Land reform under the rule of law seeks to reconcile three intersecting currents: correcting the wrongs of the past, confronting the inequities of the present, and securing the future.
The state programme for the restitution of land has virtually collapsed. Instead of providing a rational point around which previous dispossession is forgiven, the cut-off point of June 19 1913 has served to aggravate and perpetuate dispossession. Public funds allocated for paying off the holders of title deeds in exchange for making land available to the descendants of the indigenous people have been misallocated or gone to waste. With the passage of time, records are lost, memories have faded, and witnesses are dead.
Amid public discontent about the failures of land reform, a sense of directionlessness prevails among public representatives. The constitution, of course, has become the scapegoat. Instead of confronting institutional failures, government corruption and non-observance of the rule of law, politicians have a common enemy in section 25(2)(b) of the constitution.
Elsewhere I have illustrated why the constitution is the wrong target. Here I ask how the achievement of freedom, equality and human dignity through the restitution of land can be guaranteed under the rule of law.
INSTRUMENT OF DOMINATION
The redistribution of land to those who need it is emerging as a viable focal point for the advancement of the goal of access to land. And for sound reasons, too: while not eschewing historical claims to the land, the redistribution of land connects the past with the present. It recognises that the conquest of the native people of this country was not a single event, characterised by a one-off taking of the land.
Rather, it was gradual and totalising in its design. The conquest of the land was supportive of the entire colonial project, concentrated on the extraction of cheap African labour, the destruction of the political autonomy of African communities and the deliberate disruption of African modes of being.
In sum, the taking of the land was only an instrument in the total cultural, social and economic domination of native peoples. If that legacy is to be undone, the return of the land should be restorative of African humanity. Transactions about the "return" of the land are incomplete without restoring the dignity of those from whom the land was taken.
But what land should be redistributed? Some commentators have focused on state land. But South Africa's land surface is 121-million hectares, and out of this, only 18-million hectares are state owned. And, importantly, only about 2% of the land owned by the state is suitable for redistribution. Hence only privately owned land can address the legacies of the past and undo present inequities.
If privately owned land is the general category, how do we move to the specific? How does the state choose which privately owned land should be earmarked for state taking to promote the public good?
The moral justification, embodied in our constitution, for the compulsory taking of private land lies in history: if present ownership is owed to a morally questionable acquisition, such as conquest, state interference with private property is justified. As Robert Nozick suggests in Anarchy, State, and Utopia, the primary principled justification for the interference with private property would cease when the historical injustice has been addressed.
This proposition itself generates further questions about the type of state he had in mind. How can society right the wrongs of the past without creating new patterns of injustice? So, beyond the complexities of history and moral justification, practical questions about the productive use of a limited resource like land must come to the fore. Thus, any redistributive model should start with the premise that land is not infinitely available and is to be productively used for the benefit of society. But it is also an inheritance for future generations.
The priority for the compulsory state taking of the land for redistributive purposes must be the private holders not currently using it productively. Specific categories can be developed to carry this out. Farmland lying fallow, hijacked buildings and abandoned buildings fit the class of properties in the category. But the important point is that the justification for the compulsory taking of the land is its nonproductive holding.
Although state land is scarce, some land is held indirectly by the state in various forms, such as communal land under the custodianship of traditional leaders. There is controversy about this category of land. But we should recall that a constitutional mandate - observed only in the breach - is that the state must take measures to foster conditions to enable citizens to gain access to land on an equitable basis. The colonial state was founded on the idea of deprivation of African land tenure. A key mode in this connection was the reorganisation of the political administration of black communities into tribal areas, native yards and bantu reserves. In each of these, the political control was entrenched in the hands of government-selected tribal overlords, who owed no allegiance to the people but to the masters who selected and appointed them.
Mahmood Mamdani, in his Citizen and Subject, referred to these phenomena as reflective of a "bifurcated state" and the "indirect rule" of Africans. The white colonial state was for citizens, with its own rules of government, lording over African subjects, who were governed in terms of a European mode of customary law. The constitution was intended to reverse this by recasting the relationship between African communities, their chiefs and the land. Thus, for redistribution to succeed, it should uproot the colonial state and its surviving tentacles: the people, not the chiefs, should control the land.
While communal land provides a measure of tenure security, tenure over urban land is much more precarious. World Bank studies show an urbanisation rate of more than 60% in the past 20 years in South Africa. The message is clear: the pure agrarian society in South Africa has been disrupted irrevocably. Access to rural or farmland will not satisfy land hunger. Urban land must be factored into the frame.
But the term "urban land" might require some unpacking. If we apply the ANC's Ready to Govern document of 1992, recognition was given first to acquisition of land. The state, it was said, "should therefore have the power to acquire land in a variety of ways, including expropriation". But expropriation could not be the sole means of land acquisition. Other policy instruments, including "land taxes, which, if correctly applied, could have the effect of land being freed for redistribution" were to be considered. Land taxes are no longer within current policy thinking, which has tended to focus narrowly on acquisition through expropriation. However, the land acquisition strategy can be undermined through the loss of extant rights to the land.
GOING BEYOND THE LAND
Popular wisdom suggests that land occupations detract from an orderly programme of land reform. But experience shows that, often, land occupations by the poor and the marginalised can facilitate a radical land reform programme, if handled with sensitivity and due care. Domestic laws already validate unlawful land occupations where justice and equity demand. Extending the notion of justice and equity to situations of genuine need for land can bring hundreds of unlawful occupiers within the protective ambit of legislation such as the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1997. The state should recognise that eviction is not always the answer to unlawful land occupation - resettlement often provides the constitutionally sound answer.
But a state such as ours can neither encourage land occupations nor depend on them for land reform. Proactive action is mandated by the constitution. But where to start? As a party in government, the ANC does not start from a blank slate. Ready to Govern provided a green light. Four categories of urban land were targeted for redistribution: land held for speculation, underutilised land or unused land with a productive potential, land that is being degraded, and hopelessly indebted land. The precise definitions are, of course, a matter for legislative and statutory expansion, but the point is to identify land categories that may be the target for urban land redistribution without compensation.
A final point must be made. If land reform under the rule of law is about the restoration of African identities lost through conquest, we should interrogate what precisely was lost by conquest. Land is not the only asset that was lost through colonial occupation. Cattle, farming implements, labour and human potential were taken away. African societies were broken up, their cultures ravaged and their identities erased. The legal formulations of "restitution" or "redistribution" are too narrow to capture the scope of the project of restoration. A forward-looking reparative project is urgent.
What this means is that we need a new way of looking at the future. Narrow, legalistic conceptions of the meaning of the constitution must be avoided. An imaginative, expanded and transformative vision of the constitution and its statutory progenies is needed.
Perhaps then land reform guided by the constitution might serve not as colonialism in a different guise, but as an antidote of colonialism. Only then shall the land truly be ours.
• Ngcukaitobi is a human rights lawyer based in Johannesburg. He is the author of The Land is Ours: South Africa's first black lawyers and the birth of constitutionalism, published this year...