DRAFT LAND RESTITUTION POLICY
CRLR Commission on Restitution of Land Rights 1
CPA Communal Property Association 1
CRLR Commission on Restitution of Land Rights
CPA Communal Property Association
CPA Act Communal Property Associations Act 22 of 1998
CPIs Communal Property Institution
DRDLR Department of Rural Development and Land Reform
LCC Land Claims Court
LRMF Land Rights Management Facility
LRMB Land Rights Management Board
LRC Legal Resources Centre
LRMC Land Rights Management Committees
A. CONTEXT AND BACKGROUND TO THE POLICY
Reversing the legacy of the 1913 Natives Land Act
The root of the land question today arises out of the pervasive process of land alienation that dispossessed the majority of South Africans of their land over the past few centuries. 2013 is the centenary of the 1913 Natives Land Act, which was the first of a number of discriminatory laws that reinforced the massive dispossession of land from black South Africans. The formulation of this policy forms part of Government’s undertaking to review all land reform policies as enunciated in the 2011 Green Paper on Land Reform, with a view to address issues relating to historical exclusion, equitable access to land, and participation in the optimal utilisation of land; as well as to address challenges relating to access to food at both household and national level to bring about household food security and national food self-sufficiency.
In 1994 the democratic government had identified the need for land and agrarian reform as part of the national reconciliation project. Land Restitution being one of the three elements of land reform (at the time) was aimed at providing redress to persons and communities dispossessed of their property rights by the colonial and apartheid governments. The Constitution of the Republic of South Africa, 1993 (“Interim Constitution”) provided a right to restitution to any person or community dispossessed of rights in land under any law which would have been inconsistent with the right to equality, had it been in operation at the time of the dispossession, to claim restitution of such rights. It made provision for a qualification criterion for restitution claims, the establishment of a Commission on Restitution of Land Rights (“CRLR”), and the powers of courts in restitution matters.
The context of all rural development and land reform policies is the 1996 Constitution of post-apartheid South Africa. In this instance, the most pertinent sections of the Constitution are 25, 26, 27 and 36.
Section 25 (5) enjoins the stat to “take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis”. In a context wherein the majority of citizens still do not have equitable access to land, this constitutional promise still remains an imperative
Furthermore, Section 25 (5) is the only clause that recognizes this exclusive right for “citizens” and it’s accordingly weighted higher than that of non-citizens or foreign controlled juristic persons; hence, although South Africa belongs to all who live in it and afforded Basic Rights, when it comes to land it is citizens that are prioritized.
Section 25 (4) defines public interest and property, and states that “for purposes of this (a) the public interest includes the nations commitment to land reform and to reforms to bring about equitable access to all South Africa`s natural resources, and (b) property is not limited to land”. Implied in this clause is that public interests take precedence and that limitations and exemptions to such limitations of access, will be in furtherance of national interests.
Section 25 (6) upholds that “A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or comparable redress”.
Section 25 (7) of the constitution states that “a person or community dispossessed of property, after 19 June 1913, is entitled to the extent provided for in an Act of Parliament, to restitution or equitable redress.”
Section 25(8) of the constitution states that ‘No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36 (1)”. Consequently it compels the state to spare no effort in addressing land reforms and racial disparity and inequity in land ownership by South Africans.
Section 36 addresses the limitations of rights. It provides as follows:
The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including:
the nature of the right;
the importance of the purpose of the limitation;
the nature and extent of the limitation;
the relation between the limitation and its purpose; and
less destructive means to achieve the purpose.
Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
The Restitution of Land Rights Act, 1994
The legislation that gives effect to the right to restitution contained in section 25 (3) of the Constitution is the Restitution of Land Rights Act 22 of 1994 (“the Restitution Act”). The Restitution Act provides that a person, direct descendant of a person, estate, or community is entitled to restitution or equitable redress when it was dispossessed of a right in land, after 19 June 1913, as a result of past racially discriminatory laws or practices, and where a claim for such restitution was lodged no later than 31 December 1998. The Restitution Act also provides for the establishment of the CRLR1 whose functions are to solicit2 and investigate3 claims for land restitution and to prepare them for settlement by the Minister4, or adjudication by the Land Claims Court5 (LCC). The LCC is empowered to make orders on the validity of land claims, and the form of restitution or redress that should be provided to claimants who meet the requirements for restitution.
