The Land restitution process - 1

The restitution process is one of the three legs of the Department of Land Affairs' land reform programme. The Restitution of Land Rights Act (Act 22 of 1994) was one of the first laws passed by the democratic government in 1994. Following the promulgation of the Land Rights Act, the Commission on Restitution of Land Rights was established with the mandate to investigate and settle land claims lodged against the state by victims of racially motivated land dispossessions that took place under the previous government.

A perception exists that land reform in South Africa is failing because projects that have been handed over to beneficiaries are dying, according to claims by those who claim to be "experts" on land reform matters. The Commission contests the notion that projects are failing.

Over and above its mandate to investigate and settle land claims by victims of racially motivated land dispossessions in line with the Restitution Act, the Commission on Restitution of Land Rights has had to assume the role of providing development support to restitution beneficiaries, due to the vacuum that exists in this regard. As part of the process of carrying out the development support role, partnership agreements have been entered into regarding the provision of support to the beneficiaries. In some instances, the wrong partners have unfortunately been attracted to come on board for the wrong reasons, seeking to pursue their own interests. This has been the reason why some of the projects are going under, even when partners are in place who have been brought on board specifically to assist in ensuring that projects remain sustainable.

The Commission took over post-settlement support in order to fill the gap that was supposed to have been filled by institutions such as the Land Bank, which has the infrastructure to support emerging farmers, as opposed to the Commission whose business is to resolve land claims. Given this scenario, the Commission has been forced to spread its resources thinly across a terrain for which it was little prepared, and not ready to undertake.

The result is that there was a Commission which had to perform a dual function, and this has led to the Commission not being able to carry out its mandate and meet the deadline in line with the policy on land. Contrary to the popular notion that the Commission is under-capacitated and not capable of carrying out its mandate to resolve claims, the truth is that the Commission has been bogged down by the dual role that it has been forced to play, i.e. resolving claims and acting as a development agent.

In line with its business which is Right based, the Commission will not in the main be accountable for the attainment of the 30% target for land ownership by black people in 2014. This responsibility lies with the Department of Land Affairs. The Commission is essentially about restitution of land rights to victims of land dispossessions. To date, a total amount of about R10,6 billion has gone into the pockets of land owners as compensation for their land for the purpose of restoring the land to the claimants, as well as for financial compensation for those claimants who have opted for such. Approximately R5 billion was allocated as development grants for beneficiaries where land has been restored.

The Commission is currently setting in place a mechanism to address post- settlement support in a comprehensive fashion in line with the Settlement Support Implementation (SIS) strategy, which will be implemented as part of the Land and Agrarian Reform Programme (LARP). We are working hard to ensure that there is a complete support package for those whose needs should be accommodated in terms of the improvement of livelihoods, as well as to ensure the sustainability of projects by emerging commercial farmers.

Unreasonable criticism has been levelled against the restitution process. It is a fact that there are institutions, including the provincial agriculture departments, that must play a leading role in ensuring that land is utilised in line with the overall sector plans. Issues that need to be addressed include the provision of training, research and development, land use management, assistance with access to markets, etc. LARP is aimed at addressing such issues and to assist with the alignment of the government grant systems and procedures in order to offer comprehensive support to the emerging farmers. This is important, particularly now, given the current situation where we are faced with increasing food prices and so forth.

Whereas Europe is faced with the pressures of global competitiveness in respect of its products, we find ourselves in the unfortunate position of having to deal with the issue of global competitiveness as well as problems related to under-development, lack of skills, and many other historical legacies which have placed our people in the disadvantaged position in which they find themselves today. Simultaneously, it is expected to compete with those who have been previously advantaged, and being cruelly judged against Western standards.

It is a fact that the white commercial farmers have in certain instances not performed so well, despite having been immensely assisted and subsidised by the previous government. New entrants into the sector are being unfairly judged, if one takes all these issues into consideration. We are committed to addressing the issues of global competitiveness, which we see as a massive opportunity for emerging black farmers.

The factors affecting farmers are the same. The only difference is that those who are well established are better equipped to hedge against risk as compared to the emerging farmers. The challenges that are faced by the Zimbabwean government present an opportunity for emerging farmers in the Southern African countries. It is therefore imperative that as Southern African countries we must marshal our forces in dealing with the issues of agriculture. There is no way in which we can survive if we operate in silos and ignore continental realities.

There is a need to recognise the fact that inasmuch as agriculture is now an international issue, in the same manner, the issues of land reform are national and international matters. This is why we need the Policy on Land Ownership by Foreigners (PLOF).

The Commission is expected to finalise claims as expeditiously as possible in order to address the legacy of skewed land ownership, improve the quality of life of our people, generate employment opportunities, and address the issue of poverty. This shows that 14 years ago the government was correct, because today we are faced with the threat of starvation, not only nationally, but also internationally. This is proof of how critical land is, and its relation to the issue of cultural identity.

The issue of land is more relevant today than ever before, therefore more emphasis should be placed on the provision of land for all.

As at 30 June 2008, the Commission has settled a total of 74 808 claims out of the more than 79 000 claims that had been lodged by the cut-off date of 31 December 1998. A total of over 2 million hectares of land has been restored to 289 937 households, benefiting about 1,4 million individuals at a total cost of approximately R16 billion to the state.

A total of about 4 949 claims are still outstanding. These are mostly rural claims that involve vast tracts of land in the rural areas, affecting large numbers of community members. The outstanding claims are difficult to settle due to a number of challenges, which include exorbitant land prices; disputes regarding the validity of some of the c[aims; family and community disputes; boundary disputes involving traditional leaders; as well as cases that have been referred to the Land Claims Court.

In the Limpopo and Mpumalanga provinces about 71 and 829 claims are still outstanding, respectively. The high incidence of community disputes in the Limpopo regional office, particularly in the Sekhukhune District Municipality area, is negatively affecting the finalisation of claims in the province. The process is underway to fill the vacant positions for Regional Land Claims Commissioners for the Limpopo and Mpumalanga offices.

A meeting was held between the Commission and members of the Matsafeni community in the Mpumalanga Province, regarding the issue of the construction of a stadium on land belonging to the community. The outcome of the meeting was that there is a general understanding that the construction of the stadium in preparation for the 2010 Soccer World Cup event, is in the public interest.

Out of a total of about 5 700 hectares of land restored to the Matsafeni community, only 118 hectares will be alienated for the purpose of the development of the stadium, as well as a residential area by the Mbombela Municipality. It would have been difficult for the Municipality to invest such vast amounts of money to develop land that is privately owned. The investment only became possible once the community had ceded the land to the Municipality. About 70 ha of the 118 ha alienated to the Municipality for development purposes is for the construction of the stadium. About 48 ha of the alienated land will be used for housing development.

The land restored to the Matsafeni community was purchased for R62 million. The land on which the stadium is being constructed is now valued at R43 million, taking into account the potential of the land. The current value of the development of the stadium is about R900 million. The community will enter into a 50/50 partnership as a joint venture regarding the control and management of the stadium. This means that the community will receive a portion of the proceeds from the business operations taking place in the stadium precinct.

Republished with permission from SA Deeds Journal