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Supersizing land courts in South Africa

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Graphic credit: Timothy Alexander/ African News Agency (ANA) – No celebration of culture, no matter how exquisite can hide the dark reality that, without land, heritage is as delicate as a butterfly. A butterfly lives no longer than two weeks. A people without land will, just like the butterfly, perish, the writer says.

By Kim Heller

It is in the colour and vivacity of Heritage Day that the bleak black-and-white of everyday is blotted out, even if just for a moment in time. A happy burst of hue is a welcome sight, even if just for a day, in the dim that cloaks South Africa today as electricity blackouts cascade across each new dawn.

Land dispossession under the power surge of colonialism and the powered siege of apartheid were the greatest power outages ever experienced by black South Africans. Black South Africans were stripped bare of land, through the mercenary and merciless darkness of colonialism and apartheid, But history, even with its most instructive and insightful lessons, would never have foreseen that this power outage would continue in the  light of political liberation. Or that white power would burn so bright in a democratic, non-racial South Africa. The ANC government has been painstakingly slow in the work of land return and restitution.

Each year on September 24, black South Africans display their traditional finery. The soiled and wretched earth under their feet, is the white man’s. In a place called South Africa, where black South Africans remain landless. The Rainbow Nation – a free nation that never was – is not worthy of these displays of cultural richness.

Heritage Day in South Africa is like a pretty butterfly that delights and seduces reality for a brief moment in time. The butterfly is a magnificent universal symbol of transformation, a most majestic expression of metamorphosis, an almost magical manifestation of change.

“Butterflies are God’s confetti, thrown upon the Earth in celebration of His love,” wrote songwriter and musician K D’Angelo.

No celebration of culture, no matter how exquisite can hide the dark reality that, without land, heritage is as delicate as a butterfly. A butterfly lives no longer than two weeks. A people without land will, just like the butterfly, perish.

In his recent book Land Matters, Advocate Tembeka Ngcukaitobi writes, “The return of the land of African people is a shattered dream. A new reality is emerging – not controlled from the centre but springing from the ground, asking tough questions of the unfinished business of the liberation struggle: until and unless there is a confrontation with the negotiated settlement of the transitional period, it is impossible to speak of freedom, equality and dignity, values that we cherish. Property relations were at the heart of the transition.”

The Expert Advisory Panel on Land Reform and Agriculture’s report of May 2019 pointed to the urgency and Constitutional imperative of land reform in South Africa which “can neither be taken lightly nor postponed. The people have voiced their impatience and the inequalities are threatening peace and stability in our country”.

Land delayed is land denied. With the lion’s share of land still in the clasp of hands almost thirty years into democracy, land restitution and justice are nowhere in sight.

The new Land Court Bill, in theory and purported intent may offer some glimpse of hope, in the forsaken landscape of landlessness. The Land Court Bill allows for the establishment of a specialist Land Court as well as a Land Court of Appeal. The Bill recognises that the desperately slow pace of land reform is untenable and is therefore geared to fast-track the life-wrenchingly slow pace of the land claim processing. This will necessitate that permanent judges are appointed, and that capacity and resourcing is in place.

The Land Claims Court, formed in 1996, potentially a powerful organ in the matrix of land redress and restitution, has almost been rendered as a white elephant due to enormous processing backlogs, and lack of resources. To be fair, the mountain of claims and slow processing thereof was not initially anticipated and was severely underestimated. But now the backlog has created an avalanche of frustration. The advisory panel recommended in its 2019 report that the Land Claims Court (to become the Land Court) must be strengthened. The report made note of the “the lack of adequate and fiscal support to assist claimants to investigate and settle claims”.

The Panel recommended the appointment of a permanent judge president and four permanent judges to the Land Court, as required by the Act, to allow for much needed strengthening of judicial  capacity and oversight.

The Bill effectively supersizes the Land Court, by given it permanent standing, capacitating it, and broadening its power of jurisdiction on land rights and land claims matters. There is also a commendable focus on making the Land Court more accessible to communities.

But perhaps the most progressive aspect of the proposed Bill is that it will provide for oral evidence, including hearsay evidence by claimants, in support of their land claims. This acknowledges the vastness and richness of an oral history which no history books have yet to record but which are etched and inscribed in the memory of elders and passed on to younger generations decade upon decade.

I was fortunate enough in 2018 to bear witness to a special convened conversation on land in KwaZulu-Natal which was attended by elderly black men and women whose families had been robbed of land. It was a heart wrenching experience as people spoke of childhoods shattered to pieces as family homes and farms were bulldozed and livestock taken. There was a woman who spoke of how losing his land and cattle had seen her father, so overcome with shock, that he suffered a fatal stroke on the spot.

Well into her 90s and walking with the aid of a wooden stick, this elderly woman had carried this nightmarish experience all her life and would in all likelihood not find any relief or justice in her lifetime.

While she was clearly reliving this painful moment as she spoke, she nonetheless told her account with a humility that pleaded for nothing more than a need to be heard, lest her story be lost or erased. It was as if her deceased family was saying “my child stay alive, tell our story”.

To date, and across almost three decades of governing, the ANC has made very small steps on the crucial issue of land return and justice.

Although hardly a great leap forward, the Land Court Bill, still before Parliament, looks like a step in the right direction. But in all likelihood, the Bill will in itself be caught up in lengthy procedural delays. The pushing of this Bill will require real will on the part of the ANC, which has been rather limp on the question of land. Whether the Land Courts will remain a white elephant or become a black panther is history in the making. Whether South Africa will make this critical metamorphosis and give long held life to dreams for true liberation, is heritage in the making.

Heller is a political analyst and author of ‘No White Lies: Black Politics and White Power in South Africa.’

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