FOR THE CONSIDERATION OF THE COMMITTEE SEEKING PUBLIC INPUT ON THE QUESTION OF RESTORATIVE JUSTICE IN RELATION TO EXPROPRIATION OF LAND WITHOUT COMPENSATION
I hereby submit two documents for your consideration together with this covering submission which focuses on the issues of the people of the Western Cape in terms of land restitution.
The first document outlines that part of South African history of dispossession in the old Cape Colony that probably represents the most hidden part of South African history – the 15 wars of forced removal ethnic clearing of the Cape of its indigenous African communities over 176 years (1652 – 1828) and the subsequent de-Africanisation of its Nama, Damara, Griqua, Korana, Cape Khoi and Camissa people in 1911 and again to even greater degree in 1950.
The second document is written by an economist who unpacks the economic instruments used alongside the ethnic clearance wars whereby one of those instruments, the issuing of “Leningplaats” or “Loan Farm” bonds of the VOC, co-relate absolutely to the 15 wars, particularly the first ten. https://economics.barnard.edu/sites/default/files/dye_lacroix_cape_colony_10-27-2017.pdf
The contention of this submission is that by using the 1913 Land Act as the yardstick for evaluating dispossession, a terrible injustice has been done and that any act of Restorative Justice must consider what happened in the period highlighted. The same dispossessed descendant communities saw the Europeans get a second bite of the dispossession cherry when under the Group Areas Act, the little that people of colour still had, was again taken away from them by the Europeans.
After 24 years of the ANC government little or nothing has changed for those still classified by the Apartheid definition as “Coloured” and for our fellow African cousins, the Xhosa, particularly of the Gqunkhwebe, as other African persons in this province. This submission contends that all persons of colour, except those who specifically assert that they are Asian, are Africans without the need to use Apartheid terminology and definitions.
THIS SUBMISSION SUPPORTS THE AMENDMENT TO THE CONSTITUTION IN TERMS OF CREATION OF AN UNFETTERED MEANS FOR EXPROPRIATION OF LAND WITHOUT COMPENSATION
The African people of the Western Cape, largely Cape Khoi and San (/Xam), but on the eastern extremities of the Western Cape the Gqunukhwebe too, were rich in livestock and crops. The estimated Cape Khoi population was in the region of 150 000 in 1652, and the /Xam around 30 000 and Gqunukhwebe in the region of 30 000. Historians estimate tens of thousands of head of cattle and three times as many sheep were owned by these African communities, who responsibly and scientifically used the land and its water resources through rotational use of their land for managing herds.
By the year 1800, the Khoi were 25 000 in the Western Cape, the /Xam around 1000 and the war records show the Gqunukhwebe were around 20 000 displaced people and after 1812 were totally expelled from the northern reaches of the Western Cape. Within another century the /Xam were wiped out due to recorded genocide practices. The Western Cape was ethnically cleared except for those pacified Khoi who were turned into farm labourers under the same conditions of the slaves. Land, liberty, livestock, water resources, sustainable livelihoods, social infrastructure and cohesion, culture and leadership in independent successful African farming communities was purposefully destroyed and the land, livestock, water resources were expropriated without compensation by European settlers under force of arms and conquest. Farms were staked out and title deeds drawn up as Loan Farms by the settlers who paid the VOC a monthly fee and an annual tithe in tax. The beneficiaries were the white farmers, the United Dutch East India Company and the British Government.
Alongside this dispossession and denigration, local Africans joined slaves on farms who were predominantly Africans (68%) and from Asia (32%) in having to labour for no compensation on these European farms. Not only did all of these people labour on farms, they also built the infrastructure of the towns roads, docks and city. The added value for no remuneration is immeasurable. Any form of restitution cannot ignore this scenario, experienced nowhere else in South Africa to this degree.
The slaves were from East Africa and the northern reaches of South Africa (Limpopo, Mpumalanga and KZN) and were known as Masbiekers, as well as some West Africans classed as ‘Prize Slaves’ or ‘Liberated Africans’ seized from slave traders at sea. When brought to the Cape by the Royal Navy who had ‘rescued’ them, they were branded and forced to work for 14 years as free apprentice labour before really being free – some as late as 1870.
Indigenes and slaves integrated over generations and when the indigenes were freed from this forced servitude in 1828, and slaves were told in 1834 that they were emancipated, these were bitter-sweet moments because they had to first compensate their exploitative masters with a form of compensation in kind, for their loss of human property, by a compulsory four years of free labour before they were actually freed. The Masters also were paid financial compensation by the British government for freeing their slaves and the loss of income they would suffer. Neither Indigene Khoi nor Slaves got any compensation for their two centuries of enforced free work that added value to those farms and made huge amounts on bond levies and taxes for first the VOC and the British Government.
