Land claims draft legislation likely to backfire

Draft legislation that aims to reopen SA’s land claims process is likely to backfire on a state that’s still battling to finance and finalise land claims from the previous restitution process, which ended in 1998.

At the opening of parliament this year President Jacob Zuma declared that the land restitution process would be reopened to accommodate people who missed the 1998 deadline to lodge claims.

He also promised that the new restitution process would be available to claimants like the Khoisan who lost land before 1913.

The bill the rural development & land reform department has crafted to give effect to these promises will be tabled in cabinet this month. The amendment bill echoes the brand of political theatre that has underpinned government’s statements on land this year to mark the centenary of the Native Land Act of 1913.

For the ANC and its allies, land reform is a key measure of how much post-apartheid redress has been achieved. That is why ANC secretary-general Gwede Mantashe cautions that the slow pace of land reform is “betraying the revolution” because it was at the “heart of the struggle for freedom”.

The ANC wants the amendment bill, which will be presented to cabinet this month, finalised before the election of 2014, the year that will mark two decades of ANC government. Party leaders on the campaign trail will have to explain why there hasn’t been the kind of radical and accelerated land reform that the ANC made central to its 2009 election manifesto.

If passed, the Restitution of Land Rights Amendment Act will open the land claims window for five years. The department estimates that this process will attract 397000 more claims and cost between R129bn and R179bn – more than double the R83bn the state will have spent on land reform by 2016 if the restitution process had not been reopened.

It’s difficult to find anyone who disagrees that much more needs to be done to redress apartheid land injustices. But it’s equally difficult to find anyone outside of government officials and potential claimants who believe that reopening the land claims process 15 years after it closed is the way to achieve this.

The first red flag is the potential cost. National treasury didn’t respond to FM questions about the department’s estimated price tag for the project. While land experts question how the these figures were arrived at, ANC MP Jerry Thibedi, who chairs the ad hoc parliamentary committee that was established to address the legacy of the Land Act of 1913, says: “As far as the committee is concerned the money must come from treasury. The department also needs more capacity to spend this money. This process has to be implemented so previous problems aren’t repeated.”

Over the past decade government’s land reform policy hasn’t been backed up by finances because treasury believes the department has sufficient money and is lacking sound financial management and planning. But even if treasury does come up with the money, reopening the restitution process isn’t going to yield the expected results, says Stellenbosch University’s Prof Cherryl Walker, who was regional land claims commissioner in KwaZulu Natal in 1995-2000.

“The proposed bill is misguided in numerous respects and doesn’t appear to be based on a serious evaluation of the restitution programme over the past 18 years,” says Walker.

Agricultural economist at Stellenbosch University Prof Nick Vink agrees, saying: “Nobody is thinking clearly about land reform. Restitution had a defined purpose. Most cases, except the difficult ones, are settled. We’ve got to close this book and use other sections of the law for land reform. This would be much cleaner.”
The embattled department still has about 9000 restitution claims to settle. New land claims will not only increase this load, they will cut across land that’s already been restituted or bought by the state and redistributed, creating a political and -administrative hiatus.

This is one reason why the department tried to put conditions on new claims. The original version of the amendment bill made the ability of claimants to use restored land productively a criterion to be considered. Concerns were raised that this could be interpreted very narrowly to exclude claimants from getting land back especially if their land use plans didn’t match bureaucratic conceptions of what “productive use” is. The conditionality has been withdrawn.

Unisa professor Dirk Kotze says though the bill was meant to be available only to those who weren’t able to lodge valid claims before 1998, it is creating widespread expectation among people who now hope to benefit. One such group are people who were moved within Bantustans as part of apartheid-era betterment planning, which was a type of forced Villagisation. Though some of these groups did lodge successful claims before 1998, these claims were discouraged. What the scale of these claims would be in a new restitution process is unclear, but the Vulamasango Singene (open the door so we can come in) campaign estimates that there’d be more than 2000 in the Eastern Cape alone.

However, the potential volume of these claims shouldn’t be the main concern.

The political headache for government lies in the absence of individual tenure of people living in former homeland areas. They live on and work land at the pleasure of traditional leaders, who don’t want the status quo changed. To appease traditional leaders, government has prepared legislation – the Traditional Courts Bill and the National Traditional Affairs Bill – that will entrench their powers.

This means that on the one hand government is preparing to open restitution claims on this land but, on the other, it’s preparing to entrench the current tenure system.

Making good on Zuma’s promise to allow claims that predate 1913 also looks unfeasible. Processing claims that predate the formation of the Union of SA in 1910 would be complex. It would require a constitutional change, and the ANC doesn’t have the parliamentary majority required to do this.

Chairman of the National Khoisan Council, Cecil Le Fleur, says government hasn’t informed him of any problems around implementing the pre-1913 claim promise.

“When the Land Act of 1913 was passed the Khoi and the San were already dispossessed of 95% of their land. It’s paramount that we can claim. We met government in May and they promised that by June they’d contact us to include us on a steering committee to look into claims and heritage sites on private land. That’s the last we heard,” says Le Fleur.

Le Fleur’s comments reinforce the potential for conflict as a result of competing and cross-cutting claims if the process is made applicable to the time before 1913, and farmers, too, are anxious about what this means for their future. Agri SA’s Theo de Jager says re opening the restitution process is the “worst possible” news. It’ll make farmers more reluctant to invest in and expand their operations. Banks are also increasingly reluctant to offer finance on land with claims on it, regardless of whether these claims are valid or not.

Rural claims are one thing but a new restitution process is likely to be inundated with urban claims . Settling these should be simple. It’s nearly always impossible to give claimants their actual land or homes back, which means they can be compensated financially. But government isn’t keen on doing this, because it’s expensive and wouldn’t contribute to the ANC’s targets for black land ownership.
Thibedi says: “Financial compensation defeats the whole purpose of giving land back to black people.”
Walker says this is shortsighted, because the state doesn’t have the capacity to cope with the number of urban claims that are likely to be lodged.

“This has the potential to overwhelm state -administrative structures but also to destabilise various negotiated (but far from finalised) urban restitution settlements, such as District Six in Cape Town,” says Walker, who believes the solution lies in the state being more imaginative about alternatives to restitution that can do far more to develop and uplift communities.

For example, compensation could be an investment into a community where claimants currently live or it could pay for their children’s education. If claimants are set on getting physical land back, Walker says, they could be more efficiently accommodated under the state’s land redistribution programme.

Independent researcher Michael Aliber agrees, and says: “Money and hectares account for only so much. Government needs to acknowledge the limitations of its land reform and land restitution processes so far and become more serious about other forms of symbolic redress. These include a more ambitious and flexible redistribution programme as well as nonmaterial forms of acknowledging and responding to the pain caused by land dispossession.”
Source Troye Lund (Financial Mail)