As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Dr Pieter Mulder, Freedom Front Plus Leader and deputy minister of Agriculture, Forestry and Fisheries, last week provided South Africans with a textbook example of the kind of historical amnesia that has befallen some of my fellow white South Africans. Almost every day one has to listen to some or other fellow on the radio complaining about how black South Africans are obsessed with the past.
This complaint is usually followed by a demand that we should all stop harping on about the past (in other words, that we should pretend that apartheid never happened and that its effects do not linger on in our society) and that we should look towards the future – as if the past has absolutely nothing to do with the problems faced by our country today.
The problem is that this yearning (expressed by some white South Africans) to forget the past is not only illusory, it is also deeply dishonest and self-serving. This is because those who argue in favour of a kind of moral amnesia often have very little knowledge or understanding of the very past which they now claim we need to forget. How, I wonder, can we be asked to forget the past if we do not even know (or pretend not to know) about the injustices committed by our forefathers against black South Africans and if we have no understanding of its lingering effects?
An exhortation to forget the past is really an exhortation to rewrite the past and to invent a completely new past in which white people never oppressed black South Africans, never exploited black South Africans economically and never actually dispossessed black South Africans of land and of opportunities – including educational opportunities. This Stalinist yearning to whitewash the past and to try and make us forget about the role white people played in the exploitation and dispossession which occurred during the periods of colonialism and apartheid is dangerous and infuses some white South Africans with an undeserved (and, quite frankly, bizarre) sense of moral self-righteousness and superiority which is at the heart of the continued racisms in our country.
Mulder is only one of a long line of white settlers who wishes to rewrite the past in order to enforce and perpetuate their own sense of moral superiority and their sense of supposed victimhood. Speaking in President Zuma’s State of the Nation debate with a chutzpa that is breath-taking, Mulder ignored the past 300 years of colonialism and apartheid to try and make a point about land ownership and dispossession in South Africa, stating that:
Sir, Africans in particular never in the past lived in the whole of South Africa. The Bantoe- speaking people moved from the equator down while the white people moved from the Cape up to meet each other at the Kei River. There is sufficient proof that there were no Bantoe-speaking people in the Western Cape and North-western Cape. These parts form 40% of South Africa’s land surface.
He “forgot” to mention, amongst others, the long process of colonialism and concomitant land dispossession, which culminated in the Glen Grey Act of 1894 and the Natives Land Act of 1913.
The Glen Grey Act, as Davenport pointed out, “was designed to set a pattern of African land-holding throughout the Cape African reserves”. It imposed a labour tax on Africans which was aimed at forcing Xhosa men off their land and into employment on commercial farms or in industry. It further “excluded property ownership altogether as a voting qualification for blacks who held under Glen Grey title”.
Even worse was the Natives Land Act which was passed in 1913 by the Union Parliament as part of its first efforts to formalise land dispossession of Africans and to lay the groundwork for full racial segregation which culminated in the adoption of apartheid policies. The Natives Land Act included a “Schedule of Native Areas,” incorporating all the African reserves that had been established in the various provinces prior to 1913. The Act carefully delineated the boundaries of these reserved areas. The schedule brought under the coverage of the Act about 22 million acres of land (just over 7 per cent of South African territory) within the four provinces of the Union.
As Feinberg has pointed out, the creation of a schedule, defining the boundaries of the African reserves by national law, was a very important part of the Act. The most important provision of the Act stated that Africans could no longer buy, lease, or in any other manner acquire land outside a scheduled area, except by acquiring that land from another African, and Europeans were prohibited from buying or leasing land from an African. Only Africans could buy land within the scheduled areas. Although the territory covered by these schedules were increased in 1936, the effects of this Act on landownership by Africans was devastating.
From 1913 to 1991 black South Africans, were therefore denied the right to acquire land in most parts of South Africa. Feinberg sums up the effects of this Act as follows:
The long term results were worse than anyone anticipated. Rapid population growth among Africans and soil erosion in the reserves (partly due to over-grazing) seriously undermined African agriculture. And, after 1948, the reserves became the cornerstone of a key part of the apartheid system, the homelands.
Of course, by the time the Land Act was passed, the dispossession of land had almost been complete. Feinberg again:
Before 1910 just under two million Africans lived in reserves, some of which were overcrowded. They lived in these reserves because, during the last third of the nineteenth century, Africans were conquered by Europeans who took control of a large proportion of African land, leaving only remnants for the survivors. Over half (1,149,438) of the Africans living in reserves were in the Cape Province. Africans could purchase land in the Cape, Natal, and, after 1905, the Transvaal (as a result of a court decision). The number of Africans buying land in the Transvaal was very slowly increasing after 1905. However, Africans owned a mere 2,104,300 acres in the Union, and this land was occupied by fewer than 124,000 people. Africans could not buy land in the Orange River Colony or in the Orange Free State, and the holdings of a few dated back to special circumstances from the nineteenth century.
It is exactly because (unlike Mulder and his cronies) the drafters of our Constitution did not suffer from historical amnesia that section 25 of the Constitution explicitly recognises the need for land reform in our country. This section allows for an expropriation of land in the public interest, and section 25(4) explicitly states that “the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources”.
This section also places a positive duty on the state to 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”, while section 25(8) could not have made this general point any clearer when it stated that:
No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).
As I have written before, to this end the property clause therefore does not require expropriation of land in accordance with the “willing-buyer willing-seller” principle. Nor does it require the payment of market value for that land in all circumstances.
These provisions can be viewed as responding directly to the history of land dispossession of black South Africans which went hand in hand with the process of colonial conquest. Mulder’s argument, which (even if it was historically correct) hinges on a requirement to completely forget the past 300 years of land dispossession that went hand in hand with colonial conquest, is thus completely at odds with the provisions of the Constitution itself.
It is strange that a Deputy Minister in the Cabinet would make statements that so utterly disregard the provisions of the Constitution, given that it is this very same Constitution which he invokes in other contexts to try and argue for special rights for white farm owners or for what he would term “Afrikaners” (but what in reality amounts to right wing whites).BACK TO TOP