Constitution and Law IV: Developments in the Contemporary Constitutional State (conference proceedings, 2–3 November 2000)¶
Venter, Francois; Nishihara, Hiroshi; Van Wyk, Dawid; Goolam, Nazeem; Reid, Kenneth; Van der Walt, André; Pienaar, Gerrit; Pienaar, Juanita; Balatseng, Deborah; Farina, Kate; Kilani, John; Mabiletsa, Mmagadi; Du Plessis, Willemien; Van Zyl, Deon; Eiselen, Sieg; Snyman, Elizabeth; Schlemmer, Engela; Lange, Michael (2000). Constitution and Law IV: Developments in the Contemporary Constitutional State (conference proceedings, 2–3 November 2000). Constitution and Law seminar series, Konrad Adenauer Foundation / Faculty of Law, Potchefstroom University for Christian Higher Education. Konrad Adenauer Foundation, Johannesburg / PU for CHE.
| Type | conference paper |
| Scope | Wider apartheid literature |
| Method | mixed |
| Period studied | 1913–2000 |
| Regions | South Africa, Former homelands (SADT, self-governing territories, TBVC states), Rural areas |
| Themes | agriculture land, bantustans removals influx, origins segregation, transition post apartheid |
| Citation key | venter2000 |
Argument¶
This is a law-faculty proceedings volume on constitutional values, land law, mining and environmental law, the common law, and export-trade risk. It is only marginally relevant to the economic history of apartheid. The useful parts are three papers on land. Van der Walt argues that apartheid land law fused racial ideology with Roman-Dutch property law's exclusivist, spatial vision of ownership, so it cannot be removed by repealing statutes. He also argues that post-1994 land reform stays within that common-law code. G. Pienaar and J. Pienaar & Balatseng describe the legacy of apartheid land tenure (insecure black use-rights, the permit system, fragmented planning law, rural poverty) and the post-1994 tenure and planning reforms. The rest of the volume is legal and doctrinal.
Evidence and method¶
Legal doctrine, statutes (Black Land Act 1913, Development Trust and Land Act 1936, Group Areas Act, post-1994 land reform acts), case law (Lockhat, Diepsloot, Grootboom, DVB Behuising), White Papers and policy documents. It draws on critical legal theory (Cover, Gordon) and on comparative land-tenure examples (Botswana, Scottish crofting). Economic data are minimal and limited to a few rural population and unemployment percentages.
Place in the debates¶
- Was Roman-Dutch common law complicit in apartheid land law, or merely a neutral instrument misused by legislation?. Van der Walt holds that apartheid ideology and Roman-Dutch property law fused into a new code that cannot be separated out. He rejects the view (Neethling, Potgieter, Corbett and others, as cited by him) that apartheid was a statutory aberration.
- Individual ownership versus fragmented use-rights as the basis of post-apartheid tenure security. G. Pienaar accepts Van der Walt's fragmented use-rights model in principle. He argues that security needs registration, not legislation alone, so that rights can serve as collateral for development finance.
- Continuity versus rupture in the transition from apartheid to constitutional democracy. Van der Walt criticises the linear 'bridge' metaphor. He argues that land reform still operates inside apartheid-era conceptual and rhetorical codes.
Findings¶
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Apartheid land law divided the country into exclusive racial land areas by statute, with expropriation and forced removals. (p. 58)
First of all, the country was divided into exclusively white and black areas, people from one race group being prohibited statutorily from owning or using land in an area designated for people from another group.
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Black land rights were deliberately downgraded to insecure, precarious holdings. (p. 58)
this redefinition meant that black land rights were downgraded, transformed into insecure, precarious rights
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Land tenure was racially dualised: Roman-Dutch ownership in white areas, customary law and state permits in black areas. (p. 61)
In areas reserved for whites, land law was based on Roman-Dutch property law, and more specifically on the paradigmatic position of private, individual ownership with all its accompanying characteristics and entitlements
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Roman-Dutch law gave apartheid a veneer of legal neutrality and respectability. (p. 62)
the apparently neutral and rational language of Roman-Dutch law made the violence of racist apartheid ideology appear legally intelligible
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Insecure legal forms for black land rights facilitated removals and evictions. (p. 66)
One of the greatest problems caused by apartheid land law was that black land rights, both in urban and in rural areas, were cast in legal forms that rendered them permanently insecure, weak, and open to the manipulation
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Post-1994 land reform legislation largely keeps the common-law hierarchy of land rights. (p. 68)
land reform legislation remains largely within the conceptual, systematic and hierarchical code of common law land law
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The racial land system left homelands as labour reservoirs and entrenched rural deprivation. (p. 120)
The inequitable distribution of land, especially since 1913, not only deprived persons from their livelihoods and dispossessed them from ancestral lands, but left millions of people to subsist on patches of unproductive land, degrading these areas to dormitories of cheap labour.
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Rural South Africa in 2000 still combined large populations with high unemployment. (p. 121)
Forty-seven per cent of the national population are presently rural dwellers, most of whom are unemployed.
