Land and identity in South Africa: An immanent moral critique of dominant discourses in the debate on expropriation without compensation

Abstract

Ownership is an important identity marker. It provides people with a sense of autonomy, rootedness and opportunity. This essay examines the oral submissions of civil organisations to the Joint Constitutional Review Committee (04–07 September 2018) about the issue of land expropriation without compensation. The discussion pays specific attention to the philosophical understandings of land and identity that emerged during the hearings. Three dominant trajectories came into play, namely land as commodity, land as social space and land as spiritual inheritance. Some submissions espoused more than one view, which indicates that the boundaries between the identified paradigms are permeable. However, even those presentations tended to prioritise one approach above the others. Besides identifying the main approaches to land and identity, this essay also provides an immanent critique of their moral assumptions. In contrast to a transcendental approach, an immanent critique asks questions from ‘within’ and evaluates paradigms in terms of their plausibility, universal applicability, ethical consistency and moral integrity.

The Right of Access to Land VIS-À-VIS the Right to Mine: The Discussion on the Lessons Drawn from the Case of Maledu and Others v Itireleng Bakgatla Mineral Resources (Pty) Ltd and Another 2019 (1) BCLR 53 (CC)

“…Some see land as a commodity that carries a moral claim like an asset or as a source of income for property owners (Vorster N, 2019)). In terms of s 25 of the Constitution, land right is enshrined and protected as property belonging to the owner or lawful occupier.…”

“…Secondly where the landowner or lawful occupier has suffered or is likely to suffer loss or damage as a result of continuing mining operations. This suggested that compensation be payable under certain circumstances where damage occurs whilst using the right (Vorster, 2019). To connect this inquiry to consultation requirement in terms of section 2 of the IPILRA of 1996 and then the requirements in section 54 of the MPRDA of 2002 it was imperative to point to the impact these had at the constitutional interests of the interested and affected parties in terms of s 10 of the MPRDA of 2002.…”

“…This case seemed to provide an igniting picture that enjoins the right of access to land and right to mine which are campaigned in this work. Constitutionally land is often postulated as a commodity of the South African communities (Vorster, 2019). Section 2 of the IPILRA of 1996 provided that proper representation be manufacture for the required informed consent to be granted.…”