On 4 August 2022, Ms Iwana Hartmann, a PhD student in the Faculty of Theology and Religion at the University of Pretoria, delivered a paper entitled ‘Does the new South Africa, and its accompanied constitution, make provision for the oldest nation of South Africa?’ at the first national inter-disciplinary postgraduate conference hosted by the Faculty of Law on the Hatfield Campus. Ms Hartmann was supported by fellow students and professors from the Faculty at this conference.
Ms Hartmann distinguished herself in her emerging academic career both through the relevance of her topic, and the exceptional delivery of her paper through this presentation. Following the presentation, a robust debate followed, through which members of the audience were given a chance to ask probing questions related to her topic of choice.
In spite of the common critique of theorists and intellectuals working at institutions like the University of Pretoria, namely that they do so in silos, unaware of what others are engaged with in terms of research and community impact, Ms Hartmann has demonstrated that a student of Theology can add value to conferences about Law, and the full text of her paper can be found below.
The revisiting of the political and juridical foundations of South Africa, as proposed by the Minister of Tourism, Lindiwe Sisulu, needs to take into account the first nation of southern Africa, the Khoisan. If this conference aims to answer whether the “new” South Africa is really “new” at all, it needs to be discussed whether this first nation has been viewed in a “new” light concerning the new Constitution of South Africa. Has the Khoisan been elevated to a new dignity or are they constitutionally exactly where they were before 1994? In other words, has the status “first nation” been awarded to them and ancestral lands restored to them? If not, “whose law is it anyway?”. This paper will focus on the theme of “Property and land as key areas of constitutional contention and debate”. The “Restitution of Land Rights Act 22 of 1994” allows for land claims only after 1913, which excludes the Khoisan. This paper will explain how the Khoisan viewed land in contrast to the Dutch, and how the dispossession thereof was done in bad faith. The new Constitution of South Africa ought to make provision for the Khoisan in order to dignify them along with other marginalised groups, including the black majority population.
Good morning fellow students and academics, my name is Iwana Hartmann and I will be presenting a paper today titled: “Does the “new” South Africa, and its accompanied constitution, make provision for the oldest nation of South Africa?”. This paper is an extension of the research that I have conducted during my master’s degree in which I focused on the Khoisan religious belief system and the syncretisation that took place with Christianity upon the arrival of the Dutch in southern Africa. Therefore, it is significant to mention that my approach will be through the academic lens of theology and religion. I would like to thank the organisers for welcoming the faculty of Theology and Religion to this conference.
It is important to highlight that land is, and has been, a heated debate within South Africa. This paper does not aim to ‘solve’ this debate. However, it does intend to illustrate that the Khoisan are being excluded from the debate and therefore this paper can serve as a conversation starter. Sisulu (2022) states that “The land is where it all begins. And the law of the land makes or breaks”. I will begin with a short introduction on the Khoisan and will then separate my presentation into two different epochs; (1) The status of the Khoisan prior to South African democracy (1652-1994) and (2) The status of the Khoisan in the current democratic South Africa (1994-2022). The first epoch will explain how the Khoisan was regarded prior to South African democracy, and the second epoch will discuss how the Khoisan is presently viewed in the “new” South Africa. Thus, this paper engages whether the manner in which the Khoisan was regarded has changed in South Africa within the framework of land.
1.Who are the Khoisan?
As a departure point, it is important to clearly define who the Khoisan are to avoid any possible confusion. The Khoisan consists of two southern African tribes, the San and Khoikhoi. Initially, both these tribes were hunter-gatherers until some of them adopted cattle breeding techniques and separated themselves, establishing the Khoikhoi society. As a result the hunter-gatherers came to be known as the San and the pastoralists as the Khoikhoi. Thus, there were two separate societies in southern Africa when the Dutch arrived in 1652. However, the Khoikhoi and San were forced to unify under the influence and pressure of Dutch colonialism. This unification took place because their social, cultural and religious structures were diminishing under the colonial rule of the Dutch. In 1928, Leonard Schultze, a German anthropologist, coined the term Khoïsan on the foundation of their common southern African derivation. This term, therefore, refers to the intermingling, intermarriage, acculturation and assimilation of the San and Khoikhoi. This paper will use the collective term Khoisan to refer to the Khoikhoi and San during both time periods discussed to ensure coherency.
