South Africa's history: a land law written thirty-five years before apartheid

What was here first

Hominid species existed in southern Africa about 2.5 million years ago, and modern humans have inhabited the region for more than 100,000 years.

The first known people were the Khoisan, whose presence in the region long predates every polity described in this article. Bantu-speaking peoples migrated into the region later. Both facts are part of the record and both have been used in twentieth-century arguments about who had prior claim to what, which is a reason to state them plainly, date them where the record allows, and leave them there. The catalogue records who was present and when. It records no conclusion about what that entitles anybody to now, because that is a political claim and not an archaeological one.

How Europeans arrived and why

In 1652, a century and a half after the Cape Route was opened, Jan van Riebeeck established a victualling station at the Cape of Good Hope on behalf of the Dutch East India Company.

The Cape became something the Company had not planned. A refreshment station on the route to Asia acquired a settled population, then farms, then a frontier, and the frontier moved inland for two centuries.

A supply post for ships bound elsewhere is a modest founding, and the settlement that grew from it was not planned as a colony of settlement. What it became, over two centuries of Dutch and then British rule, was a society organised around who could hold land and who could not, and the segregation that later acquired a name began under both colonial administrations rather than with the government that systematised it.

What the Boer wars were about

The Union was created out of a defeat, and which defeat it was matters.

The Second Anglo-Boer War, fought from 1899 to 1902, ended with the defeat of the Boer republics. The settlement that followed took four years to negotiate and produced a self-governing dominion of the British Empire rather than a return to the status quo: two former British colonies and two former Boer republics under one parliament.

What that parliament was not asked to settle was the position of the majority of the people living in the territory it governed. The reconciliation the Union was built to achieve was between Afrikaners and English-speaking whites, and the merger of the South African Party and the National Party into the United Party in 1934 was undertaken explicitly for that purpose. The party split in 1939 over entering the Second World War alongside the United Kingdom.

Two white communities spent forty years negotiating their relationship with each other inside institutions that had already, in 1913, settled the land question against everybody else.

What the Union settled

The Second Boer War ended, four years of negotiation followed, and the South Africa Act 1909 created the Union of South Africa on 31 May 1910.

The Union was a dominion. It brought together the former Cape, Transvaal and Natal colonies with the Orange Free State republic, and it granted the country nominal independence: full sovereignty from the United Kingdom followed only with the Statute of Westminster in 1931, which abolished the last powers of the British parliament to legislate for it.

What the new parliament did within three years is the subject of this article.

The Natives Land Act of 1913 was passed by a parliament the British ruled, in a dominion of the British Empire, three years after the Union was created. It severely restricted where black South Africans could own land, and at that stage they controlled 7% of the country.

Two features of that act deserve separate notice. It was a land law rather than a franchise law, which means its effects compound: land held is capital, capital is inheritance, and a restriction imposed in 1913 was still determining who owned what four generations later. And it was passed before the party most associated with racial legislation existed in government, which means the system that party built in 1948 was built on foundations somebody else had poured.

That is the number to carry through the rest of this history. Every subsequent settlement, including the democratic one, inherited a distribution of land set by a statute that predates apartheid by a generation.

What the National Party added

The National Party was elected in 1948 and strengthened the segregation that Dutch and British colonial rule had begun.

The method was classificatory and it was borrowed. Taking Canada's Indian Act as a framework, the government classified all people into three races, with distinct rights and limitations attached to each. The system acquired the name apartheid. Its distinguishing feature was not severity, which had precedents, but completeness: classification determined where a person could live, work, travel, study and be buried, and the classification itself was administered by the state. Whites enjoyed a standard of living comparable to western nations and the black majority did not.

The constitutional machinery changed alongside it. On 31 May 1961 the country became a republic after a referendum open only to white voters, which passed narrowly; the British-dominated Natal province voted largely against. The monarch lost the title Queen of South Africa and the last governor-general became state president. As a concession to Westminster practice the president was appointed by parliament and the office was virtually powerless until the Constitution Act of 1983, which abolished the prime ministership and created a strong presidency responsible to parliament.

