Segregation Land Law and Post-apartheid Land
Reform in South Africa
Michael Robertson BA, LLB, LLM (Natal), LLM (Warwick)
Submitted in fulfilment of the requirements of the degree of
Doctor of Philosophy (by Publication)
Faculty of Law, Griffith University
June, 1997
Table of Contents
Introduction
Declaration
Chronological list ofpublications
ix
X
History and background
Pre-apartheid land control
chapter 1
Race and legal control
chapter 2
Apartheid land law
Rural land controls
chapter 3
Urban land controls
chapter 4
Overview of apartheid land law in the 1980's
chapter 5
Reform: issues and emerging options
Issues and options in the 1980's
chapter 6
The land debate (1): principles and process
chapter 7
The land debate (2): Freedom Charter and beyond
chapter 8
Property and human rights
chapter 9
Pre-democracy reform
Developments in 1989
chapter 10
Developments in 1990
chapter 11
Post-apartheid land reform
Land and reconstruction
chapter 12
i
Introduction
Scope of the work and sequence of material
The published worksl and additional work2 deal with the following topics and
themes under the subject of apartheid land law and reform:• The legal historical antecedents of racial segregation land law;
• The development of modern apartheid land legislation from 1910 to the
1980's;
• A descriptive model to explain the complexities of apartheid land law as it
existed by 1990;
• An analysis and discussion of the major issues for post-apartheid land reform,
and the dilemmas inherent in the choices;
• An examination and critique of the land-related claims in the predominant
political manifesto of the major liberation movement (the Freedom Charter of
the African National Congress);
• A critique of land reform solutions proposed by prominent social scientists in
South Africa;
• An assessment of developments in land affairs in the period immediately
prior to the advent of rapid political change from about 1991 until the
elections in 1994;
• An appraisal of the issues and themes in South African land reform from a
comparative perspective, with particular emphasis on land reform in Latin
America;
• An analysis of post-apartheid land reform to date, with emphasis on (1) the
role of law in land reform and (2) the role of land in social reconstruction.
None of these publications was co-authored. All the chapters in this submission (chapters 1-12)
are the author's own original work.
1
2
As stipulated in candidate's enrolment application and incorporated in chapter 12 below.
ii
Relevance and contribution of each publication
ExplanatonJ note: The paragraph numbers below correspond with the chapter
numbers in the table of contents. (The numbers in square brackets at the end of
each paragraph - e.g. "[1]" - correspond with the marginal numbers in the
chronological list of publications. 3 )
1. This, the first publication4 in the area of black land title, provides an overview
of legal and historical developments from the beginnings of white colonial
settlement until the passing of the Native Trust and Land Act of 1936 (a
significant law which was to endure until the late 1980's). The article describes
some of the basic elements of pre-colonial native title; examines the early history
of land dispossession through conquest and treaties; and chronicles the ways in
which legislative interventions, by the various colonial powers, emasculated
traditional patterns of land holding. The article pays particular attention to preUnion legal developments in the various colonies such as the reserve system,
and the major contribution of the first Union parliament, the Natives Land Act of
1913. (Like the 1936 Act this was to be one of the centrepieces of legislation
affecting black title.) The central principles of the Act, in its original form, are
examined. [1]
3
At p. x below.
As far as I am aware this was the first article of its kind in a South African legal journal. It was
written at a time when most South African legal academics simply ignored the legal and social
history of apartheid. There were notable exceptions such as the late Professors AS Mathews and
Barend van Niekerk (both of whom taught this writer at the University of Natal); and Professor
John Dugard. A few years after this piece was published the writer approached the then editor
of the South African Law Journal about the possibility of contributing an article on the human
rights dimensions of apartheid land law. Professor Ellison Kahn replied that the topic was not
sufficiently relevant for the Journal's readership. Less than ten years later the question of land,
rights, restitution and social justice was one of the most significant issues in the transformation
to democracy. See, e.g., chapter 12 below.
4
iii
2. This chapters provides a general introduction to the main laws of apartheid,
as they had been formulated by the early 1980's. It summarises the various ways
in which black persons were disqualified from being equal participants in the
South African society and economy. The chapter shows how restrictions upon
land ownership, access, and movement were part of a larger policy framework
in which constitutional factors
(such as the
development of internal
"independent states") played a significant role; and the extent to which these
restrictions, and apartheid as a whole, depended upon the system of race
classification for their efficacy. [2]
3.
This chapter• was the writer's first attempt to provide a "black letter"
description of the complexities of apartheid land law, drawing together the
numerous statutes and delegated legislative instruments which prescribed black
land rights and disqualifications. It was the first- and for some years only - piece
of its kind in the legal literature and has been referred to in a number of
publications since its publication in 1987.7 There is a separate focus upon, firstly,
the specific legal regime which existed by the 1980's in respect of rural black
people, and the various legal devices employed (Acts, regulations, and delegated
powers through government notices) to ensure that access to land was severely
circumscribed. Secondly, an attempt is made to catalogue the array of legislation
used by the apartheid system to permit only temporary settlement of black
people in the white-control urban domains. [3]
4. This chapter examines a particular shift in government policy with regard to
the content and style of control exercised over black persons seeking to settle in
areas (the urban areas) where work opportunities were more likely to be
available. "Influx control" and the pass law system had always been one of the
5
In a book containing a collection of essays by apartheid critics from a number of disciplines.
