In former deputy chief justice Dikgang Moseneke’s autobiography, and in line with PAC thinking at the time, he mentions the stance that the land question could not be solved at the negotiation table, as repossession cannot take place through dialogue.
Not advocating for violence, the perception was that those who own the property will not easily let go of it.
Our Constitution is a culmination of various conversations and negotiated compromises that preceded it. We are currently in a process of re-assessing one of those negotiated sections: section 25. This led me to wonder whether the land question can be settled by dialogue and negotiation. Were we over-optimistic, doomed to fail from the start? In the words of Julian Barnes, “[o]f course we Tippex out our treachery, purge our perfidy, and offer retrospectively a tabula rasa of the heart on which the great love story is then indicted; but that’s all bollocks, isn’t it?”
We know that the negotiations brought us a protection of private property from arbitrary state interference, and that the ANC negotiated for expropriation against “just and equitable” (and not strict market value) compensation, and for a public interest, to include land reform. Land reform is done in terms of the rule of law, and if not based on restorative justice per se, then at least on redistributive justice.
Section 25 requires a balancing act when interpreting: The protectionist sections 25(1) – (3) must be in balance with the transformative sections 25(5) – (9). In the AgriSA case, the court stated that:
“The approach to be adopted in interpreting section 25, with particular reference to expropriation, is to have regard to the special role that this section has to play in facilitating the fulfillment of our country’s nation-building and reconciliation responsibilities, by recognising the need to open up economic opportunities to all South Africans. This section thus sits at the heart of an inevitable tension […] [that] is likely to occupy South Africans for many years to come, in the process of undertaking the difficult task of seeking to achieve the equitable distribution of land and wealth to all.”
This balancing seeks to avoid a zero-sum game and requires that the two parts be reconciled as far as possible. This weighing reflects the compromise reached in the 1990s.
It is this section that is at the heart of the over-simplified question of whether the Constitution must be amended or not to enable land reform. But a diagnosis of the problem shows largely a failure to implement the land reform legislation, as well as the failure in post-settlement support. It seldom points to the document and the particular section that resulted from the negotiations.
If there is enough proof that affecting land reform is not dependent on paying no compensation at expropriation, then the debate we are having rather becomes a question of the type of justice we envision. A punitive justice and a retributive justice will call for blanket “no compensation”. Restorative justice will only support no compensation in limited instances. But restorative justice requires an apology and an action to make that apology material. This was a recommendation of the TRC that was never followed through.
We can also frame our Constitution as a (delayed) transitional justice document. As a product of the tension between radical political change and the constraints of such change, the Constitution is the foundation of a new political order that allows for the interference of property rights and order the redistribution of land, thereby breaking away from the previous system. But it still requires that it must be done in terms of the rule of law and limits the State’s power to interfere with private property rights in doing so. We see the tension of the negotiations again.
In transitional times, states are left with the duty of addressing the wrongs of the previous regime. In a sense the new State must be both backward looking in addressing past wrongs, and forward looking in addressing its political interests. Backward corrective aims and forward transformative aims must be balanced. Reparatory goals might have an impact on economic concerns, and the two needs to be balanced.
Where in conventional justice settings, victims are repaired by their direct wrongdoers, in transitional justice settings the identities of the beneficiaries of the unjust system and the beneficiaries of the new reparatory system change. With no personal implication in the wrongdoing, a generation is now required to address past wrongs. It is for this reason that transitional justice must be done as soon as possible after a wrongdoing, and why the 24 years that passed bring about a new challenge in addressing the land reform question.
With the passage of time and the distance between the generations responsible for the wrongdoing and those responsible for addressing the wrongdoing, some of the reparatory schemes might look more like distributive schemes. In the South African context, this is evident, with people increasingly questioning the allocation of benefits along racial lines.
But with the negotiated settlement we did not choose a discontinuation of the political entity, and we did not make the normative decision of holding individuals responsible for reparations. This was a political choice, for which we crafted legal mechanisms, both resulting in, and then later originating from, the Constitution.
Viewing the conversation of changing the property clause as a conversation about re-assessing the Constitution and the justice it is based on forces us to look at that space where the law and politics collide. That space that gave birth to the Constitution. In this space, justice matters. Perceptions of injustice threatens the legitimacy of our democracy and our Constitution as a whole. This needs to be addressed in the conversation, and cannot reside in a simple “yes” or “no” answer. And dialogue should always be preferred to violence, because in violence, we all lose. In the absence of asking questions that does not have simple “yes” or “no” answers, in failing to investigate and engage our differences, violence seems inevitable.
Finding solutions to problems cannot take place with people feeling threatened, or in charged situations. In those situations, we speak to defend, to uphold, to guard. We move to us-and-them speak. And in a short step, we dehumanize.
We, as the next generation, should utilise the opportunity that this public conversation brings, to mobilise the knowledge that we have to re-imagine the future. To think of ways to use the tools we have, or to come with new tools, to adequately cement our constitutional democracy by ensuring the redistribution of land and resources, within the parameters of the Constitution, within the confides of the rule of law.
The settlement reached in the 1990s was done without the benefit of hindsight and was the best solution then. It was not meant to be, and it was not, the end of the process. It is up to our generation to find our way from here. To renegotiate if needed, to contest, to move forward.
– Elmien du Plessis is associate professor in law at the North-West University.