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Land and property rights in South Africa: questions of justice by Sanele Sibanda

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.


Image Credit: Martin Heigan on Flickr


About the author:

IMG-20191030-WA0027Sanele 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.

 

 

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Beyond the binary: negotiating cultural practices and women’s rights in South Africa by Cathi Albertyn

In a recent lecture at the ISS, Professor Cathi Albertyn of the University of the Witwatersrand discussed how South African women navigate civil and customary laws to claim women’s rights within culture. Here she shows that women in South Africa do not seek to oppose culture and custom, but desire equality within their own communities.


Women in South Africa have long opposed discrimination in the family, in both civil and customary law. When the South African Constitution was negotiated in the early 1990s as the apartheid dispensation made way for a democratic political system, few expected the conflict that occurred between women pursuing equality and traditional leaders seeking to affirm culture and custom. Women fiercely opposed the traditional leaders’ 1993 call for customary law to be excluded from the equality guarantee in the Bill of Rights, arguing that all South Africans should be recognised as rights-bearing citizens in the new democracy. In the end, the 1996 Constitution created a plural legal system that recognised customary law, as the written and unwritten indigenous law regulating the lives of many black South Africans (especially in rural areas), and subjected it—together with all law—to the values and rights of the Constitution.

As with earlier forms of civil law, women suffered multiple inequalities under customary law, including unequal status and rights in the family, to inheritance and land, as well as participation in customary courts and positions of leadership. But in calling for equal rights, they did not seek to oppose culture and custom. On the contrary, organisations such as the Rural Women’s Movement were very clear that women wanted equality within their communities. In constitutional terms, they asserted both the right to equality (section 9 of the Constitution) and the right to participate in their culture (sections 30 and 31).

The relationship between equality and culture

How, then, should we think about the relationship between equality and culture? In the early 1990s, international law did not seem to be particularly helpful. Whilst the Convention on the Eliminations of All Forms of Discrimination against Women (CEDAW) set out important rights, it did not engage the cultural domain beyond calling for change. Rather, it seemed to imagine completely separate and hierarchical spheres of women’s rights and discriminatory culture. This tended towards a trumping relationship between women’s rights and a “cultural other”.

South African lawyers and policy-makers imagined a different relationship, drawing on the idea of “harmonising” customary law with the Constitution. Here they were influenced by the work of Women and Law in Southern Africa (WLSA), who recognised that women’s rights needed to be strengthened within their customary context. Their research pointed to ideas of custom and culture that were not bounded, rigid and unchanging, but more flexible and responsive to a changing world, and to women’s needs. In contrast to the official customary law, codified under colonial rule, the “living law” revealed practices in which women secured rights to inheritance, land, and so on.

This idea of “living law” in which women were agents within an evolving system, able to draw on multiple ideas to negotiate change from within, became a key idea in both legislative and judicial reform of customary law in South Africa.

For example, research in South (and southern) Africa which showed that women actively seek out rights in marriage, reaching to civil marriage when they could not secure rights in customary marriage, influenced the enactment of the Recognition of Customary Marriages Act in 1998. The RCMA granted women equal status and rights in marriage, while preserving customary forms of celebration and—controversially and directly against CEDAW—recognised polygamy.

In addition, Classens and Mnisi’s research into land rights—with land usually held by men—has uncovered practices in which women (particularly single women with children) are able to negotiate access to land in their communities by drawing on customary and constitutional values of equality, democracy, need and dependency.

Criticism of “harmonising” two law forms

These examples point to the possibilities of claiming women’s rights within culture, and that cultural rules and practices can accommodate and affirm women’s rights and gender equality. But this approach is not without problems, nor is it uncontested.

A major criticism by writers, such as Himonga (2005) and Nhlapo (2017), is that legislative and judicial attempts to “harmonise” customary law with the Constitution are too reliant on civil forms and lack the imagination to embed customary values in new legal forms. As a result, they have not always been followed within rural, customary communities.

Others, such as Nyamu-Musembi (2002), point to the problems of power and vested (male) interests within communities, suggesting that the potential for change is limited as long as women lack authority and voice. Even where women succeed, it is by conforming to gendered “stereotypes”, such as the “dutiful daughter”. Further, meaningful cultural change is often only possible with support from “outsiders”, such as local NGOS (Nyamu-Musembi, Hellum and Katsande 2017,).

Working from within is a contradictory and uneven strategy. However, it cannot, and should not be dismissed. Women need rights within their communities and “top-down”, trumping strategies, while important, can have significant limits. In the end, there is no magic bullet for women’s rights.


List of useful references
Catherine Albertyn ‘Cultural Diversity, “Living Law” And Women’s Rights in South Africa’ in Daniel Bonilla Maldonado (ed) Constitutionalism in the Global South (2013) Cambridge University Press 163-.
Aninka Claassens & Sindiso Mnisi-Weekes ‘Rural Women Redefining Land Rights in the Context of Living Customary Law’ (2009) 25 South African Journal on Human Rights 491.
Anne Hellum & Rosalie Katsande ‘Gender, Human Rights and Legal Pluralities in Southern Africa: A Matter of Context and Power’ in Giselle Corradi, Eva Brems & Mark Goodale (eds) (2017) Human Rights Encounter Legal Pluralism: Normative and Empirical Approaches 119–136.
Chuma Himonga ‘The Advancement of Women’s Rights in the First Decade of Democracy in South Africa: The Reform of the Customary law of Marriage and Succession’ 2005 Acta Juridica 82.
Thandabantu Nhlapo ‘Customary Law in Post-Apartheid South Africa: Constitutional Confrontations in Culture, Gender and “Living Law”’ (2017) 33 South African Journal on Human Rights 1.
Celestine Nyamu-Musembi ‘Are Local Norms and Practice Fences or Pathways? The Example of Women’s Property Rights’ in Abdullahi A An-Na’im (ed) (2002) Cultural Transformation And Human Rights In Africa 126.
Bhe v Magistrate Khayalitsha [2004] ZACC 17 http://www.saflii.org/za/cases/ZACC/2004/17.pdf
Shilubana v Nwamitwa [2008] ZACC 9 http://www.saflii.org/za/cases/ZACC/2008/9.pdf
UN GA Report of the independent expert in the field of cultural rights, Ms. Farida Shaheed, submitted pursuant to resolution 10/23 of the Human Rights Council, 22 March 2010, A /HRC/14/36
UN GA Report of the Special Rapporteur in the field of cultural rights, 10 August 2012, A /67/287
UN GA Report of the Special Rapporteur in the field of cultural rights, 17 July 2017, A/72/155

Picture credit: Max Pixel


image-20160512-16407-1phc8djAbout the author: 

Cathi Albertyn is Professor of Law at the School of Law, University of the Witwatersrand, South Africa, where she teaches graduate and post-graduate courses in Constitutional Law and Human Rights. Prior to joining the School, she was the Director of the Centre for Applied Legal Studies (2001-2007) and headed its Gender Research Programme for ten years (1992-2001). She was appointed to the first Commission on Gender Equality and later served on the South African Law Reform Commission. research interests include Equality, Gender Studies, Human Rights, the Judiciary and Constitutional Law.