How we approach contestations over land and property rights in South Africa says a lot about what we believe a just post-colonial constitutional order to be. While politicians and political parties have exploited issues around land and property rights to garner votes, particularly in the 2019 election, what has become apparent from ensuing public and scholarly debates is that there is emerging a collective sense of an impending national existential crisis. At the heart of this crisis lies the thorny question: where to from here for South Africa’s constitutional democracy?
How the ground shifted in the 2019 general election
In early May 2019, South Africa held elections that were dubbed by South African Independent Electoral Commission head, Sy Mamabolo, as the “most complex, highly contested and logistically demanding” since the commencement of the democratic era in 1994. The highly contested election saw the governing party, the African National Congress (ANC) and the official opposition, the Democratic Alliance (DA) retain their overall positions as South Africa’s biggest political parties, while simultaneously losing a substantial portion of the national vote. These losses can be contrasted, first, with the continuing electoral rise of the Economic Freedom Fighters (EFF), whose policy mainstay has been the promotion of a radical programme of economic freedom, focusing particularly on land redistribution. Secondly, there was the unexpected (re)emergence of the Freedom Front Plus, whose policies reflect a retrogressive, right-leaning, white separatist agenda that opposes race-based affirmative action in any form and the redistribution of land.
While the respective decline and rise in popularity of the four parties (who between them garnered over 90% of the national vote) is notable, these shifts in numbers are far from the most interesting aspect of the election. Rather, it was how the issue of land or, more broadly, the question of property rights dominated public discourses as well as the different parties’ electoral campaigns and manifestos. Nearly, all the parties took up clear positions around the question of whether or not section 25 of the Constitution (the property clause) should be amended. Unsurprisingly, this question generated much cause for hope and anxiety, depending on which side of the economic or class divide one falls; it hardly requires mention that in South Africa there is a close correlation between race and class, and indeed class often operates as a proxy for race.
Land and Property Rights Debates
The real significance of the heated debates around land and property rights is that they clearly indicate a collective sense of an impending national existential crisis. At the heart of this crisis lies the thorny question where to from here for South Africa’s constitutional democracy? In other words, whilst much of the contestation was rooted in the EFF’s original proposal – often dismissively dubbed as populist – for “land expropriation without compensation” to be realized by an amendment to the property clause, the questions raised are much more profound. Such as, what remains of the sense of possibility in the post-apartheid constitutional project in the eyes of those who, 25 years into democracy, continue to occupy the margins reserved for those historically disenfranchised and dispossessed? To be precise, at their core these questions reflect an increasing sense of marginality, exclusion and growing hopelessness experienced by multitudes of Black South Africans who continue to be asked to temper their expectations towards attaining the ‘improve[d] quality of life of all citizens’ promised to them by what many commenters regularly remind us is the best constitution in the world.
There have been calls for the land and property debate to be less populist and emotive, but more rational and pragmatic by many commentators, who also often call for a defense of the Constitution. These calls also often oppose the very idea of an amendment to the property clause. It is notable how in making these calls for level heads or pragmatism notions of justice (in light of centuries of colonial-apartheid dispossession) remain largely absent in the arguments and reasoning advanced. Instead, these calls justify persevering with the current governmental land policies (with the caveat that they be subject to faster, better, less corrupt implementation). This silence on the justice question is quite telling, as the question of who retained land and property rights acquired originally through violent racist policies, and who was conferred with a hope to acquire land and property in a post-apartheid future speaks fundamentally to what we understand justice to be, or more precisely, what type of justice has been or can be achieved under the 1996 South African Constitution.
It is easy to dismiss questions of what type of justice or whose justice as being overly philosophical, esoteric or ethereal even. However, what cannot be dismissed with equal ease is that South Africa’s fomenting crisis has profound implications for what the citizenry understand or believe to be the constitution’s vision of justice and its potential to undo unearned material and social privilege and change South Africa’s historically racialised property relations. What I am suggesting here is that those engaging in the debate about land and property rights should stop talking past each other as is the case currently. There should be less of a focus on abstract questions of the constitutionality or necessity of an amendment, instead what is needed is an increased emphasis on setting out, examining and elaborating upon the justice claims of the different positions advanced. Elaborating on the justice claims would entail requiring being transparent in naming or expounding on the ethical, moral, philosophical and/or historical justifications that ground positions advanced, as well declaring whose or which interests their positions advance.
Competing notions of justice
At this juncture, it is fair to ask what it would mean, in practical terms, to center the notion of justice in this debate. At the risk of over-simplification, I suggest that in public and academic discourses there are at least two identifiable streams of this debate. One stream (that I associate myself with) broadly speaking, advances a probing critique of the current constitutional paradigm and calls for a decisive change to the prevailing land and property relations achieved under the current dispensation which has left much of the land, property and wealth in the hands of white South Africans. Another stream defends the constitutional compromise that largely retained the status quo on land and property relations at 1994 whilst committing (at least textually in accordance with the constitutional property clause) to progressive, piecemeal redistribution and restitution of land; this stream tends to be simultaneously critical of government’s perceived failure to fulfill its constitutional mandate. To place justice at the center would be to require that both sides equally foreground their underlying justice claims, although in fairness it must be acknowledged that those calling for paradigmatic change generally do.
Earlier this year Time Magazine dubbed South Africa as “the world’s most unequal country”, this fact of a growing divide between the haves and the have-nots coupled with the increasing angst around land and property rights suggests an impending crisis is on the horizon. Continuation of the debate on current terms signals a failure to address the underlying justice questions of how this inequality was produced and has been sustained post 1994. To avoid the descent into a cataclysm, I suggest here that a first step must be to shift the grounds of debate away from political rhetoric, a focus on legalities and policy (over)analysis as this all too comfortably skirts the questions of justice implicit in really grappling with South Africa’s racially skewed wealth, land and property holdings.
About the author:
Sanele Sibanda is a faculty member in the School of Law at the University of the Witwatersrand in South Africa. He has been a visiting fellow at ISS, a participant in the joint Erasmus School of Law – ISS Project on Integrating Normative and Functional Approaches to the Rule of Law, and currently serves in the supervisory team of one of the candidates in a joint ISS-Wits PhD programme. Sibanda recently completed his PhD at University of the Witwatersrand entitled “Not Yet Uhuru” – The Usurpation of the Liberation Aspirations of South Africa’s Masses by a Commitment to Liberal Constitutional Democracy.