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By Andries du Toit

Andries du Toit reviews Land Matters: South Africa’s Failed Land Reforms and the Road Ahead by Advocate Tembeka Ngcukaitobi

Do we really need more books about South Africa’s Land question?  In the last few years, the political crisis around expropriation without compensation has already generated  a  fair bit of reading material: Finding Common Ground by Wandile Sihlobo, The Land Wars by John Laband, The Lie of 1652 by Patric Mellet and The Land is Ours by Advocate Tembeka Ngcukaitobi.

Now Ngcukaitobi has published yet another land book: Land Matters, a detailed summary of the history of colonial occupation, expropriation and land reform in South Africa. A few hundred thousand more words on a topic that has already been talked to death. What more is there to say?

Quite a bit, it seems. Ngcukaitobi’s contribution is more than just another account of the content and purpose of land policy. He is in fact trying to put the whole debate on another footing. Although he is clearly a passionate supporter of land reform, the crux of his argument is that the present discussion focuses on the wrong issues. A different conversation is needed about land reform — one that deals with bigger and more difficult issues: not about land, but about political community, about our identity as a nation, and about what we as citizens owe to and can ask of each other.

At first glance, Ngcukaitobi’s argument seems pretty simple. Although it is clear that there is an indisputable case for land reform, he rejects the need to change the Constitution. The Constitution is not an obstacle to land reform. On the contrary, the protection of property rights in Art 25 enables land reform; in fact, the Constitution requires us to redistribute land.

Ngcukaitobi’s book is a plea for an expansive, generous interpretation of the Constitution as a charter for social transformation and the creation of a just, humane and equal society. So far, says Ngcukaitobi, we have quoted, admired and hallowed the Constitution. Our actual job is to take the thing off the bookshelf, dust it off and use it.

The book begins with a passionate retelling of our past, in which he makes clear why we have a land question in the first place. The brutal history of colonial occupation, of stock theft by settlers and the British government, of the arrogance of the Berlin Conference, and the relentless racism of Apartheid, is an inseparable part of the story of land, and is explained here in unsettling detail. But this story then becomes the basis of a nuanced argument about the politics of land.

Ngcukaitobi, for example, also recounts the story of the liberation struggle and the negotiations that led to democracy.  Here he questions the EFF and #fallists’ simplistic notion that the ANC were merely sell-outs. The problem, he argues,  does not lie in the constitutional negotiations. It lies with what happened next.

The real obstacle in the way of land reform, according to Ngcukaitobi, is not the protection of property rights.  Rather, it is the current government’s land policy and its implementation thereof. One major difficulty lies in the obsession (in government and also among ordinary citizens) with Western-style title deeds and private property rights. These institutions are rigid and expensive, compared to the subtlety, fluidity and adaptability of African customary law, on which millions of South Africans still rely. Customary rights are recognised in the Constitution, but this recognition has not been given practical implementation. Tenure legislation and institutions such as Communal Property Associations are not working, and merely make the current situation worse. New forms of land administration are needed that give recognition to informal and customary law institutions.

Another major problem is the current focus of land redistribution: our government’s current policy is to use redistribution to create a new layer of middle-class black farmers. This is an impossible task. In a society like South Africa, where growth is capital intensive, where supermarkets govern value chains, and where even large farmers struggle to survive, it cannot work.

Moreover, in our current economic order, where no one is keen to create unskilled jobs, access to land — for livelihoods and work, and simply as part of the social safety net — is vitally important. Poor people need land. But poor people do not figure in our government’s land reform plans. Instead of providing equitable access to the many, millions of Rands are spent on glamorous and impractical vanity projects for the few. Land reform must be part of meaningful local economic development plans that can help the poor and diminish inequality.

What about expropriation? It is clear that Ngcukaitobi regards the current obsession with expropriation without compensation as a bit of a red herring. The constitution requires just and equitable compensation, which provides a much more appropriate framework. There may even be cases (unused land, land occupied by labour tenants) where it would be fair to pay very little (or even nothing).  But it cannot be a panacea. Implementing it wholesale and without discrimination, cannot be just and equitable and will do too much damage to the economy.

Instead, Ngcukaitobi wants to reframe the debate. According to him, the cost of expropriation is not where the real problem or the solution lies. What he wants to put on the agenda is the political rationality of land reform. Why do we do it at all, and how will it help us? His argument makes it clear why the searing injustice of colonial occupation still matters. But the way land is redistributed must contribute to the country’s future. And that future is not about adding a few more black faces to the rural middle class. It should include the poor.

