For the purposes of government planning, and to streamline the restitution process, the lodgement of claims shall take place within a period of five years from the date on which amendments to the legislation come into effect. The timeframe for the lodgement of claims, supported by a communication campaign which shall include youth from the National Rural Youth Service Corps that shall be trained in restitution processes and deployed to distribute a citizens manual on lodgement of claims.
3.2 Criminalisation of the lodgement of a fraudulent claim
As a control measure, and to ensure that the resources of the state are not abused, the lodgement of a claim by a person or community whose intention are to defraud the state shall be a criminal offence punishable in accordance with legislation regulating the offence of fraud.
3.3 Criteria for qualification to claim
The criteria for qualification for restitution shall remain the same, in that there must have been a dispossession of a right in land, after 19 June 1913, that took place as a result of past racially discriminatory laws and practices, and that a claim must be lodged. The following shall be competent to claim25:
Persons dispossessed of rights in land after 19 June 1913 as a result of past racially discriminatory laws and practices, and who has lodged a claim;
Estates dispossessed of rights in land after 19 June 1913 as a result of past racially discriminatory laws and practices, and who has lodged a claim ;
Direct descendants of Individuals dispossessed of rights in land after 19 June 1913 as a result of past racially discriminatory laws and practices, and who has lodged a claim;
Communities dispossessed of rights in land after 19 June 1913 as a result of past racially discriminatory laws and practices, and who has lodged a claim;
The institutions responsible for restitution shall be required to determine whether there are any competing land claims or land rights in respect of land that they intend awarding to a successful claimant. Provision shall be made for the CRLR to request through media and other forms of communication that claims be lodged in respect of certain districts (which could include the prioritised 24 Districts for rural development) where the CRLR is processing claims, albeit before the cut-off date for lodgement.
C. THE RATIONALE FOR THE POLICY
Although significant progress has been made by government in implementing the land restitution programme, experience shows that the efforts of the democratic State to provide redress for the dispossessions have been thwarted by various limitations.26 The White Paper had set out the following indicators as a basis of judging whether the land restitution programme could be considered successful:
“if substantial numbers of claimants who were dispossessed of land after 1913 under racially discriminatory laws and processes receive restitution in the form of land or other appropriate and acceptable remedies;
if the restitution process does not itself lead to major disputes or conflict which cannot be resolved within the framework of the Restitution of Land Rights Act;
if land restitution is achieved while maintaining public confidence in the land market, and
if satisfactory frameworks and procedures are found for claims and demands which fall outside the Restitution of Land Rights Act”.
The Restitution Programme has been evaluated by various the DRDLR consultants, stakeholders and the DRDLR through interactions with the beneficiaries of the land restitution programme themselves. Recently, the programme was reviewed through Provincial consultative workshops held between December 2010 and April 2011, led by the Minister of Rural Development and Land Reform. This culminated in a national land restitution workshop that was held on 6 to 8 May 2011, attended by 1 296 beneficiaries of the restitution programme. The beneficiaries concluded that the programme was not inclusive as deserving persons and communities that did not lodge their claims before the 31 December 1998 and those dispossessed of their land before 19 June 1913 could not participate in the programme. They requested government to re-open the lodgment of claims for dispossessions that took place through history.
In a separate review of the programme by Government, as contained in the Development Indicators approved by Cabinet in March 2012, it was stated that “access to productive land can be a catalyst for poverty alleviation, food security and job creation” (Department of Performance Monitoring and Evaluation, 2012). However, the delivery of land through the Land Restitution programme began slowly from 1994/95, and then accelerated from 2000 to 2005/6. It has levelled off since then. It was found that the more complex the nature of the claim the longer it took to resolve them, and that it has taken 17 years since 1994 to settle numerous claims lodged under the restitution programme. Furthermore, the evidence suggests that there was limited utilisation of the land after settlement, and that this was coupled with absentee ownership.
Organised agriculture has also reviewed the restitution programme, concluding that it was “ progressing extremely unsatisfactorily and that alternative ways must be found to ensure that restitution makes its rightful contribution to the expectations that exist for it”. (AgriSA, 2012) The sugar industry through South African Sugar Association and Cane Growers Association have also made similar observations stating that “there is a lack of programmatic approach to settle outstanding claim impacting negatively on sugar cane supply” (SASA, 2013).
