The Batswana case shows how complex the land issue is in South Africa

Limpopo Province, South Africa. Who owned this land?
Flickr/mifl68

Land expropriation, a hot topic in South Africa, has taken a new twist. Led by the governing ANC, the push is to now use the pre-colonial period as the reference date when deciding the land’s rightful owners.

Until now, the Natives Land Act of 1913 was considered the cutoff point. Going back further in history means all land that’s currently owned by white people (as much as 75% of the privately owned land in South Africa) could be claimed by black people whose forebears were unfairly dispossessed.

I regret to say that my fellow historians and I are unlikely to provide much clarity when policymakers must come up with reliable formulas regarding land claims. The pressure is on to redress injustices of the past, rightly so. The public discussion gaining in volume, however, has tended to oversimplify the question of who is entitled to claim. And that may create legal problems in future.

In practice, expropriation will not be a matter of deciding which land was seized in the past, but one of deciding which descendants of the dispossessed are entitled to it.

The example of Tswana communities of South Africa prior to 1800 presents some of the difficult questions that could arise when trying to right old wrongs.

Over the past 35 years I have studied the history of the Setswana-speaking people before and after white Dutch and English speaking people dispossessed them of land in the area roughly equivalent to the present Limpopo and North West provinces.

My research has taken me into early records found in government and missionary archives in Gaborone, Mochudi, Pretoria, Johannesburg, Cape Town, Harare and London. I’ve read many early 19th century travellers’ accounts and interviewed many knowledgeable elders.

Mobility and social fluidity

I have come to regard the richest sources of early Tswana history to be found in oral histories and maboko (self-praises). In particular they were recited by Tswana historians and written down between 1925 and 1968, both in South Africa and in Botswana (then the Bechuanaland Protectorate The bulk of these were recorded and translated by anthropologist Isaac Schapera, ethnographer Paul-Lenert Breutz and Vivien Ellenberger, a Bechuanaland administrator with an interest in Lete and Tlokwa history.

What the Tswana at that time remembered about their ancestors should perhaps be kept in mind when considering their past use of land. Briefly:

Most Tswana communities were mobile. With the exception of the Fokeng and the Mmatau Kwena, blessed with rich soils and abundant water, they shifted their capitals fairly regularly after a decade or so. Grazing and soils had played out, or water sources had dwindled, perhaps towns had turned foul (no drop toilets in those days).

Movement from place to place varied from short to longer distances. Certain areas (especially those with reliable water like Lindleyspoort) were occupied by different merafe (followers of a kgosi (king) over the space of a century or so.

Historians and archaeologists have linked some of their stonewall settlements to given groups. Yet, though the landscape occupied by early Batswana is strewn with stonewalling, connecting each of them firmly to historical merafe will be difficult.

We should also keep in mind that the make-up of Tswana communities changed over time. No Tswana morafe (singular of merafe) was homogeneous at any point. Each contained an assortment of old timers, newcomers and
groups of various ethnic identities or totems.

Some established new wards in a settlement (dikgoro, dikgotla), others abandoned them. Merafe that were independent at one point could at another become the subjects of an unrelated kgosi. A morafe might shed members who relocated to adopted new homes. In sum, Tswana communities changed their composition over time and shifted their locations, making it difficult if not impossible today to link a community or its constituent families to a particular piece of land.

That means that no particular family or group today can be linked exclusively to a particular piece of land.

Colonial intruders and dispossession

Even before disruptive intruders appeared, Tswana merafe were unsettled and jostling for relative power, for reasons not fully understood. Regional powers such as the Hurutshe were losing their grip and breaking up. Others such as the upstart Ngwaketse were expanding, absorbing others, borrowing cattle on the long term with no interest payable, and creating havoc.

Then came intruders such as Sebitwane’s Kololo (refugees from turmoil in the Orange Free State), Mzilikazi’s Ndebele (a break-out militarised entity from KwaZulu Natal)and in turn Potgieter’s Voortrekkers, Boers moving north from the Cape to escape British rule.