During 1995, the CRLR, together with partners in and outside Government, advertised the restitution process and invited those eligible to submit claims to do so by the end of December 1998. The initial cut-off date for lodgment of claims of 1995 was then extended to 19986, and this was accompanied by a stake-your-claim campaign where government and civil society publicized the restitution programme. However, claims could only be lodged for dispossessions that took place after 19 June 19137, when the Natives Land Act, 1913 was promulgated. This is when territorial segregation was formally adopted as the leading principle of post-Union of South Africa land policy.
In terms of the Restitution Act, restitution can take various forms, including the restoration of rights in land, provision of alternative State owned land, development of grant funding to develop the land, or the payment of financial compensation and the combination of these forms8. In practice, the land restitution programme is demand-led, as demand is constituted by the claims made by specific individuals and/or groups (or communities) as lodged with the CRLR, with regard to specific pieces of land which they can demonstrate they were dispossessed of.
The White Paper on South African Land Policy, 19979 which is the guides’ restitution policy, was only finalised and published three years after the promulgation of the Restitution Act. Despite acknowledging that local and international experience showed that the finalisation of claims and implementation of awards was a complex and lengthy process, the government had set itself three targets, including a three year period for the lodgement of claims from 1 May 1995; a five year period for the CRLR and LCC to finalise claims; and a ten year period for the implementation of all court orders, and awards made by the Minister. Progress was to “be evaluated periodically, to review time frames and develop measures to address any delays which may occur.”10
Approximately 80, 000 land claims were lodged by the cut-off date on 31 December 1998. As at 31 March 2013, 77 334 claims have been settled of which 59 758 were finalised. The settlement of claims has resulted in the award of 3 million hectares of land, at a cost of R10.8 billion, to qualifying claimants, of which 1, 444 million have been transferred. The restitution programme has benefitted 1.8 million individuals who are members of 369 451 households. 136, 968 households are female headed households and 672 are headed by persons with disability. 71 292 out of the 77 334 claims that have been settled were financial compensation claims. A total of R6 billion has been paid to beneficiaries. Had these beneficiaries chose land restoration government would have acquired a further 1.9 million hectares
The Principles and strategic thrust of the Green Paper on Land Reform
In 2011, the Green Paper on Land Reform provided for a single land tenure framework, integrating the current multiple forms of land ownership - communal, state, public and private - into “a single 4-tier tenure system”:
(a) “State and public land: Leasehold;
(b) Privately owned land: Freehold, with limited extent;
(c) Land owned by Foreigners: Combination of free hold with limited extent and leasehold; and,
(d) Communally owned land: Communal Tenure, with institutionalised use rights”.
The principles and the strategic thrust underlying land reform, as set out in the Green Paper on Land Reform, are as follows:
. deracialising the rural economy;
. democratizing the allocation and use of land across gender, race and class; and
. sustained production discipline for food security (and food sovereignty).
The strategic thrust, also set out in the Green Paper, is that land reform should be pursued with minimal disruption to food production and based in the agrarian transformation strategy. Agrarian transformation refers to the ‘rapid and fundamental change in the relations (systems and patterns of ownership and control) of land, livestock, cropping and community.’ The first part of the strategy deals with building the person, the household and the community. This focuses primarily on dealing with basic human needs and providing the required social infrastructure for improved access to services. This part of the strategy also includes community building, organisational and skills development initiatives.
The issue of land forms the basis of development in many rural areas as well as commercial farmland in South Africa and therefore an essential part of the strategy includes the implementation of an improved land tenure system. The other two components of the strategy dealing with livestock and cropping are directly linked to the growth of the rural economy and focuses on the provision of the required economic infrastructure as well as development of entrepreneurs and improved market access and credit facilities. In addition these two components also deal with the recapitalisation of all farms acquired through land reform so as to ensure improved food security for South Africa.
