4 Ineffective use of restituted land and inadequate State support
The beneficiaries of the restitution programme do not have experience in conducting farming operations on farms restored to them and there has been inadequate support from the State, which tended to emphasise the number of hectares transferred as opposed to the long term sustainability of land that is awarded to the beneficiaries33. Furthermore, most settlements do not result in the economic empowerment of beneficiaries.
Restitution has not been able to ensure that the land provided is effectively utilised to sustain livelihoods, create employment and bring prosperity to the beneficiaries of the programme. It could not have been the intention of the programme to merely restore ownership of the land without ensuring economic empowerment through sustainable use of properties.
5 Inefficiencies of the Legislation
The demand driven restitution model creates expectations and entitlement to claimants just as much as it creates uncertainty to current landowners and in the agricultural market. Such expectations by claimants begin when their claims are published in the Government Gazette, following the acceptance of the claims by the CRLR if the latter is satisfied (which does not mean prove) that the claim is not precluded by the requirements for restitution.
Experience has shown that current owners of claimed land stop investing or limit their investment in the farm once a claim is gazetted on their property, and cite uncertainty as one of the reasons for doing so Financial institutions are also reluctant to provide funding where the land to be used as security has a gazetted claim on it. By the time the land is acquired by the state, the farm is in a state of dis-repair and requires more money to establish operations. Furthermore, owners are uncertain whether the improvements they make as claims are being processed will be taken into account when the land is eventually acquired by the state. It has been argued that this, and the prolonged implementation of the restitution programme, is contributing to food insecurity, decreased investments by current owners in improving their properties, and thereby continuing to generate wealth for themselves. At times, even the government’s own infrastructure and development programmes are stalled or undermined where land has been claimed and its restitution is delayed.
This suggests that the existing legislation is not sufficiently specified to address the growing uncertainties, and the range of implementation challenges outlined above.
1. Just and Equitable Compensation and streamlining the rights restored
In order to ensure that the resources of the State are used equitably, and to ensure that the restitution programme benefits all claimants, provision shall be made for a determination by the Land Claims authorities whether compensation received by claimants whose claims are being considered is just and equitable calculated in terms of section 25 (3) of the 1996 Constitution. The determination of just and equitable compensation, guided by norms and standards to be developed by the Office of the Valuer General (to be established) shall also apply when claims are being settled.
In order to recognise the relativity of rights, the rights to be awarded to claimants shall be equated to the rights the claimants who were dispossessed of, taking into account all relevant circumstances. In evaluating the rights lost by the claimants, full regard shall be taken of the nature of the rights the claimants may have had prior to their rights being reduced to use rights, even where such rights were held prior to 19 June 191334.
It is anticipated that claims will be lodged on land that has already been awarded to beneficiaries of restitution, by third parties. Investigations on the history of the land, its occupation and the rights of each of the claimants shall be conducted. The CRLR shall be assisted by the Land Rights Management Committee or District Land Reform Committee that are currently being established through the Land Tenure Policy.
Procedures to deal with these claims shall be addressed through the review and reinforcement of the existing operational procedures and where appropriate the regulations.
2. Remedies for successful claims
The following remedies shall be available to claimants whose claims are successful:
2.1 Restoration of ownership rights
Restoration of ownership, including indigenous or customary law ownership or any other right that may be equated to an ownership right, shall be restored to its previous owners, provided that such restoration is feasible. The following factors shall be considered when determining whether restoration is feasible:
whether restoration may cause major social disruption;
any provision which already exists, in respect of the land in question in any matter, for that land to be dealt with in a manner which is designed to protect and advance persons, or categories of persons, disadvantaged by unfair discrimination in order to promote the achievement of equality and redress the results of past racial discrimination;
the amount of compensation or any other consideration received in respect of the dispossession, and the circumstances prevailing at the time of the dispossession;
the amount of compensation already awarded to the claimant;
the value and/or extent of the land already acquired and awarded to the claimant;
the impact of the restoration to resources available to the State;
the history of the dispossession, the hardship caused, the current use of the land and the history of the acquisition and use of the land;
in the case of an order for equitable redress in the form of financial compensation, changes over time in the value of money; and
any other factor that may be applicable.
