Land issue: Ditch restitution and focus on redistribution, urges advocate

Tembeka Ngcukaitobi. (File, Gallo Images)
Tembeka Ngcukaitobi. (File, Gallo Images)

Cape Town – Advocate Tembeka Ngcukaitobi has urged government to abandon restitution and focus on redistributing land as it prepares to investigate expropriation without compensation.

The advocate previously made headlines for his Constitutional Court representations on behalf of the Economic Freedom Fighters, where he formed part of the legal team arguing for the state capture report to be released in the North Gauteng High Court.

Ngcukaitobi said the fundamental challenge with land expropriation is that the African National Congress-led government failed to use all the instruments at its disposal for land reform, and not that government should pursue more power to address the land question.

"Sadly, we have not implemented any of the things we have spoken about. We are looking at 8% that has been redistributed, which is dismal, even [by] their own standards. Willing buyer, willing seller is also not in the Constitution.

'Not a constitutional but a political problem'

"What we have is not a constitutional problem but a political problem," said Ngcukaitobi.

Ngcukaitobi said Australia restored aboriginal land through an administrative process, not a judicial one. He said South Africa should abandon a market-based approach to land reform. Move towards a just and equitable model, he argued.

"The Land Claims Court cannot focus on the redistribution and restitution process because they are still dealing with evictions and farm removals.

"You still have farmers [removing] workers from farms for no reason," said Ngcukaitobi.

He said the current process of lodging a land claim was rigged to the disadvantage of the poor South Africans it was meant to assist. Proving a claim is outrageous and demands resources and time that many don’t have, he said.

"Land evictions are critical to discuss. The state has always been entitled to deprive a person of land without compensating them. People must stop interfering with the Constitution and just do their job," Ngcukaitobi said.

He said government should not proceed with land claim processes on the assumption that the burden of proof must fall upon the claimant. He said to do that would be to legitimise the failure in clearing out sufficient claims over the past 20 years.

"The process that works is one that assumes the original sin. One that focuses on the need for land. Do not compel the person to prove their need for land as if you are asking them to prove they are black. Seek proof for why land should not be allocated," he said.

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