Altogether, the key challenges facing Restitution programme thus include: its exclusiveness; various implementation deficiencies; the tendency of communal property institutions created to undermine rights; the under-utilisation of restituted land and inadequate state support; and the inadequacy of the legislation.
1 An Exclusive Restitution Programme
At least three categories of deserving people who did not participate in the programme have been identified. They include those who could not lodge claims by the cut-off date of 31 December 1998, those dispossessed of their rights in land before 1913, and those dispossessed through betterment planning schemes and not allowed to lodge their claims by officials of the CRLR (i.e. before the cut-off date for lodgement of claims). Each of these categories is discussed below.
1.1 Non-participation of deserving persons and communities from the land restitution programme
Persons and communities that did not lodge land claims by 31 December 1998 cannot participate in the restitution programme. The Restitution Act only provides for redress to those who lodged their claims by 31 December 1998. Whilst the Act provides for alternative relief to be provided to claimants whose claims do not meet the requirements for restitution, such relief is only available to those who lodged claims for restitution within the prescribed timeframe.27
The reasons that have been forwarded by those advocating for the reopening of the lodgement of land claims are that the research methodology that informed the creation of the restitution programme in its present form was poor; that verification systems of the CRLR were poor, the window period that was provided to lodge claims was too short and the communication campaign to inform citizens about the requirement to lodge claim did not reach every corner of the country. The majority of this group only became aware that they would qualify for restitution had they lodged their claims by the cut-off date when they became aware of persons and communities that were being provided with restitution.
Research indicates that the colonialist and apartheid governments used eleven main processes to effect land dispossessions. These were farm removals, black spot removals, homeland consolidation, betterment planning, urban relocation, removals of informal settlements in urban and peri-urban areas, removals due to influx control legislation, removals in terms of the Group Areas Act, removals for infrastructure development schemes and for strategic/military reasons and politically-motivated removals such as deportation and banishment of individuals. These processes were targeted at blacks and resulted in 80% of the population being confined to only 13% of the land.
It is estimated that at least 3.5 million individuals were forcibly removed from their land as a result of colonialisation and apartheid laws implemented after 19 June 1913 between 1960 and 198328. It has been argued that this figure excludes dispossessions that were caused by betterment planning and homeland consolidation. The estimates in the White Paper on Land Reform, 1996 had not included dispossessions caused by the implementation of betterment planning policies as the White Paper had envisaged that such dispossessions would not be addressed through the land restitution programme. When dispossessions that took place as a result of betterment and homeland consolidations, which have resulted in claims by whites, are taken into account the figure could be closer to 7.5 million (Kariuki and Olivier, 2011), whilst less than 80 000 claims for restitution before the cut-off date of 31 December 1998, benefitting only 1.8 million individuals as at 31 March 2013.
1.2 Non-participationof deserving persons and communities dispossessed of rights in land before 19 June 1913
Claims for dispossessions that took place prior to 19 June 1913 are not included from the land restitution programme by section 25 (7) of the 1996 Constitution which states that only persons and communities dispossessed of property, after 19 June 1913, as a result of past racially discriminatory laws or practices have a right to restitution or equitable redress to the extent provided for in an Act of Parliament.
Numerous wars were fought between Europeans and indigenous communities who had inhibited South Africa. Following victories by the Europeans, they declared land traditionally occupied and controlled by the indigenous communities as “Crown land” or “State land” destroying pre-existing traditional forms of land ownership. This was later entrenched by legislation on segregation as outlined above29. By the time the 1913 Natives Land Act was passed, the majority of land that was traditionally occupied and controlled by the indigenous communities had already been taken. For example, the Khoi and San which were the first people to be dispossessed of their traditional land when the Europeans settled in the Cape are unable to claim that land as it was lost before 1913 as a result.
The White Paper had stated that “government believe[d] it is not possible to address pre-1913 claims through a judicial process such as that laid out in the Restitution of Land Rights Act or Aboriginal Title Arguments that have been used in countries such as Canada and Australia. It has been argued that in South Africa, ancestral land claims could create a number of problems and legal-political complexities that would be impossible to unravel. In this regard the White Paper argued that:
Most deep historical claims are justified on the basis of membership of a tribal kingdom or chiefdom. The entertainment of such claims would serve to awaken and/or prolong destructive ethnic and racial politics.
The members of ethnically defined communities and chiefdoms and their present descendants have increased more than eight times in this century alone and are scattered.
