Land law and economic liberation

Programme Director, Distinguished Delegates Ladies and Gentlemen, I thank the Convenors of the 4^th Annual Spring Law Conference for inviting me to speak at this gathering and on such an important subject in our country – Land law and economic liberation.

Life must be lived forward, but it can only be understood backward. As Cicero, a Roman philosopher, put it many years ago, “To remain ignorant of things before you were born is to remain a child.”

Dr. John Hendrik Clarke, an African American professor of history, has written: “History is a clock that tells a people their historical time of the day. It is a compass that people use to locate themselves on the map of human geography. A people’s history tells them what they have been, where they are now…more importantly, where they still must go.”

Our own Dr. Muziwakhe Anthony Lembede, that philosopher and awakener of the youth in his generation advised, “One who wants to create a future must not forget the past.”

Many with regard to this country preach the gospel of “Forget the past.” But where their own issues are involved, they not only remember the past, they commemorate it. In July 2014 I watched on television rather painfully when all European leaders met to commemorate the 100^th anniversary of their victory in their 1914 European First World War. There were no African leaders invited at this commemoration, yet so many Africans died in that war of their colonisers. There was not a whisper of “Thank you Africa for coming to our rescue at your expense.”

In this country alone many African soldiers died. On one occasion we lost over 600 soldiers. This was the 5^thBattalion. They died when the SS Mendi Ship sank. They were called the South African Native Labour Contingent. Even in war where they were going to spill their blood for a cause that was not theirs, they were still used as mere tools.

Symptoms must not be confused with real disease  

I think the culture of dealing with political symptoms of a political disease instead of dealing with the disease itself will destroy Africans in this country. Effects of a problem must not be confused with its cause. Causes of a problem must be identified and correct thinking applied to the problem. For instance, in this country apartheid was the effect, the symptom of the problem, not the cause of the primary contradiction in the African liberation struggle.

An African proverb says, “When you fall, do not look where you fell, look where you slipped.”

This country was colonised by Britain. There were African wars of national resistance against colonial land dispossession of the African people. They were led by African kings such as Hintsa, Cetshwayo, Sikhukhune, Moshoeshoe, Makhado and many others. The cause of these wars was the invasion by people who were taking this land from these kings. Land is economy.

After the invaders crushed all African wars of national resistance against British colonialism with their guns against African spears, this is what happened. Four British colonies, the Cape Colony, Natal, Transvaal and Orange Free State were turned into what was called the Union of South Africa. This was through a law called the Union of South Africa Act 1909. It was legislated directly by the British Parliament. It came into effect on 30th May 1910.

The population of the four colonies that had now formed the Union of South Africa was as follows:

Cape Province: 167,546 Europeans

Natal: 34,784 Europeans

Transvaal: 106,493 Europeans

Orange Free State: 41,014 Europeans

This was a total population of 349,837 Europeans according to the colonial census of 1904. They were not called Whites those days. Britain gave them political power to rule the Union of South Africa and make their laws in its colonial parliament. But Section 44 of the Union of South Africa Act 1909 stated, “The qualifications of a member of the House of Assembly shall be as follows:- He must…(c) be a British subject of European descent.”

In this parliament of Europeans only, the four provinces of the colony were represented as follows: Cape Colony 51 members, Natal 17 members, Transvaal 36 members and Orange Free State 17 members.

In addition to this, European members began to openly show what their political objective was. A member whom the British government had honoured for “good” colonial service Colonel Sir A. Wool-Sampson (M.P. Braamfontein) told Parliament on 10^th November 1910 that “to the best of his recollections during recent elections in the Transvaal, the majority of honourable members declared themselves in the most positive terms their determination to make this a Whiteman’s country….”

African liberation pioneers identified disease as colonialism

This scared leaders like Dr. Pixley ka Isaka Seme, an African lawyer educated in America and Britain. He came with the idea of forming the South African Native National Congress (SANNC). When he spoke on 12 January 1912, Dr. Seme said: “Kings of the royal blood and gentlemen of our race, we have gathered here to consider and discuss a scheme my colleagues have decided to place before you…in the LAND of our birth, Africans are treated as hewers of wood and drawers of water. The Europeans have formed what is known as Union of South Africa in which we have no voice.”

Indeed, the South African Native National Congress was formed. But the political situation was getting worse. The new colonial parliament of the Union of South Africa passed the Native Land Act 1913. It allocated 93% of the African country to Europeans. The remaining 7% was allocated to the African population which was then over five million people in what was called “Native Reserves.”