After being dispersed by Mzilikazi, many Tswana were returning to their old haunts when the Dutch-speaking Boers entered the scene and claimed much of the land between present day Zeerust and Pretoria for themselves. Though some Tswana collaborated with these Transvaal Boers as a way of accumulating wealth, they quickly learned that it meant accepting terms dictated by the Boer authorities.

Kgosi Kgamanyane Pilane.
National Heritage Monument, Pretoria

Some Tswana followed their leaders to resettle elsewhere (Bechuanaland, just across the Transvaal border, was a popular destination). For those who remained in the Transvaal, the best terms were had by those Tswana “kapiteins” who supplied the Boers with auxiliaries on commando raids for cattle and slaves on the fringes of the Zuid-Afrikaansche Republiek.

Among them was Kgosi Kgamanyane Pilane of the Kgatla Kgafela, whose own leboko boasts of his assistance to (and duplicity while under) the maburu (Boers), whom, incidentally, he despised. Before he too left with most of his followers for Bechuanaland, his people were crowded inside the boundaries of the farm Saulspoort (also known as Moruleng). Paul Kruger, then commandant, and later president of the Zuid-Afrikaansche Republiek, had sold its title to the Dutch Reformed Church missionary Henri Gonin.

Kgamanyane’s descendants fought with the British in the Transvaal during the Anglo-Boer War (1899-1902)stole thousands of Boer cattle, and later sold them to acquire more than 30 farms once owned by their tormentors. These private farms became known as the Saulspoort Location.

It well may be that archaeologists can assist some present descendants to identify their original, precolonial territories. The old Transvaal is strewn with stonewall settlements on privately owned farms, some of which have been clearly linked by oral histories and early travellers’ accounts, to Tswana groups related to modern, nearby settlements. One is the old Hurutshe town of Kaditshwene in Enselberg, established by ancestors of the residents in the nearby villages of Mokola and Lekubu (Braklaagte).

Whether this rocky hilltop site, if restored, can be rendered productive other than as a tourist destination is open to question.

At least in this case, however, there is a clear historical linkage between today’s South Africans and the land their ancestors used before whites appeared on the scene. Unfortunately, it is likely to be one of the few exceptions.

When weighing the available evidence about the pre-colonial Tswana, the major question is: should lands claimed by presumed descendants even be considered or should redress be attempted in some other way?

Fred Morton, Professor of History, University of Botswana

This article was originally published on The Conversation.

Jail time for South African woman using racist slur sets new precedent

South African court rules that racism is a criminal offence.
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A South African estate agent Vicky Momberg was caught on video verbally abusing a black policeman. She used the word ‘kaffirs’ repeatedly during her tirade against men who were trying to assist. The word is deeply offensive and considered the most racist in South Africa. The state brought a case of crimen injuria against Momberg and a court has sentenced her to three years in jail (one suspended). This makes her the first person in the country to be jailed for this offence. Thabo Leshilo asked legal experts Penelope Andrews, René Koraan and Chantelle Feldhaus to explain the significance of the judgment.

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What is the significance of the judgment?

Penelope Andrews: The significance of the judgment is substantive and symbolic. It’s substantive in that the crime committed by the accused is punished severely. Symbolically it sends a message that racism is not to be tolerated. In fact, one could go so far as to say that the law establishes that anyone using the “k” word publicly to abuse and humiliate will be severely punished.

René Koraan and Chantelle Feldhaus: Past cases indicate that the verbal form of crimen injuria is not that serious. But the Momberg sentence is a first of its kind in South Africa. She was sentenced to three years imprisonment of which one year was suspended for a period of three years, on condition that she did not commit crimen injuria again. In effect this means that Momberg will serve two years imprisonment.

What is crimen injuria in South Africa and its basis?

Penelope Andrews: According to principles of criminal law crimen injuria consists in unlawfully and intentionally impairing the dignity or privacy of another person.

René Koraan and Chantelle Feldhaus: South Africa’s criminal law system is based on common law and statutory law. Common law offences include abduction, arson, bigamy, fraud, incest, housebreaking, rape, robbery, and treason. Statutory crimes include crimes such as tax fraud and prevention of organised crime.

