SA’s 4FoP (2/6) : Land
This series is made up of 6 essays which are the introduction, the four factors and lastly the concluding remarks. The following essays will delve into the aspect of South African land. Building on from the Introductory essay will delve into what constitutes land, how land is governed and why all of this is so important.
SA’s 4FoP(1/6): Introduction — to access this first essay click here
In the context of Earth, we will refer to dry land because it is where humans can exist thereby distinguishing land from sea. It is estimated that about a third of the Earth is dry land whereas the rest is just ocean or other bodies of water. South Africa covers an area of about 1,221,000 km². This has to be shared by about 60 million people. The first important thing to note about land is the fact that it is finite. The fact that we can measure it tells you that there is a quantifiable size of land. That is the terrestrial surface which we call South Africa and its limitations. For any country to exist it must have a territory. I do not think we can deny the importance or significance of land, for it is the base and foundation of our existence. For this reason, it could arguably be the most important factor out of the four. We know certainly that it is the earliest factor to exist.
Land does not come alone, it is attached to natural resources such as air, water, sunlight, minerals, soil, biodiversity, and much more. It is almost impossible to divorce land from these other components because they form part of its ecosystem, so when we refer to land, by extension we include all of these elements. In short, these are the accessories of land and they are complimentary. Some of these are finite whilst others are renewable, so they can grow or even multiply. Many of these accessories such as sunlight and trees enrich the land. They work together for good and are essentials for human existence. Humans, however, have preferences when it comes to land. Those preferences are in relation to the land’s ability to satisfy their human needs.
We can borrow Abraham Maslow’s hierarchy of needs to understand what those needs are, the most basic human needs are psychological. This includes the need for air, water, food, warmth and shelter. Humans will therefore choose to live where there is clean drinking water, good vegetation for food to grow, warmth, and even the possibility to find or make a shelter. We can therefore conclude that not all land is the same or suitable for settlement or use, therefore, we are bound to contest for land based on how well this land can satisfy our basic needs. It goes without saying that because land is limited and finite, and yet the human population continues to grow without any constraints, there is bound to be clashes.
The contest for the most suitable land is bound to ensue as the population grows. Once the expansion and exploration by humans has peaked and most liveable conditions have been occupied, this would become a contentious issue as we begin to negotiate migration, settlement, and all other uses of land. Initially, the modus operandi was that whoever found the territory first became entitled to occupy it and establish their kingdom. Finders, keepers for short. Later, there comes a dilemma when land is already occupied. Our relationship with the use of the land would then become regulated by laws or customs which govern the authority over land.
In the African tradition, certain customs and rules would be followed whereas Roman-Dutch law interpretations would guide European settlers. Let me re-emphasize that Africans had their own ways of governing over land. This is important to take note of because upon the arrival of the settlers, the rules and customs of the natives who lived in Africa would be completely dismissed. They were disregarded because until anything is ‘discovered’ by settlers it does not exist, as colonial logic would suggest, hence we default to their set of laws. “Cuius est solum eius est usque ad coelum et usque ad inferos.” This meant that the owner of the land is not only the owner of the surface but “Whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell.” Suggesting that you own everything above and below the land as the underlying principle of private property rights.
When the Dutch arrived in the Cape in 1652, they established a refreshment station. This devolved into settlement and later colonial rule. I assume they came to appreciate several things about South Africa such as the warmer weather as compared to Europe; their supremacist dominion over natives; the fertile land for farming; and the mineral resources in abundance. The conditions, underdeveloped as they were, held visibly great potential. The irony then becomes that, even having dismissed African customs relating to land, their conquest and land dispossession would amount to theft even according to their very own Roman-Dutch law standards. It would seem that all rules, laws, and customs are suspended until after conquest, then reinstituted to legitimise this crime, and on we go. This was a recurring theme, that either laws were unfairly and inconsistently applied or unfair and inconsistent laws would be applied as to achieve a particular means to protect certain interests. Laws were no longer a means towards justice but rather a political instrument. It was like a catch-22 of some sorts which depended on which interests you represented.
When the Dutch settlers ‘discovered’ or might I say ‘came across’ those mineral resources in South Africa, this attracted British interests as well. A shift in the pre-existing Roman-Dutch law then occurred, where mineral rights and surface rights were separated. This meant that one needed permission in the form of a mining licence or permit to extract mineral resources. This was a convenient switch that eliminated a lot of competition from the mining industry making it illegal for people to mine mineral resources without permission. Some among the old 4 colonies (the Cape colony, the Orange Free State, the Transvaal, and Natal) expropriated minerals rights whilst others expropriated mining rights as the mining industry took off after diamonds were discovered in Kimberly, 1967. The settlers continued to profit from the accessories of land. One of those beneficiaries was John Cecil Rhodes.
At the Age of 17, Rhodes moved from the United Kingdom to Umkomaas Valley in Natal, and a year later, he left for Kimberly to get involved in the Diamond mining industry as a businessman. Besides being a businessman, he also became a politician at the age of 27 in 1881. As a lawmaker in parliament, he was likely able to protect his business interests by promoting restrictions that could stifle competition in the mining industry. As a businessman, he consolidated the diamond mines in Kimberly to form an oligopoly called De Beers Mine in 1888. That company still exists today as the largest diamond trader in the world. This tale further demonstrates how the land and its laws are harnessed to enrich and empower the few whilst disenfranchising many. This unethical practice is commonly referred to as Javelin-throwing, it is a corrupt practice of using state or institutional power to create a narrow opportunity for your own benefit. Illustratively, this is like throwing the opportunity yet being the same person to also catch it on the other side.
