GUEST ARTICLE: Land Expropriation – What Do We Do About Land?

by Daniela Ellerbeck
12 December 2018

By Adv. Mike Pothier, Catholic Parliamentary Liaison Office

“Land will not be sold absolutely, for the land belongs to me, and you are only strangers and guests of mine. You will allow a right of redemption over any ancestral property. If your brother becomes impoverished and sells off part of his ancestral property, his nearest male relative will come and exercise his family rights over what his brother has sold. The man who has no one to exercise this right may, once he has found the means to effect the redemption, calculate the number of years that the alienation would have lasted, repay to the purchaser the sum due for the time still to run, and so recover his ancestral property. If he cannot find the sum in compensation, the property sold will remain in the possession of the purchaser until the jubilee year. In the jubilee year, the latter will vacate it and return to his own ancestral property.” Leviticus 25: 23 – 28

Land is a strange thing. Of all the many physical requirements that are vital for human life here on earth, most can be made, grown, planted, mined and processed by us: food, minerals, the fibres for our clothing, the chemicals for our medicines. Even water, which we can’t really manufacture, can be obtained from the sea, if we can afford desalination.

But not land. Along with the air we breathe, land is finite – what we have is all we will ever have (we can discount reclamation of land from the sea, as happens in a few cities around the world, since it is far too expensive and disruptive to be undertaken on a meaningfully large scale). And this finite resource is absolutely vital for everything we do, from our economic undertakings to our domestic lives, our recreation, and our cultural activities. For most people, even the end of their lives requires the use of land, as their bodies or their ashes are ‘committed to the earth’.

Small wonder, then, that the Jewish people understood that so unique a resource had to be treated in a special way. To understand God to be saying that land should not be ‘sold absolutely’ implies also that it may not be owned absolutely, since whoever owns something absolutely must be able to sell it – otherwise his or her ownership is not absolute; it is limited.

This idea is generally not recognised in western legal systems, where land is indeed owned in an absolute sense, subject only to things like zoning restrictions. But it is intuitively upheld in most indigenous and customary legal systems around the world, where land is seen as belonging to the community, with everyone entitled to use the land for purposes, and periods of time, determined by the community. In such societies you may holdland, and use it, but you do not own it any final, exclusive and individualised sense.

What both Leviticus and African customary law tell us – at the risk of over-simplifying a complex matter – is that land should not be treated as just another commodity, to be bought and sold like a car or a share portfolio.

This clash of understandings lies at the heart of the heated debate on land in South Africa today. There is a fascinating entry in Jan van Riebeeck’s diary for April 5thand 6th, 1660, where he recounts a meeting with the local Kaapmans, the Dutch name for the Goringhaiqua group of the Khoikhoi:

[T]hey strongly insisted that we had been appropriating more and more of their land, which had been theirs all these centuries, and on which they had been accustomed to let their cattle graze, etc.

They asked if they would be allowed to do such a thing supposing they went to Holland, and they added: ‘It would be of little consequence if you people stayed here at the fort, but you come right into the interior and select the best land for yourselves, without even asking whether we mind or whether it will cause us any inconvenience. […] as for your claim that the land is not big enough for us both, who should rather in justice give way, the rightful owner or the foreign intruder?’

Implicit in this complaint is a willingness to compromise, to share; a recognition that land is needed by everyone, and that it should not be exclusively appropriated by one group alone. What upset the Goringhaiqua most was the failure of the settlers even to ask or negotiate, before they simply grabbed the best land. But as far as van Riebeeck was concerned, it if didn’t have someone else’s fence around it, it could be taken. And he had no interest in compromise; as he wrote later in the same year, “As we become better stocked with cattle, we shall have to deprive the Kaapmans of all the Cape pasturage as [we] will soon need it all for [our] own livestock.”

This is the history that has brought us to where we are now – a fundamental clash of approaches to land, coupled with an uncompromising attitude on the part of the settlers. Sadly, as the recent parliamentary hearings into land expropriation made clear, many of the descendants of those settlers have learnt nothing in the intervening three hundred and fifty years. The representative of Afriforum told the Constitutional Review Committee that most of the land his ancestors had acquired – at the time of the Great Trek, presumably – had been ‘empty’; therefore, there was no reason why it should now be given back.

Such an attitude, of course, is manna from heaven for extremists on the other side of the land debate. It reaffirms their position that the only thing to do with land is expropriate it all and nationalise it, so that the State can then distribute it according to some kind of master plan. The fact that similar schemes have brought disaster to Zimbabwe and Venezuela recently, as they did 90 years ago in the Soviet Union, is ignored.

Given, then, that we have at least two very stubborn sets of protagonists here – the ‘don’t you dare touch my land’ brigade and the ‘give it all back right now’ brigade – what should thinking people do? How should people of faith be approaching the problem?

Firstly, those who own land should be honest about realising the injustice of the current pattern of land distribution in SA. Van Riebeeck’s determination to take whatever land he wanted was followed over the years by successive waves of land theft, subsequently sanctified by laws such as the 1913 Natives Land Act, and of course by the apartheid ideology of restricting black land ownership to the ‘homelands’. It is an injustice that cannot be left unresolved merely because it is difficult, even risky, to address; or merely because the whole question has become politicised.

Secondly, we need to assert the Leviticus position: land is not a commodity; no-one owns it absolutely; it is God’s land and we are God’s guests on it. If we can all accept this deep truth about land, we will surely do a little better than we are now in finding out how to accommodate each other’s needs and legitimate demands regarding land.

Thirdly, we should not fall victim to the scare-mongers – those who claim that the current moves towards a constitutional amendment are some kind of crisis point that will wreck the economy and endanger investments, destroy our food security and generally create havoc. Let us have a little faith! There are no indications that the government intends to embark on widespread expropriation. Constitutional lawyers broadly agree that the property clause in the Constitution already allows for expropriation without compensation, and yet government has not done so once in the 22 years since the Constitution came into force.

No doubt the land question will be one of the issues dominating the headlines as we approach next year’s election. All the political parties will use it as a vote-catcher. Far more heat than light will be generated. Let us all do what we can to keep people’s temperatures down and their minds open.

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