Where restoration is not feasible, alternative land may be awarded to a claimant that lost ownership rights or other rights that may be equated to ownership: provided that the Land Rights Management Committee or District Land Reform Committee may be consulted in the determination of land that may be available.
Co-management is defined as an arrangement where two or more parties define and guarantee amongst themselves, a fair sharing of the management functions, entitlements and responsibilities for a given territory or set of natural resources. It is a form of a strategic partnership (the others being share equity and mentorships).
In land restitution it applies as an example of strategic partnership, whether combined with share equity or not; and where land is not restorable (instances where public interest supercedes the right to restoration or where restoration is prohibited by legislation) as the means to provide access and beneficiation to beneficiaries.
Co-management has four pillars, tangible benefits, Transformation, Accountability and Transparency and Risk Mitigation which must be reduced to agreements. The co-management agreement shall be structured in such a way that the beneficiaries receive tangible, realistic and optimal benefits without compromising the sustainability of the operations.
2.3 Financial Compensation
The payment of financial compensation shall only be made where restoration or allocation of use rights through co-management (control) is not feasible, i.e. as a last resort.
2.4 Priority access to State resources / Programmes
A claimant may be compensated by prioritization in the allocation and the development of housing and land in the appropriate development programme or be provided with special budgetary assistance for services and infrastructure development where claimants presently live, in line with the Comprehensive Rural Development Programme.
2.5 Exceptional Recognition
A claimant or ascendance of the claimants may, in appropriate circumstances, receive special recognition for their rights in any form that may be agreed or ordered by the Court. Forms of recognition may include the renaming of the area, farm, town, or district from which the claimant was dispossessed in the name of that claimant or group, erection of memorabilia or museum where the occupation and dispossession, culture, language and other matter of heritage may be displayed, at the States expense.
2.6 Combination of Remedies
The claimant may be awarded a remedy that involves a combination of the above, including the sharing of the land so as to reverse the spatial apartheid.
2.7 Obligations of the claimants on managing the restored land
Where a claimant is awarded land or use of land, the awards of land shall be conditional upon the following:
a right of first refusal if the beneficiaries intend to alienate the land or rights in land;
proper planning of the land use (including spatial planning) is undertaken;
an appropriate model of communal tenure held by a Communal Property Institutions set out in the Communal Property Institutions Policy;35
the sustainable use of the land; and
the Minister may, in appropriate circumstances, direct that claimants must relocate to the land allocated in order to curb the congestion that exists in communal areas.
3 Improving the planning and administration of the restitution process
3.1 Prioritisation of Claims
In order to ensure the effective implementation of the restitution programme, and to promote certainty in the process, the claims shall be processed, in phases, as follows:
Claims that were lodged by 31 December 1998, which remain unresolved;
Those who could not participate because of policies of the state, e.g. Betterment, misalignment of rights or those who were left out during the settlement of existing claims that they should have been part of;
Those who could not participate because of the 1998 cut-off date (for stand-alone claims).
Where a claim affects the implementation of the National Development Plan vision of eradicating poverty and reducing inequality by 2030, the Minister may direct that it be prioritised.
3.2 Improved Research Methodology
The CRLR shall partner with research institutions and universities to strengthen its research capacity. The strategy for research shall include District Based Research to which the allegations of claimants in each claim shall be tested.
3.3 Prosecution for lodgement of fraudulent claims
In order to ensure that the resources of the State are not used in investigating fraudulent claims, and to discourage people from lodging fraudulent claim, the communication campaign informing people of their right to restitution and to lodge claims shall clearly state that those who shall lodge fraudulent claims shall be subjected to the full might of the law. Where a person is proven to have lodged a claim with an intention to defraud the State such an action shall amount to a criminal offence punishable in law.
3.4 Removing the restrictions on developing gazetted land
In order to address the challenges caused by the gazetting of claims, that the restrictions currently applicable to claims after they have been published in the Government Gazette shall be reviewed to ensure an adequate balance between development and the claimants’ right to restoration.
4. Addressing challenges of Communal Property Institutions
The Restitution of Land Rights Act provides for communities to claim, and where land is to be awarded to the community, the Court and Minister must determine conditions that they consider necessary to “ensure that all the members of the dispossessed community shall have access to the land or the compensation in question, on a basis which is fair and non-discriminatory towards any person, including a tenant, and which ensures the accountability of the person who holds the land or compensation on behalf of the community to the members of such community”36. Land shall therefore be awarded only to a communal property institution of the claimant community’s choice that complies with the above requirements.
