In South Africa, property rights should vest in individuals

With the Ingonyama Trust back in the news again, an interrogation of African property norms would be useful. Since the Ingonyama Trust is said to be based on the customary law system of ownership, analysing this system would help us to understand why there seems to always be conflict in rural areas between individuals who are supposedly observing their own cultural norms.

The land is said to be held collectively by those who occupy it or those who left evidence of appropriation. This 'collective' ownership over territory should not be confused with the communist idea of the land belonging to every Bafana and Sbusiso. There was private property in precolonial Sub-Saharan African society, with instances of land sales existing among multiple Bantu-speaking peoples like the Gikuyu in East Africa.

This collective title is only applied inter-communally because that there are individual/familial plots on the land that give the possessor ownership rights like barring entry and exclusive use, intra-communally. Among the members of the community itself, the land is delineated among families, with the family head being the landowner. Thus rights exist horizontally among the members of the community. Family A cannot, according to the precepts of African customary law, simply build a house or use the fields of land belonging to Family B. Exclusivity of use is the cornerstone of property rights – what is mine and what is thine?

The allocation of new plots of land is an administrative task that is steeped in the norms of Ubuntu, like the triadic nature of umuntu (human), with the ancestral aspect of the triad that makes man, being the basis for natural land rights in a particular communal territory. Thus, the administrators, be it an emperor, a king, a chief, or a tribunal, depending on the type of polity, cannot deny land rights by refusing to allocate land to a particular individual who has ancestral links to that land. Beyond ancestral links, appropriation was astutely understood by Africans, in that clearing a field, or essentially any form of labour extended on 'virgin' land, granted whomever ownership rights over the land. Equally, the chief, if there was any, had his own property and could not expropriate that of other individuals within a polity, as is the norm with the Westphalian state.

There still was what Western scholars would call the ‘commons’, although that word does not accurately describe the situation since these usually large tracts of land were owned by certain families within the polity. Yet, under the African conception of a person being inherently social and interconnected, use rights over this land by the broader community was hardly ever forbidden by the 'owners'. Land in this category included forests for wood, grazing land, watering holes, and fields for medicine. Therefore, specific activities like blacksmithing were undertaken by certain families, who did the job given their proximity to natural resources like wood and iron ore, on pieces of land owned by them.

Consensus was the basis of decision-making, even in African judicial systems. The case of Baleni against the Minister of Mineral Resources at the High Court offers some interesting insights in this regard. The most insightful lesson from the case was that according to the prescripts of African law, an administrator, like a chief, cannot alienate the property of the community without its consent, for it is not his property. The case was, however, heard and decided under the current legal paradigm, not necessarily premised on an African normative reality.

The expropriation of property understood within the Roman legal system in Africa is quite alien, in the sense that expropriation by the state in precolonial Africa were not common. In other words even an expropriation that includes compensation (not even to speak of one without compensation) is a rare occurrence in African law.

The communal interconnected conception of individuals and even humanness by African people does not mean that which is for the public is inherently at odds with that which is for the individual.

The individually-collectively owned land cannot have decisions taken about its sale, destruction, or expropriation without at least consulting with the fellow owners – your neighbours and other community members. This relates particularly to 'virgin' territory owned by the community or the alienation of land with important mineral deposits. Selling your privately-owned farm was not contingent on any consultation with anyone.

This must not be construed as a rejection of restitution for the dispossessed property that characterised the creation of the South African state. Restitution is one of the primary precepts of justice and it is central to the normal operation and respect of any state. Expropriation is usually the state owning the land on behalf of citizens; restitution is restoring property to those from whom it was dispossessed by force of arms.

Under an African understanding of justice and property norms, having a law that allows the state to expropriate property without even providing compensation is wholly un-African. Instead, it is a perpetuation of the same colonial paradigm which Parliament claims to be correcting.

As the various trust-held properties across South Africa illustrate, an inconsistent application of norms results in injustice. The trusts are administered and in fact belong to the kings and chiefs, who treat those who presumably should be the real property owners like peasants being graciously granted a lease by the chiefs. In Africa, a king is made by his people, not the other way around.

The property relations introduced by colonial administrators for their own centralised control projects is still operational in modern South Africa.

Instead, South Africa needs property rights vesting in the individuals themselves rather than some entity like the king as is the case currently. Individuals can decide what is best for them and their property. They need no paternal institution like a monarch or the Westphalian state to decide what is and isn’t good for them.

This article was firsts published on City Press on 12 January 2021

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