American jurisprudence defines restitution as a law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. When a court orders restitution it orders the defendant to give up his/her gains to the claimant. When a court orders compensation it orders the defendant to pay the claimant for his or her loss. Post the “negotiated settlement” and the first democratic elections of 1994, all South Africans now have the vote, a so-called, “world-class” constitution and a democratically elected majority black government for the first time in the country’s history.
But what about restitution for land stolen from the black majority, for the devastating trauma of Apartheid, for the brutality of what amounted to economic servitude of all black workers, for the torture and deaths of black people from race-based systemic poverty and preventable diseases, for the trauma of family separation because of the migrant worker system and the psychological trauma of living as a prisoner in a virtual state of war in the land of their forefathers? Why aren’t we having broad-based discussions on this, why isn’t this part of the national discourse and why does the reigning government behave as if it is taboo? To most seasoned commentators and people that have been close to the negotiating process in the early nineties, it is well known and is now evident that land reparations and financial restitution weren’t one of the items on the agenda, at least not insofar as it has been discussed and produced positive outcomes.
Right now, given the hugely tenuous position the country is in with a moribund economy, zero prospects of a turnaround strategy, feral ratings agencies that deliberately target developing countries with threats of a credit downgrade and a President without a plan of action, one of the ways to resolve the massive undercurrents of tension and pent up emotions is to deal with the stolen land issue as quickly as possible. The problem was always going to be how one calculates restitution? Or, what is the cost of restitution? Now I’m sure people much smarter than I have worked out clever formulae and arrive at even cleverer conclusions?
This is my view and some of the assumptions that I have made to arrive at a simple enough formula. I have used the Native Lands Act no 27 of 1913 as the benchmark.
The total landmass of South Africa – 301.4 million acres
The total area of land that was taken post the act – 240 million acres plus
Factors that have a bearing of the calculations as follows:
Minerals that were mined on the land –
Type of minerals mined? For this exercise, we have chosen to stick with gold and diamonds and not complicate the issue any further by including other minerals
Gold – 110 000 tons (since the early fifties)
Diamonds – 15 million carats
The total value of the mined minerals adjusted for inflation at today’s prices (still to be determined)?
Value of farming and agriculture since 1913 and adjusted for inflation at today’s prices (still to be determined)
Multiply the above inputs by the number of years since 1913 (when the act was promulgated) equals 106 years
So the above is calculations and divided by the number of acres of land
For example X is the total economic outputs
divided by the number of acres of land taken
= Y as the final cost per acre
This seems to me to be the simplest way of arriving at a quick, amicable solution to the elephant in the room that the politicians are seemingly deliberately ignoring….