The Communal Property Associations Act, 1996 shall be amended to strengthen institutional, governance, support by the State, and accountability of Communal Property Associations. The Department of Justice and Constitutional Development and Master of the High Court shall be engaged to determine ways in which Trusts can be better supported.
Trusts and Communal Property Associations shall be structured and operated as illustrated in the “Wagon Wheel” model as follows:
The innermost circle located in the middle of the “Wagon Wheel” model suggests a partnership between the municipality (or the other two spheres of government as the case may be) and the CPIs. The CPIs administer the land and has the responsibility to ensure compliance is met based on the households’ decisions, while the government provides for sector plans, integrated development and spatial plans. These are accompanied by laws that determine land use as well as norms and standards. Both support and co-govern public private partnerships in communal areas based upon decisions made through substantive quorums by the community. In the context of institutionalisation as determined by the Constitution and wall-to-wall municipalities, local municipalities (and by extension democratically elected governments) have executive authority over assigned responsibility areas. The community shall have 51 per cent share equity from corporate investment and the proceeds of this investment will be equitably shared in the interest of business growth and the development of the community and households. This will be incentivized and co-managed through an Investment Development Trust and/or Rural Investment and Development Finance Facility or another appropriate investment model or instrument, supporting such areas.
The second circle in the “Wagon Wheel” represents the household level, which is the basic unit of production and implies clear allocation of land to each household. In addition, the household as the basic unit of production holds specific roles and responsibilities and constitutes another focal point of targeted intervention. For their part, households are responsible for playing active roles in ensuring effective land governance as well as paying taxes and rates to local municipalities for service provision and complying with by-laws. This responsibility is further incentivized by recognition of its authority; the affirmed and formalized rights to the household lands and the commons as well as substantive decisions on the use of natural resources endowments to the benefit of all.
Finally, the outside circle indicates the commons, consisting of communally owned areas designated, well-planned and efficiently managed for economic development and infrastructure investment. The executive committee or trustees of the CPIs are vested, through this area, with the responsibility of administering the land and related resources on behalf of the households. Quarterly meetings to determine use, account for progress and substantively decide on the way forward will take place and annual reports to Parliament will be required on how governance is improving and equitable development being advanced.
The diagram below seeks to further illustrate the correlation between the authority of the state and the administrative responsibility of the governance structures (CPIs holding land in trust of the community).
5. Improved beneficiary support programme
All of the above proposals shall be underpinned by an improved beneficiary support system from the state to ensure that increasing food production, food security, commercialization of small farmers and creating employment opportunities. A separate policy on the Recapitalisation and Development Programme (RADP) provides the framework through which support may be provided using the CRDP principles and approach.
INSTITUTIONAL REFORMS AND CAPACITY REQUIREMENTS
The restitution programme shall be implemented through an autonomous CRLR that is supported by an adequately resourced LCC.
1 Commission on Restitution of Land Rights
The CRLR established by the Restitution Act exists and is empowered to solicit claims, investigate them and attempt to resolve them through mediation and negotiation. The CRLR shall report to the Minister of Rural Development and Land Reform who shall exercise executive oversight and policy guidance, and to the Director General of the Department of Rural Development and Land Reform who shall remain as the accounting officer. The CRLR shall be autonomous.
To support the CRLR during the lodgement period the youth participating in the National Rural Youth Service Corps shall be trained in restitution processes and deployed to distribute a citizen’s manual on lodgement of claims and also to assist claimants with the lodgement of claims.
Other capacity requirements of the CRLR to implement restitution, especially with the extended scope and development nature, shall be conducted in accordance with the provisions of the Public Service Act and Regulations thereto.
2 Land Claims Court
Chapter III of the Restitution Act, provides for the establishment the LCC, and sections 22 (3), (4), (5), (6), (7), (8) and (9), 23, 26, and 26A of the Act deals with appointments, tenure of office, remuneration and the terms and conditions of service of judges of the Land Claims Court.
Experience has shown that the current requirements for the appointment, tenure of office, remuneration and terms of service of judges of the LCC are cumbersome and time consuming which often leads to vacancies in the office of judges of the Court. Presently, the court only has one full time judge (who is also active judge president) and acting judges.