This is where Ngcukaitobi’s argument brings us to the real difficulties facing us as a nation.

The one is the problem of government. Of course, if you just want to use land reform as a slogan, you do not really need government. Land reform can become political theatre: You can nationalise the land, as the EFF proposes – which will not help bring about equitable change. Or you could try to circumvent land reform, as Johann Kirsten and Nick Vink seem to do when they suggest it should be made the responsibility of local elites outside government control. But if you want to redistribute land responsibly, to create jobs and reduce poverty, you need a functional government – and that is exactly what we in South Africa do not have at the moment.

Second, if you want a government, you need a constitution. Ngcukaitobi’s argument is not only that the Constitution enables and even requires land reform. His argument is also that we need a constitution at all. Without a constitution we have nothing. Without a constitution we have no rights. Without a constitution we do not have freedom. Without a state that implements, defends, and enforces a constitution, we do not have a society.

Image by: Penguin Random House South Africa

One of the most interesting aspects of Ngcukaitobi’s book lies in how he approaches this problem. The point of the liberation struggle, according to Ngcukaitobi, is that it was not just a struggle for the land. It was a struggle for the law, for a legal and juridical order in which black South Africans could live with dignity. The Constitution is not something that was hatched by whites or invented in Davos to frustrate black people.  Rather, it is the most important achievement of the liberation struggle itself.

Ngcukaitobi therefore reframes debate on the Constitution in a new context. He refuses to present it as a debate between black radicals and white liberals. (Auntie Helen has in any case long since smoked her red pill and exited stage right.) For Ngcukaitobi it is an internal debate within South Africa’s black intelligentsia: a debate on the significance of the liberation struggle. What did the freedom fighters fight for? And what do we do now that we are free?

In this and in his previous book, in other words, Ngcukaitobi points to a central problematic of emancipatory discourse. Throughout the history of anti-colonial struggle, emancipation has been conceived in the first place as a project of independence. But      in these times, the really pressing question facing us today is how to handle interdependence in a complex world. What do we do when we have to live with each other, whether we like it or not?

The land issue in South Africa is partly a debate about just this. It is not only about who owns the land. It’s also about whose country this is. Ngcukaitobi’s answer is the answer that the Constitution provides: South Africa belongs to all who live in it.

To say “all who live in it” is to make a staggering and scandalous proposal. It is to suggest that the descendants of the people from whom the land was stolen should live peacefully and in relations of legal and moral equality with the descendants of those who stole it. It is to ask of us to find a way to accept the reality of centuries of injustice and then somehow create a more just future together.

Until recently, our answer to this challenge was Rainbow Nationalism. But that has not worked.  Our rainbow has evaporated and has blown away in the dry winds of South Africa’s unequal economic growth path, white denialism and the ANC’s political incompetence. The attempt to build a new nation out of sheer optimism, good intentions and middle class self-interest has ended in disastrous failure. It is becoming increasingly easy to cynically and bitterly reject the idea of ​​a society that has been forged by the values ​​of the Constitution.

And so, we are left with state capture. The moral unsustainability of our insufficient attempts at national reconciliation is the one thing that has made it possible for Jacob Zuma and his cronies to tear the constitution to shreds and reject the rule of law. The result has been disaster. Instead of a government for all, we get, not government for black people, but no government at all; a government that simply refuses to govern. That’s what Ace and Supra have to offer.

South Africa therefore faces three choices. We can try to dig the rags and fragments of our poor little rainbow out from under the rubble, and to hope that Ramaphoria can save us. But that’s clearly not going to work. ‘Thuma Mina’ without new ideas is going to inspire few people.

We can give up hope, leaving the whole thing to Ace Magashule and his henchmen. Land then becomes part of the politics of everyday corruption.

Or we can try to genuinely and thoroughly do what Rainbow nationalism has tried to evade. That is to try to bring about a process of reconciliation that is not based on forgiveness, but on responsibility for the past and  for the future; to engage in a process of working, together, on creating a just society, and making something decent out of the horrible mess my ancestors  have left to us to sort out. This is what Ngcukaitobi’s challenge to all of us is in the end: to say we must dust off our constitution and accept the challenges in it. It is about more than land. There is a nation to build. There’s work.

This review first appeared in the Vrye Weekblad.

Ngcukaitobi, Tembeka. 2021. Land Matters: South Africa’s Failed Land Reforms and the Road Ahead. Penguin Books.

Andries du Toit is Director and Professor at the Institute for Poverty, Land and Agrarian Studies, University of the Western Cape.