The Constitution: an instrument of injustice

2013-08-13 00:00

ON August 7, the Times Live online news publication published a story about the government agreeing to pay R1 billion for Mala Mala game reserve, to settle a land claim.

This forms part of the land-restoration programme by the government. If the deal, entered into by Minister Gugile Nkwinti and the owners of the game reserve, goes through, it will be the biggest of its kind since the beginning of the programme. There are a few issues that arise out of this.

The first issue pertains to the principle of paying land owners compensation based on the market value for property that was unjustly acquired through the forced removals of people during apartheid. Private-property ownership is protected by the Constitution, as agreed upon during the negotiations.

The Constitution further enables the government to purchase land at below the market value. But is it just for a person who benefited from an unjust system to — even in the interest of the economy, peace and international credibility — be given any form of compensation for such a benefit so that it can be restored to its rightful owners?

Would we pay a thief any form of compensation to return an ill-gotten item to its rightful owner? This idea is not only wrong and unjust, but it also makes it impossible for the nation to heal the wounds of the past.

The second issue is about the interest of the country through national reconciliation and cohesion. It is no secret that white people benefited from apartheid in one way or another.

Such a benefit was at the expense of non-whites, especially Africans. It is also no secret that as a result of this, the wealth of this country is concentrated in the hands of white people. This includes the ownership of land.

The process of paying compensation to white land owners perpetuates the wealth and power disparities. It reinforces the idea that the only people who sacrificed anything, and continue to sacrifice for the sake of progress of the country, are black people.

The demand by many white land owners for the government to pay them market or above-market value compensation can be construed as intentionally jeopardising the already delicate unity and progress. It signals the reluctance of many white people to transform this country by making sacrifices through gestures that show they understand and are sorry for the injustices of the past.

Instead, many have taken the position that their ownership of property is protected by the Constitution.

Consequently, if the government wants to take their land, it must pay or stay away. They do not care about the plight of the landless people.

Pierre de Vos argued in 2011 that there is a worrying tendency for white people to use the Constitution to protect their position of privilege, without recognising the need to address the injustices of the past by making certain sacrifices.

He stated in his blog: “Before we all accept this obvious fact, show a willingness to face up to it and begin to do something about it, and resist the temptation to want to sweep it all under the carpet because of embarrassment, misplaced anger or ignorance, we are never going to be able to embark on the true road to reconciliation.

“Insisting on reconciliation based on a denial of the past is not doing us any good. Such a ‘reconciliation’ is no more than an attempt to rewrite the past in order to try to ensure that the laughable but very deeply entrenched notion so central to white identity — the idea of white moral superiority — remains intact.”

This leads to the third issue. If the deal goes through, the owner of the Mala Mala will have benefited twice as a result of apartheid laws. He will graduate from being a millionaire to being a billionaire. Meanwhile, other land claims will suffer due to an unavailability of funds from the government.

This may set an impossible benchmark that the government will have to deal with when trying to settle claims in the future. In turn, all of this will make it impossible for people to be returned to their land or be compensated for such.

The consequence of all of this is likely to be growing racial tension and ultimately Zimbabwe-style land grabs.

By refusing to make sacrifices and to embrace the process of transformation, some white people are making it impossible for black people to move past the pain of apartheid.

By using the Constitution as a shield to protect their interests, these people are also making the Constitution the target of resentment and it will ultimately be rejected by those who remain disadvantaged and see no remorse or sacrifices from their former oppressors.

The formation and growth of the Economic Freedom Fighters, among others, is testament of the ticking time bomb that is land.

National cohesion hangs in the balance. Black people played their part when they agreed to forgive their former oppressors.

Now is the time for white people to play their part by giving back that which was stolen from others.

Only once this happens can this country truly be at peace.

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