Mar 4,2014 / News / Legal Brief

INTRODUCTION

Various statistics have circulated in the public domain, mostly emanating from the Department of Rural Development and Land Reform and some by National Treasury, depicting the trajectory of the land restitution programme since 1994. It is widely held that approximately R25.72 billion has been spent on the total land reform programme between 1994 and 2013. Initial expenditure towards the land programme was estimated at R50.84 million in 1994, peaking at R2.96 billion in 2012/2013.

Looking at the more than 100% increase in expenditure over the last 20 years, one is led to conclude that the drastic increase in expenditure over the last two decades is indicative of the political will to change the face of land ownership patterns in South Africa. One would, in addition, conclude that the rise in expenditure in land reform is met, at the other end of the spectrum, by sustainability of the use of the land, increased food production, and poverty alleviation; much to the benefit of the largely rural communities that have benefitted from the land restitution programme in South Africa. Put simply, the statistics, read coldly, tell a story of a 20-year programme that has transformed the patterns of land ownership at a macro and micro level. However, this is a case of truth being stranger than fiction.

TRACKING THE LAND, TRACING THE PROCESS

Whilst it is trite that the government has admittedly not been able to reach its initial target of redistributing 30% of land to black hands (for myriad reasons, some of which will be outlined below), it is crucial for government to first and foremost take a closer look and conduct an assessment of every piece of land awarded to a beneficiary since the inception of the land restitution programme. Furthermore, government must trace and track the current state of use of each such piece of land.

The purpose of this exercise is crucial in the light of providing government with a scientific and factual picture regarding the following:

• The challenges experienced by communities and land restitution beneficiaries over the two decades
• The lessons learnt during this period
• The pitfalls and challenges that have made sustainability of land use problematic
• The question of whether or not there is any relation between land restitution and land reform, and increased food production and sustainable poverty alleviation.

Failure to undertake a wide-scale, scientific study aimed at dissecting the challenges of the past two decades, will render meaningless any future plans and strategies government hopes to implement moving into the next era.

PROPOSED BILLS

Currently, government has proposed a number of Bills, seeking to accelerate the pace of land restitution, land reform and land redistribution. These Bills include the Restitution of Land Rights Amendment Bill – aimed mainly at extending the deadline to submit land claims to 31 December 2018, the previous deadline being 31 December 1998.

The Property Valuators Bill seeks to establish an Office of the Valuer-General, whose role would primarily serve as the final obiter on the market value to be placed on any property that has been identified for purposes of land reform.

The Expropriation Bill has been proposed for purposes of aligning the current Expropriation Act with the objects of the Constitution; in particular, the provisions that deal with redressing land reform objectives. The Expropriation Bill will align the concept of “just and equitable” compensation payable to landowners, departing strictly from the “willing seller/willing buyer” policy that was adopted by the African National Congress, arising from the negotiation and settlement of section 25 of the Constitution, known widely as the “property clause”.

Read cumulatively, the intended legislative changes proposed by the ANC-led government, if successful, signal an unprecedented shift in the manner in which the land trajectory will move in the coming decades. It is therefore crucial to ascertain whether or not, in changing the face of land reform, it is only the changes in legislation that will enable government to reach its objectives.

THE CHALLENGING PROCESS OF LODGING A LAND CLAIM

The answer lies in the myriad challenges that have been experienced by both government and the land claimants, in whose benefit the land reform scheme is designed. These pitfalls present themselves at the inception of the process of lodging a claim. Most unsettled land claims are rural, communal claims, almost invariably involving illiterate claimants who are often not assisted in the process of submitting and completing a land claim form. Claimants are often not legally represented and there is little or no legal or financial assistance guaranteed for purposes of assisting land claimants. The inherent disputes over the identification of the rightful beneficiaries amongst the community members, and the disputes around claimants submitting overlapping claims over the same piece of land, have been rife. It is unlikely that merely extending the deadline for the submission of claims will serve to address these issues. Land claimants must be afforded the requisite support by way of legal representation, and later on, by identifying strategic partnerships whose role would be to train and transfer skills in order to ultimately ensure the sustainability of such projects.

The lack of adequate skills and funding of the Commission of Restitution of Land Rights has resulted in the high turnover and attrition rate of staff, which has led to a significant loss in continuity and in the institutional process of investigating and researching the claims submitted by claimants. Whilst it may appear, on the face of it, that the expenditure on land restitution has more than doubled in the past two decades, it is important to highlight that the land reform programme enjoys only 1% of the fiscal budget. It is arguable that the task of investigating the veracity and accuracy of land claims submitted lies at the heart of the mandate of the Commission. As such, appropriate upskilling and equipping of the Commission would go a long way in speeding up the delivery of land reform objectives; by minimising the necessity down the line of litigation between landowners and land claimants. The proposed changes in legislation will not, on their own, serve to solve the inherent, institutional challenges within the Commission.

WHAT ABOUT THE CURRENT LANDOWNER?

The role of the landowner in the success or failure of the land restitution programme cannot be overstated. The last two decades have seen a large number of land claims being objected to by the landowners of the land claimed, often resulting in lengthy, time-consuming and expensive litigation, mainly before the Land Claims Court. The role and participation of landowners during the process of the land being claimed and, more importantly, after the land has been awarded to the land claimants, remains paramount.

It can be accepted that not every landowner would naturally take to the notion of having to sell land for purposes of the land reform project in the country. However, it is not far-fetched to envisage a government-led programme whereby a landowner is incentivised, in various ways, to remain on the land claimed for a number of years, pursuant to a strategic partnership between the landowner and a land claimant community, with a view to ensuring that the land claimed continues to benefit the community in the quest to achieve poverty alleviation, employment creation, increased food production and increased commercial farming. Going into the next decade, the focus of government must not simply be to award land to black hands; it must be to create and devise creative and strategic ways to ensure that sustainability and development, post- settlement, drive its objectives.

CONCLUSION

Whilst legislation may assist in driving government’s constitutional obligations to a certain extent, it is incumbent upon government to conduct a practical and sober examination into the reasons behind the failures and pitfalls experienced in the land reform project to date. A self-diagnosis of the changes that are required within may be a good place to start.