Dispossession and access to land in South Africa: an African perspective, by Michael A. Yanou, Bamenda, Cameroon, Langaa Publishers, 2009, 144 pp., £19.95 (paperback), ISBN 9789956558766
From a specifically juridical analytical perspective, Michael Yanou's book represents an important contribution to the debate over struggles to access land by communities in South Africa previously dispossessed during the centuries of colonialism and apartheid. The work begins by exploring the origins of the Western concept of private property encapsulated in the Lockean dictum ‘I own, thus I am’, a philosophical interpretation of being and identity as inextricably linked to forms of property which represents one of the core themes of political liberalism. Then, focusing on the Cape region, Yanou traces the historical trajectories of land dispossession by means of military conquest, fraud, bribery and legal measures. Although without parallel on the continent, it would be an analytical mistake to understand the process of dispossession experienced in South Africa in terms of a homogeneous and definitive, ‘once and for all’ process. It had a complex character displaying uneven features in geographical and historical terms, and producing different forms of struggle and resistance.
One of the distinctive features of this book is the way it explores the character of the different perceptions and visions of tenure in Africa. Africans did not conceive land as a tradable commodity. With regard to land concessions made by Nguni chiefs in the face of Boer demands, Yanou argues that what was given was only a concession of usufruct rights and never the complete sale of land. He thus makes the case that land in these contexts was taken by fraud. The establishment and codification of the principle of terra nullius pushed further the increasing and incessant demand for land by migrant settler communities. This assumption, based on the idea of emptiness manufactured as a pre-condition of European expansion and colonial conquest, denied the existence of any indigenous claim or entitlement to land. After a synthetic sketch of the forms of dispossession, the author focuses on the laws and norms used to entrench and legitimise previous acts of dispossession. The Native Land Act of 1913, the Group Areas Act of the 1950s and the Bantustan Regional Act, Yanou argues, translate into law the European pretension of an absolute claim to African lands which denies the existence of any legitimate indigenous pretension to that land. These acts, which represented the fulcrum of state intervention, sanctioned spatial segregation through the creation of specific racial institutions, aimed at alienating African rights to own land.
While the systematic negation of legal rights to land characterised colonial and apartheid epochs, the recent democratic dispensation, encapsulated in the South African constitution, opens up the legal and political space to alter this legacy. This is the legal and political context within which Yanou deploys his thesis, specifically, that South Africa's constitution has a marked progressive and rehabilitative role given its concern with redistribution and restitution of land to racially dispossessed South African people. However, he takes issue with two sets of questions regarding the implementation of the restitution process: the monetary compensation or market price paid to white landowners to return land to South African communities; and the timeline of 1913 used to trace entitlements to land. Yanou is openly critical of any compensation in the form of payment for what he regards as land taken away from Africans. This attitude, inscribed in the Land Reform and Restitution Acts and articulated in the practice of land reform policies, is in compliance with reassessing white claims to African lands rather than affirming the priority of African title on that land. Second, stipulating a timeframe within which to assess the extent of dispossession represents in his view a way of silencing the much longer history of colonial land dispossession which started in 1652. Government officials speak of the difficulties of retracing the exact lines of demarcations and borders within and between different communities. The author argues for the feasibility of such an option, as some court orders have in fact established, identifying claims to pieces of land through reconstituting written and oral memories, archival records and testimonies. The fact that this procedure is not implemented reflects the lack of political will in recognising African indigenous land titles. Taking as instructive examples some courts' deliberations in juridical cases between landowners and African communities, on an individual and collective stance, Yanou argues that the success obtained by some communities in reaffirming land entitlements through juridical means deserves consideration. Indeed the advancement of struggles within the sphere of the juridical is a concrete sign of the articulation of the struggles at different levels for present and future land rights. The failure to systematically adopt this approach is, in the opinion of the author, a consequence of the prevalence of conservative interpretations of the constitution by white judges who are consciously reluctant to implement such a course.
The book effectively underlines the conflictual nature of the articulation of different pieces of legislation and norms into practice. However Yanou fails to expand beyond his juridical and institutional understanding of conflict. It seems that the book misses the linkages between the juridical transition and the overall contradictory nature of the political, social and economic transition. In this sense the constitution is taken for granted and not problematised in terms of the complexities of the social and political forces which shaped its principles and meanings, nor in terms of historical conjunctures and politico-economic compromises. The South African sociologist Lungile Ntsebeza argues that the recognition and protection of property rights, through the property clause within the constitution, are the main factors undermining the redistribution and restitution process in land reform and consolidating privileged interests. However this understanding, in turn, confounds causes with consequences. Protecting property rights in the name of democracy and reconciliation is not a cause per se but rather a consequence of the establishment of an elite pact which drove the transition towards a neoliberal capitalist framework where class interests, both black and white, could be promoted, in disregard of the interests of the majority of landless and smallholders, men and women, as can be seen from the evident failure of land reform objectives in the country.