Amidst heightened attention to land issues in the run-up to the centenary of the Natives Land Act 27 of 1913 (the actual centenary being today, 19 June 2013), government published a bill proposing amendments to the Restitution of Land Rights Act on 23 May 2013. It provided just 30 days for public comment on its provisions.
There has been some public debate about the Bill, but it has been quite limited, in the month leading up to the centenary – a month when Tshintsha Amakhaya launched its Mayibuye iAfrika campaign with caravans of rural activists travelling around the country to collect rural people’s demands to deliver to the Union Buildings; the National Union of Metalworkers of South Africa (NUMSA) and the Food and Allied Workers’ Union (FAWU) launched a Campaign for Agrarian Transformation and Land Redistribution challenging the property clause in the Constitution and calling for the reversal of corporate control of South Africa’s agrofood system; and Khoi-San activists staged land occupations in Mamre on the West Coast, and at District Six in Cape Town, claiming aboriginal title to land already under claim by other communities, more recently dispossessed.
In the hubbub, though, something very significant is being missed. The perception that the restitution amendment bill opens up the floodgates may well be wrong. It says nothing whatsoever about addressing claims by descendants of people dispossessed prior to 1913 – although the Minister made this promise to Khoi-San communities at a meeting of about 1,000 people in Kimberley last month. Indeed, that would require a change to the Constitution.
While the Bill doesn’t do what the Minister said it would do, and under the guise of opening up the process, proposed amendments to Section 33 of the Restitution Act introduce new conditionality on the restoration of land, which would likely preclude most claimants from actually getting their land back – unless they have substantial resources of their own and can prove they can use it ‘productively’. Reopening the opportunity for those who were already eligible to submit claims but didn’t do so might well elicit many more claims – in fact, from available historical records of land dispossession, it is quite clear that the majority of eligible claimants never claimed. The restitution process could double in size, and could well take another 30 years to complete. But it could be whittled down to a matter of handing out cash settlements, often entirely unrelated to the value of the property lost, rather than actually restoring land.
The Bill’s proposals are fourfold:
- the re-opening of the claims lodgement process for a five-year period to 31 December 2018
- the introduction of ‘cost’ and ‘the ability of the claimant to use the land productively’ as criteria for restoring land
- the delegation to various officials of the Minister’s powers to purchase or expropriate land for restoration and
- changed conditions for the appointment of judges to the Land Claims Court.
We examine each proposal in turn below, commenting on their politics and possible implications.
Re-opening lodgement to 2018
The Bill proposes to re-open the lodgement period until 31 December 2018. When the Restitution Act was first passed in 1994, it allowed three years for claims to be lodged, which was extended to 31 December 1998, as a joint ‘Stake Your Claim’ campaign by government and civil society aimed at informing people about the opportunity to submit claims. Since then, nobody has been allowed to submit further claims.
The proposal to reopen the lodgement process arises, according to Minister Gugile Nkwinti, from a demand among existing claimants that others should not be left out. In fact, there has also been mobilisation among groups of eligible claimants who for various reasons did not lodge their claims before the 1998 deadline, but we know little about the numbers involved. There are, though, different categories of potential new claimants.
Overlapping and conflicting claims
The re-opening of claims raises the possibility of new claims being made on land already the subject of existing claims. Dispossession was a messy process, and unscrambling the omelette is no neat task. District-based restitution investigations and resolutions might make sense, but is government going to put the current claims (lodged prior to 1998) on hold until the new period of lodgement is over? Politically and administratively, it seems unfeasible to create a hiatus now until all claims are in, in 2018. At least the existing claimants, having waited for at least 15 years, should have a say in this process. Will the Commission engage with them concerning the Bill’s proposals?
The most significant expansion of the restitution process, if reopened, will likely be among Betterment claimants. In the Eastern Cape, the many people displaced through Betterment planning (a form of forced villagisation) in the former Bantustans were told that they were not eligible to claim, yet in 2000 government conceded that they had indeed by unfairly dispossessed – but the deadline had passed and they were not allowed to submit claims. The Vulamasango Singene campaign (literally, in isiXhosa, ‘open the door so we can come in’) has lobbied for their inclusion in the restitution process. What is the scale of potential Betterment claims? There have been estimates of about 2,000 Betterment schemes in the Eastern Cape, and in the mid-2000s the Commission estimated that dealing with them could cost R12 billion for that province alone – and of course there were also Betterment schemes in other provinces, like North West, Mpumalanga, Limpopo and KwaZulu-Natal. We just don’t know. Is some research on this needed? Has any been done? We are not aware of any.
