Dispossession and Access to Land in South Africa. An African Perspective: An African Perspective

Notes

[111] Notes 1 A publication of Human Awareness Programme (1989) Land in South Africa, Grantpark:1. 2 Constitution of the Republic of South Africa Act 200 of 1993. 3 Constitution of the Republic of South Africa Act 108 of 1996. 4 See s 25(6) of the 1996 Constitution. 5 See s 25(5) of the Constitution. 6 Robertson op cit at 323. 7 The Reconstruction and Development Programme Document paragraph 2.4.1. 8This is similar to what transpired in Bolivia, where the National Revolutionary Party (MNR) used the issue of access to land as a key political tool to get the support of the rural masses in the 1950s. Doner op cit at 132-3. 9 Robertson op cit at 323. 10 Human Rights Watch 2002 “Land Reform in the Twenty Years After Independence” Accessed September 2003. 11C F Fissy Power and Privilege in the Administration of Law: Land Law Reforms and Social Diffentiation in Cameroon Leiden Africa Studies Centre (1992) 1. 12 Indeed, land is in traditional African world-view seen as constituting one of the elements of nature hence open to all members of the community. C F Fissy loc cit. An African myth of creation puts man at the centre of the universe. This has been interpreted to suggest that the universe and its resources (land) were meant for man’s use. See J S Mbiti Introduction to African Religion London Heinemann (1997) 37-8. 13 See T Bennett ‘The Compatibility of African Customary Law and Human Rights’ (1991) Acta Juridica: 30. 14 Ibid. See also C F Fissy op cit at 6. Fissy cites an African chief who graphically regards “land as belonging to a vast family of which many are dead, few are living, and countless members are still unborn”. 15 Fissy op cit at 1and 6. 16 In Donoghue v Stevenson (1932) SC (HL) 31, for instance, the neighbourliness principle in the New Testament was cited as the basis for the principle of product liability. Most criminal offences e.g. murder, have their basis in the Ten Commandments in the Bible. See Keeton 1955: 111. The writer is also a Christian who believes in One True God and that Jesus Christ is the only messiah between man and God. 17 1995 (3) SA 391 (CC). 18 This system of tenure was characterised by the provision of access to land on the basis of need. 19 (2003) 12 BCLR 1301. 20 Davenport, T. H. R. (1978) South Africa A Modern History, London: The Macmillan Press Ltd 18. 21 Ibid. 22 It was the Company policy during the latter part of the seventeenth century to encourage white settlements. Although the Company was [112] essentially Dutch, it attracted staff and settlers from all over central Europe. See Davenport op cit at 19. 23 The European colonialists conquered the San and Khoikhoi of the Western Cape with comparative ease. These indigenous peoples were quickly decimated because of weaknesses in their social structures resulting from their pastoral economy. This type of economy necessitated constant nomadic movements with the inevitable absence of strong sociopolitical structures. Moleah op cit at 49. 24Harlow, V. T. (1963) ‘The British Occupations 1795-1806’, in Walker, E.A. et al The Cambridge History of the British Empire, Cambridge: Cambridge University Press 171. 25 Harlow op cit at 176. 26Opren, J. M. (1964) Reminiscences of life in South Africa 1846 to the present day, Cape Town: Shruk 117. 27 Ibid. 28 Ibid. 29 Duly op cit at 45. 30 Duly op cit at 46. 31 Opren op cit at 86. 32 Farms of over 5 miles square were sold for as little as 20 pounds. See Opren op cit at 86. 33 Opren op cit at 112. 34 Duly op cit at 86. There was a series of nine wars from 1778-1888 between an advancing European people and the natives in the Eastern Cape. The frontier wars as these wars were called were an attempt to conquer the natives and dispossessed them of their lands. These wars which were bloody provided white settlers the opportunity to extend their territory as far north as present day Lesotho and Zimbabwe. 35 Opren op cit at 56. 36 From 1913 to when the interim constitution was enacted. 37 Also called The Black Land Act 1913. Repealed by Abolition of Racially Based Land Measures Act 108 1991. 38 Miller and Pope op cit at 22. The Act of course had certain positive elements. It has been argued...