The Freedom Charter remains an inspirational document for the oppressed people, not only in South Africa, but across the world. Its extraordinary breath; its ambition; its depth are a testament to the abilities and courage of its writers. The man of course, who conceived of the idea of the Congress of the People where the Charter was born, ZK Matthews, did not attend the Kliptown meeting. Student boycotts of 1955 at the University College of Fort Hare where he was Acting Principal, prevented him from doing so. Yet his vision was embodied in the letter and the spirit of the Charter.

The idea of the Charter was conceived in 1953. Then Matthews was the president of the Cape ANC. It held its annual conference in August of that year, at Cradock. Matthews delivered his presidential address on the 15th. That address laid the foundation for the Freedom Charter, which came only on 1955. Matthews noted the National Party aggression in executing its racial policy of apartheid, targeting the clauses in the South African constitution which guaranteed franchise to coloured and native persons.

To counter this, he proposed a national convention “at which all sections of the population might be represented to consider the kind of South Africa which they should like to see in the future, in which the legitimate rights of all sections of the population might be adequately safeguarded”.

The proposal by Matthews had a profound impact on the delegates. By the end of the 1953 Cape ANC conference, a resolution was passed: “That the Conference notes with interest the remarks of the President on the need for the establishment at the instance of the African National Congress and under its leadership of a Congress of the People in South Africa to draw up, inter alia, a Freedom Charter or Constitution embodying a vision of the future South Africa as we in Congress see it.”

In April 1955, when adopting the Charter, the Congress of the People rejected the dichotomy of the “coloniser and the colonised”, engaged in a titanic struggle for dominance over the other. South Africa, it argued, “belongs to all who live in it”.

The prime focus of the Natives Land Act 27 of 1913 had been the imposition of racial restrictions on land ownership by Africans. Now, the Freedom Charter aimed to reverse this, proclaiming “restriction of land ownership on a racial basis shall be ended”. The land would be redivided among “all who work it”.

The Charter’s promise was not to end private land ownership, but its racialization. But who would get the land? The Charter’s answer was those who work it. There was no further elaboration about who works the land. Perhaps none was necessary. By 1955 South Africa was primarily an agricultural economy, with large scores of young African men driven to work as cheap labour in the farms. Alive to this reality, the Charter promised to end cattle robbery, abolish forced labour and farm prisons.

Matthews’s interrogators required of him to make a statement. In it, he would make the clearest defence of the principles in the Charter. The charge was that the Charter was a communist document. The land clause was the evidence. Matthews refuted this. The root cause was the Natives Land Act: “Redistribution of land is not a new principle. It appears in African’s Claims. It goes even further back – right to the Land Act of 1913. The distribution of land which was then made was regarded as unfair and has been so regarded throughout.”

ANC policy had hitherto favoured the abolition of the Natives Land Act. About dividing up the land among those who work it. Enabling all to own the land. The African’s Claims is a case in point. Point 7 of the Bill of Rights for Africans stated: “The right to own, buy, hire or lease and occupy land and all other forms of immovable as well as movable property, and the repeal of restrictions on this right in the Native Land Act, the Native Trust and Land Act, the Natives (Urban Areas) Act and the Natives Laws Amendment Act.”

Yet none had explained how the land will be acquired by the state to enable non-racial ownership. Matthews could have been the first to point to “expropriation” of land as the mode of land acquisition for distribution: “I think the state would have to use wide powers of expropriation. Experience shows that depending on people’s willingness to sell is not sufficient.” But who would be faced with expropriation: “We would expropriate absentee landlords and give both white and b1ack farmers an opportunity or having their own land.” Matthews was also clear that compensation would have to be paid, although he would not expatiate on the methodology for calculation.

Expropriation of land for wider distribution, accordingly seems to have been part of official policy since the days of the Charter. But the abolition of private land ownership as such was not. It was the nationalization of mines and banks that became policy.

The Charter’s vision – as expropriation of land and its subdivision – is now embedded in section 25 of the Constitution, which has become a contentious clause recently. But it should never have been a contentious clause, if only its intention was enforced and implemented. The three most important parts to the section are in clause 25(5), 25(6) and 25(7).

They contain the explicit constitutional mandate for the fundamental transformation of the colonial and apartheid land relations. Section 25(5) is the section which requires the state to take steps to ensure access to land, by all on an equitable basis. Section 25(6) entitles everyone to tenure which is legally secure. And section 25(7) is the constitutional basis for land restitution in relation to persons who lost land rights after 19 June 1913.

The great debate of our times, of course, is whether there should be expropriation without compensation, explicitly provided for in the basic law of the country, the Constitution. It is necessary to frame the question this way, because on a fair reading of the provisions in section 25(2), expropriation is part of the structure of the Constitution.

Despite early contestation, the ultimate constitutional deal was that no one should be entitled to market based compensation standards. The basis for any compensation is justice and equity. Quite obviously, sometimes justice and equity will require no compensation at all. One can think of many contexts in which this will be the case. Some are already contained in the draft Expropriation Bill, 2020.

Many more will be developed as the law matures in this area. The main point is that the debate on whether the Constitution prohibits expropriation with nil or no or without compensation is a moot one. It does. Nothing material is to be gained by asserting that this ought to be made more explicit than is already provided for.

At any rate, it is an illusion to think that a constitutional text can ever close the debate on whether a clause provides or does not provide for something. For good reasons, constitutional texts must be open ended to accommodate social, political and economic changes as they occur. We do not have a stale or static version of a Constitution. Ours is a living document. It evolves as society evolves. Hence it is always better to anchor it on an inexact phrase such as justice and equity.