After so much of African land was colonially and illegally seized from its  owners, SANNC leaders with the collaboration of the colonially weakened African kings sent a delegation to King George V in England to have the Native Land Act 1913 suspended and the principle of equitable distribution of land applied. These leaders were Dr. John Dube, Sol Plaatje, Dr. Walter Rubusana, Thomas Mapikela and Saul Msane. That was on 20^th July 1914.

In that petition among other things, they said that they loved their country with a most intense love…that their land had been taken away from them, their military and other institutions brought to nought.

The main demand to King George V by these African leaders was “that the natives (indigenous Africans) should be put into possession of land in proportion to their numbers, and on the same conditions as the white race.”[1] This African petition fell on deaf ears of the King of England and his Government.

Indeed, the only sympathy for the African leaders in England came from a London daily newspaper. It reported, “In carving out estates for themselves in Africa, the white races have shown little regard for the claims of the black man. They have appropriated his land and have taken away his economic freedom and have left him in a worse case than they found him….

“That the African has been dispossessed may be illustrated by the facts with regard to the Union of South Africa. Here blacks compared with whites are in proportion of four to one, but are in legal occupation of only one  fifteenth of their land…the deputation of natives [SANNC leaders] now in England have appealed to the imperial government for protection. They asked for the suspension of the Native Land Act 1913….”

Attitude of colonialists towards Africans

Glen Grey, a British colonial official in South Africa, argued that “The Natives are generally looked upon by Whites as an inferior race, whose interests must be systematically disregarded when they come into competition with their own, and should be governed mainly with a view to the advantage of the superior race. For this reason two things must be afforded to white colonists, LAND…the Kaffir population should be made to furnish, as large and cheap a supply of labour as possible.”[2]

Of course, there are justice-loving people in England who spoke against the colonial land dispossession of the African people. Sir Thomas Farewell Buxton of the Anti-Slavery Society wrote, “My attention has been drawn to the wickedness of our proceedings as a nation, towards countries of natives we seize. We have usurped and enslaved them. Their greatest crime is the LAND of their forefathers.”[3]

His fellow countryman Williams Ellis had earlier made reference to the British practice “….especially to seizing land of people whose country we may colonise and the expulsion and annihilation of its rightful possessors. It has been our custom to go to a country, and because we were stronger [militarily] than the inhabitants, to take and retain possession of the country to which we had no claim but to which the indigenous people had the most inalienable right, upon no other principle than that we had [military] power to do so. This is a principle that can never be acted upon without insult and offence to the Almighty God, the Common Parent of the human family.”[4]

How did African Kings respond to land dispossession?

King Moshoeshoe said, “The white people seem to be bent on proving that in politics Christianity has no part….It may be you white people do not steal cattle, but you steal whole countries….Whites are stealing Blackman’s land in the Cape to here [Orange Free State]”. [5]

King Domas of the Khoi Africans did not mince his words when it came to land. He asked Jan van Riebeeck, “Who with the greatest degree of justice should give way to land, the natural owner or the foreign invader?” He continued, “If we [Africans] were to come to Europe would we be permitted to act in similar manner you act here? [6]

“It would not matter if you stayed at the ‘provision station’ [at Table Mountain on your way for trade in spices in Asia], but you come out here in the interior. You select the best land for yourselves. You never ask even once if we like it or whether it will disadvantage us.”

These Africans who had never been to school and had no university degrees identified land as the most important and basic possession and asset of a nation. Prince Maqoma of the Xhosa-speaking Africans took part in a number of wars of national resistance against colonial land dispossession of the African people. Before he was imprisoned in Robben Island in 1859, he told a British colonial soldier Colonel Wade:

“We [Africans] are to possess land again. It was bequeathed to us by our ancestors; to hold, nurture and make it productive for their progeny….You came out of the sea to our land. Like a serpent you emerged out of the sea to our land. Besides you had no tongue to speak to us. We waited to know why you had come. Instead we heard you are settling and taking possession of our land.

“But this is our land. You made us vanish, not exist. We are our land….From the sea you had no cattle. Now you have many cows and sheep….War you made to dispossess us. Blood you spilled, to take even more land. We cannot give up. We cannot rest. Without land we cannot be.” He died in Robben Island Prison in 1873.

How the “New South Africa” Constitution has entrenched Native Land Act 1913

The 1996 South African Constitution brought about what is called “New South Africa.” It entrenched land dispossession of the African people. It substituted the Native Land Act 1913 with Section 25, sub-section 7. It reads, “A person or community dispossessed of property after 19 June 1913 as a result of past racial laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.”

After June 1913, there was no land for Africans left to claim except the crumbs left for Africans after June 1913 further expropriated by the colonial regime through the Group Areas Act 1950. Africans were allocated 7% through the Native Land Act 1913 and 6% through the Native Trust Land in 1936. The latter was as a result of Tomlison Commission Report of 1916.

