Part one | Land matters and historical distortions
In the first of a two-part series, advocate and author Tembeka Ngcukaitobi explains why ancestral land should not be a contentious issue and how labour tenure justifies ownership.
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5 July 2021
Advocate Tembeka Ngcukaitobi’s latest book, Land Matters: South Africa’s Failed Reforms and the Road Ahead, is anchored in history. Its elegant and important arguments make it a critical read for researchers, scholars, policy makers, lawyers and activists working in the field today.
Following The Land is Ours, which was published in 2018, Land Matters argues that those who work the land should be its primary beneficiaries. Ngcukaitobi also challenges the government to craft a more adequate response to those occupying land instead of the current one that tends to prioritise their criminalisation.
There are various foundational themes that form the basis of the book. These include the importance of ancestral land, ambiguities in the land restitution programme, poverty transfer across generations, communal land ownership, elite capture of the land reform programme and patriarchal systems in it.
Speaking about his new work, our interview starts with two Eastern Cape-born migrants in Johannesburg reminiscing over their different yet relatable upbringing.
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I begin by telling my story of being born into a family of farm workers, three generations of whom have worked the land of the same white family. Yet despite this long history, they have no share whatsoever in its wealth, which explains my interest in the land debate.
Beautifully narrating his upbringing, Ngcukaitobi says: “I also grew up in the Eastern Cape and thina sasi surround (we) ziifama (we were surrounded by farms). Sikhulele kwilali ekuthiwa kuseLupapasi, isorround(we) yiNdwe, iDordrecht, iKhowa. (We grew up in a village known as Lupapasi; it is surrounded by Indwe, Dordrecht, Khowa).
“My village intersected with the white town of Indwe. People used to walk to work in the farms and they would come back on a Friday ne bucket(i) yamasi nobisi (with a bucket of fermented milk and milk) which was the sort of payment they used to get.” The farms that surrounded his village “drew a lot of their labour” from it, he explains, and these labourers were kicked out and returned over the course of multiple generations.
As a child, Ngcukaitobi was not really conscious of the idea of white superiority, only that white people were different. It is only later in his life that he began to stitch together what lay behind the relations between the villagers and white people. Much later, he also realised that there was an incongruence between academic history and oral history. In other words, the things that they were taught or told by uncles and grandmothers did not correlate with academic history or what they were taught at school. One example of this is Van Riebeeck’s arrival and “discovery” of the Cape, which they had to memorise in order to get a mark in the subject of history.
“The problem with South Africa’s history is that you peel off one layer [and] every time you peel off one layer, another layer emerges, but it’s also a layer of distortion. It’s not as if you remove a layer and then you get to the truth, but you get another layer of distortion and then you must dig further. So that’s that. It’s a work in progress, I guess,” he explains.
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Yvonne Phyllis: You write that we should take the question of ancestral land seriously and you say that it shouldn’t be contentious, and sometimes it is. So my question is when we talk about ancestral land, what land are we talking about? What forms part of ancestral land?
Tembeka Ngcukaitobi: When I say the ancestral land should not be contentious, what I mean is that if we look at Van Riebeeck’s arrival in 1652, he carefully recorded the people that he met and the Khoikhoi tribes that he met and his encounters with them, including at what point they took which land. The same thing, if you look at the large British occupation of the Eastern Cape – that part of 1820 where we had 3 500 people coming in at once – even with those settlers the records are quite clear.
I mean, we know that they settled in Bathurst. We know that they went to East London in 1821, the following year. We know that they spread around because they found the area in Bathurst to be too small, but we also know who they met, which Xhosa tribes they met and how they encountered them.
If you go to the Zululand side, we also know pretty much when Shaka met the first white man that he encountered. We know who that white man is. We also know when the large group of the Afrikaners came. We know that when they arrived there they found Dingane. We know there were encounters with Dingane, we know that they had an alliance with Mpande and, as a result of that alliance, conspired to kill Dingane. We know that subsequent to that Mpande granted them land and we know which land it was.
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So the idea that we cannot go back too far because there will be complexity as to an intertribal conflict is not borne out by historical records. In fact, one of the strange things I find is that there was care in what the colonists recorded and sent back to England.
There were three types of these colonists. You had these missionaries that went around asking people to be converted, “civilising” them. Then you had people that were just on a jol [having a good time], just visitors, and they wrote down which tribes they encountered. And then you had proper colonists – people that came here as a result of this idea that they want to expand the scope of the British Empire. All of those three, those are the main sources we use when we reconstruct the past. We use their sources.