Crimen injuria (or iniuria) is a crime under the South African common law, defined as the act of “unlawfully and intentionally impairing the dignity or privacy of another.”.

Crimen injuria provides the basis of protecting the constitutional right to human dignity in criminal prosecutions. It can happen either verbally or by deed. Importantly, crimen injuria should be distinguished from criminal defamation which has to do with the good name or reputation of a person. Both the right to privacy and dignity are protected in different sections of the Constitution of the Republic of South Africa.

To determine if a person’s dignity was impaired the victim should, firstly, have been aware of what the accused was doing to them and secondly, the victim should have felt degraded or humiliated because of what the accused did to them. This is also objectively determined by the court. The court then considers whether a reasonable person in the same circumstances of the accused would also have felt humiliated or degraded by the conduct of the accused.

It seems that currently, the most serious form of verbal crimen injuria is the use of the word kaffir. It is evident from case law that calling a police officer the ‘k’-word in South Africa is regarded as serious enough to warrant criminal proceedings.

How does it differ from hate speech?

Penelope Andrews: Crimen injuria is a criminal offence. Hate speech is a civil offence. Rather, it’s prohibited in the constitution as well as legislation that protects people against unfair discrimination. Hate speech also has a very specific definition, whereas (crimen inuria) is arguably more broadly defined.

René Koraan and Chantelle Feldhaus: The Constitution promotes free speech, but that doesn’t extend to hate based on “race”, ethnicity, gender or religion. South Africa is also a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination, which requires countries to make racial superiority or hatred punishable by law.

South Africa has drafted a new bill to cover this. The hate-speech bill being considered by parliament provides for the criminal prosecution of people who commit the offences of hate crime and hate speech. It defines hate speech as

an intentional communication (including speech) that advocates hatred or is threatening, abusive or insulting towards any other person or group of persons; ranging from race and gender to social origin.

According to the bill, a guilty first offender may receive a maximum of three years prison sentence and up to ten years for a subsequent conviction.

What are the implications of the precedent-setting judgment?

Penelope Andrews: There may be several implications. First, the judgment is a clear statement that the use of racial slurs and the impairment of human dignity will not be tolerated. One could argue that there is now an unequivocal zero tolerance for the use of the “k” word.

Second, the implication may be that all kinds of racial slurs, that involve not just anti-black hatred, but also anti-semitic, xenophobic, anti-female and homophobic slurs, will not be tolerated.

The third implication is that there is a strong sensitising and educational effect. The airwaves and social media have already been abuzz with commentary since the sentence was passed. Crimen injuria has become a household term as people argue about the law’s meaning, the punishment, what constitutes (crimen inuria) and whether the judgment was fair.

René Koraan and Chantelle Feldhaus: The court sent a message that racism is not just inappropriate, but it is criminal. The hope must be that the penny drops for South Africans that their actions carry big repercussions. The judgment and the sentence highlight the fact that South Africa needs to put hate crime legislation in place. It’s already at an advanced stage but it needs to be promulgated.

Penelope Andrews, Dean of Law and Professor, University of Cape Town; Chantelle Feldhaus, Lecturer in the Faculty of Law, North-West University, and René Koraan, Senior Lecturer: Criminal Law, North-West University

This article was originally published on The Conversation.

Explainer: what's behind the rabies outbreak in South Africa

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In the last four months five cases of rabies in humans have been reported in South Africa, and an additional two cases are probable. The country’s National Institute of Communicable Diseases warns that steps need to be taken to curb the trend. The Conversation Africa’s health and medicine editor Candice Bailey spoke to the institute’s Jacqueline Weyer about these concerns.

How prevalent is rabies in dogs in South Africa?

The recent confirmed human rabies cases were spread geographically across South Africa and reported from locations in the north and east of the country. This included four provinces: Limpopo, Mpumalanga, Eastern Cape and KwaZulu-Natal. Two probable cases were reported in the Free State and Eastern Cape provinces, but appropriate samples were not available for laboratory confirmation.

