Later in the novel Opperman writes that the deeds and convictions of the generations before us cannot be wished away. We are walking a certain road because of the road our forefathers (and mothers) walked. And as our ancestors had to walk a certain road during their time, so must we walk our own road.
When assessing our ancestors’ choices, we need to look at the deeds in the era that they occurred in and not judge them by today’s environment. And that is the heart of the problem. Time goes on, but the consequences of the actions and convictions of our ancestors linger on. This we must carry with us and deal with.
Forgiveness and understanding for the actions of those before us is a pre-requisite for freeing oneself from the burden of history. As is asking, in turn, for forgiveness and understanding even though we don’t have personal culpability. For me this is a moral imperative, since our ancestors’ choices left a broken, unequal society, from which I as a white person largely benefitted, while black people were largely left behind. No amount of backward-looking justification can change this.
Of course, the intervening years exacerbated the problem, but this does not mean that the intervening years cancelled out the consequences of a sordid past and relieved people of the moral duty to deal with the consequences in an inclusive way. And presenting a single story as the ultimate story of South Africa seemingly in order to escape that responsibility is problematic.
The single story of Akkerland
There is a single story that wants to say that the state is expropriating Akkerland Boerdery in Limpopo at 10% of the market value to further Chinese interests. The department served an expropriation notice on Akkerland, after which the owner obtained an interdict against the possession of his farm. Our legal system works well and he successfully exercised his right to protect himself from what seemed to be a blunder by the department.
The reason why the interdict was possible was because the restitution claim lodged by the community before 1996 has not been finalised yet – there is therefore not a valid purpose for the expropriation.
The state has tried to acquire the land by negotiation but the negotiations reached a deadlock because the parties could not agree on the purchase amount. This is seemingly also the reason why Akkerland is on a list of farms that the department is negotiating with. This list was published by AfriForum as an unverified list of farms to be expropriated without compensation and was met with strong criticism by agricultural organisations. AfriForum later denied that it is a list of expropriation without compensation.
But in Akkerland the owner’s valuer valued the farm at R200m, while the Office of the Valuer General valued R20m as “just and equitable” compensation. Another valuation of Akkerland pinned the price at R50m (if developed into an eco-estate with 300 stands).
If the state does decide to go through with an expropriation, the Valuer General will have to show what methods it used to determine the price and what factors were included. Courts will often order valuers and sellers to get together to try and agree on a method and price.
Expropriation runs parallel with mining issues
While I have not been privy to the two valuation reports, what I can gather from the press is that the owner’s valuer took the mining right into account. But since the owner never had a mining right (it vests in the state), in terms of the law of compensation for expropriation, you cannot be compensated for a right you don’t have. Therefore, just like the state will have to argue how it determined the price, the owner will have to show how he determined his. And both must adhere to the law and the rules of valuation. To therefore accept that R200m is the objective market value is problematic.
The expropriation and restitution issue runs parallel with the mining issue. Coal of Africa has applied, and were successful, in obtaining a prospecting right. In 2014 it went to court to get an interdictagainst the owner in order to access the property to exercise its prospecting right. The interdict was successful.
Coal of Africa was awarded a mining right in 2016 (which the owner is currently appealing). With a mining right, it has certain surface rights (in consultation with the owner) in terms of legislation. It need not own the land for that. This is a general contentious issue in mining law, and communities have been resisting this for years since mining is almost always preferred to other land uses.
The presentation of Stellenbosch University to the parliamentary Constitutional Review Committee recently made the argument that the validity of an act of expropriation does not depend on the compensation amount being determined. When the state therefore has a valid reason for expropriating they can expropriate the property. The owner will then be left with a claim for “just and equitable” compensation that it can argue further in court.
The empty land myth
It is often stated that white people acquired land by settlement on empty land, purchasing land through treaties, cooperation and agreement, and by conquest. History will always be a space of contestation. Different accounts based on new evidence or a new interpretation of the old evidence might bring about new insights. Kundera perhaps pins it accurately that “[t]he only reason people want to be masters of the future is to change the past. They are fighting for access to the laboratories where photographs are retouched and biographies and histories rewritten.”
The concept of terra nullius is a legal concept that states that unowned land can become the property of the person occupying it. Research shows that the concept was first used in 1888, and there is growing support for the argument (see Merete Borch and Micheal Conner) that it was probably not the concept used by colonial powers to justify territorial conquest by occupation at the time of occupation. If this is true, then such land acquisition will fall in the category of conquest and cession.
