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Towards Democratic Justice? Land Reform in South Africa

Siobhan O'Sullivan*

Abstract

This article theoretically establishes the interconnections between justice and democracy, and empirically explores the case of land reform in South Africa in the light of these interconnections. Firstly, it argues that democracy must ensure the realisation of social justice in order to create the conditions for human freedom and a truly inclusive and legitimate democracy. Secondly, the article argues that justice must also be subject to democratisation, i.e. public participation and deliberation on what should be distributed, how and to whom, termed democratic justice. In South Africa, there are significant concerns about the lack of redistribution and the continued exclusion of the poor, meaning that democratic justice is some way from being achieved.

INTRODUCTIONToC

Many countries across the world are now democratic and apparently place liberty and welfare at the centre of their value and policy systems. However, poverty, vulnerability and inequality remain major social problems, most starkly in former colonised countries facing the legacy of historical repression. Movements struggling for social justice and theorists concerned with such issues are increasingly highlighting the interconnections of democracy and justice, in particular how democracy requires social justice and how social justice (henceforth termed justice) must be democratic. This article examines the theoretical aspects of such interconnections and considers what this means for the case of land reform in South Africa.

Centuries of colonialism and decades of apartheid have made South Africa one of the most unequal countries in the world and the distribution of land is a major aspect of such inequality. Through repressive legislation based on racist ideology, black people were denied civil and political rights, and excluded from economic rights such as benefiting from the resources of the country. White governments supported white agriculture, jobs and industry through subsidies and job guarantees, and ensured black people would provide a cheap labour force. The scale of land dispossession was vast. Those defined as Africans were segregated into tribal reserves, called Bantustans or homelands, governed by Native Authorities. Under the 1913 Land Act 7 per cent of land was allocated for these reserves, increasing to 13 per cent in 1936. Apartheid, which began in 1948 under the National Party, cemented these policies. Millions of African, coloured and Indian people were forcibly moved from cities to townships on the outskirts and from ‘black-spots’ in white-designated areas to the Bantustans. By the end of apartheid in 1994, more than a third of the total population (16 million people) lived in the overcrowded and poorly resourced Bantustans (Thompson, 2006). Millions more lived in townships and squatter camps with inadequate housing and poor sanitation, water and electricity supply. Overall, just 60,000 white farmers owned over 70 per cent of the land (Ntsebeza, 2004).

Of central concern in the newly democratic South Africa was therefore the issue of how to repair the damage of the past and ensure a better life for those excluded and dispossessed through reparative and redistributive justice. Land reform was seen as essential to this. It has been described as central to the future of democracy in South Africa and key to combating poverty, stimulating economic growth and creating a more equal society (Gibson, 2008). For countries subjected to brutal institutionalised racism like South Africa, access to and rights over land can provide redress, reconstitute community identity and ensure livelihoods - in sum, as Moyo and Hall (2007: 153) argue, ‘provide the basis for full citizenship’.

Why describe land reform as central to the future of democracy? Evoked in such a statement is the sense that democracy both promises and requires a level of equality and justice. There is a vast literature on democracy across many disciplines but this article will draw from recent literature in critical theory and development studies which explicates the interconnections of democracy and justice - in the first step that democracy must be just and in the second step that justice must be democratic.

DEMOCRACY AND JUSTICE: THEORETICAL INTERCONNECTIONSToC

Democracy must be just

In critical theory democracy is understood as popular sovereignty and public reasoning. This contrasts with liberal theories that focus on democracy in terms of representation through free, fair and frequent elections and freedom of speech and association. For critical theorists such accounts are insufficient. Rather, democracy is conceived of as a system of collectively binding decision-making, emphasising deliberative and participatory procedures and the linking of formal modes of policy-making to debate in public spheres (Hendricks, 2006). In such understandings, democracy everywhere can be seen as an unfinished process (Beetham, 2001) and limited by inequality, injustice, corruption and structural constraints. Theorists argue that democracy must be just for two interconnected reasons:

The first level is often assumed by many writers and not necessarily explicated in detail. Exceptions include Honneth (2007, 2003) in his work on recognition that puts a human need perspective, in terms of dignity and respect, at the centre of social justice and citizenship. He is centrally concerned with the self-realisation of individuals and how experiences of disrespect and degrading values damage identity formation. Young (2000) too argues that society should make the conditions for self-development open to all. One of the best worked-out accounts of what this would mean is that of the development economist Sen (1999a) and the philosopher Nussbaum (2000) who focus on capabilities i.e. individual freedoms, the range of things that people ‘are able to do and to be’ (Nussbaum, 2000: 49).

