Khutah: Friday 27 April 2018: A nation that wants to land by Shuaib Manjra

Khutah: Friday 27 April 2018: A nation that wants to land by Shuaib Manjra

A nation that wants to land
I have been asked to speak today on the land question – a question which has absorbed and vexed the minds of South Africans for a long time but more particularly in the last few months. Being the 27th April, designated Freedom Day and as a public holiday on our calendar, I have two liberties – the first is the liberty of time, and the second is that I can be overtly political. Much has been written about land in South Africa in recent weeks and I would highly recommend the writings of Professors Ben Cousins and Ruth Hall, amongst others. I will not repeat that today but would highly encourage you to read their works and the debates on this matter.
What I will say is this: the question of land distribution is South Africa is both urgent and necessary. The skewed distribution of land, the insecurity of tenure, the tardiness with which land claims are being processed, and the housing crisis are cause for serious concern. Statistic show that land reform in South Africa peaked in 2007/8 and then went downhill from there. This represents just another failure of the Zuma presidency whose slogan of Radical Economic Transformation seems hollower by the day when black people are sinking into greater poverty and the wealth gap increases. Since 1994 2.4 million people have been evicted from farms in South Africa – and are in urgent need of smallholdings to provide both for housing and subsistence. As Ruth Hall states there has been so little change since the 90s in terms of equality in South Africa. I think it’s wrong to blame the constitution – the reason we have not done more for land reform is not due to constitutional restraints.” Many have made the same point.
Allah says in the Quran in Sura Qasas (27: 5) that the oppressed must be the inheritors of the land.
وَنُرِيدُ أَنْ نَمُنَّ عَلَى الَّذِينَ اسْتُضْعِفُوا فِي الْأَرْضِ وَنَجْعَلَهُمْ أَئِمَّةً وَنَجْعَلَهُمُ الْوَارِثِينَ
And We wished to be Gracious to those who were being oppressed in the land, to make them leaders and make them heirs and inheritors of the land.
Thus our call for land restitution and equitable distribution is a Quranic injunction.
The first question that I want to engage with is what is the meaning of land, which makes it such an emotive political issue?
I would argue that the contestation is not only about a piece of ground, but it is around the value and meaning of land. Different ontologies, experiences, interests or agendas make the same landscape evolve with different meanings for different communities.
Land is imbued with deep economic, political, social, religious, cultural and historical connotations.
It has political connotations is demonstrated by the fact that majority of wars were fought over land – including the wars of colonialism – which sought to dispossess indigenous populations. Andro Linklater’s book ‘Owning the Land” asks:
What do we fight wars for? “Territory”, of course. So land matters, in a sort of primeval, mystical way, and it deserves a weighty “cross-sectional” history, roaming across all of its complex philosophical, scientific, legal, political and economic facets.
There are religious connotations in that some land is considered sacred which leads to a contestation of that space – Palestine is a typical case in point.
Importantly indigenous peoples have a relationship with land which is interwoven with deep spiritual connections to the land of their ancestors, the ground wherein lies buried their predecessors and where spirits reside.
Culturally land represents a space where a community is built, lives, transmits its values, history, tradition and ritual. When we speak to anyone displaced including those from District Six, it is this element which is an abiding memory and loss.
In the economic sense it represents asset based wealth, in some cases security of shelter, the means of production, and reproduction of wealth through inheritance to future generations. Many of the estates in Europe and elsewhere derived their land through such means and is the origin of much of their wealth.
While indigenous populations treated land as a common and within a concept of stewardship, Europeans attempt to enclose it and claim private ownership. For colonialists it was imbued with material value including the resources on and beneath the territories. It served the political purpose of control of territory and the populations who lived on those territories, including as a source of cheap labour.
So land stands central to our very existence as humans.
How was land acquired?
The history of land and its private ownership is instructive in allowing us to understand its importance in wealth acquisition and the propagation of that wealth to future generations.
