Property, Social Justice and Citizenship: Property Law in Post-Apartheid South Africa

• Jurisdiction: South Africa
• Author: A J van der Walt
• Date: 27 May 2019
• Citation: (2008) 19 Stell LR 325
• Published date: 27 May 2019
• Pages: 325-346

325

ProPerty, social justice and

citizenshiP: ProPerty law in Post-

aPartheid south africa

A J van der Walt

B Iur Honns (BA) LLM LLD

South African Research Chair in Property Law, Stellenbosch University*

1 Introduction

This article exami nes the question whether property law can and should

foster democrat ic forms of governanc e, advance social just ice, promote citi-

zenship a nd build sustainable and supportive communities.1 The question is

particularly relevant in post-apartheid South Africa , since apartheid land law

worked in ex actly the opposite direction. “Grand apartheid”2 underm ined

what would nor mally b e considered democratic forms of governance and

citizenship because it institut ionalised discriminatory and socially divisive

and destructive agricultural and urban land use policies and management

systems, the reby causing or exacerbat ing overcrowding, social displacement

and e conomic marginalisat ion.3 At the same time, the discriminator y land-

use and – management laws and practice s of “ petty apartheid” systematically

destroyed any possibility of foste ring social just ice, good citizenship and

* Hosted by Stellenb osch University, f unded by the Department of Science and Tech nology and adm inis-

tered by the National Resear ch Foundation. This article for ms part of a larger research project on proper ty

theory which was made possible by fina ncial assist ance from the Nationa l Research Foundation ( NRF

grant n umber GUN 2050532) and Stelle nbosch Universit y. The views set out i n the ar ticle are t hose of

the author and shou ld not be attribute d to any of these institu tions. Thanks t o Gustav Muller and Zsa-Z sa

Temmers for resea rch assistance.

1 A s horter version of th e article was pres ented at a confere nce entitled “Prop erty in Compa rative

Perspective” pre sented by the Department of Law, University of Durha m and the Center on Property Law,

Citizenshi p and Social E ntrepreneur ship, Syracus e University C ollege of Law, at Du rham Castle, 18-19

July 2007. The quest ion whether proper ty can serve th ese goals was posed t o speakers at the co nference.

For purp oses of the article I read the term “pr operty” widely to refe r to prope rty theo ries, inst itutions,

rules and pr actices.

2 This ter m is used to desc ribe t he macro level of apar theid lan d law, which desig nated s pecific areas

of the countr y as so-called “homelands” for sp ecific Bla ck Afr ican tr ibal or national groups. Four of

these “homelan ds” became “indepe ndent” and exercised a meas ure of self-rule prior to 1994, ie Transkei ,

Bophuthatswa na, Venda and Ciskei (so-cal led “TBVC countries”). G rand apartheid is u sually contras ted

with “pe tty apar theid”, which refer s to the reservation of residential areas as well as public and private

facilities within “white” S outh Afr ica for exclu sive use and occupat ion by ce rtain r ace group s. See i n

general Van der Walt “Towards the Developme nt of Post-Apartheid Land Law: An Ex ploratory Sur vey”

1990 (23) De Jure 1-45 and sourc es referred to the re.

3 Several contribut ions in Cross & Ha ines (eds) Towards Freehold: Options for Land and Developmen t in

South Afri ca’s Black Rural Areas (1988) disc uss the disast rous effects of t he so-called a gricultur al “bet-

terment ” schemes and simi lar land pract ices and the lin k between apar theid land law and ove rcrowding.

In urban a reas, the esta blishment of separ ate “township s” for Black, Coloured and Indian resid ents (like

Soweto, a n acronym for “Sou th Western Townships”, a n area southwest of Johannesbu rg reser ved for

urban reside ntial use by Blacks) outs ide the white urba n areas resulte d in overcrowding, ba d urban plan-

ning, imme nse transpor t problems and high le vels of pollution. See the sou rces referred t o in n 4 below.

(2008) 19 Stell LR 325

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the buildi ng of sustainable and supportive com munities .4 The advent of the

post-1994 democratic dispensation i n South Africa and the concom itant con-

stitutional directives to erad icate the legacy of apartheid and to promote the

values of human dignity, equality and f reedom5 pre sent a felicitous opportun ity

to ask whet her the post-1994 political, constitut ional and so cial dispensation

can reverse the legacy of apa rtheid by, among other things, fostering demo-

cratic for ms of governance a nd citizenship and advancing social ju stice and

the building of sustai nable and supportive commu nities.