Sen (1999a: 87) criticised economists for focusing on income poverty to the neglect of other deprivations that prevent people from leading freer, longer and more worthwhile lives (e.g. discrimination, violence, illiteracy, ill-health). He argues that economic growth and income, while important, are means, not ends of development, which should be viewed as the enhancement of people’s quality of life: ‘the substantive freedoms he or she enjoys to lead the life he or she has reason to value’. Three levels of freedoms must be taken into account to enable capabilities. These are dependent on economic, social and political arrangements and include (a) basic freedoms such as meeting bodily requirements like avoiding starvation, (b) enabling freedoms such as the opportunities derived from schooling and the means to move freely, and (c) social freedoms such as the capacity to participate in the life of the community and political decision-making.

Sen (1999a, 1999b) argues that the democratic state is the most important facilitator of capabilities, tasked with institutionalising rights and implementing effective measures that enable and empower people through the provision of public goods such as education and health. Democracy must also offer people protective power by preventing deprivation, providing security and meeting their needs, especially when they are most vulnerable. This provides a counter-point to the theses of development and progress that centre on the primacy of economic growth, whether the ‘catch-up’ stages of modernisation or neo-liberal globalisation. Advocates of the capabilities approach argue that markets either promote human capabilities unevenly or in worse cases fail to deliver essentials such as health, education and nutrition.

The second level can be seen as centrally addressed by authors such as Fraser and Habermas. While many theorists see justice as essential to democracy, the focus is often on laws that protect minorities and individuals from the majority (Beetham, 2005). More neglected is the import of social justice, which this article argues is likewise fundamental to democracy. Fraser (2003) focuses on redistribution, the elimination of a certain level of socio-economic inequalities. She argues that this is vital to ensuring participatory parity – defined as equal standing and full partnership in social interaction – in the political system and in changing the distribution of power. Habermas (2001: 77) focuses on the issue of legitimacy and argues that a legitimate democracy is one that affords people a degree of equality: ‘the only kind of democratic process that will count as legitimate… will be one that succeeds in an appropriate allocation and fair distribution of rights… it has to pay to be a citizen’.

That justice is a condition for democracy has been taken up by many theorists and activists who argue that popular sovereignty requires inclusion, access and voice. The capacity to exercise equal political voice is seen as dependent on equality in other domains, i.e. civil and political rights are linked to socio-economic rights. An unequal distribution of resources and status may strengthen inequality if better-educated and better-off people find it easier and have greater capabilities to gain access and get involved in politics, unlike people who cannot fulfil their basic needs or whose voices are demeaned on the basis of their social status as Young (2000) explores. Tilly (2007) argues that categorical inequality (i.e. inequality based on gender, race, nationality, ethnicity or religion) threatens democracy because it gives members of advantaged groups means and incentives to gain influence over the state and to further their interests. Thus, justice is not only necessary to ensure people have opportunities and rights, develop capabilities and have their basic needs addressed, but it is also a necessary condition to ensure a truly functioning and legitimate democracy.

Justice must be democratic ToC

Social and political theorists have also stressed the reverse, that democracy is a condition for justice. A significant question in academic work and civil society for at least the past two decades is who has the power to define the norms, policies, programmes and institutions that structure societies across the world. Major critiques of social welfare systems, development programmes, and more recently the neo-liberal agenda, focus on the exclusion of the public and particular communities/groups from articulating and directing politics and policy from the local to the global level. State, NGO or market-led development has often been a matter of technocratic delivery rather than democratic participation (Neocosmos, 2010), creating dependency and inhibiting agency.

