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1913 land act: Change is written into the Constitution by Sipho M Pityana (Mail & Guardian), 14 June 2013

18 June 2014

The centenary of the Land Act of 1913 is an opportunity to reflect on its role in constructing a society based on inequality and dispossession.

This occasion arises 17 years after the enactment of the South African Constitution, the guiding law in our approach to land policies and redistribution.

Section 25 of the Bill of Rights seeks a balance between competing interests. As far back as 1988, Judge John Didcott warned that "a bill of rights cannot afford … to protect private property with such zeal that it entrenches privilege … Should a bill of rights … make the urgent task of social or economic reform … difficult … we shall have … a crisis … endangering the bill of rights as a whole and the survival of the constitutional government itself".

In general discourse, section 25 has been read to prescribe the willing-buyer, willing-seller model and, therefore, as prohibiting land redress. It is important to emphasise that the phrase "willing buyer, willing seller" is not in the Constitution. Section 25 protects rights; it does not limit land redistribution. Instead, it explicitly empowers the state to expropriate property.

If this is the case, why has the pace of land reform been so frustratingly slow? The land-reform programme has three components: land restitution, land redistribution to redress ownership imbalances, and the tenure-reform system to provide ­security of tenure to those disadvantaged by discriminatory laws and practices.

All three components are severely limited by policy choices rather than by constitutional constraints.

The first challenge arises from what appears to be an inability to use the powers of the Constitution effectively and to translate them into public policy to drive substantive land reform. In all three areas, the tendency has been to develop policies and programmes that benefit powerful players, including traditional leaders, established farmers (especially white farmers) and corporate interests. Overemphasis on these interest groups has meant land reform without effective benefits for dispossessed individuals and groups.

As seen in legislation such as the Communal Land Rights Act, struck down on procedural grounds, the complex tenure system that affects the majority of rural South Africans has not been fully grasped in law or in the state's policymaking processes. This Act reinforced the overextension of chiefly powers to the extent that traditional leaders would determine the very basis on which people live in areas under their control. The department of land reform has yet to come up with a new legislative proposal to address the lacuna created by the withdrawal of this Act.

Thus the centenary of the Land Act comes at a time when the majority of rural South Africans are forced to contemplate a life without security of tenure or citizenship as guaranteed in the Constitution. The bias towards traditional leaders has resulted in a failure to provide the right to freehold titles for people living in those communities.

The problem here is not the principle of recognition of traditional leadership but what it should mean. Customary law seems to be interpreted as meaning there can be no customary law or community without traditional leadership. How close is this reading to the reality and experience of those who may choose to live according to custom?

Regarding white farmers and capital, it is reasonable to conclude that part of the reluctance of the government to use the best and maximum interpretation of section 25 has to do with these established interests, coupled with the fact that land is not only about agriculture but also mineral resources, which are at the centre of our economy.

What is the contribution of established farmers and mining conglomerates to redressing the legacy of the Land Act? What role do these key sectors play in entrenching aspects of the legacy of the Land Act in different guises? These are not unreasonable questions. The Constitution provides the framework and the power to redress the legacy of 1913.

In the view of the Council for the Advancement of the South African Constitution, the failure to use the Constitution to create a just and free society not only entrenches the inequalities of the past but also produces new forms of dispossession.