 June 2018, Nkosi Holomisa suggested that as ‘custodians and administrators in communal areas’, traditional authorities should have the land registered in their name in a ‘single title deed’. For mining houses, eliminating families from the chain of consultation creates fertile ground to fast-track extractions from the soil, disregarding the human cost. The authority granted to traditional communities is also challenged by the state. Minister of mineral resources Gwede Mantashe protested the Xolobeni ruling by the High Court in Pretoria: ‘[I]f you ask for full community approval, you transfer the authority of licensing from the state to the community. If you do that you create a chaotic situation.’21 The axis of chiefly power, the state and mining houses presents a unique challenge for South Africa’s democracy.

Towards accommodation Traditional communities’ limited rights of tenure were known when the new Constitution was drafted. A section catering for their interests was included. Section 25(6) of the Constitution guarantees security of tenure over land for everyone. Crucially, the right to a legally secure tenure is also an individual right. Viewed in this light, the Ingonyama Trust Act is open to challenge. It vests the right to control and administer the land in the name of the Zulu king or the Trust, not to communities or persons. This is what has enabled the Trust to enter into leases with persons occupying the land, further reducing their status to tenants. It is also this power that they wield when concluding leases that threaten residential rights. The Ingonyama Trust Act employs the language of indigenous law. Yet by vesting rights to the land in chiefs rather than the people in occupation, it contradicts custom. This has enabled the Trust to assume control over people’s land. Finally, the Ingonyama Trust lords over its ‘subjects’ in much the same way as the governor-general was once the ‘supreme chief’ of isiZulu-speaking people. It is urgent to change this relationship, as the Constitution requires. The people, not the chiefs, own the land. This is no claim to private property ownership. Rather, it is a claim for accommodation – for the strengthening of communities’ property rights so that those people can be protected from arbitrary evictions and their land can be controlled according to their wishes. Claims for the ‘expropriation’ of Ingonyama land do not advance the true interests of the communities occupying that land. Concentrating more power in the state simply reinforces

colonial and apartheid patterns of land control. The state has piloted new legislation to replace the Interim Protection Act, in the form of the Communal Land Rights Act of 2004. It met its fate in the Constitutional Court in 2010 when it was declared unlawful on procedural grounds. But, in its terms, it was a strikingly unimaginative piece of law. Its point of departure was the ‘traditional boundaries’ set by the Bantu Authorities Act of 1951, which themselves were a progeny of the Native Administration Act, a construct of the white version of African societal reorganisation. The scope of its application, which was restricted by apartheid laws that applied to ‘tribes’, spelt doom for any potential reforms through the Act. It included land that was bought by communities under colonialism and apartheid, and land in the former homelands. It granted sweeping powers to traditional authorities to take major decisions regarding land, thus again elevating chiefs and reifying their power over people. Its special treatment of the Ingonyama Trust land was curious. If its purpose was to regulate the position of all communal areas, the most reasonable way of doing so should have been to repeal the Ingonyama Trust Act. When the Constitutional Court struck down the Communal Land Rights Act in 2010, the status quo ante returned. No post-apartheid law addresses the status of communal areas. Yet, if we took seriously the injunction in the Constitution to provide for more rather than less tenure, it would be clear that a wholesale state-sanctioned forcible taking of communal land contradicts the Constitution. By its nature, expropriation weakens and destroys the rights of ownership, access and occupation over the targeted land. No cogent reason exists why tenure over communal land should be subjected to further erosion, given the history. Nor is there a reason to repeat and perpetuate the distortions of African customs. The constitutional order calls for greater rights for communities over land, not fewer. Saying so, however, might not answer how those rights are to exist. Accommodation is the primary telos of custom. We have the right to occupy the same land, but we must accommodate each other, which means accommodating varied, sometimes conflicting, often inconsistent interests – just like family members accommodate each other, and the living accommodate the dead. These rights to the same land overlap, intersect and collide in a number of dazzlingly complex ways. This is not a binary choice between modernity and custom. It is a recognition that there is no necessary separation between the two. Customary law is not to be found in ossified codes or random pronouncements by traditional leaders. It is a living law, reflective of the changes in real people’s lives. Chiefly power, then, invariably always appears as custom. But the customary veneer has peeled off, revealing the distortion. To shine a spotlight on this, confronting and eliminating this issue, is an urgent task for the law under the Constitution. One such area of contestation is private property.

PART II

Property and Liberation

6

Property and the Franchise While private landownership is European in origin, its application has become universal. Policymakers swear by it. Claimants and beneficiaries of land reform aspire to absolute rights of ownership. How did this happen? It is worth exploring the modern origins of private landownership before exploring its pitfalls for land reform, generally. Two great ideas dominated the early struggle against colonial domination: franchise and land. It is this connection that informed the struggle against colonialism.

No land, no vote Every empire needs its theorists. The British Empire had many. One stands out as the prime theorist in justifying private landownership – the philosopher John Locke. Right at the outset of his career as a secretary to the Lords Proprietors of the new English colony of Carolina in 1669, Locke became involved in writing the Fundamental Constitutions of Carolina.1 That document sanctioned total control over ‘negro slaves’: ‘Every freeman of Carolina shall have absolute power and authority over his negro slaves, of what opinion or religion soever.’ It also laid the foundation for the establishment of a landed class of proprietors to divide up the land among themselves first and leave the balance to the rest of the population: Each signiory, barony, and colony shall consist of twelve thousand acres; the eight signiories being the share of the eight proprietors, and the eight baronies of the nobility; both which shares, being each of them one-fifth of the whole, are to be perpetually annexed, the one to the proprietors, the other to the hereditary nobility, leaving the colonies, being three-fifths, amongst the people; so that in setting out and planting the lands, the balance of the government may be preserved.

In later writings, Locke denounced slavery, although his ideas about private landownership gained ground. His basic theory, expounded in The Second Treatise of Government, remained influential throughout the course of the British Empire. It was a simple but attractive proposition. In the beginning, the land of the native Americans was vacant – terra nullius. As such, it was open to the British settlers to appropriate it as they wished. In the state of nature, he explained, ‘nobody has originally a private dominion exclusive of the rest of mankind’. But man could appropriate land by ‘the labour of his body and the work of his hands … whatsoever then he removes out the state that nature has provided … he has mixed his labour with, and joined to it something that is his own, and thereby makes it his property’. Locke’s association with the British East India Company, as an advisor, served only to confirm his status as a ‘theorist of empire’.2 Variants of Lockean theory still haunt our approaches to the private acquisition of and ownership over land. It was this idea that informed the strategy of the British settlers who conquered the eastern frontier of the Cape Colony. When the British settled in the Cape in the early nineteenth century, slavery was at an ebb in Europe. At first, the conquerors were hesitant to apply nakedly racist laws. Soon after the British decided to make permanent settlements in the Cape, the question arose of establishing a constitution for a proxy government controlled from England. In England, government was constituted by election, not appointment. The same would apply in the Cape Colony. But would the indigenous people of the Cape also vote? In 1807, Britain had been the first European nation to prohibit the slave trade, and by 1834, the whole of the British Empire, including the Cape, had abolished slavery, making their position on the race question rather awkward. Having played a leading role in ending slavery, it was not unreasonable to expect the British to grant the right of franchise to all. In the Cape, although it was qualified, the right to vote was not expressly racialised. In July 1828, the Cape administration passed Ordinance 50, which declared illegal certain ‘obnoxious’ laws and customs ‘injurious’ to ‘Hottentots and other free persons of colour lawfully residing’ in the Cape Colony. The ordinance extended full legal and civil rights to coloured persons. Coloureds could also buy and own land in their own names. When this law was passed in the British Parliament, it was made clear that coloureds and Africans in the Cape ‘shall be in most full and ample manner, entitled to all and every, the rights, privileges and benefits of the law to which any other of His Majesty’s subjects are, or can be, entitled’.3 But even as the law elevated Africans and coloureds to equal status, war relegated them to subjects. John Philip, the Scottish superintendent of the London Missionary Society in southern Africa, captured this

sentiment when he wrote that ‘rapacious individuals’ wanted nothing but to lay their hands on the land of the Xhosa: Slander and defamation, and the injuries done them by the colonists, have already done their work, and the slanderers are now waiting an opportunity to excite a quarrel that will furnish a pretext to the Government to drive them from their lands, when they hope to share their cattle and their land. In such a colony there are a number of toadeaters, civil servants who want their estates. These men are on the very borders, from them the Government secures all its information respecting the Caffres, and they are incessant in their exertions to accomplish their objects.4

While the franchise was being extended on the basis of landownership, Africans’ rights over land were being systematically eroded. But Philip and other campaigners of civil rights for Africans pressed on. When the Xhosa surrendered at the end of the Sixth Frontier War in 1835, colonial agents Harry Smith and George Southey murdered Hintsa ka Khawuta, the king of the Xhosa, who had been falsely accused by Lieutenant General Benjamin D’Urban of causing the outbreak of the war. Smith had demanded 50 000 cattle from Hintsa as a peace offering for the previous war, which he refused. Yet a few months earlier, Smith had captured some 20 000 cattle from the Xhosa. Smith’s autobiography speaks of this cattle ransom made to Hintsa: ‘I consider my nation at peace with yours, and I shall not molest your subjects provided they are peaceable. When they bring the cattle according to your command, I shall select the bullocks and return the cows and calves to them.’5 Southey dismembered Hintsa’s body, cut off his ears and took his head as a grisly memento to Scotland. The retention of the skull of a Xhosa king was not just an act of savagery but also confirmed British aggression for control of the land. As more territory fell into the hands of the colonists, more civil rights were extended to the Xhosa. Ordinance 9 was published in 1836, which created municipal boards. Anyone could vote and stand for election if they owned a house or rented one to the value of £10 per annum. This was applied without racial discrimination. In 1837, the Boers under Piet Retief left the Cape and began the ‘Great Trek’, in which thousands of Boers headed into the interior of South Africa. In a manifesto outlining their grievances, Retief explained their ‘despair’ at the conduct of the Cape administration, which had allowed ‘vagrants’ to ‘infest the country in every part’. They complained of ‘severe losses which we have been forced to sustain by the emancipation of our slaves and the vexatious laws which have been enacted respecting them’. One of these ‘vexatious laws’ was universal franchise. Anna Steenkamp, Retief’s daughter, was less diplomatic than her father in explaining the reasons for the Great Trek: ‘it is not so much [the slaves’] freedom that drove us to such lengths as their being placed on an equal footing with Christians’.6 The British government, however, forged ahead with its liberal policy towards the right of franchise. In Natal, similar provisions were introduced in 1856,7 although these were revoked after only nine years, in 1865. In 1852, while the Eighth Frontier War was raging, the British extended further rights to the Xhosa. That year, Smith was recalled to London for ineptitude and for failing to maintain peaceful relations with the Xhosa. The Cape, now under a new governor, George Cathcart, was granted representative government, and a new constitution was drawn up. The Cape Constitution made it explicit that the franchise would be extended to all, without regard to race. The Duke of Newcastle, then secretary of state, explained: ‘It is the earnest desire of Her Majesty’s Government that all her subjects at the Cape without distinction of class or colour should be united by one bond of loyalty and a common interest and we believe that the exercise of political rights enjoyed by all alike will prove one of the best methods of attaining this object.’8 Property ownership, however, remained the ultimate disqualifier for franchise rights. A man could stand for election to the Legislative Assembly if he was the owner of ‘immovable property’. The same applied to the right to vote. The Cape’s status was elevated in 1872 when it was granted responsible government. But the rights of Africans and coloureds to vote remained unchanged. After the last Frontier War in 1878, the Transkeian territories were incorporated into the Cape administration and placed in the sphere of the British colony. The result of this was that more Africans were qualified for the franchise. Unable summarily to alter the Constitution, the Cape colonial administration passed a statute, the Parliamentary Registration Act of 1887, which excluded ‘tribal’ lands from the categories of immovable property that would qualify one to vote. Despite the apparently generous extensions of franchise rights elsewhere in the Cape, it is notable that only one African, Walter Benson Rubusana, became a member of the Cape Legislative Assembly, in 1909. Rubusana’s term ended shortly thereafter, when the Union of South Africa came into effect the following year. In reality, there remained very few African voters. Some changes were introduced by the Franchise and Ballot Act of 1892. Wages of at least £75 per annum could qualify any man to vote, even without property. However, new educational requirements to exclude ‘raw’ or ‘blanket kaffirs’9 were introduced. Given the link between private landownership and the political right to vote, it is not surprising that private landownership became a goal in and of itself.

Private property title by law Although the Cape pursued a liberal policy of granting some voting rights to Africans, the Transvaal and the Orange Free State applied an explicit racial policy. Voters were, by law, white and male. The entitlement of Africans to vote would be revisited only during the deliberations of the South African Native Affairs Commission of 1903–05. A great contest ensued among the delegates from the colonies of the Cape and Natal and the republics of the Transvaal and Orange Free State. The Natal position, as explained by F.R. Moor, was that whites should ensure that they were not ‘swamped’ by Africans: ‘The population of South Africa being in the approximate proportion of six Natives to one European it follows that the political status of the Native should conform to conditions which will assure constant dominance of the White races.’10 J.W. Sauer, a Cape liberal, proposed the extension of the Cape system to the country. For him, there was a greater danger if Africans were not allowed to participate in the political system: ‘whether we give the Native the vote or not we have him here. We cannot prevent him being educated and if he is going to be a danger in the future, he is more likely to be so if we withhold reasonable rights.’11 T.L. Schreiner was also in support of this view, suggesting that the elevation of Africans who had raised themselves ‘to the level of the European’ would have a ‘splendid effect’, knitting together ‘all the better elements of the higher class Native, the civilized Native, to us’.12 Natal views were echoed by J.G. Fraser from the Orange River Colony, who was ‘very chary of giving the Native the franchise in the country at all, for the simple reason that numerically it would eventually become a black government’.13 But it was R.K. Loveday’s views that would set the country’s policy for the next fifty years: ‘[L]et us keep the two races distinct, and let us govern the black races to the best of our ability; because … I may tell you, and you cannot get away from it, that the negro races occupy the lowest position in the evolutionary scale’.14 The commission’s report laid the foundation for the laws that allowed franchise restrictions and segregated land, concluding that ‘the time has arrived when the lands dedicated and set apart, as locations, reserves or otherwise, should be defined, delimited, and reserved for Natives by legislative enactment’.15 It rejected the proposals by the Cape delegation for the extension of the franchise, finding that this would result in a change to general policy towards Africans. The concern was that the Cape ‘native vote’ had resulted in changes in government policy that had to factor in the concerns of Africans. But it would be ‘an intolerable situation … [an] unwise and dangerous thing’ to extend the Cape’s policy across the country. Instead, the commission recommended African-only constituencies, not shared with white voters. This represented the end of almost a century since Africans’ franchise had been recognised in the Cape. These rights were now coming under pressure from the emerging ‘new South Africa’. The right of franchise in the Cape remained, threadbare as it was, when the Union was formed in 1910. But the Union’s Constitution allowed the removal of the native franchise. J.B.M. Hertzog, one of the ministers in the first Union government of General Louis Botha, once announced that granting Africans the vote was ‘a sin toward the European and his permanent interests, both moral and material, while to the Native it is a snare and hypocrisy’.16 He was also one of the prime movers of the Natives Land Bill, on the grounds that placing Africans under the mastership of whites would end the ‘squatting problem’. Although stripped of land rights, Africans had not yet lost the vote. While Africans remained on the voters’ roll, Section 35 of the Union’s Constitution ensured that their status as voters would be subject to the white electorate. The native franchise could be taken away if a two-thirds majority in the whites-only Parliament agreed (the two-thirds threshold was because it was one of the ‘entrenched clauses’ of the Union’s constitution). Over time the threats to the native franchise became real. In Rex v. Ndobe,17 a challenge was launched against legislation directed at taking away the vote from the small number of landowning black men who still held this right in the former British colonies when the Union of South Africa was established.18 Mr Ndobe owned two lots of property in King William’s Town. These plots of land allowed him to vote in the Cape Colony, and he was duly registered on the common voters’ roll. The Native Administration Act of 1927 changed the regime of individual ownership to tenancy right under the control of an administrator appointed by the colonial government. By converting ownership to tenancy, the Act stripped Africans in the Cape of their voting rights. Mr Ndobe refused to be subjected to the Native Administration Act, and he challenged it for being in violation of an entrenched clause in the Union’s Constitution: I am registered Voter 1157 on the Voters’ List for 1927 for the Electoral Division of KingWilliamstown for Polling District 546 and I believe I am still a voter. I am qualified by virtue of my salary. Should I retire or for any reason lose my salary I would claim registration as a voter by virtue of my ownership of my lot and building at Peelton. The present Divisional Council valuation is £50. It is land on which I can build or extend my present house. I claim the right to dispose of that subject to the existing title deed as I please. I claim the right also to leave it by will if I wish to do so, and as long as I comply with the conditions of my title deed I claim the right to retain my title deed against all comers until by an Act passed by a two-thirds majority of both Houses in terms of sec. 35 of the Act of Union I am definitely deprived of that right. I deliberately refused and still refuse to hand in my title deed … My people are acting in unison in this matter. I hold

what is known as a Sir George Grey title. I object to receive any title other than the one I hold. I say that the proposed conditions of schedule B of Exhibit D differ materially from those on my title. I have looked at it myself and in some respects have been very puzzled and have taken legal opinion upon which I am standing to-day. I have three sons. I claim the right to divide my allotment between them as I please.19

The Court of Appeal began by noting the higher status of the entrenched clause in Section 35 of the Constitution. It held that ‘if a provision in a law does in fact deal with that subject, the circumstance that it appears in a law also dealing with other matters would not alter its essential nature. If its terms fall within sec. 35 it must conform to the procedure laid down in the subsection.’20 Finally, the case was dismissed, with the court holding that it was premature as the regulations that had the potential to strip Mr Ndobe of his land rights were not yet promulgated; until then, the court was to assume that the government would comply with the Constitution.21 While the Judicial Committee of the Privy Council allowed Mr Ndobe leave to appeal, he abandoned the appeal, apparently for lack of funds. His worst fear came true: the regulations under the Native Administration Act concentrated power over land in puppet chiefs who were appointed by the government. Without private title, he could not vote. And so too many Africans in his position. In 1936, the government introduced the Native Representative Council (NRC), which would replace representation in the Cape Legislative Assembly with that of a ‘native’ advisory board. Initially viewed with scepticism, the concept of the NRC was later accepted by some African leaders, with prominent African intellectuals like Professor Z.K. Matthews assuming its leadership. When the National Party came to power in 1948, its vision was apartheid. One of the first statutes it passed was the Separate Representation of Voters Act 46 of 1951, which disqualified coloureds from the right to vote. Despite some initial court successes, coloureds would ultimately be removed from the voters’ roll, leaving only whites remaining. Given the centrality of private title over land as a mechanism to exercise political rights, it is no surprise that the early African leaders adopted an uncritical approach to the concept of private property. If they could own property, they could end their disenfranchisement.

7

Private Property and Liberation The emergence of private property in the struggle for freedom The prime evil of Europe’s conquest of South Africa was the taking of land. But this must be seen in the larger context of European rule being imposed on Africa, characterised by a confluence of factors: the displacement of African modes of life, conversions of religious beliefs, and the establishment of schools for African children. But it was the introduction of the Westminster system of government that would shape the relations between Africans and their new colonial masters, and among Africans themselves. Africans educated in the United Kingdom, who were central to the founding of the ANC, came to view the Westminster model as the gold standard for representative democracy. The ANC itself incorporated these ideas as the ‘Parliament of the People’. Hereditary chiefs initially included in the leadership structure under protest were later completely excluded as the ANC moved towards a pure representative democracy. The model’s attraction is obvious: everyone has a say. For a people deprived of their voice in the running of their own country, representative democracy provided a promise to restore it. The Cape liberal tradition held that everyone could vote, regardless of race. Yet this was a deception by Cape liberalism, as Africans were effectively denied property rights, which had the effect of limiting their voting rights. When it was decided that ‘tribally’ held land did not entitle one to vote, large numbers were simply cut from the voters’ roll. Since the franchise was tied up in property rights, the two became indivisible. The premise for a qualified franchise was generally accepted. Property and education, the symbols of civilisation, were accepted as necessary qualifications for the franchise. As civilised men, the educated property-owning African elite could vote, like their European counterparts. When the draft South Africa Bill of 1909 was published for comment, the South African Native Convention, consisting of leading African organisations, accepted the property-ownership restrictions on the right to vote, although it did ask for equal rights for all races, ‘a principle which was sustained by the leading statesmen of the Country and which was also the constant motto of the late Cecil John Rhodes (to whom a united South Africa was also an ideal), viz: “Equal rights for all civilized men from the Cape to the Zambesi”’.1 Some ten years after the passing of the Natives Land Act, in 1923, the ANC produced the ‘African Bill of Rights for South Africa’. It contained a statement of five rights to be included in the Bill of Rights. ‘[T]he Bantu inhabitants of the Union’, it began, ‘have, as human beings, the indisputable right to a place of abode in this land of their fathers’. Africans, as sons of the soil, have a God-given right ‘to unrestricted ownership of land in this, the land of their birth’. Yet Africans were not the only ones inhabiting the land. So, ‘like the British subjects’, blacks have ‘the inalienable right to the enjoyment of those British principles of “liberty of the subject, justice and equality of all classes in the eyes of the law” that made Great Britain one of the greatest powers’. The final statement in the Bill of Rights was for the representation of blacks by ‘members of their own race in all the legislative bodies of the land, otherwise there can be “no taxation without representation”’. This Bill of Rights would later serve as a rallying point for further demands concerning inclusion in the government of South Africa, and the shared occupation of land. There is a sense of despair in the 1923 Bill of Rights. It seemed that the legitimacy of the British settler state was accepted beyond question. Africans demanded inclusion in the colonial paradigm. But they also aspired to the British way of life. While Britain was rightly presented as among the greatest powers in the world, the source of this greatness is intriguing. The document seems to assert that the British acquired the status of greatness not through pillaging African land, labour and minerals but by ‘justice and equality’. Leaders of the ANC could not have forgotten the fresh legacy of the British when they wrote this Bill of Rights. Perhaps the explanation for their attitude towards the British is that by 1923 there was a new, aggressive, hostile enemy: Afrikaner nationalism. The big men of the time, Hertzog and Jan Smuts, were unequivocal in their desire to make South Africa a white man’s country in which Africans were subservient. With no military options left, an appeal to the British sense of justice seemed the most realistic. But the British did not reciprocate. By that time, foreign policy towards the colonies had changed. ‘Natives’ were no longer the concern. Appeasement of the Afrikaners was the new mission. While the 1923 Bill of Rights reflects an acceptance of British rule, when seen in light of its immediate history, it was not the first such pronouncement. In its early incarnation as the

South African Native Congress, under John Tengo Jabavu in 1906, the ANC had passed a resolution denouncing the ‘pernicious and retrogressive lines advocated by Natal and the Transvaal’ and asked ‘for the natives to be taken over by the Crown and be governed from Downing Street through a Department of Native Affairs in the Home Government’.2 Arguably the most significant petition was that of 1909,3 drawn up by some of the most thoughtful men of the era, William Schreiner, Abdullah Abdurahman and John Tengo Jabavu. This would eventually be presented in the British House of Commons. It is a clear exposition of African demands of the time: ‘Your Petitioners are deeply disappointed at the non-extension of political and civil rights and privileges to the coloured people and the natives of Transvaal and Orange River Colony.’4 Race could not be used as a basis for the extension of voting rights. They considered the position in the Cape, of franchise according to property ownership, as a model for the rest of the country. The British Parliament would not be convinced to change its view on the South African question. But it is in this sense that Africans accepted the link between the right to vote and the right to hold private property. Some three years after the failed 1909 delegation, the ANC was launched as the South African Native National Congress under the presidency of John Langalibalele Dube. One of the items discussed at the founding conference was the Squatters Bill, which proposed restricting Africans from buying land in certain areas, a policy that would later be included in the Natives Land Act. The minutes, taken by Charles Dube, brother of John Dube, recorded that the policy was ‘denounced in the strongest terms’. The right to hold private land was not, however, rejected: ‘That clause in the Bill debarring our native syndicates from buying land was strongly condemned.’ African land had been taken by force only a few years earlier. A new policy that was implemented required Africans to buy back the land from the new white owners. The ANC, however, was not opposed to buying land. Its opposition was directed at Africans’ loss of rights to acquire private property through purchases. The paradox of the struggle was that the right to buy land had now become a demand of the struggle. The ANC was not the only organisation representing African interests that advocated for ‘the right to buy’ land. On 19 March 1912, the black newspaper Imvo Zabantsundu published an article in which it recorded the deliberations of the Cape Peninsula Native Association in relation to the draft Natives Land Bill. It rejected the bill as unjust, tyrannical and designed to benefit mine and farm owners. Like the ANC, it didn’t oppose the principle of buying land that was once theirs: ‘No provision was made for their old age; no consideration shown them whatever.’5 Africans had been content to remain on the land, ‘well assured what labour they were still capable of would provide for their simple wants’. As Africans, they protested, they ‘were willing, perfectly willing, to pay, and asked only that they should be left in peace to continue to the end the work they had served apprenticeship to’. The demand for the right to buy land persisted after the passing of the Natives Land Act. The ANC’s petition to the prime minister of South Africa, General Louis Botha, echoed this view. After explaining the hardships caused by the Act, the solution proposed was not the wholesale scrapping of the Act. Rather, ‘your petitioner humbly protests against the summary prohibition of the sale to natives, and prays that you, Sir, may exercise your power … to bring about an amendment … that there may be no prohibition of the sale of land to natives’.6 There were no responses to this petition. A deputation was sent by the ANC to England, this time led by Walter Rubusana, to protest the bill in 1914. At this stage, the idea of freehold title had gained firm ground in the struggle lexicon of the ANC. They objected to the Act because it had the object of ‘expropriation of lands already held in freehold by the natives, where the native is found to live on land in an area which is intended to convert into a white man’s area’. What they wanted was the ‘right of the native to the free purchase of and dealing with land on the same terms as the white subjects of Your Majesty’.7 The delegation came to naught, as the British government was engaged in preparations for war against Germany. When the Natives Land Act was passed, Botha’s government had promised to investigate the possibility of granting more land to Africans. A government commission to consider the granting of additional land to Africans published its findings in 1916. It did not change the basic premise of the Act – the unfair division of land between native and European areas, and the prohibition of the right to purchase land. Instead, land available for African purchase was marginally increased. The ANC roundly rejected the report, noting that the new areas were ‘barren, marshy and malarial’ and thus unsuitable for settlement and agriculture.8 The evil intent of the Act had been ‘to deprive the Natives as a people of their freedom to acquire more land in their own right’. By restricting the right to buy land, the effect was to limit Africans’ opportunities to progress economically and to ‘lessen their chances as a people of competing freely and fairly in all commercial enterprises’. In 1916, Solomon Tshekisho Plaatje’s formidable work on the Natives Land Act, Native Life in South Africa, was published. Plaatje argued that it was unfair to deny Africans the right to own land. He argued that the Crown should protect black-owned land and specifically the inheritance owed to black people. Plaatje showed that the Act forced people into reserves and imposed squatting laws that caused black people great losses in land, livestock and agriculture. Evictions forced black people to seek independent sources of livelihood and pushed them out of subsistence agriculture and into mines and highly exploitative waged work. Prior to the Act, no

such land law existed: members of the black elite had not been excluded from landownership or tenancy. Yet, as pointed out by Donna Andrews, ‘Plaatje … may not have foreseen proletarianisation with its complex processes and the impacts it would have on rural communities and social relations. What was not visible to Plaatje at the time was that the separation of people from the land through private property, ownership and commodification was in itself alienation.’9 It is not clear that Plaatje did ‘not foresee’ the impact of separating people from the land. The ANC – of which he was secretary-general – was wedded to notions of private property. Plaatje, in any event, was something of a Renaissance man. The damaging effects of diamond mining were already visible in Kimberley, where the first minerals were ‘discovered’. Josias Semouse, also from Kimberley, wrote about the diamond fields: ‘Diamond diggers and civil servants alike work all day, without rest. I have travelled all over the Cape Colony, I saw towns and cities, but I have never seen a city as bad as Kimberley. And its laws are also bad.’10 The human suffering was dreadful. There were ‘many different kinds of diseased people in Kimberley’, and Semouse records the trauma: ‘One had no feet, only the body and jumped around like a frog. One day, when he was jumping through the streets, he saw horses approaching him. I thought that they would stop in front of him. But he just looked up and at precisely that moment he made a giant leap forward so that his forehead, nose and mouth touched the ground.’11 Speculators had long left Kimberley and moved north in search of gold. Plaatje had spent time in London, a hundred years after the Industrial Revolution, where notions of private property were not only known but had also been the subject of much criticism. He was thus articulating the generally held view in the ANC that private property was akin to the Holy Grail. By 1919, the president of the ANC was Sefako Makgatho. He viewed the 1914 ANC delegation as having failed in its mission to persuade the British Parliament against South African policy, and therefore a fresh deputation was necessary after the First World War. In December 1918, a petition by the ANC had been drawn up for presentation to King George V. While the focus of that petition was the ANC’s disappointment in Britain’s failure to reciprocate African support during the war, some aspects addressed issues of land. Noting the deepening encroachments on their territory, the petition expressed concern about expropriations in the Free State ‘without any compensation or other relief being given to the original owners of the land’. In the Transvaal, the ANC demanded ‘the freedom to acquire land’.12 As with the previous deputations, the 1919 delegation also ended in disappointment. British policy towards South Africa would not accommodate Africans. But the ANC’s land policy remained characterised by an adherence to private property rights, partly as a vehicle towards franchise and as an affirmation of citizenship. Notions of state ownership of land do not appear to have been within frame. The ANC’s later policy statements, the 1943 Africans’ Claims in South Africa and the 1955 Freedom Charter, did not envisage the disruption of private landownership. Their focus was the removal of the colour bar from land acquisition. Since then, ANC policy on private ownership has not undergone fundamental changes. Its current position is premised on the idea of private property.

The Africans’ Claims The Africans’ Claims document was produced at the ANC’s National Conference of 1943. While its focus was domestic, its reach was universal, influenced by one of the ANC’s most learned presidents, Dr Alfred Bitini Xuma. Xuma conceived the need for the ANC to document its response to global developments, from which Africa was excluded. What had happened was that as the Second World War was approaching its third year, the two leaders of the Western Allied powers, Franklin D. Roosevelt of the United States and Winston Churchill of the United Kingdom, drew up a plan of the standards that would regulate the world after the war. On 14 August 1941, Roosevelt and Churchill produced the Atlantic Charter, at the centre of which was the principle of territorial self-determination. Yet, as Xuma noted, most of Africa was still under European colonisation. By adopting the Africans’ Claims, which incorporated a draft Bill of Rights, Xuma sought to address this contradiction, with a South African focus. According to Xuma, it was General Jan Smuts, prime minister of South Africa at the time, who announced that ‘the post war world will be based upon the principles enunciated in the Atlantic Charter’.13 Deneys Reitz, then minister of native affairs, had also ‘indicated that the Freedoms vouchsafed to the peoples of the world in the Atlantic Charter were indicated for the African people as well’. Smuts was due to attend a Commonwealth conference in London, in April 1944. Xuma viewed it as hypocritical for Smuts to engage in world affairs, proclaiming freedom in Europe but not in his own country. Decrying Smuts’s insincerity, Xuma noted that ‘as a prelude to [South Africa’s] participation at the Peace Conference in the final destruction of Nazism and Fascism in Europe, [they] must grant the just claims of her non-European peoples to freedom, democracy and human decency’.14 Even as the ANC’s language of protest was taking a radical turn, its preoccupation with private property did not seem to abate. Correctly identifying the injustice in ‘the present allocation of 12% of the surface area to 7,000,000 Africans as against 87% to about 2,000,000 Europeans’, the demand was for ‘a fair redistribution of the land as a prerequisite for a just

settlement of the land problem’. However, the proposed solution as apparent in Point 8 of its Bill of Rights was stated as follows: ‘The right to own, buy, hire or lease and occupy land and all other forms of immovable as well as movable property, and the repeal of restrictions on this right in the Native Land Act, the Native Trust and Land Act, the Natives (Urban Areas) Act and the Natives Laws Amendment Act.’ The document also advocated for the inclusion of African farmers in state subsidies and land bank facilities.

The Freedom Charter In June 1955, the Congress of the People rejected the dichotomy of the ‘coloniser and the colonised’ who were engaged in a struggle for dominance over the other. South Africa, it argued, ‘belongs to all who live in it’. The Freedom Charter aimed to reverse the imposition of racial restrictions on African landownership by the 1913 Natives Land Act, proclaiming that the ‘restriction of land ownership on a racial basis shall be ended’. The land would be redivided among ‘all who work it’. The Charter’s promise was not to end private landownership but rather its racialisation. But who would get the land? The Charter’s answer was those who work it. There was no further elaboration about who works the land. Perhaps none was necessary. By 1955 South Africa was primarily an agricultural economy, with large numbers of young African men driven to work as cheap labour on farms. Alive to this reality, the Charter promised to end cattle robbery and abolish forced labour and farm prisons. In 1953 Professor Z.K. Matthews was acting principal at the University College of Fort Hare and president of the ANC in the Cape. The Cape wing of the ANC held its annual conference in August of that year, in Cradock. Matthews delivered his address on the 15th.15 That speech laid the foundation for the Freedom Charter, some two years later. Matthews noted the National Party’s aggression in executing its racial policy of apartheid, targeting the clauses in the South African Constitution that guaranteed the franchise to coloured and native persons. To counter this, he proposed a national convention ‘at which all sections of the population might be represented to consider the kind of South Africa which they should like to see in the future, in which the legitimate rights of all sections of the population might be adequately safeguarded’. This proposal by Matthews had a profound impact on the delegates. By the end of the conference, a resolution was passed: That the Conference notes with interest the remarks of the President on the need for the establishment at the instance of the African National Congress and under its leadership of a Congress of the People in South Africa to draw up, inter alia, a Freedom Charter or Constitution embodying a vision of the future South Africa as we in Congress see it. Conference instructs the incoming executive to make specific recommendations in this regard to the African National Congress Headquarters. Such a Congress of the People would serve to unite all democratic forces in South Africa among all races into a front against the dangers of fascism, and would enable the A.N.C. to demonstrate in a practical manner its policy for the solution of the problems of the country.

In December 1953 the ANC held a national conference in Queenstown. The proposals by the Cape wing of the organisation at the Cradock conference were presented. They received universal support, with a resolution being passed ‘to make immediate preparations for the organisation of a Congress of the People of South Africa, whose task shall be to work out a “Freedom Charter” for all peoples and groups in the country’.16 Chief Albert Luthuli, then president-general of the ANC, asked Matthews for a memorandum on the idea behind a national Congress of the People, which was adopted as working policy by the party’s National Executive Committee. Student protests at Fort Hare in May and June 1955 meant that Matthews was unable to attend the national congress on 25 and 26 June, when the Freedom Charter was adopted. Despite initial resistance, the Charter was later adopted as ANC policy. Matthews’s vision was realised. The security police, also known as the Special Branch, were a specialised unit that aimed to crush the liberation movement. Formed in the 1930s, they had gained notoriety by the 1950s, although not their reputation for ruthlessness of the 1970s. Their powers were seemingly limitless. On 27 September 1955, the security police raided Matthews’s home at Gaga Street in Alice. Investigations into treason were the pretext. Not much occurred on this occasion, but Matthews was a marked man. When the security police returned on 5 December 1956, Matthews would end up as an accused, along with Nelson Mandela and 154 others, in what became known as the Treason Trial. Four members of the security branch had arrived at Matthews’s house that day. Their leader was Detective Sergeant Nel, who promptly produced a warrant for Matthews’s arrest, but no search warrant. The house was raided and several documents were seized. Without a moment to breathe, Matthews and many other Eastern Cape activists from Middledrift, Cradock, Queenstown, Bolotwa and Stutterheim were rounded up and driven to Port Elizabeth. There, they spent a night in the police cells before being forced onto a military aeroplane destined for Johannesburg at 6 a.m. on 6 December. Matthews was then taken to the Old Fort prison, until his trial and later acquittal. The counsel for the accused was Israel Maisels QC, who would later

recall Matthews as a star of the show in his explanation of the Congress movement, its objectives and why it broke no laws. When police interrogators required Matthews to make a statement, he provided the clearest defence of the Charter’s principles. The charge was that the Charter was a communist document, evidenced by its land clause. Matthews refuted this. The root cause, he argued, was the Natives Land Act: ‘Redistribution of land is not a new principle. It appears in the African Claims document. It goes even further back – right to the Land Act of 1913. The distribution of land which was then made was regarded as unfair and has been so regarded throughout.’17 The trial ended in a stunning defeat for the state, with Judge Rumpff finding that it was ‘impossible … to come to the conclusion that the African National Congress has acquired or adopted a policy to overthrow the state by violence’.18 The government would later crush the ANC as opposition in the Rivonia Trial of 1963–64, in which Nelson Mandela was one of the ten main accused, eight of whom were found guilty and sentenced to life imprisonment. However, one of the primary grievances of Africans, namely land dispossession, remained, even as the views of the ANC were constantly evolving. One area in which the perspectives within the ANC transformed is private ownership of land.

Abolish racialised private landownership ANC policy has always sought to abolish racialised private landownership. In its stead, it proposed to divide the land among those who work it, to enable all with the means to own the land. Yet there was no explanation as to how the land would be acquired by the state to enable non-racial ownership. Matthews might have been the first to point to expropriation as a method to acquire land for distribution: ‘I think the state would have to use wide powers of expropriation. Experience shows that depending on people’s willingness to sell is not sufficient.’19 But whose land would be subject to expropriation? ‘We would expropriate absentee landlords and give both white and black farmers an opportunity or having their own land.’ Matthews was also clear that compensation would have to be paid, although he would not elaborate on how this would be calculated. Land expropriation for wider distribution seems to have been part of the ANC’s official policy since the days of the Freedom Charter. But the abolition of private landownership was not. The Charter only envisaged the nationalisation of mines and banks. In this sense, the Charter did not envision the end of private property. Its concern was to abolish racialised private property ownership. This remained its policy for the decades of the struggle. Once anchored on franchise rights, private landownership now holds a precarious status, at risk of losing its shine. One of the reasons is that landownership secures the tenure of the owner, but its efficacy as an instrument for larger social goals is constrained. In the postcolonial era, the persistent view that land is solely private property, to be passed from one owner to another, presents us with a paradox: for persons previously denied the right to own land by the discriminatory colonial laws, private landownership is a triumph against an unfair system. Yet, by its very nature, any private property regime locks out the landless – most of whom are Africans – from its ambit. It may therefore be asked whether our attachment to the private property paradigm is strangling land reform.