Key historical considerations
The history of South Africa is characterised by brutal conquest and systematic dispossession of the land of the indigenous people by colonial and apartheid governments. Large scale dispossessions of land, livestock and livelihoods of the indigenous people were carried out by the colonialists through “wars, conquest, treaty and treachery” (White Paper on South African Land Policy, 1997). Wars that resulted in such massive dispossessions took place between the 1650s (after the arrival and settlement of Europeans in South Africa11 and in the early 1900s, turning the indigenous people into “vassals and slaves” (Green Paper on Land Reform, 2011). Successive colonial governments of the four colonies, the Cape of Good Hope12, Natal13, Orange Free State14, and Transvaal15 formalized the spoils of war by the passage of legislation that paved the way for further land dispossessions.
After the Second Anglo-Boer War (1899 to 1902), between the British and the two Afrikaner Republics of Transvaal and Orange Free State, and the conclusion of the Treaty of Vereeniging, the Union of South Africa was established by the passing of the Union of South Africa Act 1909 by the British Government. This Act provided that all laws that applied to the four colonies that established the Union of South Africa16 would not only apply to that colony, but would also apply to the whole Union17.
Since the Treaty of Vereeniging had provided that “the question of granting the Franchise to Natives will not be decided until after the introduction of Self-Government,18” it was no surprise that one of the first significant pieces of legislation tabled before the Union of South Africa’s Parliament was the Natives Land Bill in 1912.
The Native Land Act 27 of 1913 was enacted and came into operation on 19 June 1913. It “gave legislative effect to a process of land seizure by the white settlers that had been going on since Jan van Riebeek set foot on the shores of the Cape of Good Hope in 1652.”19 It reserved approximately 7% of the land in South Africa for the Black majority population, in what later became known as the reserves, Bantustans or homelands20. Blacks were not allowed to, lawfully, acquire, own or rent land outside the reserved areas resulting in their becoming a source of unskilled labour for mines, farms and in urban areas, and suffered as a result of underdevelopment and poverty. The extent of the land reserved for Black occupation was extended by the Native Trust and Land Act No 18 of 1936 to 1306%.
A plethora of legislation that was promulgated after the Natives Land Act to dispossess the Black population destroyed indigenous communities and their culture, reducing them to “pariahs in the land of their birth.”21 Legislation such as the Native (Urban Areas) Act of 1923 divided South Africa into 'prescribed' (urban) and 'non-prescribed' (rural) areas, and strictly controlled the movement of Black males between the two22. The Group Areas Act of 1956 “forced physical separation between races by creating different residential areas for different races”23. The Promotion of Black Self-Government Act of 1958 which came into operation on 19 June 1959 provided for the “transformation of reserves into "fully-fledged independent Bantustans", dividing Blacks into eight 'ethnically' discrete groups”.24;The Black Homeland Citizenship Act of 1971 allowed the apartheid government to finally realize the intention set out in the Natives Land Act, which was to have separate reserves for Black by establishing the “homelands, and enforced spatial apartheid in urban areas. Thus, over 80% of the population, which was mainly Black, was left with only 13 % of the land, rendering them virtually landless.
The National Diagnostic Report of the National Planning Commission (2011) described the “homelands” as “a patchwork of mini-states created in the country’s most barren lands, with boarders generally drawn to leave out any viable economic areas.” The effect of racial segregation legislation was to “de-agrarianise black people and create a rural periphery and labour reserve, by forcing people off the land and into urban, farm and mine labour markets (Phillips, 2011, cited by NPC, 2011). Today, only 4 percent of the rural poorest derive their income from agriculture instead of over 20 percent in other developing countries, with most relying on remittances. The “migrant labour system, and system of labour reserves in homelands destroyed conventional family life, causing complex social problems that persist today” including rural poverty, landlessness and the resultant underdevelopment of the “homelands” (NPC, 2011).
B THE LAND RESTITUTION POLICY
The Vision and objectives of the Restitution Policy
The vision of the land restitution policy is to create an inclusive and efficiently managed restitution programme that will serve as a catalyst to sustainable development and beneficiation by its beneficiaries thereby contributing to the achievement of the vision of the country as set out in the National Development Plan, Vision 2030. In line with the Green Paper on land reform the restitution programme must be informed by the 3 principles of land reform: de-racialization of the rural economy; democratic and equitable allocation and use of land across race, gender and class; and strict production discipline.