In contrast, Chambers (1983) proposed that the best way for poor people to emerge from deprivation traps is through the poor demanding and controlling their own organisations and resources. He argued that poor people should be involved in defining what poverty means for them and how to respond (e.g. the importance of sustainable livelihoods, access to land, assets to handle contingencies), necessitating a process of bottom-up rather than top-down planning. Sen too argues that the freedom to participate, to critically evaluate and form values, is essential to development, that people ‘cannot be seen merely as patients to whom benefits will be dispensed’ (Sen, 1999a: 288). Participation is justified on the basis of both the centrality of fundamental civil and political rights to human freedom and the fact that civic involvement, the duties and responsibilities of citizens to participate, improves policy effectiveness and legitimacy.

Critical theory has likewise articulated the importance of deepening democracy, arguing that justice must also be democratic. Forst (2007) argues that people should be agents of justice rather than simply recipients. Making justice democratic means that people must have the chance to initiate deliberation and set the agenda on justice (Bohman, 2007) i.e. that people must have a say in how justice is formulated and delivered. Forst (2007: 295, emphasis in original) understands justice as ‘about citizens’ status as equals in political and social life, i.e. as persons with what I call a basic right to justification’, having ‘sufficient status and power to decide about the institutions they are to live under’. Hence, justice is increasingly seen as a matter of collective decision-making through deliberation and reasoning about the common good (Sandel, 2009). Indeed Sen (1999a) refrained from developing a list of capabilities, arguing that the selection of capabilities is a value judgement to be made in the process of public debate. Sen (2009: 326) understands this as a constitutive connection between justice and democracy: ‘If the demands of justice can be assessed only with the help of public reasoning, and if public reasoning is constitutively related to the idea of democracy, then there is an intimate connection between justice and democracy, with shared discursive features.’

It can be argued that Rawls (1972, 1993) explicated these connections between justice and democracy some decades ago, arguing that justice requires liberty (democratic rights and freedom of choice) and fair distribution (equality of opportunity and care for the least well-off). However, according to Forst (1994), Rawls doesn’t go far enough in his conception of democracy and justice. Forst argues that Rawls understands reasoning as occurring for or before the public, not by the public, which restricts the role of the public to principle interpretation rather than principle generation. Similarly, Sandel (2009) argues that the liberal egalitarian perspective, by focusing on the right way to distribute things, omits how people value certain matters, the preferences and desires that people bring which may require questioning. He argues that to achieve a just society ‘we have to reason together about the meaning of the good life, and to create a public culture hospitable to the disagreements that will inevitably arise’ (2009: 261).

Thus, key issues are not only who is excluded from the community that makes justice claims, but also the terms by which claims can be aired. Fraser (2005: 75) argues that representation, the ‘nature of the state’s jurisdiction and the decision rules by which it structures contestation’, is central to justice. Those who suffer from misrepresentation (political obstacles to parity) are unable to defend their distribution and recognition needs, in turn exacerbating their misrepresentation, what Fraser calls a vicious circle in which the three orders of injustice reinforce one another.

Therefore, there has been a shift in the understanding of justice such that what was once ‘called “the theory of social justice” now appears as “the theory of democratic justice”’ (Fraser, 2005: 87, emphasis in original). Justice, as a matter for collective decision-making, means applying democratic processes to the ‘what’, the ‘who’ and the ‘how’ of justice (Fraser, 2005). Young (2000) likewise argues that justice is about self-determination, that citizens must deliberate about social priorities. The voiceless must have a voice in justice-oriented situations in terms of how it is conceived of and attained. There is a multiplicity of modes of decision-making that can incorporate participation such as deliberative forums, consultations, referenda, local and community councils, etc.

But for justice to be democratic, Young (2000) argues that conditions that make that possible must be taken into account. This brings us back to the prior point that democracy must be just, the need for better socio-economic redistribution and recognition. Thus, it is important to consider access to participation, what Young (2000) calls external exclusion due to structural inequality that makes it too costly or difficult for some to be involved. This is not to say that democracy must await a perfect distribution for, as Sen (1999b: 13) argues, ‘people in economic need also need a political voice. Democracy is not a luxury that can await the arrival of general prosperity’. Democratic justice does not imply collapsing the distinction between justice and democracy. Rather this article argues that the two require each other, neither is fully realisable without the other.

