South Africa suffered a long history of colonization, racial domination and land dispossession that resulted in the bulk of the agricultural land being owned by a white minority. Black people resisted being dispossessed but were defeated by the superior arms of the newcomers. As Lewin has written, “whatever minor causes there may have been for the many Bantu-European wars, the desire for land was the fundamental cause.” [FN1] Despite the claims that South Africa was largely uninhabited at the time of the arrival of Europeans, documentary evidence shows that in fact the land was inhabited. Thus the journal of the first European to settle at the Cape, Jan van Riebeeck records incidents of confrontation with the indigenous Khoi-khoi (or Hottentots) in 1655:
Only last night it happened that about 50 of these natives wanted to put up their huts close to the banks of the moat of our fortress, and when told in a friendly manner by our men to go a little further away, they declared boldly that this was not our land but theirs and that they would place their huts wherever they chose. If we were not disposed to permit them to do that *284 they would attack us with the aid of a large number of people from the interior and kill us. [FN2]
Documents compiled by the historians Davenport and Hunt show how the indigenous San people were almost exterminated by the advancing white farmers and how despite their resistance the other African tribes lost the land either through wars or were cajoled into giving up the land through agreements which they did not understand. [FN3] The colonial and apartheid state confined the indigenous African people to reserves consisting largely of barren land or areas with poor rainfall patterns while the more fertile land was allocated to white farmers for commercial agriculture. Although dispossession of black people initially took place through conquest and trickery, it came to be a major policy of the state supported by an array of laws from the early days of colonization. The most systematic land dispossession by the state came into effect after 1913. The Native Land Act of 1913 [FN4] apportioned 8% of the land area of South Africa as reserves for the Africans and excluded them from the rest of the country, which was made available to the white minority population. Land available for use by Africans was increased by 5% in 1936 [FN5] bringing the total to 13% of the total area of South Africa, although much of the land remained in the ownership of the state through the South African Development Trust supposedly held in trust for the African people. Thus 80% of the population was confined to 13% of the land while less than 20% owned over 80% of the land. Black people were prohibited from buying land in areas outside the reserves.
This apportionment of land remained until the end of apartheid in early 1990s and remains virtually unchanged. The main purposes of the Land Act 1913 were firstly to make more land available to white farmers. Secondly, it was to impoverish black people through dispossession and prohibition of forms of farming arrangements that permitted *285 some self-sufficiency. This meant they became dependent on employment for survival, thus creating a pool of cheap labor for the white farms and the mines. [FN6] White farmers had repeatedly complained that black people refused to work for them as servants and labourers. Thirdly, there was of course also the purpose of enforcing the policy of racial segregation, which had previously not been consistently enforced. Besides impoverishing black people and stunting their economic development, the successive white governments caused a lot of suffering, humiliation and abuse of the human rights of black people. The migrant system that resulted from the need of black males to migrate to the cities and white farms in order to earn a living and provide for their families, in many cases resulted in the break up of families and dislocation of social life.
The Group Areas Act of 1950, [FN7] passed soon after the National Party took over government in 1948, was used by the apartheid state to carry out forced removals of black people from land declared to be white areas and to complete the policy of racial segregation by removing “coloured” and Indian people from so-called white areas. Pockets of black farmers who had escaped the 1913 Land Act because they had title deeds to their land, were removed under the Group Areas Act in a process that was dabbed cleaning up the “black spots.” The “black spots” were usually fertile land whereas the areas in the Bantustans where the people were moved to were over-crowded, over-grazed and over-cultivated. The Prevention of Illegal Squatting Act of 1951 augmented the Group Areas Act and other racially based land laws by making provision for the eviction of people who had no formal rights on land. It authorized the state and private landowners to evict people and demolish their homes without court orders. In effect, most of those evicted had initially lived on the land with the consent of the owner but once that consent was withdrawn for whatever reason, the people automatically became classified as squatters and became liable to be evicted. [FN8] Those removed were damped in the crowded Bantustans or homelands or moved on to other vacant land until the land was needed for another purpose *286 prompting their eviction again. It is estimated that 3.5 million people were forcibly removed under various apartheid laws between 1960 and 1983. [FN9]