In the colonies the occupying forces regarded the landmasses as terra nullius or ’empty land’. Due to the absence of private ownership, enclosure and absence of European farming techniques, the land was deemed unaltered by man and therefore treated as uninhabited. Liberal philosophers, in the employ of colonial ideology justified land acquisition or appropriation through enclosure, dwelling and through the application of labour.  
When colonial forces encountered local populations they either attempted to negotiate with them for land, or went to war with those who resisted this encroachment on their common right. This gave rise to the numerous frontier wars. This was the pattern in all parts of the world including South Africa. Colonialists sometimes disregarded traditional land tenure and simply seized land; at other times they accommodated traditional land tenure by recognizing some form of aboriginal title or tenure – including using traditional leaders to harness local populations. This is particularly evident in KwaZulu Natal in the form of the Ingonyama Trust.
In Europe much of the land was owned either by the crown or the church. Enclosure was the legal process of the privatization of land —taken out of some form of collective ownership and management and handed over to individuals. Once enclosed, use of the land became restricted to the owner, and it ceased to be common land for communal use, as it was prior to enclosure. The process of enclosure began to be a widespread feature of the English agricultural landscape during the 16th century. By the 19th century, unenclosed commons had become largely restricted to rough pasture in mountainous areas and to relatively small parts of the lowlands. This created a small group of large landowners which inflated the price of agricultural land. Laws were passed forcing enclosure and the appropriation of land – in a conspiracy between governments and the aristocracy. This process was accompanied by force, resistance and bloodshed.
As EP Thompson says in the Making of the English Working Class: “Enclosure (when all the sophistications are allowed for) was a plain enough case of class robbery played according to fair rules of property and law laid down by a Parliament of property-owners and lawyers”
This process of enclosure created a landless class who had to work the farms and with no means of independent subsistence. Thus they formed the backbone of a working class that provided the labour required in the new industries developing in the north of England. Many landowners became rich through the enclosure of the commons, while many ordinary folk had centuries-old right taken away. Land enclosure was condemned as a gigantic swindle on the part of large landowners. An anonymous protest poem from the 17th century summed up the anti-enclosure feeling:
The law locks up the man or woman
Who steals the goose from off the common,
But lets the greater felon loose
Who steals the common from the goose.
George Orwell wrote in 1944:
Stop to consider how the so-called owners of the land got hold of it. They simply seized it by force, afterwards hiring lawyers to provide them with title-deeds. In the case of the enclosure of the common lands, which was going on from about 1600 to 1850, the land-grabbers did not even have the excuse of being foreign conquerors; they were quite frankly taking the heritage of their own countrymen, upon no sort of pretext except that they had the power to do so.
One of the consequences was rural depopulation and migration to either cities or other countries – a phenomenon widespread in South Africa today.
Enclosure played a constitutive role in the revolutionary transformation of feudalism into capitalism. Today in Britain today nearly half the country is owned less than one per cent of the population, while most of the rest spend half their working lives paying off the debt on a patch of land barely large enough to accommodate a dwelling and a washing line.
Let me make an aside: this enclosure of the commons happens in mining, in the seas, water resources and the rest of the environment through a process of privatization. It includes intellectual property and indigenous knowledge.
Such was the state of those exploited by land-owners that Henry VIII’s all-new Church of England in 1531 required its clergy to read to their congregations a special prayer inveighing against “rip-off landlords”:
“The earth, O Lord is thine and all that is contained therein; we heartily pray thee to send thy Holy Spirit into the hearts of them that possess the grounds, pastures, and dwelling places of the earth that they, remembering themselves to be Thy tenants, may not rack and stretch out the rents of their houses and lands… after the manner of covetous worldlings…”
Thus beginning in the 16th century emergence in England of the idea that one person could exclusively own a piece of the Earth destroyed traditional systems of rights and responsibilities binding communities to the land, promoting instead an individualistic culture of “greed and selfishness”. “Private property society”, as Ando Linklater calls in his book Owning the Earth, is “a bizarre mutation alien to most of humanity” and a “monstrous method of owning the earth”.     
