With the country mired in bitter and acrimonious political debate that achieves little other than to create despondency, the sentiment is often expressed by well-meaning whites: “Can’t we all just leave our stuff at the door, sit down and find a new way forward?”
No, unfortunately we can’t. That is because history matters, and the past matters, and the bearing of the past on today has not been fully confronted. It is as simple and as complicated as that. At the heart of SA’s past is the violent dispossession of black people. This puts land, access to land and all its contingent consequences — such as access to intergenerational wealth and the ability to set up and have a home of your own — at the heart of the real politics of SA. Without a resolution here, there can be no justice and therefore no resolution of the SA problem.
No-one makes the case more clearly why historical land dispossession matters today than advocate and champion of the constitution Tembeka Ngcukaitobi, in his book Land Matters, published this month. Forced dispossession of the land under colonialism was the act that most decisively deprived black South Africans of their means to resist being reduced to a labouring subclass under apartheid. Together with massive dispossession of cattle — through war penalties, land restrictions and government-imposed culling because of overcrowding in the reserves — black people were systematically impoverished.
Ngcukaitobi’s argument is not the blunt, emotional instrument that is so often wielded in the land debate. It is careful and considered and based on the universal principle of justice. We cannot expect to build a society based on the rule of the law and the constitution if, underlying it all, a fundamental injustice remains. The drafters of the constitution captured this imperative well and gave guidance on how redress and restitution should be applied, particularly in land reform.
Ngcukaitobi has long argued that the provision that compensation for land expropriation must be “just and equitable” gave the courts enough leeway to impose zero compensation in fitting circumstances. Expropriation without compensation is not only possible, he argues, but may be essential if compensation is to be “just and equitable” as the constitution enjoins.
That the implementers of the constitution — the ANC-led legislatures and the courts — failed to give effect to what was made possible has had severe consequences. Not only has the constitution been used cynically to protect privilege, but the constitutional project itself has failed. This is a stinging criticism of today’s judicial and political elite.
It is also a call to all South Africans to rebase our political assumptions, expectations and aspirations on the constitutional deal, which has tied us together, and to move from there into considerations that are not unimportant: the impact of land reform and expropriation on the market, the banks and investor sentiment.
Many readers will find these are obvious assertions. Others, though, will not. There is a widespread misconception that land does not matter and that its introduction into the political debate more than 25 years after the dawn of democracy is opportunistic and a sign of desperation by a government under pressure for not having delivered.
Some of this is true. It was the EFF that introduced the demand for the return of the land into the political discourse, in a move calculated to hit at the ANC’s biggest policy failure and the glaring contradiction between what it says and what it does. It was then taken up by the “radical economic transformation” faction of the ANC as a stick to beat the market-friendly Ramaphosa faction, which has so far succeeded in holding tight to the reins of economic policy.
It was also this political vulnerability that led President Cyril Ramaphosa — against advice from his own experts and a special committee in his own party, who believed like Ngcukaitobi that the amendment is not essential — to announce late one night in 2018 that the ANC favoured amending the constitution to make expropriation without compensation explicit.
We are in that process now, and it will be completed this year. What it will not change, though, are the real factors weighing down land reform — corrupt officials, greedy landowners and a crony capitalist class, which has ensured so far that the benefits of what land reform has occurred has accrued disproportionately to it.
What will also not change is that land matters, and that redress for the original sin — whether it is in the form of an urban plot of land to make a home or agricultural land to make a livelihood — must happen too if we want a just society.
• Paton is editor-at-large.
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