I have shown in the past that the state could apply the departure principle as appears in section 25(8) of the Constitution when expropriating land, published on 19 February 2018. This article is related to expropriation, but about the 1913 principle.
The 1913 principle relates to the land claim processes. It requires that claimed land be land which was dispossessed in 1913 or thereafter. So the debate is relevant to the restitution program and not redistribution (expropriation for instance).
This article is informed by the unfortunate conduct at a UNISA summit on land held on the 30/04/2018. On an issue as important as land, it will do us better for our political leaders, from all progressive movements, to unite. This goes to members of their parties. The EFF Gauteng chairperson stated at the summit that the ANC was appropriating a debate on expropriation. The EFF chairperson may or may not be correct. Fact of the matter is that history will record that it was the EFF which moved the original motion in 2018, further that it was the EFF which moved a motion in 2017 and that the ANC opposed the motion in 2017. That history cannot be erased.
The above given, our interest is in our people having land. It therefore is important, as the Chairperson of SCOPA indicated on the 30/04/2018 that on this issue work should be done for all progressive forces to find each other.
In addition to the UNISA issue, what further motivated this article is an article regarding comments attributed to the leader of COPE. The leader of COPE is reported to have said that should land be expropriated without compensation, people, across all races, will die. How a leader makes such comments is very interesting!
If people are to die, it will be one-way-traffic, unless others from whose group some might have been killed may respond. The landless will get land, perhaps be killed by the land haves, we understand COPE leader to be saying. A war would then ensue, he suggests. We will have to wait and see. As we wait, we should remember, as we know, that in a struggle there are always casualties. The COPE leader may possibly know that better than I do. Fortunately the South Africans are not and would not be scared by comments as reported to have been made. So the comments will not be factored for a decision that is to be made.
Back to my wordpress article, I showed in that article that sub-section 8 allows departure from section 25. Section 25 regulates many aspects, including compensation as appears on sub-section 2. It regulates many other issues, including the 1913 principle.
Before we were born and sometime prior 1913, our forebearers' land was taken by those who believed that South Africa belonged to them. Those persons had settled in our forebearers’ land more than 200 years before 1913. When they settled, they did not come with land from wherever they came. They found the land here in our continent. The settlers made South Africa their home.
The settlers’ descendants, those who have remained in our country, are now South Africans. So when we say our Country, the descendants born of the settlers are very much of this great South Africa. Being South Africans, it is proper that we accept each other as such: South Africans. A debate as to who is an original South African is not to take us anywhere: Think of persons from Lesotho, many in the Free State Province for instance. It may be a debate another day, if we should go into it.
Having accepted each other as South Africans, when the Constitution was adopted we accepted the Constitution as our document. The Constitution, in section 25(8), allows the state to depart from any provision in section 25. One of the provisions, as I said earlier, is the 1913 principle. The principle appears in section 25(7). As a provision in section 25, the 1913 principle can be departed from. This issue is slightly mentioned in the submissions we made to Parliament in April 2018.
As shown in our wordpress article, when departing from the provisions of section 25, the state must enact a statute (an act of Parliament). That, in our view is the best route to go.
Section 25 is a very transformative section. It should be read with section 9, the right to equality, amongst other sections. As you may imagine, through section 25 (8) we could progressively achieve equality, uplift our people’s lives and free their potential, all of which are demanded by the Preamble to the Constitution.
If we achieve the above, indeed God, whom we have invited as recorded in the preamble, will bless us.
Matome Chidi
An Attorney at Chidi Attorneys