Liklater also asserts that the rising profitability of land, and the monetisation of the capital it represented, created the economic conditions that made possible the rise of Britain and, later, the United States as world powers. ‘Only in England and North America,’ he observes, ‘did 17th-century land become capital’; and that decisive change made a ‘vital contribution …to the development of free-enterprise capitalism in both places’.
The converse of this is also true. Those who were denied land ownership were locked out of this crucial economic development.
To quote Winston Churchill (1906):
“Land is a necessary of all human existence, which is the original source of all wealth, which is strictly limited in extent, fixed in its geographical position.”
Private land ownership in most liberal societies is tempered by the notion of Eminent Domain, which is written even into the US constitution, where the state has a right and power to expropriate private property for public use following the payment of just compensation to the owner of that property. The notion of public use is a broad one – and can include necessity, justice, restitution, distributive justice or simply to build and expand public works.
Which brings me to the third part of my talk regarding the Islamic view of property and land ownership?
Now this is an ambitious statement because there are numerous views held by scholars regarding property rights. I want to encapsulate three broad views: The first is that the pursuit and achievement of unlimited private property, acquired through halaal means, and payment of obligatory taxes is permissible. The second interpretation views private property as a means of production incompatible with the Islamic ethos. This view does not however exclude the leasing of that land and the collection of revenue for public benefit. The third respects freedom of property, with limitations, or even suspension depending on prevailing conditions.
It is worth noting that this construction of law of property is based on reflections of 7th century Arabia and in the case of land a full century prior to privatization of land in Europe. This also occurred with a specific historical epoch characterized by a specific mode of production. Also importantly this law developed over centuries with the expansion of the empire, the changing conditions of production, the needs of the rulers, economic development and expanding and diverse populations under Muslim rule.
The philosophy of property relations in Islam is guided by the Quranic principle mentioned at least five times – “Allah is the sole owner of things in the heavens and the earth” (Q 2:107). This asserts the fundamental principle of God’s absolute, natural and divine right of possession of all that his on earth. We as vicegerents are simply given property as a trust (Amanah) – making our use conditional, contractual and effectively usufructory.
This philosophical view of property translates effectively into three domains of earthly control – the leader or Caliph, public ownership held by the state, and private ownership. There are numerous debates amongst the jurists about how each category is constituted and constrained.
Because of the great diversity of views, when we speak about the Shariah view, we can motivate any construct in its name. I am guided by the beautiful definition of Maqasid expounded by ibn Qayyim al-Jawziyah who said:
“The foundation of the Shariah is wisdom and the safeguarding of people’s interests in this world and the next. In its entirety it is justice, mercy and wisdom. Every rule which transcends justice to tyranny, mercy to its opposite, the good to the evil, and wisdom to triviality does not belong to the Shariah . . .the Shariah is God’s justice and mercy amongst His people”.
When we look at the question of land, land ownership and distribution we should view it in this spirit, rather than quibble about the minutiae of jurisprudential hair-splitting.
The truth is we don’t know much about land ownership in early Islamic history except through specific glimpses. I would assume that in early Islam land ownership mimicked that of pre-Islamic Arabia where land most likely was treated as the commons in keeping with tribal norms, with various tribes having ‘rights’ over mutually agreed areas. It is fair to assume that wars were fought, even at that time over land resources for agriculture, grazing and water, particularly in a resourced limited environment.
In later Islam when the empire began to grow and acquire more land, ownership of such lands began to assume much importance. After the demise of the Prophet this again became an issue particularly in relation to his ownership of land in Khaybar and Fadak – and the inheritance of that land. The heirs of the Prophet had claimed the land as their rightful inheritance. However the first Caliph claimed, based on claiming to hear the Prophet say that “Prophets have no heirs” ceded the Prophets land to the state, with the family deriving a stipend from the income.
