The protection of property rights is a crucial tenet for liberty including that of the individual, of families, of communities and society at large. Looking back at the history of colonialism and apartheid it was this very principle of freedom and liberty which was denied to black South Africans.
The hypocrisy of the British in terms of their position on liberalism was highlighted in their colonial actions via their denial and removal of these rights from black South Africans, to meet the empire’s commercial mercantilist interest. The creation of a needy, economically insecure and therefore cheap labour pool would be to the benefit of the British economy.
The apartheid system that followed the formation of the Union of South Africa and the successive independence of the South African state merely further entrenched and deepened the British colonial process of eroding the rights of the majority population. It’s important to take note of the reality that it was a European thought and ideology which implemented this system of property dispossession and denial of individual property rights and ownership.
Therefore, the idea that property rights are antithetical to Africanness is nonsensical in that it overlooks the fights waged by black African people for these very rights. How ironic now that groups purporting to speak or represent Africans have become the major contemporary threats to these rights. This is what we have seen in the debate on expropriation of land without compensation, championed by the EFF; and a core faction of the ANC which President Ramaphosa has pandered too in the name of party unity.
In his incredible book ‘The Land is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa’ Advocate Tembeka Ngcukaitobi, tracks the history and processes of land dispossession and the methods black people employed to defend and secure their rights. A key theme of the book by Ngcukaitobi is to dispel a particular myth about the South African Constitution and Legal System, that it is foreign and therefore given to us by enlightened Europeans and therefore un-African.
This is a form of thinking that is pleasing to the racist narrative of the Eurocentrists and Afrocentrists, who are after all two sides of the coin of divisive ethnocentrism. As our Constitution stands today, it does not prevent land reform; success or failure is in the hands of those governing. The constitution, however, does provide guarantees for property rights that were not there before the end of apartheid; this must not be taken for granted by even those with very little; as also that can be lost.
While it was not the first of such laws, the 1913 Natives Land Act was one of the most significant acts of law, adopted while the Union of South Africa was still under considerable British colonial influence. The law prohibited black South Africans from owning land in “white areas” restricting them to meagre pieces of land in black reservations later called Bantustans or homelands. Even in these homelands, property ownership was unsecured with ethnic authorities maintaining an iron grip over ownership and usage patterns. Those black people who lived in the cities were not better off, as they were tenants of the state in townships, where local municipalities owned the land.
When the National Party ascended to the centre of power in South African politics, it took the already racist policies of the British colonial system and ramped it up via Afrikaner nationalism and white fears of the non-European majority. Under successive National Party governments, the property rights of blacks, as well as other fundamental rights such as those of work, movement, association, were whisked away at the stroke of a pen in parliamentary legislation. The ANC, supported by its splinter party the EFF, distracted the public from its failures, in order to implement a process that would undo what was done by the British and Apartheid regimes.
In 1994 South Africa emerged from this tragic history to a democratic era where the protection of property rights is secured in the constitution, where one, regardless of race, gender, has some protections in law for the property that they own. This right is something all South Africans should cherish. Sadly, not many are in the privileged position to appreciate it, as over the past 24 years there has not been much change, especially for black people in terms of dealing with the legacies of dispossession.
Too many people in our country don’t have the security of ownership of the land and property they occupy, whether in the urban regions or the rural areas. There has been a massive failure on the part of the democratically elected government in land restitution and restoring the dignity of black South Africans. This was admitted in the Kgalema Motlanthe Report commissioned by the ANC dominated parliament, which said that corruption, lack of political will and mere incompetence had been the key impediments to land reform in South Africa.
Property rights, and specifically security of tenure - being protected from having one’s property confiscated by another party - is critical for economic activity in the modern era. With private ownership come the opportunities to obtain loans against what one owns to start new enterprises and invest in further training or education.
In their book, Why Nation’s Fail: The Origins of Power, Prosperity, and Poverty, Daron Acemoglu and James Robinson distinguish between extractive institutions and inclusive institutions. Extractive institutions tend to lead to poor countries such as those of the colonial era, and many post-colonial developing nations. Inclusive institutions are seen in so-called developed states, whether Western nations or the prosperous Asian Tigers, such as South Korea, Hong Kong and Taiwan.
According to the authors “Inclusive economic institutions that enforce property rights, create a level playing field, and encourage investments in new technologies and skills are more conducive to economic growth than extractive economic institutions that are structured to extract resources from the many by the few.” The emphasis on property rights in the book Why Nations Fail is vital for anyone interested in the subject of land reforms to understand solutions for South Africa and other so-called developing countries.
Many believe that the idea of private property is un-African; however, this is not the case, the respect for property rights in Africa predates the colonial era according to some academics such as George Ayittey. Perhaps not in the modern sense of property law, but African communities had a strong sense of security and freedom in terms of their land and property, even if it was under communal rights. This meant that those who worked the land had a lot of leniency, freedom and discretion on what they did with their land, for their family or tribe.
Colonialism and later apartheid destroyed and distorted these traditional institutions of property rights. Today under the Constitutional regime we even have an abomination of traditional leadership, which has been frozen in time in its Apartheid-era position of being an arm of government that lacks any accountability to the people that should give recognition to traditional power.
It’s crucial that as South Africa deals with the critical and urgent issue of land reform, we do not lose sight of the prized principle of property rights. Our laws do not obstruct land reform, but weak, ineffective and mismanaged institutions have hampered it. The fault of failure should be laid squarely at the feet of our post-apartheid government. The government has admitted to failing to reach its targets of land reform, only transferring about 10% of land since the advent of democracy. Experts on land reform have said that it is neither the constitution nor the principal of compensation that has been a constraint to land reform, but it has been “corruption by officials, the diversion of the land reform budget to elites, lack of political will, and lack of training and capacity.”
South Africans are understandably aggrieved by the failures of the promise of democracy. A vast majority suffers for the plagues of unemployment, poverty and inequality. After 25 years of failure, where these challenges have gotten worse, a simple answer has been given: Expropriation Without Compensation, and a scapegoat has been found in Section 25 of the Constitution which viewed as a tool to protect the privileged. Some supporters of President Ramaphosa, in the private and media sectors, believe he will not go through with EWC.
This could be correct but what they and Ramaphosa are not accounting for is the expectation that has been raised by the populist rhetoric. How will people react when the promised land expropriation does not happen? How will they respond when they realise the complexity and the long process of fixing the nine wasted years of ANC failure on land reform and general governance of the country.
The bread and butter issues won’t be magically fixed by expropriating land, but the insecurity it will instigate will take South Africans out of the frying pan into the fire. By the end of 2019, we may find ourselves having sacrificed a lot at the altar of populism; and amongst these sacrifices would include our very own rights, fought and bled for by many South Africans during colonial and apartheid times.
Sinethemba Zonke is a political risk analyst and commentator on African issues. He writes on his blog www.sinethembazonke.com