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government of the Restitution of Land Rights Act have still not received their land. titles because of delays by the Commission and also as a result of opposition by. traditional leaders, In the current context and in its current form the Bill is unlikely to meet the needs of. rural people and could well undermine their land rights as protected by Section. 25 6 of the Constitution,PROBLEMS WITH THE BILL, The main problems with the Bill may be summarised as follows. 1 There are many outstanding claims that have not been finalised. The Department has still not finalised many outstanding and backlogged. restitution claims According to the Ad Hoc Committee on the Legacy of the 1913. Land Act 20 592 claims or 25 87 per cent of the total land claims registered with. the Department have not yet been finalised or the settlement agreement has not. been fully implemented Around 50 of the land already acquired for restitution. has still not been transferred to the beneficiaries Several claimants have been. waiting for over ten years for the implementation of their settlement agreement. This raises concerns that claims filed under the new restitution period might further. undermine the fulfilment of existing claims even those that are already approved. but where the land titles and development money have not yet been handed over. The reopening of the restitution process will further complicate and delay the. processing of existing outstanding claims, Furthermore the Act might open the space for numerous claims by traditional. leaders as explained in detail below which could overlap with and disturb. already existing claims by other community constituted structures such as CPAs. and Trusts, One way to address this might be to ask for the Bill to be changed to prioritise. claims made before the previous Restitution Act s cutoff date 1998 that is to. ring fence all claims submitted by 1998 or claims that have already been settled so. that new claims cannot interfere with them, 2 In light of current policies and recent judgments restoration of land will be.
made contingent on the cost of the land transfer, In the initial draft of the new Bill Section 33 was changed to establish new conditions. for land to be restored to claimants people who put in claims These conditions. made land restorations dependent on the feasibility and cost of the land transfer and. the claimants ability to use the land productively Restoration means the return of a. right in land or a portion of land to people dispossessed of their land as a result of. past racially discriminatory laws or practices, This provision has now been removed from the Bill which is a step in the right. direction Regardless restoration of land will remain dependent on the criteria. of cost of the land transfer and claimants ability to use the land productively. This is because the Bill will reopen the restitution process in the context of the. Baphiring judgment and the new Recapitalisation and Development Policy July. 2013 which replaces previous Restitution Settlement Grants As a result it will still. be difficult for restitution beneficiaries to obtain restoration of land and receive the. financial support they need to use the land restored to them. People with limited resources who put in land claims will face an uphill battle to have. their land restored to them in light of a recent decision by the Supreme Court of. Appeal SCA in Baphiring Community Others The Restitution Act has always. required that restoration of the land be feasible In Baphiring the SCA found that in. deciding whether restoration is feasible the Land Claims Court must look at the cost. of doing so The Court set out a list of factors to be considered most of which relate. to the financial implications of restoration These factors include the. Cost of expropriating the land including compensation for the current owner s. mineral rights This means that people claiming land in an area rich in. minerals are unlikely to have the land restored because the cost of restoring. the land with mineral rights will be incredibly expensive. Institutional and financial support that the government is going to make. available to the claimants for them to resettle If the state cannot. afford chooses not to give the claimants restitution money the Land Claims. Court will be very unlikely to recommend that the land be restored to the. Whether or not restoring the land to the claimants causes a loss in food. production or disruption in farming activities This implies that if claimants. want to use the land for something other than commercial farming they will. not receive the land, The effect of the SCA judgement is that it puts claimants in a situation whether they. have little choice Land will not be restored unless the government provides. financial support to restitution beneficiaries But if restoration is too costly it may. not happen anyway And the financial support claimants can receive may be made. conditional on whether or not they develop partnerships and business plans. Furthermore if the Bill is passed restitution claimants will no longer be able to. apply for financial support directly through the restitution process Instead they. will have to apply via the Recapitalisation and Development Fund In order for these. funds to be released applicants must show that they have a business plan and a. strategic partner Restitution beneficiaries will also be subject to a use it or lose it. clause which could discriminate against people who can t keep up with the. business plan The requirement of a business plan and strategic partner does not. bode well for people with limited resources who are restitution beneficiaries. Business plans for land reform projects have been notoriously inappropriate and. strategic partners do not always act in good faith or with competence. Most seriously the policies accompanying the new Bill and the SCA s judgement. mean that the government can ignore the restitution process constitutional. imperative to offer redress to people who have been discriminated against Instead. the restitution process and budget may be used to target and support a class of. commercial farmers, 3 The Bill is likely to undermine independent ownership rights acquired. through land reform after 1994 and held by CPAs, The idea that land restoration should be dependent on cost and productivity is part of.
