Human needs, land reform and the South African constitution

Abstract

This paper argues that the poor delivery on land reform in post-apartheid South Africa is best explained through a close analysis of the form and content of the constitution of 1996. Within this progressive legal document lies the possibility for radical land reform but also that which currently hamstrings the process. The South African constitution is self-defeating with regard to land reform because it conceives of the goals and means of land reform in the same conceptual language as is currently used to secure the private ownership of land—the language of inalienable rights. The article explains how and why this hinders the process of land reform and shows why rights-based constitutions in general are self-defeating. It ends by suggesting in outline the framework for a new conceptual language for politics and for constitutions based on a conception of human needs and an alternative (needs-based) constitution.

Notes

1. By March 2004, a total of 2.5 million hectares of land had been transferred since 1994, amounting to 2.9 per cent of commercial agricultural land (Cousins, 2004).

2. South Africa has a long history of drafting and modifying constitutions. Natal (now the province of KwaZulu-Natal) received its first constitution in 1856. A large number of regional constitutions followed. Then, in 1908, a constitutional convention was held, which resulted in the British Parliament passing an act that established the Union of South Africa in 1910. This constitution lasted until 1983, but not without a number of modifications.

3. Racist policy in South Africa has a long history. For example, ordinance 49/1828 required black people to carry passes for entry into the Cape Colony and a pass was required before they could seek employment (Caiger, 1995, pp. 113–140, at p. 113n).

4. I am indebted to Scott Drimie for bringing this paper to my attention.

5. It was recommended by the Lagden Commission of 1903–1905 and later reinforced and intensified through Hertzog's 1936 Native Trust legislation and the Bantu ‘homeland’ policy from 1955 (Davenport and Saunders, 2000, p. 192, pp. 598–590).

6. The constitutional process that began very soon after the unbanning of political opposition in South Africa on 2 February 1990 involved three distinct fora and periods. First, the Convention for a Democratic South Africa (CODESA) forum was established in December 1991 and lasted until May 1992. Second, the Multi-Party Negotiating Process (MPNP) in Kempton Park ran between March and November 1993 and saw the transitional process through to the creation of an Interim Constitution on 17 November 1993 and South Africa's first democratic elections on 27 April 1994. And, finally, the forum of the Constitutional Assembly discussions that led to the certification of the final constitution on 6 September 1996. For full discussions of the first two fora and their context, see Bennun and Newitt (1995), Markus et al. (1996), and van Wyk et al. (1996). For insights into the third fora, see ‘Certification of the Constitution of the Republic of South Africa, 1996’, heard on 1–5 and 8–11 July 1996 and decided on 6 September 1996, at <http://www.concourt.gov.za/judgements/1996/const.html> and the various Judicial Service Commission Interviews, at <http://www.concourt.gov.za/interviews>.

7. Preamble to RSA (1996). The constitution makes constant reference to human rights and the requirement, when necessary, to use international law to inform the process of constitutional interpretation. Moreover, Chapter 9 stipulates that a human rights commission be formed as a fundamental means of ‘supporting constitutional democracy’. For a legal analysis of how the constitution is linked in form and content with international law and the doctrine of human rights, and the degree to which this is novel, see Dugard (1997).

8. The ANC Freedom Charter, adopted at the Congress of the People at Kliptown, Johannesburg, on 25 and 26 June 1955 and used in its original form at the beginning of the 1990s constitutional process, states that, ‘[r]estriction of land ownership on a racial basis shall be ended, and all the land redivided amongst those who work it, to banish famine and land hunger’, and ‘[a]ll shall have the right to occupy land wherever they choose’ (Luthuli, 1963, p. 213, emphasis added). These provisions are not reconcilable with the protection of property as part of first generation rights, i.e. with a right to private property. For more evidence, see van der Walt (1996, p. 481).

9. The restrictions imposed by powerful international trade and ‘development’ organisations have become starkly apparent again of late: despite serious internal criticism, at the end of the 1990s the ANC government adopted with few changes a World Bank proposal for land redistribution. For more on the effects of World Bank foreign investment orientation on the government and its land reform policy, see Hall and Williams (2000, pp. 3–5 and note 13).

10. Needless to note, property is not reducible to land. There are other kinds of property, for example, fixed, personal, capital, etc., and this is constitutionally acknowledged in the property clause—‘property is not limited to land’, 25(4). However, land and land reform dominate the property clause. This is the case because they are the most pressing practical concerns and ways of redressing the historical wrongs of unequal rights to land and property ownership. I focus on land reform for these reasons, but I take it to be only one instance of a need to reassess property ownership and the property clause in South Africa and beyond.

11. This is not the place to comment further on the issue of traditional ownership, but it is even more detrimental to meeting needs than entrenched rights to land, and recent legislation has only increased the power of traditional leaders within undemocratic structures. Thirteen million hectares of communal land that is nominally held by the state will be privatised and transferred to individual leaders or traditional councils (This Day, 23 July 2004).

12. Since 1994, only 3,916 of the 63,455 restitution claims lodged have been settled (Hall and Williams, 2000, p. 6). Only 162 of the claimants have received land, the rest cash payments. And, according to Thwala (2003), budget analysts predict that under current spending patterns, it will take 150 years to complete the restitution process, and 125 years to redistribute 30 per cent of agricultural land to black people.

13. It does not follow from this that historical analysis of past injustices is unnecessary or unimportant, for it is indispensable in persuading ex-colonial powers to provide financial support for the process of land reform. But that would require broad historical research rather than countless investigations of individual cases.

14. If the state had to procure the funds for what has become known as the ‘willing buyer, willing seller’ policy, land reform would take a very long time indeed. This policy is not the answer to the problem (Mngxitama, 2000, p. 3).

15. These are the reasons put forward by most commentators (see Hall and Williams, 2000; Mngxitama, 2000).

16. In fact, these market and resource restrictions have forced the government into favouring claims from those claimants who are able to put forward substantial amounts of their own capital. And this has been reinforced by a World Bank argument that seems to conceive of land reform purely in terms of encouraging commercial agriculture, and the creation of a black commercial farming class, rather than meeting the vital needs of the rural poor. Obviously, the requirement to meet the needs of the rural poor must be balanced with the need for efficient commercial agriculture, but the combination of constitutionally-enforced market constraints and rights-based evaluation and World Bank ideology have ensured that segregation based on race has quickly become segregation based on class (Hall and Williams, 2000).

17. This is a typical move amongst the liberal tradition in general and liberal legal philosophy and practice in particular. It is no accident that many of the drafters of both constitutions and a number of constitutional court judges, e.g. Hugh Corder, Dennis Davis, John Dugard, E. Mureinik, are influenced by the work of Rawls and Dworkin. See Judicial Service Commission Interviews, <http://www.concourt.gov.za/interviews>.

18. For example, see Davis (1992), ‘The Case Against the Inclusion of Socio-economic Demands in a Bill of Rights Except as Directive Principles’—and, for the case against including property rights in the Bill of Rights, see van der Walt (1990, 1992). For overviews of the different positions, see van der Walt (1996).

19. Most of what follows is taken in highly abridged form from Hamilton (2003, chs 1, 4).

20. For the ways in which this census would be quite unlike current ways in which the census is taken, see Hamilton (2003, p. 127ff).