Slaves and Khoi who had lived for generations on farms were proletarianised or made unemployed and turfed off the land and had it not been for churches and mission stations had nowhere to go unless they agreed to their former master’s terms. The land was rightfully theirs for two reasons – as the fruit of their uncompensated labour and; as Africans it was their birth-right. No other African people in South Africa had suffered this level of dispossession, degradation and exploitation, nor such a lengthy period of violence and war. There has never been compensation for any of these injustices.
Numerically those of the combined heritage of African slave, Asian slave, African indentured labour, Liberated Africans and other migrants of colour, together with a small percentage of European and Khoi ancestry, were three times in number to every Khoi person when the last census in 1904 still counted Nama, Damara, Griqua, Korana and other Khoi collectively as “Hottentots”. But in 1911 in the first census after forming the Union of South Africa in a deliberate act of de-Africanisation all were labelled “Coloured” without consultation. As proof of their claim to be Africans two of the earliest political organisations formed by such descendants was THE KIMBERLY AFRICAN LEAGUE (1885) and the AFRICAN POLITICAL ORGANISATION (APO 1902).
In 1950 with the passing of the Population Registration Act and the Group Areas Act this enforced de-Africanisation continued and the little bit of land, most often rented, and in some cases owned was taken away and given to whites in both rural and urban areas and identity and birth-right as Africans was trampled over.
Today those classified “Coloured” by government are still appealing to have the tern “Coloured” abolished in favour of returning the rightful African identity and acknowledging that just as other Africans have diverse cultural heritages those called “Coloured” are Nama, Griqua, Damara, Korana, Cape Khoi, San; and for the larger majority people are calling for recognition of the dignified term Camissa which is not race, ethnic nor colour, but rather is a deep part of our cultural origins going back to the Camissa River and speaking of an African people who rose above the adversity of slavery, wars of colonial dispossession, genocide and Apartheid.
So today the vast majority of such Africans, still suffer de-Africanisation and the imposition of the enforced colonial and Apartheid label “Coloured” and are still landless, and without livestock and sustainable livelihoods. Today unemployment, lack of education, homelessness, landlessness, ghettoisation, backyard dwelling, gangster ridden lives under siege, and substance abuse (one of the legacies of the Dop System used on farms) dominates the lives of a destitute, abused and forgotten African people.
The committee dealing with Restorative Justice around the issue of land restitution by means of EXPROPRIATION OF LAND WITHOUT COMPENSATION is asked to consider the fact that the depth and extent of dealing thoroughly and justly with land dispossession and homelessness that affects the vast majority of the almost 92% of people of colour in South Africa cannot be transformed effectively on the basis of willing buyer / willing seller as per the present constitutional approach. We have had 24 years since 1994 with little or no change in this regard and this is the basis for the need for the change demanded. It is un-natural and illogical that land and home ownership is overwhelmingly dominated by less than 9% of the population.
Therefore the following FIVE PRINCIPLES should be considered among the many statements made in this public participation process.
- The first appeal is to recognise the unique suffering of slavery, dispossession of indigene land en masse and, destruction of sustainable livelihoods that occurred pre- 1913, to Khoi and Slaves and their descendants, and the conditions under which such suffering took place.
- Secondly the appeal is to recognise that while the masters of Khoi, Slaves and Indentured Labourers, bizarrely received Slave-owners compensation in two forms – from the victims through a compulsory four year apprenticeship without remuneration, as well as – financial compensation by the British Government – Khoi and slaves and their descendants got no compensation for their expropriated land, livestock or labour.
- Thirdly the wave of Forced Removals under Apartheid both in the City of Cape Town and in the rural towns of the Western Cape has not been properly dealt with. District Six is just one indication of how badly this matter has been handled. The whole approach to restitution of victims of Forced Removals being handled on the basis of title deed certificates and other legalistic methods, does not deal with the majority who were poor tenants rather than just owners. Thus the process involved the FEW rather than the MANY.
- Fourthly it should be recognised that those classified as “Coloured” firstly by the census in 1911 and further deepened by the 1950 Population Registration Act and the Group Areas Act in a deliberate de-Africanisation process, be restored their birth-right status as AFRICANS based on the recognition that any person who has at least one ancestor that is indigenous to Africa, is an African. This issue of the National Question is deeply bound with Land Restitution.