If the debate on expropriate without compensation is a stale one, what should we focus on? In a sense the answers are obvious. We should divide this up between the legislative and executive or administration programme.

Starting with the administration, we have pending claims under the restitution programme, which    were submitted before December 1998. These need resolution. We also have pending claims submitted before March 2001 for labour tenants. These too need attention. There are also farm allocation applications in relation to land held by the state. The allocations should be adjudicated and implemented.

We know the problems here: often the criteria for who benefits are unclear. The process is unclear. The rentals are not collected. Farms with occupants are granted to new persons. All of these are administrative problems plainly capable of resolution. This is obviously not enough. Some attention must be given to the legislative programme.

The Expropriation Bill is a promising start. The key features of the Bill resemble the apartheid statute by the same name passed in 1975. In fact for the most part, the two statutes read exactly the same. It is only in the sections dealing with compensation that some significant differences can be seen. I think, however that the main constraint of the Bill is its location and focus in the Department of Public Works – it is still about obtaining land for the needs of the state. Its utility for larger land reforms, in the public interest seems limited.

This is a legacy problem, and it appears that very little thought has been given to how the mandate of that Act can be expanded to include the Department that is responsible for land. The land affairs department simply does not have a statute to enable it to expropriate land. The only circumstance where the department may expropriate land is in the restitution context, and even there, the claim should be uncontested, or should have been proven.

So despite the potential for the Expropriation Bill, significant constraints remain. If the intention to enable the department of land affairs to expropriate land for redistribution, it is clear that the Expropriation Bill should be amended to make this clear or the Restitution Act should be amended to grant the department of land affairs original powers of expropriation outside the context of restitution.

The legislation which gives effect to land redistribution has not been introduced, for the past 27 years. It is clear that the country needs it. It is not enough merely to speak of a land redistribution Bill – here this was the exact formulation of the discussions leading to the Charter.

What we need is a fundamental recalibration of the priorities. We have focused too much on historical claims to restoration of particular pieces of land, to specific persons or communities who can prove dispossession after 19 June 1913. The problems in the implementation of restitution are now well known.

Many claimants accepted cash compensation, rather than restoration of land. In some of those cases, restoration was not feasible because of the change in the land use over time. But even where restoration was possible, claimants still chose cash settlement. Some of these are now back in the queues for RDP houses, their need for land remains despite the fact that they are counted in the statistics as settled claims. So the process might look good on paper, but it is not changing people’s lives on the ground.

The problem of landlessness is clear.

In 2013, the state conducted a land audit. The former Director General of the Department of Land Affairs, Mr Mdu Shabane reported that their results showed that “some 14% is registered State land and 4% recently surveyed State land, while 79% is in private hands. Of this 79%, a significant percentage is owned by private individuals, companies and trusts. We are unable to identify foreign ownership because the system does not provide for that analysis.” (1)

A later audit, conducted in 2017 showed that “whites own 26m ha or 72% of the total 37m ha farms and agricultural holdings by individual landowners; followed by Coloured at 5,371,383 ha or 15%, Indians at 2,031,790 ha or 5%, Africans at 1,314,873 ha or 4%, other at 1,271,562 ha or 3%, and co-owners at 425,537 ha or 1%.”

The gender figures are equally depressing. “Individual males own 26,202,689 ha or 72% of the total farms and agricultural holdings owned by individual owners; followed by females at 4,871,013 or 13%. Male-female own 3,970,315 ha or 11%, co-owners 655,242 ha or 2%, and other 1,379,029 ha or 3%.” (2)

The outcomes of this audit were disputed by the Institute of Race Relations. Its main claim was that the methodology did not account for restituted land or land acquired through the redistribution programme. If that land was added, it argued, a “far more balanced picture” would emerge (3). Yet, there are two problems with the IRR’s argument. The overwhelming majority of restitution claims are not individual claims, they are claims involving large numbers of people.

Adding those claims to the figures hardly changes the picture of individual claims. Further, urban restitution claims have tended to be settled by financial compensation, rather than resettlement.(4)

Accounting for these simply changes the “entry” into the land balance sheet, but hardly places lands in the hands of the claimants. The stubborn reality, that land ownership patterns still reflect a bias in favour of white owners.

We do not need to place land in the hands of the state. Many successful restitution claimants will simply not accept any proposal which seeks to take away the little land rights they have. What they want is greater protection by the state and from the state, not less protection.

They are entitled to more secure tenure, not less secure tenure. The promise of the Charter is to subdivide the land to the people who need it, not to give it to ownership and control of state officials.

The policy and legislative work which is necessary is impossible without institutions. At the moment these institutions are weak, paralysed and dysfunctional. We need to build them up.

We need to fund them. We need to protect them from attacks. We need fill the vacancies. The Land Court Bill is a necessary piece of legislation. If there has been a lesson from the last 10 years it has been the necessity of maintaining a strong judicial arm to protect the Constitution, to protect rights and to enforce transformation.

We should change and break the silos between land and housing. Many young people need houses. They use the language of land. But they are talking about houses. They want land for residential reasons, for commercial reasons. But they need it. We are unable to break this silo because the department of housing is not engaged in the debate on land expropriation.

The Charter’s primary promise was that South Africa belongs to all who live in it, black and white. Does South Africa in fact belong to all, when Africans are locked out of ownership of land?

The Charter is a document of its day. A product of its drafters. Yet it remains relevant as a guide for the future. We should, however, answer today’s questions using it as a guide not in a prescriptive, inflexible and dogmatic fashion. We should let it flourish in our daily experiences.

The Charter is a reminder that what we should never do is allow our freedoms to be taken away from us.

Long live the Freedom Charter.