Land became a political tool to a greater extent during subsequent dynasties of the Ummayads, Abbasids, Seljuks, Saffarids, Gaznawids, Buwayhids and subsequent empires.
We attempt to generalize based on this limited information. However jurists over time have constructed an entire corpus of law on land – dividing land into different categories based on how it was acquired, who the owners were, how it was alienated or disposed of. The various schools of thought have widely differing opinions on the matter and attempting to summarise these opinions is far beyond the scope of this khutbah.
We do know about land captured in war: the stipulation in the Quran and the practice of the Prophet as far as ‘booty’ of war is concerned, is that one fifth of it is for the Prophet and his family and the rest for the poor and distributed amongst the fighters. During the Khilafat of Umar he ruled that booty reverts to the bait-ul-maal (central treasury) – what we term nationalisation – and which was to be used for the community and in the service of establishing a system of social security for all. So instead of soldiers benefitting from land they now received a stipend from the state. This had become a particularly contentious issue among the fighters. In doing this Omar had accepted Ali’s recommendation which was that such a practice would concentrate wealth of the community in a few hands. He argued that privatising common property would compromise the community for the present and future. Public ownership entailed that this land was owned by the state but left in the hands of the cultivators who paid tax to the state.
Omar and Ali’s decision is supported by the following Quranic verse:

59:7 And what Allah restored to His Messenger from the people of the towns – it is for Allah and for the Messenger and for [his] near relatives and orphans and the [stranded] traveler – so that it will not be a perpetual distribution among the rich from among you. And whatever the Messenger has given you – take; and what he has forbidden you – refrain from. And fear Allah ; indeed, Allah is severe in penalty
When these lands accrued to the State, the Caliph had a right to dispose of land in various ways, in order to derive revenue from this land but also to ensure it productivity. The division of land is termed ITQA’A from QATA’A (meaning to divide). One of the great Shafi’I Scholars Abul Hasan al-Mawardi divides this ITQA’s into three categories:
Itqa’a Tamlik – where concession of ownership is given with a right to usufruct benefit as well as ownership. This seems to be in a minority of cases although this changed during later dynasties.
Itqa’a Istiqlal – where the right of exploitation or concecession of usufruct alone is given, without right of ownership or sale.
Itqa’a Irfaq – where there is temporary grant of land use for a specific purpose – for example a market or business.
The ownership of mines has a divided opinion based on conflicting narratives. The first is that the Prophet disagreed with the privatisation of mines. In one case a man came to the Prophet requesting that he be given a lake; when the Prophet realised that it was a salt lake he refused to grant it to him. Another narration reports that the Prophet said: ‘people are partners in three things: water, fire and pastures”. Thus many scholars hold that mines should always be public property for the common welfare. Imam Malik holds that if a mine is found on private property it becomes the property of the state. There are other narrations where the Prophet had permitted private mining. This could however relate to usufructory rights and not ownership.
The caliph also has a right to reclaim land privatised. Umar is said to have nullified large grants of land that had been given to individuals as their private property by Abu Bakr on the grounds that the grants were unduly large.
Land left uncultivated for more than three years can also be appropriated by the state. Omar confiscated that part of a land grant given by the Prophet to Bilal bin Harith which he did not reclaim or rehabilitate, arguing that it constituted a waste of public resources. The Prophet is reported to have said: ‘old and fallow lands are for God and his Messenger, and then they are for you”. The Prophet is also reported to have said: “a deserted plot of land will be the property of the one who brings it into use and anyone who does not make use of it for three consecutive years will have no right to it after the expiry of the said period”. This clearly is intended to prevent hoarding and speculation.
Most scholars recognise the right to private property – either through labour, gifts, inheritance, bequests or purchase. However such rights are not unlimited by are subject to curtailment.
However there is also an acknowledgement of a prior right of the community. So for example according to Maliki and Hanbali jurists, dwelling unit owned by landlords in excess of their immediate use could be legally expropriated in favour of the homeless if society swells with homeless people.
