Lessons on land from John Kani- South Africa

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Dr John Kani received an award for his life contribution to theatre last week week at the kykNET 2019 Fiëstas. In his speech, he talked about justice, reconciliation and stories; connecting as human beings. "We have been denied each other," he said. 

This resonates with my thoughts about the current land expropriation conversation: we have been denied each other. The conversation is polarised, and it seems so difficult to have rational conversations about how to redistribute land as quickly as possible, in a way that will not ruin the economy.

Instead we deny each other further through our language in this conversation: current white land owners are sometimes referred to as "thieves", implying that their land ownership rests on an individual, culpable, immoral deed, regardless of whether the land was acquired in terms of valid albeit unjust laws or after apartheid. 

Some white people, on the other hand, claim no personal culpability, and deny the relevance of centuries of deprivation and exploitation that culminated into four decades of apartheid in the conversation. This despite institutionalised privilege and disadvantage still evident most notably in the studies that indicate that poverty and inequality are still skewed along racial lines. 

Justice and legality not the same conversation

This conversation is polarising, emotional and damn difficult, because what we are in fact doing, is having two conversations conflated in one. And both are not very well facilitated.

On the one hand, we are addressing what is referred to as a socio-psychological conversation where we, through our painful personal and collective stories and memories, are re-assessing the justice foundation of our Constitution: what do we think is the kind of justice that the Constitution is built on? Who does this land and country belong to?

On the other hand, we are having a formal legal conversation about the legalities and implementation issues with land reform legislation, with, spoiler alert, a strangely misplaced focus in compensation for expropriation. This formal law conversation is based on establishing, through legal procedures and reason, mechanisms on how to move forward. We are trying to figure out what we want, so we can craft the legal mechanisms to achieve it, within the confines of the Constitution. 

But when it comes to the socio-psychological issues, it becomes more difficult. There are different personal narratives of truth. Because of our divided past, this means a great misunderstanding of one another. 

Having been denied each other, it requires us to actively tear away from a history and an identity based on years of either being the oppressor, or being the oppressed. We need to re-identify ourselves in line with the constitutional goals we agreed on 25 years ago: a democratic state founded on the values of human dignity, equality and human rights and freedoms. 

We have to do this both in a formal legal way, and on a socio-psychological level. If we only pay attention to the one, we will not move forward.

An algorithm of post-apartheid law

In terms of formal law, Section 25 is cemented in the founding provisions of the Constitution. The Constitution established one system of law, there to develop an "algorithm of post-apartheid South African law". Developing such an algorithm does not rely on quick fixes. The answers are neither simple nor easy. 

Rather, every change should be approached tentatively, and requires a great deal of reflection when things don't go according to plan. Analysis of failures are important so as to avoid them in the future. 

We are arguably at such an important moment. But complex problems seldom have simple solutions.

So to complicate the conversation from a property rights perspective it might be useful to understand that the central goal of the Constitution, as found in the preamble and the founding provisions, is not the absolute protection of property rights. It is to achieve certain constitutional goals. This does not mean that property rights are insignificant or should be ignored. But it does mean that the purpose of a property clause is rather to ensure that legislatures and administrators act within the constitutional parameters when trying to attain these goals.

As such, Section 25 allows for interference with rights, but requires a balancing of rights in doing so. The protectionist sections 25(1) - (3), are balanced with the transformative sections 25(5) - (9) in order to attain one constitutional goal. It is a creative tension also visible in the compensation provision that requires a balancing between the public interest (in land reform) and the interest of those affected (the landowner) when determining just and equitable compensation. This balancing, importantly, seeks to avoid a zero-sum game. 

How to strike a balance

Section 25 in this sense reflects the need at a time of transition, for substantive corrective justice, intertwined with the inevitable impact this will have on wealth and privilege accumulated during apartheid. But, how do we balance this?

Transitional justice explains law as both a force of change and stability. The law can, and must, do both. In terms of this justice, redress should follow naturally from the property clause. But we all know that we are having difficulties with this at the moment, and we know it is not the fault of Section 25. 

Which raises the question: If we accept the Constitution as the foundation of our society, can the document truly bring about massive social change?

My answer is a tentative yes.

Our Constitution, the making of it and its implementation, in many instances did revolutionise the land question. It forces us to think about what is just in post-apartheid South Africa with regard to property and land rights. It creates human rights to restitution and redistribution. It prohibits evictions of people from their homes unless done in terms of law. This is remarkably different from the position during apartheid. 

My answer is tentative, because it has not done enough. Yet.

See, formally, the Constitution clearly lays down the rules for societal conduct in land reform – the redress of wrongs needs to be addressed within the constitutional framework that also protects property rights in certain instances. So, it tells us that the limitation of property rights must be informed by past injustices and dispossession.

But redress should also serve an important symbolical value in addressing the socio-psychological issues: a decisive break from the past, and the new regime's commitment to transforming the society, to not repeat past injustices. It is more than individuals paying or benefitting, it is about building a new society based on the rule of law and respect for human dignity. And this is where the conversation gets conflated.

It is about reconciliation on a socio-psychological level by rectifying past injustices through formal legal procedures. There can be no reconciliation without justice. How we do land reform, is in this sense tied with the question of justice. 

By conflating the issues, we are not having extraordinary conversations. We are denying one another.

We assess our failures with excel spreadsheets and economic models without acknowledging the human element. We demand the sanctity of property rights or outright expropriation without compensation. We conjure images of Venezuela and Zimbabwe, instilling fear. We blame Mandela, Codesa and the Constitution and people who "sold us out" to stoke anger. 

All this shuts down extraordinary conversations.

We did not get the property question wrong. Our Constitution is not an obstacle to what we want to achieve, if what we want to achieve is still encapsulated in the founding provisions of our Constitution.

Maybe if the negotiators of the 1990s went into the future and returned with knowledge of the future, they would have worked in stronger accountability mechanisms for both the state and the beneficiaries of apartheid, and given clear guidance as to the type of justice we wish to attain.

But this land expropriation conversation opened an opportunity to do exactly that. And the conversation is happening. Sometimes haphazardly, sometimes unfacilitated and often messy. Yet, this conversation gives us the opportunity to creatively engage to ensure that the constitutional values of dignity, equality and freedom are enhanced through land reform. 

I, for one, am grateful for this opportunity to assess our failures, to find ways to fix it, and to cement our constitutional democracy by ensuring the redistribution of resources to the benefit of all. And I am adamant that this should be done within the parameters of our Constitution that already allows for the redistribution of resources within the rule of law to move forward.

I remain resolute that there are enough people who want to make this country work. Civil society needs to stand up, needs to show up. 

Later in his acceptance speech Dr Kani stated, "We grow up in the same square mile; we're [only] now beginning to see each other, to find each other, to talk to each other, to see how similar and not dissimilar we are. We are going to have to make an effort to find each other."

In expropriation law this is true in both the formal law and the socio-psychological conversation. 

- Elmien du Plessis is associate professor in Law at the North-West University.