Land Restitution in South Africa since 1994

11

Land restitution is one of the key issues since South Africa achieved democracy in 1994 and as such an overview of what has been achieved since the promulgation of the Restitution of Land Right Act 22 is significant.

The legal basis for land restitution is provided by the 1993 Interim Constitution, section 25(7) of the 1996 Constitution and the Restitution of Land Rights Act. The South African Constitution of 1993/1996 gave people and communities who had been dispossessed of land after 19 June 1913 as a result of racially discriminatory laws or practices the right to restitution of that property or to fair compensation. The Restitution of Land Rights Act 22 was promulgated in 1994 in terms of the Interim Constitution of the Republic of South Africa Act 200 of 1993 for that purpose. The Act also established a Commission on Restitution of Land Rights in 1995 under a Chief Land Claims Commissioner and seven Regional Land Claims Commissioners representing the nine provinces with the mandate to assist claimants in submitting their land claim, receive and acknowledge all claims lodged and advise claimants on the progress of their land claim.

Owing to the slow process of handling claims the Restitution Act was amended in 1997 to bring it in line with the 1996 Constitution shifting the approach from a judicial one to an administrative one in 1999. Rather than having to go through the Commission on Restitution of Land Rights claimants were allowed direct access to the Land Claims Court and the Minister of Land Affairs was given greater powers to settle claims through negotiation. The table below shows that the processing and finalisation of claimants improved by the end of year 2000.

The Land Claims Commission and the Land Claims Court were established in 1995 under the provision of Section 4 of the Restitution Act and Section 123 of the Interim Constitution. While the objective of the Land Claim Commission is aimed at dealing with the administration of land claims and compensation of the present owners and restitution to the claimants, the Land Claims Court specialises in dealing with disputes that are not solved by the land claims commission and arise out of laws that underpin South Africa's land reform initiative. Thus, the Land Claim Commission screens all land claims, identifies those that qualify in terms of the Constitution and the Restitution Act, and attempts to solve these claims by administrative or mediation procedures.

These new legislative frameworks were created in order to govern the process of land reform/restitution through the lodging of land claims, expropriation, redistribution and restitution. The restitution programme was established with the purpose of providing equitable redress to victims of racially motivated land dispossession, in line with the provisions of the Restitution of Land Rights Act. Its main objective is to make provision for the restitution of land rights to people who were dispossessed in terms of or to promote the objectives of discriminatory race-based legislation, and to resolve restitution claims within the target period, through negotiated settlements that restore land rights or award alternative forms of equitable redress to claimants such as compensation of claimants at below market prices.The first target period since the restitution claims were lodged by 31 December 1998 deadline was set to be 2005 but this deadline had been extended to the year 2011citing lack of funds amongst other obstacles as the main cause. Government mid-term review report shows that by 2011 South Africa transferred over 6.8-million hectares of land to people dispossessed under apartheid, which represents 27% of the government's target of transferring 24.5-million hectares by 2014.

The White Paper on South African Land Policy of 1997 favoured a market-based approach, in which the concept of ‘willing buyer, willing seller’which depended on voluntary market transactions, had become the cornerstone of policy. Land dispossession under White minority rule was achieved through racially discriminative legislation and violence.  It was imperative for the new government to strike a balance between nation building and addressing the land issue. 

There are specific criteria for which the claimant/s must satisfy in order to lodge the claim.

Qualifications to be a claimant are outlined as follows:

  •  Must be a person dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices.
  • Is a deceased estate disposed of a right in land after 19 June 1913 as a result of past racially discriminatory laws and practices.
  • Must be a direct descendant of a person referred to in paragraph (a) who died before lodging a claim, and has no ascendant.
  • The individual, community or part of community dispossessed of a right in land after 19 June 1913, as a result of past discriminatory laws and practices.

The claim for such restitution was lodged not later than 31 December 1998. According to records in the Commission, the progress report in 2012 shows that since 1995 a total of 79 696 land claims were lodged by the end of year 2011, and a total of 76 506 restitution claims were settled by then. Department of Rural Development and Land Reform shows that the number of restitution claims that were settled increase to 76 023 by the the end of 2011 (see a table below). The deadline for finalizing land claims has been shifted four times from 2002. Furthermore 2.8 million hectares had been acquired by the state for restitution beneficiaries from private individuals, of which a total of 979 921ha had been transferred into the name of claimant communities. However, about 140 000ha of 979 921ha had been transferred into the name of the state due to community disputes and other challenges. Grants amounting R4, 233, 451, 032.93 had been paid out by the end of 2011.

In January 2013, the N’wandlamhlarhi Community Property Association was handed over 13 184 hectares of land, after a six-year land claim battle between the owners of Mala Mala Game Lodge in Mpumalanga and the Department of Rural Development and Land Reform acting on their behalf has been settled for a record amount a little over a billion rand, the biggest land claim in the history of South Africa.