The struggle for liberation from colonial and apartheid domination was partly based on the objective of regaining the land. The sentiments behind this struggle can be summarized in the statement by an old man at a community meeting: The land, our purpose is the land, that is what we must achieve. The land is our whole lives, we plough it for food, we build our houses from the soil, we live on it and we are buried in it. When the whites took our land away from us we lost the dignity of our lives, we could no longer feed our children. We were forced to become servants, we were treated like animals. Our people have many problems, we are beaten and killed by the farmers, the wages we earn are too little to buy even a bag of mielie-meal. We must unite together to help each other and face the Boers. But in everything we do we must remember that there is only one aim and one solution and that is the land, the soil, our world. [FN10]
The Freedom Charter of 1955 set the goal of sharing the land: “Restriction on land ownership shall be ended, and all the land redivided among those who work it, to banish famine and hunger…All shall have the right to occupy land wherever they choose..” [FN11] Liberation and democracy were ultimately not won through armed struggle but through a negotiated settlement, which necessitated compromises on the issue of land. Whereas the hopes of the black people were that after apartheid they would regain the land or that at least everyone would gain access to enough land for her or his needs, the negotiated settlement left the distribution of land largely unchanged through the constitutional guarantee of the right to *287 property with only a limited form of restitution. Nevertheless, it was the policy of the incoming government of the African National Congress (ANC) to effect land reform that would to a significant extent ameliorate the injustices of deprivation and denial of access to land. Land reform would also alleviate poverty, especially in the rural areas, and give some protection against eviction to those who had been forced for generations to live on land without proper rights. In the policy document, the Reconstruction and Development Programme (RDP), the ANC undertook to carry out land reform under three major strategies: restitution to restore land rights to those who were dis-possessed of them under discriminatory laws, redistribution to make land more accessible to those who had previously been denied access, and tenure reform to give security of tenure to labour tenants, farm workers and other rural dwellers who lived on land without secure rights. [FN12]
[FNa1]. Vice-President, Supreme Court of Rwanda, formerly Associate Professor
of Law, University of the Western Cape, Cape Town, South Africa. LLB (honors),
Makerere University, Uganda; LLM, Yale Law School, USA; and, D. Phil., Oxford,
[FN1]. J. LEWIN, The Native in South Africa, Witwatersrand University Press,
Johannesburg. Quoted in LETSOALO “Land ‘Reforms’ — State initiatives” in
Michael DE KLERK, ed: A Harvest of Discontent: The Land Question in South
Africa, 1944. 99-111 at 100.
[FN2]. THOM, H.B., ed., Journal of Jan van Riebeeck, entry of 10 Feb 1655
quoted in T.R.H. DAVENPORT and K.S. HUNT, The Right to the Land Document No.
17. David Philip, Cape Town, 1974.
[FN3]. DAVENPORT and HUNT ibid. Documents 20 and 21. Documents 34, 35 36 and
37 show how the Kings of the Zulu, Shaka and Dingane supposedly gave grants or
ceded much of the east coast — estimated at 20, 000 square miles (Port Natal
and its hinterland including mineral rights) to four different people- F.G.
Farewell, John Saunders King, Captain Allen Gardiner and Piet Retief at
different times between 1824 and 1838 for nothing more than “as a reward for
his kind attention to me in my illness” or “for his attention to my mother in
her last illness.”
[FN4]. Native Land Act 36 of 19 June 1913.
[FN5]. Native Development and Trust Land Act 1936.
[FN6]. As Bundy puts it: “What the 1913 Act attempted to do was to legislate
out of existence the more independent forms of tenure and to perpetuate
instead the most dependent. Its intention was to outlaw cash paying tenants,
and in the Orange Free State to forbid sharecropping agreements. The Act was
intended to reduce cash-paying tenants and sharecroppers to the status of
labor-tenants or wage-laborers.” C. BUNDY, “Land, Law and Power: Forced
Removals in Historical Context,” in C. MURRAY, and C. O’REGAN, No Place to
Rest: Forced Removals and the Law in South Africa, Cape Town, Oxford
University Press, 1990, 1-12 at 6.
[FN7]. Group Areas Act No. 41 of 1950; replaced by the Group Areas Act No. 36
page 19 of 28
[FN8]. For a detailed account of the use of the Act see Catherine O’REGAN,
“The Prevention of Illegal Squatting Act” in MURRAY and O’REGAN supra fn. 6,
[FN9]. PLATZKY and C. WALKER, 1985. The Surplus People: Forced removals in
South Africa. Johannesburg, Raven Press at 10. At 141-142, the authors list 18
major laws dealing with black land rights and powers of relocation.
[FN10]. Attributed to Petros Nkosi at an Eastern Transvaal meeting. Quoted in
Aninka CLAASENS: “For Whites only — Ownership in South Africa” in Michael DE
KLERK: A Harvest of Discontent: The Land Question in South Africa. Idasa 1991
43-61 at 50.
[FN11]. The full text of the “Freedom Charter” can be found as appendix 1 in
N. STEYTLER, ed., The Freedom Charter and Beyond: Founding Principles for a
Democratic South African Legal Order. Wyvern Publications, Cape Town, 1991.
[FN12]. AFRICAN NATIONAL CONGRESS, Reconstruction and Development Programme,
Source: 32 Int’l J. Legal Info. 283 (2004)