South Africa: Land Restitution In South Africa - Will we avoid the Zimbabwean experience?

If one fails to take into account the political, social and economic history that shaped South Africa, it is not possible to properly understand the progress and initiatives that are taking place in land reform in our country today.

At the time of the first democratic elections in April 1994, the new government faced a staggering racial imbalance in land ownership. Between 3,5 million and 7 million people had been relocated in post 1913 social engineering under various apartheid measures in South Africa; expectations of the new government ran very high.

Restitution of land rights, as a process, came into being when the interim Constitution directed Parliament to pass legislation establishing a Commission of Restitution of Land Rights. When the Restitution of Land Rights Act 22 of 1994 was promulgated in December 1994, a constitutional and legislative framework was created for the restitution process. This process has been administered by the State, through the Department of Land Affairs, as part of a broader land reform programme, which has included land redistribution and land tenure reform.

Three years after the legislation dealing with restitution became law, only about 10 claims out of 27 000 had been finalised; the process obviously came under severe criticism for the slow pace of delivery. A review task team investigated the reasons for the delay and one of the improvements that was implemented as a result was that the Land Claims Court was given a more focused role to play in the process. Until then, the claims process was essentially judicial and every claim had to be finalised by the Land Claims Court. The legislation importantly did make provision for claimants who were indigent and could not afford legal representation; the Commission in those circumstances made arrangements for legal representation.

Since November 1998 therefore, the restitution process was tackled in a different way. The shift has been away from a judicial process to being an administrative process with commissioners having powers delegated to them to finalise claims. An effort also has been made to introduce a wide range of ADR mechanisms into the process in order to resolve conflicts. A special focus was also introduced whereby urban individuals and communities that were claiming under the legislation and preferred financial compensation, were dealt with immediately. Also, an emphasis was placed on restoration cases where the land was still available so that these matters could be finalised. An attempt was also made to research claims on an area by area basis and to have claims researched by outsourcing them to institutions like universities and non-governmental organisations, with research being driven by regional offices where the claims were being processed. Evaluations were also done on a geographical basis, the idea being that it was possible to cover a large number of claims in preparation for effective negotiations. It also became clear that each of the streams for financial compensation, namely restoration of land lost and alternative land allocation, had to be headed by a skilled negotiator who had to be part of the Negotiation and Settlement Unit within the Land Claims Commission.

• Approximately 64 000 claims have been lodged involving individual household claims and community claims.
• 80% are urban claims, meaning 52 000 households or 300 000 people are seeking restoration of land – the majority appear to prefer financial compensation.
• 20% are rural community claims representing 600 000 households or 3,6 million people.
• 3,9 million people stand to benefit from the restitution process.

What must always be remembered is that reporting progress or lack thereof has oversimplified the restitution situation. The statistics fall short of an appreciation of the complexity of the restitution process. One cannot reduce the process to the number of claims finalised: the intervening period spent on very complex issues which are extremely time consuming, are simply ignored.

The scale of the programme has been huge and admittedly slow and tedious, says the Chief Land Claims Commissioner, Advocate W A Mgoqi. In defence of the slowness of the process, Mgoqi has emphasised the need not only to deliver on scale, but also qualitatively. He has underlined the need for quality and refuses to accept mistakes in the process, which will be costly to rectify. The claims, he says, must be processed with due-diligence and care in order to produce qualitative settlements. Of all the injustices of the apartheid era, dispossession, based on racially discriminatory laws and practices, is, says Mgoqi, the only evil for which the South Africa Constitution makes provision for redress. There are no provisions for victims of pass laws and other forms of human rights violations. It is therefore, important for the people of South Africa that the restitution process is a success so it can help heal some of the hurt of the past.

Statistics released over the last year show an acceleration in the process through settling claims administratively, which indicates that the new strategy is working. Recent statistics on settled restitution claims released from the Department of Land Affairs have summarised the situation as follows:

Alan Roberts, Land Claims Commissioner for the Western and Northern Cape, has, however, poignantly noted that after what has been done to the people of South Africa, it is still the poorest of the poor that are continuing to suffer. "The transformation process is still being carried out on their backs. The tolerance shown by people is humbling indeed, and their willingness to forgive unbelievable". Roberts has also noted that the Minister of Land Affairs is deliberately not using her power to expropriate land because the present government does not want to repeat the mistakes of the past. Furthermore, the Department does not want to affect the South African market forces and the fragile economy upon which all its citizens rely.

In recent months, the criticism regarding land reform and the restitution process has become more heated in the light of recent experience in Zimbabwe. 64 000 claims that have been lodged will take the next 10 years to process at an enormous cost. (In February 1999, only 31 claims involving the restoration of 174,000 hectares had been resolved at a cost of R25 million!). The government has been criticised for not tackling the toughest cases and the Department of Land Affairs is under a lot of pressure to provide people with secure tenure where they can live, and so to prevent arbitrary or unfair evictions. What seems to be clear is that the restitution process, which is constitutional mandated, will need to be further accelerated while ensuring stability in the rural areas. In terms of the restitution programme, the challenge is to ensure that it contributes to farmer settlement, poverty eradication and integrated rural development in South Africa. The land invasions in Zimbabwe are a solemn reminder that the land reform process in place in South Africa today has to succeed for South Africa to look forward to a positive future.

Land reform, however, is a long-term programme. There appears to be no quick-fix solutions. It has been accepted that remarkable progress has been achieved in the past 5 years. The South African land reform programme is increasingly drawing international attention because much has been achieved in a varied, innovative and comprehensive way in a very short space of time.

For further information, please contact us.

The material contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. We accept no responsibility for any loss or damage, which may arise from reliance on information contained in this article.

© Copyright Webber Wentzel Bowens 1999. All Rights reserved.