8

The Settlement of the 1990s In the last years of apartheid, Oliver Tambo, president of the African National Congress, met with Fidel Castro, then leader of Cuba, a strong military supporter of the ANC in exile. Castro was keen to understand how the ANC’s Freedom Charter would be implemented should the ANC assume state power in South Africa. Economic clauses such as the nationalisation of banks and mines had proven impossible to apply in certain contexts in Cuba, he had warned. For instance, Cuba’s communist government had wanted to nationalise private industry, only to discover that a controlling shareholder was registered in Florida, not in Cuba.1 And any seizure of assets in Cuba would have a ripple effect in the United States, which in turn would impact industries in Cuba in ways that the Cuban government could not control. Tambo was learning the hard lessons of a globally connected economic order. The ANC could not make the same demands as it did when it was formed in 1912. Castro proposed coexistence with the ANC’s enemy, the National Party, compromise and a negotiated settlement. Any dreams of a revolutionary insurrection were an illusion. Freedom would come, but as a process, not an event. And the story of how freedom would be attained also defined the story of land: a hard bargain in the negotiating chamber. By February 1989, the collapse of the Soviet Union, the only bloc that provided an alternative economic system to Western-style capitalism, was imminent. Francis Fukuyama, an expert on the Soviet Union, presented a paper titled ‘The End of History?’ at the University of Chicago. In it he argued that if history is understood as a ‘single, coherent, evolutionary process’ when one factors in all human experiences, the collapse of the Soviet Union marked history’s end.2 That is, the most remarkable development of the previous quarter of a century had been the exposure of the weaknesses of military dictatorships, whether communist or right-wing. What remained in their place were ‘stable, liberal democracies’ spanning different regions and cultures across the globe. With the ideological contestation settled, liberal principles in economics – the ‘free market’ – had gained universal acceptance, producing unprecedented levels of material prosperity. There was no realistic possibility of reversing this, Fukuyama argued. Only on the fringes of the political world were dictatorships tolerated. Elsewhere they were fought, with many struggles underpinned by free-market ideas. Old regimes that were once sworn enemies of the capitalist world order – like Cuba – had come to appreciate this inevitability. Thus, history had ended. As an article in the New Yorker noted, ‘on December 7, 1988, Mikhail Gorbachev had announced, in a speech at the United Nations, that the Soviet Union would no longer intervene in the affairs of its Eastern European satellite states. Those nations could now become democratic. It was the beginning of the end of the Cold War.’3 These developments reverberated around the world. One of the ANC’s sources of funds in the struggle against apartheid had been the Soviet Union, but if it could not support its European allies, it definitely could no longer assist those in Africa. In this age of the triumph of liberal economics, an internal battle for control that had raged within the National Party during the 1980s had also drawn to an end, with the emergence of F.W. de Klerk as party leader. De Klerk announced the unbanning of the ANC and other liberation movements in 1990 and began a process of negotiating the terms for a transition to democracy. In 1991 the ANC passed its own draft Bill of Rights, titled ‘A Bill of Rights for a Democratic South Africa’. The land provisions were much more extensive than they had been in the organisation’s entire history. Like the ANC’s earlier pronouncements, it retained the right for people to acquire and own private property regardless of race. This coincided with the passing of the Abolition of Racially Based Land Measures Act by De Klerk’s government in the same year, which scrapped the Natives Land Act and all laws that restricted property ownership by reference to race. Although the ANC’s Bill of Rights did not mention expropriation of land by name, it intended to give the state generic powers to ‘take steps to overcome the effects’ of discrimination in property ownership. Without compulsory acquisition of land, the steps to overcome the effects of racial property distribution would have been stillborn. This is why the draft Bill of Rights considered ‘just compensation’, which would take into account the need to strike an equitable balance between the public interest and the needs of those affected. An independent tribunal, subject to an appeal in court, was envisaged as the body to take decisions regarding compensation. A year later, in 1992, the ANC was preparing itself to be the new government of a democratic South Africa. But it had no experience of being in government, having spent its eighty years of

existence agitating for governmental change. Moreover, the ANC had no concrete policy framework for governance beyond the vague and imprecise exhortations of the Freedom Charter. Mark Gevisser has pointed to the ANC’s own ambivalence about the Charter’s ‘lack of specificity’ and ‘insufficiency’ to help South Africans, both black and white, ‘to imagine their post-apartheid society’.4 In May 1992, the ANC adopted a document titled ‘Ready to Govern’ to fill this policy void.5 One of its elements was a property clause in an envisaged Bill of Rights. The document did not propose to do away with property rights but to restore rights that had been stripped from the majority under apartheid: ‘A new system of just and secure property rights must be created, one which is regarded as legitimate by the whole population.’ To establish that system, the unfair property patterns inherited from apartheid first had to be reversed by law. The elements of the envisaged law would include the compulsory ‘taking of property’ in the public interest; the payment of just compensation, which would ‘not be based solely on the market value of such property’; and recourse to the courts for any affected person. The ‘Ready to Govern’ policy also contained a discrete section on land. Its ‘fundamental point of departure’ was to address the legacy of forced removals and dispossession. A land reform programme, whose priority would be the restoration of rights to the land, including ownership, was proposed. The proposed land reform programme would be guided by affirmative action to benefit ‘the landless, rural poor and women who have been deprived of rights to land through patriarchal systems of land allocation and tenure’. Alongside this land reform goal was a plan for land redistribution to address ‘land hunger’ and landlessness. The expropriation of land, subject to the law, was considered one of the key mechanisms to make land available to the state for wider distribution. It was in this regard that the ANC began to consider categories of land to be given priority for distribution: ‘vacant, unused and under-utilised state land suitable for residential and agricultural purposes shall be made available for redistribution’. Further categories would also be factored in: land held for speculation; land which is being degraded; and ‘hopelessly indebted’ land. In addition, ‘land acquired through nepotism and corruption will also be available for redistribution. Persons who have benefitted from corrupt and illegal transfers of land and interests in land, or from corrupt and illegal investment in, or development of land, shall be required to account for such benefits and make appropriate restitution.’ Since the envisaged policy included compensation, it raised the question of who should pay. The answer provided in the ‘Ready to Govern’ document was that the state must pay for compensation: It will be unjust to place the whole burden of the costs of transformation on the shoulders either of the present generation of title holders or on the new generation of owners. The state therefore must shoulder the burden of compensating expropriated title holders where necessary and subject to the provisions in the Bill of Rights.

These policies, developed by the ANC in preparation for the negotiations towards a Bill of Rights, would meet resistance from big business, the National Party and other forces that favoured unbridled market capitalism, which included the right to private property, subject to full marketbased compensation. Professor Sampie Terreblanche has commented on the forces at play during the transition, noting the decisive influence of the ‘mineral energy complex’ in the process.6 Terreblanche writes that the state of emergency declared by P.W. Botha in 1986 convinced the global capitalist class with financial interests in South Africa that the ‘crisis of accumulation’ was real. If they did not intervene, an implosion was a genuine possibility. The concern of European and American businesses that had South African exposure, as well as large South African companies such as Anglo American, was the ‘socialist orientation of the ANC’. They began having secret meetings and discussions with selected leaders of the ANC and separately with P.W. Botha’s government. When Nelson Mandela was released from prison in 1990, these business interests intensified in their attempts to influence the policy direction of the country. Mandela himself was party to some of these discussions in his capacity as ANC president. These discussions would reach their climax in 1993. In October that year, the National Party under F.W. de Klerk formally surrendered power. De Klerk promulgated the Transitional Executive Council Act of 1993, which allowed the ANC to nominate an equal number of representatives together with the government to make all crucial political decisions until the election was held in April 1994. When the Transitional Executive Council (TEC) ran out of money, it asked the International Monetary Fund (IMF) for assistance. The IMF agreed to help, but as a condition the TEC was required to sign an undertaking on South Africa’s future economic policy. This, in effect, was an agreement to a neoliberal economic policy. Terreblanche perhaps overstates the influence of white economic power as the primary driving force of the transition from apartheid to democracy. In doing so, he underplays the autonomous policy evolution within the ANC. Much of ANC policy developed when it was opposed to government, in the era of the Cold War. When the possibility of assuming governmental power presented itself, the world was no longer the same. Importantly, Africa’s experience with independence after the 1960s had turned out to be disappointing, characterised by endemic levels of poverty, structural adjustment programmes, corrupt regimes, military

dictatorships and fraudulent elections. In its thirty years of exile, the ANC had witnessed the implosion of the African continent. It was careful not to repeat the mistakes of other African states. Also, it had seen the reorganisation of the world order in favour of Western capitalism. Any economic policy for the new South Africa had to factor in the global balance of power. The evolution of the ANC’s policy-thinking is best captured in an exchange that took place on 29 October 1985 at the Foreign Affairs Committee of the British Parliament.7 Oliver Tambo had appeared there to lobby the British Parliament against the apartheid government. Norman St John-Stevas, a British conservative politician, taxed Tambo on the ANC’s political philosophy beyond the end of apartheid: ‘For instance, the Freedom Charter has some definite views about nationalisation and land redistribution. Could you say something more about the attitude of the ANC to these matters?’ Tambo at first refused to commit to a fixed ideological position: ‘[T]he Freedom Charter is not formulated on the basis of any ideological positions. The Freedom Charter simply looks at our situation in which there is great wealth – immense wealth – concentrated in the hands of a few while the vast majority of people are living in desperate poverty, and we say how do we adjust this position?’ When asked directly whether the ANC’s intention was ‘to destroy the capitalist system as such, or to reform it’, Tambo was clear that the destruction of private capital was not ANC policy: ‘[W]e do not want to destroy it. The Freedom Charter does not even purport to want to destroy the capitalist system. All that the Freedom Charter does is to envisage a mixed economy in which part of the economy, some of the industries, would be controlled, owned, by the State … and the rest by private ownership – a mixed economy.’ The ANC’s policy blueprint for the negotiations, contained in its ‘Ready to Govern’ document, reflected the combined experiences of many countries and observations of failed economic policies, rather than a mere capitulation to the ‘mineral energy complex’. Another immediate factor for the ANC was South Africa’s own economic crisis, which the ANC inherited from the apartheid government. Tito Mboweni, former governor of the South African Reserve Bank, has largely confirmed Terreblanche’s account of these events, although not his deduction. In a speech given in 2004 to the Black Management Forum, Mboweni explained the ‘crisis’ faced by South Africa that resulted in finance minister Derek Keys approaching the IMF for funding: ‘One of the problems/constraints facing the economy at that time was that the country only had foreign reserves to cover for plus/minus three weeks of imports.’8 The result was that the government approached the IMF for funding, to be channelled through the Compensatory and Contingency Financing Facility. Mboweni disputes that this funding came with conditions, although he agrees that the IMF asked the TEC to sign a statement on economic policy, as described by Terreblanche. From Mboweni’s perspective, the ANC’s assent to the IMF’s request did not contradict ANC policy at the time, as enunciated in the party’s ‘Ready to Govern’ strategy document. The IMF simply required the ANC to follow a ‘prudent’ macroeconomic strategy. Yet the core of Terreblanche’s argument is that ANC policy should be seen in the context of the global forces at play. And this need not be viewed as a bad thing, simply as an explanation for the agreements reached in the transition. The IMF statement on economic policy committed the ANC to ‘neoliberalism and market fundamentalism’.9 The flaw with Terreblanche’s argument is the supposition of a sudden, inexplicable change in ANC policy dictated and controlled by an external, not-so-invisible market force. A better explanation should take into account the experiences of the party members in exile, the operation of global forces, the collapse of the domestic apartheid economy, and the ANC’s historical allegiance to individual rights and freedoms, which were later espoused in the Bill of Rights. When the ANC approached the negotiations for the new Constitution, its land proposals entailed three key features, which were highly contentious: the protection and expansion of property rights for Africans; the expropriation of land for redistribution; and no guarantees of market-based compensation for expropriated landowners. Notwithstanding the external and internal constraints of the negotiations, the Constitution broadly reflected these proposals. After the ANC won the elections of 27 April 1994, the Interim Constitution came into effect. Unlike the ANC’s previous policy positions, the property rights provisions in the Interim Constitution had legal force. The constitution allowed for the general expropriation of private property for public purposes, provided that just and equitable compensation be paid, as may be agreed or decided by a court. In addition, historical claims to the land would be resolved through a restitution process.

The RDP and its malcontents Despite the ANC coming to power, much confusion remained about how to undo the deep-rooted effects of land dispossession. How could land be placed in the hands of those who had lost their rights, and through this address ‘effectively the injustices of forced removals and the historical denial of access to land’?10 The Reconstruction and Development Programme (RDP), a policy document produced by the ANC in its first year in power, contained the clearest and most comprehensive vision for accomplishing this. In the chapter dealing with land, it acknowledged the fundamental truth about the limits of the market and law in land redress: ‘The abolition of the Land Acts cannot redress inequities in land distribution. Only a tiny minority of black people can afford land on the free market.’ For the first time in its policy announcement, the ANC

recognised the constraints of the ‘free market’ on land distribution. This was despite the near absence of any meaningful participation by black people, except as ‘unfree labour’ in the economy. The clever trick of apartheid was to superimpose free-market ideas over a fundamentally unjust land system. Apartheid had created a thriving land market. But most importantly, this was done as part of the country’s larger market economy. No longer driven by the communist dogma of the Cold War era, the ANC faced the real task of meeting the aspirations of multitudes of Africans, originally excluded from landownership by conquest, who were still unable to enter the market. Property rights could not be abolished. They were integral to the functioning of the market economy. Although racial distinctions in property ownership had to be abolished, the RDP pointed out that this could not be achieved by the market alone. Something else had to be done. The RDP sought to navigate this treacherous terrain. Appropriating the language of the market, it promised a ‘fundamental land reform programme’ that would be ‘demand driven’ and mindful of the needs of rural dwellers for tenure security. It would supply residential and productive land to poor and aspirant farmers, and ‘raise incomes and productivity’ for both agricultural and residential purposes. Two programmes were proposed, as first envisaged in the ‘Ready to Govern’ document: land restitution and land redistribution. For land restitution, it was envisaged that a Land Claims Court to ‘restore land to South Africans dispossessed by discriminatory legislation since 1913 would be established. It would be accessible to the poor and illiterate.’ Initially, the adjudication of these land claims was expected to be finalised by 1999. Meanwhile, land redistribution was intended to provide residential and productive land to those who needed it but could not afford it. Similar to the timeframe for restitution claims, the goal was to ‘redistribute 30 per cent of agricultural land within the first five years of the programme’. This target was based on annual sales of land at the time, which were estimated at 6 per cent of the total land sales in the country. It was expected that substantial funding would have to be provided by the state as part of this effort and that ‘beneficiaries must pay in accordance with their means’. Still, the question remained: how was land to be acquired? With the nationalisation of land having been dismissed, both ‘market and non-market’ mechanisms would be used to reform ‘vacant government land’, ‘land already on sale and land acquired by corrupt means from the apartheid state or mortgaged to state and parastatal bodies’. Where applicable, expropriation with compensation would also be considered. Yet an obstacle to this policy was soon apparent: no reliable figures could be produced for land that had been illegally acquired or was owned by the state. The fact was that the majority of agricultural and residential land was in private hands. In the Interim Constitution, although property rights were included in the Bill of Rights, land as such was not. Section 28 provided for ‘the right to acquire and hold rights in property and, to the extent that the nature of the rights permits, to dispose of such rights’. The protection of private property by law was not inconsistent with ANC policy. During the negotiations, it had sought to protect the rights to property of its African constituency, which had been severely undermined by the apartheid state. But a general private property clause, entrenched in the Bill of Rights, threatened to frustrate the goals of wider land redistribution, as land was also regarded as property. Provision was also made in Section 28 for expropriation ‘for public purposes only … subject to the payment of agreed compensation or, failing agreement, to the payment of such compensation and within such period as may be determined by a court of law as just and equitable’. This was still not enough. ‘Public purposes’ are generally regarded as limited to governmental purposes, which meant that expropriation could not be used for broader redistributive aims. There was also a provision for individuals and communities to claim land, subject to compensation paid by the state. It was envisaged that these would be spelt out in legislation. Several provisions in the Interim Constitution severely limited the ability of the state to achieve expansive changes to apartheid’s configuration of landownership: these included the right to hold property, the use of expropriation solely for public purposes, and the exclusion of land from the general property clause. These clauses were completely changed in the final Constitution, passed in 1996. Section 25 of the final Constitution makes no provision for the right to hold property, expressly includes land as property, mandates the state to take measures to achieve equitable access to land, permits the state to expropriate property for redistribution purposes, and does not entitle an expropriated owner of land to full market-based compensation. The provision reads, in full: 25. Property 1. No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. 2. Property may be expropriated only in terms of law of general application a. for a public purpose or in the public interest; and b. subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court. 3. The amount of the compensation and the time and manner of payment must be just and

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equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including a. the current use of the property; b. the history of the acquisition and use of the property; c. the market value of the property; d. the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and e. the purpose of the expropriation. For the purposes of this section a. the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and b. property is not limited to land. The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress. A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress. No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1). Parliament must enact the legislation referred to in subsection (6).

PART III

Land Trials and Errors: Restitution, Redistribution and Tenure

9

Whither Restitution? The original sin? The return of the land. Mayibuye. Of all the claims in the struggle against colonialism and apartheid, the idea of the land’s return is the most venerated. At once it asserts both affinity and entitlement to the land. To the soil. Yet it is also a protest. The Dutch and British occupation of South Africa founded on might was illegitimate. Mayibuye protests this illegitimacy of conquest. The founding of the ANC was based on this promise to return the land. And so was that of its primary liberation rival, the Pan Africanist Congress. Yet the claim is pregnant with ambiguities. To whom should the land be returned? And from whom? While the property clauses of the 1993 Interim Constitution were seen by some as a clumsy compromise, it is worth noting its philosophical lens, whereby land was viewed as part and parcel of the right to equality. Landlessness was a proxy for inequality. Section 8(3)(a) stated that ‘every person or community dispossessed of rights and land before the commencement of this Constitution under any law which would have been inconsistent with subsection (2) had that subsection been in operation at the time of the dispossession shall be entitled to claim restitution of such rights’. An expansive section on the restitution of land rights to individuals and communities was provided in Section 121. While these were not part of the Bill of Rights, they were not insignificant. We have seen that under apartheid the state was a vehicle that drove millions of Africans from their land, creating areas for white settlement. In the new South African Constitution, the right of land restitution is against the state. Business under apartheid had reaped the benefits of the land, but not the risks. The final Constitution determined that historical claims to the land would be resolved through the restitution programme. Those who could prove that they were dispossessed of rights in land after 19 June 1913 had the right to claim for restitution of rights in land. The claims would not be made directly to the landowners, but to the state, which would first mediate between the claimant and the registered owner. If mediation failed, steps could be taken through a legal process to force the restitution, provided that just and equitable compensation is paid. Restitution was the ultimate victory in the struggle. Since the 1913 Natives Land Act, Africans could finally ‘return home’. The RDP set a target of 30 per cent for the redistribution of agricultural land in the first five years of the new democratic government. To test the model, some recent figures are necessary. In 2013, the state conducted a land audit. The director general of the Department of Land Affairs, Mdu Shabane, reported that their results showed that ‘some 14% is registered State land and 4% recently surveyed State land, while 79% is in private hands. Of this 79%, a significant percentage is owned by private individuals, companies and trusts. We are unable to identify foreign ownership because the system does not provide for that analysis.’1 A later audit in 2017 showed that ‘whites own 26 663 144 ha or 72% of the total 37 031 283 ha farms and agricultural holdings by individual landowners; followed by Coloured at 5 371 383 ha or 15%, Indians at 2 031 790 ha or 5%, Africans at 1 314 873 ha or 4%, other at 1 271 562 ha or 3%, and co-owners at 425 537 ha or 1%.’ The gender figures are equally untransformed: ‘Individual males own 26 202 689 ha or 72% of the total farms and agricultural holdings owned by individual owners; followed by females at 4 871 013 or 13%. Male-female own 3 970 315 ha or 11%, co-owners 655 242 ha or 2%, and other 1 379 029 ha or 3%.’2 The outcomes of this audit were disputed by the South African Institute of Race Relations. Its main claim was that the methodology did not account for restituted land or land acquired through the redistribution programme. If that land was added, it argued, a ‘far more balanced picture’ would emerge.3 Yet there are two problems with this argument. The overwhelming majority of restitution claims are not individual claims; they are claims involving large numbers of people. Adding them to the figures hardly changes the picture of finalised individual land claims. Further, urban restitution claims have tended to be settled by financial compensation rather than resettlement.4 Accounting for these simply changes the entry on the land balance sheet; it hardly places land in the hands of the claimants. The stubborn reality is that landownership patterns still reflect a bias in favour of white people. What was envisaged in 1913 remains the truth today.

Official explanations for the failure

Why is this the case? In 2019 the Constitutional Court decided a case about the slow pace in resolving labour tenant claims.5 But it reflected on land reform generally. Setting land reform at the centre of the country’s future, the court lambasted the state for placing in jeopardy the ‘constitutional security and future’ of South Africa. Little had been achieved in the first twentyfive years of freedom to undo the legacies of centuries of conquest, the court noted. The reason was the state’s ‘failure to practically manage and expedite land reform measures in accordance with constitutional and statutory promises’. The consequence was to ‘profoundly [exacerbate] the intensity and bitterness of our national debate about land reform’. The Constitution, the courts and the laws were not to blame. At fault was the ‘institutional incapacity of the Department to do what the statute and the Constitution require of it’.6 The court is not alone in laying blame at the feet of the state. In November 2017, former president Kgalema Motlanthe delivered a report by the High Level Panel on the ‘Assessment of Key Legislation and Acceleration of Fundamental Change’. On the subject of land, it delivered a devastating critique of the state’s performance in the settlement of restitution claims. It found that despite the cut-off date for land claims being 1998, to date there were more than 7 000 unsettled claims and over 19 000 ‘old order’ claims that were yet to be finalised. As the Constitutional Court noted, The Panel exposes the extremely slow rate of restitution claims, concluding that it will take up to 35 years to finalise all old order claims, 143 years to settle new order claims and, if land claims are reopened, up to 709 years to complete land restitution. Institutional capacity is evidenced in lack of skills and capacity, overlapping and conflicting claims, and inconsistent monetary awards. A possible explanation for these shortcomings is the lack of sufficient resources. However, the budget for land restitution has been consistently underspent; this evidences how severe problems lie in implementation and the capacity of the system itself.7

There is yet another feature of the land story: chronic, systemic and endemic corruption. There is corruption among claimants, landowners and state officials. In 2018, the Special Investigating Unit (SIU), one of South Africa’s corruption-busting institutions, presented its findings and recommendations on fraud, corruption and maladministration in the land reform programme. Its basic conclusion was that the entire system of land reform was rotten from the bottom up. The SIU examined 148 individual land reform projects between 2011 and 2017, and found that one in four was fraudulent. There were also bogus beneficiaries, often using ‘rent-a-crowd’ schemes. In one of the more egregious cases, the SIU reported that grant applicants represented to the Department that 49 individuals were to benefit from the grant concerned and/or be intimately involved in the farming project and/or obtain meaningful rights in the land concerned (and hence effect land reform), the only real intended applicant/beneficiary was … the initiator of the grant application and his family. Almost all the other applicants/beneficiaries constituted a ‘rent-a-crowd’. The abovementioned misrepresentation impacted materially on (inter alia) the value-for-money and feasibility of the project criteria concerned, which resulted in the Department, having been fraudulently induced to approve and pay the grant.8

In other cases, it found that there were gross misrepresentations in the prices of the land acquired by the state for resettlement, with one having been overvalued by around 100 per cent. The state did not contest these findings. Purporting to act in terms of the SIU’s recommendations, it announced that some fifty-eight farms would be returned. No further actions were announced, nor was any evidence presented that any farms had in fact been returned to the state. Corruption, it seemed, had captured the land reform project.

Are there structural flaws? Corruption, inefficiency and bureaucracy are seductive explanations for the failures of land reform. Not only do they condemn the state, but they also imply immediate solutions. We may consider removing the current minister or director general, or even replace the entire Commission on Restitution of Land Rights with a brand-new organisation that will be less corrupt and more efficient. We may also prosecute all those fingered in corruption. A combination of these steps might finally place the land in the hands of rightful claimants. But as tantalising as these solutions sound, they are only tentative. A fuller picture can only emerge upon a structural analysis of the land restitution programme. Only then would we know whether the alleged misconduct of the programme’s managers is a full explanation of the restitution quagmire. Theunis Roux, a former professor of property law at the University of the Witwatersrand, has urged that we should locate the land reform programme in the political economy of the transition.9 Roux has commented on the Truth and Reconciliation Commission as a political model designed for the transition. A unique attribute of the TRC was that it allowed victims to face the perpetrators of the crimes they had suffered. One of its advantages was that the truth about the violations of human rights could be ventilated. If financial reparations were paid, they could take place alongside a larger scheme of psychological reparation for the pain of the

violation. Not so for the pain caused by forced removals. The model placed the state at the centre. Perpetrators of human rights violations in the form of dispossession were shielded from coming to terms with the continuing trauma of their past actions. In its legislative design, the process of restitution begins with a claim lodged with a state body, the Commission on Restitution of Land Rights, which must conduct a preliminary investigation. If the claim can be settled, the mediation is conducted under the auspices of the commission. The state acts as guarantor for payments to either the claimants or the landowner. Landowners can ask the state for the market value of their land, which is usually paid. If actual restitution is not feasible, the state guarantees a cash payment for the claimant. Not only do the landowners never have to face the dispossessed, but they also do not have to make any financial contribution to the resettlement. Where market value is paid, they may in fact make a handsome profit from the enterprise. The scheme, facilitated and funded by the state, hardly accounts for the grief, the trauma and the pain of dispossession. It is entirely transactional. The consequence is that there is no scope for the truth to be unearthed regarding the circumstances of the dispossession. If any truth is told, it is often under the acrimonious conditions of a court trial. When I interviewed Dumisa Ntsebeza, former lead investigator for the TRC, he recalled that there were voices in the commission who argued that gross violations of human rights, the main business of the TRC, should include an investigation into land dispossession. ‘But these were quickly squashed,’ he said. ‘Some used the scapegoat of the limited life-span of the commission. Ultimately the view which prevailed was that the mandate of the TRC should be read in a narrow way, to take into account other instruments, like the restitution of the land process.’ With hindsight, Ntsebeza now thinks the country missed an opportunity to subject beneficiaries of forced removals to the same searching scrutiny as those involved in other human rights violations. The political decisions surrounding land restitution included establishing a cut-off date for the land claims, for which 1913 was chosen. The reason for this is self-evident, since this is when the Natives Land Act was passed. Yet this still begs questioning, as there were many contenders. Why not 1910, the year of the Union of South Africa’s formation, or 1894, the year of the Glen Grey Act? The state’s White Paper on South African Land Policy, published in 1997, contains several justifications for the selection of 1913. It begins by noting the state’s belief that it is not possible to address pre-1913 claims ‘through a judicial process such as that laid out in the Restitution of Land Rights Act or Aboriginal Title Arguments that have been used in countries such as Canada and Australia. In South Africa, ancestral land claims could create a number of problems and legal-political complexities that would be impossible to unravel’.10 The paper argued that since historical claims are justified on the basis of membership to a ‘tribal kingdom or chiefdom’, this ‘would serve to awaken and/or prolong destructive ethnic and racial politics’. The paper warned of ‘overlapping and competing claims where pieces of land have been occupied in succession by, for example, the San, Khoi, Xhosa, Mfengu, Trekkers and British’. The merit of these arguments is highly dubious. Ancestral claims are just as complex as any others that are based on community or family memberships. What determines their validity is not the date of dispossession but the quality of evidence available. It is not obvious that the more recent a claim, the easier it is to prove. Nor does it follow that older claims or dated claims are difficult to prove. Stories of dispossession during the 1800s were carefully written down by the colonisers, recorded in books and archived. Arguments about how difficult it is to excavate evidence in support of ancestral claims are exaggerated and unpersuasive. Justifications based on competing and overlapping claims are equally unattractive. All claims, including those after 1913, face the same risk. Arguments in favour of the 1913 cut-off are weak. The date makes sense only if it is seen as one of the compromises during the transition, as it was attractive to both parties at the negotiating table. Its disruptive effects would be minimal. White landowners could live with the 1913 cut-off, because by then the wars of dispossession were over. In the Cape, the last Frontier War – known as Ngcayechibi’s War – was fought in 1878. In Zululand, the last war was in 1879. In the Transvaal, King Sekhukhune I, the greatest symbol of African resistance to colonialism, died in 1882. The Orange Free State had fallen into Boer hands long before 1913, by which time rights to the land had been firmly cemented. This, of course, is not to downplay the significance of 1913. The Natives Land Act formalised land conquest, giving it the imprimatur of law. At the same time, the ANC could accept this bargain because its own struggle for freedom was tied up in this Act. There was an element of symbolism in agreeing to a policy that confined the date to 1913, not before. Land claims beyond the restitution process could be referred to the redistribution arm of land reform, it was hoped. Thus, at the outset, the potential of the land restitution project was limited by a predetermined date that excluded the vast majority of the dispossessed from reclaiming land. Constrained by economics, politics and legislation, land claimants could perhaps look to the courts for assistance. But the design of the land claim adjudication process places a state institution, the Commission on Restitution of Land Rights, at the centre rather than the claimant. As a result, land claimants often have to force the commission to take their matters to court after numerous unexplained delays. One such case involved the Kusile community in KwaZulu-Natal, which lodged a restitution

claim in 1998. The commission did nothing about the matter until 2004, when it confirmed that the claim was valid. And it did nothing again until 2009 when it was forced by the claimants to take the matter to court. When the case proceeded in 2010, the file was in a shambolic state, leading the court to remark that ‘the Commission, as an organ of state, bears an obligation to ensure that the work of this court is not impeded by inadequate investigation and that time is not unnecessarily spent on claims which, in the form in which they were referred to the Court by the RLCC [regional land claims commissioner], can manifestly not succeed. The RLCC failed in this duty.’11 If the economic, political and legal infrastructure of the restitution process is framed in a way that works against the interests of the dispossessed, it might legitimately be asked whether it should not be discarded in its entirety. Professor Ben Cousins, an expert in land matters, has made an explicit case for the closure of the restitution process. He suggests that the restitution programme was probably a mistake and proposes that the majority of claims should be resolved not by resettlement but through cash compensation. This is because the process is ‘complex, cumbersome, conflict-ridden, expensive, consumes scarce capacity and yields few sustainable benefits’.12 He also points out that given that relatively few claimants desire to be producers on the land, it may be wise to seek closure by the payment of compensation through standard settlement offers, as is done for most urban land claims. ‘In some instances, where it is clear that claimants genuinely want to farm, restoration of at least some of the land should be considered, and in some contexts joint ventures with private-sector partners will make sense. The department needs to focus primarily on land redistribution and tenure reform, the most important thrusts of land reform.’

The fate of land restitution Should the state abandon the restitution programme? We should remember why it was started in the first place – as part of a land reform policy that speaks directly to the injustice of dispossession. It answers what the struggle was about. It provides succour to victims of injustice. But not just any act of injustice: the forced removal of a person through colonial or apartheid decisions and laws. It makes visible and tangible the concepts and notions of struggle. Restitution gives dispossession a human face. A hundred years after the initial act of forced removals, families still celebrate their return to the land. In this sense, restitution is about more than the material benefits that come from using land productively. It is about memory, the public affirmation that black people’s pain matters, and the restoration of lost identities. This is why land restitution shall remain the most contentious and the most important of the land reform programmes.

10

Inequality in Land Redistribution On structural violence Land deprivation in South Africa runs deep. It is also structural. The term ‘structural violence’ best describes the lack of access to land by the majority. According to Norwegian sociologist Johan Galtung,1 structural violence occurs where some social structure or social institution harms people by preventing them from meeting their basic needs. Institutionalised classism, ethnic discrimination and racism are examples. Structuralism, as discussed by Todd Landman,2 focuses on reified structures that constrain or facilitate social actions in a way that individuals are not completely free to make their own rational choices. Instead, individuals are embedded in relational structures that shape their identities, interests and interactions. While these structures are not definite, they provide possibilities for and limits on how we can act. The structures manifest in state institutions, but they can also be business organisations, such as banks. What is the degree, for instance, to which banks determine access to land? And if banks have decided to deny access to credit, is it realistically possible to live a financially comfortable life? The extent to which individuals can act independently – in this case, despite the conduct of banks – is structural. Galtung’s definition of the term ‘violence’ is instructive: ‘when the potential is higher than the actual is by definition avoidable and when it is avoidable, then violence is present’.3 So, a denial of access to resources does not per se constitute violence. It is violence only when it is avoidable. As Galtung explains, ‘A life expectancy of thirty years only, during the neolithic period, was not an expression of violence, but the same life-expectancy today (whether due to wars, or social injustice, or both) would be seen as violence according to our definition.’4 The question of what constitutes a ‘comfortable life’ is both controversial and relative. But the power of structuralist theory is in pointing us to the importance of both governmental and non-governmental structures that determine our access to resources, and hence constrain or facilitate independent human action. Access to land in South Africa fits Galtung’s structuralist framework. Our land redistribution programme is heavily influenced by a powerful agricultural landowning elite. Unlike the claimant-driven programme of restitution, the current system of redistribution is driven by landowners. They decide which land is sold, whether by direct negotiation, advertised sales or auction. Landowners decide the conditions of sale under the willing-seller, willing-buyer model. This means that the price is set by the seller, not the buyer. The buyer’s choice is to forgo the transaction if they do not like the price. Owners also decide to whom they wish to sell their land. There is no compulsion for them to sell to the state, regardless of the country’s land needs. They also decide what the land is used for, including the type of farming that is undertaken on it. Beneficiaries are also often victims of competence stigma, which makes them dependent on landowners for ‘training’ and ‘skills transfer’. In these ways, the entire redistribution value chain is dominated by landowners. It is not hard to spot the pitfalls of this system. Landowners will act in their own interests, not those of the state or the beneficiaries of land reform. Beneficiaries will never truly be independent from the tutelage of landowners. The state remains a spectator, playing no more than the role of funder. Nor is it hard to see that only the state can rebalance the scales. The problem, of course, is that the flaw is in the design: a market-driven land acquisition and distribution programme was never part of ANC policy. And it is not included in any of the post1994 laws, including the Constitution. The willing-seller, willing-buyer approach to land acquisition was promoted by the World Bank and embraced by the South African government shortly after 1994. Only in recent times have there been efforts to reconsider this policy. Yet despite this, official state policy on land acquisition and distribution remains the same, based on the idea of a willing seller and a willing buyer.

Thinking about redistribution What problem are we trying to solve by land redistribution? At a macro level, the problem is the claim to ownership of the country. The Freedom Charter declared that ‘South Africa belongs to all who live in it, black and white’. This is a hollow promise if the majority are deprived of access to land. Yet to make the discussion meaningful, we must localise our focus. The specific problem to be solved is inequality. Not an abstract notion of inequality but gendered and racialised inequality. Although tempting, it is deceptive to refer to ‘past’ inequalities. But while the origins

of inequality might be historical, the effects are ongoing. In 2018, the World Bank delivered a sobering report on the state of South Africa’s economic ‘progress’ since 1994, when the ANC took office. Noting that South Africa is one of the most unequal countries in the world by any measure, the World Bank found that for about 76 per cent of the population, poverty is a menacing threat to their lives: Nearly half of the population of South Africa is considered chronically poor at the upper-bound national poverty line of ZAR 992 per person per month (2015 prices). This segment of the population is characterised by high poverty persistence. A second segment of the population has an above average chance of falling into poverty (the transient poor). A third segment, the nonpoor but vulnerable, face above average risks of slipping into poverty though their basic needs are currently being met. These latter two groups made up 27 percent of the population. Combining these two groups with the chronic poor suggests that for about 76 percent of the population, poverty is a constant threat in their daily lives.5

Race, gender and income disparity are some of the factors that explain the depth of South Africa’s inequality, with black Africans being at the highest risk of being poor. Children, large families, and people living in rural areas are especially vulnerable to remaining impoverished for long periods. Poverty is also gendered; the incidence of poverty remains higher for women. In terms of regional statistics, most municipalities in the twenty poorest local municipalities in 2016 were in the Eastern Cape, Limpopo and KwaZulu-Natal. Of these, the ten poorest municipalities were in the former homelands, highlighting the enduring legacy of apartheid.6 Asset distribution is also a strong indicator of net wealth inequality: For the poor, the financial assets represent 36 percent of total assets, while among the rich, financial assets represent 75 percent. Similarly, poor households have a very small share of mortgage in total liabilities (about 7 percent), while for the rich this share is close to 58 percent. Ownership of financial assets features prominently among the factors that influence wealth inequality.7

Wealth and poverty transfer across generations: at least a third of all children born to very poor parents will likely remain poor, while children of rich parents will likely become rich themselves.8 While the World Bank argues that the fiscal space for asset redistribution is limited, instead preferring investment in education and skills, it accepts that redistributive policies remain central to redressing the ongoing legacies of apartheid. The International Labour Organization has noted that structural inequalities cannot be resolved by labour and market policies alone. Land reform policies ‘designed to help the poor to care for themselves and their offspring’ are part of the reforms necessary to address inequality.9 For its part, the ANC has always seen land redistribution as contributing to its larger social transformation of South Africa. Its RDP initiative perceived land redistribution as one of the instruments to generate ‘large-scale employment, increasing rural incomes and eliminating overcrowding’. The term ‘redistribution’ was viewed as being about access to ‘residential and productive land to those who need it but cannot afford it’. Land could not be acquired through reliance on the market, but both market and ‘non-market’ instruments – including land expropriation – would be used. This was consistent with the ANC’s ‘Ready to Govern’ document, which also considered the redistribution of land as one of the prime instruments to eliminate land hunger and poverty in the country. Yet as the World Bank report implies, land redistribution will not solve poverty and inequality. But the argument in favour of large-scale redistribution is not based on the belief of land redistribution as a magic wand. Rather, the intention is to contribute, albeit modestly, towards reducing the extreme inequalities characterised by landlessness. Apartheid capitalism left a legacy of extreme structural inequality. According to Edward Lahiff and Guo Li, in 1994 approximately eighty-two million hectares of commercial farmland (86 per cent of all farmland) was in the hands of the white minority (10.9 per cent of the population) and concentrated in the hands of approximately 60 000 owners. Over thirteen million black people, the majority of them poverty-stricken, were in crowded homelands with tenuous rights to the land.10 In what ways, then, might redistribution goals be achieved in light of the extreme challenges it faces? Let us turn to the acquisition of land.

Which land? Until the White Paper on South African Land Policy in 1997, the ANC never seriously considered that land acquisition would be driven by the market alone, favouring a central role for the state in land acquisition and redistribution. It was also clear that given the acute shortages in land availability, relying on the market would simply never deliver land to the many who needed it. But the White Paper endorsed the willing-seller, willing-buyer approach: ‘Redistributive land reform will be largely based on willing-buyer willing-seller arrangements. Government will assist in the purchase of land, but will in general not be the buyer or owner.’ Quite apart from the endorsement of this model by the World Bank, it was also consistent with the general economic policy-thinking at the time, as exemplified by the adoption of the muchcriticised Growth, Employment and Redistribution (GEAR) programme in 1996, which was seen

as a triumph of neoliberal economics. Sampie Terreblanche referred to it as part of the ‘elite compromise’ that excluded the possibility of a comprehensive redistribution policy. Thus, from the outset, the land reform programme’s distributive potential was constrained by an overarching economic policy. GEAR did not spell out a comprehensive vision for land; it simply noted that the land reform programme ‘combining asset redistribution with enhancement of tenure has an important role in improving the long-term prospects for employment and income generation in the rural economy’.11 How the state acquires land for distribution looms large. The decisions as to which land should be available for acquisition are taken entirely by landowners, with no state participation. Three primary modes are used. Direct transactions, auctions and open sales. But each of these are controlled by the landowners. State policy speaks of acquiring land in ‘nodal areas and in the identified agricultural corridors and other areas of high agricultural potential to meet [government] objectives’.12 But there is no explanation of how the state decides which projects have ‘high agricultural potential’. It was not always the case that the state bought land for beneficiaries. Shortly after 1994, the state’s Settlement and Land Acquisition Grant focused on enabling groups of landless poor to purchase land using a state grant that was equivalent to the amount of the housing subsidy. But this amount was too low, leading people to buy land jointly. And there was no developmental finance either. As expected, land and agricultural projects in terms of this scheme largely failed, and the programme was abandoned. In 2001, the Land Redistribution for Agricultural Development (LRAD) initiative was introduced, which would provide grants of between R20 000 and R100 000. Like its predecessors, however, this was later abandoned as being inefficient. The current programme, the Proactive Land Acquisition Strategy (PLAS), purports to remedy the failures of past policies, but it is bedevilled by the very same problems. The system of land identification through landowners has proven to be a failure. The country is far behind its targets for land redistribution. In its RDP document, the ANC’s target of redistributing 30 per cent of the country’s agricultural land by 1999 was the anchor point. But this target was missed, revised to a later date, and then missed again. The likelihood of achieving this goal in the next thirty years on the current trajectory is nil. This would mean that in the first fifty years of freedom, less than 20 per cent of land would have been transferred to black hands. Yet the answer to identifying land is not far from our grasp: the state and the landless, rather than the landowners alone, should participate in deciding which land is made available for sale.

