THE LAND QUESTION IN SOUTH AFRICA

DR MOTSOKO PHEKO
A Lecture At Thabo Mbeki African Leadership Institute, 22nd November 2018, Senate House Hall, 2nd Floor –Theo van Wyk Building, University Of South Africa Main Campus, Pretoria
Mr. Chairman, Ladies and Gentlemen, It is an honour for me to speak to you at this important Thabo Mbeki African Leadership Institute.
Let me start by saying that life must be lived forward. But it can only be understood backward. As that Roman philosopher (Marcus Tillius) Cicero put it many years ago, “To remain ignorant of things before you were born is to remain a child.”
For his part Dr. John Henrik Clarke, an African American professor of history has written, “History is a clock that tells a people their historical time of the day. It is a compass that people use to locate where they have been, where they are now…more importantly where they still must go.”
Indeed, our own Dr. Muziwakhe Anthony Lembede that great philosopher and awakener of the African youth of his generation has written, “One who wants to create a future must not forget the past.”
An African proverb itself long said: “When you fall, do not look where you fell, look where you slipped.” Many people with regard to this country preach the gospel of “Forget the Past.” But where their own issues are involved, they not only remember the past, but they commemorate it.

In July 2014 I watched on Television rather painfully when all European leaders met to commemorate the 100th anniversary of what they call First World War. I did not see any African leaders invited to this commemoration.
This is despite that in South Africa alone 83,000 Africans were reportedly recruited for this European war. This was a very high number when it is considered that the African population was not what it is today.
Here in South Africa, on one occasion alone we lost 600 soldiers. This was the 5th Battalion. They died when the SS Mendi Ship sank on 21 February 1917.This was after it collided with SS Darro ship behind the front lines in France.
I think the practice of dealing with symptoms in a national liberation struggle and taking them for the disease itself will destroy Africans in this country. Effects of a problem must not be confused with the cause from where they come. Causes of a problem must be identified and correct thinking applied to the problem. For instance, nobody in this country and in the world heard of the word “apartheid” until colonial Prime Minister Daniel F. Malan coined this word in 1948. This word meant racism. Racism however, was there also in Kenya, Rhodesia, Nyasaland, Congo and other African countries that were colonised.
Fundamentally, the problem of South Africa was never apartheid or racial separation. Africans in this country got into the colonial situation when their land dispossession was consolidated at the Berlin General Conference in 1885. That Conference was critical for European colonisation of Africa and looting the riches of the people of this country and of Africa continentally.
The only country that escaped the agenda of European colonisation was Ethiopia. This was because of that glorious victory of the Battle of Adwa on 1st March 1896. It was led among others by Empress Taitu wife of Emperor Menelik II of Ethiopia.
The Berlin General Conference sat from 14 November 1884 to 25 February 1885.It was well organised against Africa. It is the longest imperialist conference in history scheming against Africa.
In its opening it heard King Leopold II of Belgium who was its Chairman saying: “We are here to see how we should divide among ourselves this magnificent African cake.” At the end of that conference, through the Berlin General Act of 26 February 1885, “the magnificent African cake” had become, “French Africa,” “Spanish Africa,” “Portuguese Africa,” “Italian Africa,” “German Africa,” “Belgian Africa,” and “British Africa.” This Act formalised the colonial stealing and robbery of the African countries. South Africa became part of the British “magnificent African cake.”
Despite the inferior spears against superior colonial guns however, there were many wars of national resistance against colonial land dispossession by Africans in this country. Some of the men who led these wars were Kings: Hintsa, Cetshwayo, Moshoeshoe, Sekhukhuni, Makado and many others.
The British colonisers of this country resorted to consolidating their political power. A colonial South Africa was formed through the Union of South Africa Act 1909. Four years later in 1913, the Native Land Act 1913 was passed. Colonial settlers whose population was 349,837 grabbed 93% of the country for themselves.
Africans were then over five million people. But as a result of their colonisation by Britain; they were allocated 7% of their own land in what was called “Native Reserves” for cheap labour mainly in the gold mines. In 1936, six percent was added to this, through the Native Trust Land Act 1936.
It is important to mention that as a result of the Native Land Act 1913, five men who had been among the founders of the South African Native National Congress (SANNC) went to London. They went to complain about the colonial land dispossession of the African people. These African leaders were Dr. John L. Dube, Sol Plaatje, the Rev. Walter Rubusana, Thomas Mapikela and Saul Msane.