The idea of terra nullius is increasingly shown to be a legal justification for white settlement that makes the dispossession and denial of indigenous rights seem more just, instead of making us understand the very basis on which the foundations of our land ownership patterns rest.
Different legal systems
But even if this is not the case, we know that the original inhabitants of South Africa owned and used land beneficially. Newcomers had to obtain permission and consent from the original inhabitants who had their own legal systems of law and processes of decision making. Sometimes land transfers involved conquest and theft of property by stronger groups. But this process is different from the processes that the Dutch East Indian Company employed when it established trading posts that later became settlements, squatting on land that they argued was vacant land. Once settled on the land, the newcomers gave legal form to their rights in the land in the form of leningsplaatsen.
Indigenous land rights were further ignored when the British imperial forces took over the Cape Colony in 1806, when private property rights of the settlers were promoted, but no indigenous land rights. These people’s rights were either ignored, or were held in terms of precarious licenses given by either the church or the state, administrated not in terms of indigenous law, but by missionaries, native commissioners or magistrates.
Colonial authorities misinterpreted complex indigenous tenure systems as property of the chief alone, leading to a great loss in access to land of ordinary people. Of course, if land was seen to be the property of the chief alone, then settlers only needed to sign a treaty with the chief in order to acquire the land. Viewed from the customary law angle, this was not possible. This means that any interpretation that land was fairly acquired either by settling on vacant land, or by treaties, can be questioned also on the basis that the legal systems of the original inhabitants and those of the settlers were remarkably different.
Our history highlights that political and social instability is nothing new, and the baggage of centuries of these struggles plays out in our legal system. The majority of the South African citizens are still tenure insecure and don’t have their property rights recognised. This situation is untenable, especially since we know that vast inequalities make for an unstable society. Something’s got to give.
The need for agricultural and rural land
With land becoming also a great symbolic issue of nation-building and inequalities, some commentators comment that there is no real land hunger, often in the context of agriculture. An IRR study asked people what they think the best way is to improve lives: employment, education, combating crime or land reform. Only 1% according to this study regarded land reform as a priority. Conversely, 59,6% of the respondents agreed that “land reform ‘helps poor blacks'”.
A HSRC report of 2006 claims that 33% of black South Africans want access to land for food production, and another 12% want land for other reasons. Another study in the Western Cape showed that 75% of participating households needed land. There are therefore conflicting studies about the need for agricultural and rural land.
Restitution was meant to be the form of restorative justice in land reform, with the secondary aim an economic advantage. This program is problematic for various reasons that will not be repeated here. Historically 90% of claims were settled with money, ranging from R40 000 to R92 500 for various reasons that are well documented. Studies show that, while people were committed to return to the land, people lost trust in the lengthy process and opted for money instead. To claim that the cash payments were necessarily preferred to land is countered by this research. Also, cash payments do not address the issue of spatial inequality the same way that return of land, especially in urban areas, would.
With restitution being administratively heavy and with an increase difficulty to prove claims, well-structured redistribution and tenure reform programmes must be developed to take the pressures off restitution. One can therefore not have a narrow focus on restitution alone.
The 1997 White Paper and on Land Policy stated that the purpose of redistribution is to provide the poor with access to land for residential and productive uses to improve people’s income and quality of life. But the rationale has never been clearly articulated by the state, so that is desperately needed. That is also the findings of the High Level Panel Report.
Land reform should be understood against the injustices of our past. This is our past, and it is messy. Land reform is aimed at equitable redistribution of land. With 87% of the land in the hands of white people at the end of apartheid, trying to ensure equitable access will necessarily disproportionally affect white people. This does not mean that it is specifically aimed at white people. South Africa, as our Constitution states, belongs to all who live in it.
When we therefore speak of land reform we speak of the three programmes, with each program stemming from a constitutional right. We are not debating whether land reform must happen or not, we are asking how it must happen. Land reform is a right in our Bill of Rights, and as such needs to be weighed up against other rights in the Bill of Rights when it is promoted or protected.
Failing to address the land issue is an infringement of people’s human rights. Any person or organisation that commits itself to the protection and promotion of constitutional rights should therefore be part of the solution to make land reform work.
– Elmien du Plessis is associate professor in Law at the North-West University.