How much? Landowners set the price for land. This is an inevitable consequence of the willing-seller, willingbuyer approach. The theory is that the land price is decided by reference to what a willing buyer would have been prepared to pay for that land on the open market. It also embeds several assumptions: the seller is acting voluntarily, the buyer makes them an offer by participating in an open market, and that market enables both the seller and the buyer to transact a fair deal. But how would they know if the price should be R50 000 or R100 000, as they both proceed without knowing the true value of the land? In this model, they should compare similar prices for properties in the same area to arrive at a figure. Most of this work is not done by actual sellers and buyers. It is left to an industry of valuers, lawyers and property agents who crunch the numbers. The willing-seller, willing-buyer system has become part of the fabric of land sales. It is inscribed in legislation, such as the Expropriation Act of 1975, as ‘the amount which the property would have realized if sold on the date of notice in the open market by a willing seller to a willing buyer’. It has also been endorsed in the post-apartheid era, as the White Paper on South African Land Policy also speaks of ‘a price which is comparable with recent sales in the locality and one which is endorsed by an independent valuer’.13 But it is fair to say that the idea of the willingseller, willing-buyer model, which relies on comparable prices, is currently under severe pressure. Its proponents say that its demise will spell the collapse of the property market. In its early days, the Land Claims Court also gave a front-row seat to the idea of market value by describing it as ‘readily quantifiable’.14 This view has persisted: a judgment by the Constitutional Court in 2005 was in line with this position.15 And in 2012, the Land Claims Court returned to the subject, this time adding that market value was the ‘most practical’ means of determining compensation to an owner of property.16 Judges of the Union and apartheid eras, however, were quite dismissive of the idea of market value in expropriation cases. They would have been a little puzzled at how the post-apartheid state has venerated the fiction of willing-seller, willing-buyer to fix the problems of forced removals and massive internal dislocations. Take the 1911 case of Pietermaritzburg Corporation v. South African Breweries Ltd, which outlined the general position that in an expropriation, the valuator’s determination of a number was an estimate: ‘There being no concrete illustration ready to hand of the operation of all these considerations upon the mind of an actual buyer, he would have to employ his skill and experience in deciding what a purchaser, if one were to appear, would be likely to give. And in that way he would to the best of his ability be fixing the exchange value of the property.’17 The same concern appears in the case of Minister of Agriculture v. Estate Randeree, decided in 1979.18 The minister of agriculture had expropriated

vacant land, and a dispute arose concerning the amount offered as compensation. The court stated that expropriation by definition postulates not only a willing purchaser but also a willing seller. Yet there is no willing seller; there is only one willing buyer, namely the state. When deciding on a price, property valuers really guess the amount. And there is also no possibility of using expropriation figures for comparative purposes, since these tend to be onceoff acquisitions for specific instances. Market value in expropriations is really a myth. This is apparent in the 1972 case of Todd v. Administrator, Natal, where the government expropriated three properties belonging to an individual owner. Only the amount offered as compensation was challenged. The court questioned the applicability of the notion of the open market for expropriation cases. For the court, it was obvious ‘that when a situation arises where there is only one potential purchaser, viz., the expropriating authority itself, there can hardly be said to be an “open market” in which the value of the property can be determined’ by reference to an open market, as required by legislation.19 The court should therefore determine the value of the property, with such potential as it has, in the same way it would have done if there had been several possible purchasers. In other words, it must ignore the fact that there is only one potential purchaser, and it must assume that there is an open market. But we do not have to use the willing-seller, willing-buyer model. It is not required by the Constitution, which instead instructs the use of a just and equitable formula. Market value is a feature in assessing justice and equity, but it is not a primary feature. Nor is it clear that a ‘price’ is intended, as the language speaks only of ‘compensation’. This may mean that non-financial compensation is appropriate in specific cases. Notably, the Restitution of Land Rights Act of 1994 states that one of the factors to be taken into account in providing ‘equitable redress’ to a claimant in a land claim is whether they received ‘an appropriate right in alternative state-owned land’. Alternative land could be adequate compensation in the event of compulsory acquisition by the state. This is not a motivation to pay no compensation; the point is the nature of the compensation that the Constitution envisages in installing justice and equity as the yardstick. In the ultimate analysis, the justification for a market-related willing-seller, willing-buyer approach is paper-thin. It is reflective of our landowner-led redistribution system. Rejecting this requires a fundamental shift in mindset. To apply Section 25 of the Constitution, the executive should pass policy. While landowners should not have veto powers over land prices, they should know the state policy on compensation. The Constitution provides the baseline. Yet certain policy pronouncements remain to be made. Such policy should, in my view, include the following elements: First, it should appreciate the constraints of the willing-seller, willing-buyer paradigm and reject it. Second, it should embrace a no-compensation approach, not on a blanket basis but for certain targeted categories of property. Third, it should create a flexible regime that might allow for the use of market value as a basis for compensation in appropriate cases. Fourth, it should delink expropriation from the payment of compensation. Constitutional Court authority already exists that provides ample justification for the view that property vests in the state at the time of its expropriation, not when compensation for it is paid.20 Fifth, it should instate clear administrative procedures when compensation decisions are to be made. Current policy continues to prefer market-based solutions. Land acquisition solutions are based on selling price, valuation, expropriation or auction price. No further clarity is given when land is acquired via expropriation. Yet the design of a compensation policy requires further thought. The overarching legislation on expropriation is from 1975, which is administered by the Department of Public Works, not Land Affairs. This is a continuation of past practices, where the custodian of all state property was the Public Works Department. Under apartheid, the tool of expropriation was primarily used to acquire land and property for state ownership. The new Constitution changed this. Now, expropriations are also a state instrument to acquire property for ownership by third parties, especially in the context of land reform. The Constitution acknowledges this by drawing a distinction between ‘public purpose’ and ‘public interest’ expropriations, with the former being for state ownership and the latter being for the benefit of landless people. This change signifies the need for a redesign of the Expropriation Act, including its political location. Rather than fixing the old Act to render it applicable for expropriations in the public interest, it must be accepted that a new one is necessary, specifically focused on expropriations and land acquisition for land reform. The Expropriation Act must remain the legislation used to acquire properties for state ownership rather than for the general public interest. In this way, the mandate creep and policy duplication between the land and public works ministries can be avoided.

What is the land used for? South Africa’s land redistribution policy focuses on the agricultural use of land. This is at the expense of urban land. However, the White Paper on South African Land Policy had a much more expansive vision of land, holding: The purpose of the Land Redistribution Programme is to provide the poor with land for residential and productive purposes in order to improve their livelihoods. The government

provides a single, yet flexible, redistribution mechanism which can embrace the wide variety of land needs of eligible applicants. Land redistribution is intended to assist the urban and rural poor, farm workers, labour tenants, as well as emergent farmers.

Missing from the current frame of redistribution are the needs of the urban poor. This is surprising, as the ANC has always been concerned about this segment of the population. The RDP’s aim was to supply ‘residential and productive land to the poorest section of the rural population and aspirant farmers. As part of a comprehensive rural development programme, it must raise incomes and productivity, and must encourage the use of land for agricultural, other productive, or residential purposes.’21 Although urban land tends to be lumped together with rural land, it is crucial to understand the urban context. Two distinct problems are present: homelessness and apartheid spatial planning. These are products of the past. Spatial planning was not, as is sometimes assumed, simply about residential segregation. It was also intended that Africans living at the edges of urban areas would provide a constant supply of labour to the urban centres. The Housing Act of 1920 created the Central Housing Board. While its mandate did not require it to consider race, in practice it approved housing schemes according to racial groups, which created publichousing segregation. One of the early laws providing for Africans to reside near urban areas was the Natives (Urban Areas) Act 21 of 1923, which provided strict control of African labour through the enforcement of pass laws, and which thus controlled access to urban centres. Its long title misleadingly claimed that the intention was to provide for ‘improved conditions of residence for natives in or near urban areas’, but its contents showed otherwise. Africans were prohibited from holding land in freehold title in urban areas. Any employer of more than twenty-five Africans had to provide a hostel or ‘hire accommodation … in a location’. The legislation recognised only three types of ‘native accommodation’: native villages, native hostels and native locations, which could be located at the discretion of the governor-general within accessible distance from urban areas. A commission of inquiry heard in 1944 how this law benefited mining companies: It is clearly to the advantage of the mines that native labourers should be encouraged to return to their homes after the completion of the ordinary period of service. The maintenance of the system under which the mines are able to obtain unskilled labour at a rate less than ordinarily paid in industry depends on this, for otherwise the subsidiary means of subsistence would disappear and the labourer would tend to become a permanent resident upon the Witwatersrand with increased requirements.22

The case of Komani v. Bantu Affairs Administration Board exposed the impact of the pass law system on family structures.23 Male workers left their wives and children in the homelands. According to the submission of the ANC to the TRC, ‘Women who accompanied their husbands to the urban areas but who could not live with them in the hostels and did not have jobs of their own, were “endorsed out” by law and sent back to the homelands.’24 These laws were repeated throughout the apartheid era, including in the 1980s. Accompanying spatial planning, the apartheid government did not invest in black locations, resulting in their overcrowding and impoverishment, which has persisted beyond the end of apartheid. When the Natives (Urban Areas) Consolidation Act of 1945 was passed, a new concept was introduced: the ‘rural township’. Only Africans could live in these townships. But a unique element of this law was the criminalisation of any transaction of land in ‘native areas’ involving a person ‘other than a native’. The sanction for breaking this law was a fine or imprisonment. Among the first laws of the apartheid government was the Group Areas Act of 1950, the essence of which was to render Africans sojourners in the country. Africans were forced to move, but no alternative land with the same rights to freehold was offered to them. Nor was there enough time to make transitional arrangements, as bulldozers soon closed in on those who refused or delayed to move. There were material and financial losses as well. The ‘basic value’ of immovable property to be expropriated previously included the land’s value as well as the value of any buildings on that land. But the Group Areas Development Amendment Act of 1959 stipulated that the basic value of a building must not exceed the difference between its market value as an integral part of the land and the market value the land would have had if the building had not existed. In other words, the value of a structure on a piece of land was the same as the value of that land if no structure existed. The state claimed this was to prevent speculation on land prices once it was known that the land was subject to expropriation. Yet some whites profiteered from the Group Areas scheme, as the Act laid a blueprint for a racialised property market.25 When viewed as an essential element of apartheid, one of its consequences was homelessness, which is also a feature of many urban centres in the world. But in South Africa part of the problem is the racialised nature of homelessness. Land redistribution’s prime goal in urban areas is to redress the legacies of racist planning and property deprivation. Key elements that continue to define this deprivation include weak occupation rights, a lack of access to decent housing, homelessness and apartheid spatial planning. Our land acquisition and redistribution policy, which privileges agricultural land, fails to contend with the true effects of

grand apartheid.

Who benefits? Precisely who benefits from land redistribution? For restitution, the answer is clear: land claimants who meet the statutory criteria. Not so for redistribution. There is no legislation spelling this out. The PLAS policy sanctions the ‘warehousing’ of land, where land is acquired ‘without pre-selection of beneficiaries’. Certain categories of possible beneficiaries are named: households with limited access to land, ‘even for subsistence production’; small-scale farmers who intend to farm and sell for subsistence; and medium- to large-scale commercial farmers who have acquired experience in farming but intend to expand or who are disadvantaged by location. Experience, however, has shown that the rural poor and genuine small-scale farmers are left out. Like mining, land redistribution is biased in favour of big agricultural businesses. Black businesses in some sort of ‘black economic empowerment deal’ with established commercial partners will likely receive substantial and meaningful state support. The gendered nature of access to land receives no mention in the PLAS policy. In 1994, however, the ANC had noted that ‘women face specific disabilities in obtaining land. The land redistribution programme must therefore target women. Institutions, practices and laws that discriminate against women’s access to land must be reviewed and brought in line with national policy. In particular, tenure and matrimonial laws must be revised appropriately.’26 Since then, women beneficiaries in the land redistribution programme have consistently lagged behind men in each province without exception. Between 1994 and 2017, out of 308 000 individual beneficiaries of land redistribution in the country, only 71 253 have been women. This was consistent in each province, as is shown in the table below. Land beneficiaries by province, 1994–2017

It can safely be concluded that post-apartheid land redistribution has not only favoured men but has also discriminated against women. The point of significance is that this is not a policy problem. State policy is explicit about the need to advance the interests of women as a marginalised group in land redistribution. To understand the marginalisation and discrimination of women in a programme that ostensibly favours them, we should focus on how its structure replicates and reproduces the same apartheid patterns, even as it claims to be undoing them. The state’s role might appear dominant on paper, but it is vastly limited in practice. In reality, the ‘choice’ of beneficiary is made by landowners. That so few women have benefited from land redistribution is reflective of the power wielded by white men who dominate commercial agricultural land. While they have been willing to cede some ground to black men, they have not been willing to do so for black women. In some cases, land that has been bought with beneficiaries in mind and has been ‘warehoused’ by the state for later distribution. While this idea might present opportunities for favouritism and corruption, there is no evidence that the state actively seeks to promote the interests of women. Part of the explanation is stigma: the perception that landholding is not for women. It is not the point of this chapter to prescribe criteria for choosing who benefits from land redistribution. The point is to highlight the fault lines in how the system operates, even if unintended. Land redistribution carries with it the greatest transformative prospect of all the state’s land reform programmes. But that potential is restricted by its haphazard, unstructured and perhaps corrupt allocation of beneficiaries. It is only if the right land, at the right price, goes to the right people that the programme can have a positive impact and realistically meet its goals.

After the party: Problems of post-settlement

A final element we should consider is what happens to the land after it has been transferred to the beneficiaries. Some have questioned the very idea, arguing that the state should have no interest in land usage beyond its transfer: the interest of the state should be limited to ensuring that people who were dispossessed of land can hold property. There is an attractiveness about this argument, the foundation of which is the dignity of the land reform beneficiaries. Just as the state would have no interest in a new owner of land sold on the open market, why would it be different for land acquired through state assistance? The argument takes us back to where we began. What problem are we trying to address? Two aims of land redistribution have been identified: correcting past wrongs and contributing towards the elimination of gross inequality. The redress of inequality should be measurable. According to the government, the key indicators of success in land redistribution include an increase in production, an improvement in food security, the graduation of small farmers into commercial farmers, and the creation of employment opportunities within the agricultural sector. The state should know if its land redistribution strategy is contributing to increasing incomes, reducing hunger and correcting the wrongs of the past. For this reason, its interest in land usage after transfer is more than parochial. But there is a further reason. Land acquisition is a collective effort rather than an individual one. When the state acquires land for redistribution, it does so on behalf of everyone, even if there is only a single beneficiary. We retain an ongoing interest in the employment of public resources. The state owes us accountability with respect to the expenditure of public funds. The harm in eliminating the state is in how this would undermine public accountability as a social norm. Finally, in practical terms, land is not a selfgenerating asset. To realise value, it is often necessary to convert it into productive use, which requires labour, assets and investment. Often the beneficiaries lack these, and the state needs to step in to provide them. Despite the justification for state involvement after the transfer of land, evidence shows that the state is often absent. The work of ‘mentoring’ new farmers is left to landowners acting without any supervision. Sometimes they charge large fees. Yet the outcomes have been dismal. Ben Cousins has drawn unflattering conclusions about these ‘partnerships’ between small-scale farmers and large commercial farmers: Some of the partnerships established on fruit and nut farms in Limpopo have gone bankrupt, and others continue to struggle to pay any kind of dividend to community members. Small-scale farmers on irrigation schemes have had their fingers burned in poorly-managed joint ventures with tobacco and fresh produce companies. Many of the business plans drawn up by these partners have been far from appropriate, and have not provided useful instruments with which to measure the performance of beneficiaries of land reform.27

The future of the willing seller So far we have considered the failed land redistribution programme. It has not failed because it is market-driven. It has failed despite its fundamental adherence to market-based solutions. A greater reliance on market ‘forces’ simply lacks any credibility. Our fixation with market-based solutions has not produced the desired results. The solution, however, is not to replace an imperfect market with equally imperfect state institutions. When Mike Mlengana, the most senior official at the Department of Agriculture, Land Reform and Rural Development, resigned from his position in 2020, Farmer’s Weekly reported that his reasons for resigning included ongoing large-scale and widespread inefficiencies at all levels within the agriculture department; the department’s current structures and human capital not being geared for effective implementation of plans to develop and support South Africa’s agriculture sector; an ‘absolute lack of delivery knowledge and work ethic’ at all levels within the agriculture department; and the department’s leadership often voicing the will to tackle corruption, but then failing to hold each other accountable for this.28

This view confirms what many commentators have said all along. In 2013 Cousins cited the ‘inability of land reform officials to engage in planning to support the productive use of transferred land, or to critically assess the plans drawn up for beneficiaries by consultants’ as two of the key reasons for the overall failure in land reform.29 He asked if it was ‘credible, then, that officials will be able to undertake the varied and technically complex tasks required of them by the new policies’. His answer was that they couldn’t, at least in the short term. Yet he was not willing to allow for a wholly market-driven approach. This was because ‘market forces on their own tend to privilege the better-off’. This is true, as only deliberate interventions in favour of the poor will ensure we have a land reform programme that fulfils its potential to help address poverty and inequality. For this to happen, however, we need a capable state guided by a commitment to ending structural injustice. To do this, the state must also combat corruption.

11

Our Mysterious Land Tenure The allure of private property A place to call home. An address. Many people aspire to acquire a home. With it comes security: from eviction, from the weather, and from crime. A home also promises financial security. Debates about settling one’s mortgage versus investing in a car are common. A home is also perceived as an advancement in social and economic status. Not only does it provide financial security, but it also promises economic prosperity. Homeownership has become part of the fabric of South African life – the South African dream. The Americans once dreamt it too. Perhaps they still do. In 2007, Henry Louis Gates Jr, the well-known Harvard professor, observed that for African Americans, property was not just a symbol of prosperity and security; building a property-owning class was also the key to ending racial inequality.1 Ending discrimination by itself, he proposed, will not eradicate ‘black poverty and dysfunction’. What is needed is an ‘intervention to promulgate a middle-class ethic of success’. What might this intervention look like? Simple: ‘give property to the people who had once been defined as property’. This is so, Gates argued, because people who own property ‘feel a sense of ownership in their future and their society. They study, save, work, strive and vote. And people trapped in a culture of tenancy do not.’ The following year, however, the United States housing bubble burst. Poor people who had been made to believe in the homeownership dream suddenly found that houses were unaffordable, and many defaulted because of their declining incomes. This rippled across the American economy, and because of its centrality to the world economy, the negative impacts were experienced globally. Notwithstanding the housing crisis of 2008, the dream of homeownership lives on. Still emerging from years of apartheid and colonial exclusion from property ownership, the South African black middle class also aspires to homeownership, like their American counterparts. A study conducted in 2015 in the metropolitan municipality of Mangaung revealed some insights into black aspirations to property ownership. According to the study, ‘The aspiration to find an own place and the desire to have a bigger dwelling was a reason given by more than 50% of our respondents for moving from their previous to their current state … This confirms the importance of ownership for the new black middle class’s sense of identity.’2 The aspirations, however, are not matched by available resources. There is a shortage of affordable property. Incomes are not high or stable enough to meet the requirements of lenders for mortgages. Worse, racial prejudices influence access to bank loans. Our ancestors would be intrigued at our devotion to private landownership. A groundbreaking study by Ben Cousins in the Msinga area of KwaZulu-Natal shows that from time immemorial a system of ‘nested rights’ emerged among Africans, whereby access to land is a function of membership to different levels of rural society, ranging from one’s family and lineage to their village and wider community.3 The land rights of individuals within the family context are relative to those of other members of the family. Similarly, family rights ‘nest’ within those of the clan or local user group, which in turn nest or operate relative to those of the wider community. While these rights are strong and secure, they are not absolute, and their content depends on the rights of others. Today, the idea of holding land rights together with others in a nested system appears anachronistic. Professors Ruth Hall and Thembela Kepe note that for land claimants and beneficiaries of the state’s land reform programme, ‘private ownership is seen as the most desirable form of tenure’, much as how ‘for policymakers private ownership with registered title deeds seems to constitute the “gold standard”’.4 In fact, our entire ‘land reform policy’ is premised on the idea that land is to be individually owned, in absolute terms, to the exclusion of non-owners. Jurist William Blackstone once explained that the right to property is ‘that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe’.5 The worship of title deeds as the holy grail in land reform has also been aggressively fuelled by the state. In May 2018, President Cyril Ramaphosa launched what he called ‘title deed Fridays’. The intention was to hand out 11 000 title deeds to qualifying beneficiaries. Extolling the importance of title deeds, the president explained that ‘a house is the most important asset that one can own’. He argued that title deeds would benefit the economy of the country, as ‘handing over title deeds to people would infuse growth in the economy because people would own something they could use as collateral at financial services institutions’.6

Even where public funds are used to buy land for redistribution purposes, private ownership is the telos. In 2002 the state approved the Land Redistribution for Agricultural Development programme. One of its chief aims included assisting aspirant farmers with finances to purchase or lease farms. When David Rakgase, a black farmer with no land, applied for funding, he was subjected to a bureaucratic rigmarole until he went to court. In court papers, the state affirmed its adherence to private farm ownership and market fundamentalism. State funding, it explained, ‘was primarily intended to assist applicants to acquire farmland, and the policy promoted the acquisition of privately-owned commercial agricultural land’. When state funding is used to acquire farms, ‘the price is usually market-related’.7 Henry Louis Gates Jr was not the first to laud freehold title as the key to financial prosperity. In 2000, Peruvian economist Hernando de Soto wrote the influential book The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else. Writing about his experiences in South America, he argues that capital markets have failed in the developing world because many people do not hold formally registered title to land. Instead, land is held through informal means, such as communal associations. A lack of formal title – even where land is owned jointly – prevents people from using property as collateral. As a result, they are unable to unlock the capital that is found in land. Capital in land, in this sense, is peculiar. It works for some but not for the majority. The distinguishing feature is that some hold formal title and others do not. For those who don’t, land is ‘dead capital’. By registering it formally, land can be activated as productive capital, which can be traded in free markets. In this way, many people can be lifted from poverty. South Africa’s experience with formal title, however, does not prove De Soto’s theory to be true. To be sure, South Africa follows a formal titling model, ensuring absolute protection for those who hold land, either communally or individually. When Rosalie Kingwill, Ben Cousins and their co-authors investigated how De Soto’s theory applied to South Africa, it was found wanting.8 Recall that his theory depends on two assumptions: First, property can be held in formal title, to the outright exclusion of others. Second, banks will lend to people who can produce formal title, which will serve as collateral. But between 1997 and 2000, Joe Slovo Park, ‘a well-located, vacant piece of land in Cape Town owned by a parastatal company’, was subdivided and parcelled out in freehold to people who had already occupied the land illegally. Some 900 houses were built, but this did not improve tenure or lead to financial prosperity. Nor did tenure security improve. ‘Whereas previously family members had tenure rights linked to kinship and responsibilities, ownership was now registered in the name of only one member of each household. This reduced security for women and members of the extended family, as the “owner” could claim new legal rights to use and dispose of the property.’9 There were greater levels of poverty. Municipal services had to be paid, but the new title holders had no income to do so. The worsening financial positions of the new households resulted in the sale of some of the houses through informal systems that bypassed formal registration.10 Private title is also incongruent with the scheme of communal landholding. The unique attribute of communal land tenure is coexistence. One’s rights are never absolute but relative to the rules of a specific community. As Kingwill and her co-authors point out, private property registration in South Africa ‘requires three criteria to be met before rights can be registered: an individual rights holder must be identified; the exclusive rights of this rights holder must be precisely described; and the boundaries of land parcels must be accurately depicted through beaconing and geo-referencing’. In communal areas, ‘property ownership is never exclusive to one person. It is always shared by a number of family members: those living now, some who are deceased and some yet to be born.’11 The nature of the communal structure, its links to the individual, and its significance have recently been described by the High Court thus: [T]he communal land and the residential plots (‘umzi’) of each imizi forms an inextricable and integral part of this community’s way of life. In the context of this community, a residential plot represents far more than merely a place to live: it is a symbol of social maturity and social dignity. Each residential plot further serves as a critical conduit for the preservation of relations of inter-linkage and mutual dependence between the living and the dead and it is critically important for the wellbeing of each imizi.12

Fundamentally, then, private property is incompatible with communal landownership, as its key tenet is exclusion. Formal title has also not led to increased access to credit. As Kingwill et al. suggest, ‘banks do not lend to the poor because of the high risk of non-repayment, the low value of their assets, and relatively high transaction costs. Households earning less than around R3 500 per month are unlikely to get access to formal credit using land or housing as collateral, whether or not they hold title deeds to their homes and land.’13 Private property once had its allure. When it was imposed by the British, it was initially resisted, but once it was linked to the franchise, its status fundamentally changed. African leaders internalised the idea of private property as a symbol of civilisation and a means to political recognition and status. Some commentators perceive it as a vehicle towards economic prosperity, although the evidence for this is dubious. Credit is not automatically available upon merely producing a title. Regular income seems to play a much more important role in lending policies by banks. Yet our land reform regime continues to regard title as the pre-eminent vehicle

for the ‘return of the land’. Perhaps it is time to lift our gaze beyond private title. It has now lost its allure.

The mystery of land tenure Land tenure is concerned with the nature of individual, group and corporate rights over land. Our rules of land tenure are mystifyingly complex and multilayered. Removing one layer simply reveals a further area of mystery. This complexity is by design. Other countries have a single or dual land tenure system, which is not the case in South Africa. And it is also a result of our history. Land policy was not constant during the periods of colonial and apartheid rule. When the British controlled the Cape, they extended freehold rights over land to Africans. Then these rights were revoked. The Boers, who ruled the Orange Free State and Transvaal, never allowed Africans to hold land in their own names. Land could be acquired indirectly by missionaries, but they too had to be white. In the period after the formation of the Union, ‘native reserves’ were created in which Africans could have tenure on a collective basis, under the control of the central government. The establishment of the separate homelands also granted some rights to Africans who had been denied common South African citizenship. Urban areas also had their own unique rules of tenure that applied to blacks as distinct from whites. The prime laws were the urban areas regulations, which then morphed into the Group Areas laws. These operated to exclude any form of freehold tenure by Africans in urban areas, confining them to being tenants and visitors. Only whites had full rights of landownership in urban areas. Not only did this legislation serve to exclude, but it also provided a basis to remove. Africans, with already limited rights of tenure in urban areas, received menacing instructions to vacate their properties, which were razed by bulldozers to make way for new white settlements. While the law refused to recognise landholding by Africans, new informal settlements began springing up in the cities, peri-urban areas and on farms. In the last years of apartheid, some urgency built up as influx-control regulations were repealed to create a legal regime that could accommodate Africans who had limited land tenure in urban areas. Laws passed in the early 1990s provided for the ‘upgrading’ of tenure, with the apex of that being freehold. There has also been a systematic erosion of African land tenure rights, which has turned this complexity into a mystery. In the former Bantustans, multiple legal systems regulate both individual and group rights over land. In the former black townships of the ‘old’ South Africa, a vast array of regulations continue to apply. In former white areas, regulated freehold, leasehold and sectional title apply. The Constitution imposed a duty on the state to provide ‘tenure which is legally secure’ to persons previously denied this right. Attempts made so far, however, have resulted in disappointment and failure.

Freehold If there is a land pyramid in South Africa, no doubt freehold sits at the top. Its economic strength lies in the perception of security. The view is held that capital can be raised on the back of freehold land, if it has sufficient security. Its practical value lies in the complete protection against any possible removal and the total control over each and every right attached to the land. Restrictions, which tend to be few, are limited to municipal laws, state interests and community-based laws. But otherwise the owner is fully entitled to do pretty much as she or he wishes with land held in freehold. The legal standing of freehold is in one of the few surviving laws of the Union era, the Deeds Registries Act, passed in 1937, which created registry offices in the exclusive white areas of Cape Town, King William’s Town, Kimberley, Vryburg, Pietermaritzburg, Pretoria and Bloemfontein. According to the Act, the primary function of the registrar is to facilitate the transfer of land rights: ‘the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar’. The legal effect of freehold is to have perpetual and exclusive rights to that land without any limitations on its use. Although freehold rights are relatively clear, it is this clarity that brings about certain negative elements. One is that they are absolute in excluding anyone whose name is not reflected on the transfer deed. Problems of exclusion arise, for instance, in the case of a marriage where the property is registered in the name of one spouse and not the other. There may also be problems in a family setting if a property is registered in the name of one sibling to the exclusion of others. These are inevitable features of an unequal society where economic power is both gendered and racialised. Beyond families, communal settings also bring about the negative side of freehold rights. If land is held on a communal basis with a chief or traditional leader as the head of that community, should the land be registered in the name of the traditional leader? If it is, how should the rights of other members of that community be defined? Traditional leaders have been known to alienate or lease community land without consulting the members of their communities or seeking their consent. If title to the land is in their names exclusively, freehold rights would appear to grant them ownership rights, including the ability to evict anyone from their property. Rights to freehold should also be understood as reflecting our social structure. Owning property in freehold shows the continuation of racial and gender inequalities inherited from

apartheid. This was made clear in the state’s land audit of 2017, as seen in Chapter 9. We can safely conclude that freehold as a form of tenure secures those who are already secure. Its transformative potential is limited, and its ties to financial viability necessarily mean that it is not possible to self-transform. This is why the nature and form of freehold rights is in urgent need of reform. In this connection, the point of departure is the revision of the 1937 Deeds Registries Act, which continues to regulate landownership.

Leasehold People entering the property market usually do so through a leasehold. Often the rental agreement is in writing, but not always. The lease agreement usually includes a tenant and a landlord. But there can be more than a single tenant. The primary terms would be the provision of a property by the owner for use by the tenant, for a specified amount, subject to a defined period of time. Other collateral obligations can be agreed upon, including responsibility for maintenance of and improvements to the property. Rights of termination and eviction are usually regulated in the agreements themselves. So, a landlord would typically reserve the right to eject a tenant from the property if the rental amount is not paid for a specific period of time – say, two or three months. Tenants can also exercise any rights under the agreement, including under legislation against arbitrary and unfair evictions. The larger point is that leasehold is associated with the formal property sector and access to legal infrastructure and robust financial systems. This form of leasehold is associated with an independent property-owning bourgeoisie and capitalist class. What is often forgotten, however, is that alongside formal leasehold is sometimes an active informal property market that uses the leasehold as a primary mode of transacting and granting people access to homes. Despite the significance of this to the economy, there is little legal regulation, and access to finance is limited. As such, the quality of the homes provided is typically poor. The terms of the leasehold are usually imposed by the landlord, without negotiation with the tenant. Because of this absence of legal regulations, many standard rights depend largely on people’s ability to enforce rules themselves. The informal housing system comprises primarily backyard dwellings, shacks and other informal settlements. Andreas Scheba and Ivan Turok have written that backyard dwellings ‘have become the dominant, fastest-growing type of informal rental housing. These are structures, typically rudimentary and made from corrugated iron or zinc sheets and wooden frames, in the yards of formal houses, often in townships.’14 A distinction should be drawn between small- and large-scale landlords. The former typically have a single property and may choose to rent out either a room or a backyard dwelling, which may be a shack or an outbuilding. They do this to supplement their income but can usually do without it. By contrast, large-scale landlords, whose business it is to rent out multiple residential apartments, are able to extract market-related rentals, but they also provide entire properties, which sometimes even come furnished. The tenants may be individuals or commercial entities that allow the space to be used by their employees on a short- or long-term basis. At this commercial end of the spectrum, there are strict and clear legal regulations. There is a racial dynamic too. The informal housing sector emerged from a particular context. Under apartheid, land to develop housing for black Africans was controlled by the government. In fact, state policy was often hostile to Africans who exercised any form of landownership in urban areas, where Africans were required to work. The absence of houses in urban areas, combined with the laws that prohibited Africans from exercising any meaningful tenure, resulted in informal settlements being created both inside and outside these centres. So the informal sector is characterised by deep structural poverty and chaotic legal rules, and is inhabited by the most vulnerable of the urban poor, who are mostly African. Meanwhile, the formal urban residential market has a strong commercial base, is supported by clear legal institutions and is inhabited primarily by whites. Since 1994, the government’s RDP initiative to redevelop the informal sector has largely replaced shacks with small ‘matchbox’ houses. This programme hasn’t resulted in the decline of the informal housing sector but in its multiplication. Within the RDP settlements themselves, new forms of informal housing are emerging. While the intention of the state was for RDP houses to be distributed to single households, the reality has been that multiple families and non-family members occupy single RDP houses because of demand and housing shortages. Moreover, a new RDP-house economy has developed as new lease agreements are concluded between RDP ‘landlords’ and tenants, with houses being subdivided and sold. Government policy for the informal housing sector, which is characterised by opportunities for exploitation, has often been confusing. We saw earlier that the state’s explicit preference is towards ownership as the ideal mode of tenure. The practice on the ground, however, illustrates the rapid expansion of the informal sector, driven by economic realities. The government’s preference for ownership is accordingly not matched by people’s own experiences. There is a need to regulate the informal sector. But regulation without catering for demand will serve little purpose. More land in urban areas should be made available for human settlement. This includes land in the inner cities. Rights of occupation should be clearly defined in law to protect the tenure of the occupants. In some instances, the informal sector comprises communities residing

on land that has been ‘illegally’ occupied. State responses do not always have to result in the eviction of illegal occupiers, but in finding justice-based solutions to the land-shortage crisis. Our history is replete with examples of land settlements that began as informal but were transformed by transferring rights of title. The legal regulation of RDP houses generally takes the form of prohibition against sale for a period of seven years after the initial transfer of the property from the state. But thereafter a beneficiary of an RDP house is pretty much free to do as they please. While it would be unfair to impose onerous rules on RDP beneficiaries that do not apply to other holders of property, given that the intention is to provide a social housing scheme, longer-term leaseholds with clearer rights might be the preferred method. Foreign nationals are particularly vulnerable. Those who are financially well off can afford housing in the formal property sector, but the problem is rendered visible in the case of economic migrants, who have come to South Africa because they have suffered economic hardship in their countries of origin. This means that they will typically be unable to obtain housing using their own resources, but state housing programmes would also not prioritise their interests. The scope for their exploitation by unscrupulous landlords in the informal sector is limitless. Reforming the rules of the informal housing sector should include protecting the interests of economic migrants as a particularly vulnerable group. While leasehold carries the premise of security, it fails to deliver this for the majority. The urban poor occupy land in a legal vacuum. The hostility towards African economic migrants entrenches their vulnerability. Fulfilling the constitutional mandate of giving tenure to people who were previously denied it on discriminatory grounds requires the formalisation of the informal sector. The priority should be making more land available, with greater protections for the most vulnerable to exploitation, enabling them to seek economic advancement. This should be the telos of the new regulatory environment.

Sectional title Between freehold and leasehold is another species of rights over property known as sectional title. This is regulated fully by legislation, the Sectional Titles Act of 1986. Its primary purpose is to regulate the division of buildings into sections and common property, and for the acquisition of separate ownership in the sections, coupled with joint ownership of common property. This applies in blocks of apartments where each apartment is separately owned but the block as a whole is jointly owned. The Registrar of Deeds may register each individual’s separate ownership in respect to their apartment. Each owner is also entitled to participate in the joint and common management of the block. Rules regulating the use of the common areas for the benefit of the owners may be passed. Each user would then be obligated to comply with these rules as jointly agreed. To maintain sectional titles in a residential block is a joint responsibility. This is usually done through financial contributions to a common point, although this can generate problems. Sometimes owners will not make their contributions, resulting in the management of the sectional title, usually referred to as the body corporate, taking action against them to enforce their obligations in court. But there may be scenarios of mismanagement so severe that a court intervenes by appointing an administrator to run the affairs of the residential block. Often problems result from the unchecked powers of these administrators, who may not rescue the body corporate from its financial difficulty but sink it further. The rules relating to the appointment of administrators thus affect the viability of sectional titles, which may threaten the tenure security of those who use them. But there is a further problem with sectional titles. The ability of owners to design their own rules presupposes a common interest among them. This may be so. But the owners are not always the only users of the spaces in sectional titles. Sometimes the spaces are also used by people who provide gardening, cleaning and general household services. Their rights of occupation are often tied up in the services they provide. But they are extremely vulnerable to the whims of the units’ owners. Under the Sectional Titles Act, there is no obligation to consult them when new rules are promulgated or implemented. They also have no lease agreements, as they would generally occupy attachments to the main apartments belonging to the owners of sectional titles. When one adds the further dimension that some of the people who provide cleaning services may not be South African residents, their vulnerability to exploitation multiplies. If the law on sectional titles is to be transformed to meet constitutional goals, the strengthening of the rules around financial controls should be accompanied by greater fairness towards people who depend on their employment for tenure security.

The Upgrading of Land Tenure Rights Act Apartheid began to disintegrate in the 1980s. During that period, the first steps were taken to dismantle rules such as influx control and the use of separate amenities. In this context, tenure rights over African land were precarious to non-existent. In July 1991, the National Party government passed the Upgrading of Land Tenure Rights Act, whose purpose was to convert Africans’ land rights into freehold title. The Act was accompanied by two schedules that regulated the nature of these rights. The first

schedule covered leaseholds, deeds of grant, and quitrents. Under specific legislation, these could be converted into full ownership. Laws like the Black Areas Land Regulations of 1969 and the Regulations for the Administration and Control of Townships in Black Areas of 1962 discriminated against African people and prevented them from gaining full title to land. The intention of the Upgrading of Land Tenure Rights Act was that the existing rights would be converted to full ownership, but these objectives were largely unfulfilled. The second schedule applied to rural areas. People who held permission to occupy land under the Black Areas Land Regulations of 1969 and the Rural Areas Act of 1987, or who had rights of occupation under indigenous laws, were also beneficiaries of this system, with the result that they could get their rights transformed to full title. The quirk is that the majority of Africans lived in Bantustans, and the legislation did not apply in those areas. Thus, although the Act aimed to extend benefits to the African population at large, it excluded the majority of its intended beneficiaries from the reach of its application. As a result, land tenure in the former Bantustans has remained insecure, despite the passage of upgraded legislation. Later attempts under the new Constitution to broaden the scope of the legislation have suffered from constitutional defects, and the anomaly continues. Certain laws applicable to the Venda area, for instance, continue to apply. The failure of the Upgrading Act to address the concerns of those who need it the most has recently been condemned by the Constitutional Court: Millions of Black people in this country continue to live in the 13% of the land that was reserved for Africans under the 1913 Land Act. This is because the former homelands to which they were forcibly removed were located on that 13% of the land. To this day those millions continue to have insecure land rights which were afforded to them during Apartheid. To date many of them may access and occupy land through the means of a permit to occupy issued by authorities. This is not in line with the Constitution.15

The goal of the Upgrading Act might have been laudable. Its application, however, has been a dismal failure. The consequence is that multiple streams of tenure continue to exist. Binding these streams is the discriminatory intent of apartheid. It is not my suggestion that all land rights should be converted to freehold. Nor is that an entitlement under the Constitution. The Constitution’s injunction is to secure tenure. There are many ways in which this can be achieved. The goal is to eliminate the vulnerability that is linked to South Africa’s discriminatory past.

Informal rights to land Freehold and leasehold are usually referred to as formal rights to the land. But there are also informal rights to the land. Labelling these rights as informal is not a sign of their standing in the hierarchy of land rights, but a function of their non-registration. The most important statute that regulates informal rights to the land is the Interim Protection of Informal Land Rights Act of 1996, which aims to strengthen the tenure rights of individuals, families and communities over the land. Its application extends to the whole country, and the subject matter it covers includes land held by custom in the former Bantustans. The significance of this legislation lies in its recognition that rights and land may not be taken away without consultation and consent. Although the Act accepts the possibility of rights and land being deprived through custom, it regulates the way in which this may take place. So, unless a community approves a resolution by a majority of the people in beneficial occupation of a piece of land, no deprivation of that land may take place. But in some systems, custom will not permit the loss of land rights via a majority decision, only through consensus. In such instances, the Act gives priority to the rules of custom. Decided cases have affirmed the centrality of this legislation to transactions that involve mining, evictions and land allocations. While the Act is a potentially powerful instrument to safeguard the tenure rights of Africans who were previously denied such rights, it is nevertheless limited by its structure. The Act was designed to operate until a new law could be passed, hence the use of ‘Interim’ in its title. Each year, the legislation lapses and the minister makes a fresh determination for its extension. If the minister elected not to extend the legislation, the protections contained in it would lapse. But that would not mean that the obligations imposed in the Constitution to recognise customary law as a distinct source of laws and to protect the security of tenure of people previously discriminated against on the grounds of race would also disappear. Instead, the legislative void might have to be filled by customary law and the Constitution itself. But this is not an area to be left to the vagaries of contested custom; instead it calls for explicit statutory regulation. Without that, powerful interests, including those of chiefs, state officials and private businesses, will dominate the rights of all citizens. Individuals and families who are regulated by customary authorities would be left vulnerable. Although by no means full and adequate protection of informal rights to land, the protections in the interim legislation are strong. One way to render them better is by making the law permanent. Informal rights to land can also be found in communal systems of tenure. The state tried in 2004 to pass legislation to regulate rights to land held on a communal basis. Had the legislation come into operation, it would have replaced older regulations for tenure rights in communal

lands, including any informal rights to the land. Various arguments were raised, however, objecting to the legislation on the grounds that it distorted customary law. Although it is rather difficult to excavate the true nature of precolonial land tenure, those areas that were not subrogated completely to Western legal systems show that the view that customary law was fully communal is not entirely accurate. In fact, customary law contained communal, individual and family characteristics. Land interests were held in a complementary, sometimes conflicting but always simultaneous fashion. Different members of the same family could hold equal claims over the same piece of land. Similarly, different families within the same clan could hold equal rights over the same land. And on a communal basis, rights could be shared, conflicts accommodated and interests aligned. This communal character did not mean that there were no conflicts over land. But the system was sufficiently flexible to accommodate disagreements and disputes. The Communal Land Rights Act of 2004 sought to cancel these characteristics of customary law and replace them with a version that concentrated power at the top and allocated land administration to traditional authorities. Yet the fact that one community challenged the constitutional validity of this legislation shows that traditional leadership is not invariable in customary societies. Some are fully democratic, others are fully autocratic, while many follow mixed systems of chiefly rule constrained by predetermined rules and a consultative ethos. Replacing these with a single version of custom is not to advance tenure security but to undermine it. Any future system that regulates control over customary land should recognise the distinctive nature of customary law in its flexibility and accommodation of complementary, even if conflicting, interests over land.