The government intended to redistribute 30% of land to Black people by 2014. However, for the following reasons, the Land Claims Commission could not finalise all land claims.  The process of land reform has been slow due to the inflating of prices by White farmers and land owners on identified land on the one hand, and the falling into disuse of expropriated land given to Black farmers on the other. Additionally, the process has been show particularly during the first years due to resources constraints which contributed to the ineffectiveness of the courts to deal with the claims. Table below shows how the land claim has progressed over the years since 1996 to 2011.

 

Numbers, as of date

Total of claims lodged

Urban %

Rural %

Claims settled per year

Total of claims settled

Claims dismissed per year

Backlog claims finalised per year

Total of outstanding claims

Mar-96

7,095

70

30

 

 

 

 

7,095

Mar-97

14,298

81

19

1

1

43

n/a

14,254

Mar-98

24,516

84

16

6

7

57

n/a

24,452

Mar-99

63,455

≥80

≤20

32

41

42

n/a

63,372

Apr-00

63,455

n/a

n/a

3,875

3,916

n/a

n/a

59,539

Mar-01

68,878

72

28

8,178

12,094

293

n/a

56,491

Mar-02

68,878

72

28

17,783

29,877

48

n/a

38,953

Mar-03

79,694

n/a

n/a

6,609

36,489

n/a

n/a

43,205

Mar-04

79,696

n/a

n/a

11,432

48,825

n/a

n/a

30,871

Mar-05

79,696

n/a

n/a

10,634

59,345

n/a

n/a

20,351

Mar-06

79,696

n/a

n/a

10,842

71,645

n/a

n/a

8,051

Mar-07

79,696

82

18

2,772

74,417

n/a

n/a

5,279

Mar-08

79,696

82

18

330

74,747

n/a

n/a

4,949

Mar-09

79,696

82

18

545

75,400

108

n/a

4,296

Mar-10

79,696

82

18

131

75,844

98

n/a

3,852

Mar-11

79,696

82

18

714

76,023

257

1,318

3,673

 

Sources: Commission on Restitution of Land Rights 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007a, 2008, 2009, 2010, 2011 and Department of Rural Development and Land Reform 2011b.

A new approach to land reform has been proposed with an admission from President Zuma stating the willing buyer, willing seller system "not working" in his February State of the Nation address. Although the president's proposed changes to the strategy, funding, and inclusivity of land reform in South Africa outlining five point plan, government is yet to announce the exact mode of action.

Below is the key president’s five point plan proposal:

Establishing a district land reform committee where all stakeholders, both commercial farmers and those seeking land redress, work together to identify land readily available for reform;

The state buying the land at 50% of its market value, or at a "fair productive value";

  • Farmers gaining black economic empowerment status if they agree to the sale of their land at the proposed productive value;
  • A stepped-up programme of financing involving the treasury, the Land Bank, and established white farmers; and
  • Increasing investment in agricultural research and development.

Other challenges that affected the settlement of claims as noted by the Land Commission were:

  • historical claims on privately owned land and claims for financial compensation had been prioritised as these assisted in spending the budget 
  • conflict amongst beneficiaries 
  • claims on unsurveyed state land 
  • claims on communal land (occupied) 
  • claims on invaded state land 
  • long term leases on state land
  • state owned entities and municipalities demanding market related prices for land.

References:
• ANC, Policy Documents, Policy on the Restitution of Land Rights, Available at www.anc.org.za [Accessed 21 January 2014]Bauer, N., (2012). Experts: Zuma's land reform plans need ploughing, from the Mail&Guardians, 24 October [online]. Available at www.mg.co.za [Accessed 21 January 2014]
• 
Department of Land Affairs. (1997b). White Paper on South African Land Policy.Available at www.ruraldevelopment.gov.za  [Accessed 21 January 2014]
• 
Maphoto, T. A,(2012). Land claims in South Africa: progress report by Minister,from Parliamentary Monitoring Group, 07 February 2012 [online], Available at www.pmg.org.za[Accessed 15 January 2014]
• 
Seger, S., (2012). Slow progress in land reform, from the Daily News, 08 February [online]. Available at www.iol.co.za [Accessed 21 January 2014]
• 
Simon, N., (2013). President Zuma To Hand Over Mala Mala Game Reserve In R1 Billion Land Claim. [online] Available at www.sabreakingnews.co.za [Accessed 21 January 2014]
• 
South African History Online. Timeline of Land Dispossession and Restitution in South Africa 1995-2013.[online] Available at www.sahistory.org.za [Accessed 21 November 2013]
• 
South African History Online. Rural change and future South Africa [online] Available at www.sahistory.org.za [Accessed 21 November 2013]
• 
Zenker, O., (2012). The Indicatorisation of South African Land Restitution. From BAB Working Paper No 1 Presented at the Basler Afrika Bibliographien, Basel. 29 May. [online] Available at www.baslerafrika.ch [Accessed 21 January 2014

Last updated : 04-May-2015

This article was produced by South African History Online on 04-Apr-2014