Failures of Land Restitution and Possibilities for the Future

Advocate Tembeka Ngcukaitobi SC delivers the Dr Phyllis Naidoo lecture at UKZN’s Westville campus.

The struggle for freedom – first from British imperialism and later from apartheid, was a struggle for land.

These were the words of South African lawyer and author, Advocate Tembeka Ngcukaitobi SC, who delivered the Dr Phyllis Naidoo Memorial lecture at UKZN’s Westville campus.

More than 27 years after the new dispensation in South Africa, Ngcukaitobi said the dream for the return of the land has yet to be realised. ‘It has become a shattered dream. This is why a new reality is emerging – not controlled from the centre, but springing from the ground – asking the difficult question of the unfinished business of the revolution. Until and unless there is a confrontation with the negotiated settlement of the transitional period, it is impossible to speak of freedom, of equality, of dignity – values that we cherish.’

Ngcukaitobi reflected on land ownership patterns and government’s efforts to achieve land reform. ‘Not only has the land reform programme been a failure, it has also benefited a small, tiny White land-owning elite. Why then do we have a pro-poor legal and policy framework, but it is producing anti-poor outcomes? Why is the government spending so much money but achieving so little?

‘Much has been written about inefficient institutions, embedded corruption and elite capture, but the structure of land reform has received little attention,’ he said.

Ngcukaitobi looked at the main fixtures of the structure of land reform and revealed that the entire redistribution value chain of land is dominated and controlled by land owners. ‘Land owners have tended to act in their own interests, not the interests of the state or the beneficiaries of land reform.’

He said that the Constitutional Court has placed the blame for the slow pace of land reform at the foot of the state, highlighting the problem of state incapacity.

He cited institutional capacity, lack of skills, overlapping and conflicting claims, inconsistent monetary awards, sometimes insufficient resources, as well as chronic, systematic and endemic corruption as contributing factors. ‘Claimants are corrupt – I’ve seen many. Land owners are equally corrupt – I’ve also seen many. And the state is corrupt – that goes without saying.’

Ngcukaitobi refocused the discussion on the significance of the land restitution programme and those who benefit from it. ‘Land restitution gives dispossession a human face. And that is why a hundred years after the initial act of forced removals, families still celebrate their return to the land. In this sense, restitution is more than the material benefit from the productive use of the land. It is about memory, it is about the affirmation that Black people’s pain matters, it is about the restoration of lost historical identities.’

While delivering his address, Ngcukaitobi paid tribute to the irrepressible Dr Phyllis Naidoo, a lawyer and author who spent much of her life in the struggle against apartheid. ‘Phyllis’s life was made in the crucible of struggle – seeing herself as an oppressed racial group – not an immigrant from India. Her soul, her life was in this country. The country of her birth. The repertoire of love, of longing, of loss ran through her life. It was out of love that she engaged in the struggle for freedom.’

Deputy Vice-Chancellor for Research and Innovation Professor Mosa Moshabela remarked on the wealth of information in the University’s libraries and encouraged students to utilise the resources available on UKZN’s various campuses. ‘I’ve been struck by the richness and the wealth of information that we have on our campuses. As a former student of this University, I thought that I knew the libraries. It’s only now that I am truly discovering the treasure that we have in our collections.’

He implored academia, students and the extended University community to engage in discourses on topical issues ranging from the July unrests to the floods that affected KZN in order to ‘find solutions that are needed to solve our problems’.

‘We know that the problem of land is one that is burning in this country. It’s one that we if do not talk about it, if we do not resolve, it will be difficult for us to move forward. If we don’t resolve it, we will be letting down the generations to come,’ said Moshabela.

The Director of Library Services, Dr Nonhlanhla Ngcobo thanked everyone who helped make the lecture a success.

The Dr Phyllis Naidoo Memorial Lecture is hosted annually by the University of KwaZulu-Natal and the Gandhi-Luthuli Documentation Centre which houses the Phyllis Naidoo Special Collection.

To view the lecture, click here.

To read more about Dr Phyllis Naidoo, click here.

Words: Raylene Captain-Hasthibeer

Photograph: Albert Hirasen