Imam Malik also holds that if the exercise of private ownership causes injury and harm to others, Islam would rule the suspension or curtailment of such rights.
Furthermore, in cases of pressing necessity, for example in a famine, the property and food of those who possess them is made lawful to those in need.
In summary, the Islamic ethos veers towards common ownership, but permits private property. However the ownership of private property is conditional and subject to a prior right of the community.

Finally, I want to make a few final points regarding land restitution in South Africa, which is necessary but complicated.
Before I say this, three myths must be dispelled. The first is that most land restitution claimants have chosen cash compensation above land restoration. This may be true in urban locations because of the impracticality of restoration; however in rural areas a great majority have chosen restoration.
The second myth is that 90% of land reform projects have failed. Empirical evidence suggests that around 50% of projects have improved the livelihoods of beneficiaries to some degree.
The third myth is that we can employ a kind of ‘native fundamentalism’ and draw a linear line between specific lands and pre-colonial communities. We can in some specific cases, but in the vast majority of cases communities were mobile, and changing over time discounting any notion of homogeneity. Furthermore some of these communities were at war and displacing each other. This does not discount the need for land restitution, but questions the basis on which such restitution should be considered.
There are, what we call a few low-hanging-fruit which would impact enormously on people’s lives in the near future.
⦁ The first is that we need to focus on both rural and urban land because there is an irreversible of shift of people to the cities. This is a global phenomenon. So while rural agriculture and subsistence farming is necessary, equally important is urban housing that both provides accommodation to our residents closer to our cities, but also begins to integrate our city.
⦁ Secondly, there seems to be a paucity of data on land ownership in South Africa. Without adequate data any policy and effectiveness of such policies would be deeply flawed.
⦁ Land reform is based on four pillars and each one requires urgent attention. These four pillars are restitution, redistribution, tenure reform, and urban housing.
⦁ The land claims court can accelerate land restitution for which the legislation and mechanisms are already in place.
⦁ The state and SOE owns massive tracts of land both in urban and rural areas. We should create mechanisms to make this immediately available for farming and housing.
⦁ Any form of land restitution for agriculture needs to be accompanied by the necessary support to ensure its success.
⦁ The Ingonyama Trust Act, which owns massive tracts of land, and was a pact between the IFP and the NP in KZN in the dying days of apartheid needs to be dismantled and the people living on the land given title to their land. Alternatively this Trust must be transformed into a democratic institution that benefits its citizens.
⦁ Ensure urgent rights of tenure to those living in communal areas, farm dweller communities and informal settlements.
⦁ We can begin by Implement the recommendations of Kgalema Motlanthe’s High Level Panel Report on land restitution which makes specific positive recommendations.

I will conclude with a quote from Steven Friedman, one of our most astute commentators.
Outsiders might be surprised that tensions caused by economic inequalities focus on land – farming has not been South Africa’s key industry for decades. The reason it triggers such heat is that for South Africans, “land” is a symbol of far more than an expanse of soil. For most people, it has nothing to do with agriculture at all.
Historically, the demand by black freedom movements for the return of the land meant the return of the country to its people – it was directed not only at ownership of farms but at minority control of the economy and society. This is why expropriation without compensation has become a rallying cry for many who have no interest in farming but who feel that a quarter century of democracy has not ended white privilege. It symbolises a much broader demand for change.
It is also why no-one has paid much attention to arguments about the technical merits of land expropriation and why there is such support for a constitutional change despite the fact that there is no need for it because expropriation without compensation is possible now.
Property rights are protected by Section 25 of the constitution which stipulates that compensation must be paid. But it also says that this may not be used to impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination.
So, if the government can show that expropriation redresses race discrimination, it need not pay compensation.
But this has been ignored because the dispute is about dignity and equality, not constitutional clauses.

Allah has honoured and given dignity to human-kind. Part of that dignity is about financial security of which land plays a critical part.

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