On the other side, which is on the Xhosa side, we are lacking in written sources. The tendency there is to depend on word of mouth. The remarkable thing is how candid the accounts of the travellers were … they coincide with the accounts of the missionaries and coincide also with accounts of colonists. We pretty much know that background; we know who was where, when. That’s why I argue that this should not be too contentious.
Ancestral land is a contentious term itself. It’s the idea that Black people use now – “land of our ancestors”. We still say it’s the land of our ancestors, which marks the distinction between who holds formal title versus who holds historical title. We still claim that this is our land, but we know that as a matter of formal title it’s not, because someone else’s name is in the deeds office. However, the claim that actually this land belongs to our ancestors is simply an affirmation of a historical fact. So that’s really the point I made.
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Phyllis: My father is not quite convinced that we can only base it on historical records, as you’ve explained, or on what happened in history. He strongly feels that, on the issue of ancestral land, the fact that several generations of his family, including him, have worked on one farm for the same white family for three generations must count for something.
He makes the point that the umbilical cords of our family members are buried in this land and so are their graves, and therefore this land is the land of our ancestors because they worked it and lived there.
Ngcukaitobi: That’s true, I think the claim in that case of “ancestral” is a metaphorical claim. I think there’s power in that. What I’ve tried to suggest is looking at different forms of the sources of tenure.
One form of tenure is pure ownership – “my father owned this piece of ground and therefore it’s mine by reason of inheritance”. However, that purity in argumentation already [foresees] an exclusion, so many people are then excluded. But what you actually want is a much more flexible system that recognises different ways in which tenure is acquired.
One of them is that it is acquired by labour. It’s the exchange of labour, that’s one of the ways in which tenure is acquired. That form of labour tenure is actually not uniquely South African or uniquely African. In fact, that’s precisely the point that the colonists made when they occupied America and their own theorists justified their acquisition of the original title by virtue of combining what they call their labour with a piece of ground that produces ownership.
So they used it for a perverse reason – “I’ve worked the land and therefore it produces ownership” – but they never recognised the other labour that went into the land, the labour of the native people and the indigenous people that went into the land. So, another source of tenure is labour, and that’s the assertion that is made by many labour tenants. It’s recognised in our law, but that recognition is very precarious because you have to prove a certain element. But it can be expanded into a very powerful argument.
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One of the reasons there has been an impoverishment in our sort of land-reclaiming theories is that we tend to depend a lot on original title, and that original title itself is linked to notions of private property and lacks the elements of how people actually acquire tenure over land.
So the tendency in so-called labour tenancy claims is that if you make a claim – let’s say under the Restitution of Land Rights Act, which is based on whether you lost title after 19 June 1913 – the theoretical foundation of those claims is that the nature of the title must have been pure ownership. If that title was an alternative title, like a labour tenant, you don’t actually get restitution, you might get compensation. This is because the entire model of land is based on this idea of ownership. When the land is restituted, what is restituted is ownership.
I think that is a very impoverished way of looking at history because we know about labour, we know that through systems of … forcible labour [the workers] not only contributed to productivity, the commercial productivity of the farm owners, but they also created new cultures and they connected to the land.
One of the ways of connecting to the land which Xhosa people use is what you’re saying – inkaba (the umbilical cord). One of them is where you were circumcised. I mean, this is a very powerful thing. “Wolukele phi (where were you circumcised)” is usually an affirmation, or “uzalelwe phi (where were you born)”, which is the idea of inkaba. Alternatively, “utatakho ungcwatyelwe phi (where is your father buried)”. All of those are ways in which people relate to the land.
My thesis is to try and break the Eurocentric notion, which basically drives a land reform programme that refuses to accept alternative forms of tenure and the ways in which land is held. I think that there are groups of persons which are largely overlooked, largely because of the ways in which we conceive of our relationship to the land – a very Eurocentric way of understanding our relationship to the land.
One of the ways to resolve the land crisis is to simply give title to people who have worked in the land. To say to people, “You may not have been the only one who has worked on the land and the land may not have been registered in your name, but your family graves are here, you should get recognition title, full title over particular pieces of land.”
You see, what happened in fact, it’s interesting that white farmers didn’t constantly change families. They stuck with one family, so you then got born into a family of labourers. It was like a slave-master relationship. They didn’t change people a lot. It’s unlike a factory because in a factory, as soon as you lose an arm, they get rid of you. Although there were a lot of farm workers who lost tenure, many people stayed, generations and generations.
So there is no reason why you can’t just say we know them, it’s 22 000 of them, let’s just cut the land that the farmers live in and give it to them as title. And not pay them [the farmers] any compensation, by the way. So that’s the one category of land owners that do not deserve compensation. It’s people who have received compensation through the labour of their tenants – they should get no money whatsoever.
This interview has been lightly edited for length and clarity.