The court shall therefore be capacitated and provision shall be made for the appointment of sufficient number of judges and a Judge President, and appropriate support staff.
3 Relationship with other Institutions that support Land Reform
In the processing of the land claims, the CRLR shall be assisted by the Land Rights Management Board and Land Rights Management Committees (to be established) in managing and resolving disputes. The office of the Valuer General (to be established) shall determine norms and standards through which the values of the land (historical and current) shall be determined, while the Land Management Commission (to be established) shall support the CRLR in determining ownership of land at various points through history. Details on the mandates and functioning of the Office of the Valuer General, Land Rights Management Board, Land Rights Management Committees and the Land Management Commission are articulated in separate policy documents and legislation.
F AMENDMENTS TO LEGISLATION
In order to implement the policy reforms referred to above, and to redress the operational challenges and inadequacy of the legislation, the Restitution Act and Regulations thereto shall be amended. The amendments shall be made in three phases.
Phase one shall constitute the amendment of the Restitution Act to extend the date for the lodgement of the claims for a period of five years, technical amendments to assist in the management and control of the lodgement process, and the provision of additional capacity to the LCC.
Phase two shall constitute the amendment of the Restitution Act and Regulations thereto to address operational challenges and inadequacies of the legislation. These amendments shall ensure the effective and efficient processing of claims.
Phase three, shall constitute the finalisation of policy and legislation that will provide for redress for pre-1913 dispossessions.
All three phases shall be conducted parallel to each other.
NKWINTI, GE (MP)
MINISTER OF RURAL DEVELOPMENT AND LAND REFORM
ANNEXURE A: EXPERIENCE ELSEWHERE AND LESSONS FOR SOUTH AFRICA
Land restitution programmes have been implemented in other countries such as Australia, Canada, and Germany. However, most African countries such as Namibia, Kenya and Zimbabwe have preferred to use land redistribution programmes (including expropriatory land acquisition, land taxation and land ceilings) to redress the colonial land dispossessions experienced, rather than restitute specific land claims by individuals or groups. This approach has been justified by the need to address the land grievances in a generalised manner, reduce the overlapping claims that have often arisen, and to contain the requirements of addressing widespread claims.37
Australia, Canada and South Africa have histories that are “characterised by unfair, racially biased land dispossessions”38. Australia and Canada are suitable cases for comparative studies on land restitution matters because these countries have in recent times embarked on some kind of land reform, albeit the fact that the South African restitution process is the only one that is explicitly authorised by the Constitution and governed by legislation”39. Indeed, it is notable that the land restitution programmes in Canada and Australia arose from litigation and recognition of the doctrine of aboriginal title, and the formalisation of this through the passage of legislation once the courts had ordered restitution.
In Australia the court’s decision in the Mabo land claim court case40 resulted in the enactment of the Native Title Act of 1993 to provide the means through which aboriginal title41 which had been recognised under common law could be claimed through a restitution action42.The doctrine of aboriginal title refers to a common law concept that land rights of indigenous people to customary land tenure continues to exist even after the taking over of the land after colonialism. In Canada, the Delgamuukw land claim v British Columbia43 the Supreme Court of Canada “confirmed that common law aboriginal title, previously recognised as a common law aboriginal right before 1982, was constitutionalised.”44No explicit restitution policy or legislation exists in Canada45.
Land Restitution in Germany takes places as a result of legislation passed in the 1950s by West Germany46 to provide for compensation for personal damages suffered and compensation for expropriation. A cut-off date for lodgement of claims was initially on the 1 April 1958 and was later reopened and closed on 31 December 196947. Between 1 April 1958 and 31 December 1969, exceptions were provided to accommodate claimants that were not to blame for the late application under certain conditions set out in legislation48 that, inter alia, extended the cut off dates49.
On the issue of the cut-off date for lodgement of claims or providing a cut-off date from which dispossessions must have taken place, Australia and Canada provide an alternative approach to the current approach taken in South Africa50. The land restitution process in Australia and Canada is driven by the Courts who have developed the doctrine of Aboriginal title in order to redress colonial land dispossessions. Therefore no cut-off dates are applicable because of the doctrine of aboriginal title.