Section 25 of the South African Constitution is brutally insensitive to the land rights of the colonially dispossessed African people. It protects those who acquired land and its mineral resources colonially. It inhumanly ignores 80% of the African indigenous majority who were colonially robbed of their land at gun point and through colonial laws in which the Africans had no say.

This includes the Union of South Africa Act 1909, a British Parliament legislation which united the four British colonies of Cape Colony, Natal, Transvaal and Orange Free State and never decolonised them. This colonial law was precipitated by what was called “fight
against the Native danger.”[7]

This was spelled out clearly also in a colonial memorandum sent to the British Secretary of State and Colonies in London, E. Bulwer Lytton, by Cape Colony governor, Sir George Grey. It read: “The Kaffir tribes upon our borders are already becoming disturbed. If the Basutos are conquerors in the war it will greatly encourage the Coloured [Black] races against the whites, and they will be dissatisfied with our assumed neutrality, under the guise of which we have continued to supply the Orange Free State with arms and ammunition, whilst we have acted as a police to prevent the Basutos from obtaining such supplies….

“Nothing but a strong Federal Government which unites within itself all the European races in South Africa can permanently maintain peace in this country…and free Britain from constant anxiety for the peace of her possessions here.”[8]

Sub-section (1) of Section 25 states, “No one may be deprived of property in terms of law of general application, and no law may permit arbitrary deprivation of property.”  The architects of this part of the constitution ignored the fact that the Union of South Act 1909, Native Land Act 1913 and Native Trust Land 1936 had been arbitrary deprivation of the land dispossessed Africans.

How just is Section 25 subsection7 when it states, “A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws and practice is entitled to restitution of that property”? The 19th of June 1913 is the date on which the colonial Union of South Africa parliament passed the Native Land Bill giving over five million Africans in this country 7% of their land and handing over 93% of the country to colonialists. This created massive poverty. This land dispossession and robbery of its mineral wealth is still devastating the African people to this day. Employment alone will not solve this problem. The national cake in this country is in the hands of the minority. This was pointed out to King George V of Britain 116 years ago.

 Why colonialists took land and its resources from Africans

About land, Sol Plaatje has reminded, “In the harvest of 1911 there was panic among white farmers because an African had garnered three thousand bags of wheat and another sixteen hundred…in a neighbourhood where their white neighbours reaped only 300 to 400 bags….Native produce kept mills busy in Ficksburg, Klerksdorp, Zeerust and other places and Native [African] export was looming in the not distant future….Then it was asked ‘Where shall we get servants if Kaffirs are allowed to become skilled?…’”

Sol Plaatje continues, “At the beginning of May [1913], no one knew that the year would see the last days of territorial freedom for natives [Africans] of the Union [of South Africa], but on June 19 the same year, the law had been enacted and was operating in every part of the Union.”[9]

The constitution is silent about how this situation where the minority population has more land and its resources than the majority will be reversed beyond the 13% crumbs left to Africans “after June 1913.”  There is no concern for people who live in filthy unhealthy shacks which often burn or flood, killing innocent people. When the question is asked, “When will these Mikukus/shacks be abolished?” The answer is “there is not enough land.”  Does this make sense in a country that has so many golf fields? Yet millions cannot find even a decent place to sleep?

Subsection 2 states that “property may be expropriated only in terms of general application…subject to compensation…” It ignores the fact that land in this country was unlawfully expropriated from African Kings. They were its custodians in terms of the African law that existed pre-colonially. The overthrow of these rulers was a violation of Romans, Chapter 13 verses 1-2 in the Bible. It teaches that rulers must be obeyed. The colonialists disobeyed this scripture. It was insensitive of these illegitimate colonial regimes to later demand obedience of African people to their colonial governments.

Section 25 Sub-sections 2 and 3 mention “compensation” two times. It states “The amount of the compensation and time and manner of payment must be equitable….” This is for people who have acquired land colonially. How ethical is this? How just is this? Compensation should be made on improvements they made on land. Not on the land itself.

Why has the constitution of “New South Africa” not provided compensation to Africans for land colonially seized from them before June 1913? Why does the constitution insist on compensation for those who grabbed African land colonially, but not for those who were colonially deprived of their own land?

There was never a thought on the part of colonialists to consider reparations for Africans for colonial barbarism committed against them.

