Rule of law in the age of expropriation without compensation discussed at AGM

February 1st, 2019

Guest speaker at the Annual General Meeting, advocate Tembeka Ngcukaitobi, presented a paper titled ‘Reimagining the rule of law in the age of expropriation without compensation’.

By Mapula Sedutla

The KwaZulu-Natal Law Society held its final annual general meeting (AGM) in October 2018 in Durban. Guest speaker at the AGM, advocate Tembeka Ngcukaitobi, presented a paper titled ‘Reimagining the rule of law in the age of expropriation without compensation’.

Mr Ngcukaitobi, who wrote the book The Land Is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism, began his address by looking into the history of black lawyers and their role in the question of disposition of land and positioned that to the current discourse of land expropriation. Mr Ngcukaitobi said that in South Africa (SA) there is a cry for the land that was lost together with citizenship under colonial conquest. He added: ‘Our ancestors fought for this land, but in the pitiful and the genocidal wars of colonial conquest the land was lost.’

Mr Ngcukaitobi noted that as early as 1875, black lawyers had begun to wage the struggle against disposition. He illustrated this by citing a case that took place in 1875 where a dispute arose in the diamond fields of Kimberley about land. ‘At issue was who owned the land under which the diamonds were supposedly discovered … The principle was that whoever owned the land also owned the diamonds. On behalf of the Griqua community was an attorney David Arnold, who was born of a Griqua man and a Scottish woman. He was classified in the official records as colored but he self-identified as Griqua or Khoikhoi. … Who would have known that in 1875 a black man was already practicing as an attorney in Kimberley.

A number of potential claimers presented themselves, the Afrikaners from the Boer republics of Transvaal and the Orange Free State, and the diamond diggers. Everybody claimed a piece of the land, the Griqua represented by Arnold based on prior occupation. Their argument was that the area was occupied by the Griquas, people of mixed racial origins between the Khoikhoi and the whites in the 18th century when they fled discrimination from the Cape. When the British proclaimed the area as British territory, the rights of prior occupation were not extinguished. …

In this particular case, the British government set up the first land court. … It was known as the Land Court for Griqualand West and its jurisdiction was to decide the ownership of the land. … The Griqua’s argument was ownership to the land by reference of detailed research and prior treaties concluded with the British under the colonial governor in 1834. … Ultimately the justice rejected the claim of the Griquas. Basing his reasons which are, I argue is reflective of colonial attitudes, that the Griqua were a nomadic people. The jurisdiction of their chiefs was over people not specific land or area. The findings were quite significant … because it was the notion of converting the argument around ownership of land rights on its own head. It is because the Griquas refused to recognise private ownership that they lost the land. It was because according to the Griquas, land cannot belong to one man. Land is an inheritance from God, it belongs to the community as a whole. The question really was not about ownership. It was about the nature of African ownership. It was that nature of African ownership that was turned on its head and ultimately led to the disposition.’

Reports by stakeholders

Managing Director of the Attorneys Insurance Indemnity Fund NPC (AIIF), Sipho Mbelle, addressed delegates on the happenings of the AIIF during 2018. Mr Mbelle said: ‘The year has been momentous for all stakeholders in the legal profession. The full implementation of the Legal Practice Act 28 of 2018 [LPA] … will be a watershed moment for the South African legal profession. The implications of the [LPA] have been taken into account by the AIIF in its strategic planning for the years ahead, as well as in its operational preparation as part of the broader [Legal Practitioners Fidelity Fund] structure.’

Managing Director of the Attorneys Insurance Indemnity Fund NPC (AIIF), Sipho Mbelle, addressed delegates on the happenings of the AIIF during 2018.

Speaking about professional indemnity claims, Mr Mbelle noted that the claims continue to make up the biggest part of the operations of the AIIF. He added: ‘As at 30 June 2018, the reserve requirements for outstanding claims was actuarially calculated at R 498 million. This is a significant amount considering the size of the AIIF. The majority of the claims still arise from circumstances which could have been avoided had the appropriate internal controls been implemented in the firms.’

Mr Mbelle noted that the changes to the AIIF funding model were included in the 2017 AIIF report. He added that the date for the implementation of the premium contribution will be communicated to the profession prior to implementation.

Other reports were presented by:

  • The Chief Executive Officer of the Legal Practitioners Fidelity Fund, Motlatsi Molefe, see p 5.
  • The Chairperson of Attorneys Development Fund, Nomahlubi Khwinana, see  2018 (Dec) DR 6.
  • Executive member of the Legal Practice Council (LPC) and attorney, Jan Stemmett, gave an update on the LPA see 2018 (Dec) DR 6.

Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.

This article was first published in De Rebus in 2019 (Jan/Feb) DR 7.