On the 20th of July 1914, they presented a petition on behalf of their people here. It was not about racism or apartheid. The petition was presented to King George V of England. Among other things, it read, “That the natives (indigenous African owners of this country) be put in possession of land in proportion to their numbers and on the same conditions as the white race.”
This petition achieved nothing except the sympathy of a London daily newspaper. It reported, “In carving out estates for themselves in Africa, the white races have shown little regard for the claims of the black man [African].
They have expropriated his land and have taken away his economic power and freedom and have left him worse than they found him…the blacks compared with whites are in proportion of four to one, but are in legal occupation of one fifteenth of their land…the delegation of natives now in England has appealed to the imperial government for protection.”
There are some people in this country who accused those who raised the land issue strongly, especially from 6th April 1959 of being “racists” or “anti-white.” They are wrong. Equitable redistribution of land in this country is a matter of justice, truth, morality and African national survival.
Let me illustrate this point by quoting a few British humanitarians. Seventeen years after the Union of South Africa was formed, Sir Thomas Farewell Buxton of the Anti-Slavery Society said:
“My attention has been drawn to the wickedness of our proceedings as a nation towards countries of natives we seize [by military force]. We have usurped their lands and enslaved them. Their greatest crime is the LAND of their forefathers.” (Sir Thomas Fare Buxton Edited Memoirs, London 1926)
Another British humanitarian William Ellis, made reference to…“especially seizing the land of the people whose country we may colonise and the expulsion of, or annihilation of its rightful possessors. It has been our custom to go to a country, and because we were stronger than the inhabitants [militarily] take and retain their possession of the country to which we had no claim, but to which they had inalienable right….This is the principle that can never be acted upon without insult and offence to the Almighty, the Common Parent of the human family.” (British Parliamentary 1836 Page 680)
These humanitarians were not imagining things. They had facts at their disposal. In 1894 Glen Grey a British official in South Africa had just fifteen years before the formation of the Union of South Africa which excluded Africans, said:
“The Natives (Africans) are generally looked upon by Whites as an inferior race, whose interests must be systematically disregarded when they come into competition with their own and should be governed with a view to the advantage of the superior race. For this reason two things must be afforded to white colonists, LAND…the Kaffir population should be made to furnish, as large and cheap a supply of labour as possible.”
Another colonial settler who the British government had honoured as Sir Andries Stockenstrom made the position of the colonialists in the African country as clear as day light. He declared, “The question of robbing Africans of their land is not whether it is right or wrong to plunder, massacre and exterminate the Hottentots, the Kaffirs…the simple question is will it pay?
If the Bible and the missionary stand in the way of this one thousand percent return…if in short, they cannot promote the great work of converting a nation of shop-keepers into a nation of millionaires…gun powder will produce a more efficient gospel for the purpose of our system of civilisation.” (Human And Reason page 77 Piet Retief, Cape Town and Pretoria)
It is important to note that these two men had been honoured by the British government as “Sirs.”
For his part S.G. Strydom the prime minister of the day as late as 1953; seven years before the Sharpeville Uprising on 21st March 1960 led by the Pan Africanist Congress, said:
“Our policy is that the Europeans must stand their ground and must remain Baas in South Africa….Our view is that in every sphere, the European must retain the right to rule the country and to keep it white man’s country.”
EMPTY LAND THEORY
Colonialists have tried every trick to permanently take this land from the people they seized by force of arms. The colonial apartheid Prime Minister Hendrik F. Verwoerd told an audience in London while visiting there in 1961 that: “More than 300 years ago, two population groups equally foreign to South Africa converged in rather small numbers on what was practically empty land. Neither group colonised, nor robbed the other by invasion.”
His foreign minister Eric Louw had in 1959 in London also claimed, “The Bantu began to trek from the North across Limpopo when Jan van Riebeeck landed at Table Bay in 1652.”
As late as the 16th of February 2012 Mr. Pieter Muller then a leader of the National Party Plus and Minister of Agriculture in a supposedly “New South Africa” said, “The Bantu-speaking people moved from the Equator down south while the white people moved from the Cape to meet each other at the Kei River.”
He says Africans never in the past lived in the whole of South Africa. He has not disclosed that one of the earliest wars against Portuguese colonial invaders in this country was fought in 1510. This was at the Battle of Salt River. The Khoi Africans with a section of their Xhosa-speaking African allies won this war.