Communal property associations and trusts The systems to hold restituted land have been varied. The legislation accommodates individuals and groups to claim rights to land that were lost after June 1913. The situation is clear-cut if a claimant is successful in an individual claim. It is less so in cases of group claims. Groups typically form themselves into a legal entity, and two categories of legal vehicles are usually established. The first is a communal property association (CPA), and the second is a trust. In some cases, the two can coexist for the same land. Trusts are regulated by the Trust Property Control Act of 1988. State policy recognises the medium of trusts as the instrument to hold land that has been restored or acquired under the restitution or redistribution programmes. The basic structure is that members of a community come together, constitute themselves and appoint trustees. The balance of the community become beneficiaries. Trustees are elected at a general meeting and assume control of the community’s affairs in relation to the land. A document known as a trust deed or deed of trust would then be drawn up, specifying the powers of the trustees and the rights and obligations of the beneficiaries. Beneficiaries tend not to be a static class. As people die, are born or reappear, their details would be reflected and updated in the class of beneficiaries. Thus constituted, the community relies on the trustees to receive the land on their behalf. If there is any commercial activity on the land, the trustees also distribute the financial contributions to the beneficiary class. Trustees therefore occupy a powerful position by controlling their community’s main asset: land. But trusts are not without their own difficulties. Take, for instance, the problems that arose in relation to the Embo tribe of KwaZulu-Natal. Its chief, Inkosi Mkhize, lodged a claim for the restoration of land in December 1998. The claim was for some 148 properties on behalf of the Embo tribal community. Although the claim was opposed, it was eventually settled on the basis that several of the farms that were claimed would be restored to the community. The farms were owned as a going concern, meaning that revenue was being generated and the business of farming was taking place. The administration was conducted by the previous white owners, who paid rentals to the community via a trust. But problems emerged soon after its appointment. At some point in time, millions of rands went through the trust’s account. Accusations were made that the trustees were misappropriating the monies belonging to the trust. Land was also being sold without the knowledge and concurrence of the other members in the beneficiary class. The situation escalated. Threats of physical violence were made. Another group from among the beneficiaries emerged, asserting that the trustees were an illegitimate structure that failed to represent the community’s interests. The elected trustees and this new group almost came to blows, and death threats followed. In this climate of conflict, accusations and counteraccusations, the funds of the trust ran dry. The matter was ultimately resolved in the Land Claims Court, which dissolved both structures and installed an administrator appointed by the Master of the High Court. The evidence provided by the Master was striking. He pointed out that the internal community conflicts pertaining to trusts were a common feature of successful land claims in KwaZulu-Natal. The structures tended to be weak, with little or no business experience. Conflicts were often exaggerated, as people’s expectations of what the land would generate were not met. As a result, many community trusts were now run directly from the Office of the Master, with experts such as lawyers, accountants and other technocrats being responsible for the dayto-day management of community affairs. One of the problems, of course, is that a typical trust would administer a relatively small piece of land for a large group of beneficiaries. This is a consequence of our land claims system. A

single farm, owned and controlled by a single farmer and generating large amounts of money for that one farmer’s benefit, would now have to split one hundred, two hundred or three hundred times to cater for the needs of each member of a community. Even where there are no conflicts within the beneficiary group, the fact is that the benefits of the farm cannot possibly meet the needs of all the members of the claimant community. A structural problem with the trust system is the absence of oversight, since powers tend to be concentrated in a few elected trustees, and it depends on them whether community meetings and new elections are held. The trust system is thus highly questionable as an appropriate means to secure tenure for every member of a successful claimant community. In this context, CPAs, established by law, have emerged as an alternative. Here, the structure is a basic one: the community organises itself into an association, with an elected executive committee. A constitution is drawn up and an application is made to the state to recognise its status. Yet CPAs have proven to be a disappointment. They were favoured by the government as a way to combine claims by different communities to make the process of land restoration easier. But once these claims are bundled together, the potential for conflict is manifest. Old tribal or boundary conflicts are reignited. Disputes arise over the correct allocation of benefits and become impossible to resolve. Thus, from the outset, these claims stand no chance of viability. But even after claims have been transferred successfully to CPAs, in reality they are often dysfunctional. Elections are not regularly held. Meetings are not convened. Annual general meetings are not arranged to replace elected leaders. Reports of corruption and the misappropriation of money are common. In fact, in the government’s Communal Property Associations Annual Report for 2015–2016, it was reported that only 208 of the 1 490 registered CPAs complied with the provisions of the Communal Property Associations Act. Although trusts have no oversight by the government, the situation is worse with CPAs. There is no money, there are no resources, and the land acquired produces very little. There are further problems, such as conflicts over the rights of individuals and families to land granted to the CPA. It is usually assumed that the land will be held on a ‘communal’ basis. Yet the nature of the rights that will be conferred to each individual or family that is a member of the communal structure is never made clear in the association’s constitution. A dysfunctional structure cannot use land productively. So it is not surprising that more than 80 per cent of successful land claims have resulted in decreased land productivity. By 2013, the government had decided that CPAs were no longer viable in communal areas. However, their dysfunctionality does not justify their wholesale abandonment. A properly functioning CPA could facilitate tenure security and land productivity in ways that fulfil the restorative and developmental objectives of the state. It could also facilitate internal accountability mechanisms for the development of rural economies. A clear omission from CPA constitutions is the definition of individual and family rights within a communal structure. Particularly, these should be defined in their relation to the rights of others to avoid internal conflicts and to provide for clear forms of tenure.

Laws should reflect reality, not the other way around We should end where we began. The nature of private title for property is fundamentally inconsistent with communal ownership. More than twenty million South Africans live in communal settings. Although colonialism introduced individual title, it was never provided to everyone, particularly Africans. The key distinction with individual freehold title is its exclusionary nature, while on the communal side, the main feature is the coextensive nature of rights. Reforms directed at extending private title to communal settings are self-defeating, as the two are fundamentally incompatible. The promise of the Constitution is not for private title, although state policy has tended to make this assumption. The Constitution’s promise is secure land tenure. Often, the nature of private title, in its exclusionary and absolute terms, undermines tenure security for others. To accommodate the majority, we should reconsider the exclusive and absolute nature of private title so that the exercise of rights over land is subject to a general public-interest override, provided that such an override is itself constrained by procedural fairness. This might require a review of the legislative and common-law framework for the nature of private title itself, but this is perhaps unavoidable. Leasehold is familiar to many. Poor people in informal settings use it. Its functionality, however, depends on a functional financial system to enable regular payments of rentals, access to institutions of the law to enforce rights and protect interests, and good-faith dealing between the parties to ensure voluntary compliance without resorting to legal-enforcement mechanisms. In the formal property sector, the legal and financial systems are both sufficiently robust to protect the rights of landlords and tenants alike. It is in the informal property market where the need for proper regulation remains. Rentals for shacks, RDP houses and backyard dwellings are often governed by informal agreements, reflective not of fair and equitable standards but of the power dynamics and levels of desperation between the ‘negotiating’ parties. A law to regulate the informal property market is urgent. Problems associated with RDP houses are commonplace. Often a house is registered in the name of one person in a family, so they tend to assume the greatest rights. But these ‘paper rights’, rather than solving the problems of tenure security, sometimes exacerbate them. One

way to address this vulnerability is to allocate houses to a family, not to an individual. The problem is that at its conception, the RDP system was heavily influenced by individual tenure, which is at the heart of state policy. The banking system itself is geared against the informal housing sector. This, of course, is informed by perceptions about the latter’s erratic and unreliable nature. But the financial sector’s attitude can no doubt fundamentally transform if the legal architecture that regulates the sector was to change. Legislation addressing the upgrading of tenure also proceeds from the assumption that the goal is freehold title. This reflects the period when the Upgrading of Land Tenure Rights Act was passed in 1991, since the underlying design was not to secure tenure as such but to transform people’s already limited tenure rights into full title. Its transformative impact was thus limited at the outset. Security of tenure cannot be addressed on the basis of existing property rights. First, a fundamental reorganisation of landholdings should be undertaken by acquiring more land and redistributing it. Without substantial redistribution, the impact of the Act is limited. We should recall that the focus of this law was not transformative, in the sense of redistribution; it was merely placatory in converting a system designed to perpetrate racist ends in a palatable way. Allowing families to assume private title for conditions that are suboptimal hardly qualifies as achieving dignity-based housing. But this is also subject to the same constraining elements as private title: whose name should be written on the piece of paper? The husband’s, the wife’s, the eldest son’s, or the family’s as a whole? Unless there is scope for accommodation, the possibility for conflict is high. As a result, the constraints on title remain. CPAs, trusts and customary systems have proven to be a nightmare for administrators and beneficiaries alike. Although the CPA model was once promoted, it has produced consequences that undermine its very goals. While the policy of the Land Claims Commission was to encourage group claims, it failed to understand the underlying tensions among the claimants, with the outcome of land settlements often being the ‘re-tribalisation’ of the beneficiaries. The answer may not be the division of claims as such, but the specificity of rights, interests and entitlements to use and enjoy the land. If land is registered in the names of communities, tribes or traditional institutions, the tendency is to increase the powers of the traditional leaders and to diminish those of individuals, families and community members. The Constitution does not envisage this. Its aim is to concentrate power in the people, not the chiefs. Reforming the communal land tenure system should start by recognising where the true power for control over land resides: at the bottom rather than the top. This is no legal imposition. It is reflective of custom. Custom is different from colonially imposed versions of it, which assumed a top-down structure, like Shepstone’s Code of Native Law. In its living, dynamic and evolving nature, custom has dispersed rights for the administration and usage of land downwards rather than upwards. It is the contested legacies of custom that seek to place chiefs above the members of their communities that should be resisted. But the great virtue of custom is its flexibility and accommodation. While legislation is necessary to define people’s rights, care should be taken not to ossify it. It is worth restating the multilayered nature of the laws of tenure. By disentangling them, the first step can be taken towards aligning them with the Constitution. This should begin by deracialising them – which doesn’t mean making the laws race-neutral (or gender-neutral, for that matter). What is needed is deliberate state action to strengthen the rights of people with an insecure hold over land who, for historical reasons, are black. They are also often female, as modern ‘versions’ of customary law continue to subject black women to male power. This, however, only solves part of the problem. The hunger for land is what needs to be addressed. More land is needed. Once it has been granted, perhaps greater rights can be negotiated. But this must be met by government efforts to simplify the laws on land tenure. Only then can we see progress.

12

Women’s Rights to Land Princess Emma Sandile Princess Emma Sandile is a forgotten woman in our memory of the eastern frontier. Yet she was once a central figure in the political, social and economic life of the Eastern Cape. Born in 1842, Emma was the daughter of Mgolombane Sandile, the king of the Ngqika branch of the Xhosa, but she became influential in her own right. She was among the first women to attend Zonnebloem College in Cape Town, the pre-eminent institution for the children of African chiefs and their councillors in southern Africa. Its origins can be traced to the ‘civilisation’ policy of Sir George Grey, governor of the Cape Colony in the 1850s. Grey’s ideas included the establishment of schools for African children, inducting them in the English language, a Christian ethos and practical skills such as animal husbandry, agriculture and carpentry. Zonnebloem was distinctive in that only children of royal families could attend. Grey believed that this was a shortcut to the civilisation of those tribes. Once educated, the children could ‘spread the word’ in their communities. Grey had tried to influence Xhosa chiefs to send their children to missionary schools in the 1840s but had failed. What changed was the catastrophe of the cattle-killing resulting from the prophecies of the Xhosa prophetess Nongqawuse, which broke the back of the Xhosa resistance. By 1858, it was possible to compel chiefs to send their children to Zonnebloem. The chiefs, having been accused of fermenting war against the colonial government, were imprisoned on Robben Island, where their wives would also join them. Nonesi, wife of Chief Siyolo of the Ndlambe, spent sixteen years at the prison, from 1855. The situation was similar for Katye, the wife of Chief Maqoma of the Ngqika. Although not charged with any offences, they nevertheless volunteered to support their husbands in prison. In doing so, they followed in the footsteps of other incarcerated wives of Xhosa chiefs, such as Noxena (Maqoma’s senior wife) and Nofelete (Maqoma’s daughter-in-law), who had been incarcerated in the 1840s.1 Emma, as Chief Sandile’s eldest daughter, grew up in a setting vastly different from that of the women who preceded her. British colonial policy, espoused by Grey, focused on assimilating Xhosa chiefs into British society. In this larger political project, Emma’s role was seen as being an interlocutor between the colonial administration and the Xhosa chiefdoms. The British government initially committed to meeting the financial needs of the Zonnebloem school, while its management and educational needs would be met by the Anglican Church. But then the British government cut the funding. The school’s headmaster, Bishop Robert Gray, had to campaign for funds. Gray stressed the political purpose of the school. It was here that Emma was perceived as central in meeting the school’s political goals as part of ‘the elite … of Kafir and Basuto society; the sons and daughters of Chiefs, Councillors and great men’.2 Several funders responded positively to Gray. But he wanted the British government to meet its promise. Gray’s argument was that although the Anglican Church was managing the school, the government had undertaken to provide the finances. Unless state funds were forthcoming, he threatened to close down the school. One of the options he put forward was to fund the school from endowments in land in the Eastern Cape, noting in one of his letters to the government, ‘The facts stand thus. We have taken possession (justly or unjustly is not now the question) of a new territory. From it we have thrown out the Heathen, and planted ourselves in. When we took possession of it there were in it powerful and independent chiefs, owning large tracts of country.’3 These chiefs, he continued, had been placed in prison, and a ‘good Christian nation’ had a duty towards its children. Since large tracts of land had been given to the British and Dutch settlers, it was only fair to use some of it for the benefit of Xhosa children, ‘which by right of inheritance was their own’. In August 1859, George Grey ordered that grounds of land be made available to the children of Xhosa chiefs, ‘at least 300 acres of good land each’.4 While the children were enrolled at school, the land should be held in trust for them and could be rented out to pay for their educational needs. Upon completing their schooling, they would be entitled to take possession of their farms – their ‘permanent possession in the land of their forefathers’. Grey set up a trust for Emma’s benefit. The identified land was in Keiskammahoek (later to become part of the Ciskei). It comprised two portions, measuring 1 750 acres and 185 acres respectively. One farm kept stock while the second was used for growing maize. A white farmer rented the properties. In exchange, he was required to make payments towards Emma’s living expenses at the college, although he regularly defaulted. Emma’s farms were registered in her name as the beneficiary.

In this sense, Emma can be seen as a pioneer, holding fertile farming land in her own name at a time when British control over the Eastern Cape was at its height. When Emma finished her studies at Zonnebloem, she was expected to be married to one of the Thembu chiefs, Qeya, but this did not happen. She would later marry a polygamist chief, Stokwe, who had ten other wives. Emma rejected Christianity, resented her Western education and denounced the European culture she had been inducted into at Zonnebloem. Her children did not attend the missionary schools, which were the only ones for blacks at the time. Instead, Emma schooled them at home. The colonial administration had introduced a system of land registration that required the allocation of stands to be registered in the name of the occupier, despite their inability to own it. This was a precursor to ‘permission to occupy’, which became popular in Natal and some parts of the Cape during the twentieth century. In Seplan in the Transkei, this function – ensuring that each stand was allocated in writing against the name of a person and that a register was kept – was performed by Emma. Not only was she educated, she was also the wife of the chief. This was a position of immense power, in which she excelled. Emma’s education, contrary to the wishes of her benefactors, Robert Gray and George Grey, would not be used as a purveyor of colonial wishes but to protect rights to the land in a hostile climate. Stokwe was implicated in having been involved in the last war between the Xhosa and the British in 1878, although it appears that his primary role was to provide safe passage for some of the men fighting on his land. Emma, in fact, was a central player in the scheme to hide some of the Xhosa warriors at her home, and she provided false leads to the British soldiers. When the war was over, Stokwe stood accused of ‘misbehaviour’, as a result of which he was stripped of his land, his authority reduced and his chiefly financial stipend taken away. Two years later, the ‘Gun War’ broke out.5 The origins of this war can be traced to Lesotho (then called Basutoland). In 1871 the Cape colonial administration annexed Basutoland. Although the Cape government initially showed little interest in the administration of Basutoland, this began to change after the last Frontier War in the Cape, in 1878. A law, ironically named the Peace Preservation Act, was passed in that year to enable the government to issue proclamations compelling native people to surrender their guns to the government in exchange for compensation.6 William Ayliff, then secretary for native affairs, would enforce this law across the colony, including in Basutoland, where the surrender of guns was met with fierce resistance. The Basotho had bought their guns with proceeds from their labour in the diamond fields of Kimberley. Guns would also protect the land against any possible invasion. Government attempts to cajole the Basotho failed. It was argued by the Basotho that while they had bought guns, they had never been aggressors and hadn’t caused harm to anyone. Before long, the disagreement over disarmament escalated into a full-scale war, lasting a period of seven months, at the end of which the Cape administration retreated, abandoning the implementation of the gun laws in Basutoland. Yet news of the resistance and the impending defeat of the administration had reached the Cape. A new rebellion against magistrates – charged with enforcing the law in the Cape – erupted in Qumbu and Tsolo, driven by the Mpondomise, during which the magistrate Hamilton Hope was killed. This was followed by an uprising among the Qwathi branch of the Thembu.7 It was in this war, on 13 November 1880, that Stokwe was fatally wounded. The site of his grave was kept a secret in case the colonial administrators exhumed and beheaded him to take his head as proof that they had killed him, as they had done with King Hintsa. Walter Stanford, the resident magistrate of Thembuland, recorded the colonial distress at the secrecy surrounding Stokwe’s grave: ‘No European has ever been shown the spot where the remains of the chief were laid. So ended the career of a chief of great courage and resourcefulness. In native song he was known as “ixhonti likaNdhlela” (the hairy son of Ndhlela), a good description of him.’8 In 1882 a commission was set up ‘to consider and report upon the question of the permanent occupation of the Country lately occupied by the rebel immigrant Tembus in the portion of Tembuland Proper known as Maxongo’s Hoek, and the vacant lands in the District of Gatberg, now known as the District of Maclear’.9 The chair of the Tembuland Commission, John Hemming, summed up his views on the land of the Thembu: I want to tell you about this land belonging to the chiefs who went into rebellion; that land goes to the government; it does not belong to the Chiefs any longer. But the Government says it does not want to take the land away from the Kafir people, except a small strip under the big mountain – the Drakensberg.10

This is no surprise. By this stage, in 1882, the colonial government was in full control of all African territory in the Eastern Cape. Emma appears to have fallen into some difficulties with the local population. In correspondence with the local white resident magistrate, she reported that she had been ‘smelt out’ as a witch and accused of involvement in her husband’s death. She asked the government for land allocation, ‘a fixed place which we can call our home’. She wanted ‘a small farm for my children and the wives of the late Chief Stokwe’.11 As a wife in a polygamous marriage, Emma was also writing on behalf of all of Chief Stokwe’s wives, who were uneducated and unable to write for themselves. Emma’s request for land would later appear before the Tembuland Commission. She again explained: ‘I want a place to live on; I have five

children of my own, one boy, the others are girls; the boy is about 12 years of age.’ The hostility of the administration towards ‘rebellious Chiefs’ did not extend to Emma. Although she had turned her back on the English way of life, her claim to the land was considered legitimate. Lungisile Ntsebeza suggests that this might have been to pacify the restless population of Stokwe’s people. Emma’s plea to the commission was successful. She was granted a farm in Seplan, in the district of Xhalanga, next to the white town of Cala. Now Emma was truly a landlord. She owned three farms: a cattle farm and an agricultural farm in Cwaru in the Keiskammahoek area, from which she was still collecting rental payments from white farmers, and a residential farm in Seplan. When Emma died in 1892, the Keiskammahoek farms were valued at £13 000 and were subdivided among her five children, in equal shares, without discrimination based on their gender. Yet some seventy years later, the farms appeared to have fallen into ruin and became inhabited by some 2 000 occupants. A commission of inquiry that was set up by the government in 1978 to investigate the legitimacy of the occupants’ rights over the land came to the decision that the farms should be allocated to one of Emma’s great-grandchildren. The farms later fell into the hands of the Ciskei’s homeland government. Although the farms retain Emma’s name, her significance has largely been forgotten. Yet in her time, she broke the stereotype within Xhosa society that women were perpetually dependent on men, and the European stereotype that among Africans land could not be held in individual title. She was a teacher, a farmer, a landlord and a leader. She also showed that one did not have to subordinate themselves to European ways of being. Once she rejected Christianity, she could be both educated and African. This was the ultimate act of rebellion. Emma’s life is thus a reminder that there are many shades to the past, and that stories of the land are multilayered. Looking at them through an exclusively male or European lens risks missing the true historical facts in favour of biases and prejudices. And while Emma’s trailblazing was a promising start, it would soon be undermined by the laws to which Africans were subjected in the decades to come.

The ‘legal disabilities’ of Zulu women In 1975 M.L. Lupton published an article titled ‘The Legal Disabilities of Zulu Women’.12 The article was a critique of the Natal Code of Bantu Law (a legacy law of Theophilus Shepstone, discussed in Chapter 5). Lupton noted that the code ‘has been ossified, frozen in the position it was in 1878’. The centrepiece of the code was the idea of a kraalhead. This, Lupton wrote, was ‘a position of great public esteem and carried heavy responsibilities’. The kraalhead was expected to be a man of high integrity, protecting the interests of everyone in his homestead. But by 1975, Lupton wrote, ‘an African woman living in an urban area has often never even met her kraalhead who may be at a remote kraal’. Despite this, the kraalhead retained extraordinary power over her. She was bound to his authority, even though she did not benefit from his protection. While regarded as ‘perpetual minors’, African women nevertheless had to compete in an economic system structured to privilege men. Although the code was objectionable in several respects, it was in relation to property that Lupton reserved her most trenchant criticism. Under Section 35 and 36 of the code, a kraalhead was entitled to his children’s earnings, in addition to a reasonable share of what the other members of his family and kraal earned. This meant that women and children had to submit their earnings to the man at the head of their family. The property of a married woman belonged to the household. But because the head of the household was invariably a man, the person with control over that property was male. Although men could dispose of their properties as they wished, the same could not be said of women. While a woman was entitled to an inheritance, she was unable to receive it herself unless she applied for emancipation from the status of being a perpetual minor. The absurdity of the system was illustrated by the 1970 case of Rose Ndhlovu, whose deceased husband had been a school principal and she a qualified nurse. They had lived in the township of KwaMashu. They had no sons and the husband died without leaving a will. Under the Natal Code, their joint property reverted to his brother who lived across the country in Kranskop and with whom they’d had very little contact. The brother, in turn, refused to make any provision for Rose unless she came to live with him in Kranskop. She could not get help from the legal system either, which blindly enforced the code. Emancipation was not easy. The person’s guardian had to give their consent. Without it, it was almost certain that the application would be refused. Another case cited by Lupton was that of Albertina Duma, who was forty years old and unmarried but living in the township of KwaMashu with her two children. Since the law required her to have a male guardian, hers was one Douglas Toto. When she applied for emancipation, she was required to obtain Toto’s consent. He refused. The court rejected her request on the simple grounds that her guardian’s signature was not attached to the application. Land administration and allocation were invariably functions performed by men. Although women worked the land, their legal status over it was totally subordinate to that of men. The claim was that this was no more than a reflection of custom. Yet custom was not as rigid across the entire country. There were differences by region and family in the intensity of its application. The code, in its force of law, converted a fictionalised version of custom into hard reality.

The stories of Emma Sandile and Rose Ndhlovu represent two different women, in different geographic settings and in different eras. Their experiences are reflective of the collective experience of black women in South Africa. Under colonialism, black women were subjected to white male power. This continued under apartheid, while also being amplified by black male power. Legal reforms after the new Constitution were intended to improve the positions of women. But this has not been so. Law, culture and economic power continue to preserve patriarchy. Yet formal patriarchy is also being upended every day by women’s independent actions.

Women of Marikana In August 2012 a miners’ strike in the town of Marikana, in North West province, gripped the nation. At the centre of this unrest was Lonmin, a mining company that owned two platinum mines, one in Karee and the other in Marikana. The two sites were separated by a hill. In 2011 Lonmin had sacked about 9 000 workers for participating in an illegal strike. Some were later reemployed, but many remained jobless. When the 2012 strike over wages began, the grievances of the previous year still lingered on. The company’s defence was that it had struck a three-year wage deal with the majority union at the time, the National Union of Mineworkers (NUM). Now, however, the status of the majority union was being challenged by an emerging player, the Association of Mineworkers and Construction Union (AMCU). Workers were demanding the cancellation of the NUM wage deal, which the company refused. A court ruled the strike illegal. Days went by. Weeks. Months. The mine was closed and all workers were told to ‘return home’. For some, this meant travelling more than a thousand kilometres to the Eastern Cape, from which Lonmin drew some 30 per cent of its workforce. Some left. Many did not. The strike went on. Each morning workers left their ramshackle settlements in Nkanini (‘place of strife’) to congregate at the hill adjacent to the mine. There, they would denounce their standard of living, their low wages, their abandonment by the government, and the nonchalant attitude of the mining bosses who reaped large bonuses despite failing to return profits to the mines’ shareholders. But there was a problem. The company strictly enforced a ‘no work, no pay’ rule, throwing many miners who already earned a low wage into a state of destitution. On the other hand, miners had to ‘enforce’ the strike, resulting in threats, intimidation and violence against any employee who refused to join them. The police were mobilised by the company through its political connections to break the strike. There was resistance. On 16 August 2012, the police opened fire, spraying hundreds of rounds of ammunition against the striking workers, killing thirty-four of them and seriously injuring seventy-eight. At the commission of inquiry that was called by the government, the police would deny, prevaricate and evade the truth. Several excuses were conjured up for the violence, but there was no refuting the cold, hard facts: the police were responsible for the brutal murder and serious injury of workers who participated in the wage strike. Despite the violent deaths of their comrades on 16 August, the strikers soldiered on with even more intensity. It was only at the end of September 2012 that a resolution was found. For a month and a half, the miners had been without wages. How did they survive? In 2015, journalist Niren Tolsi wrote a remarkable story about the surviving wives of the Marikana miners.13 He was able to document the personal stories and devastating consequences of the tragedy through the miners’ families in Lesotho, Swaziland and the Eastern Cape. Remittances to the mineworkers’ families, ranging from R1 000 to R3 000, had dried up. New strategies of survival had to be found by the widows. Women like them were described by Phyllis Ntantala in 1958 as widows of the reserves ‘whose husbands are torn away from them to go and work in the cities, mines and farms – husbands who because of the migratory labour system cannot take their wives with them and, because of the starvation wages they receive, are forced to remain in the work centres for long periods – strangers in a strange land – but equally strangers at home to their wives and children’.14 As Ntantala pointed out, the separation from their husbands did not mean the end of their lives. They ‘remain alone in the Reserves to build the homes, till the land, rear the stock, bring up the children’.15 Talking about the women of Marikana as widows in the former reserves – the labour-sending areas – should not blind us to the significance of most women in Marikana who, as Asanda Benya has shown, became ‘mistresses to mineworkers’ and undertook to ‘look after the migrant workers day in and day out, as opposed to their legally recognised wives, who remain behind’.16 During the strike, this role was elevated as women gave support in material ways: they provided hiding places from police searches, shared their own money, and took food to the hill where the men were striking. We can now provide another partial answer to how some of the men of Marikana survived the many months of the strike with no income. In Centane and Mbashe in the Eastern Cape, where some of the Marikana miners hailed from, a farming project driven by the women-owned multiinvestment company Wiphold was launched in 2012. The Centane and Mbashe Agricultural Initiative uses communal land for agricultural development. The model focuses on high social impact, income generation and food security, primarily for women living in the villages of the former Transkei, an area known for poverty since the end of apartheid. Its goals are to encourage the development of viable small-scale commercial agriculture on communal land and to challenge financial and other agri-finance institutions to make capital more easily accessible

to small-scale and emerging farmers. By 2017, the initiative had witnessed some success. In the private sector, the insurance giant Old Mutual and one of South Africa’s largest banks, Nedbank, had invested in the project. For its part, the project made a profit by 2016. But the success of an initiative like this cannot be measured by profitability alone. Social impact also counts. By 2017 there were thirty-four villages participating in the initiative, with a total of 2 023 landholders and project members. Of that number, 1 476 (73 per cent) were landholders and 547 were project members. The income generated from maize production can be used to feed families, reducing their dependency on remittances from Johannesburg. One of their remarkable achievements, announced by Wiphold executive Gloria Serobe, was that the women in the project were able to support their men during the Marikana strike. They were sending money to their husbands in Johannesburg from the income generated by their farming activities. While the land was communal, they did not require a title to put the land to productive use. Undisturbed control over the land, with secure rights, and access to capital and some technical assistance were the key ingredients to making a success of the project. By supporting their men in Johannesburg with money from villages in the former Transkei, these women upended the common pattern of money flow from mining areas to the labour-sending regions. Now, in their greatest hour of need, the men of Marikana were supported by their women. The past and present are not short of stories of women’s success as farmers, landowners, communal land workers, claimants and beneficiaries. But the general conception of women participating in the land debate tends to restrict them to beneficiary positions. But it is by including women in the entire food production value chain that we can ‘improve the quality of life of all citizens and free the potential of each person’, as the Constitution’s preamble provides. Today, however, statistics from the Commission on Restitution of Land Rights show that less than 25 per cent of the beneficiaries of the land restitution programme were women or womenheaded households. The same applies to the beneficiary figures for land redistribution, which are equally appalling. It is then not a surprise that women owners of agricultural land make up no more than 12 per cent, and black women a paltry 2 per cent. The exclusion cannot be blamed on the past any more. Nor can it be blamed on lack of talent. The problems stem from the patriarchal structures in the land and agricultural sectors, which replicate male power and entrench the marginalisation of women. If progress is to be made in reversing this, the structures should be dismantled first. But how should we do this?

Asking the right questions Cherryl Walker has pointed to the problem of policymakers who tend to regard women as an undifferentiated mass.17 No provision is made for class differences. Nor is a distinction made between rural and urban women’s land needs. Access to skills is also often overlooked. Focusing on the overlap of race, gender and class helps us to focus on the needs of the truly vulnerable groupings. Yet by drawing distinctions between urban- and rural-based land needs, policymakers can develop targeted strategies. For instance, a single solution aimed at breaking the stranglehold of patriarchy in rural settings will not answer the challenge faced by women in urban environments, where there are no traditional institutions of power. The existence of patriarchal structures in urban areas is not eroded by economic factors. It may be reinforced by them. Here, there may be different factors at play, including state housing policy, which is different from its land policy. Housing policy that factors in the needs of women is perhaps more urgent in an urban environment than it is in rural settings. South Africa’s equality laws would tolerate a legal regime that prioritises women in the provision of housing, as it would with a system that does the same in relation to land. The majority of women in South Africa can be classified as poor or very poor. When one adds the layer of patriarchy, the problem simply multiplies. Strategies that intend to focus on women’s concerns, however, should seek to transform the lives of the subaltern class. The Human Sciences Research Council has explained the complexity thus: [W]omen far exceed men when farming is done to produce household food. The fact that there are many more women than men involved in farming largely owes to the much larger number of women relative to men who farm within male-headed households (954 000 versus 315 000). While these women farming within male-headed households are still outnumbered by women household heads who farm, it still means that a major and arguably under-recognised clientele for agricultural support services are women agriculturalists within male-headed households.18

This shows precisely the area of urgent need for state support: helping women who produce food at the household level. They are already doing it with little support, but it is focused intervention that would guarantee the sustainability of access to land and the productive use of land in the hands of women. Access to land remains, however, a structural constraint and barrier to women’s economic progress.

Redistribution and access to land The Constitution guarantees ‘equitable access’ to land. The law that regulates land redistribution

is the Provision of Certain Land for Settlement Act of 1993, which applies to ‘state land which is controlled by the Minister, or land which is purchased or acquired by him in any other manner’, state land controlled by provinces, and private land made available by the owner. Its primary purpose is ‘to regulate the subdivision of such land and the settlement of persons thereon’. But in its genderless tone, the Act might entrench the marginalisation of women in land allocation. While the Constitution privileges equity, this is an aspect on which the Act is silent. Taking the Constitution’s equity mandate seriously means accepting that there is a different starting point between men and women – which is not the same thing as colour-blind and gender-neutral equality. The structures of patriarchy predetermine and privilege male access to the land. While race affects both black men and black women, its intersection with gender means that women face formidable obstacles to accessing land. In communal areas, which tend to be ruled in terms of customary law, traditional structures are shaped in ways that guarantee the dominance of men in the name of custom. Confronting the power imbalance in traditional settings requires nuance. Traditional institutions continue to serve as vital points of authority and legitimacy that cannot be wished away. As Walker notes, it is not as if rural women reject chiefly authority. They may also support it ‘as a cornerstone of orderly society and support traditional power structures such as the chieftaincy’.19 The key point, however, is that any support for chiefly authority is not incompatible with clear rights for women over the land on an equitable basis. The ultimate point then is that laws may not subordinate women’s rights to the land in the name of traditional authority. Traditional authority is a primarily political and cultural institution. When it is granted power over the land, the tendency is to use that power for economic and social reasons. Laws that reinforce cultural biases, such as the Communal Land Rights Act, which grants powers to chiefs to allocate and administer land, are inconsistent with the constitutional duty to foster conditions that enable equitable access to land. Yet the government’s own programmes appear to be gendered.

Women and land restitution The land restitution programme has been a dismal failure in general. Insofar as women are concerned, the failure has been deep. As at March 2020, female-headed households had received 166 207 hectares of restituted land. When compared with the total figure of 3 715 736 hectares, this number is extremely low. As restitution tends to be ‘gender-neutral’ in the sense that it focuses on victims of forced removals, the consequences may be to leave the gender imbalance in claimant categories unresolved. When land is restituted to the successful family or community, the state plays no further role in the administration of that land. The programme will thus perpetuate any gender inequality within the claimant group. This does not have to be the case, however. The restitution legislation does not operate outside of the Constitution’s framework, which requires steps to be taken to protect and promote the equal rights of women. The Restitution of Land Rights Act itself is geared towards restorative norms. Interpreting the legislation is also the function of the administrative and investigative arms of the land reform process. This makes it a prime function of the Land Rights Commission that its mandate must be construed in a transformative fashion, to deliberately promote women’s interests in restituted land. This is not to denude the restitution programme of its basic structure but to infuse it with constitutional norms.

Access to credit The Wiphold initiative is an agricultural project owned by women. But that is not the only unique feature about it. Its success owes to collaboration between the state, financiers and the women working the land. Hernando de Soto’s motivation for the titling of communal land was the possibility of securing capital, which is not possible on communal land. But the project illustrates that it is not impossible to provide credit over communal land. The key risk factor that banks take into account is the possibility of non-repayment. Income is what matters, rather than pieces of ground. The project has generated income, some of which is distributed to around 18 000 beneficiaries, paid over in salaries, and used to service bank loans. But a risk assessment that precluded communal land up front would have meant that no loans would be granted. The Wiphold land is also used for cattle farming. Unlike communal land, cattle can be valued. Loans can also be granted against the value of cattle, which may serve to mitigate risk. This story shows one important element that is missing in the debates about access to credit. Banks are capable of generating new financial products that fit the nature of a particular agricultural or farming activity. But banks are unable to think outside the private property– freehold title paradigm. It is this that requires change, not the nature of communal farming. Financial products should be adapted to people’s lived experiences, not people’s experiences to fit the banks. This is perhaps one of the great contributions that banks can make to land reform, agricultural productivity and food security. Women’s access to land has had a long historical trajectory. Patriarchal systems have displaced our memories of women’s roles in the struggle against land dispossession. By recalling the

stories of the past, we can make sense of our present and make the Constitution count for everyone. Under the South African Constitution, while many of the laws have changed, the social norms that entrench biases against women have not. Changing laws is not enough. Structural changes are necessary in the economic, social and cultural make-up of society. For now, however, the immediate demand is to give women land. Experience shows that they know how to turn it into capital.

PART IV

The Future of Land Compensation

13

Justice and Equity in Compensation Deprivation without compensation? The idea of land expropriation without compensation has gained a foothold in the public’s imagination recently. At its national conference at Nasrec in December 2017, the ANC decided that expropriation of land without compensation should be among the ‘key mechanisms’ for land redistribution. A parliamentary committee then held public hearings on the possibility of changing the Constitution to allow for the expropriation of land without compensation. Yet, properly interpreted, the Constitution does not prohibit the expropriation of land without compensation. Rather, the target is for any expropriation to be handled proportionally and without imposing undue hardships. Proponents of this constitutional change rely on a combination of arguments: the slow pace of land reform, high land prices, entrenched and racialised poverty, historical land dispossession, and the text of the Constitution that refers to ‘the amount of compensation’ in the event of expropriation. To begin with, a distinction must be drawn between expropriation and a deprivation of rights over land. A deprivation of rights comprises two elements: a substantial interference in or limitation of the rights of a person to enjoy or exploit their property, and for that limitation or interference to exceed the normal restrictions of property use and enjoyment found in an open and democratic society. While this is not particularly illuminating, the main point is that a deprivation of rights does not necessarily result in an outright acquisition of that person’s property by the state. Expropriation, in contrast, is a subset of deprivation. But it differs in scale and intensity: an expropriated owner loses the rights of ownership entirely, to the state. This distinction matters. Under the common law, the deprivation of property without compensation is well established. As far back as 1915, the Appellate Division – then the highest Court of Appeal – accepted that Parliament could pass legislation to deprive any person of their property without compensation, although it ruled that there was a presumption against it. In the constitutional era, the Constitutional Court and the Land Claims Court have raised the possibility that the deprivation of property does not attract the duty to pay compensation. While deprivation of property does not always attract the duty of compensation, expropriation usually does. Some argue that in defined circumstances, expropriation without compensation can pass constitutionality. But expropriations should generally be balanced by just and equitable compensation. The heart of the problem in our system, however, has not been compensation per se. It has been the rate at which compensation is paid. The state’s default rule is to pay for land at the prevailing market value. But a sustainable land reform programme must be faithful to the Constitution, the focus of which is justice and equity. A related issue has been the timing and manner of compensation. State practice has generally favoured the payment of compensation in the form of cash up front. This too has no foundation in law. The timing and manner of compensation is a matter to be decided on an ad hoc basis as and when an expropriation decision is made. But there is no requirement that the compensation should be in cash, nor that it should be paid up front prior to the property vesting in the state. So that raises an important question: Why is compensation paid?

Why is compensation paid? Arguments usually raised in favour of taking land without compensation operate on the premise that the current landholding by the few while the majority are landless is unfair for historical reasons. It is argued that land in the hands of the white minority farming class is unjustly held, having been a product of ‘land theft’. The responses are usually pejorative and dismissive. But arguments about the theft of land have some validity in history. The taking of land from Africans did include trickery, fraud and theft. Our history books are replete with examples of blank documents signed by African chiefs disposing of large pieces of land for no consideration, and contracts that contained oppressive clauses that weren’t understood by the target party. The Rudd Concession, signed in 1888 by Lobengula, king of the Ndebele, is perhaps among the most notorious of these examples. Professor Martin Legassick, in his book Hidden Histories of Gordonia,1 wrote about the will of Abraham and Elizabeth September, in which the story of the 1908 ‘sale’ of the farm Ouap by a Griqua family is recounted. He shows that the Septembers’ signatures – ‘X’ marks – were forged. The story of the Septembers is emblematic of a wider story. On 9 March 1923, the Cape Times

reported on practices in the Northern Cape in which coloured people had lost their land to whites. Coloured farmers were said to be succumbing to the ‘sharp’ practices of ‘unscrupulous Whites’. In this respect, ‘store keepers pushed credit upon them, loan agents got them involved in loans and litigation, and brandy sellers further assisted their ruin. Downright fraud, such as giving a burgher’s signature to a deed of sale, represented to him as merely an option to buy his farm (which happened in one case whereof the present writer was informed) was probably not often practiced.’ Many strategies were used. Land would be sold ‘for an apple’. Coloureds would be told that they were signing a lease agreement, when later it would transpire that it was in fact a sale agreement. Land would be taken in exchange for settling a debt. Accusations of land theft are not as absurd as they sound. Violent conquest, which accounts for most land dispossession, would undoubtedly qualify today as a crime against humanity. These arguments are not ‘emotional’; they are historical explanations about why indigenous black people have so little land in their own country and whites have so much more. Yet the counterarguments against land reform should also be factored into the discussion. Doing so means balancing them with countervailing modern arguments in favour of paying compensation. Let us try to do so next. The direct beneficiaries of land acquired through conquest have long since passed on. To the extent that the same land that was violently taken remains in the same family, its uses have transformed significantly. Current landholders usually denounce any association with historical violence. Take the case of the Cape vineyard once known as Leef-op-Hoop. This farm was once owned by Louis van Bengalen, a former slave of one Zacharias Wagenaer, who had sold him to Hendrik Lacus. Lacus was later involved in a case of fraud, resulting in his slave, Louis, being allowed to buy his freedom. With it, Louis could be baptised and own property, which saw him acquire three farms and become a successful farmer. The grant to the farm Leef-op-Hoop was signed in 1892. Louis died in 1896.2 Centuries later, this land would be bought by Markus Jooste and Jannie Mouton, two of the most successful businesspeople in the Cape. No doubt both would denounce any association with the oppressive practices of the seventeenth century. As with Leef-op-Hoop, land might exchange hands multiple times, making it impossible to draw a straight historical line to the first act of theft or deceit. Current landholders who ‘bought the land in the open market’ reject the idea that they should part with that property for no payment. Land itself, as a symbol of wealth, has transmogrified into other valuable assets: cash, stocks, bonds and credit. If the true act to be punished is the act of dispossession, the connection between that and present wealth is sometimes a tenuous one. Land is also no longer exclusively held in individual hands; the land market is dominated by companies, trusts, pension funds and other corporate entities. Some of these are not exclusively resident in South Africa and have multi-jurisdictional characters. Land is also part of a larger global economy insofar as products like wine, maize and wheat are produced locally but traded internationally. The world we live in today is much more complex, integrated and interdependent than the world of our ancestors. Decisions taken here in one aspect of the economy, such as land, may potentially trigger a set of economic consequences that are not only beyond our control but will cause disproportionate harm to the problem we are trying to solve. The compensation dynamic is thus not a simple equation of comparing past injustices with those of today. It requires the balancing of conflicting, overlapping and complementary considerations. One of these is that expropriations should not cause inefficiencies: land that is currently being used productively should not be taken if its reallocation would make it less productive. If land was being used to feed thousands of people, it would be inefficient to give it to the state without at the same time ensuring that its level of production continued. This argument works only if the land in question is not being used efficiently, or where the purpose of the expropriation is much more beneficial than the current use of the land. This too is not a settled view. Who decides what is an acceptable use of the land? For instance, the state may consider it appropriate that land currently used for farming should instead be used for residential purposes. While the farmer might regard that as inefficient, it is clear that for the shack dwellers who will receive a house each, the converted value is enormous. The stronger argument is that compensation is paid to spread the cost of expropriation. If no compensation is paid, the owner will bear the full cost of whatever public purpose is being served. This argument is based on fairness. Instead of burdening one person for the public’s benefit, everyone pays via a state-funded compensation scheme. Yet this justification is also problematic. If compensation is paid at full market value, it can be seen as a reward for an unjust holding of the land. In a country where state resources are scarce, it may be unfair to require the state to allocate resources, say, from housing development to land acquisition, or from education to the payment of full market-related compensation to landowners. If the state did this, it would be open to the criticism that it is entrenching the country’s present race and class disparities. But the expectation of the current government is not that it will merely continue where the apartheid government left off, but that it will deliberately reverse the racial inequalities that it inherited. So, paying full market-related compensation to landowners who are primarily white – when there are other competing priorities like education and health, whose primary beneficiaries are black

people who bore the brunt of colonialism and apartheid – can be seen as unfair. Ultimately, although the choice may not be whether to provide compensation in cash, we still need to consider what might be appropriate amounts to offer and the forms this could take.