I am inspired to believe that if it were possible to contain oxygen, water or even warmth from sunlight, those rights would also become ringfenced for business interests. I believe this is already partially in play. The apartheid government had always reserved water rights and dam projects for irrigation purposes in only white farms. On the contrary, Black Communities were demarcated near mining and industrial projects which affected the quality of air and water in those communities. It is not far-fetched for me to hold this belief as it has always been the project of conquest. It finds new outfits such as privatisation and foreign direct investment to sustain these patterns of surrendering land with all its accessories to everyone else but the local indigenous people.
The history of South African land can be summarily characterised as that of dispossession and then legitimation. The dispossession occurs through annexation, conquest, expropriation, and all other euphemisms for theft including legislation. These are all forms of violence and force, I dare say, even the legislated forms. The brute force and violence of the Apartheid law enforcement can not be disentangled from its legislation, they are the same thing. This process of violent dispossession was how an individual made a claim, by forcefully occupying or somehow taking possession of that which they desire. What then follows is legitimation. The law comes into play, absent-minded of the historical context and injustice through which the claim was made, the law purports and asserts that indeed that which you have in your possession or occupy is yours.
Different sets of laws were set out to take away land from the native black people who were found in South Africa. The less popular Glen Grey Act of 1894 Act laid the framework and foundation for legislating land dispossession in the Cape colony. This project was scaled when the government posed the Native question in 1903 at a conference titled “Embracing the present and future status of all aboriginal natives of South Africa, and the relation in which they stand towards the European population.” They were asking themselves what are we doing with all these black people to ensure that they don’t overpower us? How do we subjugate not just these black people but bind all other black people who come after them? What soon followed was new laws starting with the Native Land Act of 1913. This project was completed by a string of apartheid legislation such as The Native Affairs Act of 1920, The Natives (Urban Areas) Act №21 of 1923, The Group Areas Act №41 of 1950, The Bantu Authorities Act №68 of 1951, Bantu Homelands Citizens Act of 1970 and last but not least the Constitution of the Republic of South Africa, 1996.
The majority of the people of South Africa were deliberately excluded from these processes of creating laws since the invasion of the settlers. What I didn’t mention earlier was that The Native Land Act reserved only 7% of South Africa’s land for black people and restricted them from owning any land outside of that. This law commenced on the 19th of June 1913, this date is also one of the dates mentioned in section 25 of the Constitution. It explicitly states that only persons who were victims of past racially discriminatory laws or practices AFTER the 19th of June 1913 are entitled to justice to return to their land. So even if you were to get all the justice relating to land for black people, the total amount of land will forever be the circumference of 7% of the black spots under this constitution. The ANC took it further and adopted a willing-buyer, willing-seller approach which rewards those who took the land and remain in possession of it.
What should’ve become clear by now is that land together with all its accessories is actually a gift from Mother Nature and no one truly has a legitimate, rightful claim to it. We had no bearing or hand in its creation, it was there before us and it will be there after us. Land is also a source of life, we have just come up with rules, laws or customs to regulate who gets to use and benefit from it. Whoever has that rightful authority to institute those rules, laws or customs inevitably has this power over people’s lives and this power can be stretched across generations.
When I hear people dismiss the issue of land in South Africa, I assume they haven’t made the direct correlation between our basic needs and what land has to offer. Land with all its accessories are the source of life. It is because of this that nations and kingdoms have waged wars, for Land’s sake. I can understand the retreat from robustly engaging in this kind of issue because it has led to the loss of lives but I do not think it is helpful to obscure the truth about land. It would be an extension of the legitimation. Others presume there is some holy book that descended with commandments on how land should be governed; you will spot them among the praise singers of the constitution. What they do not realise is that we made these things up ourselves. These laws, rules and customs were meant to be created to help us govern ourselves for our own benefit. We have been stripped of the imagination to even conceive of things in this way. It is our prerogative to participate in the law-making process, deciding which law we want instituted or removed in pursuit of fairness and justice.
The most compelling bunch are those who view land as a preserve for only those who can maximise its productivity and economic benefits. They mention things like the property market or perhaps food security. This argument holds until you realise that it’s premised on the idea of withholding land from people to generate sufficient demand. The price of land is inflated by withholding its supply through property rights whilst people squatter and live in congested areas. It is the oldest trick in the book. They did something similar with diamonds, except land actually has a basic function to service our basic human needs. Land can be used for settlement or agricultural purposes amongst other things. Ironically, if you go to most farms you’ll learn that farm workers, the people who work the ground, are the very people who land is withheld from. If one were to make unused land available for those who need it and work it, it would undermine the price of land; however, this could unlock more productivity and economic benefit from its use in real terms.
Ultimately, land has a bearing on all other factors of production and I hope to demonstrate this throughout the collection of essays. On this factor of Land, I will conclude with a quote from the good book of Liberations 19:13 which reads as follows, “But seek ye first the Land, and her accessories; and all these things shall be added unto you.”
Asante sana,
TM.
