ANALYSIS: Cynical reliance on Constitution biggest barrier to land reform

The cynical reliance on the Constitution to protect that which was unfairly gained in the past is one of the biggest obstacles to successful land reform in South Africa, says Advocate Tembeka Ngcukaitobi.

Ngcukaitobi was one of the speakers on a panel of authors and activists on land reform at the Open Book Festival taking place in Cape Town this week.

"White people who own land are selfish. They are the ones that are insistent that they should be paid at market value, when they know that the Constitution does not entitle them to market value," he said.

"The problem is that we have a cynical reliance on the Constitution to protect private property. They claim that they support the Constitution, but it is a defensive use of the Constitution, not a transformative use."

Another problem, according to Ngcukaitobi, is that the reason this cynical reliance on the Constitution is allowed is because we have a timid government that refuses to implement the Constitution.

"The government has always known that it doesn't have to pay market-related compensation, but time and time again it has done so. Why?"

Mandisa Shandu, co-director of the Ndifuna Ukwazi Law Centre, agreed that the biggest barrier to effective redistribution of land is the narrow ideological perspectives about the uses of land.

"The biggest thing we have realised around the land debate is that, while the process around the amendment of the Constitution has been crucial, our frustration is that there are various tools and obligations in place to unlock the potential of land and particularly state-owned land," she said.

"To change this, the biggest barrier is going to be the ideological mindshift that will have to be made about the use and purpose of land, because that is linked to who's in power."

Ngcukaitobi said the fact is that, although framed like that, the land debate is not a discussion about the Constitution. Rather, it's about nation building and what South Africa should look like.

"This is a moment to reconnect with the vision of 1994. I do think that, at an individual level, we all have a duty to contribute. Reconciliation was meant to be done through the TRC (Truth and Reconciliation Commission) method, but the TRC method did not have land as a term of reference – it had so-called injustices of the past, something intangible.

"The consequence of the TRC was that ultimately the intention was reconciliation, which is nation building, because out of the disclosure and the forgiveness there would be reconciliation. But by taking away land from the TRC we missed an opportunity because we did not bring dispossessor and dissposessed face to face."