Revoking colonial laws not enough

THE history of colonised communities all over the world tells us that the revocation of colonial or imperial laws at the independence of these nations created only a euphoria and excitement of being liberated, while the edifice of their oppression remained intact.

This was the case in South Africa, which had a history spanning more than 500 years, from around 1488, when the first voyager, Bartholomew Diaz, landed on the shores of the place we now refer to as Gqeberha. Not following the protocol of accessing water, when confronted by his hosts, the indigenous Khoisan, he killed one of them.

Throughout the period, up to the establishment of the modern South African state in 1910, laws, ordinances and regulations were used to oppress the indigenous people, resulting in their enslavement, economic exploitation – “hewers of wood and drawers of water”, the “wretched of the Earth”, à la Franz Fanon.

Let us take one example. At the beginning of the Union of South Africa, from 1910, laws were passed to create a South Africa that was to be enjoyed by white South Africans exclusively, on a purely racial basis.

One of the laws was creating the Land Bank, as well as encouraging white farmers to belong to co-operatives, whose membership was racially defined, though the legal entities themselves were of a public nature, but the racial policy precluded people of other races belonging to the same co-operatives. In time, these were used to extend soft loans, subsidies and outright grants to white farmers from 1912 until 1993.

Interestingly, on the eve of our democracy, realising that, given the public nature of the co-operatives, black farmers would inundate them with applications for membership, the Nationalist Party passed the Co-operatives Amendment Act , No 37 of 1993, to enable the entities to convert, if they so desired, into private companies.

Many of the companies trace their history to the period just after 1910, and admit that from 1993 they converted to private companies. In some cases, the wealth accumulated up until then was partly paid out to members as “bonuses” and the rest as shares which are held in their names.

If we examine the composition of their boards, we find that in spite of the anti-discrimination laws put in place since 1994, they are lily white because they are now private entities – they control whom they may admit and whom to keep out.

If you examine the history of entities like Afgri, BKB, Baru, Bredasdorp Co-op, GWK, OVK, Kaap Agri, NWK, Senwes, SSK, Suidwes and VKB, all are listed on the Johannesburg Stock Exchange with humungous portfolios of land and agricultural wherewithal, accumulated over more than 80 years, from public funds. Any wonder that there is such an inequality in this country, which negatively affects the majority of its citizens who were excluded from this state largesse ?

Tragically, at the dawn of democracy, as in other liberation celebrations, we got carried away by the euphoria of the revocation of colonial and apartheid laws, which left the edifices these laws created firmly intact.

What should have happened at the dawn of democracy then? Yes, it was the right thing to do to revoke the laws. However, it was not enough to end there. There was supposed to have been an analysis of the effect of law that was passed upon those who were discriminated against, and put in place measures of reparatory justice.

Sir Hilary Beckles, a university vicechancellor and author, has written extensively on the subject of reparatory justice in the Caribbean Islands, previously colonised by Great Britain.

Some concrete information came to my intention via a research report by professors Margareet Visser of the Labour and Enterprise Policy Research Group Institute of Development and Labour (UCT) and Stuart Ferrer, the director of the Agricultural Policy Research Unit, School of Agricultural, Earth and Environmental Sciences, University of KwaZulu-Natal, that was published in February, 2015. The researchers summed up the report:

“Even before 1948, a bulwark of support was put in place by the Union of South Africa to secure white commercial interests, including those in the agricultural sector. The most notorious of these were perhaps the Land Act of 1913 and the Natives Trust and Land Act of 1936, which eventually provided the underpinnings for a system that created a huge reservoir of cheap labour.

“Other legislation and institutions created by the government not only provided a protective framework, but also powerful bargaining mechanisms for white farmers.”

I have been pondering one of the reparatory measures regarding the practice of using state resources to favour one section of the population, on a racial basis, against most citizens, thus unduly advantaging and enriching them, that class action to the

Constitutional Court would be one way of securing relief, for direct descendants of persons who were so disadvantaged. A case of undue enrichment could be successfully argued in the Constitutional Court and secure an order that would force those who benefited from this state largesse at the expense of thousands who were left out of it.

We must remember this is only one instance where the legislature was used to put in place laws aimed intentionally to benefit one group.

Just after the establishment of Union of South Africa, one such law was passed in 1912, the Olifants River Water Canal Act/ Van Rhynsdorp Water Canal Act of 1912. The aim was to take advantage of the plentiful water from the Olifants River, by building a water canal at state expense to settle white farmers at the expense of coloured families, who had settled there from time immemorial, who were forcibly removed.

Most of the land restitution claims flowed from the forced removals. Today, it is as if it has always been so that white farmers settled these, but it is not so, it was part of the social engineering by the apartheid state and the government and its predecessor, the colonial government.

Reparatory justice demands that the injustices cannot be left unattended for generations and generations. Those disadvantaged must be assisted by the state to bring up their complaints to the government first for resolution and then to the courts to enforce their rights.