My great-grandfather had a modest home on a treasured piece of land. His livestock were abundant and he was considered a wealthy man. One day, in 1947, his entire family were forcefully removed from their home of many years and his cattle appropriated. He suffered greatly and my great-grandmother even more. Their new homestead in the township was cramped and dusty, without the hope of any economic prosperity.
Many suffered a similar fate and the consequences of that calamity continue to be felt even today. To that end, it should be no surprise that the issue of land in the rainbow nation is intense and emotional for those previously marginalised. Land was the beacon of prosperity and growth in the black community.
The democratically elected government has consistently faced a conundrum with regard to land because reconciliation was the theme that ushered our nation into a democratic state. Undoing the wrongs of colonialism and apartheid could never be achieved by violating the precepts of constitutionalism. And so, when the ANC recently adopted a resolution to amend the constitution in order to expropriate land without compensation, it came as no surprise.It was a momentous occasion for the previously marginalised despite the fact that the resolution was accompanied by a caveat - that food security should not be disrupted. What this caution possibly indicates is that the resolution aims to provide the right to settlement, and not necessarily agricultural development. Even if it did, what should be considered is that while expropriation and redistribution of land may make it available, the significant question of actual ownership remains.
Currently, the right to ownership of restituted land remains unclear. The ability to defend one's ownership, occupation, use of and access to land from interference by others is referred to as tenure security. The governing party has failed to resolve the simple issue of land tenure to secure the rights of the beneficiaries of land restitution.
Securing land tenure rights for a person whose land has been restored is fundamental because it provides security, which William Beinart and Peter Delius, in a paper on land tenure, say "may facilitate investment and production as well as rural development".
Without secured land tenure rights, those who occupy restituted land "receive limited support from state or other agencies to develop agricultural or income-generating activities", and thus prosperity remains elusive, say Beinart and Delius.
Prospective farmers may be unable to access funding to grow their business without having a title deed, because they will have no security to offer a lending institution.
The restoration of land should be a programme that enables the previously marginalised to gain prosperity, but this is unlikely to happen under the status quo regarding communal land rights.
Without secured land tenure rights, the ANC resolution is akin to the present land redistribution policy, which Beinart and Delius say is "not designed to expand agricultural production or other forms of rural development" .
The constitution, under section 25(6), aimed to redress the calamity of unsecured land tenure by providing that people or a community "whose tenure of land is legally insecure" are constitutionally entitled to tenure "which is legally secure, or to comparable redress".
Reasonable measures must be taken by the state "to foster conditions which enable citizens to gain access to land on an equitable basis", as stated in section 25(5)...