- Fifthly it should be recognised that Land Restitution must consider the condition of the poor and dispossessed today, and not just historically. People living as backyard dwellers, in shanty towns, and shelter-less on the streets of cities and towns deserve the dignity of having homes.
People who have worked for generations on farms and who descended from slaves on farms and descended from indigenous Africans who were renowned for their livestock farming, but now are marginalised from farmland deserve the dignity of being empowered with farmland, agricultural training and support – particularly the younger generation. This is both a restorative justice issue and it is a food security issue.
(Almost 92% of South Africans are people of colour and just over 8% are white. Back in the 1980s there were 185 000 white farmers and today there are only 25 000 and with most of them they are old and their children do not want to farm. Yet people of colour are shut out of the agricultural economy simply because this dwindling white population see it as their preserve. Within 15 years South Africa will experience a food security disaster. Simple logic says that South Africa needs to create 200 000 black farmers in a short period of time and this needs a radical solution. Each province needs an agriculture academy, an agricultural equipment co-operative system, a seed bank system, and a national and international volunteer mentorship program. This cannot be put off any longer. All students of colour coming out of a three-year agricultural-college program should receive a land grant if they get a 65% pass rate or higher. That is radical.)
The following five approaches to actual LAND, SHELTER & BUILT ENVIRONMENT are asked to be considered.
- Land should not simply be commoditised and, no single beneficiary of land restitution should get restitution twice. Land restitution should be part of mass empowerment rather than the empowerment of an elite like has happened with BBBEE. Politicians should be last in line for restitution, so that they may remain focussed on ensuring that the most vulnerable and destitute in South Africa are served first.
- Legislation should be immediately passed to disallow foreign ownership of land by creation of two types of transactions – FREEHOLD and LEASEHOLD. Foreigners must only be allowed to get 99 year Leasehold and not Freehold ownership of land. This scenario is the law in many countries. Eg: Thailand which has never been colonised has always not allowed foreigners to buy land and only allows Freehold transactions for foreigners. South Africans should be allowed a maximum of only one Freehold residential property, one Freehold business property and one Freehold farming property; thereafter any other property held should also be Freehold so that there can be a levelling of the playing field of property ownership. This element relating to South Africans could have a 15 year sunset clause.
- The land issue is not just a rural issue and thus land and homes restitution in the urban environment requires the state to be innovative and must engage the banks and property barons and realtors for their share of land expropriation. The mortgage bond system has resulted in the banking mortgage bond sector being the largest holders of property in South Africa. It is a distortion to simply see the land issue as a struggle between white and black individuals. There should be full review of how the BANKING MORTGAGE BOND business is conducted and properties so held must also be part of the redistribution of land without compensation. There are five ways in which this could be done.
1.The state should look negotiating with the banks and property development sector, with the view to transfering of a percentage of vacant housing stock and land stock on the open market, at cost, to specially established Community Housing Associations, where the association becomes the trust owners, and after fifteen continuous years the occupants of such houses having paid affordable rentals, will become owners of the title deed. This offers a radical means towards housing people and integration of people out of the Ghettoisation created by Apartheid. Other innovative modalities should be looked at, with building permission and land sales legally being conditional on a social-housing component being required for sign-off.
2.All persons of colour who are existing mortgage bond payers to banks, should as an act of restitution be given a substantial once-off discount on their mortgage bond by the banking and property sector in lieu of theirs and their ancestors suffering and dispossession, including during Apartheid, in view of banks and property barons having benefited from colonial and Apartheid practices.
3.A type of 5-Year Marshal Plan should be immediately embarked upon to eradicate backyard dwelling and shanty town dwelling and must include a de-ghettoisation and deconstruction of Group Areas component for providing homes either at low-cost rental with a sunset clause on ending payment, or for free in those cases of indigence.
4. In all cases as part of a dedicated program of de-ghettoisation the broader built environment must receive attention so that play centres, community centres, sports facilities and other elements contributing to quality of life is dealt with in terms of the Freedom Charter’s vision.
5. All forms of urban renewal and gentrification projects should immediately be stopped from evicting people and making them destitute. Similar provisions should be made such as is used by ensuring heritage is preserved, whereby additionally people’s rights to decent shelter and an inclusion of an on-site homes element must be shown in development plans before building permission is granted.