The core aspect of the Khoisan culture, and their religion for that matter, is its holistic nature. This means that their facets of life are interconnected with one another, making each part interdependent. This holistic nature of the Khoisan life means that if one takes away or adapt any single cultural, economic or religious aspect, other facets of their lives are impacted as well. This will be illustrated throughout this paper concerning the dispossession of land. Therefore, when land was taken away from the Khoisan, the essence of other parts of their lives started to disintegrate because land was integral to their existence.
It is significant to note that generally, land for indigenous people, is viewed beyond its economic and productive value. Even though land was used by the Khoisan in terms of hunter-gathering and pastoralism, it was also linked to traditional and customary value. This includes their spiritual link to the land and how they can execute their cultural beliefs and traditional practises. Thus, land is where sacred places are revered, and where their history, knowledge, culture, and traditional practices were established. Land was regarded as a gift from the Khoisan Supreme Being, Tsũi-||goab, and not as something that one individual could solely own. Therefore, land was seen as a God-given space on which the Khoisan practiced their culture, traditions and religion. Furthermore, cultural rites tied a tribe to a specific location. For example, in the event of the birth of a child, the umbilical cord was buried in the family kraal where the funeral would then subsequently take place. In addition, ongoing ancestral rituals at graves strengthened their spiritual attachment to specific locations.
This paper aims to illustrate that the right to land, and the restitution of land, is connected not only to the collective Khoisan, but to other human rights as well. Access to land includes, or leads, to the following: economic survival and development, right to self-determination, right to practice culture and traditional ways of life. Therefore, as a consequence, the lack of access to land claims threatens the survival of the Khoisan as a whole. These human rights are therefore interrelated, interdependent and indivisible in nature. Access to land and natural resources allow the Khoisan to practice their cultural rites. They are, therefore, dependent on these two aforementioned elements. In the same way that the culture of the Khoisan is holistic, human rights are holistic and indivisible from each other. Justice links to the overcoming of historical injustices and the redress of past actions. However, this seems absent in South Africa in regard to the Khoisan (Report of the South African Human Rights Commission 2015:11). With this short introduction I will now address the two epochs alluded to earlier.
2.The status of the Khoisan prior to South African democracy (1652-1994)
The Empty or Vacant Land Theory was put forth by European settlers in the 19th century in order to promote their claim to land in South Africa. However, this theory is considered a myth in contemporary studies. This ill-regard for the Empty Land Theory is due to there being no historical or archaeological evidence to support these empty land claims. This theory was reaffirmed by South African historian George McCall in the 1890’s. These assumptions were then taken up by the Apartheid government by which they were used as foundation to establish the “homelands”. These homelands came to a mere 13% of the total landmass being attributed to non-Whites. The Apartheid government argued that the rest of the land, excluding the homelands, possessed no indigenous inhabitants and were therefore in the possession of the Whites. If the homelands is taken into consideration, what, or rather who, is missing? The Khoisan. The majority of people being forced to live in only 13% land mass resulted in the land being overgrazed, eroded and impoverished. In the 1980’s, revisionists, liberal historians and archaeologists began to oppose the empty land theory. In addition, they pointed out how there was a deafening silence on the existence of the Khoisan.
The effects of colonisation and Apartheid led to the Khoisan becoming invisible both socially and politically. The forced assimilation into certain ethnic groups can also be seen as a foundation for this lack of recognition. The destruction, assimilation and land dispossession that accompanied the arrival of the Dutch are acknowledged, however, the demands that are made by Khoisan activists are not being engaged with.
