The multi-faceted and thorny issue of land restitution in South Africa – Public lecture by Olaf Zenker

“Conceiving land restitution as an exemplary site, at which the moral modernity of the new South African state is contested, renegotiated and made, the lecture thus comes to a qualified conclusion: restitution has been more successful than its public reputation suggests, but can and must be improved to live up to public expectations,” said Olaf Zenker, Professor of Social Anthropology at the University of Fribourg. Zenker was speaking at a STIAS public lecture.

Zenker - 1STIAS Fellow Olaf Zenker during his public lecture on 17 April 2018

“However,” he added, “it is doubtful that expropriation without compensation is likely to solve restitution’s problems which are complex and more related to the relative failure of the state to effectively use what is already at its disposal.”

He believes it may often be fairer and more practical to seek other solutions including financial compensation and letting former beneficiaries of colonialism at large pay through taxation – in the form of a land reform tax.

“Parliament’s recent decision to review the constitutional property clause possibly allowing for expropriation without compensation has brought the land question back into public debate,” he continued. “While expressing a deeply felt and justified popular discontent that land reform has fallen short of its promises, this debate distracts from the fact that land reform’s insufficiencies have been political rather than ‘constitutional’ and often related to problems of implementation.”

He pointed to the need to question whether expropriation without compensation is “the silver bullet to solve land reform’s problems”.

He referred to the South African Parliament’s recent High Panel Report on the Assessment of Key Legislation and the Acceleration of Fundamental Change (published in November 2017) which pointed out that paying compensation has not been the biggest constraint on land reform in South Africa to date – but rather other constraints like corruption, diversion of the land reform budget, lack of political will, and lack of training and capacity. The report also points out that the government has not used its existing powers to expropriate land for land reform purposes effectively and that it needs to use these powers more boldly particularly in relation to un-utilised or under-utilised land.

Zenker is at STIAS to work on a book entitled Land Restitution and the Moral Modernity of the New South African State. He describes it as a political and legal anthropological project which has involved a number of years of comprehensive, multi-sited ethnographic fieldwork and the detailed investigation of four land claim applications. These cases were chosen as a diversified sample that captures the overall process.

“In addressing, within the South African context, the crucial issues of political and legal pluralism amidst cultural diversity and difference, the global trend towards juridification and constitutionalism, and the changing role of the modern state, I hope the book will contribute to crucial debates on state-driven land redistribution in the 21st century particularly under conditions of ever-widening social inequality.”

In his lecture Zenker focused on one of the four case studies to make general observations regarding the pitfalls and potentials of land restitution. He scrutinised the complex processes involved in translating demands to land into a juridified land claim and contested court case (which went as far as the Supreme Court of Appeal) and subsequently re-translating and implementing the legal outcomes into realities on the ground.

Zenker’s analysis has shown that the state plays multiple roles in the process – including legislating, judicialising and administering land restitution and does this “under highly complex, constraining and constantly shifting conditions, thereby also producing unintended consequences detrimental to the ultimate purpose of land reform”.

No justice for all?

The claim outlined in detail was the so-called ‘Kafferskraal’ land claim – an early land claim regarded as successful against the landowners but which resulted in persisting conflicts between different stakeholders and therefore unclear and insecure land rights for the actual beneficiaries.

Zenker pointed out that this claim strongly highlighted how claimants, landowners and the state can have profoundly different understanding of the process, calling into question what constitutes ‘justice’.

“The structure of the restitution process therefore does not lead to a true exchange of points of view and reconciliation but instead to ongoing antagonism with persistent feelings of injustice,” he said. “Land restitution thus fails to produce an overall transition to more justice.”

“In light of such tensions, any meaningful attempt at reconciliation in relation to land becomes difficult and undermined at a fundamental level.”

Zenker also pointed to the multiple different interests and overlapping claims in this case including the claimant committee, traditional authorities and the state. “Such cases highlight that when customary law comes into contact with state law logic, considerable strain and disquiet may develop.”

The case also faced the added complication of the area being rezoned to a different province leading to administrative problems including lost documents and officials without full understanding of the prior case history.

Similarly to the High Panel report, Zenker pointed to the lack of political will, training, capacity and budget, corruption and the lack of a comprehensive land reform framework with consistent policies and explicit benchmarks as major stumbling blocks.

White restitution claims

In an article about the project in Research Features and one by Zenker in the Journal of Southern African Studies, Zenker also addressed the issue of who qualifies as a “true victim of apartheid and thus is in need of redress”. The cases studied highlight the contested issue of whether or not white people should be entitled to lodge a restitution claim to undo the injustices of colonialism even though they benefitted as members of the white race under colonialism.

“While the courts have clarified that these claims are legal and need to be solved on an individual basis, the moral legitimacy of such claims continues to be disputed by state bureaucrats, legal activists and the public,” he said.

He therefore asked: “Can there be a white restitution claim that does not intrinsically violate the boundaries of an acceptable moral community in the new South Africa?”

Another commonly experienced complication is that often the current landowners are not the perpetrators of the historical dispossession.

What is very clear is that one size does not fit all. “It is a multi-faceted process where attitudes towards politics, land ownership and restitution are often contested and construed in a myriad of ways,” said Zenker. “Individuals often hold strong and conflicting attitudes on such matters, as well as on the correct place of law and politics in relation to land ownership.”

“Given land restitution’s explicit mandate to redress the historical injustices of the old state, this state-driven process should be crucially concerned with fusing the ‘formal rationality’ of the former apartheid state with a different and broadly acceptable ‘substantive rationality’, to use the terminology of Max Weber, into a new, if contested, ‘morally modern’ polity.”

Zenker believes that true restitution should therefore result in a substantive rule of ‘good law’.

“Restitution is therefore an exemplary arena for renegotiation of the state‘s moral modernity,” he said.

Zenker’s is also quick to point out that it is a constantly changing world and the South African state is being reshaped by globalisation and modernisation. This constant change further deepens the challenge of correcting the effects of long-standing racial discrimination.

He hopes that his work will provide more clarity on the complex relationships and engagements that underlie land restitution in South Africa.

Michelle Galloway: Part-time media officer at STIAS
Photograph: Christoff Pauw

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