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No, South Africa's Constitution Doesn't Prevent Us From Addressing The Land Question

20/11/2016 09:54 SAST | Updated 22/11/2016 13:05 SAST
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Julius Malema was recently charged in terms of the Riotous Assemblies Act of 1956 for telling people that they have the right to occupy land wherever they choose. Outside the court he was quoted saying "We will take our land no matter what". He also said "I am not for reconciliation, I am for justice. There is no reconciliation without justice and justice is the return of the land".

The role of land and land reform in reconciliation is a contentious issue. When the interim Constitution was negotiated, parties at opposite end of the table wanted to ensure that their interests are included. The (mostly) white landowners needed to know that their property rights would be respected, and on the other hand people wanted to ensure that land reform got the Constitutional entrenchment it deserves. This ultimately culminated in section 25 of the Constitution, which may look a schizophrenic on first reading.

The first part of section 25 protects property (which has a very wide meaning in the Constitution) from arbitrary state interference and from expropriation without just and equitable compensation or a public purpose (or in the public interest). The second part of section 25 allows for various reforms regarding access to resources, and more specifically provides for land reform programs. Two observations are important at this stage. Note that section 25 does not guarantee property rights, but merely protects it from arbitrary state interference. This is probably because the framers of the Constitution envisioned that the second part of section 25 might interfere with property rights, and did not want to frustrate land reform measures by guaranteeing property rights. The second observation is that land reform is a constitutionally entrenched right, like the right to access to health care services etc.

What section 25 requires from us is a weighing up of interests, to see these two seemingly opposing forces in a creative tension, that should help in creating a transformative society based on democratic values, social justice and fundamental human rights, as the preamble of the Constitution lays down.

What section 25 requires from us is a weighing up of interests, to see these two seemingly opposing forces in a creative tension, that should help in creating a transformative society based on democratic values, social justice and fundamental human rights, as the preamble of the Constitution lays down. When there is a mobilization for occupation of land that goes in against the values and the rights in the Constitution, we need to ask whether there is a creative tension, and whether we are, indeed, moving towards that society that the preamble envisions.

I recently wrote an academic paper on whether it was a mistake not to include the property question in the Truth and Reconciliation process. The TRC process chose to focus certain kinds of violence: on bodily harm, death and murders, for instance, but not on the violence of evictions and dislocation and a loss of place. These were to be dealt with in separate land reform programs that did not require any kind of testimony or acknowledgement from people that benefited from Apartheid's thousands of land acts and ordinances. This would probably not be problematic if the land reform programs were successful and successfully spoke to these issues. But the programs are not very successful, for myriad reasons such as a focus on big commercial farming in the case of land redistribution, the legal vehicles available for communities to manage land post-restitution settlement, not enough post-distribution support after the transfer of the land and many other reasons.

Thus, when Malema talks about occupying land without compensation (only the state can expropriate land), it is more prudent to look past our discomforts and try and understand where this frustration comes from. If one wants it to go away, one must make sure that the underlying issues are addressed, namely the slow pace of land reform and the fact that after 22 years of democracy most people still don't have access to land.

Some practical examples of how to do this include: Ensure that farm workers earn a decent wage, that the people working on farms are adequately cared for upon retirement, that there are opportunities for the farm workers to acquire capital that can be inherited.

Some practical examples of how to do this include: Ensure that farm workers earn a decent wage, that the people working on farms are adequately cared for upon retirement, that there are opportunities for the farm workers to acquire capital that can be inherited. When companies want to do developments on communally owned or utilized land (even if it is registered to the state), make sure that all community members and not just the traditional leader participate in the decision of what must happen on the land, and that there are real long-term sustainable benefits that trickle down to the community. When the government pays R1bn out in a land claim, which is the market value of property, question why the court did not let it go to the Constitutional Court that would probably have ordered less compensation based on what is "just and equitable".

We can pass as much legislation as we like, and the legislation can be as wonderful as we wish. If we don't ensure that the implementation of such legislation is done correctly, if we don't push the Constitution to its permissible and logical limit, especially as far as access to land and other resources are concerned, we will stagnate and the land hunger will grow. If we don't follow our Constitutional obligation to provide access to land and other resources, we are not rectifying the injustices that Apartheid left us with. Without addressing those injustices, there can be no reconciliation. The Constitution in section 25 is not standing in the way of land reform, it is, in fact, enabling it, even ordering it. It is time we utilise it.