Therefore, the following terms and concepts can be used to describe how the Khoisan were regarded prior to democracy; exclusion from their own homeland, deprived from their indigenous status, forced to unify under the pressure and influence of Dutch colonialism, socially- and politically invisible and unrecognised, having no vote and dispossessed of land. I will now move on to the second epoch of this paper titled “The status of the Khoisan in the current democratic South Africa (1994-2022)”.
3.The status of the Khoisan in the current democratic South Africa (1994-2022)
Jacob Zuma, the then Deputy President, acknowledged the Khoisan as the first indigenous people of South Africa in his speech at the opening ceremony of the Khoisan Consultative Conference in March 2001. Zuma continued by stating that the Khoisan were the first to wage wars against the colonisers of the 17th century. Again, in 2012, during the State of the Nation Address, President Jacob Zuma argued that “As a free and democratic South Africa today, we cannot ignore to correct the past”. These statements insinuate that the Khoisan are being viewed in a new light. However, Khoisan communities have complained that these statements have not resulted in any support or way forward. Acknowledgement of the Khoisan through reference to the Khoisan languages, the national coat of arms and the Traditional Khoi-San Leadership Bill as well as public statements do not substitute for official and legal recognition of the Khoisan. Furthermore, President Zuma acknowledged that the Khoisan communities were dispossessed of land prior to 1913 in his 2013 State of the Nation Address. Therefore, exceptions would be made to the 1913 cut-off date. Verbuyst (2016:85) argues that the South African government holds an ambiguous position on the recognition and restitution of the Khoisan.
The South African Rights Commission state that submissions made allege that the Khoisan were not asked to participate in the Convention for a Democratic South Africa (CODESA) and the results thereof are seen in the Constitution where little recognition is given to the Khoisan except for the indigenous language section. Furthermore, the national motto on the coat of arms of South Africa features a Khoisan language despite not being included in the eleven official languages. This motto can be translated as “people who are different, together”. The Khoisan have faced systemic discrimination, marginilisation, exclusion from social-, political- and economic affairs and dehumanisation.
McLachlan (2018:1) highlights in his LLD dissertation that when the dispossession of land is discussed within South Africa, the terms apartheid and colonialism are used interchangeably. He states that if these two land dispossession periods are “…similar in nature [they are then] … therefore equally reprehensible”. However, he emphasises that the creators of the new South African Constitution did not acknowledge their similar nature. Additionally, McLachlan (2018) argues that dispossession caused by apartheid legislation as well as colonial dispossession of land needs to be addressed. The University of South Africa held a seminar in 2018 that discussed land expropriation without compensation. However, the Khoisan were not invited to this discussion. After protest, Khoisan activists were allowed to attend. This discussion included disapproving noises from the audience when Khoisan land restitution was discussed as well as Mosiuoa “Terror” Lekota, the previous ANC defence minister, being laughed off the stage when coming to the Khoisan’s defence.
The Restitution of Land Rights Act Section 2(1)(d) therefore does not support the indigenous people of South Africa, forcing them to rely on Section 25(5) which gives access to land based on ancestors that occupied and lost the land prior to the 1913 cut-off date through redistribution. This act states that land claims can be made only after the cut-off date of 1913. Hall (cited by McLachlan 2018:2) explains that redistribution is “discretionary” while restitution claims have the rights to compensation or restoration. McLachlan (2018:2) adds that two different approaches being used before and after the cut-off date is “inherently unfair”. He continues by stating that “indigenous communities have been marginalised by the approach adopted in the constitutional land reform programme”.
