Property rights are universal. They are found in every cultural context where human beings live with one another. Precolonial Africa has been cast with the unfortunate fallacy of having had no private property rights but rather some form of collective property ownership and use.
This is a rank misrepresentation that stems from colonial writers’ misunderstanding of property organisation during this period in Africa's history, particularly in relation to land.
Marxist liberation movements of the continent ran with this misrepresentation and continue to do so today.
There was wealth in precolonial Africa. There were polities that had trading networks that stretched as far as China, as was the case with the Kingdom of Mutapa, with its capital in the ruins known today as Great Zimbabwe.
For trade to be possible, there must be property ownership, for one cannot trade what already belongs to them, as with collective property. Beyond external trade, there was internal trade within the various polities in the interior, with the obvious presupposition of individual property ownership.
Land in most African polities was communally held in trust for the community by either a chief, king or tribunal, namely, it could not be alienated by way of sale, although once rights were granted or enjoyed, ancillary rights of property, such as use, were exclusively individual/familial.
The mere fact of the enjoyment and use of land, granted to specific families, with the logic extended to the individual, rather than there being no delineation between individuals in said land since it would be “collectively held”, is indicative of the fallacy of collective ownership.
With conquest in South Africa came a different form of property rights, but the substance of said rights, namely the delineation of what is mine and thine, was still present.
The administration of the colonial powers had the necessity of the registration of title with the state for property to be recognised as owned.
African property rights were recognised and deduced from the nature of human life, in that, for validity of title, no state recognition was essential. A chief, for instance, could not deny title to an individual, for the validity of title did not rest with the diktat of the chief but rather was contingent on the familial/tribal/ancestral ties a particular individual had to a piece of land.
The Roman system of title, whereby the validity and recognition of title is contingent on the state deeming it so, was used as a means of dispossession in South Africa, since the indigenous inhabitants had no title in the Roman sense, thus their land was considered essentially unowned.
The use of this different form of property rights regime for unjust ends does not imply that its logic or rationale cannot be used or shown to give rise to just property regimes not founded on dispossession.
For instance, the titles held by the indigenous communities could have been recognised as valid, but considering the historical context, the sequence of events shouldn’t be surprising.
The form of property regimes explained are opposed in the sense that the African system is more contingent on individual/familial/communal action and its implications, whereas the Roman-Dutch system is contingent on state action. The substance of what they aim to achieve, namely the regulation of what is mine and thine, are the same.
For precolonial Africa, a person is conceived as already having property logically, prior to its recognition by any state. The state is made up of property owners, rather than that it creates or does not create property owners, a conclusion the French jurist Frederic Bastiat also independently came to.
There are also commonalities between the regimes. Both have state administration of property to some extent, with the African polities having the procedural authority of granting land to a new family, an activity that cannot be denied substantively by said state, mind you, as per the precepts of African law, done by the chief - if there is one or a tribunal of some sort. The Roman-Dutch system follows the same logic in the sense of title granting.
Regardless of what form the property rights take, the expropriation of property by the state is wholly opposed by any civilisation or society that values truth, order, balance and justice, whether African or Western.
In the paradigm of African law, the state, through its representatives, such as a chief, could not expropriate the fields of another family without any form of compensation.
They could not take one family’s livestock, by force, and give it to another family for “redistributive” purposes. African society valued liberty and autonomy highly, as is proven by the large variety of political organisations consisting of states with chiefs or others without chiefs, called “stateless societies”.
Most decisions that could reach the severity of expropriation had to be agreed to through consensus by the entire community, not by some slim majority in Parliament.
To correct the injustice of the dispossession of property in the past, a return to a principled understanding of property relations, grounded in African norms, ought to be considered. Even Roman-Dutch principles could be used for the purposes of restitution, given that system’s (albeit statist) high regard for justice.
Whatever the case, the notion that there is no private property in African tradition is fallacious.
Restitution ought to always have the end of placing and entrenching property rights with not the state, but the individuals who enjoy the use/occupation of said property.
State custodianship of land and a constitution that allows for expropriation without compensation is antithetical to this conception, since rights will lie with state representatives, rather than individuals and their communities. Expropriation without compensation would further perpetuate the injustice it seeks to correct.
Mthembu is a law student at the University of the Witwatersrand