Abstract

Excerpted From: Emily Venkatesan, Broken Lands and Trusts: The Omnipresence of the Natives’ Land Act of 1913 and the Persistence of Its Inequity, 40 Emory International Law Review 435 (2026) (185 Footnotes) (Full Document)

At the turn of the twentieth century, the provisional government of South Africa designed a scheme to undermine non-white majority primary based on legal fictions and suppressive enforcement. The backbone of South Africa apartheid functionally restricted property use and access for the majority and redefining ownership for the minority, white ruling class. In order to support the proto-apartheid goals of the burgeoning Nationalist Party, the white colonial government first needed to ensure the non-white majority lacked economic and physical access to territory. The first act in service of this goal was the 1913 Natives’ Land Act that effectively reserved ninety-three percent of South African land exclusively for white South Africans. The remaining seven percent housed the entire population of black and non-white South Africans. The crucial arm of the long-lasting economic disparity generated by the apartheid state relied on the Natives’ Land Act. Though in 1993, the introduction of a new constitution nominally abolished apartheid, the impact of colonial social framework still dictates the relationship between the indigenous and non-white population and property access. Today, the economic disparity between black South Africans and white South Africans is extreme. Through a post-colonial analysis, the racial hierarchy inherent in the Natives’ Land Act remains intact. Still, the object of the Natives’ Land Act retains its teeth and continues to color the socio-economic status of non-white South Africans. Through the example of South Africa, the broader application of this analysis demonstrates that a key indicator of the continuation of colonial power dynamics is the perpetuation of land restrictions based on racial categories.

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The 1913 Natives’ Land Act built a racist legacy that the Nationalist Party exploited to prevent resistance as they imbued the legal system with apartheid racial hierarchy. Western property law claims that the “best use” of land is the most important principle. However, when this principle merges with the belief that racial or ethnic groups cannot handle the responsibility of land ownership and any white owner would better use property, western property law becomes a tool of oppression and preservation of racial hierarchy. South Africa was not the first country to institute this reading of western property law. Property, then, becomes the weapon of colonization and in the post-colonial world, the legal precedents that emerge from these policies and cases cause long-lasting disenfranchisement for Indigenous communities. This particular exercise of property law mostly appears in decolonized ex-British states such as The United States or in the Caribbean. The common law of property is laden with the racial hierarchy of colonization. The legal precedent then serves to legitimize modern oppression and continues to prevent Indigenous groups to assert power through property and land use rights. In the fashion of early colonial dogma, proponents of retaining the current status quo point to the absence of property ownership as indifference and earned disenfranchisement. From the stripping of property rights to the hoarding of valuable resources that remains despite the legal abandonment of the 1913 Natives Land Act, the persistence of colonial disparities continues to impact black and non-white South Africans.

The circle of colonial-based justification for the imposition of Western ideology as the most excellent system still persists. In the United States, the process of removing Indigenous peoples from their ancestral land found legal precedent in the Doctrine of Discovery. Moreover, the U.S. Supreme Court and several federal courts repeatedly confirm the delegitimization of Indigenous land interests. In the Pacific, the state of Hawai’i continually refuses to recognize Native Hawaiian Indigenous ancestral land. Currently, Mark Zuckerberg has sued eight individuals for quiet claim deeds to take land to build his Hawaiian estate. The result of what many refer to as “neocolonialism” is that Zuckerberg pushed for the land to be auctioned off:

Now, two years later, the quiet title process initiated by Andrade is drawing to a close and a judge has ordered a public auction of the parcels. When one of the richest men in the world has expressed an interest in the outcome of an auction, there is no real question that he will get his way.

The difficulty faced by communities with ancient ties to land and western seizure and exploitation of this land persists as a danger and continual oppression of marginalized communities. Refusing to acknowledge that suffering that apartheid continues to inflict fails to achieve the primary goal of the 1996 Constitution. The process of decolonizing and restructuring the institutionalized disparity is a modern legal issue that cannot be resolved merely by decrying the legal violence of the past. Modern solutions must acknowledge the centuries of legal exploitation that must be remedied in order to pursue just and equitable societal goals.

The Natives’ Land Act altered the political, economic, and social landscape of South Africa and built the disparity that persists into the modern era. In order to reject this legal construction, reparations and restructuring the economic opportunities of South Africa must be implemented. Building a stronger future for all South Africans requires eliminating the capitalism and colonialism that sank into the economics and property law of South Africa during apartheid. Scholars and post-colonial academics have suggested a plethora of ways to change the economic disparity that persists thirty years after the cessation of apartheid. The means to repair this divide may not be found within the framework of European and International law but may be found in the process of Africanization. Apartheid was a vile enactment of racism and colonialism, and to allow it to persist in shadowy and subtle ways is an injustice of its own.