The resistance is worth describing accurately, because it is often flattened into a single movement. Opposition came from every racial background, inside the country and outside it, and the government legislated for continuation regardless. Security forces cracked down on internal dissent and violence became widespread. The African National Congress, the Azanian People's Organisation and the Pan-Africanist Congress conducted guerrilla warfare and urban sabotage, and the three movements also fought each other for domestic influence as they competed for standing inside the country. A resistance that is plural is harder to suppress and harder to negotiate with, and both of those were true here.

What the outside world did

Apartheid was a domestic system with an international dimension, and the international dimension had a measurable effect on the economy the democratic state inherited.

Decades of international sanctions left the economy weakened by the time the transition came, and the government elected in 1994 took over public finances shaped by them. That is a specific inheritance: a new administration whose first economic task was stabilising public finances and reducing inflation, in an economy cut off from much of the world for a generation.

The country's constitutional relationship with Britain had already been severed by referendum. On 5 October 1960 a majority of white South Africans voted for unilateral withdrawal from the Commonwealth and for a republic, and the Union came to an end. South Africa rejoined the Commonwealth in 1994, which makes the readmission one of the clearest markers of what the settlement changed.

How the settlement was negotiated

The transition is usually dated to 1990, and the first agreement of its kind is older.

The Mahlabatini Declaration of Faith, signed by Mangosuthu Buthelezi and Harry Schwarz in 1974, set out principles of peaceful transition and equality for all, and was the first such agreement between black and white political leaders in South Africa. It did not end apartheid. It established that a negotiated end was conceivable, sixteen years before one began.

In 1990 the National Party government lifted the ban on the ANC and other organisations and released Nelson Mandela after 27 years of a sentence for sabotage and treason. A negotiation process followed, with the white electorate approving its continuation in a referendum in 1992, and bilateral discussions between de Klerk and Mandela in 1993.

South Africa held its first universal elections in 1994, which the ANC won by an overwhelming majority. Eighty-one years had passed since that parliament legislated the land restriction, and eighty-four since the parliament itself was created. The country rejoined the Commonwealth and joined the Southern African Development Community, ending a diplomatic isolation that had run since the withdrawal of 1961 and deepened through the sanctions of the decades after it.

What the new state inherited

The political settlement was completed and the distribution underneath it was not.

The post-apartheid period has been characterised by relative political stability, and by high unemployment and increasing income inequality. It has also seen periodic violence: the xenophobic riots of 2008, in which more than 60 people were killed and an estimated 100,000 driven from their homes, and the Marikana massacre, the most lethal use of force by South African security forces against civilians since the Soweto uprising.

Widespread political corruption and state capture took place under one presidency, and the electoral dominance of the ANC has declined since the early 2000s. In the 2024 general election the party failed to secure a parliamentary majority for the first time, and a government of national unity was formed with the Democratic Alliance among others.

That sequence, thirty years from liberation to a coalition, is unremarkable for a democracy and remarkable for this one, because it happened without the constitutional crisis that a country with this history might have been expected to produce.

What the record does not settle

Two questions run through everything above and neither is closed.

The first is land. The 1913 act set a distribution that the democratic state inherited intact, and the mechanism, pace and legal basis of changing it have been argued over continuously since 1994. The catalogue records the 7% figure, its date and its statute, and takes no position on what should follow from them.

The second is what the transition traded. The settlement of the 1990s secured universal franchise and a constitutional order, and it did not redistribute assets. Whether that was the price of avoiding a war or a failure of nerve is a live argument in South African politics, conducted by people who were there, and it is not a question a reference work can answer.

There is a third question that the catalogue can only note. The transition produced a constitutional order designed by parties that had recently been at war with each other, under time pressure, with the alternative visible to everyone. The drafting ran through an interim constitution in 1993 and a final text certified by the Constitutional Court in 1996, and both were negotiated rather than imposed. How much of its subsequent performance is attributable to that design and how much to the conditions it was written in is not a question the record answers.

What can be said precisely is the sequence: segregation begun under two colonial administrations, given statutory force in 1913 by a parliament under British rule, systematised and named after 1948, dismantled by negotiation between 1990 and 1994, and inherited as a distribution that the dismantling did not alter.