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.
Much has been written in recent weeks about the possibility that the South African Parliament might amend the Constitution to clarify when the state would be able to expropriate property without paying compensation. This debate about the need for radical land redistribution (and the desired mechanisms to achieve it) is an important and timely one. But given the complexity of the matter, and the absence of concrete proposals on how to deal with the issue, the debate is mired in sloganeering.
If you want people to attack you on social media, you only need to share an article discussing the proposed amendment of the Constitution to allow for the expropriation of land without compensation. It matters not whether the article is written by you or by someone else, or whether it deals with fact or opinion. Nor does it matter whether the article is written in support of some form of expropriation without compensation or is implacably opposed to it.
Although this is to be expected on social media as social media quickly tends to deteriorate into a fact-free zone, there are other compelling reasons why any meaningful discussion on radical land redistribution with or without compensation – essentially on how to achieve redistribution as quickly as possible without blowing up the economy – can seem impossible.
Reasonable people will differ on the best way to achieve this goal, and as I have not studied the matter in depth I am going to refrain here from adding my two cents worth.
Instead, I am interested in the reasons why it is so difficult to have a real discussion on the issue (including why some would scoff at the need for radical land redistribution while others would scoff at the notion that it might be a bad idea to blow up the economy to achieve it).
Although there may be many reasons for this, I would like to offer four possible reasons why it is so difficult to have a meaningful discussion on how to address land injustice.
First, I suspect the discourse on land expropriation without compensation – like so many other things in South Africa – is not only about land but also about white arrogance and the response to it. Not enough white South Africans have acknowledged the pain and suffering caused by colonial conquest and apartheid. Too few acknowledge that land dispossession was the original sin of colonial conquest, and that the present racialised economic inequality is morally reprehensible and unsustainable and requires radical and urgent intervention.
This is epitomised by the attitudes of people like Helen Zille and her supporters who continue to argue that the legacy of colonialism “was not all bad”, and others who refuse to accept that apartheid was a crime against humanity. In my view these attitudes constitute a catastrophic failure of moral imagination. It is like obsessing about the fact that a person is wearing green shoes while that same person is busy kicking another person to death.
When it comes to attitudes about land, it does not help that many white people were also raised to believe in the myth that the land was empty when our forebears occupied it, and that some continue to perpetuate this myth.
For all these reasons, discussions among privileged white people about expropriation of land without compensation are often toxic. It can become yet another way for white people to express their racial prejudice and their false sense of superiority.
It’s a bit like being trapped at an all-white suburban dinner party where the conversation turns to crime, and the trigger words tumbling out of the mouths of the guests immediately alert you to the fact that the discussion is not exclusively about crime (despite the high crime rate), but also about class and race, and about finding ways for participants to express their racial prejudices without feeling like (or being judged to be) racist.
I wonder if the cry to have the property of some or all white people expropriated without compensation at least partly stems from a profound need to hold white people accountable for apartheid, a desire to decentre the economic and social power of whites, and metaphorically to force white people to notice not only the green shoes but also the blood pouring from the mouth of the person being kicked to death.
The second reason why it is so difficult to have a meaningful discussion about land redistribution (and expropriation with or without compensation) is because it is also a discussion about human flourishing and economic survival.
For those of us who are privileged, it evokes anxiety and fear that we might lose some or all of our privilege and that we may end up destitute – hungry and homeless. For many who are poor, the obscenely unequal distribution of resources (including the distribution of land and housing) evokes anger and resentment. Why, one can ask, do some people flourish because of the “luck” of their birth, while others are forced to live in extreme economic precarity?
The privileged tend to cling to what they have because in a profoundly unequal society the privileged tend to lack any sense of social solidarity with those who are less privileged. Where the privileged disproportionately belongs to one racial group – as is the case in South Africa – and where many members of that racial group harbours profoundly racist attitudes towards others, it would be something of a miracle if they would conjure up the moral courage required to display any sense of social solidarity with the rest of society.
