DRAFT LAND RESTITUTION POLICY
(POST 1913)
August 2013
Page 1 of 35 / Initials:Land Restitution Policy (post 1913 dispossessions) / Minister
Nkwinti, GE (MP)
ACCRONYMS……………………………………………… ………………………….1
A. CONTEXT AND BACKGROUND TO THE POLICY…….………………… ...2
1. Reversing the Legacy of the 1913 Natives Land Act……………………………4
2. The Constitution……………………………………………………………………..4
3. The Restitution of Land Rights Act, 1994…………………………………………6
4. The principles and strategic thrust of the Green Paper on Land Reform …..7
5. Key Historical considerations………………………………………………… 8
B THE LAND RESTITUTION POLICY 8
1. The Vision and objectives of the Restitution Policy 8
2. The changing national and rural development context 9
3. Policy Reforms 10
3.1Re-open the lodgement of restitution claims 10
3.1.1Exceptional recognition of deserving persons 10
3.1.2Period to submit claims 10
3.2 Criminalisation of the lodgement of a fraudulent claim 11
3.3 Criteria for qualification to claim 11
C. THE RATIONALE FOR THE POLICY 12
1 An Exclusive Restitution Programme 13
1.1 Non-participation of deserving persons and communities from the land restitution programme 13
1.2 Non-participationof deserving persons and communities dispossessed of rights in land before 19 June 1913 14
1.3 Exclusion of deserving persons and communities dispossessed by “Betterment” Planning Schemes 16
2 Current implementation challenges 17
2.1 Determining just and equitable redress at the settlement of the claim 18
2.2 Relativity of Rights (Rights lost vis a vis rights restored) 18
2.3 Forms of Restitution 18
3 Communal Property Institutions as supporting system to the restitution model 20
4 Ineffective use of restituted land and inadequate State support 20
5 Inefficiencies of the Legislation 20
D. IMPROVED IMPLEMENTATION 21
1. Just and Equitable Compensation and streamlining the rights restored 21
2. Remedies for successful claims 22
2.1 Restoration of ownership rights 22
2.2 Co-Management 23
2.3 Financial Compensation 23
2.4 Priority access to State resources 23
2.5 Exceptional Recognition 23
2.6 Combination of Remedies 23
2.7 Obligations of the claimants on managing the restored land 24
3 Improving the planning and administration of the restitution process 24
3.1 Prioritisation of Claims 24
3.2 Prosecution for lodgment of fraudulent claims 24
3.3 Removing the restrictions on developing gazetted land 25
4. Addressing challenges of Communal Property Institutions 25
5. Improved beneficiary support programme 27
E. INSTITUTIONAL REFORMS AND CAPACITY REQUIREMENTS 27
1 Commission on Restitution of Land Rights 28
2 Land Claims Court 28
3 Relationship with other Institutions that support Land Reform 28
F. AMENDMENTS TO LEGISLATION………………………… …………… …29
ANNEXURE A: EXPERIENCE ELSEWHERE AND LESSONS FOR SOUTH AFRICA 30
Page ii of 31 / Initials:Land Restitution Policy (post 1913 dispossessions) / Minister
Nkwinti, GE (MP)
ACCRONYMS
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
1. 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.
2. The Constitution
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:
(1) 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:
a. the nature of the right;
b. the importance of the purpose of the limitation;
c. the nature and extent of the limitation;
d. the relation between the limitation and its purpose; and
e. less destructive means to achieve the purpose.
(2) 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.
3. 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 CRLR[1] whose functions are to solicit[2] and investigate[3] claims for land restitution and to prepare them for settlement by the Minister[4], or adjudication by the Land Claims Court[5] (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 1998[6], 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 1913[7], 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 forms[8]. 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, 1997[9] 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, 77334 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 hectares4. 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.
5. 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 Africa[11] 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 Hope[12], Natal[13], Orange Free State[14], and Transvaal[15] formalized the spoils of war by the passage of legislation that paved the way for further land dispossessions.