Advocate Tembeka Ngcukaitobi. DAILY DISPATCH/ LULAMILE FENI
Advocate Tembeka Ngcukaitobi. DAILY DISPATCH/ LULAMILE FENI

The tensions sparked by the prospect of land expropriation without compensation would not exist if the Truth and Reconciliation Commission had tackled the land issue.

Advocate Tembeka Ngcukaitobi‚ author of the book "The Land is Ours"‚ told a national land colloquium at the University of Cape Town on Friday that even if the Constitution was amended‚ there would be insufficient land for restitution.

"One of the problems with the TRC was that it did not include the land‚" said Ngcukaitobi‚ a panelist alongside former Constitutional Court justice Albie Sachs.

"It included this idea of human rights‚ but land as a fundamental human rights violation on its own was outside the terms of reference. That has consequences for what we are dealing with today.

"What it means is that those people who took the land … could not account publicly: either apologise‚ face the people they dispossessed or explain the consequences. And the people who were dispossessed also had no opportunity to talk of their … pain."

This pain was now emerging at land hearings around the country. "Generations and generations of children who are experiencing not immediate trauma but intergenerational trauma are talking there in those hearings about why they believe the problem is with the constitution‚" said Ngcukaitobi.

"All of us know that the problem is not with the constitution‚ the problem has been the failure to resolve the unresolved issues despite an enabling environment‚ despite an enabling legal framework."

Ngcukaitobi said South Africa should shift its focus from restitution to what citizens need‚ because even if outstanding land claims were settled it would amount to a drop in the ocean.

"I want the land but I don’t want the land in the Eastern Cape where my father is from. I want the land in Johannesburg. That is why I say we really need to focus on what we need‚ and if it is about citizenship why don’t I get the land where I work?"

Sachs said the TRC could not have included land because "we weren’t strong enough then". The commission had dealt with perpetrators of crimes‚ and "we thought parliament would examine apartheid".

He said recent criticism of the TRC came from a new generation which felt there had been insufficient accounting for injustices of the past and "injustices that continue into today".

Sachs‚ who had his right arm blown off by a car bomb in Mozambique while he was involved in the Struggle against apartheid‚ said: "I walk around with a short arm. In Mozambique there are people without legs. They were child soldiers‚ their country hasn’t recovered from the devastation of the civil war.

"In South Africa we have avoided that. We don’t have to pick up a gun."

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