Why section 25 needs to be reviewed urgently

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The review and amendment of the Constitution and Land Restitution Act can no longer be delayed, writes Mathole Motshekga. On January 8, 2013, the ANC promised to transfer 30% of the 82 million hectares of agricultural land to black people by now. The government has not achieved this, and the land restitution process continues slowly. The government policy of willing seller, willing buyer has been blamed. The government has scrapped this policy and introduced the land expropriation bill to hurry things along. It seems to have been overtaken by events. The opposition and civic society organisations are calling for the amendment of section 25 of the constitution to speed up the process. However, these political parties, unlike civil society organisations, are merely grandstanding to win votes in the 2019 national elections because they have the power to introduce bills in Parliament which they have not exercised. The land question is a serious societal matter which requires collective action by all political parties, not just the governing party. Political bickering and mudslinging are futile.The constitution provides the necessary mechanisms to address the issues, which are premised on the rule of law and human and peoples' rights.

The people have expressed their disquiet about the slowness and the resulting triple challenge of poverty, unemployment and inequality. Hence, the recent calls for the amendment of section 25 of the constitution and for the passage of the Expropriation Bill.

Opposition parties opportunistically grabbed the chance to lambaste the governing party for failing to return land to black people.

Simultaneously, the calls led to fears that the desired constitutional changes and expropriation laws would open the door for land grabs, contrary to the rule of law and human rights.

The desired changes do not presuppose the violation of the rule of law and human rights but seek to remove legal and constitutional impediments to the extension of social and economic rights to the people of South Africa as a whole.

Section 25 prescribed onerous requirements for the redistribution and restitution of land, which were accepted by the ANC as confidence-building mechanisms to ensure that both black and white buy into the new constitutional dispensation. Some in our society think the ANC has accepted these mechanisms as permanent features of our constitutional order. This notion is erroneous and misguided.

The confidence-building mechanisms were informed by the Freedom Charter which says that South Africa belongs to all who live in it, and the wealth of the country shall be shared by all.

This means that a way has to be found to redistribute and to restitute the land to those who were forcibly dispossessed of it.

Historical background

The conquest of African kingdoms which ended during the second half of the 19th century was followed by the institutionalisation of racism by the Treaty of Vereeniging (1902) and the territorial segregation recommended by the Lagden Commission in 1905. These colonial acts were informed by the distorted masonic philosophy of Cecil John Rhodes and Lord (Alfred) Milner. The two colonial masters and their agents believed Africans were subhuman and inferior to Europeans. This racial ideology was used to justify the conquest of African people and dispossession of their land and natural resources, making them hewers of wood and drawers of water for the white settler minority in the land of their birth. African people were to be treated as foreigners in their ancestral land.

In 1909, the British and Dutch settlers passed the South Africa Act which provided for the formation of the racist Union of South Africa in 1910. This provocative Act forced the African Native congresses and related organisations in all four colonies to form the South African Native National Congress (SANNC) to advance African political, cultural, social and economic rights.

The SANNC was renamed the African National Congress (ANC) by the 1923 national congress, which also adopted a bill of rights. The opening paragraph of the bill affirmed the African humanity (ubuntu) and the rights of African people to participate in the economic life of the country.

The congress movement was inspired by the Ethiopian theology of African redemption (Psalm 68:31), which rejected the notion of the subhumanity and inferiority of Africans. It also rejected the demons of racism and tribalism. However, in 1913, the Union Parliament passed the Land Act, which consolidated the dispossession of African land and its natural resources. The South Africa Act and the land acts of 1913 and 1936 rendered Africans landless, voteless, homeless and hopeless.

The consequences were poverty, unemployment and inequality, which are still with us today. The consolidation of land dispossession in 1913 left Africans with only 7% of the total surface of South Africa. This was increased to 13% in 1936.

The 1913 cut-off date for land claims means that Africans are only entitled to the barren native reserves created by the 1913 and 1936 land acts. The restitution of the limited land to victims of dispossession also depends on available state resources.

The slow process has roots in the constitution and the land restitution Acts. The constitution allows expropriation of property for public purposes or in the public interest provided just and equitable compensation is paid. This means the state must buy back the land and natural resources which were lost through dispossession.

Other factors which slow the process are embedded in the Land Restitution Act and the bureaucracy it has created. In particular, the act is weighted in favour of owners rather than claimants.

Land dispossession also violates African culture and heritage under the guise of economic development. The resolution of the challenges of racism and its effects requires holistic, legislative measures and an implementation plan; not bickering and mudslinging in Parliament.

The naked truth is that there can be no justice without access to social and economic rights. Access to and ownership of land and its natural resources is the fundamental basis of social and economic justice. The ANC’s radical socio-economic transformation also depends on access to and ownership of land.

In the South African context, the rule of law and human rights have put brakes on radical (socio-economic) transformation by making access to and ownership of land and its natural resources subject to entrenched clauses.

There is an urgent need to review section 25 of the constitution and related legislation, to speed up land redistribution and restitution.

Returning the land to and empowering the people to use it productively is the only way in which the people can access social and economic justice.

The bickering and grandstanding in Parliament have nothing to do with the interests of the poorest of the poor who lost the land and its natural resources. The rules of Parliament allow any member to introduce a private member's bill and to lobby other members for support.

Motions for debates on the land question misses the opportunity to propose amendments to section 25 and related legislation in the relevant committees to enable Parliament to effect the necessary changes.

Parliament has established a multiparty Constitutional Review Committee, and none of the parties has made any submission for the amendment of section 25 and the enabling land restitution act.

There are avenues within the constitution and related legislation which empower members of Parliament as individuals to introduce private bills. There is no rational basis to blame other parties for not acting as all parties have the authority to act. All parties represented in Parliament are individually and collectively responsible for failing and/or neglecting to adopt legislative and other measures to address the land question and the racial ideology that informs it.

The review and amendment of the constitution and Land Restitution Act can no longer be delayed. It needs a multi-party intervention and programmer of action. The Constitution and the law have inbuilt mechanisms to resolve the land question and the racial ideology that informs it. These changes are a prerequisite for a radical socio-economic transformation.

* Motshekga is a member of the NEC of the ANC and professor of law at the Nelson Mandela Metropolitan University.

** The views expressed here are not necessarily those of Independent Media.

The Sunday Independent