What the Constitution says about land restitution

What was the first big decision that the Convention for a Democratic South Africa (CODESA) made?

“Smoking or non-smoking,” revealed retired justice Albie Sachs to a chuckling UCT law faculty audience on 27 March 2017.

Desisting from further comments about hot air at the scene of South Africa's famed negotiations for the end of apartheid, Sachs' lecture traversed CODESA's knotty negotiations about land redistribution, property rights, a new political dispensation and why there isn't actually a clause guaranteeing land restitution – or the form that it should take – in South Africa's democratically written Constitution.

In his lecture, titled “The Constitution, Property and Land Re-Distribution”, the anti-apartheid stalwart described how disentangling the Gordian knot of post-apartheid land redistribution was made even tougher by the amount of time it took to merely place that subject on the table.

Sachs was presenting the second lecture in a four-part series that he is delivering at South African universities, as organised by the Oliver and Adelaide Tambo Foundation to commemorate the centenary of Oliver Tambo.

Tiptoeing through a minefield

Sachs' and the ANC's “big fear” was that they would give away at the negotiations everything they had gained in the struggle against apartheid. And the issue of land was a prime agenda item.

The negotiators knew that land needed to be redistributed on a national scale to correct colonial and apartheid-era land grabs. But there was a complication.

“We couldn't get to the land issue,” said Sachs, because they were debating the form of government that would enact the redistribution process.

Bogged down by the didactics of who would rule and who would draft the Constitution, the negotiations struggled to progress to questions like the restitution of land, said Sachs.

People take for granted that South Africa had general elections in 1994, argued Sachs. But those elections would not have happened without “enormous struggle” around the negotiating table, he said. Sachs trashed the idea that former president Nelson Mandela went “into a room with a bunch of capitalists”, emerged with a compromise and went to lawyers instructing them to “give us a constitution”.

Instead, “six hard years of breakdowns” in negotiations were behind the democratic elections in 1994 and adopting the Constitution in 1996.

Sachs reserved a special word for Oliver Tambo, the ANC leader at the time of the negotiations. What captivated Sachs about Tambo was his formidable conviction that a South Africa that “belonged to everybody” was possible.

The first spade in the ground

When the question of redistributing land was finally broached, electricity crackled through the room at CODESA, said Sachs. It was “visceral, it was bodily and metaphysical at the same time”.

Sachs, who grew up near the beach, struggled to truly relate to the atmosphere. If it had been a demand for “open beaches”, he admitted that he would have been as pumped up as the rest.

“For me, the land issue was the most profound issue of historical injustice. Both as a simple and as a practical reality, the dispossession of the majority of the people from the land and the dignity that went from feeling that this was their land, the pass laws, the migrant labour system, the breaking up of families, the denial of the vote, all of that was connected with the dispossession from the land and the structuring of the African political systems and herding people into small Bantustans is central to understanding South Africa, the South Africa we were fighting against at the time.

“But we couldn't get to the land question quickly at CODESA,” Sachs repeated.

A right to property?

White supremacy was entrenched by the Native Land Act of 1913, which stripped locals of their rights to own land, said Sachs.

“In South Africa, dispossession was nine-tenths of the law.”

To make matters more difficult for the negotiators, agreeing on a starting point for reparations was complicated. Title deeds from before 1913 and indeed before the first colonisers arrived were scarce, and oral history accounts of ownership were “unreliable”, he said.

There were bigger questions, too, like who should benefit most from restitution. Should it be the landless poor? What if they preferred money?

People were agitating to retake land by force, but Sachs argues that simply giving the land back to the people “wasn't the reality on the ground”.

You could have a clear clause guaranteeing restitution in the Bill of Rights, but if the Constitution as a whole essentially protected the “rich and powerful” class's right to property, it would defeat the purpose, Sachs argued. What was needed, they decided, was a Constitution that espoused transformation in general.

The politicians would then do the groundwork, they thought.

“One serious error we made, as it turned out, we thought that workers on the land would be very well organised in conditions of democracy; that we would have powerful unions that would be helping to make these policies.”

But the unions seemed weak, and to this day, less has been achieved than Sachs and co predicted in the early 1990s.

Sachs recalled apartheid bulldozers blitzing people's homes and upending lives, dismantling families and fragmenting friendships. The negotiators were anxious not to repeat the atrocities in the name of redistribution, he said.

'Do we grab the land back?'

The negotiators faced an almost unsolvable quandary.

“In a philosophical, historical sense, yes, the land was grabbed, but does that mean we grab the land back? Are we like the conquerors? Do we take our values from them? Do we throw them into the sea? Do we destroy access to the food that people need?”

This line of thinking resulted in no explicit right to land, or restitution for those whose land was stolen; instead, the Bill of Rights stipulates the particular conditions under which somebody may be deprived of property – it cannot be arbitrary – and a “just and equitable” compensation must follow from any expropriation of land.

This willing-buyer, willing-seller model has presented limited success so far; by 2014 about two-thirds of 150 land claims in protected areas remained unsettled, and black women continue to bear much of the brunt of slow reparation.

Sachs retains hope that South Africa can get land redistribution right, even two decades after democracy's dawn.

“What we did achieve there provides enormous scope if there is a united, popular and governmental move towards significant and equitable land reform with the beneficiaries being people most deserving of that land,” said Sachs.

“We got a Constitution [in South Africa] when people thought it's not possible, and I believe that we can get land distribution in South Africa where people think it's not possible.”

Story Yusuf Omar. Photos Michael Hammond.