Guest blog by Marinda Weideman
Policies pertaining to land reform tend to be ideologically, rather than empirically, motivated [1]. Such policies may have short-term benefits for those in power, such as increasing the number of votes received in an election, but it has dire longer-term socio-economic consequences for the intended beneficiaries and a country as a whole.
Acting from a correct moral imperative, the transition and then ANC-led governments embarked on a land restitution programme in the early 1990s.
The objectives of the Restitution programme are reflected in the Restitution of Land Rights Act 22 of 1994, which together with the Constitution formed the basis of the Restitution Programme.
The policy and related legislation was developed in large part as a result of interactions between various stakeholders and not by engaging with empirical evidence.
Apart from the ANC, there were primarily two groups influencing the development of restitution policy – i.e. a technical, legal, court-based procedure. These were World Bank representatives who argued for a “separate judicial process”, similar to the court procedure used in Chile.[2] The use of the Chilean example seems peculiar, since, land reform programmes in Chile were slow and ineffective, [3] partly because of complex litigation procedures.[4]
Secondly, local NGO activists with a legal backgrounds and history of involvement in resisting forced removals.[5] The legalistic nature of the restitution programme is partly a reflection of this.
The Restitution of Land Rights Act entitles communities and individuals to restitution if such a person (or direct descendant of such a person) or community was dispossessed of such rights as a result of discriminatory legislation[6] after 19 June 1913.[7]
The cut-off date for the submission of land claims was April 1998, extended to December 31, 1998.
As early as 1998, it become clear that the programme was failing on two counts; the slow pace of restitution, and the inability of beneficiaries to utilise restored land productively or to enhance their livelihoods.
By December 1998, the number of claims lodged stood at 40 000, but only 27 claims had been settled.[8] By June 2003, 72 975 had been lodged, and 36 488 claims had been settled.[9] It was mostly the smaller, urban claims, or uncontested claims where claimants opted for financial compensation that were settled. On 31 March 2014, 8 471 land claims were still not settled[10].
At this time, not based on thorough empirical evidence, the failures of the Restitution Programme were explained as a resulting from several key factors;
- The constitutional requirement to pay compensation and the limited ability of the state to expropriate without compensation, which arguably slowed down the process and increased the costs of land restitution. Research has since shown that neither supply nor pricing are key constraints in land acquisition by the state.[11]
- The exclusion of large groups from the programme.[12]
- The legalistic design of the programme that contributed to the development of a slow and inept bureaucracy and the slow settlement process.
- Lack of community cohesion, low accountability of community leadership structures, and the inefficiencies of collective production. This (in conjunction with low or no levels of educational attainment) continues to be one of the key barriers to sustainable development.
- The complexity of claims (i.e. there are overlapping/ competing claims, poor documentary evidence of ownership, power struggles within communities, claims for incredibly large tracts of land, clashes between so-called “culture” and rights e.g. women’s rights).
- A lack of research capacity within the Commission tasked to research and validate claims. [13]
- The 1913 cut-off date. This was often cited as a limitation of the Restitution Programme because the majority of South Africans were disposed prior to the 1913 Land Act, which legalized the protracted process of dispossession. Evidence, however, suggests that the utilisation of longer-term approaches such as restoring aboriginal title (used in Australia, Canada, New Zealand. Mexico, Chile, and certain West African countries) have been very ineffective.[14] In SA the matter is further complicated by communal land ownership structures mediated by traditional authorities, the increase and dispersion of descendants, and the fact that large parts of South Africa is subject to overlapping and competing claims.[15]
As implementation of the restitution programme progressed, research increasingly demonstrated that the programme was failing. Settlement was slow and beneficiaries remained impoverished. Various reasons were given to explain the failure. Primary among these was that the programme had failed due to a lack of post-settlement support (i.e. financial support and investment in skills-development).
In response, the Department of Rural Development and Land Reform embarked on numerous and successive initiatives to address these identified challenges, allocating more and more resources to post-settlement support and skills development.
Nevertheless, ongoing research by many researchers and institutions continued to highlight the failure of the programme. Results from a study conducted by the Community Agency for Social Enquiry of over 190 settled restitution cases found only three could be considered “partially successful”.[16]
An interesting example is that of the Riemvasmaak community, whose land was restored in 1994, and which has received extensive and sustained post-settlement support (including over R350 million in financial support, more than 100 hectares of land, established agricultural and tourism enterprises, long-term and varied skills development support, partnerships and mentorships, functional and diverse income generating enterprises, and extensive infrastructure), but which remains impoverished.[17]
In 2013, the DRLDR commissioned a national study on restitution. Approximately 30 subject experts were contracted to conduct research at provincial level. The experts reported that they had found no “best cases” of restitution and argued that the DRDLR did not have the capacity or skills required to implement the programme. Their evidence-informed recommendations were against the re-opening of the land restitution process. The large team of researchers argued instead for evidence informed interventions directed at general economic growth and sustainable socio-economic development[18].