The Khoi-San and pre-1913 claims
The Bill does not address pre-1913 claims at all, though the memorandum to it says that a separate process is underway to look into this. Opening up the whole restitution process to pre-1913 claims would require constitutional amendment to the clause which says that:
A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress (Section 25(7)).
However, there is no legal constraint on (a) Ministerial discretion to address pre-1913 claims by referring these to the redistribution process, through which the land in question could be acquired and transferred to descendants of the Khoi-San community who lost land before 1913, or (b) the Commission working with other state institutions to erect monuments, renaming, acquire and maintain heritage sites and create other symbolic forms of restitution. Why have these opportunities not been used? The Minister could do so, now, without any legal amendment.
The answer, it seems, is the need to explicitly appeal to Khoi-San communities, and specifically Khoi-San traditional leaders who are now state employees, integrated into the Congress of Traditional Leaders of South Africa (CONTRALESA), and supporting a National Traditional Authorities Bill now being prepared. Both President Zuma and Minister Nkwinti have repeatedly mentioned a need to address pre-1913 claims because the Khoi-San were excluded from restitution by this cut-off date. But provincial party politics is also part of the story, and the potential headway to be made in the Western and Northern Cape in next year’s elections. How much of the push is for land through a claims process – as opposed to land through a redistribution process? Are the demands of the Khoi-San communities for land or for traditional authority?
Real demand? Political mileage? We just don’t know
The reopening, though, is clearly a political move. The ANC has an interest to make a powerful gesture in the centenary year of the 1913 Natives Land Act, a moment also to remember that the birth of our ruling party in 1912, in its first incarnation as the South African Natives National Congress (SANNC), was spurred by resistance to the pending Land Bill. At the same time, land reform is clearly in trouble, and there is pressure on government to speed up and expand the process, even while contending with the fear of perceived failure.
There may well be strong demand for reopening, and good reason that a constitutional right to claim restitution should not be limited by what in essence an arbitrary limitation to the 1998 deadline defined in the Restitution Act. But has the Ministry or the Commission conducted any assessment of the potential scale of eligible claims that were never lodged, and the demand for reopening? The memorandum to the Bill mentions that the programme was evaluated – but what is this evaluation? Was it published? What did it find? Can this be shared with the public, including claimants, so that this conversation can be opened up?
Feasibility, cost and productive use
The Bill opens the floor for restitution through re-opening lodgement, yet lowers the ceiling for restitution by introducing constraining factors in Section 33, which make it a highly discretionary process.
Two claims currently in dispute in the courts turn on the interpretation of ‘feasibility’ in S33(cA): the Baphiring case (now referred back from Supreme Court of Appeal to Land Claims Court) and the Mala-Mala case (now going to Constitutional Court). The addition of criteria of ‘cost’ and ‘productive use’ in the amendments opens the way to restoration of land being rejected in many claims: most poor communities claiming high-value land will not be able to demonstrate this. ‘Productive use’ now also features in redistribution, where the state is buying and leasing out land to beneficiaries; as tenants of the state, they are now expected to sign contracts with the government and failure to maintain productivity could constitute breach of contract. At the same time, it is unclear how productive use or ‘production discipline’ is to be defined or assessed. Also, requirements of productive use are discriminatory, in that existing (mostly white) owners of land don’t have this onus of proof; their continued ownership is not contingent on ‘productive’ use, but restoration of land rights is. In addition, it assumes agricultural land use, which is not the only purpose of restoration. What about settlement? What about urban claims? Further, if Minister Gugile Nkwinti is correct in saying that 90% of land reform projects are unproductive (and we don’t know the basis for this), then could it mean that the majority of claims will likely not be able to demonstrate ability to use ‘productively’ to the Commission’s satisfaction, and so many might be excluded from restoration. Will the state’s failure to support claimants to use their land now be used as a reason to refuse them restoration?