Justice and equity in compensation There are many schemes to compensate owners for property they lost through expropriation to the state. One of them is structured for the owner to be placed in the position they would have been in if the expropriation had not taken place. In terms of this theory, the owner should receive market-related compensation plus a payment to make up for the inconvenience caused by the expropriation. This approach was followed in some cases during apartheid, although it was not uniformly applied. Some elements of this are also apparent in the Expropriation Act of 1975. Another model is to make a rough estimate of what the market value might have been if the property had been sold in the open market – the willing-seller, willing-buyer approach. For countries emerging from systemic dispossession based on culture, race and religion, however, the tendency is to depart from market-based compensation. Rather, the language used to qualify compensation tends to be flexible. Germany is one example. Article 14 of the Basic Law of Germany allows for expropriation subject to compensation, which must be established by determining ‘an equitable balance between the public interest and the interest of those affected’. This was a law passed after the Second World War, intended to undo arbitrary seizures of property which had taken place in Germany under Nazi rule. South Africa has exactly the same formulation in its own law because its own land regime followed hundreds of years of race-based dispossession. Colonial and apartheid South Africa were characterised by an arbitrary taking of the land. The Constitution does not use ‘price’ or ‘value’ of the land; instead it uses ‘compensation’, which implies that the task of establishing the value or price of a piece of land is distinct from deciding how much compensation should be paid to its owner. This decision is not based on the value of the land but on what is just and equitable. Compensation must also reflect an equitable balance between the public interest and the interests of those affected. Usually, expropriation affects two parties, a landowner and the state, which represents the public interest (which may be the state itself, or a third party who may be a landless person or group of persons). The ‘equitable balance’ then referred to in the Constitution is the balance between the public interest and the interest of the landowner. We should draw a distinction between ‘equal’ (equality) and ‘equitable’ (equity). Equality usually focuses on ensuring that people with a common starting point – those who are similarly situated – should be treated in the same way. Its focus is the sameness of treatment by law. Equity, on the other hand, accepts an uncommon starting point but actively seeks to promote the interests of those who are less equal in order to achieve equality. It acknowledges the disparity in treatment for as long as its purpose is to achieve an outcome of equality. So in an equitable dispensation, the funding for different schools need not be the same. It can take into account the historical disadvantages of each school and seek to allocate greater funds in order to level the playing field. When the Constitution uses ‘equitable balance’, it clearly does not envisage that the public interest will be given the same weight as the interests of a private landowner. The Constitution accepts that landowners generally start from a position of economic privilege inherited from the past. Yet land beneficiaries (represented by the state) start from a position of land deprivation inherited from the past. To strike an equitable balance, the scale must be tipped in favour of the landless. For reasons of history, the dispossessed in this country are black, and the privileged landowners are overwhelmingly white. If equity is to play a meaningful role in compensation, it should factor in the necessity for differential treatment in order to achieve equality. If it ignores this, it simply replicates unfair patterns of the past. Equity goes alongside another concept in the Constitution: justice. When applied to land, justice is not a neutral concept. It is an acceptance that the present land dispensation is unjust. The Constitution is an instrument to reverse its unjust nature. Yet in doing so, it should avoid introducing new forms of injustice. When read together with its twin requirement of equity, justice acquires an even greater role: it becomes, at once, a mandate for change, a catalyst for just outcomes, and a constraint against the abuse of public power. These concepts should require us to examine the specific situation of each landowner in the context of compensation. A large corporation, for instance, holding vast tracts of land without putting them into immediate productive use, may not protest that it is inequitable for the state to take that land and redistribute it to resolve a pressing housing shortage. Nor may it complain if the state pays nominal compensation. If the land is banked for future use in a country with pressing land concerns, it may be unjust to tell the landless to wait until the landowner decides at an unspecified date what to do with the land. It would also be inequitable were the landowner to suddenly strike a bonanza because the state acquires their land at an artificial price. But the same cannot be said of a single family that makes its living from farming and their farm is wanted by the state for developmental purposes, when that family would have no alternative means of income if their farm were taken away. Justice and equity might require the state to pay that family compensation that reflects their particular circumstances. There is a further example. Recently, an Australian mining company wanted to mine titanium in Xolobeni, in the Eastern Cape. The state granted it the necessary licence. But it could not

mine there without displacing the local community. Under the law, the company could negotiate for a voluntary displacement subject to compensation. But this too could be resisted. The final option to get the community to relocate would be to ask the state to expropriate the land on which the community is situated. In such a scenario, it would neither be just nor equitable if the state expropriated the villages of Xolobeni but paid no compensation to the people whose homes were lost as a result of the act of expropriation. In fact, it may be appropriate for the compensation to place them in the same position they would have been in had it not been for the expropriation. The central argument remains: the terms used in the Constitution, of justice and equity, necessarily call for a situational analysis of the people affected, in balance with the general public interest. Sometimes the outcome is a large amount of compensation, but sometimes it isn’t. It is impossible to decide in advance where justice might lead. The point is that people who acquired resources as a result of history can bear the cost of expropriation better than those with few resources. This doesn’t mean that current landowners did not ‘buy the land’. It simply recognises that the market in which they bought the land is a product of past distortions. From 1894, when the Glen Grey Act was passed, Africans were not allowed by law to hold land in their own names. For at least 100 years thereafter, the land-buying market was exclusively white. Some of the land was inherited but had never been bought to begin with. In other instances, the land’s productivity depended on the exploitation of black labour. It is not practical to pay for each and every unfair act in the past. But these can be aggregated and reflected in how we conceive of just and equitable moulds of compensation in the context of land reform and redistribution. The Constitution also speaks of the timing and manner of compensation. What exactly does this mean?

The timing and manner of compensation Our system privileges cash as the sole form of compensation for expropriated land. But there is no reason why it should. Alternative land is already provided for by legislation to calculate whether an act of past dispossession occurred with adequate compensation. If a community or family was dispossessed of land or a right in land after 1913, one of the factors usually taken into account to determine if they are entitled to the restoration of those rights is whether alternative land was provided at the outset. If it was, that could be subtracted from any compensation or restitution that the family or community receives. In principle there is no reason why alternative land should not be considered when compensation is decided. There are complex questions as to whether any alternative land would also have to be of the same size and value as the expropriated land. But that is a matter of detail. The key argument is to move away from a cash-based compensation scheme. Some have argued that cash is contemplated in the Constitution because it refers to ‘an amount’. That argument takes literalism to the extreme. Other forms of compensation are still calculable and reflective of an amount, even if they are not cash-based. There is no reason, for instance, not to decide the value of any alternative land and compare it with the value of the land taken through expropriation when deciding the compensation to be given to the landowner. The Constitution doesn’t require that compensation be paid in advance before a piece of land is transferred to beneficiaries. The timing should be contingent on the specific interests that are affected. If money is to be paid, it could be done in instalments over a period of time. Constitutional Court authority already exists, which suggests a separation between the administrative decision to expropriate and the judicial determination of compensation.3 So upon completing the administrative act to expropriate, the land should vest in the state, regardless of whether a final determination of compensation has been made. But our experience is that the state never assumes control and possession of land until disputes about compensation have been resolved. These tend to drag on for years. In the case of Msiza,4 a judgment was delivered by the Land Claims Court confirming Mr Msiza’s entitlement to land under the Labour Tenants legislation in 2004. But it was not until 2016, some twelve years later, that further decisions were made about the appropriate compensation to be paid. Meanwhile, despite judicial determination that he was the landowner, Mr Msiza could not exercise the rights of ownership to which he was entitled. And if one factored in likely appeals from the 2016 decision, he would potentially have to wait an additional two to three years. Thus, between the time the claim was lodged and finally determined, more than fifteen years would have elapsed. Not only is this highly inefficient, but it is also inconsistent with the promise of the Constitution that public functions should be performed diligently and without delay. The resolution is not difficult. If there is a definite split between the decision to expropriate land and the determination of compensation, the process of transferring land could move faster and the pressing public need for land redistribution could be addressed.

Calculating compensation So far, we have looked at how to introduce a justice-based dispensation that can determine appropriate forms of compensation. But there is a further point to be discussed: what theoretical approach should inform how that compensation is calculated?

South Africa has no compensation formula. Two methods are applied in practice. First, in the redistribution context, the state applies the willing-seller, willing-buyer approach. In restitution and labour tenant claims, the state tends to apply the so-called Geldenhuys formula. This is a formula apparently devised by a former judge of the Land Claims Court, Antonie Geldenhuys. Its basic framing is that one should start by determining the market value of the property and then apply the other factors in Section 25(3) of the Constitution to adjust the value as necessary. The number that is ultimately produced becomes the amount of compensation. The criticism of the Geldenhuys formula is obvious: it privileges market value above the other factors in Section 25(3), while also treating those factors in a mechanical fashion. Yet the intention is for all the relevant elements to be taken into account, and those listed are illustrative rather than exhaustive. In one case, the most important factor might be the impact of the expropriation on the landowners, or the urgency with which the land is required by the state, but neither consideration is mentioned in Section 25(3), and no serious argument can be made that they are not relevant factors. Most arguments about compensation focus on where to start. Property valuers, with some endorsement from the judiciary, prefer to start from market value because they argue that it is quantifiable, practical and easily determinable. But those concepts are themselves heavily contested. Market value is ultimately an approximate amount that is largely informed by comparing the prices of similarly situated properties. When it comes to expropriation, market value is really fictitious. There is no ‘market’ for expropriations. Nor is there a willing seller. There is usually one buyer, being the state, and one specific property that has been identified for a particular public goal. Applying market value for expropriations is thus no more than a legal fiction. Compensation for expropriations should therefore develop its own language, uncoloured by idealistic notions and assumptions about markets. In our context, we are not dealing with expropriations in general but with a narrow category of expropriations to fulfil specific constitutional goals: land redistribution, restitution and tenure security. Our starting point must therefore be aligned with those goals. Rather than the market, the important points of departure are the history of the acquisition, state investment in the property over the years, the purpose of the expropriation, and the impact of the expropriation on the landowner. To start with, land that was acquired by dubious means and linked to racial discrimination should obviously be treated differently from land that was bought or sold on the open market. It is not particularly difficult to trace landownership through the Deeds Office, starting from the very first time a particular piece of ground was registered in freehold. One can then work out with relative certainty if any consideration was paid. The task of estimations based on historical records is not as hard as it seems. For instance, land registered in the names of white farmers in the Transvaal at the end of the nineteenth century was most probably taken directly from Africans without compensation. This was the policy at the time. In his Annual Report of June 1904, the commissioner of native affairs, Godfrey Lagden, wrote that ‘in many instances the land on which the aboriginal tribes were living at the arrival of the Boer immigrants, or before that time, was allotted to the farmers as it was found suitable for European occupation. The Natives were obliged either to regain possession of the land by purchase or to become tenants of the farmers.’ Lagden also explained in detail how ‘Native Chiefs ceded territory to the South African Republic’ and asserted that these ‘tribes rebelled and were dispossessed of their land and broken up by the Boers’. New laws were put in place after this dispossession, including the refusal of the government ‘to allow Natives to hold land in their own names’, with the only available avenue being ‘buying farms, which were registered in the names of missionaries’. Lagden’s report also confirmed that, at that stage, land ‘exclusively reserved for Native purposes by the Government and farms actually owned by Natives themselves was equal to not more than 1/38 part of the whole colony of Transvaal’. The balance was owned either by European individuals or companies or by the state. Thus, the farms registered to whites in the late nineteenth century in the Transvaal are most likely to have been the consequence of the dispossession or breaking up of African communities. Records such as this are not hard to find. Once this exercise has been undertaken, it can safely be assumed that the original owner did not buy the land but acquired it with the state’s assistance. Similarly, investments over time on the land can be weighed. If loans were granted by the state to the owner, these too can be established. But importantly, as Commissioner Lagden pointed out, labour was provided for free on private farms by ‘native tenants’. That too is a form of indirect investment, as it was the state that imposed control over Africans living on farms through the strict enforcement of pass laws. So, for the exercise of determining historical benefits, a clear factor is the use of unfree and unpaid labour to develop the land. There is also the current use to which that land is being put. This is an uncontroversial subject, as the evidence is likely to be held in common between the parties and shouldn’t require extensive digging. As a result, there should be no great dispute about the starting point. The enquiry could then commence from multiple points. Market value may be one of them. But it need not necessarily be the one. Choosing a starting point other than market value doesn’t mean that market value plays no role. It simply means that it is not the predominant consideration. Sometimes it will be rendered

subservient to the history of the acquisition or the purpose for which the land is required. A practical example could be a single farmer with multiple farms, some of which are productively used and provide employment to a large number of people, while the others do not. In an adjacent neighbourhood, there might be a community living in squalid conditions. In that case, a judge would be entitled to prioritise the purpose of the expropriation, considering the current use of the land. Its market value might be irrelevant, as the state may simply decide what is fair and reflective of an equitable balance between the interests of the person affected and the public interest. The ultimate number in such a scenario may not be a matter of pure mathematics but a figure arrived at through an imprecise methodology, the goal of which is to realise justice and equity. Part of what has bedevilled the determination of fair compensation has been the difficulty of finding figures that make sense in a commercial market. Yet we are not engaged in a commercial market but in state efforts to address the unique problem of balancing landowners’ interests with those of the public. Of course, some instances will justify market-based compensation. But that will not be because market-based compensation is the default position, but because it is just and equitable to compensate at market-based levels in those cases. The main argument is that there are multiple ways to arrive at justice and equity. The Constitution doesn’t predetermine which way is appropriate. What it requires is that whatever method is chosen should reflect an equitable balance between the public interest and the interest of those affected. Precisely where that balance should be struck is a matter of evaluation, judgement and common sense. The key is proportionality. One shouldn’t resort to arbitrary numbers that cannot be justified by any facts. Nor should individual landowners be unfairly burdened with the duty to make good the history of the country if they cannot realistically afford to do so. But we cannot postpone access to land indefinitely.

Towards no compensation Three possibilities are present to expropriate land without compensation. First, a direct amendment to Section 25 of the Constitution makes provision for expropriation without compensation. Second, the government could pass legislation that complies with Sections 25(8) and 36(1) of the Constitution. (Section 36(1) is the limitations clause, under which all of the rights in the Constitution can be limited, provided that the limitation is done by way of national legislation, and the limitation itself is reasonable and justifiable in an open and democratic society based on certain constitutional values.) And third, on an ad hoc basis, the courts could specify that an expropriation should be without compensation. Earlier we discussed the possibility of a judge-led approach to expropriation. In a later chapter, we will consider a direct amendment to the Constitution. For now, our focus is on Sections 25(8) and 36(1) of the Constitution. Framing this discussion necessarily takes us back to the principle of justice and equity. In each case, the question would be whether it is just and equitable to expropriate land without compensation. This cannot be answered in the abstract but should be considered on a case-bycase basis. An indicator appears in Section 25(8) of the Constitution, which says that no part of Section 25 may impede the state from taking legislative and other measures to achieve land, water and related reform in order to redress the results of past racial discrimination, provided that Section 36(1) of the Constitution is complied with. It is not immediately obvious what Section 25(8) means. We can start to unpack this by looking at water-related reforms.

Water-related reforms Little attention has been given to water-related reform. Yet land and water are inseparable. The availability of water is a national problem. In 1996, the White Paper on Water Reform noted that in South Africa we use more than half of the total water that we can afford to use. By contrast, our neighbours Namibia and Botswana use only 5–10 per cent of their available water. As the White Paper explains, Many of our largest and fastest growing water users are, for historical reasons, found at the beginning of small erratic streams rather than at the end of large, reliable rivers. As a result, the waste from human and economic activity is concentrated where it has the most severe impact. The regions where water is still relatively plentiful are often those where the nature of the land or other factors limit broader socio-economic development (such as the Tugela and Umzimvubu basins). Another limitation is the fact that many of South Africa’s major river systems, such as the Orange, Limpopo, and Komati, are shared with neighbouring countries.

Other sources of drinking water exist, such as desalination, but they have yet to be explored because of cost implications. The paper also explained the connection between water and land, holding that water cannot be managed in isolation from other natural resources. By nature, water flows over the land towards the sea or sinks into the ground, where it may be stored as groundwater in aquifers. How we use the land thus has a major impact on our water resources. Finally, the White Paper addressed the effect of human activities on the climate and their influence on rainfall amount and distribution, as well as rates of evaporation.

In South Africa, land deprivation is linked to water deprivation. By mid-2019, 2.5 per cent of water in South Africa was directed to mining, 3 per cent to industrial use, 2 per cent to power generation, and 61 per cent to agriculture – leaving only 31.5 per cent for consumption by a population of about sixty million. The impact of water scarcity is felt acutely by women and children in rural and peri-urban areas. Despite recent reforms that have guaranteed access to water, African women in rural areas still bear the burden of water collection, and children are still vulnerable to dying from avoidable diseases because of water scarcity. South Africa’s laws under apartheid linked the rights over land to water. Most farmers need water for their livestock and crops. As such, land that had access to water was in greater demand. This meant that access to water became even more skewed than access to land. The Constitution’s mandate is thus not only about reforming land availability but also people’s access to water. Before the new National Water Act was passed in 1998, the government developed certain principles to underpin the law. Principle 12 is perhaps the most significant, as it broke South Africa’s linkages between land and water ownership. The principle provides that The National Government is the custodian of the nation’s water resources, as an indivisible national asset. Guided by its duty to promote the public trust, the National Government has ultimate responsibility for, and authority over, water resource management, the equitable allocation and usage of water and the transfer of water between catchments and international water matters.

In its role as custodian, the government must ‘ensure that the development, apportionment, management and use of those resources is carried out using the criteria of public interest, sustainability, equity and efficiency of use in a manner which reflects its public trust obligations and the value of water to society’. Water resources shall be developed, apportioned and managed ‘to enable all user sectors to gain equitable access to the desired quantity, quality and reliability of water’. Principle 18 addresses land and states that ‘since many land uses have a significant impact upon the water cycle, the regulation of land use shall, where appropriate, be used as an instrument to manage water resources within the broader integrated framework of land use management’. These principles found their way into legislation. Access to water is treated separately from the land. The state regulates water rights, as custodian. But state custodianship has not necessarily translated into equitable access to water by those who need it. Large-scale landowners dominate the country’s access to water. The disparities in landownership are also felt in the uneven distribution of water supplies. According to a study by the World Wide Fund for Nature, published in 2019, In South Africa, 1.5% of the land is under irrigation, but this area produces 30% of the country’s crops. About 1.3 million ha of land are under irrigation with the average size of a commercial farm being about 2 500 ha. At the other end of the scale, 1.3 million small-scale farmers use around 14 million ha with an average farm size of just over 11 ha.5

As a result, despite the enabling laws, access to land remains a key determinant of access to water. Although the state allocated itself the power to act as a ‘custodian’ of this resource, the balance of water supply remains heavily tilted in favour of major landowners, who consume it in large amounts. The constitutional instruction for water-related reforms should focus on access to water so that small-scale farmers also have equitable access to water for agricultural purposes. A licensing regime that continues to privilege large-scale water consumers contradicts the injunction in the Constitution for water-related reforms. Where does this leave land-related reforms?

Compensation and land reforms If compensation impedes the state from achieving water- and land-related reforms in order to address the country’s history of racial discrimination, the requirements to pay compensation can be interpreted narrowly. But such an interpretation should also comply with Section 36(1) of the Constitution, the limitations clause. But whether the payment of compensation impedes the state from taking appropriate measures to achieve water- and land-related reforms is a question of fact. The Constitution recognises three categories of land reform: land redistribution, tenure reform and land restitution. Although current figures show that the state has paid in excess of R60 billion in land reform projects, it has never been claimed that compensation is an impediment to land reform. The High Level Panel chaired by former president Kgalema Motlanthe has shown that compensation does not feature as a key aspect that inhibits or impedes land reform. But if national legislation is to be passed, the question would be a wider one, namely whether the budget allocated for land reform, when contrasted with other pressing social needs, is justified. When one takes into account the injunction in the Constitution that there should be an equitable balance struck between the public interest and that of those affected, it is arguable that merely opening up no compensation as a possibility will not be seen as unjust or inequitable. There are, however, some constraints to a no-compensation system.

Is international law an obstacle? International law is usually cited as an obstacle to expropriation without compensation, the argument being that if South Africa adopted such a system, it would be in breach of its international law obligations. We should consider this argument. Customary international law requires the payment of ‘prompt, adequate and effective’ compensation for the expropriation of property. This is known as the Hull formula, and its supporters argue that it represents the default rule in international law. In practice, it translates to compensation in terms of market value and placing the property owner in the patrimonial position they would have been in had it not been for the expropriation. But the Hull formula is not universally applicable. The United Nations resolution on Permanent Sovereignty over Natural Resources 1803 (XVII) of 1962 requires the owner to be paid appropriate compensation in accordance with the rules in force in that state. The focus is thus on appropriate compensation. What would be appropriate is specific to the context. But international law will likely grant South Africa some leeway to determine how much compensation should be paid in accordance with its own laws, especially in the context of the unique challenge of resolving landownership disparities. Traditional justifications for the payment of compensation by states to their own citizens for the expropriation of private property for general public use do not fit the realm of international law. With some exceptions, states owe no legal duties to non-citizens outside of their borders. There is even a much stronger case against paying full compensation to citizens of foreign states by countries that were subject to colonialism (the ‘Third World’), where the landholding is linked to those relations. Questions of the illegitimacy of citizens of former colonial states imposing a duty to pay full compensation for land required by the indigenous people raise a further consideration. If payment of full compensation effectively renders a previously colonised country unable to enjoy its independence, it is arguable that the principle of state sovereignty can serve as justification for the payment of compensation that is not pegged at market value. On its terms, at any rate, the Hull formula and the United Nations resolution on natural resources provide justification for a departure from the standard of market value, although they don’t necessarily allow nil compensation. The same applies to the provisions of the African Charter. Article 14 of the Charter guarantees the right to property. This is not an absolute right and may be encroached upon in the interest of the public or the general interest. Article 14 was elaborated on in the Pretoria Declaration on Economic, Social and Cultural Rights in Africa in 2004. The Pretoria Declaration installed a separate compensation provision for land deprivation through expropriation or nationalisation, providing for ‘adequate compensation’. Yet the Pretoria Declaration also instructs the equitable redistribution of land through due process of law to redress historical and gender injustices. Although the African Charter doesn’t impose market value as the standard, it still requires a state to pay ‘appropriate’ or ‘adequate’ compensation. The African Commission on Human and Peoples’ Rights, for its part, has ruled expropriation without compensation to be inconsistent with the provisions of the Charter, such as when the Democratic Republic of the Congo sought to expropriate without compensation in breach of its own law. Finally, the Southern African Development Community Tribunal recently found in the case of Campbell v. Zimbabwe that the Zimbabwean model of expropriation without compensation was contrary to international law.6 The court ruled that ‘it is the right of the applicants under international law to be paid, and the correlative duty of the respondent to pay, fair compensation. Moreover, the respondent cannot rely on its national law, its constitution, to avoid an International Law obligation to pay compensation.’ While the general rule seems to be established in international law that some compensation is the default rule, international law does not apply to expropriation of local property by the state. Locals have no automatic entitlement to resort to international law, as its function is to protect citizens of other countries who own property in South Africa. As far as land is concerned, the number of foreigners with landownership interests is insignificant, as it affects less than 2 per cent of the country’s available agricultural land. The complication is that foreign-owned land and locally owned land cannot sensibly be treated differently. The African Charter, however, reconciles the two and specifically grants the states within their jurisdiction the latitude to expropriate both foreign property and locally owned property, subject to their own laws.

A targeted system While expropriation without compensation can be justified in terms of the Constitution, this cannot extend to its applicability as a default rule. Necessarily, it should be narrowed in its scope. One way of doing so would be to identify specific categories of property or land that may be subjected to compulsory expropriation without compensation. This too presents the risk of calcification – once the land categories are identified, the expectation might be created that any property outside the named categories must always be accompanied by compensation, regardless of the circumstances. The difficulty with this is plain. Land reform outside those established categories would be subject to the vagaries of the market, rather than the nuanced constitutional requirements of justice and equity. So, if a specific list of land categories is to be

used, it cannot be an exhaustive list but one that is generally indicative of the class of land that can be expropriated in the interests of justice and equity. If categories are identified without qualification, it would still be neither just nor equitable to pass a law that says that such categories must always be expropriated with no compensation. Current debate points to such categories as land that is abandoned or unused, land that is held on a purely speculative basis, underutilised land, unused land owned by public entities, and land that is actively found by labour tenants in the absence of a title-deed holder. There will be disputes about the meaning of each of these terms. But these can be resolved by legislation, executive policy and judicial decisions. The main point is never to lose the application of justice and equity as an overarching standard. The use of these land categories would apply where the purpose of the expropriation is land reform, but it specifically excludes other public purposes such as roads, dams and schools. Outside the context of land reform, there would be virtually no scope to justify expropriation without compensation. Two reasons stand out as justifying an expropriation without compensation in the categories we have identified. The first is that the owner has no emotional connection to the land. If they suffer, it would be a purely economic loss. In other instances, they might not suffer any loss at all. Second, there is the important principle that the land is not under productive use. Land reform seeks to address historical injustices, but it requires equitable access to land. Allowing land to remain unutilised while people are landless does not promote equitable access to land. Expropriation without compensation in those circumstances would encourage the efficient use of resources. Of course, this doesn’t mean that land falling within these categories should always be taken without compensation. But it would shift the onus to the landholder to explain why they are entitled to compensation despite not productively using their land. Constitutional scope exists for expropriation with no compensation. But even if that scope is exploited to the full, a sustainable land reform programme will likely be based on some form of compensation. The key problem that South Africa faces is not the absence of compensation but excessive compensation. It is time to reject market-based standards of compensation and embrace the vision of justice and equity in the Constitution.

14

Expropriation and the Banks In bondage One of the objections to expropriation without compensation is its impact on banks. To understand this, we need to understand how the mortgage system operates. Our expropriation system presupposes two parties: the expropriator and the expropriatee. However, the landholding system is tied up in the financial system. Many land transactions are not paid directly in cash but financed through loans granted by financial institutions, such as banks. South Africa has nineteen registered banks, four mutual banks, four cooperative banks and seventeen local branches of foreign banks. There are also some thirty other foreign banks with exposure to South Africa through representative offices, even though they don’t have active branches. It was reported that financial institutions’ total exposure to the agricultural sector is around R160 billion, with commercial banks’ exposure ranging between 56 and 70 per cent. This amounts to between R89.6 billion and R112 billion.1 These numbers must be placed in context when assessing risk. The cumulative assets of all our banks combined stood at R5.9 trillion in 2020, while the total liabilities stood at R4.7 trillion. When compared to the overall picture, the exposure to agriculture at R112 billion appears marginal, and the supposed threat to the stability of the banking system greatly exaggerated. But it seems that the argument against expropriation without compensation is a principled one that focuses on the overall impact on the banking system, without being necessarily tied to a single transaction. The objection is that any decision that enables creditors – in this case, mortgagees – to default on their bonds poses a systemic risk to banking as a whole. This is what needs to be addressed. In a mortgage set-up, the price for land is fixed at the time of the sale. The bank stands in the buyer’s shoes. It pays the seller the price agreed upon with the buyer in the form of a home loan. The bank registers a bond for the property that has been bought, while the seller, having received their payment, plays no further part in the transaction. A credit relationship develops between the buyer and the bank. The buyer becomes the mortgagor, the bank the mortgagee. The mortgagor is required to pay the bank until the bond amount, with interest, is paid up, usually over a maximum period of twenty years. Meanwhile, the bank holds the land as its security. Once the bond has been paid, the bank transfers the title deed to the mortgagor. For the duration of the bond, the mortgagor’s ownership rights are restricted and subject to the bank’s rights over the property. In fact, if the mortgagor defaults, they may be ejected from the property entirely, in foreclosure proceedings. In expropriations, the state acquires the owner’s property. The relationship between the mortgagor and the bank is usually unaffected. This is not surprising. It is a daily occurrence in foreclosure cases for a homeowner to default and the bank to take their property over to sell via auction, typically at a loss. Unless there is a reserve price, pegged at the market value of the property, the homeowner would remain liable to pay the difference between the auction price and the amount owed to the bank. In terms of the current expropriation laws, the mortgagee must inform the state of any mortgage on the property. The state is required to pay that mortgage debt before it pays any other person. In this sense, banks as mortgagees are completely secured. But this system is challenged in two respects: when just and equitable compensation is paid in the form of cash, the amount may be insufficient to pay the true outstanding amount. And when no compensation is paid, no money would be payable at all.

Expropriation and mortgages An expropriation decision does not cancel a mortgage. The mortgagor therefore remains bound to the bank under the mortgage debt. If the state makes no financial provision to indemnify banks, the consequences could be severe. The mortgagor will remain liable to the bank even though they have been denied the property, which was forfeited to the state for broader publicinterest reasons. All payments made to the bank before the date of expropriation would have gone to waste. This appears to be a doubly unfair outcome to the mortgagor. While banks, in theory, have a right to ‘go after’ the mortgagor, that may turn out to be a hollow right. Few would willingly pay off a debt in relation to a property acquired by the state. So, default rates can be predicted to rise, producing ripple effects across the entire mortgage system. While this doesn’t pose a risk to the survival of the financial system, it is still a significant risk. Mortgages must thus be factored into ‘just and equitable’ and no-compensation schemes as a real threat to their viability. But how should we go about it? Some context for how the banking

system functions is necessary. The Reserve Bank requires every bank to guarantee at least 8 per cent of its funds from shareholders – this is called capital adequacy. The balance is usually funded from deposits. The capital adequacy of each of the major banks ranges from 86 to 90 per cent from deposits and 10 to 16 per cent from shareholders, although Capitec is an outlier, with 70 per cent from deposits and 30 per cent from shareholders. Capitec, however, is a relatively small player when compared to the giants of the banking sector, such as First National Bank, Standard Bank, Absa and Investec. In practice, a person deposits their money in a bank for safekeeping or as part of an investment. The bank is then liable to return that money on demand, subject to the terms of the deposit. This is what makes them liabilities.

Risks to deposits When a deposit is under a bank’s control, it is usually deployed in various transactions, which take the form of lending. If you receive a loan from a bank, you will have to repay it with interest. Depositors usually receive a portion of that interest. However, banks charge more for lending than they pay out. This is their interest margin, and it explains how banks make profits – by charging more and paying less. At the time of writing, the lending rate in South Africa is 7 per cent, while a depositor can expect to earn a maximum of 2 per cent of the interest on their deposit. This suggests that banks earn 5 per cent, but this isn’t so. Because of several factors, including defaults on loans and delays in repayment, a bank’s earnings can be reduced to anything from 0.1 to 3 per cent. Over time, banks have developed several lending products to increase profitability. Of these, mortgages, with their low interest rates, may be safe in the long term but they are not as profitable when compared with other riskier products. Credit card interest, for instance, can be as high as 16 per cent; personal loans can be charged with an even higher interest rate of 25 per cent; while interest on a mortgage loan is usually below 10 per cent. Between the time that money is deposited and the various ways in which it is distributed, it undergoes major changes that make it all but impossible to trace its source. Since the primary mode of profit-making by banks is lending, banks do not depend solely on deposits. They also borrow money in order to lend it, with many of these lenders operating in what is called the bond market. Banks can borrow directly or by securitising their lending books, which happens when banks use their lending books as security to lenders, essentially using their loans to obtain loans. Once the money has been received by a bank, it is also loaned out in various products. On the depositors’ side, some explanation is necessary. Depositors are not an undifferentiated mass. They are split into two categories: corporate depositors and retail depositors, the latter being individuals. Corporate deposits comprise a mix of state depositors, companies, pension funds, insurance companies and asset managers. The people and entities in this category tend to manage funds belonging to other people, such as pensioners. Corporations are also the biggest savers in our economy, accounting for some 80 per cent of all national savings. Individuals save primarily through pensions, life insurances, and a very small pool of savings and investment accounts that are held by banks. The accumulated assets of individual and household savings held by pension funds do not escape the banking system. They are used by pension funds to buy government bonds and are deposited in banks through instruments known as negotiable certificates of deposit. Banks are liable to pension funds for these deposits, but – as with other deposits – banks use them to issue loans.

Below-market-value compensation In this complex web of banking, how would a system that wipes out any form of compensation function without posing systemic risks? A shock in the banking system is also a threat to depositors. In 2017, the Reserve Bank published a paper in which it explained the nature of the risk: There are currently no explicit arrangements in place to protect depositors in the event of a bank failure. In the past, government compensated depositors for their losses on a case-by-case basis, which meant that taxpayers had to bear the cost of the failure of individual commercial enterprises, albeit indirectly. As government’s ability and willingness to pay for the cost of banks’ failures has diminished, there is uncertainty about which depositors should be compensated in the event of a bank failure, the amount such compensation should be, and where the funding should come from.2

It is unclear whether expropriations without full market-price compensation would cause major systemic risks to banking. But if one accepts that large-scale implementation of expropriation without compensation would cause some risk – no matter how small – then it is an argument that should be included in the discussion on justice and equity in compensation for land. One way to mitigate the risk posed to the banking system would be to guarantee the entire balance of the mortgage, leaving the full risk of the expropriation to the state and the owner. The owner would be deprived of their property’s capital appreciation, while the state would take the pain of the full payment. The question is whether this would be a just and equitable outcome. Arguably not, unless certain preconditions are met. Let me explain.

The expropriation of land should not be perceived as ‘punishment’ for past sins, to which banks can plead innocence or ignorance. Expropriations of land are future-looking restorative endeavours. In the context of land reform, the intention is for these measures to be transitional until an equitable balance in land access, ownership and productive use is reached. It is in everyone’s general interest that the unfair distribution of land is resolved for the country’s stability, welfare and prosperity. The current model, in terms of which banks enjoy complete protection from the consequences of expropriation, cannot be sustained. Banks cannot realistically argue that the accumulation of their assets over the years had nothing to do with an economic and financial system that benefited whites at the expense of blacks. The fact is that banks are central to South Africa’s economic sustainability. They cannot expect to make no contribution to the economic redress of the country. As the Reserve Bank paper points out, when there was a financial crisis in 2008, which was unconnected to the state’s conduct and largely driven by banks themselves, the state stepped in with payments to keep the banks afloat. National Treasury has proposed legislation, in keeping with international norms, to establish a deposit insurance scheme. Its basic mechanisms are that the risk of paying in the event of a default will not be taken by the state alone but by creditors and shareholders of banks. The banks would be required to charge for an insurance product that would guarantee a deposit’s return when the bank is unable to provide it for any justifiable reasons. Arguments against this form of insurance are that it may result in more risk-taking by banks because they know that someone will foot the bill down the line, and it would increase the cost of banking, causing further harm to the consumer. But I think neither argument outweighs the benefit of a deposit insurance scheme. If the scheme fails, it is to be expected that there will be recourse to national funds, financed by the government.

Are the risks exaggerated? The risks to the banking system of expropriation without compensation, which would be targeted, judicially managed, and applied on a case-by-case basis, are probably greatly exaggerated. If the departure point is that banks should also make contributions towards the resolution of the land crisis, the question becomes one of risk allocation. The expropriation of land is not an exercise without risks. These must be shared across the spectrum, including by banks. This is not to argue that banks should expect no payment. But they cannot expect full payment without making their contribution to the land reform programme. If landowners can expect either just and equitable compensation or no compensation, the same applies to banks. The solution does not lie in shielding banks from the risks of reduced compensation, but in including banks in the ambit of justice and equity. As major financial players, banks also bear overriding obligations to the sustainability of the financial system. If the proposed model in which banks receive a state guarantee for the balance of a mortgage loan is to become national policy, banks cannot be unburdened by the requirements of justice and equity. Banks should be expected to make legally enforceable commitments to land reform. Many models may be applied, such as guarantees for interest-free loans as start-up capital for land reform projects. Yet more may be thought of, including preferential lending to black farmers and communities that have received land, helping them with the financial aspects of running a farm and contributing in meaningful ways to their business. Right now, however, the idea that banks can expect payment while everybody else should make sacrifices will not cut it. Another proposal is determining up front what the just and equitable amount might be. Once that amount is decided, a further determination is then made of what would be just and equitable to pay the bank, taking various factors into account, including the risk to the banking system. Banks may be permitted to make submissions, including expert evidence, before a court about the nature of the risks they face and their proposals to mitigate them. In this way, the process would be judicially managed and the interests of the bank factored in. Importantly, banks would not operate outside the scope of justice and equity, which are mandated by the fundamental law of the country. A haphazard expropriation regime that wipes out all in its wake without compensation plainly threatens the viability of the entire property market. If the economic and social benefits were obvious, perhaps few would object. But they aren’t. Instead, experience elsewhere has laid bare the risk of unguided land expropriation schemes. It is only a systematic, targeted, legal, proportionate system that does not pose a systemic risk to the banking system. The draft Expropriation Bill, which already foregrounds certain land categories for expropriation without compensation, is a promising start. But its transformative potential is threatened by its selfimposed limits and shadows of the past. Like its predecessor, it promises to privilege banks as the first to receive any compensation where it is paid. A new system is needed, in which the financial interests of banks are not discarded as such, nor are they privileged above other deserving interests. How to do this is a function of principle and pragmatism. The principle is that banks are not outside the ambit of justice and equity, and the pragmatism is that banks also hold depositors’ funds, which must not be sacrificed without a clear benefit. At the moment, both principle and pragmatism are subordinated by market fundamentalism. This is what should change first.

15

Is the Constitutional Amendment a Panacea? Shared aspirations of the people? A constitution, former chief justice Ismail Mahomed once wrote, reflects the shared aspirations of a nation, the values that bind its people.1 In the case of South Africa, he added, the Constitution is a rejection of the past that arbitrarily denied citizens on the grounds of race and colour the right to hold and acquire property. The future should be underpinned by democracy, universalism, care and aspiration towards egalitarianism. If we accept this, we should accept the Constitution’s dynamism to meet the needs of our evolving society. Ordinarily, the focal area for constitutional changes is the courts as they ‘develop’ the law to reflect new societal mores. In our case, they bear the duty to give meaning to the law. They do so guided by the Constitution. So while the text of the Constitution is usually the departure point in interpreting any law, it is never the end point. The end point is necessarily indeterminable – interpreting a statute is never truly the dogmatic application of precedent but an exercise in imagination. It is often argued that, like any law, the Constitution is not beyond change. Yet, of all the seventeen constitutional amendments of the past twenty-five years, none has been as controversial as the proposed amendment to the inaptly named ‘property clause’ in Section 25. For obvious reasons too. The violent confiscation of land from Africans by Europeans was the key feature of colonial conquest. The struggle for freedom was driven by the desire to change the inherent unfairness in the property relations created by white settlers. When the Constitution was negotiated during the transition to democracy, the expectation from oppressed Africans was that one of its central goals would be to alter the unfair pattern of landholding. But the true political dynamic of the transition resulted in an unhappy truce. Property relations were not upended at once. The design was that property relations would change over time, guided by a supreme Constitution interpreted and applied by an independent judiciary. So, if you were white and a property owner on 26 April 1994, you remained the owner on 27 April, when the Interim Constitution came into effect. That largely remains the case to date, hence the criticism that rather than reversing colonialism, the Constitution has cemented it.

Politics of the transition What is often forgotten is that the present formulation of the Constitution did not result from a consensus. It was heavily contested even at the time it was adopted. The ANC’s negotiating position, reflected in its 1991 Draft Bill of Rights, was firm on the right to own property: ‘All men and women and lawfully constituted bodies are entitled to the peaceful enjoyment of their possessions, including the right to acquire, own, or dispose of property in any part of the country without distinction based on race, colour, language, gender, or creed.’ The draft also made provision for the payment of compensation in cases where rights to property, including land, had been deprived: ‘Compensation shall be just, taking into account the need to establish an equitable balance between the public interest and the interest of those affected.’ Disputes over compensation would be resolved by independent tribunals or courts. Contrast this with the National Party’s negotiating position contained in Article 18 of its Bill of Rights: 18 (1)Every person shall have the right, individually or with others, to acquire, possess, enjoy, use and dispose of, including disposal by way of testamentary disposition or intestate succession, any form of movable and immovable property.

