Land Dispossession in South Africa

• The article examines the ideologies behind land appropriation in colonial South Africa

Land Dispossession and Restitution

• Colonial and imperial projects justified colonialism and established land ownership through specified rights, obligations, and duties.
• These ideas fueled European expansion and shaped land-centered settler colonial projects, establishing new political orders.
• 'Terra nullius' (empty land) and 'trusteeship' were central justifications for colonization in South Africa.
• Land restitution remains informed by norms used to justify historical occupation and appropriation of indigenous lands.

Moral Justifications and the Berlin Conference

• The study focuses on moral justifications for South African colonization, particularly 'terra nullius' and trusteeship.
• These concepts gained prominence as legitimizing rationales for imperialism after the Berlin Conference of 1884–1885.
• Both 'terra nullius' and trusteeship were tools for colonial occupation.
• Europeans believed they had a duty from God to make the earth productive, justifying appropriation of overseas lands.
• Maximizing soil productivity required cultivation techniques and civil society to ensure governance and safety.
• Uncultivated land was deemed "empty" and available for appropriation, though focus is on the ideological bent rather than property rights themselves.

The Idea of 'Empty Land'

• While trusteeship is less documented in South African history, the "myth" of empty land has persisted in various forms, mainly in early twentieth-century South African historiography, becoming a way to legitimize European settlement by asserting that South Africa was empty prior to the simultaneous arrival of Europeans and Africans around 1652.
• Debunking the "empty land" myth is crucial, as these myths legitimize political regimes and shape social reality.
• Historical inquiry and debates on 'terra nullius' in South Africa resonate with Australian discussions.
• Critically investigating moral justifications, such as productivity and cultivation, sheds light on current land restitution disputes.
• Reasons for withholding land restitution are rooted in colonial prejudices rather than modern ideals of justice.
• Intellectual history helps identify colonization principles, assess the alignment of theory and practice, and understand how conceptual changes perpetuate inequalities in South Africa; Colonialism ideas included first sighting, terra nullius, ‘empty land', conquest etc.

Critiques and Conceptual Problems

• Recognition by European states of territorial ownership was vital and issues included ownership, occupation and cultivation.
• Establishing ownership rights over colonized territory, distinguishing occupancy from ownership, and reducing disputes became fundamental questions.
• Arguments about 'waste' or 'underused' land carried religious undertones, framing it as a duty to make the earth bountiful and spread the Gospel.
• No uniform principle justified South African colonialism, with settlements often resulting in de facto conquest and ex post facto arguments.
• The Berlin Conference (1884-1885) aimed to establish rules governing occupation and commerce among European states.

Terra Nullius

• Recent scholarship has highlighted anachronisms and conceptual problems surrounding the term ''Terra Nullius''.
• Andrew Fitzmaurice has clarified the terminological use and traced the conceptual shifts and meanings of ‘terra nullius'.
• Coined with the carve-up of Africa in mind, arising as a concept in relation to international law. Was used as an approximation of the positive use of the law of the first taker in natural law to justify dispossession.
• Before ‘terra nullius' was used to justify the appropriation of land after The Conference at Berlin, res nullius was commonly used, in the sixteenth century, to assert indigenous populations' property right to land and goods
• Europeans contended indigenous population had not exercised their natural rights to property or were incapable of exercising such rights.
• The idea of "empty land" informed by cultivation informs the creation of visible signs of ownership, such as in Robinson Crusoe (Daniel Dafoe), highlighting the vacuum and moral obligation for colonization validated by Locke.

Discovery and Colonial Expansion

• Laws of occupation developed to argue for the moral legitimacy of European colonial expansion and intellectual responses influenced by political considerations.
• Thinkers like Hugo Grotius and Locke developed political theories relative to the colonial.
• The idea of ‘empty land' or 'waste land' provided a link between property rights and the moral obligation to prosper.
• Natives are potential holders of private property rights under natural law, but fail to exercise them.
• Locke links natural rights and civilization, asserting that title to property depends exclusively on cultivation, a moral duty.
• Natural law principles allowed Europeans to exercise their right settle, cultivate the land, and fulfill God’s making the earth plentiful.