It would be impossible to undertake a full analysis of all the aspects involved

in this question in an article of limited scope. A comprehensive analysis would

require discussion of issues such as the tension between security of vested

property interests, economic development and post-apa rtheid land reform;6 the

implications for effective land reform of pr omoting econom ic development;7

restitution of dispossessed property as a prerequisite for promoting social

4 One merely needs to reflect upon the dest ruction of rural com munities throug h the migrant labour system

on the one hand and overc rowding on the othe r; see i n this regard Van der Merwe “Not Slaver y but a

Gentle Stimul us: Labour-Inducing L egislation in the Sout h African Republ ic” 1989 TSAR 353; as well as

the contribution s in Cross & Hai nes (eds) Tow ards Freehold. Another vivid example is the forced re movals

(3,5 mill ion people between 1960 and 1983) that we re intende d to “cle an up” and consol idate raci ally

segregated ar eas; these mass evictio ns destroyed establi shed and vibrant urba n communities like Di strict

Six (Cape Town) and Sophiatown (Johannesb urg) and left millions of Black South Afr icans displaced and

homeless. See in gener al Schoombee “Group Are as Legislation – The Political Co ntrol of Ownership and

Occupation of Land” 1985 Acta Ju ridica 77; Pla tzky & Walker The Surplus People: Forced Removals

in South Af rica (1985). More speci fically on the destruction of District Si x and Sophiatow n see Matter a

Memory is t he Weapon (1987); Rassool Dist rict Six: Lest we Forget – Recaptur ing Subjugated Hi stories

of Cape Town (1897-1956) (2000); Themba Requiem for Sophiat own (2006). A more su btle but no less

destruc tive process was the legal red efinition of segregate d land r ights unde r aparthe id that l eft Black

land users a nd occupiers open to a rbitrary evic tions and forced remova ls; see in this regar d Van der Walt

1990 De Jure 1-45; Van d er Walt “Prop erty Rig hts and Hierarchies of Power: A Critical Eval uation of

Land-Reform Poli cy in South Africa” 1999 (64) Koe rs 259 and sources r eferred to there.

5 Constitution of the R epublic of South Afr ica, 1996 ss 1, 7(1), read with ss 8(3), 39. In the so- called ‘post-

amble’ of the interim 1993 Constitut ion the obligat ion to tra nsform South African society and its laws,

as an integ ral part of t he new democrat ic dispensatio n, was made even clearer. As far as property law is

concerned , the obligation to tr ansform is embod ied in s 25; see the discus sion below.

6 The link between econ omic development and secur ity is often claimed but has not yet bee n demonstrated

adequately in the lit erature. An example of the argument in favour of such a link was forwarded by

the (white) agricultu ral societ y, Agri SA, claiming that th e state’s land reform interventions in pr ivate

landowners hip caused uncer tainty and af fected the econo my unfavourably, espec ially in terms of la bour

and food securit y: Bosman “Grondteike ns Moet Ander Doelwitte in Ag Neem” Landbouwee kblad (2005 -

11-11) 106. Thi s argume nt relies on what A lexander T he Global Debate ove r Constitu tional Prop erty:

Lessons for American Takings J urisprudenc e (2006) 24 et seq calls “the for malist trap”, de scribed at 24

as “the assumption or claim that w ithout constit utional prote ction, proper ty rights are unlikely to enjoy

the degree of sec urity and stabi lity that is necess ary for a properly fu nctioning libe ral democracy as well

as for an ef ficient f ree marke t economy.” Ale xander a rgues, w ith referen ce to Canada and India , that

constitut ional entren chment of pro perty is not a requi rement for a liberal de mocracy or for an effi cient

free m arket econo my. See fu rther Bhor at & Ka nbur (eds) Pov erty and Policy in Post-Aparth eid South

Africa (2006).

7 It is sometimes assu med that the two goal s are mutually exclus ive, but it has been arg ued that the const i-

tutional protection of propert y can si multaneously promote a transformat ive agenda: see Van der Walt

Constitut ional Property Law (20 05) 22-42; Van der Walt “Dancing with Codes – Protect ing, Developing,

Limiting a nd Deconstr ucting Prope rty Rights in the Constit utional State” 2001 SALJ 258; Van der Walt

“Strivi ng for the Be tter I nterpretat ion – A Cri tical Ref lection on the Constit utional Court’s Har ksen

and FNB D ecisions on the Prope rty Claus e” 2004 SA LJ 854. T he latter argument was accept ed by the

Constitut ional Court in Port Elizabeth Munici pality v Various Occupiers 2005 1 SA 217 (CC) paras 14-23.

See fu rther A lexander & Skąpska (eds) A Four th Way. Priv atization, Property, and the Emergence of

New Market Eco nomy (1994).

326 STELL LR 2008 3

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