Advocate Tembeka Ngcukaitobi’s new book, The Land is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism (Penguin Random House), illuminates the lives and work of black legal pioneers, giving them the recognition they deserve. We chat to him about this formidable work.
In your book, you challenge the idea that the Bill of Rights is inherently Eurocentric. Why was it important for you to do this?
When the Europeans invaded Africa under colonialism, they acted contrary to their own laws, violated human rights and disregarded property rights or indigenous Africans. The ideas underpinning the Bill of Rights – freedom, equality and dignity – emerged as a negation of colonial violence. These ideas have weathered the storms of colonialism and apartheid. They now appear in our Bill of Rights under the Constitution. It was Africans, specifically African lawyers, who developed them. In order for the Constitution and those ideas to be entrenched in society, it’s important that their true origins be understood – especially in a society where questions are emerging about whether the Constitution was a Western imposition.
Why did you divide the books into biographies, with chapters focusing on Henry Sylvester Williams, Alfred Mangena, Richard Msimang, Pixley ka Isaka Seme, Ngcubu Poswayo and George Montsioa?
I wanted to illuminate the triumph of the personal spirit in the face of an aggressive and oppressive state. The story of the emergence of the ideas of constitutionalism, the rule of law, equality and freedom could only make sense if embedded in the personal stories of the lawyers in the book.
What are your views on the transformative possibilities that the Constitution, in its present state, offers land reform?
I don’t think Section 25 of the Constitution is a stumbling block to comprehensive land reform. I believe land reform on just and equitable grounds can be accommodated in the Constitution’s current framework. The main problem has been the failure of the government to implement the transformative vision of the Constitution. Three factors have hampered the pace of land reform: corruption, excessive prices (which are incongruent with the Constitution) and misunderstanding of the Constitution. However, an amendment to Section 25 wouldn’t necessarily throw it out of alignment with international norms or the balance of the Constitution. An amendment making it explicit that in limited circumstances – to be defined in legislation – the state has the power to expropriate land without compensation is a defensible stance.
What three top tips helped you when writing the book?
Reading widely before writing, write for the reader and clarity, clarity, clarity!
Which writers have influenced you most?
Locally, novelist Zakes Mda and internationally, historian Niall Ferguson.
What’s your next literary project?
I’m writing a new biography of Robert Sobukwe, focused on his work as a lawyer.