Justice and Property Rights

• Swiss jurist Emer de Vattel attempted to resolve contradictions in asserting rights over ‘vacant' land while recognizing the rights of those whom were occupying it.
• De Vattel defined "wasteland" as land inhabited by people who merely 'roamed' the land
• The concept was influential in American legal thought related to the dispossession of the North American Indians in Caldwell v. State (1832).
• Throughout the colonial period claims excluding indigenous peoples from possession of land sought to apply a western individualized approach to property rights.
• Nomadic and settled native peoples in colonial context were excluded from ownership and natural rights to appropriate land were claimed on the basis of 'empty' or 'uncultivated' land.
• The notion of 'empty land' was used to establish land rights during the creation of The South African (Transvaal) Republic and The Orange Free State and was entrenched Afrikaner mythology. Voortrekkers declared it to be there divinely ordained manifest destiny.

Africa - Terra Nullius?

• Legal scholar Patrick Thornberry asserts that 19th century English and American scholars undermine sovereignty.
• M.F. Lindley argued in 1926 legal positivism piece that that land inhabited by a substantial population not terratorium nullius. Denying the legal president.
• African continent could be considered ‘terra nullius' due to political power organized there, says C.H. Alexandrowicz.
• British increased their influence in Southern African Colonies by treaty and land. South Africa was a dubious validity.
• The African weren't the only ones that were aborigines but also conquerors, according to Edgar Henry Brookes.

Culture and "Empty Land" Myth

• George McCall Theal was the first South African historian to popularize the empty land myth in history of SA volumes.
• Scale of civilizations were proposed by Europeans comprising of savagery, barbarism, and civilization that inhert the higher.

The 'Civilised' and the 'Barbarous'

• Theories of racial supremacy drove racial and neo-Darwinism that fueled European appointed guardianship of civilization.
• Theal used the 'empty land' to co operations between British and Boer settlers.
• Brookes said Theal historicized SA and a struggle for survival, civilised and barbarous.
• Recounting Natal, "pioneers look upon it, it was a vast waste, almost without people, for the Zulu wars had swept it bare".
• Controversy for what white occupation meant for them.

Settler Colonialism

• Legitimacy came into question the more settlers went into the interior of the country according to Gliliomee and du Toit.
• God had mentioned it (the Earth). New validation came that they have to make new settler and distinct political. Settler colonialism.
• Livingstone: Basic productivity land, Boers did, but largely animals, failing to do the farming.
• Husbandry said that stifling claiming new settlements Transvaal and Natal (boers) violence occurred because Barbarious.

Trusteeship and Civilising Mission

• An array of things made rules legitimased. Land for whites only.
• Principle appropriation becomes not only emblemic but also societies between Europe ans non euros.
• Adam and en failed moral duty to land.
• Africans failed to progress on ladder, unattainable guidance was to happen from others.
• Emancipation for people and natives
• Economic and political intersests
• Cultivation was constituive with its corelationship, with making thing.

International Law and Native Tribes

• European powers used natives and tribes as a criterion.
• Instituted it with the Berlin Conference.
• Civilisation determined.
• It was political and morals determining everything.
• Civilising measures and empire and history of exploitation.

Liberism

• Equal legal rights with free black people.
• Why did cape put things in perspective.
• Ordience fifty fromally.
• Sever social impact. Indigenous systems.
• Qualification of the indigenous.
• Kat River Settlement showed things working.

Trusteeship - Resistance and Oppression

• What Doombed rebellion and promise domination.
• Independent rule of incivilised.
• Benvolent Parternslin or Transskskein.
• Colonial legitimacy in Britain.
• Good europeans and africns.
• Only social assimilations.

Imperial Jurisprudence

• Crown and legal discource
• Impeiral jurispridence.
• Deicisoin and crown title
• Judicaical commite.
• Southern Rodesisa
• Always hard. Low tribes and high scale.
• Native races were.
• Re southern rhoesesda.
• Legal idea of civilised society.

Post 1994 "Cultivation"

• Intellectual history had been with many people by the time it had.
• Social inequalities and things not ok in southern AFrica Black and white.
• Land right and not a lot given up to people of old world.
• Past wrong with things that needed to have people fix it.
• To qualify for restitiution that should be the most.
• Commericl far and and things that do not have to o with rights.
• What's better to do.