Large parts of South Africa could be subject to overlapping and competing claims where pieces of land have been occupied in succession by, for example, the San, Khoi, Xhosa, Mfengu, Trekkers and British.
Experience has showed that the problems listed above (associated with pre-1913 dispossessions) are also found in the claims for dispossessions that took place after 19 June 1913.30 Moreover, it is notable that the Diagnostic Report of the National Planning Commission (2011) has called for the country to “continue with measures to heal the wounds of the past whilst reducing economic exclusion, inequality of opportunity and outcomes. This means resolving the inevitable tensions between equity and redistribution on one hand, and inclusivity on the other.”
Given the complexity of defining the scope of the dispossessions of land that occurred before 19 June 1913, the additional research that still needs to be undertaken to quantify the extent of possible land claims that could arise, and the need for a careful assessment of the scale of resources required to address them, a separate policy paper on the possibility of considering pre-1913 land claims needs to be drafted.
1.3 Exclusion of deserving persons and communities dispossessed by “Betterment” Planning Schemes
The White Paper had provided that “the claims of those dispossessed under 'Betterment' policies, which involved the forced removal and loss of land rights for millions of inhabitants of the former Bantustans, should be addressed through land tenure security programmes, land administration reform and land redistribution programmes.” This provision led officials of the CRLCR to discourage those persons and communities that were dispossessed of their rights in land as a result of the implementation of “Betterment” planning policies from lodging restitution claims. In the public communication campaign, including radio broadcasts and road shows, that was undertaken prior to 31 December 1998 to encourage the lodgement of claims; those affected by betterment planning were informed not to lodge their claims. In certain instances, the CRLCR and its staff did not accept claim forms where dispossessions were as a result of the implementation of “Betterment” planning policies, and those claims found to be “Betterment” related were dismissed as non-compliant with the requirements of restitution.
Betterment Planning occurred in the former “homelands” from about 1930 onwards where the land was divided into separate land use zones, ostensibly to “curb soil erosion, create viable agricultural communities and conserve the environment. This was achieved through a complete overhaul of agricultural and livestock-rearing practices in the homelands” (Kariuki and Olivier, 2011), and it resulted in many communities being forced to move to residential zones, in the process losing residential, arable and grazing land which they had used for generations. Betterment “also led to cultural erosion within affected communities as people were dispersed from their ancestral lands through increased outward migration of the rural population. However, land loss concurrently led to increased population density in the former homelands. The total population density for South Africa almost doubled between 1970 and 1995, rising from almost 19 to 34 people per square km. Betterment schemes dismantled livelihood systems and aggravated ecological destruction as a result of increasing population densities in the former homelands. Far from being a social upliftment project, betterment planning was indeed a political project aimed at advancing racial segregation whilst masquerading as a pseudo-technical social to the crisis facing Africans, and as an economic project aimed at emancipating the residents of homelands. Thus, the victims of betterment suffered incalculable social, economic and cultural losses which were never adequately compensated for.
A few communities who were dispossessed by the implementation of “Betterment” planning policies however managed to lodge claims, which were later investigated and accepted by the CRLR. By this time, there had been case law that provided assistance to the CRLR in the interpretation of the Restitution Act, particularly the qualification criteria. The Land Claims Court found that dispossessions that took place as a result of the implementation of betterment planning policies and legislation met the requirements for restitution31, as these dispossessions were racially motivated and geared towards promoting racial segregation under apartheid rule.
The affected communities that had been left out have referred the matter to court as part of a process to claim damages from the State, and it is estimated that approximately 800 communities in the Eastern Cape Province alone are affected by this unlawful conduct of the CRLR. Moreover, the requirement that the substantial numbers of claimants who were dispossessed of land after 1913 under racially discriminatory laws and processes must receive restitution in the form of land or other appropriate and acceptable remedies has also not been met. This has resulted in extensive exclusion from the land reform programme.
2 Current implementation challenges
In addition to the non-participation of various categories of persons and communities from the restitution programme, a range of challenges undermine the successful implementation and completion of the restitution programme. The challenges relate to mounting evidence that the restitution process itself often leads to major disputes or conflicts which cannot be resolved within the framework of the Restitution of Land Rights Act. Other questions include whether land restitution can be achieved while maintaining public confidence in the land market, and whether there is a satisfactory frameworks for addressing claims and demands which fall outside the Restitution of Land Rights Act. Some of the challenges are operational in nature, and these include failure to determine just and equitable redress at the settlement of the claim, and to prevent over-compensation.