When considering the conditions for justice to be democratic, it is also vital to address internal exclusion in terms of who dominates discussion and decision-making due to cultural patterns of communication about what is proper speech (Young, 2000). Furthermore, imbalances of power can keep issues off the table with the broader policy framework often already set, and alternatives therefore unlikely to emerge (This can be seen with the neo-liberal agenda in South African policy below). Hence, there is a need for independent social movements which often take a dual role of aiming for behavioural change in civil society as well as calling the state to account and challenging the assumptions brought to policy discourse, priorities and implementation (O’Mahony, 2011).

SOUTH AFRICA, DEMOCRACY AND JUSTICE: THE CASE OF LAND REFORM ToC

Considering the case of South Africa, many in government and civil society have long recognised that democracy must be just. When Nelson Mandela took office on 10 May 1994 as South Africa’s first democratic president, he pledged that out of ‘an extraordinary human disaster’ would come ‘a society of which all humanity will be proud’. Following the negotiated settlement and the establishment of parliamentary democracy in 1994 and a human-rights based Constitution in 1996, key elements of South African policy have focused on building a reconciled and multicultural ‘rainbow nation’, redistributing resources in the context of ensuring macro-economic stability and growth in a globalised economy. Its Truth and Reconciliation Commission (TRC) became a worldwide model for conflict resolution and restorative justice. As part of the initial Reconstruction and Development Programme (RDP), and under a series of Acts, ANC-led governments since 1994 institutionalised programmes of land reform in restitution, redistribution and tenure reform to deal with inequalities in privately-owned land and insecurity of land tenure in the former homelands. Unlike the outcomes of the Zimbabwean fast-track land reform, South Africa has not sought to ostracise the white community or to compromise corporate activity and private property ownership.

However, this positive picture of South Africa becomes more nuanced when one looks at the results of the government’s programmes to date. There have been major successes such as the extension of clean water, electricity and sanitation to over 70 per cent of the population (according to COSATU 2010 figures), and social grants (pension, child or disability) have been extended to over a quarter of the population (IJR, 2008). That said, social problems remain or are worsening. Few of the reparations recommended by the TRC have been implemented. South Africa is a country of vast inequalities where a quarter of the population live on less than $1.25 a day (Thompson, 2006), 52 per cent of the population lives in poverty (Bond, 2010). Life expectancy is at just over 50 years as Aids has ravaged the country and public health responses have been inadequate to say the least. Up to 10 million people live in poor housing, in slums and squatter camps, and lack sanitation (COSATU, 2010). This is in the context of a growing black middle class and an extremely wealthy black elite, and the continuation of the white elite’s ‘Californian standard of living amid a sea of poverty’ (Terreblanche, 2002: 134).

The land reform programme has been particularly controversial and criticised as inadequate and too slow. The ANC-led government has chartered a course between two very divided positions – the perspectives of the commercial farming sector and some opposition parties that emphasise the free market and fear that land reform will come at a cost to the country’s economy and food production; and the emphasis that many civil society organisations and some in government place on changing the distribution of power and wealth through pro-poor land reform (Kepe et al, 2008; Strydom, 2009). Indeed, Lahiff (2007, p.1583) has characterised policy as ‘a messy compromise’, a hybrid of state- and market-led reform. Emphasis has shifted over time from uplifting the poor to promoting black commercial farming – what Kepe et al (2008) call an agribusiness version of land reform. This is particularly clear in the redistribution programme. Rather than pursuing expropriation as allowed for in the Constitution, redistribution follows a willing-buyer/willing-seller model (WBWS) whereby buyers are supported by grants from the government to purchase land as long as the buyers can provide matching inputs (whether capital, labour or equipment) to farm commercially. Overall, Lahiff (2007) argues that in this context land beneficiaries are more likely to be white landowners who benefit from high market prices and a small minority of black entrepreneurs, rather than the rural poor.