Prof. Shula Marks, a British academic has found that “The earliest dates we have for the Iron Age in South Africa go back to 1200 years before the Portuguese rounded the Southern tip of the Continent of Africa.” This will be about 286 A.D. But when it is considered that there were some European passers through this country earlier than the Portuguese, like Bartholomew Dias; the date is much earlier.
In fact, addressing a symposium on ancient mining in South Africa, in October 1973, Prof. Revil Mason then head of archaeology department of Witwatersrand University, pointed out that “the early iron age African entered Polokwane between 1500 and 2000 years ago.” This further puts the occupation of this part of the country by Africans between 27 B.C. and 473 A.D. (James Evans, “Apartheid As Idolatry” In Christianity and Crisis 14 December 1981)
Indeed, the historical and legal fact is that this African country when colonised was not “terra nullius” (empty land). It was not “res nullius” (ownerless belonging to nobody). It was not “filius nullius” (occupied by people without rights).
Jus cogens, a fundamental and overriding principle of international law involving justice, did not exclude this country merely because colonial barbarism was inflicted upon its people. Indeed, for Africans in this country, colonialism reached a dilapidated level of idolatry. Its practitioners created a false myth of “supremacy” through which they turned themselves into demigods to be worshipped.
Tricks To Confuse Africans In South Africa
**** South Africa is the only African country that Britain colonised, but never returned to its colonised owners. The other fifteen African countries which Britain colonised, achieved their independence dating from Ghana (Gold Coast) on 6 March 1957 to Zimbabwe (Southern Rhodesia) on 18th April 1980.
In South Africa Britain seized this country by force of arms. It later handed it to its colonial settlers on 20th September 1909. They are the ones that now became negotiators with the Africans in CODESA in 1993. That is why on the land question in South Africa, the issue of African land dispossession was so wrongly handled in the present constitution.
South Africa was never a state in international law. Article 4 of The Union of South Africa Act 1909 clearly states, “The Union shall have full power and authority within the limits of the colonies….
Article 6 provides that, “The Colonies mentioned in Section 4 shall become original provinces of the Cape of Good Hope, Natal, Transvaal and Orange Free State, as the case may be. The original provinces shall have the same limits as the respective colonies at the establishment of the Union.”
The legal language is very clear. There is no national sovereignty created here or decolonisation of the colonised Africans.
It must not be forgotten also that South Africa illegally declared itself a “Republic” after it was heavily criticised and boycotted by the whole world for the Sharpeville Massacre. This had resulted from the Sharpeville Uprising led by the Pan Africanist Congress (PAC) on 21st March 1960 under Dr. Mangaliso Robert Sobukwe. This “Republic” was illegally declared on the 31st of May 1961 by rebels such as Hendrik Verwoerd.
Britain never suppressed this unilateral declaration of “independence” which was in law a coup d’etat, just as it did not suppress Ian Smith rebellion in Rhodesia (now Zimbabwe) on 11th November 1965.
Article 8 of the Union of South Africa Act 1909 vested the Executive Government of the Union in the King of United Kingdom of Great Britain and not in the colonial Governor-General or state President. Only the King through the British Parliament could change this constitutional arrangement.
There was never any such change and all the archives of the world can be searched in vain for an instrument of independence for South Africa from Britain.
Yet I have read of even learned lawyers like Prof. John Dugard advance the false theory that because South Africa was a member of the League of Nations as well as of the United Nations; this was evidence that South Africa had become a state in international law.
This absence of decolonisation in this country by Britain consolidated colonialism through which the African country was expropriated by European colonisers. That is why the policy that must now be implemented on the land question is repossession, return or restoration of land to its rightful owners; according to population numbers which include the Europeans who consider themselves Africans.
African magnanimity/Ubuntu/Botho demands this. Africans have never driven any human beings to the sea, until they drove themselves there. It is European colonial settlers who expropriated African land from Africans. All that must be done now is justice.
It is not surprising that G. Fitchard who was a member of the colonial parliament in South Africa in 1910 is on record as telling his colonial colleagues, “If we are to deal with the natives (Africans) in this country then according to population numbers we should give them four fifths of the country.” (Sol Plaatje, Native Life In South Africa pages 339-340)
T.I. Schreiner, another MP (Tembuland) in the colonial South African Parliament said he had heard much about this [South Africa] being turned into “a white man’s country.” He contended this was impossible. “Because before we sat foot here the natives (Africans) were here – the aborigines were here. We did not bring it about; it was brought about by a Higher Power.” (Union of South Africa, House of Assembly Debates, First Session, First Parliament 1910-1911)
Of course, South Africa from the very beginning was not only colonial, but racist. During the debate on the Union of South Africa Bill 1909, White settlers with the consent of Britain argued that “It was not the English way to rule whites as subject [colonial] people.” (Article 34 of Union of South Africa Act 1909)
This law was passed by the British Parliament. South Africa (Azania) is an African country. Britain, deceitfully and treacherously called it a “dominion.” This was to hide the truth .All other British colonies in Africa ruled by white colonialists were called “colonies.”
