Reconstructing Historical Events in a Context Where only one of the Protagonists is Given a Voice.

Rian Malan’s letter to Julius Malema, carried in Politicsweb (16 November 2016) is very interesting and brilliantly written. Aside from the fact that Malan is in a writer I hold in high esteem, his piece was, in its own right, intellectually stimulating. I do not intend to waste words on the question whether Africans were at peace among themselves before 1652 – I am inclined to agree with Malan that they were probably not.

I know that he doesn’t mean it literally when he says he is willing to give his land back to its owners – if only he could find them. Rather, I think he is problematizing the political issue involved in the notion that Africa, and therefore South Africa, belongs to Africans and must be restored to them.

In so doing, I think he serves the Continent, and with that South Africa, remarkably well. Because, let’s admit it, it does no one any good to conduct politics on the basis of slogans which are devoid of content and therefore arguably indefensible. To the extent, therefore, that Malan problematizes the issue, he forces us, black and white, to think critically not only about what Julius Malema says, but also about the responses we offer in the face of his challenge.

Before I engage Malan, I need to say that I agree with ZK Matthews in his book, Freedom for My People, where he writes that if it is impossible to approach history without bias, then all the biases must be presented. I enter this debate, therefore, not in the hope that there will be agreement on the issues involved in it any time soon. I join in, rather, because I need to ensure that the other story is also on the table.

Malan’s letter raises two rather serious lines of inquiry. The one appears to be juridical in nature – I refer to the issue of ownership – and the other appears to me to be a historical question.

If I dissect the issues correctly, then my understanding, insofar as the first issue is concerned, is that Malan argues that if there is to be any land restoration in South Africa, we have a duty to ensure that it is restored to the correct people – i.e. its rightful owners. And then it appears to me that the sub-text to his argument is that if the rightful owners cannot be found, those who now hold the land may as well continue doing so.

If the point Malan makes about the necessity to ensure that land is restored only to its rightful owners is conceded, then of course we have to find a way of establishing who the rightful owners are. He has chosen the historical method as the medium for establishing land ownership. And on that method, as he argues so well, it is not possible to ascertain who the rightful owner is at least of his land. I however imagine that his argument would be possible to replicate in other parts of South Africa as well.

There’s a difficulty that Malan’s argument was always going to run into. If the question of ownership is treated as a juridical issue, it does not follow that those who currently have the land must keep it because the rightful owners cannot be found. If the law allows a person to retain ill-begotten property, it quickly loses any respect it might command, and we are all the poorer for that. It is easier and more dignified, jurisprudentially, to argue that someone who has ill-begotten property must forfeit it to the State, rather than argue that he/she should retain it because its true owner cannot be found. Therefore, if Malan’s argument prevails, Malema remains firmly on his feet – “land thieves” must forfeit the land they “stole” to the State.

But Malan has a bright defence – he had no part in the land thieving which took place in the colonial era. Of course! And I think, again, that we can extend this defence to every living white South African. But I would think that the issue is bigger than each of us counting as individual human beings with little residential land here and there. The political issue is elsewhere: it resides in the fact that SA society was so engineered that white people, whilst constituting 13% of the population, held 87% of the land.

That is the issue which cries for correction, and which should not be trivialised. For the purpose of addressing that issue, it matters little whether or not any living white South African had a part in the land thieving which took place during the colonial period. I know that it is nigh impossible to find all round consensus on this, but I have found Albert Schweitzer quite encouraging: “A heavy guilt rests on us for what the whites of all nations have done to the coloured peoples. When we do good to them, it is not benevolence – it is atonement.”

It seems to me that a willingness to deal with the problems emanating from racist policies of the past in a genuine, sincere manner, is a key to unlock the heart of the most ardent African nationalist. I have witnessed this in the life and death of Steve Biko and that of Robert Sobukwe. On the other hand, the refusal to acknowledge social injustices committed against black people, or trying to explain them away, makes, as Malcolm X argues, the process of healing (and reconciliation) that much more difficult.

I would be silly, of course, not to anticipate the rejoinder: “but my title to the land I hold is legally valid, and therefore your case is not made”. Indeed. Let us make it plain: land dispossession of indigenous people was illegal nowhere in the world - see the 1823 judgement of the Supreme Court of the USA in the case of Johnson v M’Intosh. The dispossession was lawful because those who benefited from it ensured that the law sanctions it.