While the Restitution Act provides for the exclusion of claims by people who received just and equitable compensation at the time of dispossession, no provision is made to determine when proceeds for restitution amount to just and equitable compensation, particularly where claims are partly settled. This approach could potentially lead to a situation where the available resources can be utilised to settle one or a few claims, or to the over-compensation of some of the claimants by the State.
The White Paper noted that it would be “impossible to prescribe fixed rules for the determination of just and equitable compensation to claimants”, and hence provided for a case-by-case basis to determine appropriate compensation. Experience suggests that negotiations on whether there are possibilities of over-compensation take place only when either the current owners of claimed land or the State raises the issue to justify an argument that no more land or further compensation should be awarded to a claimant.
Furthermore, The Green Paper on Land Reform (2011) raises concerns over the price of land being acquired for restitution as being too high and resulting increased the State’s fiscal burden. It is thus necessary to consider alternative measures of land acquisition and the valuation of price of land, in keeping with the policy proposal that are being developed to align compensation with key constitutional principles.
2.2 Relativity of Rights (Rights lost vis a vis rights restored)
The Restitution Act allows claims for dispossessions of registered and unregistered rights in land. Unregistered rights include indigenous ownership, labour tenancy interests, interest of a beneficiary in a trust arrangement, a customary law interest, and beneficial occupation for an undisturbed period of ten years. The settlement of these claims, where claimants have opted for restoration of the land rights they were dispossessed of, have been done through awards that give full ownership to the claimant, even where the claimant lost tenancy rights rights (other than where those dispossessed were not permitted by law to acquire ownership). For example, a claim by a former tenant dispossessed of tenancy rights is settled by an award of ownership of the land, if the claimant has opted for restoration. There is therefore no streamlining of rights between what was lost and what is eventually restored.
In practice, restitution takes the form of restoration (defined to mean the return of a right in land or a portion of land dispossessed after 19 June 1913 as a result of past racially discriminatory laws or practices)32; the provision of alternative state owned land; or the payment of financial compensation. The preceding paragraph has set out challenges relating to rights lost against rights restored.
The White Paper stated that “The goal of the restitution policy is to restore land and provide other restitutionary remedies to people dispossessed by racially discriminatory legislation and price, in such a way as to provide support to the vital process of reconciliation, reconstruction and development.” It also stated that “the constitutional right to claim restitution does not mean that each and every successful claimant will receive a piece of land, a house and/or an amount in compensation.” The White Paper referred to an overriding principle of fairness and equity noting that the Constitution guarantees a successful claimant to “the right to participate in formulating a restitution package to give recognition to such claims”. The following are remedies or forms of restitution set out in the White Paper:
“The restoration of the land from which claimants were dispossessed;
Provision of alternative land;
Payment of compensation;
Alternative relief including a package containing a combination of the above, sharing of the land, or special budgetary assistance such as services and infrastructure development where claimants presently live; or
Priority access to State resources in the allocation and the development of housing and land in the appropriate development programme.”
Restoration of land, provision of alternative land and payment of compensation has been the three forms of restitution that have been provided. In a few instances, a combination of the three would be provided. Other remedies as inferred in the statement that “the constitutional right to claim restitution does not mean that each and every successful claimant will receive a piece of land, a house and/or an amount in compensation” have not been provided for in the implementation of the programme. Moreover, other forms of redress have to be explored in order to address different needs of claimants, such as “shares/investments opportunities” (Cane growers Association, 2013).
3 Communal Property Institutions as supporting system to the restitution model
The Restitution Programme has tended to provide groups of people whose claims succeed with common property rights, through Communal Property Institutions largely to the exclusion of directly providing for individual and/or family land rights. The determination of members that constitute the claimants has been done through a process of verification that determines the households that were dispossessed of rights in land. Those that were not dispossessed, even if they are now part of the community that lost rights in land, were not included from the verification processes and by extension from benefiting from restitution. This causes conflict within communities, including creating the so-called communities within communities, and it is argued that this has a negative impact on investment in the agricultural sector and production. (Agri SA, 2013). Thus, the Communal Property Institutions have generated numerous land tenure insecurities and conflicts, and this has undermined the success of the Restitution Programme.