But what are the Khoisan saying? The Constitution of South Africa recognises the multicultural character of South Africa. However, the Khoisan claim that they feel they are not part of this diverse country. They feel like outsiders due to the social and official exclusion of their community. It is argued by the Commission that the Khoisan people explained that “the new dispensation has not given us hope” and added that despite being 24 years into the new democratic South Africa, they still feel like outsiders. The first land summit held by the Khoisan Liberation and Mass Movement included the demand that the Restitution of Land Rights Act be amended. The cut-off date of 1913 is the biggest obstacle to the Khoisan claiming land in South Africa (Secorun 2018:4). The 1913 cut-off date being amended will largely be a symbolic gesture to recognise the history of dispossession of land in South Africa. During an interview with a Khoisan leader at the Union Buildings known as King Khoisan, he explained that they are excluded from claiming ancestral lands due to the 1913 cut-off date. The Report of the South African Human Rights Commission (2015:92) argues that “without an official and legally recognised existence as a distinct group within the Country, we [the Khoisan], as a society will be unable to realise the vision of the Constitution in healing the division of our past and establishing a society based on democratic values, social justice and fundamental human rights”. Secorun (2018:1) adds that that the Khoisan are a minority that feels victimised by the restitution of land plans that are in place in South Africa. They feel as if they are being excluded. Anthony Phillip Williams (cited by Secorun 2018:3) poses the following question: How can our [Khoisan] culture survive if we have no place where to practice it?
Therefore, the following terms and concepts can be used to describe how the Khoisan are currently regarded in democratic South Africa; lack and delayed official action, public statements and acknowledgements used strategically for support, the Khoisan present on the coat of arms as an empty act of recognition, excluded from building the new South Africa through the Constitution, unheard, excluded from official language recognition, marginalised, feeling like outsiders and land claims being accorded at the government’s discretion. The conclusion of this paper will now follow.
The road to the Khoisan being dignified hinges on the issue of land. The 1913 cut-off date being amended can be seen as a step towards being politically recognised. This may sound like a small gesture, but the holistic nature of the Khoisan and land being integral to it plays a crucial role. Therefore, this paper proposes that the manner in which the Khoisan were and are regarded can be changed through the amendment of the 1913 cut-off date. This is supported by the statement made by Verbuyst (2016:85): … issues such as citizenship, identity, memory, healing and belonging have to be taken into account to understand land claims as well.
So, have the Khoisan been viewed in a new light? Have they been elevated to a new dignity? Or are they constitutionally exactly where they were before 1994? Prior to the new South Africa, the Khoisan were stripped of their land, voiceless and invisible. While they now enjoy the same freedoms as other South African citizens, this still seems to be the case. Thus, the Khoisan has not been viewed in a meaningfully new light, despite some promising gestures and announcements from state officials. Verbuyst (2016:85) argues that the Khoisan culture and identity were suppressed under colonial rule and continue to be under the new South African government by lack of recognition. The Report of the South African Human Rights Commission (2015:12) urges that the rebuilding of trust between the Khoisan, State and other groups can only take place through an environment where their rights are recognised, not eroded. However, it is of vital importance to emphasise that the Khoisan ought to be engaged with so that their own perspectives can be heard. This can take place through the Khoisan being viewed as equal partners in discussions.
The differing identities and values in the diverse social contexts and cultures need to be recognised in order for equality and justice to take place. If the Report of the South African Human Rights Commission (2015:8-9) as well as the Special Rapporteur of the UN’s recommendations are not being engaged with, or fulfilled, whose law is it anyway? Khoisan activists highlights the difficulty that accompanies land loss or heritage sites in the framework of keeping their cultural practices alive (Verbuyst 2016:85). This paper concludes with the following statement from Sisulu (2022): But where is the indigenous law? It has been reduced to a footnote in your law schools. Where are the African value systems and customs of land, wealth and property?
 Apartheid was established in 1948.
 The Homelands were established in 1951.
 In regard to the Traditional Affairs Bill and Leadership Bill, the traditional leaders of the Bantu possess land and boundaries over which they have control, whereas the Khoisan leaders do not and land restitution remains inadequate (Report of the South African Human Rights Commission 2015:58).
 Section 25 (7) of the Constitution through the Restitution of Land Rights Act (Restitution Act) enables all people to claim restitution (Report of the South African Human Rights Commission 2015:47).
 “To provide restitution of rights in land to persons or communities disposed of such rights after 19 June 1913 as a result of past racially discriminatory law or practices”