Acquisition through purchase and expropriation
The Bill provides for the Minister to delegate his powers under Section 42E of the Act to his Director-General, the Chief Land Claims Commissioner, the Regional Land Claims Commissioners and ‘other state officials’. This includes authority to buy land and to expropriate land, which the Minister is empowered to do in terms of the 2003 Restitution Amendment Act. This section should be read together with the Expropriation Bill published in March 2013. While the current Bill extends these powers to acquire land, there is less focus on restoration: a draft restitution policy document of March 2013 (not presented to Parliament) specifies that claimants will not necessarily be given ownership of the land they lost. Up until now, and based on the Kranspoort judgement of 2001, people who lost customary rights (or ‘beneficial occupation’) in the past are restored their land through full ownership, people who lost rights as labour tenants get ownership, and so on. There is no discrimination regarding the type of tenure rights lost. Yet now, a possible hierarchy of rights is emerging, with the suggestion in the policy (but not in this Bill) that those who were not private landowners at the time of dispossession will get ‘use rights’ rather than ownership. This suggests that the class hierarchies of the past should be resurrected: the syndicates of middle-class blacks who bought land around the turn of the last century should get ownership, but the descendants of those who had no resources to purchase land but occupied by custom, should now get ‘use rights’ rather than ownership. Surely we should be debating whether this is equitable?
The appointment of judges to the Land Claims Court
The Bill proposes various changes to the Land Claims Court (LCC), including that there must be five judges and a Judge President, and that these must be judges of the High Court. This is a reversal of the existing provisions which allow any person considered to have relevant experience to sit on the LCC, jettisoning the idea that adjudication of land claims must draw on a range of contextual knowledge, and not only technical interpretation of the law. This seems a pity; why? There have been criticisms that this ‘pro-poor court’ has produced ‘anti-poor outcomes’. But there is no explanation for this proposed change in the memorandum to the Bill.
The other proposals on the Court flow from this. The judges will be sitting on both the High Court and the Land Claims Court; this dual appointment means that, unlike the Labour Court, they will not specialise entirely in land law but work on a range of different kinds of cases. The whole idea of having a Land Claims Court – drawing on experiences with land tribunals in Canada, New Zealand and elsewhere – arose from the need for a specialist court. Why is the Land Claims Court not to be specialist? The likely reason is that, with most claims being settled through negotiation, under the administrative process provided in Section 42D, the work of the Court is somewhat erratic.
Since all judges of the Land Claims Court will also be High Court judges, the Bill proposes that all the sections of the Act dealing with their employment and remuneration are to be deleted. Acting judges are to be appointed by the Minister of Justice (not the President, as is currently the case), which could help to address problems of vacancies, and this can be for an unspecified duration. This is probably a good idea.
While several of the provisions seem to address problems with vacancies in the Land Claims Court – a positive move – at the same time, there must be provisions to support both the independence and specialisation of the court, and also to enable a range of dispute resolution options, including mediation and arbitration. More thought is needed on how the two institutions – the Commission and the Court – can work more closely and effectively together.
Here are two concluding thoughts. First is that, in the absence of any formally adopted policy, several laws including this Bill are under consideration and even being considered in Parliament. The White Paper of South African Land Policy of 1997 has long since been discarded, and instead government is doing bits and pieces of decision-making on the hoof. After the National Land Summit of 2005 promised an overhauled policy, including an alternative to the willing buyer, willing seller approach to acquiring land, nothing happened for several years running. In 2011, two and a half years into the Zuma administration, a Green Paper on Land Reform was published, which provided no direction on core policy questions, but did propose to create several new institutions.
And still there is no new White Paper which provides a policy framework.
In its absence, major changes are underway, with no transparency as to the direction being pursued.
Without clarity on how land reform can help to reduce poverty, stimulate rural economies, or contribute to the National Development Plan, Parliament is expected to debate an Expropriation Bill, a Land Tenure Security Bill, a Spatial Planning and Land Use Management Bill, a Communal Land Tenure Policy, a Communal Property Associations Amendment Bill, an Infrastructure Development Bill and a Land Valuation Bill.
The land claims process may well be reopened. It’s likely to mean some delays in processing existing claims. It will almost certainly extend the lifetime of the restitution process by at least two decades, and quite possibly more. Many more people may benefit.
But the potential for restitution, in its current form, to make a real dent in the racially skewed land ownership is undercut in the very Bill which proclaims that it is opening up the process: only those who can show that they can use the land ‘productively’ will get their land back. The onus of proof is shifted to claimants to convince the government that, having been dispossessed unfairly, they are ‘good to go’ as fledgling commercial farmers. It is to be expected that only a small fraction of claimants will be able to do so, and, if the Section 33 amendment is approved, the failure of government to provide adequate support to claimants to use their land could be used as a reason to deny them restitution of their land. It is astonishing that such conditionality is being proposed: existing (mostly white) landowners do not have to prove that they can use their land productively in order to keep hold of it.
The deadline for public comments on the Restitution of Land Rights Amendment Bill of 2013 is 21 June 2013.