Inferior Education For African Minds
***Colonialists have desperately tried every trick to permanently dispossess Africans of their country. One of these tricks was to deny them proper education. They called it “Bantu Education.” It has not been assessed how much damage “Bantu Education” did on the minds of the colonised people of this country.
But let me say a bit about it because Africans need more knowledge and self-reliance than all the foreign “aid” in this world. When speaking about education for Africans under the Bantu Education Act 1953, Verwoerd then a colonial minister of native affairs (Africans)’said, “There is no place for him
[ the African] in the European community above the level of certain forms of labour. What is the use of teaching the Bantu child mathematics when he cannot use it in practice?”
For his part the South African colonial minister of native education speaking in the Senate on 7th June 1954 said “…education has served to create a class of educated and semi-educated natives which learnt to believe that it is above its own people and feels that, its spiritual, economic and political home is among the civilised community in South Africa.”
To what extent did this kind of thinking influence some negotiators who dealt with section 25 of the South African Constitution? Did they regard themselves as “superiors?” talking to “inferiors?” Was this like a treaty between unequal partners? If so, this would be a violation of jus cogens, a fundamental and overriding principle of international law which upholds norms such as justice, as unchangeable and cannot be violated.
Nemo Dat Quod Non Habet
***For those who contest the African sovereign possession or legal ownership of this country after it was colonised, here is a principle of international law. It is called nemo dat quod non habet. It means that no one but the property owner can give title. A valid legal title according to this principle of the law of nations can be held only by its legal owner. Property seized by force or stolen from its legal owner has no valid title. This includes stolen land or colonially grabbed country.
The principle of nemo dat quod non habet was made clear in the Island of Palmas Case. The title was about territory. This case was heard before the Permanent Court of Arbitration in 1928. In that case Judge Max Hubert stated: “It is an established fact of international law that if a state transferred a territory, the legality of international law of transfer depends on the title it holds. If it is defective, the title of the state to which the territory is transferred or ceded will be vitiated by the same defect. Again the Latin Maxim is nemo dat quod non habet.”
In this country governments of African kings and queens were overthrown by colonialists. These African rulers were the governing authority. The colonial disobedience to them was a violation of a Biblical teaching in Romans 13:1 and in many other parts of the Bible. It reads: “Let every person be subject to the governing authority. For there is no authority except from God;”
Colonialists preached this to Africans immediately after they had replaced the legal African rulers with their illegal colonial governments. This was a colossal abuse of Christianity
This was also an unlawful act according to principles of international law. The territorial title was never lost to Africans, so was their sovereignty when it was usurped.
Nemo dat quod non habet applies also to first occupier of land. The first occupier has a good title against a later arrival.
G.F. Martens a noted international law jurist was right when he wrote, “From the moment a nation has taken possession of a territory in right of first occupier, and with the design to establish itself there, for the future, it becomes the absolute and sole proprietor of it and all that it contains, and has the right to exclude other nations.”(The Law Of Nations 4th Edition 1829 page 67)
In fact, South Africa which had been through mutilation of history and manipulation of international law; paraded as a state by a colonial power was finally exposed and expelled from the United Nations General Assembly.
About this, Prof. Tom Lodge has written, “In November 1974, the Pan Africanist Congress (PAC) succeeded in obtaining the expulsion of South Africa from the United Nations General Assembly and in July 1975 the OAU adopted as official policy a long document prepared by the PAC arguing for the illegality of South Africa’s status.” (Tom Lodge Black Politics In South Africa Since 1945)
No foreign power has ever had any right to transfer this country from its owners to anyone. To do so would be a violation of the norm of jus cogens.
For those who dispute the pre-colonial African ownership of this country, the doctrine of pacta tertiis nec nocent nec prosunt is applicable here. It means that all agreements made between Britain and the colonial settlers excluding Africans, could not have any valid legal title to land. Colonialism was illegal and remains illegal.
