The battle for District Six in the Land Claims Court promises to be as bitter as the fight against the forced removals from the area, writes Rehana Rossouw
THEY’LL be on opposing sides in the Land Claims
Court (LCC) in October, but Basil Davidson and Anwar Nagia agree on a fundamental issue: the Restitution of Land Rights Act of 1994 is flawed.
Davidson, chief executive officer of the Cape Town Community Land Trust overseeing the rebuilding of District Six, supports a June application in terms of Section 34 of the Act, under which restitution can be refused if it is in “the public interest”.
If it succeeds, vacant land in District Six will not be restored to claimants who have applied to the Land Claims Commissioner, but will be redeveloped by the trust.
The application is being brought by the owners of the land, the city of Cape Town and the provincial government. They are paying the legal costs.
Nagia, chair of the District Six Residents’ Association (DSRA), is opposing the application on the grounds that it is expropriation in a different guise, and will further traumatise victims of forced removals. He wants District Six claimants to be allowed to submit individual claims and to be awarded compensation. They can cede their rights to the trust if they wish.
Davidson is motivated by practical considerations. The trust aims to house 4 000 families in an integrated development on the cusp of the CBD. If Cape Town is in the running for the 2004 Olympics, the building of sports venues will start soon and they would prefer the development to start before building costs rocket.
“If there is no Section 34 application, land will only be returned to the small minority of landowners and not to the tenants who made up the bulk of the population of District Six before the forced removals,” said Davidson.
“We are not denying anyone their rights to claim for restitution, but redevelopment offers a broader benefit.”
There were about 71 000 people living in District Six when it was declared a white area in 1966. The government expropriated 2 375 properties, of which 66% were owned by white absentee landlords.
Since then, more than half of the land has been sold and developed. Of the restitution claims already lodged, 28% is for land under existing roads, 18% for land developed by the Cape Technikon, 13% lies under homes erected after the area was declared white and 41% is for vacant land.
Should the trust redevelop District Six, most claimants would benefit from revenues raised from what is built. The LCC has the authority to grant claimants alternative land if theirs is not available.
“An underlying problem with District Six is a bigger problem with the Act itself,” said Davidson. “The original Act was drafted for application in rural areas and the drafters tacked on clauses relating to urban Group Areas Act removals without thinking through the procedures. I predict that Cato Manor in Durban will experience the same problems.
“If claimants become more realistic, we can get more participation in the planning of redevelopment. We don’t want to ride roughshod over anyone, but we have to start moving soon.
“There is no alternative to the Section 34 application. It is the only way to make it possible for more of the former tenants to move back.”
Nagia believes there has to be an alternative. He says the Section 34 application has stripped individuals of their rights and made them “ashamed” of pursuing their rightful claims.
The DSRA has been a leading light in the struggle to reclaim District Six. It was central in the campaign to halt development for white residents in the 1980s, it battled to rename the area District Six after the government changed it to Zonnebloem and it marched on private companies intent on developing the area and forced them to abandon their plans.
“When negotiations started we were told the ANC was fighting for equitable redistribution of land.” But, said Nagia, “We were tricked. Section 34 … smacks of the same tactics the government and the council used when they declared District Six white.
“We represent a wounded community. In the interest of greater participation therapy if you like claimants should be allowed to lodge individual claims.”
The DSRA has held three public meetings since the application was filed in June and has secured power of attorney from 999 former District Six residents to oppose the court action. The organisation has withdrawn its participation from the District Six Development Forum, established by the trust to oversee the planning process for the area.
Nagia is incensed that the trust has chosen to fight the matter in court. The costs of the application will be paid by the central substructure of Cape Town and the provincial government. Jeremy Gauntlett, SC, will represent them.
“If we want to oppose this matter successfully,” said Nagia, “we will also have to brief a senior advocate and we estimate the legal costs will amount to R300 000.”
The matter will probably be heard in October. Davidson is hoping to start planning the new District Six. Nagia is determined to stop him. “If the redevelopment does not have the support of 100% of the claimants, then District Six will remain barren,” he vowed.