For some of us it seems surprising that there are still some white people who do not understand or acknowledge that the current racially skewed distribution of land in South Africa is both profoundly unjust and unsustainable and that a thoughtful, well-planned, sustainable, programme of radical land redistribution is needed to address the wrongs of the past. But it would not be that surprising if this failure is intimately connected to racial prejudice.
But there is a third factor, which is very difficult to articulate, which speaks to the profoundly emotional ways some people relate to the land. For some people the argument about land and expropriation without compensation is an argument about identity, about who belong, and if they belong, on what terms they belong.
On the one hand Afrikaner nationalism embedded the idea among many Afrikaners that white Afrikaners have an almost numinous bond with the land, an idea made so much more powerful by the fact that we have almost nothing in common with our Dutch forbears who first colonised parts of the country.
For people who for generations have occupied land (often subjecting others to a form of serfdom), the emotional bond with that land can be particularly intense. Even if you are somebody who acknowledges the original sin of colonial land dispossession, you might still have an intense emotional bond with the land your family has occupied for generations. This complicated relationship is beautifully captured in Antjie Krog’s poem “I want a grave from which to turn away”. In the poem, Krog wrote about her father being buried on the farm where Krog’s family had lived for generations:
his bewildered/ offspring stand where we feel we don’t belong/ sustained by natal ground in which we have bloomed/ for generations no one could confirm our place wounded/ we remain scheming suffocating with reproach un-/ charitably we tread mythological water a silence spreads/over us and the brown willow branches swaying/ in the icily shimmering Free State light it’s as if/ a sighing thing pours from us from our Afrikaner/ conscience our languageness our whiteness.
On the other hand, colonial land dispossession left scars on the psyche of many black South Africans that cannot be measured by only focusing on the economic consequences of such dispossession. For many people land ownership is about much more than economic prosperity. As Anele Nzimande recently wrote: “[For many black people] land is therefore not just a primary economic asset, it is also a place of belonging and source of identity.” So, when people reduce the issue to a question of who needs land to farm on, they partly miss the point.
I want to suggest a final – more practical – reason why it is so difficult to have a meaningful discussion on land redistribution and expropriation without compensation. The discussion – such as it is – is occurring in the complete absence of any concrete proposals on how the Constitution should be amended, and what a new policy on radical land redistribution might look like in the wake of the proposed amendments.
What we do know is that President Cyril Rampahosa recently announced that: “the ANC will, through the parliamentary process, finalise a proposed amendment to the Constitution that outlines more clearly the conditions under which expropriation of land without compensation can be effected”. In the same address Rampahosa also said that there is “a growing body of opinion, by a number of South Africans, that the constitution as it stands does not impede expropriation of land without compensation.
Will the ANC government propose a scrapping or an amendment of section 25(2)(b) of the Constitution? This section states that:
[p]roperty may be expropriated only in terms of law of general application… 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.
Or will the government propose to amend section 25(3) to retain a general right for property owners to be paid compensation when their property is expropriated, but propose to insert an exception that allows for expropriation without compensation in certain cases (for example, if the [property is not inhabited or used for productive purposes)?
If the proposed amendments allow for expropriation without compensation in some but not all cases, will the Economic Freedom Fighters (EFF) supports such a constitutional amendment, given that such a proposal would fall short of its demand that the Constitution allows the expropriation of all property without compensation. Without EFF support, any proposed amendment to section 25 is likely to fail, so if the proposal is for limited expropriation without compensation it will confront the EFF with a difficult choice, and as there is no proposal on the table yet, we have no way of knowing how they will choose.
Lastly, once the Constitution is amended, what happens then? The fact of the matter is, no one knows for certain as there are no fleshed-out government proposals on how to speed up the radical redistribution of property, of whose land will be expropriated and who such land will be distributed to, and what mechanisms will be put in place to make such a programme of redistribution sustainable. All we know at this point is that such a programme might include expropriation without compensation as well as other mechanisms of land redistribution.
For all these reasons, I find the absolute certainty with which many people state their various positions on expropriation without compensation unconvincing and slightly depressing.BACK TO TOP