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Land Claims / Land Restitution

The real story: Land Restitution in South Africa is done in an orderly and legal way

Land Restitution/Land Claim is an emotive issue, and one is inclined to envision the same sort of catastrophe as has taken place in Zimbabwe. This is not the case in South Africa, where the South African government has taken a bold step in attempting to redress some of the injustices of the past and restitution is done in an orderly, and legal, way.

The Landclaims Ctory

General history

The land restitution process evolved out of the (Interim) Constitution of 1993.

Anybody who was dispossessed of their land after 19th June 1913 under racist legislation was given the right to claim restitution against the State, and a commission and a court were established to give effect to this process.

Right in Land is defined in the Act as "any right in land whether registered or unregistered, and may include... beneficial occupation for a continuous period of not less than ten years prior to the dispossession in question."

The definition is wide and includes far more that what is generally understood under the term ownership both at common law and customary law.

The first claims were registered in 1995, and the deadline for claims to be registered was given as December 1998. In this period a total of 79,649 claims were made country wide.

To resume this process would require changes to the Restitution Act.

It is generally accepted that there are some (legitimate) claims that were not lodged in the required timeframe (for example District Six in the Western Cape) and the Department of Land Affairs is looking at alternative ways to assist these people - one of the suggestions being that they be given land under that department’s land redistribution program.

The process of the restitution of land in South Africa

The Restitution of Land Rights Act was passed in 1994 and the process works as follows:

1. As stated above, claims had to be registered with the land claims commissioner before 31st December 1998.

2. The Commissioner has several tasks, including:
a. the verification of the rightful claimants;
b. the verification of the validity of the claim;
c. identifying the beneficiaries;
d. determining the extent of land claimed.

3. The claim is “gazetted”. At this point no further development is allowed until the claim has been settled.

4. The Commissioner then attempts to settle the claim through mediation.

5. Settlement or outcome of a legitimate land claim could be:
a. The restoration of actual title to the claimants (on a willing buyer - willing seller basis);
b. The provision of alternate state owned land to the claimants (the preferred option where a large number of owners are involved and there is a high level of development, as in the case where a farm has been subdivided into 21 hectare smallholdings);
c. Financial compensation;
d. The granting of special access to other government programmes aimed at the redistribution of land;
e. Other alternate forms of relief;
f. It is of interest and importance to note that Use rights (where the land is in a conservation area for example) can be restricted by means of conditions written into the title deed, and additional agreements may be made with the respondent.

6. It was originally intended that successful settlements be referred to the Land Claims Court in order for the Court to scrutinise the settlement and confer on them the status of court orders. However, this process was found to be antagonistic and agonisingly slow, and in 1999 amendments to the Act were passed giving the Minister powers to make awards based on the negotiated settlement agreement.

7. Where a claim cannot be settled through mediation, the Commissioner must prepare a comprehensive report, and refer the claim to the Land Claims Court for final determination.

8. It is the task of the Land Claims Court to decide which form of restitution is appropriate and fair in each case, and should this require expropriation then the current owner is entitled to fair compensation.

9. A presidential target of settling all outstanding claims by 2005 was set but has not been met.

The difficulties faced by the commissioner

The Commissioner has obviously faced a great many challenges in his task:

1. Identifying the correct claimants and beneficiaries.
a. Many claimants are illiterate and have problems producing ID documents, marriage certificates etc;
b. Infrastructure (notably transport problems) and communication difficulties make access to the claimants, and the holding of meetings a challenge.

2. There has been a small number landowners who are not only unwilling to sell, but whom are actively uncooperative when dealing with the Land Claims Commissioner.

3. The Commissioner would prefer to restore/provide land to the claimants. However, most urban claimants want financial restitution. This enables them to solve their immediate survival problems (money now – development later!) but leads to inappropriate expenditure and family disputes which, in the long run, ultimately widens the poverty gap.

If you would like to know more, please contact us and we will be happy to explain the situation to you.