President Jacob Zuma opens the exhibition Reversing the Legacy of the Natives' Land Act of 1913: In Commemoration of the Natives' Land Act of 1913, at the Cape Town International Convention Centre, on Thursday.  Picture: GCIS
President Jacob Zuma opens the exhibition Reversing the Legacy of the Natives' Land Act of 1913: In Commemoration of the Natives' Land Act of 1913, at the Cape Town International Convention Centre, in June last year. Picture: GCIS

WHEN President Jacob Zuma opened an exhibition in Cape Town recently commemorating the centenary of the Natives Land Act of 1913, he reaffirmed his government’s commitment to resolving the "land question" and declared that state-led land restitution remained key to the liberation of South Africa — echoing sentiments two decades old and just as catchy today. Never mind that the Restitution of Land Rights Act (22 of 1994) remains, technically, expired.

Key political points were up for grabs. As he spoke, hundreds of families in Fordsburg, Johannesburg, were being evicted from their homes. No government representatives were on site, although a few police were called to flank the outsourced thugs ("red ants") as they turfed out the bad tenants.

In South Africa today, dispossessions considered "historical" by the terms of the law — technically, those that took place between 1913 and 1998 — are the bread and butter of the government. Those in crowded cityscapes are left up to community leaders and a handful of advocates prepared to defend pro bono and pursue the expensive course of public interest litigation on their own wallets (or the ledger books of the NGOs for whom they work).

We are not supposed to feel sorry for victims of events like these. They happen all the time, principally in Johannesburg and Durban but elsewhere too, although the media does not always turn up to cover them. Apparently, in the Fordsburg case, the tenants were delivered eviction notices more than a year ago, and R1m in rent was outstanding by the time the red ants swarmed. Rent is meant to be paid, we know. Landlords didn’t write tenancy law, we know.

A bill, dated May 23, awaits its passage to statute, which extends the latter cut-off date in the Restitution Act from 1998 to 2018. But even if this law is passed, evictions like those at Fordsburg will not fall under its scope. After all, those evictees were dispossessed in order to preserve the sanctity of the ancient rights of the property owner, and not, as the Restitution Act sets out, "for the purpose of furthering the objects of any racially based discriminatory law". The subtle difference makes all the difference.

The recent bill to extend the latter cut-off date, no doubt, emerged in the spirit of commemorating the 1913 landmark. This year, we’ve heard much about the Natives Land Act of 1913. This law was the worst thing to happen to South Africa, we are told time and again.

At the start of the year, Zuma set the tone in the opening words of the statement of the African National Congress (ANC) national executive committee on the 101st anniversary of the party on January 8. The act, he preached, "dramatically robbed the indigenous people of our country of 87% of their land, and turned them into pariahs and wanderers in the land of their birth". With the event of the 100th anniversary of the act, this kind of talk, more than ever, accompanies a self-congratulatory celebration of overcoming the legacies of apartheid-era dispossession — a raised glass to the ANC.

This talk is myopic, first, because it ignores the present. We hear nothing about dispossessions pending in South Africa, nor have we all year. Might it not be worth acknowledging in the same politicised public discourse that large-scale removals, not identical in law, but similar in scale to those carried out under the National Party still occur across the country? Can there be a broader debate about dispossession in this, the centenary of the act, as we approach the general election of 2014?

This talk is myopic, second, because it ignores the past. The importance of the 1913 act has been exaggerated. Although it was the first significant land law passed by the Union of South Africa, it was not the first discriminatory land law in South Africa. Well before 1913, similar parcelling out of land had been performed and many discriminatory laws passed by white legislatures in Cape Town, Bloemfontein and Pretoria. Before union, when South Africa was separated into a number of settler governments, there were several different laws aimed at the forced replacement of communal title with inalienable individual title, as for instance provided for by the Glen Grey Act (25 of 1894) in the Cape, which set out specific locations and "tribal areas" where only a restricted form of native tenure was available. In the Orange River Colony things were even stricter. There, the Law Book held that no natives could purchase or lease land at all, except those situated on a small reserve area less than 200,000 acres in size. In the Transvaal, there were demarcated reserve areas too; but on top of this, as laid out in the Pretoria Convention of 1881, all land alienated by nonwhites transferred not into outright private ownership but rather into a special, settler-administrated native "trust".

In reality, the effects of the Natives Land Act of 1913 were initially inconsistent across the board. It did not apply in the Cape Province for over two decades; and white farmers elsewhere were often slow to evict squatters and sharecroppers. With time, other laws were passed, committed to the identification, exploitation, confinement, and restriction of "natives" in South Africa. The Native Urban Areas Act (21 of 1923) was considered by some to be the first key segregation law; lesser known, but perhaps more important was the Development Trust and Land Act (18 of 1936), which was a nightmare for rural Africans. This act introduced a Transvaal-inspired trust system, restricted native tenure even further than it already had been, and rolled out reserves across the country.

Later still, other laws, among them the Group Areas Act (41 of 1950), installed a strict system of race-based segregation in urban and rural areas, providing the spur to many large-scale removals thereafter. Dispossession continued apace in the 1960s and 1970s because of these legislative platforms, and also due to a new state policy designed to promote "Bantu self-government", which entailed the creation of inadequately sized and serviced "homelands" for specified communities. Between 1960 and 1983, more than 3,500,000 South Africans were removed by the state as it set about achieving its paranoid objective of complete racial separation.

The search for the most dastardly policy in the South African past is futile, but if one were forced to, surely the bantustanisation of the 1960s trumps reservation of the 1910s. But still, we are restricting ourselves to twentieth-century/apartheid-era history. It would be easier to argue that the conquest of the Cape peninsular Khoekhoe in the 17th century, and the violent expansion of Dutch corporate trekboers into Khoekhoe, San, and Xhosa country in the 18th century, trump all other events of state-led dispossession. Here we must beware, for we enter the foggy realm of pre-1913 dispossession: of "tradition", long off-limits to transformation gurus.

But this may not be so off limits anymore. In the speech delivered in January, Zuma declared that "our government will reopen the lodgement date for claims and provide for the exception to the 1913 cut-off date to accommodate historical landmarks, heritage sites and descendants of the Khoi and San who lost their land long before 1913".

"These amendments to our laws," he said, "will take effect this year" (although these amendments do not appear in the bill of May to extend the latter cut-off date). Yet the nature of these reforms remains unqualified. For instance, can "heritage" claimants expect to enjoy the same tenure to their "landmarks" as others in South Africa? Will all of this serve to resurrect the moribund land claims court circuit or can we expect pre-1913 claims to fall within the unaccountable purview of the Commission on Restitution of Land Rights? Is there a budget? What criteria must claimants meet to be awarded land? Who knows.

Dispossession is a terrible thing. All forms, whether past or present, are complicated to redress. They require more thoughtful discussion than what we’ve heard so far. All of this 1913 talk reeks of convenience. While a hundred-year anniversary does make a great opportunity for power brokers to gain easy political points on the "land question", that question is not so easily resolved as the president often contends before his crowds of admirers. New debates need to begin.

Cavanagh is the author of Settler Colonialism and Land Rights in South Africa (Palgrave Macmillan, 2013).