(2) Subject to the provisions of subsection (3) no person shall be deprived of his property otherwise than under a judgment or order of a court of law. (3) Property may be expropriated for public purposes, subject to the payment within a reasonable time of an agreed compensation or, failing such an agreed compensation, of compensation in cash determined by a court of law according to the market value of the property. (4) Every person shall have the right not to be subjected to taxes on property which will have a confiscatory effect or will make unreasonable inroads upon the enjoyment, use or value of such property.

The consequences of this formulation would have been devastating for any land reform programme. Private property would have been entrenched as a right in the Constitution. The state would have had no power to expropriate any property – only courts could do so. Expropriation would have been tied to the ‘market value of the property’ and paid in cash.

The final constitutional product reflected all the elements that the ANC had presented at the Constitutional Assembly. The right to hold property was not expressly and positively stated in the final draft of the Constitution. The opening clause to Section 25 recognises the right of everyone not to be deprived of property in an arbitrary fashion. Underlying this provision is the acceptance of existing property holdings, which the Constitution protects in the circumstances outlined in this clause. However, the right of the state to deprive individuals of property was explicitly inserted. There was no entitlement to market-related compensation; only ‘just’ compensation would be allowed. Finally, disputes over compensation would be decided by courts. These provisions were not accepted by other political parties. This outcome was not the result of generosity from the National Party, which had spent its time during the negotiations on two questions: First, it sought to separate land from property. Second, it wanted to preserve the position of white farm owners to reduce the scope of possible restitution. Sheila Camerer, who was the main spokesperson of the National Party, made the following comment on 17 August 1993: The ANC added a rider. Firstly they didn’t want property rights entrenched in the Bill as a basic right and we said well that’s the bottom line with us. So it’s eventually been included but with all sort of qualifications which we find unacceptable at this stage so what we’re haggling over now is how to amend the qualifications. They want to deal in that clause with the whole question of restoration of property and restitution of rights to property and so on. We acknowledge that it has to be dealt with but I don’t think we agree that it should be dealt with there. It should perhaps be dealt with in another way through the Land Claims Court or Forum or Commission. As we know, right until August 1993, the National Party objected to the proposed property clause of the ANC.2

For the ANC, it was crucial that any property clause should not restrain the state’s ability to restore land to the victims of forced removals. Also important was that the fiscus of the nascent democratic state should not be burdened by a market-based compensation scheme. Opposition to these two principles embedded in the property clause was not only political; it was also from powerful judicial and commercial interests. Camerer’s was not the only dissenting voice. There was scepticism from the judiciary too. Michael Corbett, the chief justice at the time, who was making a submission on behalf of the judiciary, wrote a memorandum to the Technical Committee on Fundamental Rights, dated 3 September 1993.3 In this document, Corbett set out the judiciary’s objection to the draft clause on property rights. In the first instance, he argued that the clause failed to ‘make provision for the protection of ownership and occupation’ of immovable property, such as land. This failure to make provision for the right to own property rendered the clause inconsistent with one of the ‘main incidents’ of property rights, which included ‘the right to defend [the owner’s] ownership or occupation and even to call on the assistance of the State in such defence’. The draft compensation clauses also came in for criticism. The judiciary objected to the inclusion of ‘history of acquisition’, ‘interests of those affected’ and ‘current use of the property’ as factors to be considered in an expropriation and determination of compensation. Reserving the most direct criticism for the history of acquisition, Corbett stated: ‘In any event, what is meant by the history of its acquisition? Is it intended that one should have regard to all previous transactions relating to the acquisition of the property or the legal regimes under which the property was acquired?’ Finally, the memorandum proposed the removal of the right to property restitution from the structure of Section 25, noting that restitution in land requires special measures, such as those provided by the Land Claims Court. Camerer also referred to another concern raised in the negotiations, which found its way into Section 25 of the final draft: For instance, just to give you one example, in terms of customary law women don’t really have equality, married women, they are under their husband’s power in terms of control over the property of the marriage and so on and they are legally minors and of course black women find this very unsatisfactory but the Chiefs are trying to perpetuate their positions to dole out land, to determine succession and keep women subservient. Some of the Chiefs actually said at the Council that they don’t believe women are equal which we thought was very brazen of them.4

In fact, it seems to have been a concern of the ANC to protect rural dwellers against the arbitrary use of power by chiefs, by changing their tenure rights over land. This was later a key campaign element of the RDP: ‘Land is the most basic need for rural dwellers. Apartheid policies pushed millions of black South Africans into overcrowded and impoverished reserves, homelands and townships. In addition, capital-intensive agricultural policies led to the large-scale eviction of farm dwellers from their land and homes.’5 Despite the formidable challenges to the draft property clause, the ANC’s key proposals were endorsed during the negotiations. The groups that were opposed to the ANC’s proposed clause took the fight to the Constitutional Court, which had the mandate to certify the final draft of the Constitution. Certain principles against which the Constitution would be tested had been agreed up front. The ANC supported the confirmation of the Constitution, which contained no positive right to property, allowed expropriation of all property in the public interest and for public purposes, and rejected market-based compensation. There was, however, further contestation over the draft property clause. Up for debate at the

Constitutional Court was the failure of the draft Constitution to allow for the positive right to hold property, which was strenuously opposed by the ANC. The argument was roundly rejected by the court, which ruled that the right to acquire and dispose of property is ‘implicit’ in Section 25.6 Thus, its negative expression in the draft Constitution did not breach the principles of international law. Turning to expropriation, the objectors argued that the criteria for expropriating for land reform were vague and that the failure to provide for market-based compensation fell short of international norms. These suggestions were rejected, with the court affirming the state’s right to expropriate private property and dismissing any entitlement to market-based compensation. In sum, the ANC was the clear winner in the negotiations on Section 25 of the Constitution. Its draft text was accepted with minimal modifications. A fair summation would be that if Section 25 was a compromise, it was a heavily contested one.

New debates on the amendment Despite these successes in the design of the Constitution, soon after it was adopted, policy decisions favoured market-based approaches, the tool of expropriation was never used, and the position of rural farm dwellers was not given priority. It was manifest that the system would implode from within. These failures of land reform are often blamed on the Constitution’s supposedly restrictive design. Although it could be argued that the framework is restrictive when applied in the real world, one must recall that the negotiations largely favoured the ANC’s positions. In that sense, at least, the Constitution is the wrong target. Post-liberation politics and the adoption of market-friendly policies have failed the Constitution’s ambitious socially redistributive and inclusive goals. It is not as if limits in the law are a bad thing. Legal constraints to governmental power are necessary. We know from experience that what has slowed down the transformation of property relations are design flaws in legislation, inefficiencies of the land administration system, endemic corruption and the misapplication of the Constitution, particularly the slavish adherence to the market-driven compensation formula. For its part, the Constitution was designed to be openended and transformative. In the first decade of the new dispensation, Pius Langa, then deputy chief justice, explained: It seems to me that our Constitution expressly avoided the approach to the calculation of compensation set out in the Expropriation Act, which has been the approach in South Africa for many years. In my view, the Constitution expressly insists upon a different approach – one which makes justice and equity paramount, not as a second-level ‘review’ test but as the test for the calculation of compensation.7

Despite all of this, the dominant political view today is that Section 25 should be amended to allow for expropriation of land without compensation. When the discussion was first introduced, the motivation for the amendment was that Section 25 constrains the transformation of property relations. The ANC’s resolution of December 2017 makes this plain. First, the ANC committed to ‘pursue with greater determination the programme of land reform and rural development as part of the programme of radical socio-economic transformation’.8 Expropriation of land without compensation then emerged as one of the mechanisms to achieve the goal of ‘giving effect to land reform and redistribution’. Arguments were put forward indicating that Section 25 already provides for the expropriation of land at less than market-value prices. The justification for the amendment has now shifted somewhat. The preamble to the draft amendment bill records that the intention behind the amendment is to ‘make explicit that which is implicit therein, so that an amount of nil compensation is explicitly stated as a legitimate option for land reform’. The weakness in this explanation is self-evident. If the Constitution allows, implicitly, for the compulsory expropriation of land without compensation, then why amend it rather than enforce it? Despite these questions, which have not been seriously engaged with, the ANC might as well resort to its majority status in Parliament and push for the amendment, together with any of the opposition parties in support of the proposed amendment. If we accept democratic outcomes, in the language of politics, the amendment might make sense as a political response to pressure from below. The proposed amendment might pass the political standard. Yet it remains an open question whether or not it also satisfies the constitutional test of rationality. The Constitutional Court has ruled that the requirement of rationality as a constraint to the exercise of public power ‘applies also and possibly with greater force to the exercise by Parliament of the powers vested in it by the Constitution, including the power to amend the Constitution’.9 Parliament can establish the rationality of the amendment in various ways. First, it can show that the amendment is related to a legitimate purpose. It has been suggested that the amendment fulfils a clarificatory function: ‘making explicit what is implicit’. Another justification has pointed to the slow pace of land reform. There is some doubt about the rational cogency of either explanation. To begin with, there is no evidence of confusion as to the constitutional permissibility of expropriation with no compensation – this is a matter of interpretation. At the present moment, no case has been

brought to the courts testing the proposition. The second explanation is not satisfactory either. Compensation has not blocked land reform, but other factors have. To be constitutional, better explanations are needed why the amendment meets rationality standards.

The text of the amendment While doubts as to the rationality of the amendment linger, some attention must go to the draft text of the amendment. The amendment appears in a proviso to Section 25(2)(b), which states: Provided that in accordance with subsection (4A) a court may, where land and any improvements thereon is expropriated for the purposes of land reform, determine that the amount of compensation is nil.

What does this proviso mean? In exploring this question, we should remember that the purpose is to ‘make explicit the implicit’. But does it? The most sensible reading is that the proposed section means no more than that a court may determine that in a particular case, land or improvements on land may be expropriated without compensation. But when will this be the case? How does an owner of land know that it is liable to be taken with no compensation? These questions are not answered in the proviso but in another proposed amendment, subsection 4A, which enables national legislation to be passed to set out these instances. Clearly, the intention is not for a blanket form of expropriation without compensation but for a calibrated categorybased model. There are further ambiguities: assuming that land falls within the category identified in national legislation for expropriation without compensation, how will a court determine if it should be treated this way? The answer to this lies in the existing formulation of ‘justice and equity’. So, if land falls in a category identified by national legislation for compulsory expropriation without compensation, a court must apply the formula of justice and equity to finally determine if it should be done. But there is a further question: how should it be decided if it is just and equitable to take land without compensation in a specific case? I suggest that the focus should be on striking an equitable balance between the interests of the expropriated owner and the public interest. An ‘equitable balance’ accepts the historical position of the entrenched racialised ownership rights for the property. It also accepts the primary object of the Constitution as upending unfair property holdings. Equity is about deliberate measures to overcome past injustices. Thus justice enters the frame. But both parties are entitled to justice: the expropriatee and the beneficiary. Proportionality is necessary to strike the right balance. One person should not be made responsible to carry the burden of transforming property relations. As a default position, expropriation should be compensable, but on the just and equitable scale. Only as the exception should expropriation be without compensation. Some further considerations may tilt the scale: How was the land acquired? What investments have been made? What is the purpose of the acquisition by the state? And what is the value of the land? These factors are relevant in deciding whether there should be no compensation. But every decision must reflect proportionality and equity. The amendment has further implications. We should draw a distinction between two separate acts: the act of expropriation and the decision to compensate the owner of the expropriated property. The state retains the right to expropriate. This is the current position. The amendment will not change much. The power to decide if compensation for expropriated land should be paid lies with the courts, not the government. This has always been the case. The existing Section 25(2)(b) provides that any compensation to be paid to a property owner must either be agreed to ‘or decided or approved by a court’. The amendment simply adds that in addition to the power to decide what amount of compensation is just and equitable, courts should also decide whether compensation is payable at all. The second facet of the amendment is the category of the property to which it applies. The amendment pertains only to ‘land’ and ‘improvements thereon’. It excludes other forms of property, such as stocks, pensions, cash and credit. It is notable, however, that Zimbabwe’s constitutional regime of nil compensation, usually (and wrongly) cited as a model for us, is restricted to agricultural land, defined as land used or suitable for agriculture, that is to say for horticulture, viticulture, forestry or aquaculture or for any purpose of husbandry, including – a. the keeping or breeding of livestock, game, poultry, animals or bees; or b. the grazing of livestock or game; but does not include Communal Land or land within the boundaries of an urban local authority or within a township established under a law relating to town and country planning or as defined in a law relating to land survey.10

Many will view such a limitation to land as a positive thing. Yet South Africa’s present laws do not restrict ‘land’ to ‘agricultural land’. And ‘property’ is also broader than land. So by excising from the scope of the amendment other forms of property, the implications may turn out to be negative. The argument in favour of the present formulation is based on the flexibility of what qualifies as ‘just and equitable’. Particularly, it has been argued that a compensation regime

based on justice and equity should factor in the land’s history and present use, as well as the purpose of the acquisition. The existing constitutional model may allow for above-market-value compensation – for instance to landholders in Xolobeni, whose land was expropriated to make way for mining – while also contemplating below-market-value compensation to commercial landholders when making way for low-cost housing. By fixing the target of ‘nil compensation’, the consequences of the proposed amendment might set market-based compensation as the default for all other property categories. This is a retrogressive step in a constitutional dispensation whose aim is to resolve unfair patterns of property holding. When one takes into account that land taken in 1913 has since transmogrified into stocks, pensions and other items of value, focusing on land might only scratch the surface of property relations, leaving the property regime unchanged. It would leave the benefits historically derived from landholding unchanged. There is a further definitional question: what precisely is land, or improvements on land? While this question may appear churlish, it is not hard to conceive of disputes about whether the business of farming is an ‘improvement on land’ or if a simple structure, such as a house, might qualify. Zimbabwe’s Constitution defines land as including ‘anything permanently attached to or growing on land’. Taking this definition, houses and agricultural produce would be regarded as part of the land. South African legal authorities are replete with the notions of ‘improvements’ on land. But none of these legal definitions have taken place in the context of expropriation for land reform. A reimagination of these concepts would be necessary to give effect to the purpose of the amendment. Not all land can be compulsorily acquired for nil compensation – only that which falls into the categories identified in national legislation. But how does the national legislation identify those categories? Section 25 is premised on the idea of ‘striking a balance’ between the interests of landowners and the public. National legislation, however, may provide further elaboration. But it would be arbitrary to identify a particular piece of ground for expropriation without compensation. Only the identification of general categories will pass muster. Identifying these categories requires further thought. Theories of private property are based on the legitimacy of the original acquisition. State interference with private property is usually justified where the acquisition is itself tainted. This is why schemes to rectify past violent acquisitions, such as those that occurred under colonialism, are accepted in law as just. But the rectification of past wrongs may not be enough. The operation of current markets may ossify in ways that exclude the majority from participating effectively in the economy no matter how hard they work. This on its own may produce forms of unfairness that render the democratic state unstable. And this too can justify interference with private property rights. The categories that meet these basic criteria might qualify for expropriation without compensation. One could be land that was improperly acquired, either by force, illegality or some dishonest act, such as a ‘hijacking’. Another could be land that is not currently being used productively or which is being held purely for speculation. The features of these categories would fit the philosophical justification for state expropriation without compensation. While not all land is liable for expropriation with no compensation, the proviso in the draft constitutional amendment is even narrower. Only where land is taken for ‘the purposes of land reform’ would it be justified for the state to pay no compensation. ‘Land reform’ is not a term with a precise definition. But it is taken generally to refer to three pillars of land reform that are recognised by the Constitution: land redistribution, restitution and tenure security. There are other legitimate uses of land, including development, primary agriculture and food production. These are not included in the scope of the amendment. Notably, the amendment doesn’t use the constitutional phrase ‘public interest’ to justify providing no compensation. Instead, it reduces the scope of public interest by restricting the application of the nil-compensation clause to land taken for land reform. Yet if land was needed for other public-interest reasons, just and equitable compensation would need to be paid. Other categories of land would still attract just and equitable compensation. As experience shows, however, the risk of calcifying the compensation formula into a purely market-based system looms large. Finally, the spotlight must shift to the rule of law. The centrality of courts as arbiters of disputes in society is entrenched in the Constitution. Not only is the law supreme, but judicial pronouncements are also final and binding on other organs of state. The amendment affirms this. It provides that only a court may decide whether nil compensation is to be paid. A flexible standard of what is just and equitable should still be applicable in cases of disputes over compensation. Unless legislation further elucidates the content of justice and equity, courts will continue to operate from a legislative blank slate. Many will view this as slowing down land reform because disputes over compensation are notoriously slow to resolve in courts. Yet the rule of law is a crucial safeguard against the rule of the strong. Another important element of the rule of law is the absence of wide executive discretion. The amendment curtails this by leaving the contours of the law to the legislature, which should define three important aspects: which land, for what payment and for what purpose? Because ours is a representative government, not only should attention be paid to the constitutional amendment process, but focus should also be given to the subsidiary legislation, as much will turn on its content.

A worthwhile exercise? Bearing in mind the emotional, intellectual and financial investments that have gone into the project of expropriation without compensation, was the exercise worth it? In one sense, yes. The exercise has brought home the reality that land reform must be anchored in the rule of law. And many now appear to accept this as true. But in another sense, no. The true challenge of land reform still lies in the structural flaws of the system, weak and dysfunctional institutional structures, corrupt officials, greedy landowners, the absence of people-centred ethics in the political class, and failures of the legislature to translate the Constitution into tangible laws. It is by refocusing the debate on these known challenges that land reform can be meaningful. After the amendment, 19 June 1913 shall remain the date from which any claims of restitution can be made. Since this date validates in law violent seizures of land that occurred during the colonial era, an alternative avenue for reversing colonial conquest has to be found. The state’s programme of land redistribution governed by old order legislation remains on the statute books, with its ambiguous terms. State policies on the payment of compensation are based on a willingseller, willing-buyer approach. These remain among the central constraints to a sustainable land reform project. They will not be changed by an amendment to the Constitution.

Prospects for the Expropriation Bill If the proposed amendment to Section 25 of the Constitution is off to an unpromising start, should we pin our hopes for substantive land reform on the draft Expropriation Bill? In October 2020, the government published the Expropriation Bill to replace the 1975 Expropriation Act. This was a third attempt at a general expropriation law since the Constitution came into effect. The first draft law on expropriation, produced in 2008, was hastily withdrawn from the parliamentary programme, amid an outcry from property owners. Another attempt, in 2015, went one step further and gained approval from Parliament. While awaiting the president’s signature, the bill was withdrawn because of concerns about its constitutionality. While the possible amendment to the Constitution is still being discussed, the Department of Public Works and Infrastructure has published a draft Expropriation Bill. In Section 3, the bill authorises the minister of public works to expropriate in the public interest or for public purposes. Other state institutions may also request the minister to expropriate on their behalf. The bill restricts the minister’s power of expropriation to ‘property which is connected to the provision and management of the accommodation, land and infrastructure needs of an organ of state, in terms of the Minister’s mandate’.11 To understand this provision, one needs to consider the minister’s ‘mandate’. No legislation spells out the mandate of the Public Works Department, but in terms of the Constitution, ministers are responsible for the powers and functions assigned to them by the president. The minister of public works is assigned the responsibility of being the custodian and manager of all the national government’s immovable properties. The minister decides on the accommodation, infrastructure and land needs of the state. The State Land Disposal Act of 1961, which enables the state to dispose of and sell its own land, also falls under the administration of the public works portfolio. What is notable is that the mandate of this department is confined to state needs. This is distinct from the needs of the individuals and communities who may require land for agricultural purposes or for settlement. The reference to ‘public interest’ in the bill does not change its focus – the minister’s powers of expropriation can only be used to satisfy accommodation, infrastructure and land needs of the state. This places a significant limitation on the possibility of the new legislation being the prime instrument for land reform. It may be argued, contrary to what I have stated, that the minister responsible for land reform and land affairs may request an expropriation in the public interest as per Section 3(2) of the bill. In this way, expropriation could serve broader land reform objectives, beyond the needs of the state. The problem, however, does not go away. Any expropriation by the minister of public works – including any request by the minister responsible for land reform – is narrowly confined to the needs of the state. We may then ask why a statute that has been lauded in some quarters for its transformative potential is designed so restrictively. Part of the answer is historical. During apartheid, the expropriation powers of the state were linked to the needs of the state. It was only when the 1996 Constitution was introduced that expropriations were considered for broader social and economic purposes, in pursuit of land reform objectives. Yet the statutory remnants of apartheid continue to linger and may have been inadvertently cemented in the new bill. Another explanation for why the expropriation powers are so limited has to do with overlapping mandates between the land reform and public works portfolios. While the Constitution mentions land reform as a facet of public interest, land reform falls outside the scope of the Department of Public Works. A separate ministry is responsible for land affairs, agriculture and land reform in general. The purpose of confining the powers of the minister in the Expropriation Bill to state needs may be designed to avoid duplication and conflicts arising from territorial disputes. These justifications aside, the limitations alluded to here leave land reform in a quandary. Should expropriations for land reform be assigned to the specific minister responsible for land affairs and agriculture? Some critics have pointed to the apparent failure of the land affairs ministry to enforce its own expropriation powers. This is a reference to Section 42E of the

Restitution of Land Rights Act of 1994. This section grants the minister of land affairs the power to expropriate land for land reform purposes. The criticism overlooks the narrow framing of the legislation. The Restitution Act permits an expropriation only where the beneficiary is entitled to restitution of a right in land: the beneficiary of an expropriation decision must be a land claimant whose claim has been successfully decided in their favour by the Land Claims Court, or, alternatively, whose land claim is uncontested. If no restitution of a right in land is due, alternative relief – such as a different piece of land – can also be provided through expropriated land. Where there is no land claim at all, the expropriation powers in the Restitution Act can only be used if the acquisition of the land is ‘directly related to’ or ‘affected’ by a successful land claim. Either way, the gateway to the exercise of the expropriation powers for land reform purposes by the land affairs department is the existence of a successful or uncontested land claim. This enables the minister to expropriate the claimed land or another piece of land if there is a connection that warrants it. We should therefore consider the further limits and possibilities of the Expropriation Bill. The bill envisages a process that commences with an investigation into registered and unregistered rights over a property that has been identified as suitable for expropriation. Registered rights may include rights of lease, while unregistered rights may include informal rights, such as the right to graze cattle or bury relatives there. An expropriation decision may extinguish these rights, so an investigation is necessary to establish their existence. A notice of expropriation is then issued if the property is deemed eligible, at which point the property rights vest upon the state. As a result, the state may exercise any rights of ownership. A crucial distinction is made by the draft legislation between the decision to expropriate and the payment of compensation: the property vests upon the state at the date that the notice of expropriation is served, whether compensation has been paid or not. Unregistered rights over the property are simultaneously transferred when the property is expropriated. Compensation claims are not limited to owners and persons with formal rights over the property; unregistered rights may also be compensated on the just and equitable criteria. Such claims, however, should be made within thirty days after the expropriation. It may be considered that the period is too short for holders of unregistered rights over land, as they may often be unaware of their rights, owing to their socio-economic status. The draft legislation thus imposes an obligation on the property owner to disclose any unregistered rights over the property, if they know of them. If the owner fails to do so, they are liable for any costs incurred in having to pay compensation after payment to the owner. Section 12 of the bill retains the formula of ‘justice and equity’ for the determination of compensation as contained in the Constitution. But unlike the Constitution, the bill provides a list of exclusions for the process of determining compensation. The government must not take the following into account: (a) a lack of consent by the owner; (b) the suitability of the property for its intended use where it is unlikely that the property would have been acquired for the same use in the open market; (c) enhancements in the value of the property, if these are a result of using the property unlawfully; (d) improvements on the property after the expropriation notice has been served, except if the state has agreed; (e) anything done with the object of obtaining compensation; and (f) any enhancement or depreciation in the value of the property that is linked to the property. These exclusions are designed to prevent an artificial ‘expropriation market’, where prices are solely influenced by the expropriation. It is unclear if this will result in substantial cost savings by the state unless the criteria are applied in large-scale expropriations for land reform, over a sustained period. One of the reasons why the state’s land reform programme has not achieved meaningful reductions in land prices has been the decisions of the property valuation industry, which typically values property solely through market value. A new standard for land evaluation in the land reform context, whose foundations appear in the draft law, should be anchored in the notions of justice and equity. The argument that justice and equity are terms that are too imprecise to help determine a price no longer has any credibility. Market value is itself an approximation. And our supreme law – the Constitution – cannot be sidelined by opaque valuation standards: property valuation criteria are subject to the law, not the other way around. Expropriation for ‘nil’ compensation is one of the more contested features of the proposed law. Nil compensation is not on its own a yardstick for compensation. Rather, it is a possible outcome in the consideration of justice and equity, which remains the compensation test. Nil compensation applies only to land, not other classes of property, to which the bill applies. The consequences of this segmentation would be welcome by opponents of expropriation without compensation. But the rationality in the distinction between land and other forms of property for the purposes of applying nil compensation is not immediately obvious. One possible justification is that granting no compensation in the land context is necessary to give effect to equitable access to land, which the Constitution itself expressly mentions.12 Land, more than other property types, is also a marker of racial discrimination from the colonial and apartheid periods. It is worth noting that the bill envisages that the power of expropriation should be employed as a last resort when no agreement can be reached with the property owner. If expropriations are the exception, then the most drastic form – that with nil compensation – should be reserved for a narrow category, to be used proportionally and on a targeted basis. Thus, a statute that carves

out land from general property, for special purposes, is justified. I have argued above that if the Constitution creates specific categories of land that may be expropriated without compensation, then that cannot be a closed list. The Expropriation Bill provides an inexhaustive list of five land categories that can be expropriated without compensation: land held ‘to benefit from the appreciation of its market value’; land held by an organ of state, obtained for no consideration and not being used for the core functions of that organ; abandoned land; where the market value is equivalent or less than the direct state investment in the land; and where the condition of the land (referred to incorrectly in the bill as ‘property’13) poses a health, safety or physical risk to persons or other property. A special category of claims for awards in land by labour tenants is mentioned as a possibility where nil compensation may be considered just and equitable. Two reasons may be strong pointers for not paying compensation in this category. First, the impact on the owner is usually minimal – only a small portion of the land would typically be claimed by the labour tenant. Second, labour tenancy emerged from a particularly horrific episode in our history in which people were forced into unpaid labour. This is summed up in the definition of a ‘labour tenant’, which includes a person ‘who has or has had the right to use cropping or grazing land on the farm … of the owner, and in consideration of such right provides or has provided labour to the owner’. Landowners who have benefited from the unremunerated work of labour tenants for substantial periods have no justifiable claims to further benefits from state compensation. We have focused on the special attributes of the bill that impact on land reform. Although the prospects it has in this regard are limited, the bill could be reimagined and expanded. Doing so requires us to keep in mind that one of the prime purposes of expropriation must also include land reform.

Conclusion The Future of Land Reform We are now near the end of this book. I hope it will be a start to conversations about a principled approach to land reform beyond the current stagnation. Land reform should reconcile three intersecting currents: correcting historical wrongs, confronting the persisting inequities of the present, and securing an equality-based future. The state’s own programme for the restitution of land has been in disarray since 1994, virtually since its launch. Instead of providing a rational anchor around which previous land dispossessions could be forgiven, the cut-off date of 19 June 1913 has aggravated the prevailing dispossession. The limits of the law have been exposed in the struggle for the return of the land. People who believed in the historical legitimacy of their claims were surprised when they were told that they did not have a claim in law because their forebears lost the land before 19 June 1913. Moreover, claimants who believed that they were a community at the time of their dispossession were told that the law defines a community differently. Public funds that were allocated for the promotion of the public good by paying landholders in exchange for availing land to the claimant categories, which often include descendants of South Africa’s indigenous people, have gone to waste. With the passage of time, records have been lost, memories have faded, and witnesses have died. The experts – historians, lawyers, anthropologists and property valuers – have displaced the landed and the landless as the central players in the land debate. Women, who are meant to be the prime beneficiaries of land restitution, have been displaced from the queue by politicians and their cronies. The system has been captured by the elite. Amid the public discontent about the failure of land reform, a sense of directionlessness prevails within the bureaucracy. Overlapping and concurrent mandates, weak institutions, and an absence of community-support organisations have contributed to a decline in enforcing the law. Yet laws themselves do not go far enough to give effect to the goals of the Constitution. Multiple policy proposals have hardly served to illuminate the debate. Take for instance the Ingonyama Trust land: despite the government having been advised by at least three credible research-based bodies that the correct approach is to redistribute that land directly to the communities occupying it, there is official reluctance, as the state yields to the pressure exerted by chiefs and traditional institutions. The introduction of the Office of the Valuer-General, which was intended to bring clarity to the proper terms of land valuation, has added to the confusion. Cases are stuck in the Land Claims Court over disputes about the legal validity of the land price determined by the Valuer-General. Not only is there a pervasive sense of a policy void, but many claims are also not being processed simply because of disagreements about money. The notion of expropriation without compensation, notwithstanding its attendant definitional complexities, has emerged as an attractive ‘solution’ to the perceived crisis. So as we conclude, let us return to some conceptual questions. Specifically, how can the achievement of freedom, equality and human dignity through the restoration of land rights be attained? I propose a redistributive model, but under certain conditions. The redistribution of land to those in need is emerging as a viable focal point for advancing the goal of access to land. And for sound reasons too: while not eschewing historical claims to land, the redistribution of land connects the past with the present. It recognises that the conquest of the native people of this country was not a single event, characterised by a once-off taking of the land. Rather, it was gradual and totalising in its design. The conquest of land supported the entire colonial project, concentrated on the extraction of cheap African labour, the destruction of the political autonomy of African communities, and the deliberate disruption of African modes of being. In sum, the taking of land was only an instrument in the total cultural, social and economic domination of native peoples. In undoing that legacy, the return of the land should be restorative of African people’s humanity. Transactions over the ‘return’ of land are incomplete without restoring the dignity of those from whom it was taken. But what land should be redistributed? Some commentators have focused on state land. Yet South Africa’s land surface is 121 million hectares. Out of this, just 18 million hectares is owned by the state, and only about 2 per cent of state-owned land is suitable for redistribution. According to the 2017 state land audit, 94 million hectares of land in South Africa is privately owned.1 This means that only by focusing on privately owned land can we address the legacies of the past and undo present inequities. If privately owned land is the general category, how do we move to the specific? How does the state choose which privately owned land should be earmarked for expropriation to promote the public good? The moral justification, embodied in

our Constitution, for the compulsory taking of private land still lies in history: if present ownership is directly linked to morally questionable acquisitions, such as those that took place under conquest, then state interference with private property is justified. But as Robert Nozick suggests in Anarchy, State, and Utopia, the primary principled justification for state interference with private property fades into irrelevance once the historical injustice has been addressed.2 This opinion generates further questions about the type of state he had in mind. How can society right the wrongs of the past without creating new patterns of injustice? So, beyond the complexities of history and moral justification, practical questions about the productive use of a finite resource like land must come to the fore. Thus, any redistributive model should start with the premise that land will not be available forever and is to be productively used for society’s benefit. But it is also an inheritance for future generations. The key condition for the compulsory taking of land by the state for redistributive purposes must be that the private holders are not currently using it productively. Specific categories can be developed to carry this out: farmland lying fallow and hijacked or abandoned buildings fit the general criteria for such properties. But the important point to justify the compulsory taking of land is its non-productive holding. Reversing structural inequality is therefore not only about access to land but also its use. While categories are warranted, they cannot be fixed. Instead they ought to be flexible. The draft Expropriation Bill of 2020 is correct in not referring to the categories as an exhaustive list. Although state-owned land is scarce, other land is held indirectly by the state in various forms, such as communal land under the custodianship of traditional leaders. There is controversy about this category of land. But we should recall that a constitutional mandate – apparently observed only in the breach – is that the state must take measures to foster conditions that enable citizens to gain access to land on an equitable basis. The colonial state was founded on the idea of depriving Africans of land tenure. A key part of this was reorganising the political administration of black communities into so-called tribal areas, native yards and Bantu reserves. In each of these, political control was entrenched in the hands of governmentselected tribal overlords, who owed no allegiance to the people but to the masters who selected and appointed them. Mahmood Mamdani, in his book Citizen and Subject, referred to these phenomena as reflective of a ‘bifurcated state’ and the ‘indirect rule’ of Africans.3 The white colonial state lorded over African subjects, who were centrally controlled in terms of Eurocentric versions of ‘native law’. The Constitution was intended to reverse this by recasting the relationship between African communities, their chiefs and the land. Thus, for redistribution to succeed, it should uproot the colonial state and its surviving stubborn tentacles: the people, not the chiefs, should control the land. While communal land provides a measure of tenure security, tenure over urban land is even more precarious. Studies by the World Bank show an urbanisation rate of more than 60 per cent in the past twenty years in South Africa. The message is clear: the colonial state disrupted the country’s agrarian societies to an irrevocable degree. Access to rural land or farms will not satisfy the land hunger. Urban land must be factored into the frame. But the term ‘urban land’ might require some unpacking. If we apply the ANC’s ‘Ready to Govern’ document of 1992, recognition was given first to land acquisitions. The state, it proposed, ‘should therefore have the power to acquire land in a variety of ways, including expropriation’. Yet expropriation could not be the sole means of land acquisition. Other policy instruments, including ‘land taxes which, if correctly applied, could have the effect of land being freed for redistribution’, were to be considered. Land taxes are no longer within current policy thinking, which has tended to focus narrowly on acquisition through expropriation. However, land-acquisition strategies can be undermined by a loss of extant rights to the land. Popular wisdom holds that unlawful land occupations detract from an orderly programme of land reform. The origins of this view cannot be separated from the colonial era, during which ‘squatting’ on land was considered a criminal offence. The criminalisation of squatting also served political and economic goals. Take, for instance, Law 21 of 1895 – the ‘Squatters’ Law’ – passed in the Transvaal. In its preamble, the law recorded the necessity to take ‘measures for the prevention of the spread of diseases, the safeguard of its population, the encouragement of free labour, and the checking of squatting, living or congregating of natives or other coloured persons in places other than those appointed by the Government’. A person could avoid the criminal label of squatter if they were registered with an employer, typically a farmer. Another squatting law, the Native Labour Locations Act of 1899, passed in the Cape Colony, disallowed squatting in a ‘private location’, which was defined as ‘any number of huts on private property occupied by one or more native male adults, such occupants not being in the bona fide and continuous employment of the owner or occupier of such land’. So, the criminalisation of squatting by the colonial state served the dual function of maintaining racial segregation by establishing native locations and ensuring the availability of native labour for the new emerging colonial economy. In the mid to late twentieth century, it was no longer considered palatable for the laws to explicitly compel people to work on the pain of arrest. Yet the law continued to criminalise squatting, now with the focus on the enforcement of the apartheid residential divide. Laws such as the Prevention of Illegal Squatting Act of 1951 continued the legacies of the colonial period.

Earlier squatting laws explicitly linked land occupation with the provision of labour. The 1951 squatting law simply created an offence of squatting if an occupation of land was for no ‘lawful reason’ or was done without the consent of the land’s owner. Alongside the squatting law was the Trespass Act of 1959, which made it an offence for any person to enter or be upon land without permission from its owner, with the exception of that person otherwise having a ‘lawful reason’ to be there. These laws sanctioned forced removals, often by police and the army. With such a chequered past, it is no wonder that in the constitutional era, evictions had to be revisited. But even in that reconsideration, it is still the case that land occupations continue to be viewed as being in conflict with the state’s long-held intention to make land available to those who are entitled to it. Recent experiences here and abroad, however, show that land occupations by the truly landless can often facilitate a radical land reform programme, if official responses do not consist of rubber bullets and water cannons. One example is the Joe Slovo informal settlement in the Western Cape. The land, which was owned by the municipality, was gradually illegally occupied from the early 1980s, with informal structures being erected. Earlier governmental responses included forced removals by the police. This did not deter further occupations. By 1990, more than 20 000 people had taken residence at the settlement. There was also a change of attitude by the government, which began providing water, toilets, refuse removal, roads and electricity. A court action for the eviction of the occupiers ended up at the Constitutional Court in 2010, where the court permitted the eviction, but on terms favourable to the residents. A year later, the government abandoned the eviction and began developing the area while the residents remained in occupation. Today, the Joe Slovo settlement is being converted to formal housing. An eviction would have disrupted the lives of thousands of people, with no clear public benefit. Similar approaches to land occupations are better suited to the requirements of justice and equity, as described in the Constitution, rather than using evictions as the default response to every unlawful occupation of land. Domestic laws already validate ‘unlawful’ land occupations where justice and equity demand. Extending the notion of justice and equity to situations of genuine need for land – such as with the Joe Slovo settlement – and proven state failures to avail alternative land can bring hundreds of unlawful occupiers within the protective ambit of legislation, such as the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998. The state should recognise that eviction is not always the answer to unlawful land occupations – resettlement often provides the correct, justice-based answer. But a state such as ours can neither encourage land occupations nor depend on them for land reform. Proactive action is mandated by the Constitution. But where to begin? As a party in government, the ANC does not start from a blank slate. Its 1992 ‘Ready to Govern’ document is more illuminating than anything that it has produced in recent times. Four categories of urban land were targeted for immediate redistribution when it assumed power: ‘land held for speculation; underutilised land or unused land with a productive potential; land which is being degraded; hopelessly indebted land’. The precise definitions are, of course, a matter for legislative and statutory expansion, but the point is to identify land categories for urban land redistribution without compensation. We now know that the ANC’s land legacies for the past twenty-five years have been failure and disappointment. This should not define the future, however. If land reform under the rule of law is about the restoration of African identities, we should interrogate what precisely was lost in the years of conquest. Land was not the only asset. Cattle, farming implements, labour and human potential were taken away. African societies were broken up, their cultures ravaged, and their identities erased. Legalistic formulations of ‘restitution’ or ‘redistribution’ are too narrow to fully capture the scope of meaningful restoration. A forward-looking reparative project is urgent. We need a new way to look at the future. This is the debate of the ages. Now is not the time for narrow legalism but substantive justice. We should face the past. Not to repeat it, but to meet the claims for justice. Land reform is not the problem of judges alone. No doubt they should define its legal parameters, as Judge Edwin Cameron recently showed in the 2019 case of Mwelase.4 The case placed into sharp focus the plight of labour tenants, whose claims to the land had been ignored for about twenty years. Judge Cameron spoke of the ‘promise and the snag’. The promise of land reform is a central feature of the struggle for freedom. The snag is the sacrifice of collective aspirations in favour of personal advancement by the ruling class. The future is the fulfilment of that promise. This was not the first time that Judge Cameron had spoken about the Constitution as a promise of freedom. Three years earlier, he outlined a vision for the future amid the complexity and confusion of our past(s) in the Salem Party case.5 This was a claim for the restitution of the land known as the Salem Commonage – a 5 000-square-kilometre area between the Great Fish River to the north and the Bushman’s River to the south. The claimants – the descendants of an African community – relied on indigenous ownership of the farm. They asserted that they were dispossessed of the land between 1947 and the 1980s. The Constitutional Court ruled that the community was entitled to certain rights over the commonage land, although not on an exclusive basis. These rights included those to bury their dead, accommodation, grazing and access to the

land. The court’s holding that ‘in approaching and understanding what the historical sources tell us, we seek to find habitable means of upholding and fulfilling the statute’s restorative principles of historical justice’ is a powerful statement reminding us that the law can bridge the past and present. The Constitution contains a vision to correct historical claims to justice. Experience over the past twenty-five years shows we have not always taken the lessons of our Constitution to heart. We have much to learn from our own Constitution. But there is a lot of time ahead too. Past inaction should not justify today’s misaction. What is important is to do the right thing, in the right way. An imaginative, expanded and transformative vision of the Constitution and its statutory progenies is needed. If we take this lesson seriously enough, the ‘transformation’ of property relations might serve not to entrench the colonial property framework in its imperial guise, as it has so far under the ANC government, but to challenge and confront it. Perhaps we might also think beyond the straitjacket of redistributing land from private hands to private hands. We might also expand our vision to multiple forms of landholding. We might also accept that the primary beneficiaries of land should be those who work it. Farmworkers should be at the forefront, not at the back. The politicians and their auxiliaries should not feature. To make the Constitution count, we should refocus it. Its ultimate goal is to dismantle the colonial and apartheid state. The ability of the rule of law to deliver justice is severely stretched in the debates for the return of land. But arguments that question the utility of the rule of law in this struggle overlook the centrality of law during the struggle against apartheid. I do not mean that law was an instrument of the struggle. Many have made that point before me.6 I mean that the struggle was also for the law. Our forefathers were in the struggle so that we could have access to the law. They used politics. They used violence. They used the courts. They were not fighting for the vote alone. Nor were they fighting for the land alone. They were also fighting for the law. We cannot abandon the law. We need the law to define our rights. We need the law to set the limits on government action. But we do not need just any laws. We need laws that embed justice. Laws that correct the past. Laws that secure the future. It is this version of the rule of law for which we should continue the struggle. There can be no struggle for the return of land without the rule of law

Acknowledgements In February 2018, a few months after the publication of my previous book, The Land Is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism, Parliament began to debate seriously the possibility of amending the Constitution of South Africa to provide for the expropriation of land without compensation. In January 2019, my publishers asked if I could write a book on the contemporary debates on land reform. Some of the material which has made it into this book was already written by then. In the following months, I did further research, delivering papers and speeches on different platforms. In 2020, the idea of collating the material I had written into a book took shape. Wandile Sihlobo, to whom I am thankful, also encouraged me to do this. Most of the research and writing took place during the period of the national lockdown arising from COVID-19 pandemic restrictions, from March to November 2020. Some people were helpful in discussing some of the draft chapters with me, providing me with a critique of the arguments as well as the manner and style of presentation. Vauldi Carelse who read the earlier drafts of the first few chapters reminded me to write for ordinary readers. Phakamisa Ndzamela and Mpumelelo Mkhabela critiqued some of the content and provided me helpful feedback. Dr Sithembile Mbete read the chapter on women and land and gave me valuable suggestions. The chapter on expropriation benefited from some of the ideas contained in a joint paper prepared by Michael Bishop and me in 2018. I also discussed some the ideas in the book with Professor Mcebisi Ndletyana, Dr Bongani Ngqulunga, Busani Ngcaweni and Lesetja Kganyago. I am grateful to each of them for their time and interest in these topics. Robert Plummer at Penguin was extremely helpful in reorganising the chapters, for a better flow. His editorial suggestions saved me from embarrassment. I am, however, solely responsible for any errors in the book.