6
Which appears in a book which was the first of its kind in South Africa. See Chronological List of
Publications.
7
For example, Legal Resources Centre The New Land Laws of South Africa (1992), Durban.
iv
central controlling devices of apartheid but in the latter part of the 1980's the
state appeared to be moving away from the strict doctrine which was crystallised
in the 1940's.s The chapter seeks to unravel the complexities of various Acts
which, taken together, sought to impose restrictions on persons regarded either
as "insiders", or "outsiders" from a constitutional perspective. Attention is also
drawn to the existence and possible impact of laws which, although racially
neutral, would be likely to discriminate against black persons by virtue of their
inherent class bias. The state was seeking to give emphasis to certain
urbanization control measures which, taken to their logical conclusion, would
have great impact upon the ability of persons to acquire title to land in urban
areas of their choice. [4]
5. This chapter appears in a book, published by Oxford University Press, which
examines the practice of forced removals from land under the apartheid system.
The author was requested specifically to provide a chapter which would set out,
as clearly as possible, the main features of the system of racial land control as it
existed in South Africa by 1990. It contains, to some extent, a reiteration of some
of the explanations provided in earlier pieces, but is updated to take account of
then-recent legislative changes. It also seeks to devise a coherent descriptive
model of the system of apartheid land law, including the operation of the Group
Areas Act" (a law which, paradoxically, had far less to do with controls on black
people than the primary and delegated legislation considered in other
publications). The chapter also contains an introduction to some of the legal
constitutional dimensions which had serious implications for persons deemed
not to be part of South Africa as such, but members of a constitutional enclave.
[6]
s See also chapter 2,108-111.
9
Group Areas legislation was introduced in chapter 2 at 112.
v
6. This article 10, in the Columbia Human Rights Law Review, originated in a paper
delivered at an international conference on South Africa in New York. This is the
first piece in this list of publications which seeks deliberately to anticipate some
of the political, social, economic and legal issues which stood in the way of land
refonn in a post-apartheid society. The article considers various problems such as
the constitutional one (relating to the system of constitutional separate
development) and poses questions about the justice dimensions of land reform.
For example, do the demands of distributive justice have implications for
agricultural production? The article attempts also to identify the inevitable
dilemmas inherent in making future policy choices, as well as various models of
reform involving affirmative action and nationalisation of land. [5]
7. This article, which the author was requested to write for the South African
Journal on Human Rights, sought to enter the wider, socio-political debate about
the importance and meaning of land reform. The article, also published a few
years before the reform era began, contains a critique of two other articles by
prominent apartheid critics which were published in the same volume of the
Journal. 11 Building upon some of the understandings which are evident in the
previous publication, the article seeks to draw attention to the possible
deficiencies of land reform arguments which failed to recognise or acknowledge
the likely importance of law and lawyers in achieving chosen social objectives.
This article, therefore, contains the seeds of the tension between land reform
(concerned with restitution, redistribution and social justice) and legal values.
One of the claims of the article is that post-apartheid reform would need to keep
faith with constitutionalism and due process. This was not a view which held
to The article was researched and written some two years before the de Klerk government
indicated its willingness to reform the apartheid system, and before the land reform issue
became the matter of public debate which it did soon thereafter. Its relevance is demonstrated in
the fact that it correctly identified some of the major future issues in land reform. This is evident
from a comparison between this piece and the analysis of issues, dilemmas and choices in the
actual reform process in chapter 12.
11
One of those writers has subsequently become a member of the South African cabinet.
vi
much currency amongst anti-apartheid reformers at the time, but which was
vindicated in the years to come. 12 [7]
8. The principal task of this chapter was to contextualise and give a meaning to a
paragraph in the Freedom Charter which deals with political demands in relation
to the place and function of land in post-colonial South African society. The
Charter was formulated by the African National Congress13 in the 1950's and
served as its leading political manifesto during the time of the organisation's
exile. Banned or restricted for many years, the document became politically
significant in the immediate pre-reform era. The book in which the chapter
appears contains a collection of essays from writers in various disciplines who
were requested to analyse the then contemporary relevance (in 1990) of the
Charter. Building upon previous insights into the history, legacy, problems and
dilemmas surrounding the land and title issue, the chapter examines possible
"solutions" to the land problem. In particular, the article considers a possible
return to pre-colonial tenure systems or, alternatively, an imposed land
programme based upon socialist objectives. The chapter also notes other possible
approaches to land reform as depicted in contemporary texts and writings.