It thus remains a concern to many academics and groups in civil society how land reform is conceptualised and they are also concerned that historical injustice is insufficiently ameliorated under contemporary policies. By 2009, just 6.8 per cent of land in South Africa had been reallocated, 3 million hectares under redistribution and tenure, 2.6 million under restitution (PLAAS, 2009). The restitution programme is seen as the most successful of the tripartite land reform programme with restitution complete in officially registered urban claims although there are many, more complex, rural claims outstanding. Tenure reform is seen as the least successful as evictions from private farms have continued apace and the power of chiefs and traditional councils in the former Bantustans has been cemented rather than challenged (Moyo and Hall, 2007; Ntsebeza, 2004). A major issue has been the lack of funding for land reform – between 0.4 and 0.9 per cent of the nation’s budget is allocated to it and there are related staffing and bureaucratic capacity issues (Moyo and Hall, 2007).

As South Africa shifted to a neo-liberal macro-economic orientation in 1996, it followed a form of structural adjustment or ‘right-sizing the state’ similar to that of other developing countries (e.g. reducing regulation and state economic planning, privatisation of utilities, promoting flexible labour, and cutting budgets for social spending including land reform). This has consolidated what Terreblanche (2002) calls ‘enclave capitalism’. State support for new farmers was cut, as were subsidies and tariff protection. This has affected the success of many restituted and redistributed farms; some government estimates put the failure of such farms, where production has stalled, as high as 90 per cent.

What are the consequences of this continued inequality and injustice for democracy in South Africa? The constraining of people’s capabilities and life-chances (as Honneth, Sen and Nussbaum focus on) after 16 years of democracy means that the state has been facing a legitimacy crisis as Habermas predicted. Protests (dubbed ‘service delivery protests’) have become a feature of civil society action, focusing in particular on the broken promises of democracy – the poor provision of housing and schooling, the privatisation of water and electricity, and the pace and principles of land reform. Like Fraser, it remains a worry to many South African writers that the socio-economic exclusion experienced by much of the citizenry translates into political exclusion. As Koelble and Lipuma (2005: 86) state:

‘There is a general consensus across South Africa that the nation requires a democracy that incorporates critical measures of social justice. The understanding is that the formerly disenfranchised portions of the population cannot forge interest groups, evaluate their elected officials, develop a sense of nationness or national solidarity etc. if they do not possess the income, education and basic standards of living to do so’.

Despite high voter turnout (consistently over 75 per cent in the 4 national elections since 1994) and more recently growing protest movements, there is a lack of representation of voices of the poor in social policy (O’Sullivan, 2011).

As argued in the second pillar of this article, justice must be democratic. A major criticism in South Africa is the continued exclusion of the voices of the poor from policy-formation and implementation; that those who are most affected by policy are the most excluded from it. What social theorists have defined as democratic justice can be seen in the demands of NGOs, social movements and also some parts of the ANC-led government. Movements, such as the squatter’s rights group, ABM, argue that is not enough to obtain material change. They articulate ‘the right of the poor to think, speak and organise for themselves’ (Zikode, 2010), to be part of planning and building a new future, rather than the current top-down decision-making that is seen as paternalistic and often not in their interests. Likewise the trade union body COSATU (2010) proposes that policy should not be confined to the cabinet, parliament and state bureaucracy; that grassroots discussion and involvement beyond elections is required. This vision of popular democracy has been limited not only by the power of the neo-liberal agenda but also by a political culture of state delivery with its roots in the liberal and centralist tendencies of the ANC (Saul, 2005; Neocosmos, 2006). Civil society has been disempowered as ‘the state claimed total control over the development agenda’ (Habib and Kotze, 2004, p.254) and characterised oppositional civil society organisations as ‘ultra-leftist’ (Gibson, 2006).