Notes INTRODUCTION 1. Quoted in Roger S. Levine, A Living Man from Africa: Jan Tzatzoe, Xhosa Chief and Missionary, and the Making of Nineteenth-Century South Africa (New Haven: Yale University Press, 2011), p. 185. 2. John Francis Cradock, ‘Letter to Lord Liverpool’, 7 March 1812, quoted in Ben Maclennan, A Proper Degree of Terror: John Graham and the Cape’s Eastern Frontier (Johannesburg: Ravan Press, 1986). 3. Quoted in Jan Bart Gewald, ‘The Great General of the Kaiser’, Botswana Notes and Records 26, 1994, p. 71. 4. No. 40 of 1902. While the stated intention of the Act was to control the spread of the bubonic plague epidemic, it also served a political purpose, namely the establishment by law of segregated residential areas. 5. South African History Online, ‘King Sekhukhune’ (available at https://www.sahistory.org.za/people/king-sek hukhune; accessed 15 October 2020). 6. This is taken from the court record of the trial of State v. Nelson Mandela held in the Old Synagogue court, Pretoria, from 15 October to 7 November 1962. There were two charges against Mandela. The first was that between 1 April and 31 May 1961 he had incited workers to stay away from work illegally as a means of protesting against various (apartheid) laws. The second charge was that he had left the country without a valid passport for his visit to other African countries. Mandela defended himself. In his defence, he applied for the recusal of Magistrate W.A. van Helsdingen, whom Mandela knew from legal practice, in what has become known as the ‘Black Man in a White Man’s Court’ speech (available at https://www.un.org /en/events/mandeladay/court_statement_1962.shtml; accessed 6 January 2021). 7. Bruce J. Berman, ‘Ethnicity, Patronage and the African State: The Politics of Uncivil Nationalism’, African Affairs 97 (388), July 1998, pp. 305–341. 8. Nelson Mandela, ‘Address by President Nelson Mandela at the commemoration of the restoration of land, Cremin’ (available at http://www.mandela.gov.za/mandela_speeches/1998/980623_cremin.htm; accessed 16 October 2020). 9. William Faulkner, Requiem for a Nun (London: Vintage, 1950). CHAPTER 1: THE CRIME OF APARTHEID 1. United Nations, ‘International Convention on the Suppression and Punishment of the Crime of Apartheid’, 30 November 1973 (available at https://treaties.un.org/doc/publication/unts/volume%201015/volume-1015-i -14861-english.pdf; accessed 21 October 2020). 2. Years before he became prime minister, Verwoerd had favoured ‘separate development’ for the ‘different races’. He told the Native Representative Council after the 1948 election that ‘resentment and revenge’ between whites and blacks was inevitable in the contest for scarce employment opportunities. The only way out of this, he proclaimed, was to ‘adopt a development divorced from each other’. Separation had to be imposed wherever practicable ‘to avoid the most terrific clash of interests imaginable’. Hermann Giliomee, ‘A Note on Bantu Education, 1953 to 1970’, South African Journal of Economics 77 (1), 1 March 2009, pp. 190–194. See also https://fabryhistory.com/2015/05/11/apartheid-a-policy-of-good-neighborliness/, accessed 21 October 2020. 3. United Nations, ‘Universal Declaration of Human Rights’, 10 December 1948. 4. Stockholm International Forum, ‘Stockholm Declaration’, Article 3 (available at https://worldholocaustforu m.org/stockholm-declaration/; accessed 21 October 2020). 5. United Nations, ‘The International Convention on the Suppression and Punishment of the Crime of Apartheid’, 1974 (available at https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.10 _International%20Convention%20on%20the%20Suppression%20and%20Punishment%20of%20the%20Cri me%20of%20Apartheid.pdf; accessed 21 October 2020). 6. Jewish Virtual Library, ‘Holocaust Restitution: German Reparations’ (available at https://www.jewishvirtualli brary.org/german-holocaust-reparations; accessed 6 January 2021). 7. Ibid. 8. Jewish Telegraphic Agency, ‘Jewish Delegation Presents Claims Against Germany to State Dept’, 9 November 1951 (available at https://www.jta.org/1951/11/09/archive/jewish-delegation-presents-claims-aga inst-germany-to-state-dept; accessed 21 October 2020). 9. Looted Art, ‘Conference on Jewish Material Claims against Germany (Claims Conference)’ (available at http s://www.lootedart.com/MG7UK965162; accessed 6 January 2021). 10. Jewish Telegraphic Agency, ‘Ben Gurion Praises Goldmann Role in Negotiations’ 25 September 1952 (available at https://www.jta.org/1952/09/25/archive/claims-conference-ratifies-reparations-pact-with-germa ny; accessed 21 October 2020). 11. Ibid. 12. Baffour Ankomah, ‘The Butcher of Congo’, October 1999 (available at http://www.hartford-hwp.com/archive s/35/181.html; accessed 21 October 2020). 13. US Slave, ‘Namibia Genocide and the German Second Reich’, 4 November 2014 (available at http://usslave. blogspot.com/2014/11/namibia-genocide-and-german-second-reich.html; accessed 21 October 2020). 14. Claims Conference, ‘65 Years of the Claims Conference’, October 2016 (available at http://forms.claimscon. org/chronology/Chronology-65-web.pdf; accessed 21 October 2020). 15. Ibid. 16. Ibid.

17. World Bank, ‘Overcoming Poverty and Inequality in South Africa’, March 2018 (available at http://document s1.worldbank.org/curated/en/530481521735906534/pdf/124521-REV-OUO-South-Africa-Poverty-and-Inequa lity-Assessment-Report-2018-FINAL-WEB.pdf; accessed 21 October 2020). CHAPTER 2: APARTHEID, CAPITALISM AND LAND 1. It is worth noting that although limited franchise rights for natives were preserved in the Cape, such rights could be taken away on the whim of the all-white Parliament. Many years later, and despite judicial disagreement, the whites-only Parliament changed the law and disenfranchised native and coloured people of the Cape. 2. ‘Transvaal Volksraad Resolution’, 10 June 1891. 3. South African History Online, ‘Glen Grey Act (The Native Issue) by Cecil John Rhodes, July 30 1894, Cape House Parliament’ (available at https://www.sahistory.org.za/archive/glen-grey-act-native-issue-cecil-john-rh odes-july-30-1894-cape-house-parliament; accessed 21 October 2020). 4. Ibid. 5. Sampie Terreblanche, ‘A Wealth Tax for South Africa’, Southern Centre for Inequality Studies, University of the Witwatersrand (available at https://www.ekon.sun.ac.za/sampieterreblanche/wp-content/uploads/2018/0 4/SCIS-Wealth-Tax-for-SA-2018-SJT.pdf; accessed 21 October 2020). 6. Ibid. 7. Bill Freund, ‘Forced resettlement and the political economy of South Africa’, Review of African Political Economy 11 (29), 24 February 2007, pp. 49–63. 8. ‘Black spots’ refer to land acquired by Africans on a freehold basis before the coming into effect of the Natives Land Act of 1913, but which was not included in the ‘scheduled areas’ in terms of the Act. These pockets of land were usually in white areas, which is why they were referred to as ‘black spots’. Once the Natives Land Act came into operation, most of these black spot areas had to be cleared for white settlement. 9. Alan Dodson, ‘The Natives Land Act of 1913 and its legacy’, Advocate (available at https://www.gcbsa.co.za/ law-journals/2013/april/2013-april-vol026-no1-pp29-32.pdf; accessed 21 October 2020). 10. Cosmas Desmond, The Discarded People: An Account of African Resettlement (Harmondsworth: Penguin, 1969). 11. Desmond, The Discarded People, in Laurine Platzky and Cherryl Walker, Surplus People: Forced Removals in South Africa (Johannesburg: Ravan Press, 1985), p. 7. 12. Truth and Reconciliation Commission, ‘Truth and Reconciliation Commission of South Africa Report: Volume 6’, March 2003, p. 151. 13. Transvaal and Orange Chamber of Mines, The Mining Industry: Evidence and Report of the Industrial Commission of Enquiry (Cambridge: Cambridge University Press, 2013), p. 110. 14. François du Bois and Antje du Bois-Pedain (eds.), Justice and Reconciliation in Post-Apartheid South Africa (Cambridge: Cambridge University Press, 2008), p. 192. 15. Truth and Reconciliation Commission, ‘Volume 4’, p. 58. 16. Richard Hengeveld and Jaap Rodenburg (eds.), Embargo: Apartheid Oil Secrets Revealed (Amsterdam: Amsterdam University Press, 1995), p 21. 17. Truth and Reconciliation Commission, ‘Volume 6’, p. 153. 18. Du Bois and Du Bois-Pedain, Justice and Reconciliation in Post-Apartheid South Africa, pp. 192–193. 19. Sampie Terreblanche, ‘Testimony before the T.R.C. on the Role of the Business Sector’, 11 November 1997 (available at https://www.ekon.sun.ac.za/sampieterreblanche/wp-content/uploads/2018/04/SJT-1997-TRC-tes timony-1-1.pdf; accessed 6 January 2021). 20. African National Congress, ‘Special TRC hearing submission’ (available at http://www.anc.org.za/content/an c-submission-special-trc-hearing-role-business; accessed 12 September 2018). 21. Ibid. 22. O’Malley: The Heart of Hope, ‘Business and the white minority state’ (available at https://omalley.nelsonma ndela.org/omalley/index.php/site/q/03lv02167/04lv02264/05lv02303/06lv02317/07lv02318/08lv02320.htm; accessed 21 October 2020). 23. Antjie Krog, Country of My Skull (Johannesburg: Random House, 1998), p. 239. 24. Ibid., p. 241. 25. Truth and Reconciliation Commission, ‘Volume 6’, pp. 153–154. 26. African National Congress, Truth and Reconciliation Commission Hearing Submission (African National Congress, 1997). Copy with the author. 27. Ibid. 28. Terreblanche, ‘A Wealth Tax for South Africa’. 29. Warren Buford and Hugo van der Merwe, ‘Reparations in Southern Africa’, Cahiers d’études africaines 44 (1–2), 2004. CHAPTER 3: RACE AND DISPOSSESSION 1. Joseph Conrad, Heart of Darkness and The Secret Sharer (New York: Penguin, 1997). 2. Saul Dubow, Scientific Racism in Modern South Africa (Cambridge: Cambridge University Press, 1995), p. 5. 3. Thomas Carlyle, ‘Occasional Discourse on the Negro Question’ (London: J. Fraser, 1983). 4. Friedrich Nietzsche, Human, All Too Human (Cambridge: Cambridge University Press, 2007). 5. Alan Lester, Imperial Networks: Creating Identities in Nineteenth-Century South Africa and Britain (London: Routledge, 2001), p. 182. 6. Ben Maclennan, A Proper Degree of Terror: John Graham and the Cape’s Eastern Frontier (Johannesburg: Ravan Press, 1986), p. 128. 7. Ibid. 8. Neil Davie, ‘Dissecting the Races of Men: Robert Knox, Anatomy & Racial Theory in Britain, 1820–1870’ (available at https://www.academia.edu/6074467/_Dissecting_The_Races_of_Men_Robert_Knox_Anatomy_an

d_Racial_Theory_in_Britain_1820-1870_2011_?auto=download; accessed 21 October 2020). 9. Ibid., p. 5. 10. Ibid., p. 8. 11. Ibid., p. 9. 12. Douglas Lorimer, Science, Race Relations and Resistance, 1870–1914 (Manchester: Manchester University Press, 2013), pp. 3–10. 13. Ibid., p.4. 14. For Robert Knox, however, life would take a different turn. Towards the end of his life, his views appear to have moderated somewhat. In an anonymous piece for the illustrated London Magazine, he reflected on an Anglo-Boer raid on the Xhosa in 1819 where he had seen men ‘hunted and shot down like beasts’ and children ‘brought into the colony as booty’. 15. It appears that David Arnot did not in fact qualify as a lawyer. But he served as a ‘law agent’ and representative of the Griqua in their claims for land. This description of him appears in Martin Meredith, Diamonds, Gold, and War: The British, the Boers, and the Making of South Africa (New York: PublicAffairs, 2008). 16. South Africa, ‘Alexkor Ltd and Another v. Richtersveld Community and Others (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC)’, 14 October 2003. 17. Hermansberg Mission Society v. Commissioner for Native Affairs [1906] T. S. 135. 18. United Settlement, ‘In Re: Southern Rhodesia 1919 AC 211’ (available at http://www.uniset.ca/other/cs2/19 19AC211.html; accessed 6 January 2021). 19. Ibid., p. 235. 20. Sobhuza II v. Miller and Others (available at https://www.casemine.com/judgement/in/56b4961b607dba348f 016ac1; accessed 6 January 2021). CHAPTER 4: ABOUT THE STOLEN CATTLE 1. H.C.V. Leibbrandt and Jan van Riebeeck, Precis of the Archives of the Cape of Good Hope, December 1651 to December 1653 (Cape Town: W.A. Richards & Sons, 1897), pp. 1–3. 2. Ibid., pp. 4–6. 3. Ibid., pp. 7–10. 4. Ibid. 5. Richard Elphick, Khoikhoi and the Founding of White South Africa (Johannesburg: Ravan Press, 1985), pp. 161–162. 6. Jan van Riebeeck, Journal of Jan van Riebeeck, Volume I, 1651–1655 (Cape Town: A.A. Balkema, 1952), p. 312. 7. Jan van Riebeeck, Journal of Jan van Riebeeck, Volume II, 1656–1658 (Cape Town: A.A. Balkema, 1954), pp. 90–94. 8. Elphick, Khoikhoi and the Founding of White South Africa, p. 162. 9. John Milton, The Edges of War: A History of Frontier Wars (1702–1878) (Cape Town: Juta & Co, 1983), p. 281. 10. In reference to Maqoma, an accomplished Xhosa warrior and commander. 11. Quoted in Jeff Peires, The House of Phalo: A History of the Xhosa People in the Days of their Independence (Johannesburg: Jonathan Ball, 2003), p. 178. 12. Ibid., p. 179. 13. Ibid. 14. Ibid. 15. Natal Witness, 21 August 1846. 16. Graham’s Town Journal, 20 November 1852. 17. Timothy J. Stapleton, Maqoma: Xhosa Resistance to Colonial Advance 1798–1873 (Jonathan Ball: Johannesburg, 1994), p. 165. 18. The Graham’s Town Journal of 9 August 1856 is reproduced in the Natal Witness, 12 September 1856. 19. The Natal Witness of 11 January 1856 carried a report that ‘fifty thousand Kafir cattle have died within the last six months’. 20. Charles Brownlee, Reminiscences of Kafir Life and History and Other Papers (Lovedale Mission Press, 1916), p. 137. 21. Jeff Peires, The Dead Will Arise: Nongqawuse and the Great Xhosa Cattle-Killing Movement of 1856–7 (Johannesburg: Jonathan Ball, 1989), p. 245. 22. Ibid., p. 269. 23. Charles Brownlee, Reminiscences of Kafir Life and History, pp. 144–145. 24. Peter Delius, The Land Belongs to Us: The Pedi Polity, the Boers and the British in the Nineteenth-Century Transvaal (Johannesburg: Ravan Press, 1983), p. 38. 25. Ibid., p. 40. 26. Ron Lock and Peter Quantrill, Zulu Victory: The Epic of Isandlwana and the Cover-Up (London: Greenhill Books, 2002), p. 57. 27. John Laband, Rope of Sand: The Rise and Fall of the Zulu Kingdom in the Nineteenth Century (Johannesburg: Jonathan Ball, 1995), pp. 114–115. 28. Ibid., p. 124. 29. Quoted in Edward Muntu Masina, Zulu Perceptions and Reactions to the British Occupation of Land in Natal Colony and Zululand, 1850–1887: A Recapitulation Based on Surviving Oral and Written Sources (PhD, University of Zululand, 2006), pp. 272, 291–292. 30. Quoted in Joanne Yawitch, Betterment: The Myth of Homeland Agriculture (Johannesburg: South African Institute of Race Relations, 1981), p. 9. 31. Ibid., p. 10. 32. W.M. Tsotsi, Out of Court: Experiences of a Black Lawyer in Apartheid South Africa, unpublished

manuscript. Copy with the author. 33. Cape Times, 27 November 1950. 34. Govan Mbeki, South Africa: The Peasants’ Revolt (London: International Defence and Aid Fund for Southern Africa, 1984). CHAPTER 5: CHIEFLY POWER 1. It was said that the key to Shepstone’s ‘success’ in implementing his policies among the Zulu people was that he ‘knew the native mind’ and played the role of ‘an African chief with pomp and swagger’, while it was his own belief that his Nguni name Somtsewu ‘inspired awe and respect [among natives] everywhere’. He was raised in the Cape and spoke fluent isiXhosa, which made the transition to the related language of isiZulu easy. Despite his claim, however, he was not respected by all African communities, as illustrated by the fact that his transfer from the Cape to Natal was because his life was under threat from Mfengus who were unhappy about his administration. See ‘The “Shepstone system” in the Colony of Natal and beyond the border’ by Norman Etherington, in Andrew Duminy and Bill Guest (eds.), Natal and Zululand from Earliest Times to 1910: A New History (Pietermaritzburg: University of Natal Press, 1989), pp. 170–192. 2. John Laband, Rope of Sand: The Rise and Fall of the Zulu Kingdom in the Nineteenth Century (Johannesburg: Jonathan Ball, 1995), p. 154. 3. The commission consisted of five members, namely Theophilus Shepstone; William Stanger (surveyor general); C.J. Gibb (engineer); and two American missionaries, Newton Adams and Daniel Lindley. 4. ‘Correspondence Related to the Establishment of the Settlement of Natal, Presented to both Houses of Parliament by Command of Her Majesty, July 1848’ in Jeff Guy, Theophilus Shepstone and the Forging of Natal: African Autonomy and Settler Colonialism in the Making of Traditional Authority (Pietermaritzburg: University of KwaZulu-Natal Press, 2013), p. 132. Guy argues that the statement from the commission has been used uncritically by historians and that it cannot be directly attributed to Shepstone, as he was only one of five commissioners. There are two problems with Guy’s argument on this score. First, Shepstone was a leading member of the commission. Second, Norman Etherington in his article ‘Jeff Guy’s Theophilus Shepstone: A study in character’ points to Shepstone’s actual words, written a few years after the 1847 report: ‘The chiefs now view themselves as the hereditary representatives of the Government to their several tribes.’ He went on to say that an estimated one-third to half of the African population were ‘without any hereditary head or chief’. ‘Where there is no chief the persons appointed to act as such should be accountable to the Government through him for the manner in which they govern their respective tribes’ (available at http://transformationjournal.org.za/wp-content/uploads/2018/04/T90_Part7.pdf; accessed 12 January 2021). 5. ‘Correspondence Related to the Establishment of the Settlement of Natal’, p. 134. 6. British Parliamentary Papers (BPP): Natal. Further Correspondence Related to the Settlement of Natal (In continuation of Papers presented July 30, 1851), No. 9 Extract of a Despatch from Lieut.-Governor Pine to the Governor-General, dated Government House, Natal, November 1, 1851. See Jacob Mckinnon Ivey, The Making of Natal: Defensive Institutions and State Formation in Nineteenth Century Southern Africa (PhD, West Virginia University, 2015). 7. Jeff Guy argues that the 1875 laws displaced the Shepstone system entirely. I think, however, that a better reading of the effect of the 1875 laws is that they entrenched and consolidated a system of administration that had been some forty years in the making. From then on, with the imprimatur of law, African laws would be subject to ‘superior’ British laws. African communities, previously in flexible territories without rigid borders, would be forced to live in strictly regulated native ‘locations’. 8. The supreme chief was the governor-general, an official appointed by the colonial administration. 9. David Welsh, The Roots of Segregation: Native Policy in Colonial Natal, 1845–1910 (Cape Town: Oxford University Press, 1973), pp. 168–169. 10. Fred Barnard, 13 Jaar in die skadu van Dr. H.F. Verwoerd (Johannesburg: Voortrekkerpers, 1967), p. 44. 11. As prime minister, Verwoerd repeated this view on 3 February 1960: ‘The white man who came to Africa, perhaps to trade, and in some cases, to bring the Gospel, has remained and we particularly, in this southernmost portion of Africa, have such a stake here that this has become our only motherland. We have nowhere else to go. We settled a country which was bare. The Bantu too came to this country and settled certain portions for themselves. It is in line with thinking on Africa to grant them there, those fullest rights which we with you, admit all people should have. We believe in providing those rights for those people in the fullest degree in that part of Southern Africa which their forefathers found for themselves and settled in’ (available at https://www.sahistory.org.za/archive/hendrik-verwoerd-10-quotes-hendrik-verwoerd-politics -web-20-september-2016; accessed 12 January 2021). 12. A.N. Pelzer (ed.), Verwoerd Speaks (Johannesburg: APB Publishers, 1966), p. 338. 13. ‘Firing Line with William F. Buckley Jr.: The Question of South Africa’ (available at https://www.youtube.com /watch?v=VVWh01yCoIQ; accessed 12 January 2021). 14. Ibid., pp. 10–11. 15. D. Hobart Houghton, ‘The Significance of the Tomlinson Report’ (available at https://disa.ukzn.ac.za/sites/d efault/files/pdf_files/asjan57.4.pdf; accessed 26 October 2020). 16. Ben Temkin, Buthelezi: A Biography (Abingdon: Routledge, 2002), p. 305. 17. Mangosuthu Buthelezi, ‘M&G chose “good story” over truth’, Mail & Guardian, 5 June 2020 (available at ht tps://mg.co.za/opinion/2020-06-05-right-of-reply-mg-chose-good-story-over-truth-buthelezi/; accessed 22 February 2021). 18. South Africa, ‘Ingonyama Trust v. Radebe and Others (9403/2009) [2012] ZAKZPHC 2; [2012] 2 All SA 212 (KZP)’, 25 January 2012 (available at http://www.saflii.org/za/cases/ZAKZPHC/2012/2.html; accessed 26 October 2020). 19. South Africa, ‘Maledu and Others v. Itereleng Bakgatla Mineral Resources (Pty) Limited and Another (CCT265/17) [2018] ZACC 41; 2019 (1) BCLR 53 (CC); 2019 (2) SA 1 (CC)’, 25 October 2018 (available at h ttp://www.saflii.org/za/cases/ZACC/2018/41.html; accessed 26 October 2020). 20. South Africa, ‘Baleni and Others v. Minister of Mineral Resources and Others (73768/2016) [2018] ZAGPPHC 829; [2019] 1 All SA 358 (GP); 2019 (2) SA 453 (GP)’, 22 November 2018 (available at http://ww w.saflii.org/za/cases/ZAGPPHC/2018/829.html; accessed 26 October 2020). 21. Khulekani Magubane, ‘Mantashe: Government appealing Xolobeni ruling to prevent “chaos” in mine

licensing’, Fin24, 4 February 2019 (available at https://www.news24.com/fin24/Special-Reports/Mining-Inda ba/mantashe-government-appealing-xolobeni-ruling-to-prevent-chaos-in-mine-licensing-20190204; accessed 12 January 2021). CHAPTER 6: PROPERTY AND THE FRANCHISE 1. See J.R. Milton, ‘John Locke and the Fundamental Constitutions of Carolina’, The Locke Newsletter 21, 1990, pp. 111–113. 2. David Armitage, ‘John Locke: Theorist of Empire?’, in Sankar Muthu (ed.) Empire and Modern Political Thought (Cambridge: Cambridge University Press, 2012), pp. 84–111. 3. South Africa, ‘Report of Commission of Inquiry Regarding Cape Coloured Population of the Union’ (Pretoria: Government Printer, 1937), p. 212. 4. Quoted in Tim Keegan, Dr Philip’s Empire: One Man’s Struggle for Justice in Nineteenth-Century South Africa (Cape Town: Penguin, 2016), p. 136. 5. Harry George Wakelyn Smith, The Autobiography of Lieutenant-General Sir Harry Smith (San Francisco: Pickle Partners Publishing, 2011), Chapter XXXV. 6. J.A.I. Agar-Hamilton, The Native Policy of the Voortrekkers (Cape Town: Maskew Miller, 1928), p. 88. 7. By the Charter of Natal, which officially separated the Colony of Natal from the Cape Colony. 8. L.M. Thompson, The Cape Coloured Franchise (Johannesburg: South African Institute of Race Relations, 1949), p. 5. 9. These terms referred to uneducated Africans. 10. Minutes of the proceedings of the South African Customs Union, Bloemfontein, March 1903 (available at ht tps://babel.hathitrust.org/cgi/pt?id=hvd.hnf1hx&view=1up&seq=13). On 16 March 1903, when the final resolutions were read out, the quoted part was excluded. But there was a new insertion on land: ‘That the reservation by the State of land for the sole use and benefit of natives involves special obligations on their part towards the State’. Notably, no similar provision was made with regard to whites. One explanation is to be found in the views expressed by Godfrey Lagden, at the time the Transvaal native affairs commissioner, who pushed for a resolution that ‘South Africa is essentially a white man’s country’. 11. Ibid. 12. Ibid. 13. Ibid. 14. Ibid. 15. Ibid. 16. Quoted in Colin Tatz, Shadow and Substance in South Africa: A Study in Land and Franchise Politics Affecting Africans 1910–1960 (Pietermaritzburg: University of Natal Press, 1962), p. 14. 17. South Africa, ‘Rex v. Ndobe 1930 AD 484’. 18. White women were granted the right to vote in South Africa in 1930. 19. South Africa, ‘Rex v. Ndobe’. 20. Ibid., p. 491. 21. Ibid., p. 495. CHAPTER 7: PRIVATE PROPERTY AND LIBERATION 1. The 1923 Bill of Rights is reproduced in Kader Asmal, David Chidester and Cassius Lubisi (eds.), Legacy of Freedom: The ANC’s Human Rights Tradition (Johannesburg: Jonathan Ball, 2005). 2. ‘Resolutions of the South African Native National Congress’, 10 April 1906, reproduced in Gail M. Gerhart and Sheridan Johns, From Protest to Challenge: A Documentary History of African Politics in South Africa, 1882–1990 (Johannesburg: Jacana, 2017), p. 143. 3. Ibid., p. 151. 4. Ibid., p. 152. 5. Ibid., p. 169. 6. Ibid., p. 176. 7. Ibid., p. 178. 8. South African Native National Congress, ‘Resolution against the Natives Land Act 1913 and the Report of the Natives Land Commission’, 2 October 1916. 9. Donna Andrews, Capitalism and Nature in South Africa: Racial Dispossession, Liberation Ideology and Ecological Crisis (PhD, University of Cape Town, 2018), pp. 50–53. 10. Quoted in Veit Erlmann, Music, Modernity, and the Global Imagination (New York: Oxford University Press, 2008), p. 71. 11. Ibid., p. 72 12. Gerhart and Johns, From Protest to Challenge, p. 229. 13. ‘Preface to the Africans’ Claims in South Africa by Dr Alfred Xuma’ (available at https://www.sahistory.org.z a/archive/african-claims-south-africa-dr-xuma-anc-conference-1943; accessed 12 January 2021). 14. Ibid. 15. Papers of Professor Z.K. Matthews, University of South Africa Institutional Repository, B2 (available at http: //uir.unisa.ac.za/handle/10500/4181; accessed 12 January 2021). 16. Z.K. Matthews papers, UNISA, B2. 17. Z.K. Matthews papers, UNISA, B2. 18. ‘Farrid Adams & Others v The Crown’, Historical Papers, University of the Witwatersrand (available at http: //www.historicalpapers.wits.ac.za/inventories/inv_pdfo/AD1812/AD1812-A5-001-jpeg.pdf; accessed 12 January 2021). 19. Z.K. Matthews papers, UNISA, B2. CHAPTER 8: THE SETTLEMENT OF THE 1990s 1. Luli Callinicos, Oliver Tambo: Beyond the Engeli Mountains (Cape Town: David Philip, 2004), p. 601.

2. Francis Fukuyama, ‘The End of History?’, The National Interest 16, 1989, pp. 3–18. 3. Louis Menand, ‘Francis Fukuyama Postpones the End of History’, New Yorker, 27 August 2018 (available at https://www.newyorker.com/magazine/2018/09/03/francis-fukuyama-postpones-the-end-of-history; accessed 18 November 2020). 4. Mark Gevisser, Thabo Mbeki: The Dream Deferred (Johannesburg: Jonathan Ball, 2007), p. 535. 5. African National Congress, ‘Ready to Govern: ANC Policy Guidelines for a Democratic South Africa’ (Johannesburg: Policy Unit of the African National Congress, 1992). 6. Sampie Terreblanche, Lost in Transformation: South Africa’s Search for a New Future Since 1986 (Johannesburg: KMM Review Publishing, 2012), p. 63. 7. South African History Online, ‘Evidence before the Foreign Affairs Committee of the House of Commons: Oliver Tambo, 29 October 1985, London’ (available at https://www.sahistory.org.za/archive/evidence-foreign -affairs-committee-house-commons-oliver-tambo-29-october-1985-london; accessed 31 January 2021). 8. Tito Mboweni, ‘Mboweni: BMF Corporate Update Gala Dinner (18/6/2004)’, Polity, 18 June 2004 (available at https://www.polity.org.za/article/mboweni-bmf-corporate-update-gala-dinner-1862004-2004-06-18; accessed 19 November 2020). 9. Pambazuka News, ‘The Co-optation of the African National Congress: South Africa’s original “State Capture”’, 25 January 2018 (available at https://www.ekon.sun.ac.za/sampieterreblanche/wp-content/upload s/2018/04/South-Africa%E2%80%99s-original-%E2%80%98State-Capture.pdf; accessed 19 November 2020). 10. South Africa, ‘The Reconstruction and Development Programme (RDP)’ (available at https://www.sahistory. org.za/sites/default/files/the_reconstruction_and_development_programm_1994.pdf; accessed 20 November 2020). CHAPTER 9: WHITHER RESTITUTION? 1. South Africa, ‘Land Audit’, Department of Rural Development and Land Reform, 5 September 2013 (available at https://static.pmg.org.za/140515state_land_audit.pdf; accessed 18 November 2020). 2. South Africa, ‘Land Audit Report’, November 2017 (available at https://www.gov.za/sites/default/files/gcis_d ocument/201802/landauditreport13feb2018.pdf; accessed 18 November 2020). 3. South African Institute of Race Relations, ‘Who Owns the Land?’, March 2018 (available at https://irr.org.za /reports/occasional-reports/files/who-owns-the-land-26-03-2018.pdf; accessed 18 November 2020). 4. See Anna Bohlin, ‘A Price on the Past: Cash as Compensation in South African Land Restitution’, Canadian Journal of African Studies 38 (3), 2004, pp. 672–687. 5. South Africa, ‘Mwelase and Others v. Director-General for the Department of Rural Development and Land Reform and Another (CCT 232/18) [2019] ZACC 30; 2019 (11) BCLR 1358 (CC); 2019 (6) SA 597 (CC)’, 20 August 2019 (available at http://www.saflii.org/za/cases/ZACC/2019/30.html; accessed 18 November 2020). 6. Ibid. 7. Ibid. 8. Special Investigating Unit, ‘Interim Report 2017’ (available at https://www.siu.org.za/wp-content/uploads/2 017/12/SIU-Interim-Report-2017.pdf; accessed 18 November 2020). 9. Theunis Roux, ‘Land Restitution and Reconciliation in South Africa’, in Francois du Bois and Antjie du BoisPedain (eds), Justice and Reconciliation in Post-Apartheid South Africa (Cambridge University Press, 2008), pp. 144–170. 10. South Africa, ‘White Paper on South African Land Policy’, Department of Land Affairs, April 1997 (available at https://www.sahistory.org.za/sites/default/files/whitepaperlandreform.pdf; accessed 19 November 2020). 11. South Africa, ‘In the Land Claims Court of South Africa’, 20 April 2010 (available at http://www.saflii.org/za/ cases/ZALCC/2010/19.pdf; accessed 19 November 2020). 12. Ben Cousins, ‘Land reform in South Africa is sinking. Can it be saved?’, Nelson Mandela Foundation (available at https://www.nelsonmandela.org/uploads/files/Land__law_and_leadership_-_paper_2.pdf; accessed 19 November 2020). CHAPTER 10: INEQUALITY IN LAND REDISTRIBUTION 1. Johan Galtung, ‘Violence, Peace, and Peace Research’, Journal of Peace Research 6 (3), 1969, pp. 167–191. 2. Todd Landman, Studying Human Rights (London: Routledge, 2009), p. 45. Landman argues that structuralism should be contrasted with ‘rationalism’ and ‘culturalism’. Ultimately, he advocates for a convergence among these three theories of human rights. 3. Galtung, ‘Violence, Peace, and Peace Research’, p. 169. 4. Ibid. 5. World Bank, ‘Overcoming Poverty and Inequality in South Africa’, March 2018, p. xviii (available at http://d ocuments1.worldbank.org/curated/en/530481521735906534/pdf/124521-REV-OUO-South-Africa-Poverty-an d-Inequality-Assessment-Report-2018-FINAL-WEB.pdf; accessed 20 November 2020). 6. Ibid., pp. 33–34. 7. Ibid., p. 54. 8. Ibid., p. 54. 9. Bernhard Leubolt, ‘Social Policies and Redistribution in South Africa’, May 2014 (available at https://www.g lobal-labour-university.org/fileadmin/GLU_Working_Papers/GLU_WP_No.25.pdf; accessed 20 November 2020). 10. Edward Lahiff and Guo Li, ‘Land Redistribution in South Africa: A Critical Review’, 28 May 2012 (available at http://documents1.worldbank.org/curated/en/525981468302460916/pdf/808740WP0South0ox0379822B 00PUBLIC0.pdf; accessed 20 November 2020). 11. South Africa, ‘Growth, Employment and Redistribution: A Microeconomic Strategy’, Department of Finance (available at http://www.treasury.gov.za/publications/other/gear/chapters.pdf; accessed 31 January 2021). 12. South Africa, ‘Implementation Plan for the Proactive Land Acquisition Strategy’, Department of Land Affairs, May 2006 (available at https://www.gov.za/sites/default/files/gcis_document/201409/impllandacquisi tion0.pdf; accessed 20 November 2020). 13. This is the comparative or market-data approach. Other approaches exist to decide market value, which are

(a) the income investment or economic approach, (b) the land residual technique, and (c) the cost method. These are never used in practice, as the White Paper favours a comparative approach. 14. South Africa, ‘Ash and Others v. Department of Land Affairs (LCC116/98) [2000] ZALCC 54’, 10 March 2000 (available at http://www.saflii.org/za/cases/ZALCC/2000/54.html; accessed 20 November 2020). 15. South Africa, ‘Du Toit v. Minister of Transport (CCT22/04) [2005] ZACC 9; 2005 (11) BCLR 1053 (CC); 2006 (1) SA 297 (CC)’, 8 September 2005 (available at http://www.saflii.org/za/cases/ZACC/2005/9.html; accessed 20 November 2020). 16. South Africa, ‘Mhlanganisweni Community v. Minister of Rural Development and Land Reform and Others (LCC 156/2009) [2012] ZALCC 7, 19 April 2012 (available at http://www.saflii.org/za/cases/ZALCC/2012/7.h tml; accessed 20 November 2020). 17. South Africa, ‘Pietermaritzburg Corporation v. South African Breweries, Ltd. 1911 AD 501’. 18. South Africa, ‘Minister of Agriculture v. Estate Randeree 1979 (1) SA 145 (A)’. 19. South Africa, ‘Todd v. Administrator, Natal 1972 (2) SA 874 (A)’. 20. South Africa, ‘Haffejee NO and Others v. eThekwini Municipality and Others (CCT 110/10) 2011 (6) SA 134 (CC)’, 25 August 2011 (available at http://www.saflii.org/za/cases/ZACC/2011/28.html; accessed 31 January 2021). 21. South Africa, ‘The Reconstruction and Development Programme (RDP)’. 22. African National Congress, ‘Statement to the Truth and Reconciliation Commission’ (African National Congress Department of Information and Publicity, August 1996), p. 29. 23. South Africa, ‘Komani v. Bantu Affairs Administration Board, Peninsula Area 1980 (4) SA 448 (A)’. 24. African National Congress, Statement to the TRC, p. 30. 25. The Johannesburg Sunday Times of 22 December 1968 and 12 January 1969 reported that white property speculators were making fortunes at the expense of black people who were being forced to sell their properties as a result of Group Areas proclamations. 26. South Africa, ‘The Reconstruction and Development Programme (RDP)’. 27. Ben Cousins, ‘Land Redistribution, Populism and Elite Capture: New Land Reform Policy Proposals under the Microscope’, Focus 70, October 2013. 28. Lloyd Phillips, ‘“Lack of work ethic” at agri department pushes DG to resign’, Farmer’s Weekly, 3 July 2020. 29. Cousins, ‘Land Redistribution, Populism and Elite Capture’, p. 19. CHAPTER 11: OUR MYSTERIOUS LAND TENURE 1. Henry Louis Gates Jr, ‘Forty Acres and a Gap in Wealth’, New York Times, 18 November 2007 (available at https://www.nytimes.com/2007/11/18/opinion/18gates.html; accessed 21 November 2020). 2. Lochner Marais, Joris Hoekstra, Mark Napier and Jan Cloete, ‘The housing careers of black middle-class residents in a South African metropolitan area’, Journal of Housing and the Built Environment 33 (1), January 2018 (available at https://researchspace.csir.co.za/dspace/bitstream/handle/10204/10091/Marais_2 0117_2018.pdf?sequence=1&isAllowed=y; accessed 23 November 2020). 3. Ben Cousins with Rauri Alcock, Ngididi Dladla, Donna Hornby, Mphethethi Masondo, Gugu Mbatha, Makhosi Mweli and Creina Alcock, ‘Imithetho yomhlaba yaseMsinga: The Living Law of Land in Msinga, KwaZulu-Natal’, Research Report 43, Cape Town: Institute for Poverty Land and Agrarian Studies, University of the Western Cape, 2011. 4. Ruth Hall and Thembela Kepe, ‘Elite capture and state neglect: New evidence on South Africa’s land reform’, Review of African Political Economy 44 (151), February 2017, pp. 1–9. 5. William Blackstone, Commentaries on the Laws of England in Four Books (Philadelphia: J.B. Lippincott Co., 1893). 6. Makhosandile Zulu, ‘Ramaphosa hands out title deeds in Tembisa during Thuma Mina campaign’, The Citizen, 18 May 2018 (available at https://citizen.co.za/news/south-africa/1931305/ramaphosa-hands-out-titl e-deeds-in-tembisa-during-thuma-mina-campaign/; accessed 22 November 2020). 7. See South Africa, ‘Rakgase and Another v. Minister of Rural Development and Land Reform and Another (33497/2018) [2019] ZAGPPHC 375’, 4 September 2019 (available at http://www.saflii.org/za/cases/ZAGPP HC/2019/375.html; accessed 22 November 2020). 8. Rosalie Kingwill, Ben Cousins, Tessa Cousins, Donna Hornby, Lauren Royston and Warren Smit, ‘Are Hernando de Soto’s views appropriate to South Africa?’, Graduate School of Public and Development Management, October 2007 (available at https://www.dbsa.org/EN/About-Us/Publications/Documents/De%2 0Soto%20Colloquium%20FINAL.pdf; accessed 22 November 2020). 9. Ibid., p. 58. 10. Ibid. 11. Ibid., p. 59 12. South Africa, ‘Baleni and Others v. Minister of Mineral Resources and Others (73768/2016) [2018] ZAGPPHC 829; [2019] 1 All SA 358 (GP); 2019 (2) SA 453 (GP)’, 22 November 2018 (available at http://ww w.saflii.org/za/cases/ZAGPPHC/2018/829.html; accessed 22 November 2020). 13. Kingwill et al., ‘Are Hernando de Soto’s views appropriate to South Africa?’, p. 60. 14. Andreas Scheba and Ivan Turok, ‘Informal rental housing in the South: dynamic but neglected’, Environment and Urbanization 32 (1), 31 January 2020, pp. 109–132. 15. South Africa, ‘Herbert N.O. and Others v. Senqu Municipality and Others (CCT 308/18) [2019] ZACC 31’, 22 August 2019 (available at http://www.saflii.org.za/za/cases/ZACC/2019/31.html; accessed 23 November 2020). CHAPTER 12: WOMEN’S RIGHTS TO LAND 1. Stephanie Victor, ‘Women in Captivity: Nonesi and Katye, the Wives of Xhosa Chiefs’, Bulletin of the National Library of South Africa 68 (2), 2014, p. 154. 2. Janet Hodgson, Princess Emma (Craighall: AD Donker, 1987), p. 61. 3. Ibid., p. 63. 4. Ibid., p. 64.

