Bongani Diako and Theunis Roux
a second look
The recent settlement of the Chatha claim has been hailed as “one of the most important moments in the six-year history of the restitution programme” (“Land reform for the poorest”, Mail & Guardian October 13 to 19).
In the same article, the resolution of betterment claims through the restitution process is presented as an important alternative to the currently “dysfunctional redistribution programme”.
Both of these judgements are undoubtedly correct. However, the settlement of the Chatha claim raises several issues that require further debate. The first is a legal issue. On February 10 last year, in its judgement in the Slam- dien case, the Land Claims Court rejected a restitution claim in respect of land that had been purchased by the state “for coloured educational purposes”.
In coming to this decision the court held that, to qualify for restitution, a claimant must be able to show that the proximate cause of the dispossession was a racial zoning law. It is not self-evident that betterment claims meet this strict test. Although the removals undertaken in the name of betterment were certainly racist, their proximate cause was a policy aimed at promoting more effective use of scarce resources in the Bantustans. That such a policy would never have been necessary but for spatial apartheid is not the same thing, legally speaking, as the proposition that better-ment policy was part of spatial apartheid.
Does any of this matter? There appears to be a clear commitment from the Department of Agriculture and Land Affairs to settle better-ment claims in terms of the restitution process, irrespective of the legal technicalities.
Since the money for such settlements is ultimately drawn from the same budget, what difference does it make? We would argue that there is a difference – a subtle but nevertheless important one. The decision at the July 14 policy indaba, organised by the Eastern Cape Land Claims Commission, that betterment claims should be resolved in terms of the restitution process represents in microcosm the new approach to land reform introduced by Thoko Didiza. What this decision signals is that the content of land rights should not be determined through litigation, but rather by negotiation. Had the Chatha claim been resolved during Derek Hanekom’s term of office, by contrast, the final decision on whether betterment removals should be addressed in terms of the restitution process would in all probability have been left to the Land Claims Court.
Indeed, before the policy indaba took place, the Chatha claim had already been lodged at the court after its initial rejection by the commission on strict legal grounds.
The virtue of the new approach is that it is more democratic. When unelected judges use arcane legal principles to decide the content of rights, the people tend to get left out. This is so notwithstanding the fact that the people’s representatives may have agreed on those principles in the first place.
As any lawyer will tell you, the devil, and therefore the legally sanctioned outcome, is always in the detail. The downside of the new approach is that it excludes groups that were not party to the July 14 indaba. Two such groups in particular are likely to be prejudiced by the department’s current approach to betterment claims.
The first consists of those victims of better-ment who did not lodge restitution claims before the cut-off date on December 31 1998. The requirement that a claim should have been timeously lodged is one legal technicality that cannot be bureaucratically circumvented. The second group consists of victims of “black spot” and Group Areas removals, whose restitution claims remain unsettled. Such people will now have to compete with a much larger pool of claimants for the same resources.
According to another recent article (“R10m land settlement only tip of iceberg”, Sunday Independent October 22), there may be as many as 300 unresolved betterment claims in the Eastern Cape, with a further 1 000 in the Northern Province. One does not have to be an actuary to calculate the budgetary implications of settling such claims on the Chatha scale. Any hint of prejudice and lawyers become interested again. Can either of these two groups challenge the settlement of the Chatha claim on the basis that it was ultra vires the commission’s powers under the Restitution Act?
And what about betterment community number 293 in the Eastern Cape queue? Will the settlement of the Chatha claim have precedential value when the department’s restitution budget begins to dry up? The further legal issue that the settlement of the Chatha claim raises is whether communities such as the Bakgaga-ba-Kopa tribe in the Northern Province, who were victims of “black spot” removals, and then subsequently also victims of betterment, may claim restitution in respect of more than one forced removal. These questions, speculative as they are, illustrate that rights and democracy are always in tension. Just as the rights-based approach to land reform characteristic of Hanekom’s term of office did not preclude the possibility of negotiated solutions, so will the indaba-based approach have to take account of the way in which rights may trump democracy. The question that the land reform community should be asking itself is not which approach is right, but what is the proper balance between the two. The rights-based approach tends to be cumbersome, expensive and even disempowering, but may – as the Constitutional Court’s decision in the Grootboom case illustrates – be the only way in which marginalised groups can be heard. The indaba approach tends to be less technical, less conflictual and more participatory, but may favour well- organised groups over the truly desperate.
What is required from the department is to manage this tension on an ongoing basis, with the NGO community and human-rights lawyers providing a voice to the voiceless when land-reform policy deviates too far from the demands of justice. Bongani Diako and Theunis Roux are from the Land Rights Research Programme at the Centre for Applied Legal Studies, the University of the Witwatersrand