Here are a few examples to illustrate this point:
a. The Chinese territory of Macao was seized and occupied by the Portuguese in 1549.The colonial power settled its own inhabitants and claimed this territory as its own. The Peoples Republic of China later challenged this colonial and illegal claim by the Portuguese in the International Court. It won that case. Portugal was ordered to return Macao to China in 1999.
b. In 1842 Britain seized Hong Kong, a territory of China as its own. The Peoples Republic of China challenged this colonial and illegal seizure of its property by Britain. It successfully won the court case. Britain was ordered to return Hong Kong to the Peoples’ Republic of China by 1997.
On 18th September 1931 Japan illegally seized by force, a Chinese territory of Manchuria and renamed it Manchukuo. Japan was ordered to return Manchuria to China in 1945. This country (Azania) named South Africa on 20th September 1909 to fight the “native danger” is the only country in the world which colonial invaders never returned to its owners.
The Rev. Sefako Makgatho who was President of the 1912 ANC in 1916 was right when he said, “We ask for no special favours from the [colonial] government. This is the land of our forefathers.”
Section 25 of the South African Constitution
***The South African Constitution has consolidated the land dispossession of the African people in this country. It states that those who took this land from Africans colonially and illegally must be “compensated.” There is no human consideration that those whose whole country was expropriated by colonialists from them were never compensated. Twelve million of them today live in genocide poverty. This genocide was planned long time ago.
How They Doubled Malaria Area For Africans
“Near the northern boundaries of Transvaal (Limpopo), there lies a stretch of malaria country in which nothing can live unless born there,” Sol Plaatje, the first Secretary of the 1912 ANC has recorded. “Man and beasts from other parts, visit it only in winter and leave it again, when the atmosphere becomes almost too poisonous to inhale….”
Plaatje continues, “When the [Native] Land Commission contemplated this ‘salubrious’ region, their hearts must have melted with generosity, for whereas in our own healthy part of South Africa, they have indicated possible native areas by little dots or microscopal rings…here, in this malaria area, they marked off a reserve almost as wide as that described by General Hertzog himself at our meeting in Pretoria.
It is possibly in this way and in such places, that the commission is alleged to have ‘doubled’ the native (African) areas. In the rest of the country they ask [the colonial] parliament to confiscate our birthright, the soil of our ancestors in favour of 600,000 Boers and aliens whose languages can show no synonym for home – the English equivalent to Ikhaya, Legae.”(Ibid pages 357-358)
Section 25 Of The South African Constitution
Subsection 7 of Section 25 of the South Africa Constitution, in particular is extremely inhuman and illogical. In fact, “willing seller and willing buyer” as this constitution stipulates, has become an unmitigated disaster. The rich colonial dispossessors inflated the price of land that was colonially expropriated from the colonially dispossessed Africans.
I disagree with a statement that a Member of Parliament made in parliament on 17 February 2005. It reads, “…80 years after the adoption of the Land Act, we entered into a historic compromise. According to that covenant, we entered in exchange that we would abandon all claims to the land that the African majority lost before 1913[87%] as a result of violent colonial dispossession.” This M.P. said the purpose of this “compromise” was to “buy peace for our people.”
The statement concluded, “…we will continue to insist that the land question must be dealt with in a manner that is consistent with the constitution.”
This constitution on land perpetuates colonialism and continues economic exploitation and domination of the land robbed African people.
I hold that ownership of land and its riches is the foundation for genuine nationhood and sovereignty. There can be no true nationhood and sovereignty where a colonial situation was handled unjustly and fraudulently. It is important that this young generation and the coming generations of this great country on this great continent; know these facts.
I agree fully with Frantz Fanon that fighter for true liberation; when he says, “Each generation in its relative nebulosity must discover its vision, and then fulfil it or betray it.”
Let us walk the JUSTICE PATH not the path of GREED, SELFISHNESS AND INHUMANITY.
Let us secure true peace and stability for our country and prosperous future for our children through equitable distribution of this land and its economic resources. Let us not forget the African petition on land to King George V of Britain on 20th July 1914 “That the natives be put in possession of land in proportion to their numbers and on the same condition as the white races.” This was over 100 years ago. Since then, there have been slogans here such as “Mayibuye iAfrika” “Izwe Lethu iAfrika.”
I THINK PRINCE MAQOMA WAS RIGHT WHEN HE SAID, “WE ARE OUR LAND. WE CANNOT GIVE UP. WE CANNOT REST. WITHOUT LAND WE CANNOT BE.”HE WAS IMPRISONED IN ROBBEN ISLAND IN 1859. HE DIED THERE IN 1873.
TIKO RA HINA!

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