Property & Wealth

What should the historical reference point of land reform be?

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Developing a firm and workable framework to guide efforts of land reform, restitution and redistribution in South Africa has become crucial.

There is little argument between interest groups in the country about the need for such an effort. There is also wide consensus about the responsibility of government in this regard and, being a constitutional democracy, the role of the courts to help ensure the fairness and legal soundness of the process.

Part of the reality of the process is that since 1994 SA has still been very much what can be called a transformational state, in its own right and by nature a process that can hardly be completed in one generation. It is a process that plays itself out on a multitude of social and economic fronts.

Across the globe, governments, to realise their policy goals, rely on legislation and the relevant regulations to dictate the direction to be taken in core national matters.

In SA, for example, to achieve the long-term goals of Black Economic Empowerment, the business world is currently guided by the Broad-Based Black Economic Act 53 of 2003, as amended, and its recently revised Codes of Good Conduct.

When it comes to land issues governments worldwide have a most powerful tool, commonly known as expropriation, at their disposal. This generally refers to “the taking of private property for a purpose deemed to be in the public interest”. So, where a national road needs to be expanded, it can result in the government expropriating land from private homeowners who reside in the area.

Critical, however, are the reference points that governments uses in developing its policies and legal frameworks, especially on the issue of land. In the case of SA, and the rest of the continent, the historical reference point that is chosen is especially crucial.

In a recent article in the Daily Maverick a researcher of the Economic Freedom Front, Lubalo Ntsholo, in an attack on government’s proposed bill to replace the  existing Expropriation Act of 1975, argued: “The problem is not with the Bill itself, but with the constitutional superstructure that legitimises land dispossession by asking the state to pay for land reform, and secondly by delegitimising all dispossessions that predate 1913.”

Lubalo and others, including leaders of the South African Communist Party, argue that the historical point of reference should be moved back centuries to pre-colonial times. In the words of Ntsholo: “As an act of justice, the state should compensate all black people for their loss of land over centuries. It must then expropriate all land, without compensation.”

Historical perspective 

In an article elsewhere we highlight the impact this point of reference will have on the sovereignty of South Africa in respect of land in KwaZulu/Natal and Mpumalanga to which Swaziland lays claim and at one point threatened to take to the International Court of Justice (ICJ).

It is a matter of historical record that, for instance, when Britain colonised South Africa, Kosi Bay was annexed to Natal, while Maputo was annexed to Mozambique. The Vatsonga people lost large tracts of land on St Lucia Bay in 1895 when Britain took the land and restricted the Tsonga people to Kosi Bay only.

Even further back in history, the area in dispute between South Africa and Swaziland was the terrain of the Khoisan people, before they were overwhelmed by migrating Nguni tribes, themselves then involved in a period conflict between warrior leaders.

This is a pattern that repeated itself all over the continent and the background to the protocol on national boundaries adopted by the African Union (AU) as part of it charter in 1964 and confirmed by the Constitutive Act of the African Union, signed by African heads of state, including South Africa in November 2010. It dictates “respect of borders existing on achievement of independence”.

The protocol, as argued by SA and the chairperson of the AU, Nkosazana Dlamini-Zuma from SA, at the time when Swaziland threatened with an ICJ case, the borders drawn by colonial powers are the accepted ones.

In the case of South Africa it effectively means the borders as they existed at the time of the establishment of the Union of South Africa in 1910.     

Conclusion

We can agree with Ntsholo when he argues that in land reform the first priority should be “… the switching of land tenure to secure tenure rights for those whose rights to land is insecure, which includes farm workers and those residing in the former Bantustans”.

To this can be added programmes to assist those previously excluded from the process of acquiring individual property rights of land with ownership schemes – something in which civil society formations could also assist, as happened with Afrikaners in the previous century.

However, to move the historical reference point to an open-ended period pre-1910, could take the country into very uncertain and potentially dangerous territory.

by Eve van Basten

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