Historically, locations in KwaZulu-Natal and Eastern Cape have been affected the most by dog transmitted rabies. But in the past decade cases have been increasingly reported from areas where it has been controlled before. This includes outbreaks of dog transmitted rabies in areas of the Limpopo Province, Mpumalanga, North West and Free State Provinces.

The epidemiology of the disease is dynamic and changes based on factors such as vaccination coverage, the movement of animals and other issues that may affect the ecology of dogs in a given area. For example in 2010, a rabies outbreak was reported in dogs in the south west of Johannesburg. The outbreak could be traced back to a rabid dog from KwaZulu-Natal. With low vaccine coverage in Johannesburg, the outbreak lasted for the better part of year before it was brought under control.

How big of a threat is it to humans?

Rabies is the most fatal infectious disease known to mankind. It is spread through the infected saliva of a rabid animal. This means that any encounter that allows the contaminated saliva to enter the body – through a scratch, wound or through contact with mucous membranes – could lead to infection. Most human rabies cases in the world happen when a person has been exposed to a rabid domestic dog. There are very few cases linked to rabid cats and other mammals like wildlife and domestic livestock.

There is no cure for rabies once the symptoms of the disease become evident and the virus has spread to the brain. This is true for both animals and humans. Although there is no cure for the disease, rabies is preventable and a single case of the disease remains a tragedy.

If someone has been bitten by a rabid animal, the wound, no matter how big or small, must be washed thoroughly with soap and water. In addition the person must see a doctor as a matter of urgency. At the health care facility, the risk for rabies virus transmission will be assessed based on the particulars of the case and rabies vaccination and rabies antibody therapy provided as preventative treatment post exposure.

What needs to be done to control and eliminate rabies?

Dog rabies has been eliminated in many countries around the world. In the US, this was achieved nearly 60 years ago. And in the developing world, Mexico has also managed to control dog transmitted rabies.

Their keys to success were progressive and systematic programmes for rabies vaccination in dogs. And these were underpinned by commitment from their governments as well as the public health and veterinary health authorities.

The fact that rabies is a zoonotic disease, affecting both human and animals, presents a massive obstacle. The control of rabies relies almost solely on the vaccination of domestic dogs. In South Africa one of the challenges is that the country doesn’t have enough resources to make sure this happens uniformly.

Dogs need to be vaccinated when they are puppies (at four months) and then again when they are one year old. After that, vaccinations need to happen every three years. In South Africa, vaccination of dogs and cats are mandatory by law. It’s the pet owners responsibility to ensure that their animals are vaccinated.

South Africa has committed to eliminate rabies by 2030. In 2014, the National Rabies Advisory Group of South Africa estimated that the country had spent about R70 million (USD$ 6 million) in vaccine and immunoglobulin purchases.

Bridging the gap in South Africa needs an integrated multisectoral, or “one health” approach for rabies control and prevention. Lessons from countries where dog rabies has been brought under control are ample, and policies and programmes should be adopted with these lessons and local challenges in mind.

Jacqueline Weyer, Senior Medical Scientist, National Institute for Communicable Diseases

This article was originally published on The Conversation.

Trump should be the trigger for Africa to find common cause with Americans

US President Donald Trump after sacking Secretary of State Rex Tillerson.
EPA-EFE/Shawn Thew

To reassure and reiterate America’s commitments to a positive Africa agenda of cooperation US President Donald Trump sent his Secretary of State, Rex Tillerson, to the continent in early March. But four hours after he arrived back in Washington after a whistle-stop tour of five African countries, Tillerson learned in a Trump tweet that he had been fired.

Africans had reasons to be sceptical about the Tillerson trip even before it began, as I argued before he set off. But I had not anticipated that Tillerson and his mission would also be dramatically and precipitately diminished.

It is unlikely that Africa-US relations will improve as long as Trump remains president. The president has appointed Mike Pompeo, director of the CIA, as his new secretary of state. Before joining the administration, Pompeo served as a conservative Republican congressman from rural Kansas. He has no notable foreign policy experience, much less interest in or knowledge of, African affairs.