The specific objectives of the policy are to:
rationalise and streamline the policy framework of the restitution programme;
expand the scope of the restitution programme by making it more inclusive;
promote the restitution programme within a broader framework of restoration and equity across the board
to align the restitution programme with the various land reform programmes to achieve the broader development objectives of Government and promote coherent and integrated programme implementation.
The changing national and rural development context
The Land Restitution Policy are also guided by the vision and broad goals of the country set out in the National Development Plan (2012) and the broader changing development context, as defined in the Comprehensive Rural Development Programme (CRDP, 2010) and other strategies for growth which are intended to promote national reconciliation, and social cohesion. The National Development Plan: Vision 2030 sets out a plan to eradicate poverty and lessen inequality by 2030 in the context of an “increase in economic inequality globally” (NDP: 2012) increase inequalities, poverty and unemployment in South Africa, where a third of the populations are living on less than R10 per day. The broad goals of the plan are to build a united country, resolve historical injustices, uplift the quality of life of all South Africans, accelerate social and economic change, eradicate poverty and unemployment and reduce inequality and expand the economy and distribute its benefits equitably. To address rural poverty, the plan states that “rural communities require greater social economic and political opportunities”, and Land Reform is one of the initiatives identified to create opportunities for economic transformation.
Land restitution shall therefore be implemented in a manner that enhances the generation of sustainable livelihoods, employment and income, through the support provided by the Comprehensive Rural Development Programme. The CRDP is a proactive participatory community-based planning approach to rural development aimed at creating vibrant, equitable and sustainable rural communities; contributing to the redistribution of 30% of the country’s agricultural land; improving food security; creation of business opportunities; de-congesting and rehabilitation of over-crowded former homeland areas; and expanding opportunities for women, youth, people with disabilities and older persons. The CRDP focuses on the strategy of agrarian transformation, which defined as a rapid fundamental change in the relations (systems and patterns of ownership and control) of land, livestock, cropping and community with the goal of the strategy is social cohesion and development. The settlement of restitution claims therefore should lead to a change in the system and relations of ownership and control, such that where ownership of land cannot be restored, the control of the land must be provided for.
The Green Paper on Land Reform (2011) States that “social cohesion, just like development, is a direct function of land access and ownership - the basic tenet of, or requirement for, the exercise of Ubuntu in traditional African society. It is not just about allegiance to national symbols, e.g. the National Anthem and Flag, important as they are in the modern State context. It is part of a people’s expression of themselves, for themselves and of themselves. It is a way of life, integrally linked to land. If you denied African people (a definition which includes the San and the Khoi) access to, and, or, ownership of, land, as has been the case under both colonialism and Apartheid in South Africa, you have effectively destroyed the very foundation of their existence.”
The State shall revise the policy framework and approach to implementing the restitution programme within the context of the policy reforms to revamp the land reform programme as set out in the Green Paper on Land Reform (2011). Three core restitution policy reforms are to be implemented: to re-open the lodgement of restitution claims; to improve the planning and administrative processes of the restitution programme; and to improve support provided to restitution beneficiaries. These policy reforms are elaborated upon below, and in the implementation framework set out below, while the reforms relating to the exceptions to the1913 Natives Land Act are set out in a separate policy document.
Re-open the lodgement of restitution claims
3.1.1 Exceptional recognition of deserving persons
The State shall re-open the lodgement of claims to enable potential claimants to lodge claims. Exceptional recognition of those who could not participate from the land restitution programme is of paramount importance. The re-opening of land claims will provide an opportunity to persons and communities that did not lodge claims by the cut-off date of 31 December 1998 to also benefit from the restitution programme.
The re-opening of lodgement of claims shall be supported by a communication campaign that shall ensure that citizens are aware of their right to restitution and the requirements for lodgement of claims. As set out in section E below, Government shall ensure that sufficient infrastructure is in place to solicit the claims and that they are resolved within a reasonable time, taking into account the resources that are available to it.
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