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Why Dikgang Moseneke Is Wrong On Land Expropriation

Featured image (Rand Daily Mail): The big question is, was Dikgang Moseneke correct to argue that the Constitution as it is provides for adequate mechanism to address the land question?


By Andile Mngxitama


There is panic within the ranks of those who have benefited from both colonialism and apartheid. This is so because the black majority is increasingly saying enough is enough, we want our land back by any means necessary. These beneficiaries of land theft are now desperately hanging onto the words of the Head of the Constitutional Court, Deputy Chief Justice (DCJ) Dikgang Moseneke, who towards the end of 2014, suggested in public lectures that the Constitution as it is makes provisions for the resolution of the  land question through expropriation. To his credit Moseneke didn’t say, “land expropriation without compensation” but this has not deterred defenders of the current land ownership structure to try and hide behind Moseneke’s indications and vilify the call for land occupation by blacks.


Recently the Mosenke argument has been making its rounds in social media again. But the big question is, was Moseneke correct to argue that the Constitution as it is provides for adequate mechanism to address the land question? Our response is that Mosenke was fundamentally wrong and to this end had forgotten to review land matters already decided by the Constitutional Court including his own judgement in a case brought before him by white land owners who lost land in Zimbabwe. His decision in the latter mentioned case including his decision in a restitution case where he had to determine compensation shows the dangers of the Constitution and how it entrenches land theft by settlers.


It is evident that the black majority, who were rendered landless by both colonialism and apartheid, is fast losing patience with the political compromise of 1994 which in turn is institutionalized “reconciliation without justice”. This finds expression in the Constitution, in particular Section 25 or the property clause thereof. Mass rage threatens to tear apart the constitutional dispensation which has to date solely served white interests. In this situation those who stand to lose from a “take back the land” process  outside of the constitutional liberal frame work are desperate to reconstitute the legitimacy of the Constitution by misrepresentation and an exaggeration of its actual virtues. Moseneke has inadvertently assisted their course a great deal in the remarks he made, not in court, but in a public lecture.


One of the defenders of the Constitution, in the face of its fundamental questioning, is Dr Richard Pithouse who often masquerades as radical philosopher of the oppressed. He is accused off course by the same oppressed for many transgressions against the people including the recent claims that he is using his power over the Mellon scholarship at Rhodes University to coerce converts into his brand of liberalism. He was earlier also accused of dragging the social movement of the shack dwellers (Abahlali baseMjondolo) into voting for the racist experts of brutal evictions of the poor, the Democratic Alliance (DA), in the last general election.


Pithouse conveniently latched onto the words of Moseneke to critique supposed crude critics of the Constitution. Writing in the beginning of last year, Pithouse reminded his readers of Moseneke, ” (h)e (Moseneke) spoke about the centrality of the land question to the struggle against apartheid and argued that, contrary to much of the bluster that often surrounds the issue of land, the constitution does allow for expropriation and does not make land reform impossible”.


There is no argument whether the Constitution provides for expropriation, because it does. The argument turns on the question of whether it is morally, politically and economically just to pay any compensation for land that was stolen from blacks? This is an important question because the Constitution is clear that any expropriation must be accompanied by “just and equitable compensation”. These two questions, Moseneke didn’t address head on in his celebrated defense of the Constitution, He didn’t deal with the central question of whose land is this? We argue that if he did move from this premise he would have great difficulty arguing for expropriation with compensation.


Moseneke went on at his lecture to ” … slaughter a few shibboleths”. In this direction he said, ” (t)he Constitution does not protect property it merely protects an owner against arbitrary deprivation. Deprivation that is not arbitrary is permissible. The property clause does not carry the phrase: “willing buyer: willing seller” which is often blamed for an inadequate resolution of the land question. The state’s power to expropriate does not depend on the willingness of the land owner. The compensation may be agreed but if not, a court must fix it. The compensation must be just and equitable and not necessarily the market value of the land. Market price is but one of five criteria the Constitution lists for a court to set fair compensation.”


