Until Land is Expropriated and Redistributed there is No Real Equality in South Africa | Land Portal | Securing Land Rights Through Open Data

“If you are stealing something it’s better if it’s small and hideable or something you can eat quickly and be done with, like guavas. That way, people can’t see you, be reminded that you are a shameless thief. It is still debatable as to why the white people were trying to do in the first place, stealing not just a tiny piece but a whole country. Who can ever forget you stole something like that?” We need new Names by NoViolet Bulawayo

The remarks by U.S secretary of state Mike Pompeo in Addis Ababa appeared as a threat to the government of South Africa. He stated that the intended plan to expropriate land without compensation would be disastrous for the economy and drew a comparison to countries like Ethiopia to show the effects of such a venture. He further alluded to African governments needing, “a strong rule of law, respect for property rights,” this is hypocritical because it neglects the initial acquisition of the land in question. 

South Africa struggled through the history of colonization, racial discrimination and massive land disposition which resulted in most of the blacks losing their land to the white minority. In the early 1900s Europeans led by Jan van Riebeek drove away from the inhabitants of the Cape and in the following years, many Africans were forced to move away from their land during the Bantu-European wars which the Africans could merely resist because of the superior arms of the Europeans. Consequently, a series of oppressive laws were put in place in support of land dispossession.

The South African Constitution seeks to remedy the injustices of the past and until such an issue is rectified there remains a façade of substantive equality present only in the black and white words but absent in practice. The land issue has always been the most pressing matter for the government of South Africa. People are still disgruntled more than 2 decades post-independence the land question is yet to be answered.

One can not only refer to the redistribution of land without compensation of land as illegal whilst ignoring that the acquisition of the land in question was illegal itself. When the Europeans came to South Africa there were social and political structures and the native laws that were prevailing. In disregard, to these laws, they proceeded to use the might of the gun to acquire property (including land) and soon after setting up laws to protect their crime.

Section 25 of the 1996 constitution of South Africa provides for some property rights. Subsection 2(a) states that property may be expropriated only in terms of law of general application for a public purpose or in the public interest; and subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court. 

However, section 25 does not come without controversy as it promotes and protects property rights for everyone including the rights of those white people who illegally, forcibly took land from the blacks. Property rights provided by section 25 of the constitution made it difficult for the government to implement land reform policies because the source of the problem does not lie in the substance of inevitably complicated practical considerations, or the failings of the ANC government and its policies, the real problem is the constitution.

Therefore, in light of all the controversy brought by section 25 concerning land reform this section is of no help to the black people since the struggle for liberation from apartheid was partly based on the objective of regaining the land and one can argue that including a property clause in the constitution was as sign of surrendering by the negotiators.

The constitution stresses the need for an equitable distribution of the land among citizens to be done by the state. The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. It creates a socio-economic right for those in need of land to call on the state to act and make land accessible. The rights need to be considered in the context of the cluster of socio-economic rights enshrined in the Constitution. They entrench the right of access to land, to adequate housing and healthcare, food, water, and social security. 

The executive when taking measures must take into account the social, economic and historical context and should try to make land available to the disadvantaged, if the policy in conceptualization and implementation does not cater to the most desperate then it fails. The South African government has in the past implemented the policy to ensure the redistribution was progressively realized. The reasonableness of the implemented policies is up for scrutiny as it is at times unrealistic and seemingly implemented to be a cosmetic cover to avoid calamity.

Apartheid was an oppressive tool implemented through “Law” and now the same “Law” is used to protect illegally and unjustly acquired wealth. The United states judgment in the case Hawaiian Housing Authority v Midkiff in which the Supreme court held that “a land redistribution system is designed to redistribute land from a few centralized owners to a more diversified and widespread ownership was constitutional since it served the legitimate government interest of reducing the perceived social and economic evils of land monopoly”, this is in support on expropriation.

Mike Pompeo’s statements are only to strengthen the gains of the apartheid regime. South Africa desperately needs to address the issue of land before citizens take the matter into their own hands and calamity ensues as was the case in Zimbabwe.

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