Nevertheless, the land restitution process was re-opened in July 2014 (shortly before the national elections), and the deadline for lodging claims was extended by five years. The 1913 cut-off date has also been waived in the absence of any strategy to deal with the overlapping claims to even larger tracts of land that can now be lodged.[19]
[1] Weideman M, Land Reform, Equity and Growth in South Africa: A comparative analysis, PHD thesis, University of the Witwatersrand, 2004
[2] Binswanger H & Deininger K, “South African Land Policy: the legacy of history and current options”, in Agricultural Reform in South Africa, Van Zyl J, Kirsten J & Binswanger H (Eds.), Oxford University Press, Cape Town, 1996
[3] Weideman M, Land Reform, Equity and Growth in South Africa: A comparative analysis, PHD thesis, University of the Witwatersrand, 2004
[4] See Brown M.R, “Radical Reform in Chile 1964-1973″ & Jarvis L.S, “The unravelling of Chile’s Agrarian Reform 1973 – 1986” & Thome J.R, “Law, Conflict and Change in Chile 1964 – 1973″ in Searching for Agrarian Reform in Latin America, Thiesenhusen W.C (Ed.), Unwin Hyman, London, 1989
[5] Weideman M, Interviews with Geoff Budlender, Dave Husy & Andile Mngxitama, 2002
[6] Dawood Z, “Is Restitution in need of a remedy”, Report Paper for the NLC, April 1998
[7] Department of Land Affairs, White Paper on South African Land Policy, Pretoria, April 1997
[8] Business Day, “People rush to lodge claims before cut-off”, December 30, 1998
[9] The Star, “Reversing 90 years of racial land dispossession”, June 19, 2003
[10] http://www.pmg.org.za/report/20140820-re-opening-lodgement-land-claims-briefing-commission-restitution-and-land-rights
[11] Weideman M, Land Reform, Equity and Growth in South Africa: A comparative analysis, PHD thesis, University of the Witwatersrand, 2004. Weideman M, Delany A, & Richards R, The Developmental Outcomes of Land Restitution in the Northern Cape and Free State Provinces: Research Report, on behalf of the Human Sciences Research Council, for the Department of Rural Development and Land Reform. August 2013, and Richards R, Delany A & Weideman M, Diagnostic Assessment of Land Restitution in the Northern Cape and Free State: Research Report, on behalf of the Human Sciences Research Council, for the Department of Rural Development and Land Reform, August 2013
[12] See Weideman M, Land Reform, Equity and Growth: A comparative analysis, PHD Thesis, University of the Witwatersrand, 2004
[13] Weideman M, Delany A, & Richards R, The Developmental Outcomes of Land Restitution in the Northern Cape and Free State Provinces: Research Report, on behalf of the Human Sciences Research Council, for the Department of Rural Development and Land Reform. August 2013, and Richards R, Delany A & Weideman M, Diagnostic Assessment of Land Restitution in the Northern Cape and Free State: Research Report, on behalf of the Human Sciences Research Council, for the Department of Rural Development and Land Reform, August 2013
[14] Weideman M, Land Reform, Equity and Growth in South Africa: A comparative analysis, PHD thesis, University of the Witwatersrand, 2004
[15] 1997 White Paper on Land Reform, p. 55 & 56
[16] Diako B, Weideman M, Wildschutt A, Nkambule V & Sias M, Assessment of the Status Quo of 190 Settled Land Restitution Claims with a Developmental Component Nationally, Researched for the M&E Directorate, Department of Land Affairs, February 2006
[17] Weideman M, Delany A, & Richards R, The Developmental Outcomes of Land Restitution in the Northern Cape and Free State Provinces: Research Report, on behalf of the Human Sciences Research Council, for the Department of Rural Development and Land Reform. August 2013, and Richards R, Delany A & Weideman M, Diagnostic Assessment of Land Restitution in the Northern Cape and Free State: Research Report, on behalf of the Human Sciences Research Council, for the Department of Rural Development and Land Reform, August 2013
[18] ibid
[19] South Africa re-opens land claims process, South Africa.info, 1 July 2014, http://www.southafrica.info/services/rights/land-010714.htm#.VKAQ0hDACs
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