a series of measures suggested in new land laws and policies that make the rights. of rural people conditional on good behaviour while reserving ownership for. powerful elite partners such as traditional leaders The irony is that the restitution. programme which was designed to provide redress to those who suffered forced. removal and bore the brunt of the Land Act is now being reconfigured in way that. will undermine the ability of citizens to acquire land that they could call their. The minister has said that Communal Property Associations CPAs should no. longer be allowed to own land acquired through restitution or redistribution within. communal areas In his view a communal area within a communal area is wrong. The new Communal Land Tenure Policy states that the registration of new CPAs on. traditional communal tenure areas be carefully considered and principally. discouraged, The model of CPAs was developed to allow the beneficiaries of the land restitution. process to own land collectively It provided claimants living in the former Bantustans. with the ability to constitute themselves as legal entities to receive land If CPAs can. no longer own restitution land the door is open for chiefs to claim ownership. of restitution land on behalf of tribes that were defined in terms of the Bantu. Authorities Act of 1951, This is not just a matter of future policy It is already happening at least in the. Eastern Cape One example is the Cata CPA in the Eastern Cape where claimants. have been waiting since 2000 for their land title The government recently ignored a. court order that instructed it to transfer land title to the Cata CPA by May 20 th 2013. According to a 2012 affidavit by a senior government official in the Cata litigation the. Cata CPA did not receive its land because of objections from traditional leaders. The Department of Rural Development and Land Reform has not transferred title to. at least 34 CPAs where restitution awards and signed agreements are in place This. has caused major suffering and division as CPA members question what happened. to the land and grants they were promised, 4 The Bill opens the door to traditional leaders to claim ownership of. restitution land on behalf of tribes that were defined in terms of the Bantu. Authorities Act of 1951, In light of other laws policies and recent statements by Minister of Rural. Development and Land Reform Gugile Nkwinti the Restitution Bill risks opening the. floodgates for traditional leaders to claim vast amounts of land. Within days of the Bill s introduction King Goodwill Zwelithini promised a gathering of. 40 traditional leaders in KwaZulu Natal that the Ingonyama Trust would help. traditional leaders to make land claims including providing legal support He said. As your king I will abide by the law and approach the government to regain all Zulu. Chiefs were also often part of Betterment processes one of the new categories for. restitution included in the Bill Betterment was a form of land dispossession It is. therefore important that people who were dispossessed under Betterment are. provided with a form of redress, However in the context of new policies that discourage land transfers to CPAs this.
new provision for Betterment could also open room for the abuse of power by. chiefs If betterment land goes to chiefs instead of entities chosen by the members. of the respective communities it will put those who suffered from betterment directly. under the authority of the very traditional leaders who may have agreed to. betterment in the first place, There is no historical basis for the argument that traditional leaders have. exclusive authority over land The colonial and apartheid governments used the. idea that chiefs were the only African people who could make decisions respect of. communal land as part of its way to dispossess black people of their land This idea. undermined customary practices that recognised the entitlements vesting in ordinary. people and the role of groups in making decisions about land. The intention of the Restitution Act of 1994 was to provide redress for those forcibly. removed by unpacking the resettlement areas adjacent to the former Bantustans. But current laws like the Traditional Leadership and Governance Framework Act. or TLGFA and policies like the Communal Land Tenure Policy strengthen the. same Bantustan boundaries that are the outcome of forced removals Laws such. as the Traditional Courts Bill TCB provide traditional leaders with autocratic forms. of power over all the people living with the tribal boundaries created by the Bantu. Authorities Act of 1951, The government tried to distinguish the new traditional councils from the old tribal. authorities by requiring them to be more democratic in order to be legally recognised. Specifically the TLGFA requires that 40 of traditional councils must be elected and. 30 must be women However research on the status of traditional councils shows. that most traditional councils in South Africa have not met these requirements. which means they do not have legal status If they do not have legal status the. government cannot transfer land to them,5 The Land Claims Court. After 1994 the Land Claims Court was created to deal with disputes regarding land. claims the finalization of land claims and other related land issues such as labour. tenant and farm worker evictions The persons appointed as judges had to have a. special knowledge of land law issues The draft bill if accepted will make these. claims and other land related matters all the more complicated requiring more. judicial attention and time The proposed law will however no longer require that. judges have specialist knowledge In addition these judges will no longer deal. with land claims exclusively but will have to share their time with obligations to. other courts, 6 The Bill reflects lack of consultation or time available for consultation with. rural people on the ground, The Bill was introduced with no comprehensive advance notice on May 23 rd 2013.
allowing only 30 days for comment These timelines did not allow for widespread. consultation with a wide range of constituents especially with rural people who will. be affected by it At a civil society conference on land reform in October 2013. delegates from rural areas around the country expressed their frustration at not. being given notice that consultation meetings would be taking place. 7 The Department has created confusion with its comments that opening the. Restitution process will allow for pre 1913 claims. Government officials have stated that one of the main goals of the Restitution Bill is. to allow people dispossessed prior to 1913 like the Khoi San to put in claims as part. of the restitution process However the bill contains nothing about pre 1913. claims The Department has not clarified its earlier comments and has been. reluctant to acknowledge that the bill does not address the concerns of Khoi San and. 1 RESTITUTION OF LAND RIGHTS AMENDMENT BILL October 2013 Background The Restitution of Land Rights Act No 22 of 1994 was passed to great applause in

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