In 1930 colonial Prime Minister Jan Smuts himself admitted the injustice of dispossessing Africans of their land in South Africa. He wrote, “The mistake we made in South Africa in the past was our failure in reserving sufficient land for the future of the natives and the problem we now have in our hands is one of the most difficult.”[10]

Colonial problems are solved through principles of niternational law

Section 25 (7) of the South African Constitution is a product of mutilation of history and manipulation of international law. This stems from the fact that, among other things, an anti-colonial liberation struggle was tragically turned into a mere civil rights issue. The stubborn fact, however, is that colonial issues are governed by principles of international law such as nemo dat quod non habet. No one can give a legally valid title than he possesses or for what is not his. This applies to states and territories. The decision of The Palmas Island Case in the Permanent Court of Arbitration before Judge Max Huber stated the law as follows:

“It is an established fact of international law that if a state transferred a territory, the legality of the transfer depends on the title it holds. If it is defective the title of the state to which the territory is transferred or ceded will be vitiated by the same defect.  Again the Latin maxim is nemo dat quod non habet.”[11]

Britain itself recognised that its colonial title was null and void. It had no legal validity to give Britain the right to pass the country of Africans to its European settlers. On 6^th May 1919, on behalf of the British government, Sir Richard Wilfred, a cabinet minister, wrote to Sol Plaatje, Secretary of the South African Native National Congress. Wilfred said, “At the close of the war we shall do all in our power to help you regain that justice and freedom to which…your people are justly entitled.” [12]

This was a clear indication on the part of Britain that in international law colonialism is unlawful and is in fact a crime against humanity. Colonialism was European theft and stealing of African countries. Neither so-called Westminster Statute 1931 nor membership of the League of Nations or United Nations, nor calling the African country a “dominion” had conferred “sovereignty” on the British colony.

When General Hertzog, another South African colonial prime minister, hailed the Westminster Statute of 1931 as meaning that South Africa had “sovereign independence and finality with regard to the country’s freedom;” the British House of Commons described Hertzog’s statement as “more sentiment than substance.” [13]

Of course, Britain did not fulfil its promise to decolonise the African country at the end of the European First World War against Adolf Hitler.

Fifty six years later, however, one of the liberation movements in South Africa, together with the Organisation of African Unity (OAU), got South Africa expelled from the United Nations as a British colony with no sovereign status in international law.

Confirming this fact, Prof. Tom Lodge wrote, “In November 1974 Pan Africanist Congress lobbyists succeeded in obtaining the expulsion of South Africa from the United Nations and in July 1975 the OAU Kampala Meeting adopted as official policy, a long document prepared by the PAC arguing the case for the illegality of South Africa’s status” [in international law]. [14]

The African land which Britain transferred to its colonial settlers through the Union of South Africa Act 1909 and the Native Land Act 1913 had no legal validity. A colonial power has no right to transfer territory that does not belong to it. It is the principle of international law and of natural justice that “natural reason concedes ownership to the first occupier.” (quod nullius est id ratione naturali occupant conceditor).

Recognising this fact, in 1916 the President of the South African Native National Congress, the Rev. Sefako Makgatho, declared, “We ask no special favours from the colonial government. This is the land of our forefathers.”

This was correct. After all, seven Western European countries had illegally seized the whole of Africa including South Africa and partitioned it among themselves, except for Ethiopia and Liberia. This was through the Berlin General Act of 26 February 1885. It was not surprising when in 2000, a Kenyan Presidential candidate Mr. Koigi Mamwere spoke on the issue of land dispossession in the manner he did. He said:

“Today Europeans own land in Australia, New Zealand and Tasmania and  all the best land in African countries like South Africa, Zimbabwe, Namibia and Kenya. To acquire this land outside Europe, Europeans did not use law, justice and money. They took the land and its riches with the gun.”

Why is land and its resources so critical to a nation?

Liberation of a land dispossessed people without land and its riches is a gigantic colonial fraud. Land is the primary source of life. Land is life. Without land there can be no life. Land is national sovereignty. Land is the primary means of production. Land is the basic asset of a nation. Its resources must be used to eradicate poverty, ignorance and to raise the standard of living of the people.

Food does not grow in the sky. Houses are not built in the air. Gold, platinum, diamonds, oil and all other minerals are dug from the land. They are not situated in the clouds. Cattle, sheep, goats, horses do not graze in the air. Pastures and water are found in the land. Even the departed demand their graves not in the clouds but in the land.

Without land there is only be poverty and lack of resources to educate our children. We then become a nation without enough skills and professions to conduct our affairs competently, especially economically and technologically. Land and resources in it enable a nation to acquire knowledge. Education liberates a nation. If we do not acquire knowledge we shall be an ignorant people who are victims of vultures that see poor and ignorant nations as their carcass to feed on.

