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[1] Chapter One Land: history and perspectives ntroduction Land is a vital resource whose ownership and control have been the most contentious issue in South Africa since the arrival of the white man in the country. The early history of the country can, with some justification, be summed up as a gigantic struggle for land between the indigenous African peoples and white settlers.1 Indeed, (Budlender and Lasky 1990: 150) have observed that the struggle for access to land has always been a perennial problem in this country. This book explores the struggle over land between South Africans of African descent and those of European extractions in which the latter dispossessed the African of substantial portions of their ancestral land. Although the study is technically limited to dispossession that occurred on or after 19 June 1913, the book undertakes an overview of the colonialist’s quest for land in the country and the different methods adopted to accomplish this objective. The general discourse on European colonisation of the Cape by conquest is situated within the context of an attempt to get control over the natural resources of the region. This colonisation of land gives perspective to the subsequent dispossession of Africans during apartheid which is the single most critical tragedy of South Africa. The book analyses themes such as dispossession, the conceptualisation of access to land as a human right and access for the previously disadvantaged which are principal ideas underpinning the study. The post-apartheid conceptualisation of access to land as a human right is clearly a logical consequence of the massive dispossession of the ancestral land of Africans since the latter also raised significant human rights considerations. The property clauses of both the Interim Constitution2 enacted on the 6th of April 1994 and the final 1996 Constitution3 were, in the context of South Africa, revolutionary as they altered the entire normative landscape of property in the country. This author’s thesis is that the new property dispensation is geared towards two principal directions. Firstly, it constitutionalises the right of the dispossessed to access land and secondly that it predicates the basis for post-apartheid access to land on the need to ensure equitable redistribution of the country’s land between blacks and non-blacks. The book examines the property structures created by s 25 of the 1996 Constitution on the premise that the wholesale dispossession of I [2] Africans from their land dictates certain sensibilities in the construction of the property clause. This, in particular, requires that the tension between private property and public interest inherent in the above provision should be resolved such that will enhance the capacity of the dispossessed to access land. This requires a movement away from the perceived wisdom in the western world which according to (Ngugi 2004: 1) proceeds from the view that private property is key to efficient market performance and economic development. Though not a fully-fledged comparative study, the book, nevertheless, draws illuminating examples from appropriate foreign jurisdictions which have offered insights into the interpretation of the relevant property provisions of South Africa. The author makes his concluding remarks in chapter 8. This chapter which is a summary of the study, contains the author’s opinion on the central question of how the constitutionalisation of property has impacted on the dispossessed capacity to access land. Proceeding from the premise that decades of dispossession in South Africa inevitably led to an unsustainable lopsided distribution of land between whites, black and others, and the impoverishment of the blacks, the author calls for a revision of the constitutional Property Clause. The call is justified on the grounds that the country’s history has left the country with one of the most acute problems of landlessness in the world whose effect is being felt to this moment. Theoretical framework of the study This study raises the interesting link between access to land and human rights since the right to land in s 25 of the 1996 Constitution is amongst the bills of rights. Although Coke, Voltaire and Rousseau all speculated on natural rights from which human rights derived, the present discussion is however limited to a review of the analysis of John Locke. Both the idea of human rights and the right to property can rightly be said to take their form from Locke’s conception of the equality of man.( Locke 1948:4-6) believed that it was possible to identify the basic rights of man by imagining man in a depoliticised...

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