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Large parts of the population remain excluded from formal title registration, which blocks use of land as collateral. (p. 106)
a large part of the population – notably people in informal urban settlements and in rural areas where a system of communal property still prevails – is excluded from the deeds registration system.
Evidence ledger¶
Sources used¶
| Source | Kind | Period | How used |
|---|---|---|---|
| Constitution of the Republic of South Africa Act 108 of 1996 (sections 1, 7, 9, 10, 25, 26, 36, 39, 195) | legislation gazette | 1996 | Text of constitutional values provisions is the primary object of analysis for the values papers (Van Wyk, Goolam, Venter). |
| Interim Constitution 200 of 1993, section 35(1) and Postamble | legislation gazette | 1993 | Compared with the 1996 Constitution to show how treatment of 'values' and the bridge metaphor changed. |
| Constitutional Court judgments (Makwanyane 1995; Prinsloo v Van der Linde 1997; Hugo 1997; Harksen; Lesapo 2000; DVB Behuising 2000; Grootboom CCT 11/00 of 4 Oct 2000; Soobramoney; Mpumalanga education case; Walker) | commission or official report | 1995-2000 | Case law is the evidence for the jurisprudence of equality, dignity, land reform and socio-economic rights across several papers. |
| Apartheid land and segregation statutes (Black Land Act 27 of 1913; Development Trust and Land Act 18 of 1936; Group Areas Act 36 of 1966; Proclamation R293 of 1962, etc.) | legislation gazette | 1913-1984 | Lists the statutory core of apartheid land law underpinning the argument on legal codes and spatial exclusivity. |
| Post-1994 land reform statutes (Restitution of Land Rights Act 22 of 1994; Communal Property Associations Act 28 of 1996; Extension of Security of Tenure Act 62 of 1997; Land Reform (Labour Tenants) Act 3 of 1996; Interim Protection of Informal Land Rights Act 31 of 1996; Transformation of Certain Rural Areas Act 94 of 1998, etc.) | legislation gazette | 1991-1998 | Statutory text is analysed as evidence of whether land reform breaks with common-law and apartheid property codes. |
| Department of Land Affairs, White Paper on South African Land Policy (1997) and White Paper on Reconstruction and Development (1994) | commission or official report | 1994-1997 | Source of government land tenure policy principles and registration needs on which Pienaar's proposals build. |
| Deeds Registries Act 47 of 1937 and South African deeds registration system | legislation gazette | 1937-2000 | Describes how the negative registration system works, to argue it must be adapted to register fragmented use-rights. |
| Ventura and Mohamed, Use of information technologies to model indigenous tenure concepts (University of Wisconsin-Madison, 1999) | secondary literature compilation | 1999 | Provides the model for the proposed computerised land information system for communal use-rights. |
| Botswana Tribal Land Act 58 of 1968 and Scottish crofting legislation (Crofters Acts 1955, 1961; Crofting Reform Act 1976) | legislation gazette | 1886-1976 | Comparative models for decentralised administration of communal land rights. |
| Green Paper on Development and Planning 1999 and other post-1994 policy documents; Development Facilitation Act 67 of 1995; Physical Planning Act 125 of 1991; Less Formal Township Establishment Act 113 of 1991 | commission or official report | 1991-2000 | Evidence for the characteristics and shortcomings of the pre- and post-1994 planning system. |
| 1997 Rural Development Framework and Census-type rural population/unemployment figures cited without named source | official statistical series | c. 1997-2000 | Statistics on rural share and unemployment by province frame the rural development crisis. |
| Minerals Act 50/51 of 1991 and Director: Mineral Development, Gauteng and Sasol Mining v SAVE (Appeal Court, case no 133/98, 12 March 1999) | legislation gazette | 1991-1999 | Statute and judgment are the basis of the case narrative about licensing, public participation and environmental rights. |
| Sasol Mining internal experience, policy and stakeholder processes (Sigma/North West strip mine) | company records or reports | mid-1990s-2000 | Insider account of the SAVE dispute, litigation and subsequent rebuilding of community relations. |
| National Environmental Management Act 107 of 1998 (NEMA), including sections 28-34 and Consultative National Environmental Policy (Connep) process | legislation gazette | 1998-1999 | Provisions are assessed from the Chamber of Mines perspective as positive and negative for mining. |
| Mining and environmental legislation and regulations (Minerals Act 50 of 1991; National Water Act 36 of 1998; Water Services Act 108 of 1997; GN R801 of 1999; GN R991/R992; APPA; National Heritage Resources Act 25 of 1999; White Paper on a Mineral Policy 1998) | legislation gazette | 1956-2000 | Statutory survey of obligations on mines establishes the legal impact of environmental legislation. |
| Interviews with mining industry personnel (Chamber of Mines Interview 1998-03-17; Sutton, Vaal Reefs 1999-06-22; Jansen van Rensburg, Environgreen 1999-06-23) | interviews oral history | 1998-1999 | Support claims about mines' perceptions of applicable legislation and conflicts between DME and DEAT. |
| South African common law case reports (Bogoshi 1998; Pakendorf 1982; Bank of Lisbon v De Ornelas; Ryland v Edross; Janse van Rensburg v Grieve Trust; Amod, etc.) | commission or official report | 1919-2000 | Judgments are examined as examples of good and bad common-law development. |