However, ensuring that justice is elaborated democratically requires involving civil society and specific stakeholders in what should be distributed and how. As argued above, Forst argues that people should be agents of justice and Chambers proposes that the poor be involved in bottom-up planning. This necessitates an inclusive and open discussion of ‘issues and feasibilities’ (Young, 2000; Sen, 1999a: 237) e.g. in deliberative forums, consultations, referenda, local and community councils and so on. Since the late 1990s, with a resurgence of civil society organisations across South Africa (although land reform movements remain weaker than in other developing countries), the government has faced years of criticism of its policy direction (Gibson, 2006). Following prolonged pressure to reorient the land reform programme, the government organised a deliberative forum, the National Land Summit in July 2005. This brought together 1,500 delegates from political parties, government departments, farmers and farm workers, land claimants, NGOs and social movements, churches and academics. Ntsebeza and Hall (2007) have called it an historic event where radical resolutions were adopted. These resolutions (not supported by AgriSA, the white farmers union) stressed greater state intervention in land reform and support for emerging farmers, the use of expropriation, a land tax, and participatory and people-centred methods for agrarian transformation.

O’Sullivan (2011) conducted a policy and public discourse analysis of the period following the Summit until early 2009. Looking at argumentation and policy since then, while the Summit’s resolutions are regularly referred to, it is evident that there has been little actual change. For example, regarding redistribution, government policy still largely conceives of land reform within a neo-liberal framework in terms of fostering black entrepreneurship and globally competitive intensive agriculture, not participatory transformation. Much of the commercial farming sector, agri-business and political parties such as the Democratic Alliance (DA) emphasise the risks of greater state intervention in the market on the basis that investor confidence and foreign investment will be threatened and result in a Zimbabwe-like situation. They stress the dangers of participation of NGOs in policy making, and minimise the need for rural land reform. In contrast, land reform NGOs and movements, with some support from parts of government (SACP, COSATU and some in the ANC), continue to focus on food sovereignty for more sustainable livelihoods i.e. democratic control of policy, local production for local markets, and agro-ecological farming techniques.

The arguments of civil society, although strong in the resolutions of the Land Summit, have remained peripheral in government policy. Yet, there are tensions within the ANC itself and its alliance with COSATU and SACP due to historical and ideological cleavages, e.g. while a proposed expropriation bill was shelved in 2008, the government has recently been promoting greater post-settlement provision for emerging farmers. However, the white and corporate sector retains extraordinary bargaining power (Terreblanche, 2002). Thus, democratic justice can be seen as blocked for two main reasons. Firstly, the power of neo-liberal agendas (called ‘TINA’ i.e. there is no alternative by Hart, 2002) in government and the influence of agri-business prevent other perspectives and possibilities from having as much institutional success. Secondly, the discourse of delivery of the post-apartheid state has limited public debate and influence (Neocosmos, 2010), affirming the perspective that public participation remains ‘cosmetic and peripheral’ (Hicks and Buccus, 2009: 212). De-racialising capitalism and the state does not mean that that they have been adequately democratised. Hence, the need is as strong as ever for the further development of participatory and deliberative fora and a politics of continued contestation as argued for above.

CONCLUSIONToC

This article made the case for the interconnections between justice and democracy in two steps. It firstly argued that, without social justice, democracy is incomplete or compromised. Democracy must ensure that people have opportunities for self-development in order to meet human needs and to secure inclusion in, and the legitimacy of, political processes. In a second step, the article went on to argue that social justice must itself be subject to democratisation. The thesis of democratic justice requires the participation and deliberation of the public, affected communities, and the marginalised in setting the agenda on justice. As Vitale (2006: 752) states: ‘inclusion means that every citizen can actually exercise the right to speak and vote, and this means, on the one hand, that the political process has to change, and, on the other, that social and economic inequalities must be reduced’.

Thus, understanding that justice is essential to democracy requires that land reform in South Africa be seen as central to wellbeing and meeting people’s needs, thereby helping to ensure the realisation of citizens’ democratic rights. In order to strengthen land reform a shared recognition of injustice is needed (Sen, 1999a), i.e. that continued land inequality is unsustainable and must be tackled. This will necessitate the shifting of perspectives, particularly from the white and corporate sector but also within government. Drawing from the thesis of democratic justice means that land reform in South Africa must be understood as a process of empowerment, political negotiation, participation and deliberation involving civil society. In particular, those formerly excluded must be involved in the reparation and redistribution process and policy must be more reflective of their voices. At the moment this is limited, but movements are fighting for more input and for social and economic change to ensure that the poor speak for themselves, are heard and matter.