Certain tentative suggestions are made about the likely meaning of the demands
of the African National Congress in the 1990's, as contained in the Freedom
Charter. [8]
9. This short chapter locates the South African land rights issue within the
context of international human rights standards. It seeks briefly to examine the
meaning of Article 17 of the Universal Declaration of Human Rights and the
relevance of the Article in a changing South Africa. The absence of rigid private
property protections in international instruments is discussed, as well as the
circumstances in which persons might ordinarily be deprived of property,
including land. This is also considered within the South African context. The
12
See chapter 12, and the discussion about the role of law in post-apartheid land reform.
vii
chapter notes, finally, the extent to which Article 17 has been violated under the
apartheid system. [9]
10. The next two chapters monitor land related developments in the final years
of apartheid, when the system was increasingly showing signs of strain. The first
ten pages of this chapter reproduce the descriptive model employed in an earlier
publication14 and should be ignored for the purpose of this submission. 1s In the
second half of the chapter16 the events of 1989 are noted. An explanation is
offered of developments in black areas outside the bantustans, the 'nonindependent' bantustans, the 'TBVC' countries, black townships in whitecontrolled urban areas, and new urban townships and settlements. The chapter
places these developments in the broader legal context (being the beginning of a
short period in which the apartheid government sought to introduce some
reforms) and notes also the emergence of a relatively progressive report on land
reform by the government-controlled South African Law Commission. [10]
11. This chapter examines specifically the political and social context of possible
heightened reform following President de Klerk's speech to Parliament on 2
February 1990, which marked the beginning of the end of the apartheid era. In
particular, the mid-year Cabinet decision to abolish the Land Acts is examined,
together with the considerable response to the government's emerging land
reform proposals. The chapter goes on to examine, against the background of
probable reform, the future of certain rural communities whose plight was
increasingly being highlighted. The chapter ends with reference to the ongoing
debate about land reform, and the recently-published Draft Bill of Rights of the
African National Congress, being the latest substantive contribution to the land
reform issue. These proposals are discussed by reference also to Article 14 of the
13
The ANC easily won the first democratic elections in 1994.
14
As set out in chapter 5.
15
However, the pages are included here for the sake of completeness.
16
Beginning at 181.
viii
then West German Constitution and Article 16 of the Namibian Constitution,
which had recently come into existence. [11]
The additional work
12. The final chapter examines the beginnings of the land reform era in South
Africa, following the election of the first democratic government in 1994. The
chapter seeks in particular to examine the role of land in social reconstruction
against a background of tensions between social justice and legal values. (An
abridged version of this chapter will be published in 1998 in Law and Land:
11wmes and Perspectives (Oxford), edited by S Bright and J Dewar.17) This chapter
contains the following elements: (1) a critical examination of land reform
developments in the period immediately prior to the elections;ts (2) an
examination of developments after the elections and up to February 1997; (3) a
comparative perspective on the dominant themes and issues by reference to
Latin American reform; (4) an assessment of the role of law in the reform
process;19 and (5) an appraisal of the emerging perception of the social role of
land in the process of reconstruction. [12]
Michael Robertson
May1997
17 It is not, however, a requirement of the relevant Ph.D. rules that this additional work be
published.
18
The period following the developments covered in chapters 10 and 11.
19
This aspect was raised in earlier pieces, most notably in chapter 7.
ix
Declaration
This work has not previously been submitted for a degree or a diploma in any
university. To the best of my knowledge and belief, the thesis contains no material
previously published or written by another person except where due reference is made
in the thesis itself.
Acknowledgment
The assistance of my supervisors, Professors John Dewar and Stephen Parker, is
gratefully acknowledged.
Michael Robertson
June 1997
X
Chronological list ofpublications
(Ph.D. submission: MK Robertson)
I.
"Land Law in South Africa unti11936" (1985) Natal University Law Review 81.
2.
"Legal Obstacles to Black Advancement" in R Smollan (ed) Obstacles to Black
Advancement in South Africa, 1986, (Macmillan) 104.
3.
"Black land tenure: disabilities and some rights" in A J Rycroft et al (eds) Race and
the Law in South Africa, 1987, (Juta) 119.
4.
"'Orderly urbanization': the new influx control" in A J Rycroft et al (eds) Race and
the Law in South Africa, 1987, (Juta) 107.
5.
"Land Reform: South African Options" (1989) 21 Columbia Human Rights Law
Review 193.
6.
''Dividing the Land: an Introduction to Apartheid Land Law" in C Murray and C
O'Reagan (eds) No Place to Rest: Forced Removals and the Law in South Aji·ica,
1990, (Oxford) 122.
7.
"Land and Rights in South Africa" (1990) 6 South African Journal on Human
Rights 215.
8.
''Dimensions of the Land Issue" in N Steytler (ed) The Freedom Charter and
Beyond: Founding Principles for a Democratic South African Legal Order, 1991,
(Wyvern) 136.
9.
"The Right to Own Property" in M K Robertson (ed) Human Rights for South
Africans, 1991, (Oxford) 116.
10.
"Land and Race" in M K Robertson (ed) Vall (1991) South African Human Rights
and Labour Law Yearbook (Oxford) 171.
11.
''Rural Land Issues" in M K Robertson (ed) Vol 2 (1992) South African Human
Rights and Labour Law Yearbook (Oxford) 240.
12.
[Forthcoming] "Land and Reconstruction in South Africa" in S Bright and J Dewar
(eds) Lmv and Land: Themes and Perspectives, 1998, (Oxford).