The need for land expropriation must be understood as being foremost about social justice and a constitutional imperative. It is about anticipating the reversal of a deliberate, systematic and legislated eradication of a nation’s sense of dignity, belonging, culture and history. It is a wound that has festered long enough.
The irony is that current policy (with or without the proposed amendment of section 25 of the Constitution) has not sought as its objective a wholesale project that would enable widespread redress aimed at benefiting the black majority as owners of land.
Instead, land policy is premised on only three pillars, which are often incorrectly used interchangeably when they mean different things with distinct objectives and focuses. They are restitution, land redistribution and tenure reform.
Restitution is governed by the Restitution of Land Rights Act of 1994, as amended. This piece of legislation is useful only for those families, individuals or communities who are able to show that they had inhabited or occupied specific land that they were dispossessed of after June 19 1913 as a result of racially based laws, for which they were not paid compensation.
The initial deadline for lodging land claims was December 31 1998. The 2014 Restitution of Land Rights Amendment Act, however, extended the deadline for submitting claims to June 29 2019. Although claimants may still lodge restitution claims, the Constitutional Court ruled in its “land access” judgment that there had not been adequate public consultation before the amendment Act was promulgated. The effect is that whereas new land claims may still be lodged, they may not be investigated until the Commission on Restitution of Land Rights completes and settles all claims lodged prior to December 31 1998.
The process of lodging a land claim may sound easy enough but there are inherent systemic hurdles that make it difficult for claimants to achieve restitution. Here are some of the reasons:
- Most families have to rely on oral history and the existence of elders with knowledge of the description, location and extent of the land that their ancestors previously occupied. The inherent difficulty is the burden of proof associated with proving these claims, although it is the Land Claims Commission — a statutory body, founded in terms of the Restitution Act — that must investigate, research and settle claims and make recommendations to the minister of rural settlements and land reform.
- The commission’s work is critical in helping to determine whether or not a claim is ultimately recommended as being valid. But the department’s budget allocation has been on a steady decline, enjoying a woeful less than 1% of the national budget. The budget allocation for the commission under the Jacob Zuma administration dwindled from about R1.85‑billion to R930‑million in the 2016-2017 financial year.
- Even in instances where a landowner may recognise the validity of a claim, he or she may challenge the amount of compensation offered by the state to purchase the land so that it can be restored to the claimants. In the case of a landowner who is unwilling to sell his or her property, protracted, lengthy and time-consuming litigation is inevitable.
- Land claimants may opt for the actual land to be restored or for financial compensation. With most land claims being concentrated in rural areas, and with rapid urban migration and demand for jobs in the cities, it is hardly surprising that financial compensation would be a viable option for most claimants.
- Only the Land Claims Court is lawfully able to sanction the awarding of land, with the approval of the minister and the commission. This typically leads to laborious, time-consuming, expensive and extremely lengthy litigation. Limited access to legal representation is a factor that has automatically kept poorer communities from claiming and being awarded land.
Land redistribution as a second pillar of land policy has, as its bias, a strong emphasis on agricultural land.
In 1998, the Thabo Mbeki administration set a target of 30% of land being transferred to emerging black farmers. Though targets are necessary, it is even more important to design programmes and have specialised agricultural universities that are specifically geared towards stimulating interest in transforming the agricultural economy and encouraging commercial farming from the grassroots level.
But the redistribution policy, much like restitution, does not have as its end goal ensuring a sizeable percentage of black participation in the ownership of food production. Haphazard and inconsistent implementation of different policies over the past two decades has not yielded the desired results.
The pervasive nature of corruption and its effects in almost all spheres of government and the private sector have similarly marred any real hopes of ensuring that large numbers of emerging farmers enter into and thrive in the agricultural and food production industries.
Although the current policy and legislation on tenure reform seek to protect those working and living on farms from unwarranted and unlawful evictions and to help labour tenants to acquire land rights, we have over the years witnessed many cases of unlawful evictions.
Perhaps most tragic in the sphere of tenure reform has been the state’s failure to create mechanisms and a process within which labour tenants can lodge claims.
For instance, it took 20 years and the applicants in the Mwelase case to challenge the state to appoint a special master to receive and process labour tenants’ claims over land, as envisaged in the Land Reform (Labour Tenants) Act of 1996. This Act was enacted according to section 25(6) of the Constitution. Curiously, when the case was heard in 2016, 20 years after the promulgation of the Act, the state had still failed to take any steps to elevate the rights of millions of labour tenants.
Where to from here?
The success or failure of achieving land reform is not entirely dependent on whether or not compensation is paid for the expropriation of land by the state for land reform purposes.
Even if the Constitution were to be amended to make it possible for zero compensation to be paid for the expropriation of land, the institutional, political, bureaucratic and practical challenges remain firmly with us.
We have seen that even in instances where the state has paid landowners compensation, many of them remain on the purchased land and continue with business operations because of the cumbersome and bureaucratic nature of the institutions’ workings.
Equally, in the absence of legislation making it compulsory for the state to provide meaningful post-settlement support, land reform goals will continue to elude us.
Bulelwa Mabasa is a director and land claims specialist at Werksmans Attorneys