Moseneke then lamented the slow progress made in redistributing land. Since the coming into being of the “democratic” SA only about 8% of the land has been returned at a great price. Moseneke blames the state and almost invites the landless to bring the matter to his court, because “(i)n 20 years our Court has not resolved even one case of land expropriation under the property clause by government for a public purpose. Similarly, in the same time the courts have never been called upon to give meaning to the property clause in the context of land expropriation or to decide on what is a just and equitable compensation”.


Moseneke seems to have allowed himself to be carried away in a public lecture, consequently, he over promised on what is possible within the constitutional dispensation. He omitted significant lessons on what the practice has been here and in international jurisprudence, more so, in liberal constitutional societies.


Those who criticize the property clause base their critique essentially on “compensation”. Moseneke is in a bit of ideological quagmire when he says, “(t)he Constitution does not protect property it merely protects an owner against arbitrary deprivation.” First and foremost, land dispossession was arbitrary, so why is land redress not governed by the same principle? Moseneke’s main problem is that he accepts colonial land thieves as legitimate holders of land. Hence he presents the property clause protection of the “owner against arbitrary deprivation” as legitimate. Had he moved from a proper decolonization perspective, he would have called for a wholesale return of land to the rightful owners, being the black people.


What is just and equitable compensation?


The whole argument of paying for stolen property turns on the phrase “just and equitable compensation”.  Contrary to the long list of “non market” elements of compensation listed in Section 25, we know that in the final analysis,“just and equitable compensation” is determined by the market value of the land. To this end, our courts (including the Constitutional court) have strongly indicated how it sees the matter and unfortunately its not a charitable reading for the landless.


It must be stated that the courts have historically been disappointing in interpreting compensation in these circumstances. Let us take three examples to illustrate this point:


Firstly,  Judge Geldenhys in the Land Claims Court tried to give interpretation to the clause “just and equitable compensation” and came to some complicated calculation that claims to take into consideration the same long list of considerations repeated in the Expropriation Bill. He however did not solve the problem.


Recently, Moseneke, has decided to rely on “inflation” to calculate compensation for those who have lost property and who are beneficiaries of the restitution process. Moseneke’s determination is open to the accusation of abetting racism because white land owners are never confronted with valuation of their property based on the Consumer Price Index (CPI). It is an established principle that property is not evaluated on the CPI. So, as to what then was the thinking behind this weird logic, only God knows!


The third firm indication that the phrase “just and equitable compensation” within the current framework would  mean “market value” was expressed in the Zimbabwean land expropriation matter which was first decided by the SADC Tribunal and then ultimately decided by the South African Constitutional Court. In this case DCJ Moseneke led the bench in concluding that compensation must be paid whenever there is expropriation. This led to a judgement which effectively foreclosed the property of the Zimbabwean state so as to pay compensation to the white farmer who lost property in Zimbabwe.


Moseneke may have forgotten that a few matters had already been brought before his Court and he had not taken the opportunity to clarify if indeed compensation can be anything other than market value. Also, surely the Zimbabwean land matter had provided enough scope to canvass the idea of whether we Africans should at all pay compensation when we take back our stolen land. Well, Moseneke found in that matter that Afrikans must pay compensation. To this end he gave whites, who lost land in Zimbabwe, the relief of attaching the property of the Zimbabwean Government in SA so as to pay them (whites) for stolen land.


Moseneke’s philosophy of land and law does not recognize the original sin of land theft by whites and therefore makes his whole reasoning rely on anti black assumptions. Properly conceived, Section 25 of the Constitution is the cornerstone of “reconciliation without justice” and as such cannot be used as a tool of decolonization. The only real solution to the land question is not nice legalism, but the forceful taking back of the land without paying a cent for it so as to end the more than three hundred and fifty years of humiliation and landlessness.




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