| GATT articles XI, XII, XVIII; SADC Treaty 1992 and SADC Trade Protocol; SACU Agreement 1969 | legislation gazette | 1947-2000 | Treaty texts are interpreted to advise on a hypothetical Swazi import prohibition on pig-feed. |
| UN Convention on Contracts for the International Sale of Goods (Vienna 1980), Incoterms, letters of credit case law (Loomcraft Fabrics v Nedbank 1996; RD Harbottle v National Westminster Bank) | legislation gazette | 1980-1996 | Convention articles and trade terms are expounded as contractual risk-reduction tools for exporters. |
| Reid: Title Conditions (Scotland) Bill, Scottish Law Commission Report on Real Burdens (No 181, 2000) and American Law Institute Restatement Third, Property (Servitudes) (2000) | commission or official report | 1997-2000 | Comparative law reform documents are the basis for the analysis of covenants and servitudes. |
| Scottish Law Commission survey of house owners in housing estates; Law Reform Commission of Western Australia Report on Restrictive Covenants (1997) | author survey or fieldwork | 1997-2000 | Reported consultation results indicate public support for retaining covenants. |
| Newspaper reports and supplements (The Star 31 Oct, 1 Nov, 6 Nov 2000; Drum, Mail & Guardian, Sunday Times) | newspapers periodicals | 2000 | Used as illustrative evidence of societal moral decline and conditions weakening constitutional values. |
| Grootboom Constitutional Court judgment, description of settlement conditions | household or labour survey microdata | 1999-2000 | Descriptive household figures from the judgment illustrate the plight of the Grootboom community. |
Inference¶
Quantification: None.
The volume is a conference proceedings of legal scholarship: arguments are made by doctrinal and textual analysis of statutes, constitutions and case law, comparative law, theory and metaphor (Van der Walt), policy critique and practitioner case narrative (Farina, Kilani). No systematic empirical dataset is used; quantification is limited to a few illustrative figures.
Key claims¶
| Claim | Basis | Strength |
|---|---|---|
| The 1996 Constitution elevated 'values' from an interpretive aid to the foundation of the whole constitutional structure, but loosely applies the term to items that are not really values. (p. 22) | Textual comparison of ss 35(1) (1993) and 1, 7, 39, 195 (1996) and academic literature. | Partial data |
| Apartheid land law combined an instrumental legislative mode with a static spatial Roman-Dutch property code, so abolishing apartheid statutes cannot remove its legacy. (p. 62) | Apartheid statutes, case law (Lockhat, East London Farmers, Diepsloot) and theoretical sources (Gordon, Cover, Windscheid). | Illustrative or anecdotal |
| Post-1994 land reform legislation largely stays within common-law hierarchical land-rights categories, with exceptions in the Communal Property Associations Act and Extension of Security of Tenure Act. (p. 73) | Reading of the land reform statutes and Constitutional Court cases. | Partial data |
| Security of tenure for fragmented use-rights requires registration, not legislation alone, using a negative registration system and a computerised land information system administered by land boards. (p. 110) | Deeds Registries Act, White Paper, Ventura and Mohamed model, Botswana and Scottish crofting comparisons. | Asserted |
| Post-1994 planning and rural development is fragmented, lacks coordination and capacity, and legislation has had a piecemeal impact. (p. 129) | Policy documents, Green Paper 1999, DFA, provincial statutes; unreferenced rural statistics. | Partial data |
| The SAVE v DME Appeal Court ruling required public participation at the mining licence stage, surprising Sasol Mining, and was ultimately resolved through interest-based negotiation. (p. 144) | Author's insider knowledge as Sasol legal adviser; court decision. | Illustrative or anecdotal |
| Under GATT, the SADC Trade Protocol and SACU, Swaziland may not impose an import prohibition on South African pig-feed to protect an infant industry. (p. 180) | Interpretation of treaty articles (GATT XI, XII, XVIII; SADC Protocol arts 6, 7, 9, 21; SACU arts 6, 11, 12). | Asserted |
| Courts should first identify and adapt the relevant common-law sources before applying constitutional balancing, as Bogoshi failed to do. (p. 173) | Analysis of National Media v Bogoshi and Pakendorf and commentary by D van der Merwe. | Illustrative or anecdotal |
The author's caveats¶
Authors rarely discuss data limitations; Van der Walt notes that evaluation of land reform is difficult because of scope of the laws and the short time in operation, and that his analysis of land reform is brief and superficial. Pienaar and Balatseng cite figures without source detail.
Gaps in the evidence¶
The papers on land reform, planning and mining would be better tested with empirical data on restitution/redistribution outcomes, tenure security, and licensing and compliance records (Land Claims Commission, Deeds Office, DME files), which existed in the Department of Land Affairs and DME by 2000. Claims about the effects of legislation on mines and rural development rest on legal reading and a few interviews rather than systematic evidence. The values and comparative law papers need broader jurisprudential surveys (e.g. counts of Constitutional Court citations of values) to support claims of influence.
Replicability: Data poorly documented.