- In the rural areas, towns and farmlands there are at least three types of land restitution that is required. Firstly there is a need for decent housing and built environments for rural communities in villages and towns; and land is required for dispossessed claimants both at an individual level and at community level. Secondly there is the question of farmland being restored to dispossessed farmers and farmworker communities who have more than paid for such land in terms of their families having for many generations worked originally under enforced conditions for free and after that for a pittance in remuneration. Thirdly there is a dire need for South Africa to create new qualified black farmers with land at their disposal to meet a national need for 200 000 farmers, in the face of the fact that SA has experienced a drop in farmers from 185 000 in the 1980s to 25 000 at present. Logic says that white domination in farming will result in a huge food security threat if we do not quickly transform the agricultural environment. Therefore:
1.The question of land in the rural areas has to be separated into land for rural homes, villages and towns; rural land for restitution involving dispossessed black farmers and farm labourers; and arable farmland for a new generation of young black potential farmers. There should be no granting of status farms to politicians and the black business elite and the principle of one restitution award per person is vital to avoid corruption.
2. The issue of expropriation of ARABLE land has to stand out from land simply as a commodity or land for human habitat. Likewise land for livestock grazing must be separated out from land that is useless for any kind of farming or land which will be too expensive to be used for farming due to cost of fertiliser and other products. There is a huge degree of phony debate about land which reduces the land empowerment issue to saying that worthless land is available for restitution and therefore caution must be applied in this regard.
3. Land on its own for purposes of farming is not going to empower people. Government must not delay in setting up Agricultural Colleges in each province with a 20 year plan to produce 200 000 graduates fit for the various disciplines in agriculture and to be fit to farm, with support. All who achieve more than 65% passes should be assisted with acquiring farm land, a mentor, support from a seed bank, aqua support, and support from equipment co-operatives. This should be at the heart of agrarian reform. Existing white farmers as well as assistance from foreign volunteer organisations should be drawn into a mentorship programme to support such new famers. No arable land should be given to people who cannot and will not farm the land. A holistic agricultural advancement framework has to be developed to support transformation which not only involves farming but also involves everything that supports farmers logistically in terms of equipment Co-Operatives, Seed Banks, Aqua support, and of course the already mentioned Land Bank.
4. Arable land and grazing land as well as land for village and town restitution must be identified and mechanism of expropriation, that is not punitive nor vengeful, need to be established in a responsible manner. To be able to do this the banks will have to be engaged as much of the land has actually become subject to mortgage bonds and loans against land assets. To this end it is vital that a Land Transformation Bank is immediately established by the state.
5. No restitution land should be allowed to be sold for up to 15 years. Land extent in terms of acreage, duly informed by good international agri-business practice, should be limited per farmer – black or white. The intention should be to break down segregation in the agricultural business arena over a 15 year period and build national unity in the process. Part of this approach should include a special farm and remote area security plan, involving all farmers black and white supported by the SAPS
It is vital to the success of such a radical transformation programme that EDUCATION on land and agrarian transformation is immediately embarked upon. Firstly it is important for each provincial to explain the history of WHITE EXPROPRIATION OF AFRICAN LAND WITHOUT COMPENSATION and in the Western Cape the system of SLAVERY and INDIGENE ENSERFMENT. The then provide other reasons as to why it is important that the 92% black population become empowered stakeholders in our society and why for good race relations to be built the issue of land justice must be accomplished and put behind us. Then the education programme must look at the different component parts of Restorative Justice and Land Reform and explain these to the public as well as the checks and balance to be put in place to prevent corruption in this arena. The education program must ensure the thread running through the entire process is JUSTICE and not RETRIBUTION and must explain all of the processes, time-frames and modalities – and most importantly how the average person is empowered to be a beneficiary. Importantly RED-TAPE must not feature and the entire process should have timelines.
The two attached documents should be read with this submission because the first demolishes any argument that suggests that Europeans bought the land through a treaty process with Indigenes. There is no doubt that all treaties and agreements occurred after land-grabs and wars of conquest by the Europeans against Africans of the Western Cape. It also demolishes those who argue that the Africans of the Western Cape are not really Africans but rather a non-African minority who collaborated with the Europeans. Both of these facetious arguments are a denial of crimes against humanity. The second document is written by an independent American economist who elaborates on the legal instruments of dispossession in the Cape through use of grazing licenses and the Loan Farm system in tandem with wars of dispossession. The author is not well acquainted with the wars and erroneously over emphasizes the smallpox epidemic. His focus is simply on how the legal instruments of the VOC underpinned possession of property.
I thank you for your consideration of this submission.