Land Restitution: An Unacceptable Glacial Drift

Land reform
Tuesday, 26 January, 2010 - 11:43

The restitution process in South Africa was extremely slow between 1994 and 1998. During this period, only 27 claims settled out of the 40 000 submitted. The delay in settling claims might have been caused by lack of financial and human resources within government. Meanwhile, it is a ‘horrible injustice’ to make poor people to wait for decades to get back their land while they were dispossessed overnight and in primitively brutal manner’

The Restitution Programme - one of the three pillars of the National Land Reform Programme - was started by a skeletal working group in 1993. Later on, the Restitution of Land Rights Act 22 of 1994 together with the Constitution formed the basis of the Restitution Programme. The Restitution of Land Rights Act was one of the first pieces of legislation to be passed by the new democratic government, probably because the restitution process was politically expedient and widely perceived as legitimate (Du Plessis, 2003).

The Purpose of Restitution Policy

The White Paper of 1997 on South African Land Policy states that: “The goal of the restitution policy is [1] to restore land, [2] provide other redistributing remedies to people dispossessed by racially discriminatory legislation, in such a way as to provide support to the vital process of [3] reconciliation [4], reconstruction, and [5] development (White Paper on South African Land Reform Policy, 1997).

Restitution forms part of Department of Land Affairs (DLA) land reform, which is three legged. Firstly, it deals with redistribution, which aims to provide those who are disadvantaged and poor with access to land for residential and productive purposes. Secondly, it focuses on land restitution, particularly in cases of forced removals, which took place after 1913. Thirdly, it addresses land tenure reform, which deals with the improvement of tenure security for all South Africans and seeks to give better land security to rural people, particularly women.

A Slow Start

The Restitution process between 1994 and 1998 was extremely slow. By December 1998, the number of claims submitted stood at 40 000 and only 27 claims had been settled; by mid 1998 only six claims had been settled (Didiza, 2006). By the end of November 2001, less than two percent of the land had changed hands from white to black through the land reform programme (Du Plessis, 2003). The process started to pick up speed and by November 2001, 68 878 claims had been received and 12 863 claims had been settled. The majority of finalised claims were from the Western Cape and KwaZulu-Natal.

An Increase in Claims

Figures provided in June 2007 by the DLA indicated 36 488 claims covering 590 112 hectares were settled, with 83 661 beneficiary households and 444 002 beneficiaries. At this stage, the number of claims lodged had increased to 72 975. The increase in the number of claims lodged after the 31 December deadline was the result of investigation into and validation of each of the claims. It was found that some claim forms represented more than one claim and had to be split into several claims. Clearly, claimants were not properly informed about the process, hence the duplication by claimants (Hall, 2007).

The rapid increase in the number of claims settled could also be as a result of three factors. Firstly, the completion of the institutional and policy development process. Secondly, the administrative changes made before and after the 1998 Restitution Review. And thirdly, the emphasis on settling smaller, simpler urban claims primarily through financial compensation. The majority of rural residents were not prioritised, hence high numbers of rural claims have still not been settled.

Court-Based Procedure

There were good reasons, or so it seemed, for adopting and developing a legalistic, court-based procedure for Restitution. The Department of Land Affairs can be commended for its post-policy willingness to evaluate and change the Restitution Programme as required. However, the court-based procedure had two important negative consequences: it slowed down the claims settlement process, and it marginalised potential beneficiaries while allowing landowners to play a central role in the process. This left the majority of the poor and illiterate claimants disillusioned.

Lack of Resources

Neither the Department of Land Affairs and Land Court nor the Land Commission has had enough financial or human resources required to effectively implement the programme. The slow process of restitution might have been due to budgetary constraints. It is estimated that with an annual budget of R1.3 billion set aside for land restitution, the Restitution Programme will only be completed in 2190 (Hall 2007). In 2002, researchers at the Institute for Poverty, Land and Agrarian Studies (PLAAS) estimated that a six-fold increase in the Restitution budget was required to finalise the programme by December 2004. The PLAAS (www.plaas.org.za) researchers calculated that it would cost R28.8 billion just to settle the rural restitution claims.

Fundamental Flaw

One of the fundamental weaknesses of the land restitution policy has been the fact that it did not address the injustice or the legacy of betterment. Crucially, the White Paper argued that victims of betterment did not have valid restitution claims. This is prejudicial treatment of victims of betterment dispossession from the government’s side; deciding that the Restitution of Land Rights Act only applied to former ‘white’ South Africa is fundamentally unconstitutional. The result of this has been that land claims of District Six in the Western Cape and rural betterment claims in the former Ciskei and
Transkei were left behind.

Betterment planning was implemented in the former homelands and other so-called black areas from the 1930s onwards in an attempt to regulate these areas and control land usage. According to Andrew (2006), “Betterment has forcibly removed more people in more places with greater social consequences and provoking more resistance than any other category of forced removal in South Africa”.

Under betterment, designated areas were divided into distinct land use zones for residential, arable and grazing usage, and all people were forced to move into the residential zones. Furthermore, people were also dispossessed of arable and grazing land through betterment.

In Conclusion

As Andrew indicates, “Those who have won access to land face enormous obstacles, and the alternatives are few for those who are too ‘poor’ for land reform. They have been given no significant choice, or have already been convinced that the cards will be stacked against them in South Africa’s not-so-new agrarian economy, with African farmers only controlling less than five percent of commercial farmland” (2006).

Land restitution shall forever remain flawed if issues of betterment are not addressed. Moreover it is perhaps just about time that quicker and more practical land reform process was adopted. It is a horrible injustice to make poor people wait for decades to get back their land while they were dispossessed overnight and in a primitively brutal manner. Government needs to demonstrate a lot more commitment to this cause before the majority of people lose hope in the process. The alternative would be truly tragic.

References
  • Andrew, N. 2006. The Dilemmas of apologising for apartheid: South Africa land restitution and    the Modimolle land claim. University of Paris.
  • Commission on Restitution of Land Rights. 2003. Land Restitution in South Africa our Achievements and Challenges. Office of the Chief Land Claims Commission: Pretoria.
  • Du Plessis, J. 2003. Notes on Restitution in South Africa. Centre on Housing Rights and Evictions.
  • Didiza, A.T. 2006. Land and Agrarian reform in South Africa: 1994-2006. Ministry for Agriculture    and Land Affairs in South Africa.
  • White Paper on South African Land Reform Policy, 1997 p52, section 4.13
  • Hall, R. 2007. Rural Restitution 2: Evaluating land and agrarian reform in South Africa, Occasional Paper Series, PLAAS. UWC: Cape Town. 
- Thabile Sokupa is Project Coordinator at Afesis-corplan. This article was first published in the August-September 2009 edition of The Transformer and is republished here with permission from Afesis-corplan.
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