One billion rand is a big fat sum of money.

No wonder some South Africans are seething at the news that the state has reportedly offered to pay the white land owners of Mala Mala Private Game Reserve, the Rattrays, this amount for an out-of-court settlement to a restitution claim brought by the dispossessed Mhlanganisweni Community for the land on which the luxury lodge is situated.

Well, unhappy critics of the R1 billion offer may very well swear bloody vengeance on behalf of the ancestors if they read the 2012 judgment by Judge Antonie Gildenhuys of the Randburg Land Claims Court who found that it would not be in the public interest to restore the actual land back to the Mhlanganisweni claimants. This judgment set the stage for the state to eventually make an out-of-court offer for the land.

The issue here is, in the court’s eyes, it is not the Rattrays who are going to be overcompensated if the market value is paid (originally set at R791 million), but the land claimants who would become the new owners of one of the world’s top luxury hotels without a convincing plan to maintain its commercial viability.

Judge Gildenhuys argued that the state had to pay the market value for Mala Mala but that doing so would be against its own fiscal interests.

Gildenhuys stated:
“The Mala Mala land, having been restored to its pristine wilderness condition east of the Sand river and with the eco-tourism business conducted thereon, is entirely different from what it was when the claimants were dispossessed. The claimants lost living space, grazing and cropping land. To restore one of the foremost eco-tourism destinations in the country to them, to be acquired at huge and prohibitive financial cost to the State, would amount to substantial overcompensation at public expense.”

To persuade the court that they should be given the land back, the claimants had secured a prospective commercial partnership with Londolozi Game Reserve (Mala Mala’s rivals) that would help them run the lodge.

But the judge was not convinced that the venture would see decent returns for each of the 2000 members of the Mhlanganisweni community and argued that the state would be paying too much from the public purse for such pitiful long term returns to the claimants.

This in effect meant that Gugile Ernest Nkwinti’s ministry, that of Rural Development and Land Reform, would have had to compensate the claimants with alternative land or financial payment.The claimants were unhappy and were set to go to the constitutional court for a final challenge, until Nkwinti’s department decided that it would rather negotiate an offer than have a legal precedent set on the question of compensation.

Staying away from the courts, for now, may be a wise decision because there is no real telling what thinking the constitutional court would apply and whether these and future claimants would be better off. Besides, we cannot escape the fact that resolving land reform is primarily a political problem, not a legal one.

When it comes to the resolution of the land question, it is pretty clear that the ANC was outwitted and outplayed at the pre-1994 negotiating table.
Perhaps they should have negotiated a comprehensive land settlement package before agreeing on our post-1994 constitutional dispensation. After all, land dispossession was always the fundamental basis of South Africa’s 300 years of conflict.

But hindsight is a useless luxury, why the ANC left land to be adjudicated by a constitution negotiated with an embattled but unrepentant National Party regime is now a moot point. Our courts are now legally bound to treat historical unequals as present day equals. For example, the Randburg Land Claims Court treated the Rattrays as individual entrepreneurs not as whites whose enterprising efforts were privileged by an oppressive system geared in their favour.

The court argued that it could not punitively undercompensate the Rattrays simply because they were wealthy in relation to the claimants. Similarly, the court interpreted the dispossessed communities quite narrowly as loosely defined previous occupants rather than as victims of oppression for whom the loss of land rights incorporated them into systemic and generational deprivation.

Thus the judge reasoned that the Rattrays’ conservationist developments over decades put the land in a superior state to that which the occupants had originally left it in (even though there is no way of knowing how the claimants may have improved their economic fortunes had they never been kicked off it).
There is nothing neutral about this reasoning. The court takes it for granted that the economic status of the lodge outweighs moral claims to it.

But this reasoning is not universally accepted.

The tension between economic value vs moral intent is at the heart of why there are differing conceptions on what the purpose of land reform is. This Mala Mala case should be seen as pivotal in exposing how hamstrung South Africa’s land reform is. In both its restitution and redistribution aspects it is not entirely clear whether reform should simply be about the moral imperative to restore dignity or about ensuring the economic success of claimant communities.

Although not mutually exclusive, these two imperatives are not reducible to the same thing. It is very possible to have land reform that is purely aimed at giving land back with economic strategies to be considered as secondary objectives. The driving philosophy will determine a lot about which land is restored back and redistributed and how much fiscal support the state will provide to achieve these ends.

It may be time for South Africans to convene another CODESA-type gathering to relook at land and economic questions and get closer to a consensus on the core purpose of land reform. The kind of haggling seen in the Mala-Mala case is politically unsatisfactory and unviable.

If we do not reach new agreements on how to achieve a just land dispensation, we face an uncertain future as far the battle for land is concerned.

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