REFERENCESToC

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EndnotesToC

This occurs in varying degrees and combinations from social democratic to neo-liberal socio-political models.

During apartheid, South African people were classified in four major ways: as white, African, coloured (of mixed descent) or Indian/Asian, the latter three seen as making up the black population. Although controversial and subject to much debate, these identity categories remain in use (Zegeye, 2001). The South African government no longer supports racial classification of the population. However, it does use racial data to monitor the effects of social policies e.g. see the South African census (Butler, 2004); see also endnote ix.

Poverty is defined as the failure to achieve certain minimal or basic capabilities. What a person has the capability to achieve is influenced by ‘(1) political freedoms, (2) economic facilities, (3) social opportunities, (4) transparency guarantees and (5) protective security’ (Sen, 1999a: 10). The UN Development Programme’s Human Development Report uses the capabilities approach, defining development as ‘the expansion of people’s freedom to live long, healthy and creative lives’ (HDR, 2010: 2).

Sen (1998: 739) states that ‘there is every evidence that even with low income, a population that guarantees health care and education to all can actually achieve remarkable results in terms of the length and quality of life of the entire population’. Human rights literature now speaks of a tripartite division of state obligations to respect, protect and fulfil rights. This has replaced the dualist understanding of negative and positive freedom, i.e. the ‘freedom from’ that supposedly characterised civil and political rights (CP) and the ‘freedom to’ or entitlements granted by economic social and cultural rights (ESC). The first obligation delineated by Eide et al (1991) requires the state to respect the freedom of individuals and not inhibit the realisation of their rights. The second obligation requires the state to protect individuals’ freedom against interference from other subjects including transnational corporations. The third obligation to fulfil takes two forms: to facilitate (e.g. enact legislative measures and incentives to enable people to realise their rights) and to provide (e.g. direct provision of a right through hand-outs or social security when no other possibilities exist).

Democracy is not just consequentially important in terms of protecting people from deprivation and providing security as explored in the first section of the article. It has an instrumental value in enhancing citizens’ voices in political decision-making whose assessment of social and political problems ensures that governments are kept accountable and responsive: ‘Political and civil rights give people the opportunity to draw attention forcefully to general needs and to demand appropriate public action’ (Sen, 1999b: 6). But more than this, Sen (1999a, 1999b) argues that democracy is of intrinsic importance as a freedom central to development. Its intrinsic importance and constructive value centres on how political participation enables individual freedom and personal development through citizens learning from each other, forming values and priorities, and understandings needs, rights and duties (see also Dewey, 1988). Thus, democracy’s claim to be valuable rests on several merits; it is both a goal and a means.

In contrast, Nussbaum (2000) proposed a set of ten universal human capabilities for human flourishing, arguing that these should be protected by constitutional guarantees. These include Life: being able to live a normal length of life; Bodily health: being able to have good health, adequate nutrition and shelter; Bodily integrity: being able to move freely from place to place, to have choice in reproduction, to be secure against assault including sexual assault and domestic violence; Sense, imagination, thought: informed by education, being able to use one’s mind to produce musical, religious, literary works; Emotions: being able to have attachments to others; Practical reason: being able to engage in critical reflection about the planning of one’s life; Affiliation: being able to engage in various forms of social interaction; being protected against discrimination; Other Species: being able to live with and have respect for other species; Play: being able to laugh, play and enjoy recreational activities; Control over one’s environment: being able to participate in political decisions that affect one’s life; and having material control e.g. holding property, being able to work as a human being.

These Acts are guaranteed by the Constitution and the White Paper on Land and include: the 1994 Restitution of Land Rights Act, the 1996 Communal Property Associations Act, the 1996 Land Reform (Labour Tenants) Act, the 1996 Interim Protection of Informal Land Rights Act, the 1997 Extensions of Security of Tenure Act, and the 2004 Communal Land Rights Act (CLRA). Land reform falls under the remit of the Department of Rural Development and Land Reform (previously called the Department of Land Affairs). Government targets are to complete restitution by 2011 and the redistribution of 30 per cent of commercial land by 2014 (although this may be pushed to 2025); there are no targets on tenure reform.

