Constitution is a means, not an end

2012-06-30 08:08

There is no need to wait – and no time to waste – before we begin expropriating land.

Ninety-nine years have elapsed since the Natives Land Act was passed.

This, the first foundation stone in the legal architecture of apartheid, reserved more than 80% of South Africa’s land for less than 20% of its people because they were white.

Much of this land had already been taken at the cost of the lives and livelihoods of black South Africans, but the 1913 act consecrated this conquest as permanent, condemning South Africans to a century – at least – of segregation, exploitation and prejudice.

Although the act has been repealed, its legacy lingers.

Although we may debate the precise proportions of black, white and state ownership of land in South Africa today, we cannot deny that the relationship between race and land remains unresolved.

Many South Africans, particularly in rural regions, exist in simulations of apartheid – where our lot in life is determined inescapably by who our parents were; where, as a result, white children inherit privilege and black children inherit perpetual poverty.

This racism is structural, and thus it requires a fundamental restructuring of our society.

The radicals are right to warn us that reform is not only imperative but inevitable, as the people’s patience is not infinite.

The responsibility of realising this reform peacefully and progressively is a momentous challenge, left for us by the generation that forged our Constitution on the precipice of conflict.

The leadership of the ANC had decided, no doubt with great difficulty, that apartheid would not be demolished but dismantled – that, rather than destroying privilege and poverty at once, it would be wiser to use the bricks of the past to build a better life for all.

Peace and progress cohabit in our Constitution, though their relationship remains unresolved.

The Constitution contains both conservative and transformative elements, embodying at once the competing interests of the privileged and the underprivileged, requiring them to reconcile and coexist in a new society.

The conclusion of the constitutional process did not mean the completion of the constitutional project. The Constitution did not solve the struggle for a just society.

Rather, it absorbed that struggle into its provisions, providing a stable, sustainable framework for the struggle to be waged and won.

This is clearly illustrated by the property clause, section 25 of the Constitution, which entrenches the rights of those who have land to retain it, yet equally enshrines the rights of those who lost land under apartheid to regain it.

It provides the state with the power to expropriate property for the purpose of land reform, subject to just and equitable compensation, which need not meet market value and indeed may be nowhere near it.

It is not necessary to amend the Constitution to bring about justice when that is no less than the Constitution itself demands.

Interpreting section 25 correctly, it is clear that the state must pursue far-reaching reform, and, because land is limited, it is empowered to take land from those who have it for those who don’t.

The state’s insistence on buying land only from willing sellers for market value is not a constitutional duty but a naive policy.

In my view, abandoning it is not forbidden but commanded by our Constitution.

Many South Africans assume that the Constitution precludes transformation – some feel that it obstructs reform, others that it obviates reform.

Both believe the Constitution was an end when in truth it is the means. It obliges reform. It is not a certificate but a map.

» Winks is a candidate attorney at Webber Wentzel, a visiting researcher at the University of Johannesburg and former clerk of the Constitutional Court. He writes in his personal capacity.

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