Land Watch

Land reform should address both black feudalism and colonialism

Modern feudal lord?
Feudal lord.jpg

It is a dangerous myth that the need for land reform/redistribution stems only from the legacy of European colonialism while the African version of feudalism is allowed to live on unhindered.

Two decades after a democratic constitution has been adopted, close to a third of the country’s population (almost exclusively black), between 17 and 20 million live on tribal or traditional land where their tenure is legally insecure – robbed of the economic advantages that come with a title deed on a piece of real estate.

This situation prevails despite the fact that the Constitutional Court has frequently held that our constitution requires property law in our country to be interpreted on the basis that there has been massive and unjust dispossession of people from land, that restitution is constitutionally required and that land reform and upgrading of precarious tenure have to be facilitated.

The constitution also provides in section 25 (6) that a person or community whose tenure is legally insecure because of past racially discriminatory laws or practices is entitled to tenure which is legally secure or to comparable redress. Section 25(9)

provides that parliament must enact the required legislation.

To this day, for those 17 to 20 million South Africans living in the former so-called homelands, the required legislation is still not in place.

As recently as 2013, government announced policies that reasserted the premise of the power of traditional councils over large tracks of land.

And at the same time traditional leaders launched restitution claims to vast swathes of ‘historical tribal land’ in response to the enactment of the Restitution of Land Rights Amendment Act.

President Zuma actually encouraged them to do so in an address of the National House of Traditional Leaders.

Historical background

The state’s support for ‘tribal control’ over – and in the process denial of independent land rights for rural Africans – is intimately bound up with our apartheid and colonial

past. Much of which we shared with other former colonies in Africa.

Also read: Seeking solutions to the land issue in Africa

Much of the present dispensation has its roots in the outcome of historical interaction between colonial officials and African male elders. Both had an interest in elevating the powers of chiefs, and downplaying the rights of ordinary people, particularly women.

This resulted in the development of an African variant of feudalism, which was replaced 500 years ago in Europe with what has developed into modern-day capitalism – something from which millions of South Africans are still effectively excluded.

In tandem with this a body of official customary law has developed, in terms of which land may not be bequeathed, but reverts to the state or the tribe on the death of the holder. They then have the power to re-allocate it.

As Anika Claassens of the Rural Women’s Action Research Programme at the University of Cape Town’s Centre for Law and Society in a 2014 article wrote: “The South African government has … rejected the post-94 rights-based approach to land reform in favour of outsourcing power and control over 17 to 20 million South Africans to traditional leaders in a context where power relations are notoriously unequal and the content of customary law deeply disputed.”

Effectively it has given rise to sort of neo-apartheid regime, not based on race but on where you live, determining whether you are allowed to own the land you live on and enjoy all the benefits that come with it.

As a Mail & Guardian article in 2013 put it: “In reality, it is black, rural, poor South Africans who are already being deprived of the right to own property, even communally. In this year, the centenary year of the infamous 1913 Land Act, people’s land rights continue to be violated only because they are black and rural.”

Basis of traditional leader’s power

As a paper by Sam Rugege, associate professor at the University of the Western Cape’s law faculty, informs us: “Traditional leadership has been the basis of local government in most of Africa throughout history. In pre-colonial Africa, African societies were ruled by kings supported by a hierarchy of chiefs and councillors or advisors, who were either their close relatives or selected from their communities.

“These traditional leaders served as political, military, spiritual and cultural leaders and were regarded as custodians of the values of society.

“They looked after the welfare of their people by providing them with land for their subsistence needs through agriculture and for grazing. They also provided for the very poor and orphans.”

In colonial days, traditional leaders became mostly extensions of colonial rule, a situation that was inherited and further expanded during the apartheid era.

However, after 1994 there has been increasing tension and even conflict between traditional and elected leaders. In short the position of traditional leaders is almost irreconcilable with a democratic society and the development of a modern economy in the areas they control – marginalising almost a third of the population. 

Traditional leaders and land reform

The position of traditional leaders also seriously hinder the process of land reform and is used politically by some activists to distort the realities about the distribution of land ownership between especially whites and blacks. A distortion that took place even in an audit conducted in 2014 by the Department of Rural Development and Land Reform (DRDLN), which found that 79% of the country’s land is in private hands. It did not reveal whether those hands were black or white. However, this is used by people like Economic Freedom Fighters’ leader Julius Malema to claim whites own 80% of the land,

Annelize Crosby of AgriSA said last year that national statistics on the number of commercial black farmers were simply not available, but some provincial agricultural unions had carried out land audits of their own.

What does not help is that an ‘independent’ audit for the Free State Agricultural Union, which found that only 2.96% of agricultural land in the province is held by black people, excluded the former ‘Bantustan’ of QwaQwa.

A similar audit by the KwaZulu-Natal agricultural union found research shows that 46.29% of land in the province is fully black owned and 2.3% is partially black owned. According to their statistics, 15.6% of land is white owned and the ownership of about 35.8% of the province’s land is unknown.

These statistics include land in the former Bantustan of KwaZulu, which is 100% black owned.

However, according to the DRDLN, the state owns just 845 084ha or 7% of land in KZN – including traditional authorities – while the agricultural union’s survey – found it to be 50%.

To form a true picture of the actual position becomes almost impossible. And the further one goes back in history the more complicated it becomes to determine who were the real ‘original’ owners of the land.

Before and after the colonisation of Africa started, our patch of Africa, like the rest of the continent, experienced the mass migration of large groups of people.

This process went hand-in-hand with conflict, displacement and the conquering of some tribes by other tribes.

This process is well described in an article last week by Rian Malan, a research fellow of the Institute of Race Relations. If history is properly scrutinised, blacks were the first colonisers in Southern Africa. Chief among them were Shaka and Mzilikazi.

Present truth

That the claim that white South Africans own 80%, or even just of the privately owned land, in the country way removed from the truth, was ably exposed by Mike Schüssler, chief economist at, last week on the website of BusinessTech.

He predicts that by the end of the year, black ownership of South Africa’s primary residential market could be up to as much as 60%.

According to his calculations, by 2015, black South Africans already owned 52% of the value of houses in SA, while whites owned about 35%, with coloured and Indian ownership making up the difference.

With about 15.6 million households in South Africa at present, and the number of households having grown faster than the population for some time now, it is clear that between 38% and 46% of households live in homes that have been built since 1994.

“With white families only making up 10% of all households, they could not be living in all the new built – even if not one of them had their own house in 1994, which was certainly not the case,” Schüssler said.


If South Africa can rid itself of the ‘feudalism’ that still exists in so-called traditional areas, making it possible for financial institutions to register bonds there and embark on well-integrated urban development programmes in some rural areas, it could trigger huge financial injections to the economy. It will also go a long way in boosting new job opportunities.

Also addressing the issue, the recently newly appointed Public P, Busisiwe Mkhwebane, over the weekend at the Chief Albert Luthuli Memorial Lecture said:

"The question on whether the South African Constitution should be reviewed is critical and pertinent when one takes a look at the issues that South Africa is currently faced with.  We have seen the growing calls of the emancipation of the black people and the land issue."

She said the issues have been bubbling under the surface.

"We knew that one day they would come to the surface and society would have to confront issues head-on."

by Piet Coetzer

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