Bernstein (2004) refers to the Zimbabwean Fast-Track Land Reform, which involved the sometimes violent seizure of white-owned farms without compensation, as regime-sanctioned, confiscatory land redistribution. This has mainly benefited the wealthy and those who support ZanuPF and has damaged agricultural output with little support for new producers (Bernstein, 2004). The violence associated with the land reform in Zimbabwe has created fears in South Africa about the potential dangers of not adequately addressing land inequality and highlighted how land reform can become manipulated and violent in order to maintain political power.

According to the South African Census (2001) Africans account for 79% of the population, Whites 9.6%, Coloureds 8.9% and Indians/Asians 2.5%. The UN 2009 Human Development Report characterises South Africa as a low to middle income country, and it is placed 129 out of 182 countries in the UN human development index. Crime and violence are central concerns for South Africans (Gibson, 2008), including xenophobic violence against immigrants, rising gang and drug criminality, and violence against women and children. Unemployment is also a key concern and unemployment estimates range from 28 to 42 per cent of the population (Seekings and Nattrass, 2006). Even of the 5.9 million African households who have wages/salaries (57% of the 10.3 million African households), this is no guarantee against poverty. It is estimated that 4 million people live below the poverty line in households where at least one person is working for a wage, but that wage is too low. Thus, Marais (2010) argues for job creation in the context of the wider realisation of socio-economic rights.

To a large extent economic aspects were excluded from the TRC since its focus was on gross human rights violations. The TRC held a one-day hearing on the role of business in apartheid. It concluded that the farming sector benefited from ‘their privileged access to the land’, from expropriation and forced removals (TRC Report, Volume 4, p.29). The TRC’s final report recommended a wide range of reparations for the ‘unjust enrichment’ that resulted in profits across the business sector based on the systematic violation of human rights. These reparations included individual and symbolic reparations, community rehabilitation programmes, institutional reform, a reparations fund for business and a once-off wealth tax on individuals. However, few of these have been implemented by government who fear that corporate reparations or a solidarity tax would send an anti-business message to the market.

The organisation Nkuzi Development presented figures to parliament on 30 August 2005 that show 942,303 people were evicted between 1994 and 2004 (higher than the 737,114 evictions in the previous decade under apartheid), over 2 million people were displaced from farms and that only 1% of evictions involved a legal process (Moyo and Hall, 2007).

See Boyle, B. 2010. ‘Massive farm failure in SA: Minister reveals that 90% of redistributed farms are now unproductive’, South African Times, 2 March 2010, Available on: http://www.timeslive.co.za/local/article334448.ece/Massive-farm-failure-in-SA

The South African Constitution requires consultation in the legislative process but this is seen as limited to informing the deliberations of parliament – Section 59(1) of the Constitution states that the National Assembly must ‘facilitate public involvement in the legislative and other processes of the Assembly and its committees’. The obligations at local level are more comprehensive; the Municipal Systems Act, 2000, section 16, requires municipalities ‘to develop a culture of municipal governance that complements formal representative government with a system of participatory governance’ (Hicks and Buccus, 2009).

There are also concerns regarding to what extent civil society organisations (CSOs) can claim to authentically represent and speak for the will of the marginalised and poor, and whether their structures are accountable and democratic. Hence there is a need for public participation and deliberation to include affected groups directly (Hicks and Buccus, 2009).

The ANC has been described as ‘a broad church’ that was not united by ideology, but by its opposition to racial oppression, with a socialist wing (aligned with the South African Communist Party, SACP) that argued for radical restructuring of socio-economic class relations and an Africanist wing opposed to racial exclusion but not capitalism necessarily (Taylor, 2002). Under pressure from the corporate sector and the IMF in the 1990s, the ANC shifted from the vision which COSATU had outlined of ‘growth through redistribution’ (as in the RDP) to policies of ‘redistribution through growth’ (e.g. the 1996 Growth, Employment and Redistribution policy, GEAR) (Terreblanche, 2002).