But that doesn’t mean that African leaders should throw up their hands in despair. The Trump era, if approached with wisdom, offers opportunities for new ways of examining issues, new alliances and new areas of cooperation. This is because Trump has triggered concerns that are shared by democrats on both sides of the Atlantic, such as the need to fight racism and the need for strong democratic institutions.

Partnerships

Africans, of course, have other important relationships to pursue with other non-African partners. Planning for the next Forum for China-Africa Cooperation, is well underway, and most African leaders are expected to attend the September gathering in Beijing.

Africa was also high on the agenda of last June’s G-20 summit in Germany, despite Trump’s indifference to the gathering.

But the US is too important for African countries to ignore. Preparing and promoting a more active and constructive African strategy for engaging America, whoever is in power, was discussed at a diverse gathering of scholars and officials at Wits University, on March 8 to 10. This also marked the official launch of a new African Centre for the Study of the United States.

Three aspirations of the new centre are noteworthy. One is that its agenda will be demand driven. This means it will be set by what Africans from around the continent most need – and want to know – to manage their relations with America.

Another is that the agenda will be much broader and deeper than conventional international relations and the foreign police agendas of sovereign states.

Thirdly, a multi-disciplinary approach to research and training will be adopted. The aim will be twofold. Firstly to achieve short-term political and policy relevance for Africa. Secondly, to illuminate longer term trends of integration regionally and globally that can accelerate as Africans and Americans learn and teach each other.

Shared agendas

One potentially positive, if unintentional, effect of Trump’s actions thus far, has been to stir up resistance and fresh soul-searching among Americans about basic issues and values that are shared with Africa. Several examples stand out: gender, race, economic inclusion, the freedom and integrity of the press, the judiciary and elections. All are complex yet crucial for sustainable democracy and constitutional order in African countries as well as the US.

Since Trump’s inauguration in January 2017, new political pressure has been unleashed for gender justice and equality. Campaigns such as the #MeToo movement, for example, have quickly spread globally. If, as current US polling suggests, this influences voting patterns in upcoming Congressional and Presidential elections, there will likely be secondary foreign relations effects across Africa as well.

Trump has also been the catalyst for new degrees of both racial awareness as well as injustice. One of America’s leading black writers, Ta-Neshi Coats, aptly describes Trump as America’s “first white president’ in his book We Were Eight Years in Power: An American Tragedy. This is because Trump, unlike any of his predecessors, campaigns and rules as a white-ethnic-nationalist.

Africans need to critically assess whether, in reaction, a coalition of diverse identities predominates in upcoming elections. Either way, the outcome will have an impact on Africa-US relations.

Containing Trump

Three key elements essential to protecting and defending democracy – on the continent and elsewhere in the world – are now crucial in containing Trump’s threats to democracy.

One is maintaining the integrity of free and factual reporting by the media. The others are a strong and resilient independent judiciary, and credible elections. The world is living through a period of ill-liberalism. This is being marked by the triumph of strongmen over constitutional orders which has become a global scourge.

Trump will continue to dominate world headlines in 2018. But on July 18, South Africans and the world will pause to celebrate the centennial of the birth of Nelson Mandela. No one better exemplifies the democratic ideals that Trump defiles. Africans and Americans must rededicate themselves to strive for the standards Mandela revered. Perhaps then we will be touched again by what America’s greatest president, Abraham Lincoln, knew were "the better angels of our nature”.

John J Stremlau, 2017 Bradlow Fellow at SA Institute of International Affairs, Visiting Professor of International Relations, University of the Witwatersrand

This article was originally published on The Conversation.

Land debate in South Africa is about dignity and equality - not the constitution

Angry protests for free higher education by South African students forced the country to search for a solution.
EPA/Kim Ludbrook

If you want economic change in South Africa, create a crisis – then stand by to negotiate a way out of it.

The country’s current debate over land expropriation without compensation, which has now been endorsed by Parliament, is important. Not because, as some fear, it will radically change the constitution. Rather, it tells South Africans how, in the economy and other spheres, the country deals with its minority ruled past: by crisis followed by compromise.

Crises are the only way change happens because, since the 1970s, the goal of the minority which has called the shots in the society for decades has been to ensure that changes alter as little as possible. Which, of course, means clinging to many of the inequalities which existed before all adults were allowed to vote in 1994.

