Tozamile Gwanya crossfire
It is unfortunate that at this stage in our democracy there are academics from institutions like the Land Rights Research Programme at the Centre of Applied Legal Studies at Wits University, which one thought were progressive, and therefore understood the issue of violation of rights, particularly those of the poor, who can argue that betterment does not constitute violation of rights.
If such academics could leave their cosy desktops for a moment to interact with the poor people they purport to represent they could learn about the evils of betterment and the suffering that came with the implementation of betterment schemes.
The article ”Restitution: Good news for some” (November 10 to 16) raises questions about whether the ”betterment policy was part of spatial apartheid”. The authors base their scepticism on the judgement of the Land Claims Court in the Slamdien case, which involved the removal of people for educational purposes.
There are clear and absolute distinctions that should be drawn between the Chatha and Slamdien cases. Betterment was a key component of the spatial strategy of the apartheid government.
The centre researchers claim that the proximate cause of betterment removals ”was a policy aimed at promoting more effective use of scarce resources in the Bantustans”. This was the propaganda put forward by the ”Bantu commissioners” of the 1950s and 1960s, that was exposed as such at least 20 years ago by work undertaken by academics and activist researchers working for the Surplus People Project. It is curious
that the authors espouse such outdated and discredited viewpoints as though they are still valid. To insinuate that the Slamdien removal which clearly fits under the category of a ”public purpose expropriation” and the Chatha dispossession are comparable indicates a complete lack of understanding of betterment policy, law and practice. Quite clearly, betterment was meant to make the homelands governable, prepare them for the mass influx from ”white” urban and rural areas and to sustain them as reservoirs of cheap labour. Significantly, whereas there were some whites that were removed under the Group Areas Act, it was only blacks who were removed under the various betterment proclamations, which were rooted in the separatist 1913 and 1936 Land Acts, and the Black Administration Act of 1927.
Furthermore, the authors’ dismal failure in understanding the objectives of the restitution indaba is cause for alarm. The indaba took a decision that betterment claims will be processed like all other claims and that each claim will have to be looked at based on its merits. What this then seeks to imply is that not all betterment cases will meet the criteria as set out by the Restitution Act and may be referred to the other programmes of land reform.
It needs to be pointed out as well that the restitution indaba of July 14 was as a result of a directive from the minister to formulate policy on betterment claims and to chart the way forward on how these claims were to be handled. The fact that the authors of the article failed to highlight this, goes to show their gross misrepresentation and dismal lack of understanding of the outcomes of the indaba. The indaba was represententative of the relevant stakeholders because the NGO community was represented through the National Land Committee affiliates and other interested NGOs and so were the lawyers for human rights represented through the Legal Resources Centre. It is therefore interesting for the authors to boldly say that the ”voice of the voiceless” was not present at this forum. Furthermore, it must be put on record that the authors of this article are effectively cutting out a sizeable portion of the voiceless by seeking to pit other claimants against betterment claimants.
To say that had the Chatha claim been settled during Derek Hanekom’s term of office the final decision on solving betterment claims through restitution would have been left to the Land Claims Court, is pure speculation and a narrow way of looking at the issues.
It is unfortunate that the authors feel the need to differentiate between Hanekom’s and current Minister of Agriculture and Land Affairs Thoko Didiza’s term of office in terms of attitudes towards an approach that favours a negotiated settlement of claims. It is regrettable that a national land reform programme, including restitution,which is a priority of the government, is reduced to personalities and selfish, short-sighted and sectarian interests, at the cost of the rights of the poor.
It is clear that the authors have not read the legal and other documentation of the case and are not familiar with its facts.
For example, the Chatha case was never rejected by the commission on legal or any other grounds. In fact, the community instituted a claim in the Land Claims Court, which was settled out of court at the request of the Department of Agriculture and Land Affairs because the department held that it was more appropriate for policy to be determined through research, discussion and a genuine search for truth, rather than in the hostile environment of a courtroom.
The view that the Chatha decision was unlawful clearly undermines the provisions of the Restitution Act, Section 42 (D), which allows the minister to enter into negotiations with claimants after s/he has satisfied him/herself that the claim meets the criteria according to the Act.
This administrative approach was introduced in order to speed up the process. The claims that met the criteria and were not disputed could be negotiated to settlement. One will see from this explanation that there was never a deviation from the rights-based approach.
From this article there is an emerging sense of jealousy exhibited by the authors to the fact that there is a group of poor people somewhere whose poverty is being alleviated through the available and proper programmes of the government.
It is surprising that there are people who would equate the resolving of land rights to budgetary constraints. To even imply that other claimants will suffer as a result of there being more claimants to share in the pie is not only short sighted but reactionary and unworthy of clear-thinking academics.
The Department of Agriculture and Land Affairs should not be undermined in its ability to plan ahead and moreover the minister of agriculture and land affairs should not be thought of as being unable to see ahead. It is unfortunate that the authors of this article have effectively issued a poorly researched article and passed it on as a well thought out discussion that is aimed at stimulating public debate.
The case of Chatha is not only effecting the promises made to the communities removed through betterment but is involving a developmental aspect, which is aimed at bettering the lives of the poor, in line with the provisions of the Reconstruction and Development Programme. If we are to follow the arguments in this article then we would effectively leave out in the cold about 300 communities that have about 300 households each and about 6.5 members each in the Eastern Cape alone. Indeed, a significantly large amount of people to be deprived of what is rightfully theirs.
Finally, it is also important to clarify that ”Land reform for the poorest” (October 13 to 19) did not argue that restitution is an alternative to redistribution.
Restitution deals with the legacy of dispossession, redistribution addresses the legacy of denial and the reality of inequitable land ownership in South Africa. They are not inter-changeable programmes. On the contrary, they have distinct objectives and procedures. A point that was made in that article was that the programmes should be implemented in an integrated way where possible.
The Land Claims Commission has been set up to champion land rights. We don’t know whether there is a suggestion in this article for the commission to abandon its mission in the interest of satisfying a few individuals who will supposedly benefit from there being a lesser number of claimants. We were not aware that we were in the business of down-sizing here.
Tozamile Gwanya is regional land claims commissioner in the Eastern Cape