The Case for Retaining the Cutoff Date for Land Restitution Claims (Section 25 (7) of the Constitution)

Section 25 (7) of the Constitution established the right of individuals and communities who were deprived of property after 19 June 1913, as a result of past racial laws, to either restitution of their property or equitable redress.

It is now being debated whether the cutoff date is appropriate or whether it was a compromise made in 1994 which should now be rescinded if sufficient support can be found in Parliament. At present, the ANC would need the co-operation of other parties to muster two thirds of the votes necessary for a constitutional amendment. The EFF has already promised to make its supporters available for such a move.

Historical research has demonstrated that many actions depriving people of property before 1913 were illegal at the time and that many more were morally repugnant from to-day's perspectives.  Any deontological (rights based) defense of the cutoff date must fail, though it is far from clear where such an argument would end up if the date were removed.

This leaves a utilitarian question to be answered. From the perspective of South Africa as a whole, each citizen counting for one, would the benefits of removing the cutoff date outweigh the costs?  We think the costs would outweigh the benefits for the following reasons:

The innovation of the 1913 Land Act was to import the principle of segregation into South Africa's land law.  However, the facts on the ground had been established in large measure before that, principally by the conquests and annexations of the nineteenth century. It is sometimes possible to re-open what was done in the nineteenth century[1] in terms of rights of occupation, but there has been much voluntary movement[2] between then and now.

From the 1840s on, the two colonies and the two Boer republics had to wrestle with the problem of conceptualizing and legislating different forms of land tenure.  Each territory took a different path, which explains why land scheduled for Black African (‘Native', in the terminology of the time) by the 1913 Land Act was much more extensive in the Cape and Natal than in the Transvaal and Orange Free State. 

However, by the first decade of the twentieth century, key concepts and a threefold division of land by tenure[3] had emerged.  The basis of tribal tenure had been codified and its geographical extent more or less precisely determined.  Freehold and quit rent tenure (converted in the 1930s to freehold) had been established.  The remaining land was Crown (later state) land. 

Two points are important to note here.  The first is that the conceptual development and legislation were undertaken by colonial and republican administrations with the capacity to develop law through common law, by statute and precedent.  It can be studied using documentary evidence. 

By contrast, the understanding of property by Black people depended on orally transmitted custom and can only be reconstructed with a considerable degree of uncertainty, especially given the increasing interaction between black settlement and colonial and republican administrations over more than a century prior to 1913.

It would be very difficult to reconstruct pristine customary law before annexations, though it is perfectly possible to develop such law from where it is now.   There may have often been no common conception of land tenure among parties to treaties, land settlement agreements and the like in the nineteenth century and before. 

The second is that the state conceptualization and legislation in force immediately prior to the 1913 Land Act forms the basis for working out what is meant by the restitution of property in the post-1994 period.  To try and get behind this conceptualization is to risk unravelling the basis on which post-apartheid restitutions have been made.

Even if one could get past the difficulties above, further problems would emerge.  For instance, King Goodwill Zwelithini and the Ingonyama Trust are reported to be preparing a land claim based on the land under Zulu control in 1838.  Were the cutoff date to be removed, the Land Claims Commission would be obliged to consider such a claim.  But how would they deal with the fact that the kingdom established by Kings Shaka and Dingane was itself the consequence of conquest and displacement?  An infinite regress develops.

Despite all the difficulties, suppose, for the sake of argument, the King's and the Trust's claim could be established and successfully defended against other claimants.   Restitution of land would, at least for large swathes, be impracticable and so the question of other equitable redress would have to be considered. 

But how would the quantum be determined?  Loss of tribute? Land rents, augmented by development undertaken by people who (mistakenly, as it would turn out) believed that they owned the land?  And might the security of tenure of households living in tribal areas be prejudiced?  People have legal protection against eviction,[4]protection which has been strengthened since 1994. 

There is an object known to geometry as the Klein Bottle. The interesting feature of the Klein Bottle is that you cannot orient yourself on it.  You may start at a point you think is on the outside and move along the surface only to find that you are on the inside, and vice versa.  There is, in fact, no inside and outside, unlike ordinary bottles.  In the end, the justification for the cutoff date in Section 25(7) is that it keeps  the state from the perplexities of the Klein Bottle, the society from dangerous escalation of conflict and the economy from massive uncertainty and dislocation.

The utilitarian conclusion?  Leave Section 25(7) alone and concentrate attention instead on the current challenge of increasing pro-poor growth.

Charles Simkins is Senior Researcher, Helen Suzman Foundation.

NOTES

[1] See, for instance the Alexkor case, Constitutional Court 2003

[2] Urbanization is an important process of this kind

[3] With subdivisions which need not concern us here

[4] The trouble with land transfers, complained a homeland politician in the apartheid years, is that when they give you a blanket, they also give you the lice on it.

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