The fact that the law might sanction acts and events which offend against the sense of justice of those on the receiving end of such acts has never anywhere in the world led to a situation where victims suffer their lot in silence. On the contrary, they do what they can within the law to reclaim their rights and where this fails they find extra-legal ways of challenging a system which demands of them to accept something they see as an injustice. I think this is what Malema’s rhetoric is about.

So far I have debated the tenability or otherwise of what seems to be Malan’s way of dealing with what I see as a juridical question. It remains to debate the historical approach he follows, and inquire whether it truly disposes of the question at hand. In doing so, I shall split the historical aspect of the debate into two phases – namely, recent history and less recent history.

The first difficulty Malan’s historical argument must run into is that land thieving in South Africa did not stop with the Statute of Westminster (1931). After Britain relinquished colonial authority over SA, black people continued to be dispossessed of their land. Many living South Africans were around for a substantial part of this period. I in fact was part of an initiative which investigated forced removals – the Surplus People’s Project – in the 1970s. The report of that initiative is in the public domain, and if the need arises to establish who owned which land before being forcefully removed from it during the period investigated, that inquiry is possible.

Malan premises his argument on his ideological leanings – he says he is a capitalist by inclination. Within that framework it is possible that he might say what he needs is the name of the individual who owned any piece of land in contention. In fact he shouldn’t, given the line of reasoning in his article, where he speaks about various language groups, and not individuals.

My understanding of the political debate is that land must be restored to its owners. Throughout the period of struggle, I have never heard an argument made for land restoration to individual persons. I’m not aware of any programmatic document emanating from within the liberation movement which argues for land to be restored to individuals. The nature of land ownership in precolonial society was never individual. As Glavovic writes with reference to South Africa: “The essential feature of traditional landholding is its communal nature”. I have not understood Malema to be making an argument for land restoration to individuals. If anyone should, in responding to the debate, ask for names of individuals who owned any land in question, such a person would be addressing an issue no one is raising.

The question remains moot, therefore, as to why land cannot be restored to identifiable communities that were dispossessed of it. My point here is that Malan’s argument, if it is conceded, does not dispose of the possibility to restore land at least to those who lost it in recent years as a result of land theft sanctioned by the law. I realise, following the trajectory of his historical approach, that Malan might refer to more distant history in order to dispute the ownership of the communities detailed in the SPP reports of the pieces of land in question.

That is, perhaps, a good link to the next level of the inquiry – more distant history. I do not concede, as already indicated, that the recording of distant historical events should have the effect of leaving land ownership exactly as it stands today. The writing of history has never been innocent in colonial times and during the rule of the Nationalist Party.

Let’s imagine, for the purpose of argument only, that only the ANC and its members could write, and that everyone else simply knew nothing about writing. Let’s imagine too, that the ANC were in cahoots with all other countries to construct a picture about South Africa which is favourable to it and to its post-1994 political agenda.

What they would write into history books is that the ANC alone waged a liberation struggle in SA and so freed the country from white rule. If they were very serious about this, they might destroy or doctor any archival materials which showed people who were not ANC activists, but who were detained or jailed by the Nats for their political activities. All records would show only ANC members engaging the white government.

One hundred years later, there may be scholars who want to inquire into this position. They may be very honest and genuinely wish to uncover the true pre-1994 liberation history of South Africa. The only documents they would have are those which say the ANC alone opposed (and defeated) white rule. They may be suspicious about the whole thing because nowhere else in Africa is there such a situation. But the only historical materials they have to work with are the ones bequeathed to posterity by the ANC.

Africans generally find themselves in such a situation regarding the recording of their history during a time when they could not do that for themselves. Mercifully, for us, the situation is not nearly as bad as the scenario I have constructed about the ANC and South Africa. We know from the writings of a number of Europeans that colonial historians had instructions to produce historiographies about colonies which were consistent with imperial policy.

Out of these was born, among others, the theory of empty spaces in Southern Africa, in terms of which Europeans would have arrived in this part of the continent approximately at the same time as Africans. Out of these was also born the principle of terra nullius, in terms of which land occupied by indigenous people was deemed to have no owner and therefore available for European occupation.

Malan does not say whether the historians he uses to make his point used primary or secondary materials – I suspect they used secondary materials, like our historians might, one hundred years henceforth, in the scenario I constructed earlier. The difficulty is that, whatever their personal integrity, we have to wonder how much trust can be placed on the materials they used. If the political imperative which framed early African historiographies was the need to obscure indigenous land ownership, and in places to deny it plainly, the least we can do, in trying to use such materials, is to demonstrate that they are free from that defect.