THE LAND IS OURS: South Africa’s First BlacK Lawyers and the Birth of Constitutionalism
Penguin Random House
Cutting through the noise surrounding the land debate, Tembeka Ngcukaitobi skillfully delivers a harrowing and moving historical account of the economic devastation meted out to black South Africans from large-scale dispossession at the barrel of colonisers’ guns.
He revisits the colonial-era laws and legislation that followed the formation of the Union of SA. They were used to ensure that black people were not only left landless but also locked out of the economy.
In this important work — released in the middle of a raging land debate — Ngcukaitobi separates facts from myths. He also unpicks urban legends about ownership while debunking the concept of white meritocracy in SA. The structural pillars of the country’s economy were, after all, built on black suffering.
Through the lens of examining key pieces of legislation, Ngcukaitobi uses his probing legal mind to shine a light on the stratagems devised by the British colonisers and Afrikaner nationalists to unlock SA’s wealth for their ilk. He traces their targeted and strategic administrative cruelty back to the Frontier Wars in the Eastern Cape and KwaZulu-Natal. These provinces were sites of brutality as the Xhosas and the Zulus fought the colonisers to keep their land — and lost. Those defeats reverberated through the generations to today.
Ngcukaitobi pays homage to a pioneering generation of black lawyers and professionals whose work provided the foundation from which SA’s struggles against colonialism and apartheid were mounted.
Alfred Mangena lived in defiance of this restriction. Spurred on by Charlotte Maxeke to study law, he prospered and left an indelible legacy in the legal fraternity
The Land is Ours is divided into three segments: Land, The Lawyers and Legacies — all methodically crafted to render a compelling account of the legal foundations of dispossession.
Ngcukaitobi begins when SA was a fragmented land mass carved up into autonomous zones run by the British and the Afrikaners. This created a legal minefield that black people had to navigate, as they were subjected to arbitrary laws and the whims of British administrators and the English throne, as well as Afrikaner nationalists.
After defeat in the Frontier Wars, black South Africans were economically devastated and their main means to attain emancipation was through education at rural missionary schools and historically black universities in the US.
UK institutions of higher learning also produced black lawyers and professionals, who used their education to fight for self-actualisation.
Henry Sylvester Williams is the embodiment of the structural limitations black people faced in their quest to unshackle themselves from the chains of their oppressors. He was a trailblazer and a tragic figure and his story represents the systemic limitations imposed on black South Africans, and the administrative inconsistencies and incongruities of colonialism.
In a chapter entitled We Don’t Want to Swamp the White Man in Africa, Ngcukaitobi opens with a quote from academic ZK Matthews: "One of the difficulties confronting educated Africans in [SA] … is … a choice of career. When a white young man is considering his life’s work, he has the whole wide world to choose from for a career. He can enter any profession he wishes as long as he has the ability to acquire the necessary qualifications. Not so for the African young man …"
Alfred Mangena lived in defiance of this restriction. Spurred on by Charlotte Maxeke to study law, he prospered and left an indelible legacy in the legal fraternity. Mangena was "a revolutionary at core, he pioneered the use of the law as an instrument of revolution.… His vision of a nonracial society, based on equality and the rule of law, is now commonly accepted. [For] Mangena, injustice could only be fought with justice; illegality with legality; and colonialism with constitutionalism."
Ngcukaitobi also examines the life and times of the "most gentlemanly" Richard Msimang, the first South African to qualify as a solicitor in England and Wales. He was co-opted into the nascent South African Native National Congress (SANNC) by his brother Selby Msimang.
"From that moment, his life took a different trajectory as he became an activist as well as a lawyer," notes Ngcukaitobi.
The SANNC was the forerunner of the ANC and was formed at one of the most difficult junctures in SA’s history. Msimang observed: "The ANC was unfortunate.… It was established in 1912. In 1913, before it had settled as an organisation … the government introduced the Land Bill.… It meant that every effort must be made to fight against the bill. So some of us had to give up our jobs and go out organising — explaining to the people what this new bill contained …
"African farm labourers were uprooted, sent away. All conditions of employment were changed under this act. [My] brother’s job was to go, follow up with families and keep a record …" The SANNC entrusted Richard Msimang and journalist Sol Plaatjie with the responsibility of capturing accurate records of the consequences of the Natives Land Act for Africans. The effect of the act was removal from the land and the deprivation of cattle and other livestock, many people’s only means of wealth and livelihood.
"[Richard] Msimang concluded that the Natives Land Act had created ‘slavery, persecution and vagabondage’," Ngcukaitobi notes.
"By using individual stories of eviction, hardship and deprivation, Msimang was able to demonstrate … the act achieved three interrelated outcomes.
"First, the loss of land and the drastic curtailment of security of tenure with black people being evicted at the whim of government or any white person.
"Second, the loss of property, particularly in the form of cattle. The accounts show that cattle were not ‘lost’ but were instead confiscated and taken away by white farmers.
"The third outcome was the overnight conversion of black people into a class of [unpaid] labourers. Physical punishment was commonplace …
"Like homo sacer, the metaphorical figure of Roman law, a white farmer could kill a black worker, but the killing would not count as murder."
In the chapter entitled In All Races, Ngcukaitobi portrays the complex and adventurous life of Pixley ka Isaka Seme. The "force of his personality was undeniable virtue. But it was also something of a vice, weighing on his shoulders and threatening to undermine his legacy," he writes. "Seme has been described as ‘the moving spirit’ behind the emergence of the [ANC]. His urgent aim was the destruction of tribal identity."
Ngcukaitobi unearths The Birth of Constitution, opening the final chapter with a Maxeke quote: "Many of the Bantu feel and rightly too that the laws of the land are not made for black and white alike." He resurrects the legacy of Dr Alfred Bitini Xuma, whose "human rights and pacifist culture" led to his undoing as ANC president. Xuma is credited with modernising the ANC and with being the strategist under whose watch power in the party was centralised to its national executive committee. "Despite his criticism of Xuma, [Nelson] Mandela acknowledged the role Xuma played in making the ANC a cohesive, functional organisation.… This ANC, as reimagined by Xuma, continued into the present … "
In all, Ngcukaitobi succeeds in building a case for grounding the current land debate in historical and legal facts.