So most businesses – and professional practices and places of learning - do not change until a crisis forces them to look again at what they need to give up to keep things as much the same as possible. Because this means keeping black demands for change at arm’s length, the crises always happen when black people get angry with current arrangements and make demands which force a reaction.

The negotiations which produced the 1994 constitution began because the costs of black anger at apartheid were growing. They followed reforms to labour law, which were triggered when angry strikers in Durban demanded pay increases in 1973, and the end of curbs which kept black people out of the cities, a reaction to the anger of the 1976 Soweto protests and the refusal of angry migrant workers in the same year to live in single-sex hostels.

Recently, it took angry protests on campuses to trigger discussions at universities on how to change to meet the needs of black students. Race is debated seriously only when black people get angry over racial prejudices in advertising or company behaviour or on social media.

The crises always end in compromises because none of the country’s key interests can impose what they want on the others without severely hurting themselves. This is particularly so in the economy: forcing change on the owners of capital will kill investment and growth – ignoring demands for reform will trigger costly resistance.

The land debate’s message

The land debate illustrates the point.

Moves to change the constitution are dramatic because they threaten the property rights on which the market economy rests. They are, therefore, the most significant expression of black anger at the survival of pre-1994 inequalities since South Africa became a democracy.

Inevitably, they have prompted a crisis: a public debate which has been fixated on former president Jacob Zuma is now discussing economic divides. The debate is polarised and heated – but among middle class black people, support for the change seems overwhelming.

Outsiders might be surprised that tensions caused by economic inequalities focus on land – farming has not been South Africa’s key industry for decades. The reason it triggers such heat is that for South Africans, “land” is a symbol of far more than an expanse of soil. For most people, it has nothing to do with agriculture at all.

Historically, the demand by black freedom movements for the return of the land meant the return of the country to its people – it was directed not only at ownership of farms but at minority control of the economy and society . This is why expropriation without compensation has become a rallying cry for many who have no interest in farming but who feel that a quarter century of democracy has not ended white privilege. It symbolises a much broader demand for change.

It is also why no-one has paid much attention to arguments about the technical merits of land expropriation and why there is such support for a constitutional change despite the fact that there is no need for it because expropriation without compensation is possible now.

Property rights are protected by Section 25 of the constitution which stipulates that compensation must be paid. But it also says that this may not be used to

impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination.

So, if the government can show that expropriation redresses race discrimination, it need not pay compensation.

But this has been ignored because the dispute is about dignity and equality, not constitutional clauses.

Compromises will be made

Like all South African crises, this one will end in a compromise – its details have been discussed by lawyers and reported by newspapers. It seems likely that Section 25 will be changed to allow for expropriation without compensation. But the clause will specify very clearly that this can only happen in very particular circumstances, which it will carefully define.

If it does this, property rights will be protected because owners will know that they are entitled to compensation unless they act in a way which forfeits their right. It seems likely that investors will not have to do much to retain the right to compensation.

On the surface, this, like all good compromises, will solve the problem by giving both sides some of what they want. Land owners who hold the state to ransom will risk losing compensation; property rights will be protected, making investment safe. But, if that is all that happens, an opportunity will be missed.

The pattern described here – in which the country’s elites are very good at compromising in the face of crisis but just as good at creating the crises which force them to compromise – is hardly the ideal way to build a fairer economy and society.

Past wrongs need to be addressed

Crisis drives change because elites have avoided negotiating economic reforms which will redress past wrongs while protecting the assets of investors who play by the rules. This forces black people to get angry if they want to be heard and will create new crises if it is not addressed now.

Since the dispute is really about the economy, the solution lies in negotiating the economic changes which cause the anger in the first place.

The dispute’s importance depends not whether it produces a compromise on land but on whether it begins negotiations on opening the economy to the excluded. This alone will reduce the anger which makes crisis the only mode of change and ensure a less dramatic but more lasting way of addressing economic challenges.

Steven Friedman, Professor of Political Studies, University of Johannesburg

This article was originally published on The Conversation.