The construction in the constitution essentially means that Africans are excluded from access not only to land, but also to key natural resources, mineral wealth, water, forests, wildlife, biodiversity and biological resources. All these are necessary for innovation and development of the country and economic liberation of the African people. Therefore:

1. Section 25 of the constitution must be repealed or fundamentally amended especially sub-section 7. Compensation must be paid on improvements made not on land itself. The land belongs to its indigenous people not to those who used guns and war to steal it.
2.  The word “property” in Section 25 of the constitution must be replaced with land. Property can be moveable or immoveable. In the constitution it must be made clear that it is land that is at stake. It is presently skilfully drafted in a manner that shows that it was intended to hide the real issue of land dispossession, hence this deliberate ambiguous  and illusive wording.
3. There must be equitable redistribution of land and its resources according to population numbers. The willing buyer willing seller is a market principle. It is a false notion that can only give deference to the dispossessor. This does not tip over the old power relation. Willing buyer willing seller principle subjects government to land claims on the basis of 13% of the land. There needs to be a shift towards a ‘supply-led’ land redistribution model away from the demand-led land claim model. This is a piece-meal process that does not transform the livelihoods of the African people nor transfer land to them as a significant asset for development.
4. There must be a moratorium on eviction of the poor from land as well as an immediate legislation forbidding sale of land to foreigners.
5. Foreigners who need land that is for the economic development of this country must be given a 99 years leasehold renewable on condition of their performance for the good of this country.
6. Dual citizenship must be abolished until the land question is resolved in this country. There are many “citizens” today who have dual citizenship purely for private economic reasons. They are not 100% committed to this country.

A new breed of investors is needed

South Africa must have a constitution that liberates the African indigenous majority economically. This country must be made strong economically. It has resources. With high quality diversified education and technological advancement, it can manage its resources more efficiently and have a degree of self-reliance. This nation must have a constitution that removes the shame and danger of a “two-nation” syndrome in which the minority white one, is extremely rich and the majority black one is extremely poor.

Of course, on its path to the economic liberation of its people, South Africa like all other countries needs investors. But this 21^st century, Africa as a whole needs a new breed of investors who do not think they are so indispensable that they should dictate unacceptable terms to an African nation.

I agree with Dr. Kwame Nkrumah, the first President of Ghana when he said: “We welcome foreign investors in a spirit of partnership. They can earn their profits here provided they leave us with an agreed portion, promoting the welfare and happiness of our people as a whole, against the greedy ambitions of some. From what we get out of this partnership we hope to expand the health services of our people, to feed and house all, to give them more and better educational institutions and see to it that they have a rising standard of living.”

Programme Director, Ladies and Gentlemen,

HALF A LOAF IS NOT BETTER THAN NOTHING. HALF A LOAF IS SLOW POISON. THANK YOU.

* Dr. Motsoko Pheko is author of several books such as The Hidden Side Of South African Politics and How The Freedom Charter Betrayed The Dispossessed. He is a former Member of the South African Parliament as well as a former Representative of the victims of apartheid at the United Nations in New York as well as at the UN Commission On Human Rights in Geneva.

End notes

[1] Law Journal University of Lesotho Vol.3 Number One 1987 page 111

[2] Political Economy of Race and Class in South Africa page 71 Monthly Review Press London

[3] Sir Thomas Farewell Buxton, Edited Memoirs London 1926 page 106

[4] Ibid October 1930

[5] Moshoeshoe I Profile by Ntsu Mokhehle page 26 Khatiso Ea Lesotho 1976

[6] Towards Africa’s Authentic Liberation by Motsoko Pheko page 112 Tokoloho Publisher, Johannesburg 2012

[7] Gilbert Dold and C.P. Joubert, The British Commonwealth – The Development Of Laws And Constitutions (South Africa) Page 33 Stevens& Sons Ltd, London; Fowler And Smith, History For The Senior Certificate And Matriculation Page 428

[8] Sir Godfrey Lagden K.C.M.G., The Basuto Page 261 Hutchinson & Co Vol. 0ne 1909

[9] Sol Plaatje page 17 Heinemann London 1978

[10] Africa And Some World Problems page 60, 1930

[11] The Island Of Palmas Case Permanent Court of Arbitration, Sole Arbitrator, Judge Max Huber 1928

[12] Presidential Address, 8th Annual Conference of the South African Native National Congress, 6th May 1919

[13] Gilbert Dold and C.P. Joubert op.cit. page 74 and Henry. J. May The South African Constitution  page 44,  Juta & Co Cape Town

[14] Black Politics In South Africa Since 1945 Tom Lodge page 134 Raven Press, Johannesburg 1982