The war is discussed in Sandra Burman, Chiefdom Politics and Alien Law: Basutoland under Cape Rule 5. (London: Palgrave Macmillan, 1981), pp. 148–161. 6. Ibid., p. 134. 7. Ibid., p. 148. 8. Walter Stanford and J.W. Macquarrie, The Reminiscences of Sir Walter Stanford: 1850–1885 (Cape Town: Van Riebeeck Society, 1958), p. 150. 9. Report and proceedings of the Tembuland Commission (Cape Town: Government Printers, 1883), held at the University of Cape Town. 10. Quoted in Lungisile Ntsebeza, Democracy Compromised: Chiefs and the Politics of the Land in South Africa (Leiden: Brill, 2005), p. 56. 11. Chiedza Musengezi, Dorothy Driver, Leloba Molema, Margie Orford, M.J. Daymond, Nobantu Rasebotsa and Sheila Meintjes, Women Writing in Africa: The Southern Region (Johannesburg: Wits University Press, 2003), p. 92. 12. M.L. Lupton, ‘The Legal Disabilities of Zulu Women’, Reality 7 (4), 1975, pp. 6–10 (available at https://www. sahistory.org.za/sites/default/files/archive-files2/resep75.3.pdf; accessed 27 January 2021). 13. Niren Tolsi, ‘Marikana: One Year After the Massacre’, Mail & Guardian, 16 August 2013 (available at https:/ /marikana.mg.co.za/; accessed 7 November 2020). 14. Phyllis Ntantala, ‘The Widows of the Reserves’, Africa South 2 (3), 1958, pp. 9–13 (available at http://disa.u kzn.ac.za/asapr584; accessed 7 November 2020). 15. Ntantala, ‘Widows of the Reserves’, p. 1. 16. Asanda Benya, ‘The Invisible Hands: Women in Marikana’, Review of African Political Economy 42 (146), 2015, pp. 545–560. 17. Cherryl Walker, ‘Women, Gender Policy and Land Reform in South Africa’, South African Journal of Political Studies 32 (2), 2005, pp. 297–315. 18. Human Sciences Research Council, ‘Inequalities in agricultural support for women in South Africa’, November 2012 (available at http://www.hsrc.ac.za/uploads/pageContent/5325/InequalitiesLR.pdf; accessed 8 November 2020). 19. Cherryl Walker, ‘Reconstructing Tradition: Women and Land Reform’, in Paul B. Rich (ed.), Reaction and Renewal in South Africa (London: Palgrave Macmillan, 1996), pp. 144–169. CHAPTER 13: JUSTICE AND EQUITY IN COMPENSATION 1. Martin Legassick, Hidden Histories of Gordonia: Land Dispossession and Resistance in the Northern Cape, 1800–1990 (Johannesburg: Wits University Press, 2016), pp. 85–122. 2. Anna Jacob Böeseken, Slaves and Free Blacks at the Cape: 1658–1700 (Cape Town: Tafelberg, 1977). 3. South Africa, ‘Haffejee NO and Others v. eThekwini Municipality and Others (CCT 110/10) [2011] ZACC 28; 2011 (6) SA 134 (CC)’, 25 August 2011 (available at http://www.saflii.org/za/cases/ZACC/2011/28.html; accessed 27 January 2021). 4. South Africa, ‘Msiza v. Director-General for the Department of Rural Development and Land Reform and Others (LCC133/2012) [2016] ZALCC 12; 2016 (5) SA 513 (LCC)’, 5 July 2016 (available at http://www.saflii .org/za/cases/ZALCC/2016/12.html; accessed 27 January 2021). 5. World Wide Fund for Nature, ‘Water as an input in the food value chain’, 2014 (available at https://www.env ironment.gov.za/sites/default/files/docs/waterasaninputintothefoodvaluechain.pdf; accessed 10 November 2020). 6. Southern African Development Community, ‘Mike Campbell (Pvt) Ltd and Others v. Republic of Zimbabwe (2/2007) [2008] SADCT 2’, 28 November 2008 (available at http://www.saflii.org/sa/cases/SADCT/2008/2.ht ml; accessed 27 January 2021). CHAPTER 14: EXPROPRIATION AND THE BANKS 1. Charles Collocott, ‘Land Expropriation and South Africa’s Financial Institutions’, Helen Suzman Foundation, 4 September 2018 (available at https://hsf.org.za/publications/hsf-briefs/land-expropriation-and -south-africa2019s-financial-institutions#_ftn4; accessed 10 November 2020). 2. South African Reserve Bank, ‘Designing a deposit insurance scheme for South Africa – a discussion paper’, Financial Stability Department, May 2017 (available at https://www.resbank.co.za/Lists/News%20and%20P ublications/Attachments/7818/DIS%20paper.pdf; accessed 10 November 2020). CHAPTER 15: IS THE CONSTITUTIONAL AMENDMENT A PANACEA? 1. South Africa, ‘S v. Makwanyane and Another (CCT3/94) 1995 (3) SA 391 (CC)’, 6 June 1995 (available at htt p://www.saflii.org/za/cases/ZACC/1995/3.html; accessed 11 November 2020). 2. Sheila Camerer, ‘17 Aug 1993: Camerer, Sheila’, O’Malley Archives (available at https://omalley.nelsonmand ela.org/omalley/index.php/site/q/03lv00017/04lv00344/05lv00730/06lv00773.htm; accessed 11 November 2020). 3. Michael Corbett, ‘Memorandum Submitted on Behalf of the Judiciary of South Africa on the Draft Interim Bill of Rights’, 3 September 1993. Copy with the author. 4. Camerer, ‘17 Aug 1993’. 5. African National Congress, The Reconstruction and Development Programme: A Policy Framework (Johannesburg: Umanyano Publications, 1994), p. 19. 6. South Africa, ‘Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26’, 6 September 1996 (available at http://www.saflii.org/za/cases/ZACC/1996/26.html; accessed 11 November 2020). 7. South Africa, ‘Du Toit v. Minister of Transport (CCT22/04) [2005] ZACC 9’, 8 September 2005 (available at http://www.saflii.org/za/cases/ZACC/2005/9.html; accessed 11 November 2020). 8. African National Congress, ‘54th National Conference Report and Resolutions’, 26 March 2018 (available at https://www.polity.org.za/article/54th-national-conference-report-and-resolutions-2018-03-26; accessed 27 January 2021). 9. South Africa, ‘United Democratic Movement v. President of the Republic of South Africa and Others

(African Christian Democratic Party and Others Intervening; Institute for Democracy in South Africa and Another as Amici Curiae) (No 2) (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495 (CC)’, 4 October 2002 (available at http://www.saflii.org/za/cases/ZACC/2002/21; accessed 28 January 2021). 10. Section 72 of the Constitution of Zimbabwe, 2013 (available at https://www.parlzim.gov.zw/component/k2/d ownload/1290_da9279a81557040d47c3a2c27012f6e1; accessed 14 February 2021). 11. Section 3(2) of the Expropriation Bill. 12. Section 25(5) of the Constitution. 13. The section applies only to land, not other forms of property. CONCLUSION: THE FUTURE OF LAND REFORM 1. The audit is accessible on Africa Check: https://africacheck.org/fact-checks/factsheets/frequently-asked-que stions-about-land-ownership-and-demand-south-africa. 2. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 2013). 3. Mahmood Mamdani, Citizen and Subject (Princeton, N.J.: Princeton University Press, 2018). 4. South Africa, ‘Mwelase and Others v. Director-General for the Department of Rural Development and Land Reform and Another (CCT 232/18) [2019] ZACC 30’, 20 August 2019 (available at http://www.saflii.org.za/z a/cases/ZACC/2019/30.html; accessed 12 November 2020). 5. South Africa, ‘Salem Party Club and Others v. Salem Community and Others (CCT26/17) [2017] ZACC 46’, 11 December 2017 (available at http://www.saflii.org/za/cases/ZACC/2017/46.html; accessed 12 November 2020). 6. See Richard L. Abel, Politics by Other Means: Law in the Struggle Against Apartheid, 1980–1994 (New York: Routledge, 1995).

Index Abdurahman, Abdullah 85 Abolition of Racially Based Land Measures Act of 1991 96 Aboriginal Title Arguments 114 access to land 63, 104, 117–119, 128–129, 166–167, 220 accommodation in communities 70–71 accountability 9, 16–19, 131 Adenauer, Konrad 15–16 affirmative action 97 Africa 1, 83, 99 African Americans 133 ‘African Bill of Rights for South Africa’ 84–85 African Charter 190–191 African Commission on Human and Peoples’ Rights 190 African National Congress see ANC Africans agriculture 90 businesses of 31 colonialism 222 forced removals 23 labour 22, 126–127 landownership by 36–41, 62, 83, 101, 110, 137–138, 144, 183–184 middle class 134 ‘Africans’ Claims in South Africa’ 88–90 Afrikaner nationalism 84–85 Afrikaners 64 see also Boers agriculture in Cape Colony 47 cattle-culling 54–57 expropriation and 177, 183–184, 193, 203, 222 forced removals 23 global economy and 176 in homelands 65 inequality 6, 31, 118, 120–122 labour 2–3, 22, 30–31, 90, 126, 205–206, 226 labour tenants 29, 126, 181–182, 217–218, 225 land redistribution programme 125–126, 127–128, 130–131, 148–149 LRAD 122, 135 ‘partnerships’ 131 RDP 110 Settlement and Land Acquisition Grant 122 subsidies 30, 90 TRC 29 water-related reforms 187–188 women’s rights to land 157, 159–160, 164–166, 168 in Zimbabwe 209–210 alternative land, provision of 124, 181 AMCU 162 America see United States Anarchy, State, and Utopia 221 ANC ‘African Bill of Rights for South Africa’ 84–85 ‘Africans’ Claims in South Africa’ 88–90 ‘Bill of Rights for a Democratic South Africa, A’ 96–97 Constitution of South Africa 101, 202–207 Cuba and 95 elections of 27 April 1994 67, 101 Freedom Charter 88, 90–92, 95, 97, 100, 118–119 land redistribution programme 115, 225 Natives Land Act of 1913 86–88 policy 83–93, 99–102, 109, 118–122, 129, 173 RDP 101–102, 110, 120, 122, 126, 141, 205 ‘Ready to Govern’ document 97–98, 100, 102, 120, 222, 224 Rivonia Trial 92 South African Native National Congress 53, 85 transition to democracy 27, 95–101, 203–206 TRC 29, 127 Westminster system 83 ancestral land 8–9 Andrews, Donna 87

Anglican Church 156 Anglo American 26–27 Anglo-Boer War 2 apartheid businesses and 28–32 capitalism 24–28, 120–121 Constitution of South Africa 226 as crime against humanity 13–20, 24 expropriation 125, 214 forced removals 23–24, 56, 113, 116, 138, 204, 223–224 free market and 102 Group Areas Act 23–24, 31, 127–128, 138 history of 3–4, 21, 138, 144, 205 informal settlements 141 legacy of 10, 20, 109, 119–121, 130, 145 National Party and 82, 90 racial superiority and 36 segregation 63–64, 126 separate development 3, 65–66 spatial planning 126–128 squatting 223 water-related reforms 187 women’s rights to land 162 apartments 143–144 Armscor 26–27 Arnot, David 37 aspirations of a nation, shared 201–202 assets 7, 119–120, 225 Association of Mineworkers and Construction Union see AMCU Atlantic Charter 89 audits of land see land audits Australia 2, 114 Austria 19 Ayliff, William 158 backyard dwellings 140–141 banks 93, 95, 117, 134, 137, 151, 168, 193–199 Bantu Areas Land Regulations 63 Bantu Authorities Act of 1951 65, 70 Bantu Education Act of 1953 30–31 Bantu Homelands Citizenship Act of 1970 65 Bantu Homelands Constitution Act of 1971 65 Bantustans see homelands Bapedi people 2–3, 52 Bapo ba Mogale community 38 Barlow Rand 26–27 Basutoland 158 Belgium 19 belonging 8–9 ‘beneficial occupation’ 68 beneficiaries 128–130, 148, 175 Ben-Gurion, David 18 Benya, Asanda 163 Berlin Conference 1 ‘betterment’ (‘rehabilitation’) scheme 54–57 Bhambatha kaMancinza 2 Biko, Steve 28, 29 Bill of Rights 84–85, 89, 96–97, 103, 202–203 Black Areas Land Regulations of 1969 144 black economic empowerment 129 black middle class 134 black-owned businesses 31 ‘black spots’ 23 Blackstone, William 134 Bloom, Tony 27 body corporates 143 Boers 37, 49, 52–53, 78, 115, 137 see also Afrikaners Botha, Louis 86 Botha, Pieter Willem 24–25, 26, 98 BP 25, 26 Britain 1–2, 34–41, 48–49, 51–53, 75–79, 84–86, 88–89, 99–100, 109, 137, 156 British Petroleum see BP British South Africa Company see BSAC Brownlee, Charles 51 Brownlee, Mrs Charles 50 BSAC 39–40 Buckley, William, Jr 64 businesses 19–20, 25–32, 98–99, 117–118, 176, 196, 204 Buthelezi, Mangosuthu 66–67 calculation of compensation 182–185, 206

Camerer, Sheila 203–204 Cameron, Edwin 225 Campbell v. Zimbabwe 190 Canada 2, 114 Cape Colony 34–36, 43–48, 51–57, 76–83, 158, 223 Cape Peninsula Native Association 86 Cape Times 175 capital adequacy 195 capitalism 24–28, 30–32, 99–100, 120–121, 135 Capitec 195 Carlyle, Thomas 34 cash, as form of compensation 174, 180–182, 203 Castro, Fidel 95 categories of land 98, 191–192, 199, 208–211, 217, 221, 224–225 Cathcart, George 49, 78 cattle culling of 54–57 dispossession of 24, 43–57, 77, 90, 225 women’s rights to land 168 Xhosa cattle-killing 50–51, 155 Centane and Mbashe Agricultural Initiative 164–165, 168 Central Housing Board 126 Cetshwayo kaMpande, King 61 Chamber of Mines 22, 25 chiefs 48, 59–71, 83, 139, 147, 152–153, 155–157, 167, 205, 220, 222 see also traditional institutions children 119, 156–157, 187 Churchill, Winston 89 Ciskei 3, 160 Citizen and Subject 222 citizenship 21, 51 ‘civilisation’ of Africans 60, 155 class action lawsuits 19–20 classes 10, 17, 20, 117, 133, 165 cleaning services 143–144 Code of Native Law of 1878 60–62, 152 Code of Zulu Law 62 CODESA 66 Cold War 96 colonialism 33–37, 41, 48–53, 59–64, 137, 159, 162, 201–202, 213, 220, 222–223, 226 coloured people 23, 77, 82, 110, 175 ‘comfortable life’ 117–118 Commission on Restitution of Land Rights 113, 115–116, 165 communal land 63, 70–71, 136–137, 139, 146–147, 150–152, 168, 221–222 ‘Communal Land is Private Property’ (article) 69 Communal Land Rights Act of 2004 70–71, 147, 167 communal property associations see CPAs Communal Property Associations Act of 1996 150 communism 92, 95–96, 102 community, definition of 219 companies see businesses compensation for expropriated land banking system and 196–198 calculating of 122–125, 182–185, 206 categories of land 191–192 Constitution of South Africa 101, 104, 202–204, 208–210 deprivation and 173–174 informal rights to land 68 international law and 189–191 ‘just compensation’ 7–8, 97, 195, 203 justice and equity in 110, 177–180 land reforms and 188–189 manner of 174, 180–182 ‘nil compensation’ 185–186, 190, 207–212, 217–218 non-financial compensation 7, 124 ‘Ready to Govern’ document 98 reasons for 174–177 timing of 174, 180–182 Compensatory and Contingency Financing Facility 100 Conference on Jewish Material Claims Against Germany 16–17, 20 conflicts 148–150, 152 Congo 19 Congress of the People 90–91 conquest 1, 109, 221 Conrad, Joseph 33 Constitutional Court 69–71, 111, 123, 125, 145, 174, 181, 205–208, 224–226 Constitution of Cape Colony 78–79 Constitution of Namibia 5–6 Constitution of South Africa amendments to 201–218 compensation for expropriated land 124–125, 173, 178–182, 185–186, 189, 191–192

land reform and 7–8, 10, 69–70, 138, 188–189, 220–226 legislation and 145–146, 150–153, 220 transition to democracy 101, 103–105, 109–110 water-related reforms 187–188 women’s rights to land 165–169 Constitution of Union of South Africa 80–82 Constitution of Zimbabwe 4–6, 210 contract labour system 2, 29, 30 Convention for a Democratic South Africa see CODESA Convention on the Suppression and Punishment of the Crime of Apartheid 13–15 Corbett, Michael 204–205 Corman, Edward 20 corporations see businesses corruption 98, 103, 112–113, 132, 150, 206 Country of My Skull 28 courts 60, 185, 201, 203, 208–209, 212 Cousins, Ben 116, 131, 134, 136 CPAs 147, 149–150, 152 Cradock, John 35 Crania Britannica 36 credit 137, 168–169, 194 Credit Suisse 20 crimes against humanity 13–16, 19–20, 175 Cuba 95–96 culling of cattle 54–57 customary law 59–66, 70–71, 146–147, 152–153, 161, 205 cut-off date for the land claims 114–115, 213, 219 Daily Dispatch 69 Darwinism 34–36 Davie, Neil 36 Davis, Joseph Barnard 36 Dead Will Arise, The 50 De Beer, Zach 27 Deeds Office 183 Deeds Registries Act of 1937 139–140 Defence Advisory Board 26–27 De Klerk, Frederik Willem 28, 32, 67, 96, 99 Delius, Peter 52 Department of Public Works 125, 213–214 deposits, banks 195–198 deprivation of rights 173–174 Desmond, Cosmas 23–24 De Soto, Hernando 135–136, 168 diamond mining 37, 87–88, 158 dignity 220 Dingane, King 52–53 Discarded People, The 23–24 Draft Bill of Rights (1991) 202 Dube, Charles 85 Dube, John Langalibalele 85 Dubow, Saul 33 Duma, Albertina 161 D’Urban, Benjamin 37, 48, 77 Dutch East India Company 43–47 Eastern Cape 1, 8, 159, 180 economic crises 100, 133, 197–198 economic migrants 142 economic policy 99–101, 121 Edges of War, The 48 education 30–31, 79, 83, 155–157, 159–160, 165 elections of 27 April 1994 66–67, 101 elites 118, 219 Elphick, Richard 45–47 emancipation 161 Embo tribe 148–149 emotional connection to land 192 ‘empty land’ myth 64 ‘End of History?, The’ (paper) 95–96 Equalisation Fund 26 equality v. equity 178 equity 166–167, 174, 177–180, 184–192, 197–199, 208–210, 216, 224 ethnicity 8, 114, 117 evictions 140, 146, 223 experts 219 expropriation ANC and 93 under apartheid 14, 21–24 banking system and 193–199 Constitution of South Africa 7, 101, 103–104, 203–218 deprivation of rights and 173–174

in Free State 88 future of 222 inefficiencies and 176–177 in Namibia 5–6 rights of ownership 71 transition to democracy 96–98, 101, 103–104 see also compensation for expropriated land Expropriation Act of 1975 123, 125, 177, 213 Expropriation Bill of 2020, draft 199, 213–218, 221 ‘expropriation market’ 216 expropriation without compensation 6, 8–9, 173–174, 185–186, 189–191, 207–212, 217–218, 220 family structures 31, 127, 139 Fanon, Frantz 10 Farmer’s Weekly 132 farming see agriculture Faulkner, William 10 federalism 66–67 financial crisis see economic crises financial institutions see banks food, producing of 166 forced removals 23–24, 56, 62, 113, 116, 127–128, 138, 204, 223–224 foreclosure cases 194 foreign nationals 142, 191 franchise 21, 75–88, 137 Franchise and Ballot Act of 1892 79 Fraser, J.G. 80 Fraser’s Magazine for Town and Country 34 ‘free burghers’ 47 freedom 3, 10, 83–88, 225 Freedom Charter 88, 90–92, 95, 97, 100, 118–119 freehold 138–140, 144 ‘free market’ 96, 102 ‘freemen’ 47 Frontier Wars 1, 48–49, 77–79, 115, 157–158 Fukuyama, Francis 95–96 Fundamental Constitutions of Carolina 75–76 Galtung, Johan 117 gardening services 143–144 Gates, Henry Louis, Jr 133 Gaukou, Chief 46 GEAR 121 Geingob, Hage 5–6 Geldenhuys formula 182 Geleynsen, Wollebrant 44 George V, King 88 Germany 15–20, 32, 178 Gevisser, Mark 97 Giliomee, Hermann 64 Glen Grey Act of 1894 21–22, 54, 180 global economic order 6, 95, 99 global economy 176 Godsell, Bobby 28 gold mining 22, 30 Gorbachev, Mikhail 96 government see state, role of the governor-general 60, 62–63 Graham, John 1, 8, 35 Graham’s Town Journal 50 Gray, Bishop Robert 156 Great Trek 78 Grey, Sir George 8, 34–35, 51, 155–157 Griqua community 37 Group Areas Act 23–24, 31, 127–128, 138 Group Areas Development Amendment Act of 1959 128 Growth, Employment and Redistribution see GEAR ‘Gun War’ 158–159 Haarlem (ship) 43–44 Hall, Ruth 134 Heart of Darkness 33 Hemming, John 159 Herero people 1, 19 Hermannsburg Mission Society 38 Hertzog, J.B.M. 80–81, 84 Heunis, Chris 26 Hidden Histories of Gordonia 175 High Court 136–137 High Level Panel 111, 189 Hintsa ka Khawuta, King 49, 77–78 Holocaust 15–20, 32

Holomisa, Nkosi 69 homelands 3, 23–24, 64–66, 119, 138, 144–146 homelessness 126, 128 hostels 127 Housing Act of 1920 126 Hull formula 189–190 human rights 14–15, 113 Human Sciences Research Council 166 human skulls 35–36, 78 IFP 66–67 IMF 99–101 ‘improvement on land’ 210–211 Imvo Zabantsundu 52, 86 independence of African countries 6, 99 indigenous law see customary law Industrial Conciliation Act of 1924 25 inefficiencies 112–113, 132 inequality 10, 109, 119–121, 130–133 influx-control regulations 25–26, 138 informal property market 136, 140–143, 151 informal rights to land 68–69, 145–147, 215–216 informal settlements 138, 140–143 Ingonyama Trust Act 67, 70–71 Ingonyama Trust land 66–71, 220 Inkatha Freedom Party see IFP insurance 198 interest 195–196, 198–199 Interim Constitution of South Africa 101, 103, 109 Interim Protection of Informal Land Rights Act of 1996 see IPILRA International Covenant on Civil and Political Rights 14–15 International Labour Organization 120 international law 13–15, 189–191, 205 International Monetary Fund see IMF IPILRA 68–70, 145–146 Israel 15, 18–19 Jabavu, John Tengo 52, 85 Jamaica 34 Jansz, Leendert 43–45 Jennings, Hennen 25 Jewish people 16–20, 32 Joe Slovo informal settlement 136, 224 Jooste, Markus 176 ‘just compensation’ 7–8, 97, 195, 203 justice and equity 7–8, 173–192, 195, 197–199, 208–210, 216, 224 Katye (wife of Chief Maqoma) 155–156 Kepe, Thembela 134 Keys, Derek 100 Khoikhoi and the Founding of White South Africa 45 Khoikhoi people 43–47, 49 Kimberley 37, 87–88, 158 King Williamstown Gazette 50–51 Kingwill, Rosalie 136–137 Kissinger, Henry 67 Knox, John 35–36 Komani v. Bantu Affairs Administration Board 127 kraalheads 160–161 Krog, Antjie 28, 29 Kusile community 115–116 KwaZulu Amakhosi and Iziphakanyiswa Act 67–68 KwaZulu-Natal 66, 134, 148–149 see also Natal labour 2, 14–20, 24–30, 34, 43–44, 51, 53–54, 60–61, 126–127, 184, 220, 223 labour tenants 29, 181–182, 217–218, 225 Lacus, Hendrik 175–176 Lagden, Godfrey 183–184 Lahiff, Edward 120–121 Lancaster agreement 4 Land Act of 1913 see Natives Land Act of 1913 land audits 110–111, 139, 221 Land Claims Commission 152 Land Claims Court 102, 123, 148–149, 174, 181, 215, 220 land, definition of 210–211 landlords 140–142 Landman, Todd 117 landowners 118–119, 121–122, 124, 130, 178–180, 185, 189, 216 land redistribution 97–98, 100–104, 110, 115, 118–121, 128–130, 152, 166–167, 182, 188–189, 220–222 Land Redistribution for Agricultural Development see LRAD land reform 7, 93, 111–112, 188–189, 211–215, 219–226

land reform programme 9, 97, 102, 121, 203, 216–217 land restitution 16–19, 101–102, 105, 109–116, 128, 167–168, 182, 188–189, 211 land restitution programme 110–113, 116, 167–168, 212–213, 219–220 land restoration 20, 116, 225 Land Rights Commission 168 land tenure 53, 63, 104, 129, 133–153, 188–189, 211, 222 Langa, Pius 206 languages 1, 21 Law 21 of 1895 (‘Squatters’ Law’) 223 laws see legislation leasehold 140–143, 151 Leef-op-Hoop farm 175–176 ‘Legal Disabilities of Zulu Women, The’ (article) 160–161 legal regulations 140–142 Legassick, Martin 175 legislation 21–28, 41, 59–60, 79–82, 125, 150–153, 219–220 lending policies of banks 134, 137, 195–196, 198–199 Lesotho see Basutoland Li, Guo 120–121 loans see lending policies of banks Lobengula, King 40, 175 locations 2, 127 Locke, John 75–76 Lonmin 162 Lorimer, Douglas 36 Loveday, R.K. 80 LRAD 122, 135 Lupton, M.L. 160–161 Luthuli, Albert 91 Luxembourg Protocols 17–19 Machel, Samora 8 Macmillan, Harold 64 Mahomed, Ismail 201 Maisels, Israel 92 Makgatho, Sefako 88 Makhanda 35 Mamdani, Mahmood 222 Mandela, Nelson 7–8, 9, 28, 66, 92, 99 Mantashe, Gwede 69 Maqoma, Chief 155–156 Marikana massacre 162–165 market-driven approach to land reform 4–5, 102, 118, 121–125, 131–132, 177, 182–185, 189–192, 203–206, 216–217 Masters and Servants Act of 1841 25 Matthews, Z.K. 82, 90–93 Mbandzeni, King 40–41 Mbeki, Govan 56 Mboweni, Tito 100 MDC 4–5 Mfengu people 49, 51 middle class, black 134 migrant labour system 22, 25, 30, 163 migrants 142 Military Government Law No. 59 (United States) 15 Miller, Allister 40–41 Milner, Alfred 22 Milton, John 48 ‘mineral energy complex’ 98, 100 mining diamond mining 37, 87–88, 158 gold mining 22, 30 informal rights to land 146 labour 2, 26, 127 Marikana massacre 162–165 nationalisation of 93, 95 water-related reforms 187 in Xolobeni 69, 180, 210 Minister of Agriculture v. Estate Randeree 123 missionaries 38, 137, 155 Mkhize, Inkosi 148–149 Mlengana, Mike 132 Mobil 25, 26 Moor, F.R. 79 moral restitution 16–19 mortgages 193–197 Morton, Samuel 36 Motlanthe, Kgalema 111, 189 Mouton, Jannie 176 Movement for Democratic Change see MDC Mpande, King 52–53

Msimang, Richard 53 Msiza v. Director-General for the Department of Rural Development and Land Reform and Others 181 municipalities 78, 119, 136 Mwelase and Others v. Director-General for the Department of Rural Development and Land Reform and Another 225 Mystery of Capital, The 135 Nama people 1, 19 Namibia 1, 3, 5–6, 19 naming of streets, towns and municipalities 8–9 Natal 79 see also KwaZulu-Natal Natal Code of Bantu Law 160–161 Natal Code of Zulu Law 62 Natal Land Commission 59–60 Natal Witness 49 nationalisation 90, 93, 95, 100, 103 National Party 67, 82, 90, 95–96, 98–99, 202–204 National Treasury 198 National Union of Mineworkers see NUM National Water Act of 1998 187 nation-building 9–10 Native Administration Act of 1875 60 Native Administration Act of 1927 62, 70, 81–82 ‘native’, definition of 2 Native Economic Commission 54 Native Labour Act of 1953 25 Native Labour Locations Act of 1899 223 Native Laws Amendment Act of 1952 90 Native Life in South Africa 87 Native Representative Council see NRC Native Reserve Location Act of 1902 2, 30 Natives Land Act of 1913 3, 22–23, 30, 53, 62, 85–87, 90, 92, 96, 114–115 Natives Land Bill 81, 85–86 Natives (Urban Areas) Act of 1923 90, 126–127 Natives (Urban Areas) Consolidation Act of 1945 127 Native Trust and Land Act of 1936 23, 54, 62–63, 90 Ndebele people 40, 175 Ndhlovu, Rose 161–162 Ndlambe people 50–51, 155–156 Ndobe, Mr 81–82 Nedbank 164 negotiable certificates of deposit 196 negotiated settlement see transition to democracy Nel, Detective Sergeant 91 neoliberal economics 99, 121 ‘nested rights’ 134 Netherlands 1–2, 109 Newcastle, Duke of 78 New Yorker 96 Ngcayechibi’s War (Ninth Frontier War) 79, 115, 157–158 Ngqika people 49, 155–156 Nietzsche, Friedrich 34 ‘nil compensation’ 185–186, 190, 207–212, 217–218 Nofelete (Maqoma’s daughter-in-law) 156 Nonesi (wife of Chief Siyolo) 155–156 non-financial compensation 7, 124 Nongqawuse (Xhosa prophetess) 50–51, 155 Northern Cape 175 Noxena (Maqoma’s senior wife) 156 Nozick, Robert 221 NP see National Party NRC 82 Ntantala, Phyllis 163 Ntsebeza, Dumisa 114 Ntsebeza, Lungisile 159 NUM 162 Nuremberg trials 15, 32 occupation of land 23, 142, 222–224 Odendaal Commission 3 Office of the Valuer-General 220 oil companies 25, 26, 28–29 Okumu, Washington 67 Old Mutual 164 ‘one man, one plot’ scheme 54 On the Origin of Species 34 Oppenheimer, Harry 27 Orange Free State 79, 88, 115 Orange River Colony 85 Ordinance 9 of 1836 78 Ordinance 50 of 1828 76–77

ownership of land 36–41, 62–64, 71, 77–82, 118–119 Pan Africanist Congress 109 Parliament 207, 213 Parliamentary Registration Act of 1887 79 ‘partnerships’, farming 131 pass laws 2, 23, 25, 30, 51, 126–127, 184 patriarchy 162, 165–166, 169 Peace Preservation Act of 1878 158 Peasants’ Revolt, The 56 Pedi people see Bapedi people Peires, Jeff 48–51 pension funds 176, 196 ‘permission to occupy’ 63, 157 Philip, John 77 Pietermaritzburg Corporation v. South African Breweries Ltd 123 Pine, Benjamin 60 Plaatje, Solomon Tshekisho 87–88 PLAS 122, 128–129 policies 99–101, 124–125, 141–142, 165–166, 206, 220, 222 Pondoland 56, 65 poverty 51, 119–121, 126–128, 132, 136, 141, 164, 166 Pretoria Declaration 190 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998 224 Prevention of Illegal Squatting Act of 1951 223 private property 4–6, 37–41, 75–93, 96, 103, 133–137, 150–151, 221 Privy Council 40–41 Proactive Land Acquisition Strategy see PLAS Proclamation 31 of 1939 54–55 Proclamation 116 of 1949 55 productivity 150, 176–177, 192, 211, 221 profitability of banks 195–196 ‘promise and the snag’ 225 property, classes of 217 property rights 30, 68–70, 83–88, 101–103, 173–174, 202–206, 215–216 proportionality 209 Provision of Certain Land for Settlement Act of 1993 166–167 ‘public interest’ 125, 178–180, 185, 205, 211–212, 213–214 ‘public purposes’ 103, 104, 125 Public Works Department see Department of Public Works quitrent rights 63 race 33–41, 92–93, 114, 117, 128, 133–134, 141 Rakgase, David 135 Ramaphosa, Cyril 134–135 rationality 207–208 Rayner, Chief Justice 38–39 RDP 101–102, 110, 120, 122, 126, 141, 205 RDP houses 141–142, 151 ‘Ready to Govern’ document 97–98, 100, 102, 120, 222, 224 rebellions 65 Reconstruction and Development Programme see RDP redistribution of land see land redistribution redress 101–102, 104–105 reform see land reform registered rights over property 215–216 Registrar of Deeds 143 Regulations for the Administration and Control of Townships in Black Areas of 1962 144 ‘rehabilitation’ scheme see ‘betterment’ (‘rehabilitation’) scheme Reitz, Deneys 89 Relly, Gavin 26–27 Rembrandt 28 reparations 16–20, 31, 225 Report on Land Tenure in West Africa 38–39 Reserve Bank 195–198 reserves 3, 14, 21–22, 30, 54–56, 80, 138, 222 restitution see land restitution Restitution of Land Rights Act of 1994 114, 124, 168, 215 restitution programme see land restitution programme restoration see land restoration Retief, Piet 53, 78 Rex v. Ndobe 81–82 Rhodes, Cecil John 21–22, 39–40, 84 Rhodesia 39–40 Richtersveld community 37 rights see human rights; property rights risks to banking system 193, 195–199 Rivonia Trial 92 Robben Island 48, 155–156 Roosevelt, Franklin D. 89 Roux, Theunis 113

Rubusana, Walter Benson 79, 86 Rudd Concession 40, 175 rule of law 5, 212, 226 Rumpff, Judge 92 Rupert, Anton 27 Rupert, Johann 28–29 rural areas 126–128, 144, 165, 187, 205–206, 222 Rural Areas Act of 1987 144 ‘rural township’ 127 Salem Party case 225–226 SANAC 22, 79–80 sanctions against South Africa 26 Sandile, Chief Mgolombane 48–49, 155 Sandile, Princess Emma 155–160, 162 Sarhili, King 48, 49 Sauer, J.W. 79–80 ‘savagery’ of indigenous people 44 savings 196 Scheba, Andreas 140–141 schools see education Schreiner, T.L. 80 Schreiner, William 85 Science, Race Relations and Resistance 36 Second Treatise of Government, The 76 Second World War 89, 178 see also Holocaust sectional titles 143–144 Sectional Titles Act of 1986 143–144 security of tenure 138–140, 151–152, 211, 222 security police (Special Branch) 91–92 segregation 63–64, 126 see also apartheid Sekhukhune I, King 2–3, 115 Sekonyela, King 53 Sekwati (Pedi leader) 52 Semouse, Josias 87–88 separate development 3, 65–66 Separate Representation of Voters Act of 1951 82 Serobe, Gloria 164 Settlement and Land Acquisition Grant 122 Shabane, Mdu 110 sheep 45–46 Shell 25, 26 Shepstone, Theophilus 59–62, 67, 152, 160 SIU 112 Siyolo, Chief 48, 155–156 skulls, human 35–36, 78 slavery 33, 75–76, 78 smallpox epidemic of 1713 47 Smith, Harry 1, 8, 48–49, 77–78 Smuts, Jan 84, 89 Sobhuza II v. Allister M. Miller and Others 40–41 social classes 10, 17, 20, 117, 165 socialism 90, 98 South Africa Act of 1910 21 South Africa Bill of 1909 83–84 South African Agricultural Union 29 South African Constitution see Constitution of South Africa South African Development Trust 23 South African Institute of Race Relations 110 South African Native Affairs Commission see SANAC South African Native Convention 84 South African Native National Congress 53, 85 see also ANC South African Native Trust 23, 62–63 South African Reserve Bank see Reserve Bank Southern African Development Community Tribunal 190 Southern Rhodesia 39–40 Southey, George 49, 77–78 South West Africa see Namibia Soviet Union 95–96 spatial planning 126–128 Special Branch (security police) 91–92 Special Investigating Unit see SIU Squatters Bill 85 ‘Squatters’ Law’ (Law 21 of 1895) 223 squatting 23, 142, 222–224 Stanford, Walter 158 State Land Disposal Act of 1961 214 state, role of the 14, 98, 109–111, 118, 121–124, 130–131, 141–142, 196–197, 221

states of emergency 27–28, 98 Steenkamp, Anna 78 stigmas 118, 130 St John-Stevas, Norman 99–100 Stockenström, Andries 37–38 Stokwe, Chief 157–158 structural flaws in land restitution programme 111–116, 212–213 structural violence 117–118 struggle for freedom 83–88, 226 Sumner, Lord 40 ‘Supreme Chief ’ 60, 62 Swaziland 40–41 Swiss banks 20 Tambo, Oliver 95, 99–100 taxes 2, 31, 47, 52, 222 TEC 99, 100 Tembuland Commission 159 Temkin, Ben 66–67 tenants 81–82, 140 tenure see land tenure Terreblanche, Sampie 30–31, 98–101, 121 ‘theft of land’ 174–175 theorists 75–76 Thorburn, John 40–41 Times (London) 2–3 title deeds 135, 194 Todd v. Administrator, Natal 124 Tolsi, Niren 163 Tomlinson Commission 65 Toto, Douglas 161 townships 127 traditional institutions 167, 220 traditional leaders see chiefs Transitional Executive Council see TEC Transitional Executive Council Act of 1993 99 transition to democracy 6, 28, 95–105, 146, 201–206 Transkei 3, 79, 164 transparency 9 Transvaal 21, 37–38, 52, 79, 85, 88, 115, 183–184, 223 trauma 31, 88 TRC 25–26, 28–32, 113–114, 127 Treason Trial 92 Trespass Act of 1959 223 ‘tribal’ lands 79, 83, 222 Trotha, Lothar von 1 Trust Bank 27–28 Trust Property Control Act of 1988 147–148 trusts 23, 67–68, 147–150, 152, 157, 176 Truth and Reconciliation Commission see TRC Tsotsi, W.M. 54–55 Turok, Ivan 140–141 UBS 20 UN see United Nations Union of South Africa 2, 79, 80–82, 138, 139 United Kingdom see Britain United Nations 13–15, 189–190 United States 15, 89, 95, 133 unregistered rights over property 215–216 Upgrading of Land Tenure Rights Act of 1991 144–145, 151–152 urban areas 126–128, 138, 141–142, 165, 222, 224–225 urbanisation 222 US see United States use of land 125–128, 184, 211, 221 valuation of land 122–124, 182, 216–217, 220 Valuer-General 220 Van Bengalen, Louis 175–176 Van Riebeeck, Johan Anthoniszoon (Jan) 43–46 Verwoerd, Hendrik 14, 63–66 violence, structural 117–118 Volkswagen 20 Vorster, Balthazar Johannes 64 voting rights see franchise Walker, Cherryl 165 ‘warehousing’ of land 128, 130 War of Mlanjeni (Eighth Frontier War) 49, 78 water-related reforms 186–188 Watkins, Frank 40–41 wealth 31, 119–121

Welsh, David 61 Westminster system 83 white farm owners 110–111, 175, 203 White Paper on South African Land Policy 114, 121, 123, 126 White Paper on Water Reform 186 widows of Marikana massacre 163 willing-seller, willing-buyer model 118, 121–125, 131–132, 178, 182, 213 ‘Wind of Change’ speech 64 Wiphold initiative 164–165, 168 Witsieshoek 55–56 women credit access 168–169 customary law 61–62, 153, 205 land redistribution and 129–130, 166–167 land restitution and 167–168, 219 Marikana massacre 162–165 ownership of land 110, 136 pass laws 127 poverty 119 rights to land 155–169 Sandile, Princess Emma 155–160 water-related reforms 187 wives of chiefs 155–156, 159 Zulu people 160–162 World Bank 20, 118–121, 222 World War II see Second World War World Wide Fund for Nature 188 Wretched of the Earth, The 10 Xhosa people 1, 3, 8, 35, 48–52, 77–78, 155–157 Xolobeni, mining in 69, 180, 210 Xuma, Alfred Bitini 89 Zasse, Ambrosius 46 Zimbabwe 4–6, 9, 190, 209–210 Zonnebloem College 155–157 Zululand 2, 52–53, 115 Zulu people 2–3, 59–62, 66–67, 160–162 Zwelithini, King Goodwill 67–68