# OPINION: The Constitution requires us to hold both our contradictory stories about land

- Link: https://dearsouthafrica.co.za/2019/08/03/opinion-the-constitution-requires-us-to-hold-both-our-contradictory-stories-about-land/
- Published: 2019-08-03T18:10:24+02:00
- Author: dearSA

![](https://cdn.dearsouthafrica.co.za/wp-content/uploads/2019/08/20191309/Screenshot-
79.png "Screenshot (79)")

## As long as the politics of memory requires us to have one story declared the ultimate winner and sole truth, the common ground will be lost leading to a battle for the single truth, writes Elmien du Plessis.

A recent legal question guided me to the physical boundaries of our country. As 
I read about our boundaries and borders, the research spiral took me to treaties
concluded in the 1800s. I lost myself in the stories that these treaties tell.

This road-trip of treaties and international agreements ensured that the laws guaranteed
that in most part, things stay the same, even if the governments change.

In my imagination I travelled this route. The boundaries of the Transvaal Republic
had names of farms that sound familiar to my Afrikaans ear, sprinkled with reference
to the indigenous peoples living there in the unfamiliar names of mountains and 
rivers that in their turn formed the boundaries of communities.

“…[Thence up the course of the Notwane River to Sengoma, being the Poort where the
river passes through the Dwarsberg range; thence, as described in the Award given
by Lieutenant-Governor Keate, dated October 17, 1871, by Pitlanganyane (narrow place),
Deboagnak or Schaapkuil… […] to the north-western corner beacon of the farm ‘Mooimeisjesfontein…'”

And so the boundaries tell the stories of how the lives of the people on the land
were so intertwined in their foreignness. We are strangers who’ve know each other
for centuries, divided by imaginary lines that were concretised in harsh laws. The
harsh laws that divided us are repealed, but the imaginary and psychological lines
remain.

The national boundaries are important. It contains us. Our borders are set out in
our Constitution, our story. It tells the story that South Africa is a country, 
a nation, also because of the boundaries that contain us. The boundary and the treaties
that were drawn and established over centuries, and that are cemented in our Constitution,
therefore purport to tell us where we belong. It seeks to define who we are, to 
establish a common identity that transcends the ethno-racial identities that each
of us embodies. This is echoed in the last line of our amalgamated anthem that ends
with “South Africa our land”.

Without the stories that boundaries tell, there would not be a South Africa. The
question is: do we believe in the story of South Africa?

The conversation around land that the amendment of Section 25 opened up, is a symptom
of our struggle to believe in the story that these national boundaries tell. Inside
the South African boundaries, we sit with many stories.

The one is a story of contested boundaries and belonging, of people settling on 
the land and claiming ownership through treaties and allowances from colonial governments,
later by claiming registered title. The title deed draws boundaries that fences 
entrench. There is a belief that blood and sweat baptised the claim to the land.

It is a story that is indeed true, and that did indeed happen, but that requires
a belief in and adherence to Roman-Dutch law as influenced by English law, that 
underlies it, for a sense of legitimacy. For believers of this story, land that 
accrues to persons by virtue of being members to a community, held in terms of customary
law that only allows insiders with consensus of the community, is a strange unbelievable
story.

A belief in this story struggles to acknowledge that dispossession of land was not
only a physical act. It was also the enforcement of a legal system strange to the
people who were occupying the land in terms of their laws, their story. It rested
on the belief that one story was less strange than the other.

The other story – the story of the people who inhabited the area before it was dispossessed
physically or by law, is of course also true, and co-exists with the title deed 
story.

For indigenous people individual title to a whole piece of land, established in 
terms of proclamations and held to the exclusion of all others, bestowed by a foreign
authority and separate from any social relations, was a strange story. In terms 
of the indigenous story, land belonging is tied up with social relations and a sense
of belonging: the ancestors, the living and the yet-to-be-born. Communal land, as
set out in the [Baleni](http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAGPPHC/2018/829.html&query=Baleni)
judgment “forms an inextricable and integral part of this community’s way of life[…]
a residential plot presents far more than merely a place to live: it is a symbol
of social maturity and social dignity. Each residential plot further serves as a
critical conduit for the preservation of relations of inter-linkage and mutual dependence
between the living and the dead and is critical for the wellbeing of each imizi (
household).”

Our Constitution, being a story in itself, carries this contradiction and attempts
a reconciliation of opposing stories by recognising the common law alongside the
indigenous law. It requires us to hold them both. And it is this discomfort and 
disconnectedness that sometimes play out when we wrestle with the land question.

It is this possibility that both stories are true that holds the power to either
be our downfall or our salvation.

In his book “If this is your land, where are your stories?” Chamberlain tries to
answer the question whether land can really ever be home to more than one people.
He concludes that it is possible, but that it requires a re-imagination of Them 
and Us, an ability to hold the ambiguity in Them/Us, Reality/Imagination.

He relies on the role of contradictions as part of the art of storytelling. When
we realise that contradiction is inherent in the stories, and when we realise that
our stories sound just as strange to Them, than theirs to Us, that is when we find
common ground. But as long as the politics of memory requires us to have one story
declared the ultimate winner and the sole truth, the common ground will be lost 
leading to a battle for the single truth. A zero-sum game.

In _The Book of Laughter and Forgetting_, Kundera writes that “the struggle of man
against power is the struggle of memory against forgetting … The only reason people
want to be masters of the future is to change the past. They are fighting for access
to the laboratories where photographs are retouched and biographies and histories
rewritten.”

If the current struggle for power is indeed a struggle to change the past, it is
because the ambiguity of two equally true stories can be uncomfortable, and a single
truth comforting, at least for the winner of a zero-sum game. Being confronted with
the strangeness of your own story can leave one bewildered.

Therefore, our solace lies in the knowing and accepting that both the stories are
true. That both stories are familiar and strange at the same time, a realisation
that makes it possible for the ears to hear a story that is strange.

We need to embrace the strangeness of the Other’s stories, and not shy away. We 
need to sustain ourselves in relation to the strangeness of others. The point is
not to become the other, or for them to become us. The goal is that each of us become
ourselves, and embrace the other in the comfort of the strangeness, without being
strangers. And to then find a way forward.

This listening to and understanding of the stories of the Other holds the possibility
to believe in the collective story that the boundaries of South Africa tells: that
we are indeed one sovereign, democratic state, based on human dignity, the achievement
of equality and the advancement of human rights and freedoms. From Soebatsfontein,
to Umgungundlovu.

– Elmien du Plessis is associate professor in Law at the North-West University.

[Article](https://m.news24.com/Columnists/GuestColumn/the-constitution-requires-us-to-hold-both-our-contradictory-stories-about-land-20190801)
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