Letter: Land: Don't subvert the law - Mail & Guardian

22 February 2019 - The challenge in South Africa today is not to contrive a legal means of undermining the property rights of some in the slim hope that such deprivation will confer advantages on many (a stratagem history refutes), but to match the ideals of those early South African disciples of the rule of law Ngcukaitobi chronicles in his book and guarantee to all their deserved access to rights to property and the choices and freedoms that come with them.

Fittingly, human rights advocate Tembeka Ngcukaitobi "The land wars of 2019: Analysing the EFF and ANC manifestos", February 7 argues that, as "granting the power of land redistribution to the state, as the people of Zimbabwe have witnessed, simply encourages corruption, arbitrary conduct and lack of accountability ... in reimagining the institutions of land reform in South Africa , the most vital element is the rule of law".

That he should argue along these lines is no surprise for the additional reason that he is the author of The Land Is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa, which, according to the publisher, "tells the story of South Africa's first black lawyers, who operated in the late nineteenth and early twentieth centuries", and who, "in an age of aggressive colonial expansion, land dispossession and forced labour ... believed in a constitutional system that respected individual rights and freedoms, and ... used the law as an instrument against injustice".

The book is "particularly relevant in light of current calls to scrap the Constitution and its protections of individual rights".

How perplexing, then, that in his article Ngcukaitobi should argue that "many developing economies across the globe have now accepted that title deeds do not constitute the magic wand to the problem of insecure tenure to land" and that title deeds "do not solve the problem, and in some instances compound it". 

South Africa's history since 1994 could be said to demonstrate that constitutionalism born of universal franchise is not a "magic wand" either and, to the extent that the government has wreaked havoc with the state at the cost mostly of the poor, may even be said to have compounded South Africa's challenges. But these are not good arguments for dispensing with the rule of law.

If it is uncontroversial that massive dispossession in recent Southern African (post-1600) history disrupted and narrowed the lives of millions, it is every bit as uncontroversial that property rights are the demonstrable anchor of human rights and freedoms in all free societies. The reverse, vide Zimbabwe, proves the rule.

The challenge in South Africa today is not to contrive a legal means of undermining the property rights of some in the slim hope that such deprivation will confer advantages on many (a stratagem history refutes), but to match the ideals of those early South African disciples of the rule of law Ngcukaitobi chronicles in his book and guarantee to all their deserved access to rights to property and the choices and freedoms that come with them.

The equitable and effective land reform South Africa needs today – and especially, as Ngcukaitobi notes, in the cities – requires nothing less. But no surer way exists to undermine such a project than by emasculating the very principle on which its success depends.

Michael Morris, Institute of Race Relations 

https://mg.co.za/article/2019-02-22-00-letters-to-the-editor-february-22-to-28

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