Constitutional Court ruling fails to catch imagination of commentators

THERE is a fight in our rural areas for democracy and economic fairness. But, because those who are fighting it are not the sort of people whose rights matter in the suburbs, few of us know about it.

How about this for an event to catch the imagination of commentators and journalists — of everyone in the national debate? A group of property owners are denied what is rightfully theirs by an authority figure backed by the government. They approach lawyers and, after seven years, the Constitutional Court rules that they are entitled to their property. Researchers point out that there are many more people like them and that the court’s ruling is an important turn in the fight between them and the authorities. Surely, within hours of this becoming public knowledge, social media would be heatedly debating it as commentators sounded off in the regular media?

Well, no. Hardly anyone has noticed, despite reports in some newspapers and — to its credit — a feature by TV channel eNCA. Instead, debate has been fixated, among other things, on a bizarre frenzy triggered by an education department decision to recognise Mandarin as a subject in our schools (like any other language besides English, no one will be forced to learn it and the decision will not affect the lives of 99.9% of the population; this has not prevented the kind of reaction usually reserved for major scandals).

The owners in question are members of the Bakgatla-Ba-Kgafela Communal Property Association in the North West’s platinum belt, who have waged a legal battle with the area’s chief and tribal authority over who controls land awarded to local people after a land restitution claim. The Constitutional Court has ruled that the association and its members are entitled to the land and so the traditional authority’s plan to decide what to do with it has been thwarted.

Land rights campaigners are excited about the judgment because it may make it more difficult for the government and traditional leaders to work together to ensure that chiefs wield power over rural people. As this column has pointed out, the government is increasingly keen to bolster the power of traditional leaders. It has been tilting in this direction for a while, but its support for rural power holders has grown — presumably because it hopes chiefs will press their subjects into voting for the African National Congress (which they may well have done in KwaZulu-Natal two elections ago), making up for lost votes in the cities.

One sign of this strategy is government enthusiasm for control by chiefs of the land redistribution process. It claims that it is recognising the power of tradition in the countryside: rural people, it suggests, are loyal to their chiefs and it is only biased city-dwellers who think otherwise.

But if rural people accept the authority of chiefs, why has the government tried to pass the Traditional Courts Bill, which would forces them to do that? The land case shows that one result of boosting the chiefs is not to celebrate tradition but to deprive people of their due. Now that the court has endorsed the right of a communal property association comprised of "commoners" to own land, rural people may be more likely to insist on this right.

So the judgment is potentially a boost for democracy. Land is not only a source of sustenance: it is also a form of power and so the ruling makes it more difficult to chain country people to an authority they may reject. It is also important to the economy. The right to own property — individually or in common with others — is the cornerstone of the market. By upholding property rights, the court has arguably struck a blow for participation in the market by rural people.

The battle in rural areas is one between arbitrary power and the right of people to make free political and economic choices. At stake is what sort of society millions of rural South Africans will inhabit.

That it is largely ignored confirms the bias at the heart of our national debate. We hear endlessly that democracy is under threat from the state — and that it is important to respect property rights and to allow markets to operate freely. But, for not the first time, "democracy" for most of those whose voices we hear means the rights of people in the suburbs only. Praise for markets means that the suburbs should keep what they have, not that peasants in North West should have some of it too.

In the dark days of apartheid, the Liberal Party launched a sustained campaign in support of farmers in what is now KwaZulu-Natal, who were being moved from their farms simply because they were black. It realised that, if liberals could not defend the property rights of black farmers, these rights meant nothing at all. That message has long been forgotten. Today, for those who tell us what to think, freedom — political or economic — is the right of a relatively small club in which the members of the Bakgatla-Ba-Kgafela Communal Property Association are clearly not included.

• Friedman is director of the Centre for the Study of Democracy