The Land restitution process - 2

Regarding the issue of commonages, it is a known fact that restitution claims have been lodged against land that is currently privately owned, as well as land owned by organs of the State, including municipal commonages. Municipal commonage in this instance refers to land that is owned by a municipality, and that was usually acquired through state grants.

In November 2007, the Minister of Finance published the Draft Municipal Asset Transfer Regulations for public comment. These regulations seek to improve transparency and accountability, set out key principles and procedures, and deal with the process to be followed by a municipality when disposing of assets. Once the Minister of Finance has reviewed comments by the public, it is envisaged that the Regulations will be promulgated and guidance will be provided for municipalities who wish to dispose of land that is currently under claim for restitution purposes.

There are many pending claims for restitution on commonages; examples of the claims that have been settled include the Bizana commonage in the Eastern Cape and the Loeriesfontein commonage in the Northern Cape. Claims that are still outstanding in this regard include the Umtata commonage which is claimed, inter alia, by the KwaLindile and Zimbane communities.

The view in certain quarters regarding the settlement of claims such as Loeriesfontein, is that there is no need to restore the land rights to the claimants due to the fact that the land belongs to the Municipality, and the claimants have access to the land. Our position in dealing with such cases is that the restitution process is not about the Upgrading of Tenure, but is about the restoration of land rights to the claimant(s). This position is supported by the Land Claims Court ruling in the case of Hlaneki v the Regional Land Claims Commissioner; Limpopo, where judge Moloto ruled that it is wrong to assume that just because a claimant is residing on the land that is claimed or has access to the use of that land, a claim for restitution will not be valid, including the notion that a remedy for such a claimant is to be found in the Communal Land RightsAct.

We must point out that in many instances where municipal land, which in most instances is prime land with development potential, is made available to property developers for development, a potential exists for the land reform beneficiaries not to get a fair deal. To protect the beneficiaries' rights, the Minister has determined that the State be given the right to first refusal over these properties. In this way, should the beneficiaries wish to dispose of their land, the land gets sold back to the State and can therefore be allocated to other beneficiaries of the land reform programme, or for the purposes of other government programmes.

The Commission continues to engage all the stakeholders in order to fast-track the resolution of the remaining claims. We have entered into agreements with some of our stakeholders regarding the settlement of the outstanding claims, including the provision of settlement support for the land reform beneficiaries. The agreement signed with the Department of Environmental Affairs and Tourism (DEAT) focuses on guidelines for the settlement of claims on conservational land. As government our position is that Protected Areas are a national asset that must be preserved and managed as conservation areas in perpetuity. We have therefore come up with a model that ensures that in instances where there is a restitution claim on conservational land, the transfer of ownership of the affected land occurs in title only, without physical occupation by the beneficiaries.

In line with the agreement, the settlement of restitution claims on conservational land must uphold the principles of economic viability and should result in tangible and realistic beneficiation for the affected communities. We strive to make sure that the settlement of claims on conservational land is in line with the applicable legislation, and further that access rights for the beneficiaries are clearly defined in the settlement agreement for such claims. Provision is also made for co-management of the land in accordance with the relevant legislation.

The Commission has also concluded agreements with Mondi and Sappi regarding the settlement of claims on land that is under forestry. The agreement focuses on the available options for the restitution beneficiaries when settling such claims. It also deals with issues regarding how the affected community will benefit from the continued use of the land by the forestry companies, with specific focus on equity shareholding, the transfer of skills and capacity building to ensure that the community's benefits arising from the settlement of the claim are indeed sustainable.

In line with our focus on the provision of improved settlement to the beneficiaries of the land reform programme, we have entered into an agreement with the Development Bank of South Africa (DBSA) which focuses on offering support to the new land owners.

A Memorandum of Agreement has been signed with one of the large mining companies operating in the country, Anglo American South Africa Limited, regarding the settlement of restitution claims on land owned by the Anglo Group. This follows a series of extensive consultations with Anglo focusing, among others, on issues relating to the Mining Charter, which must be taken into consideration when settling claims on land where there are mining activities taking place. These include issues about the effect of the mining activity on the immediate environment, as well as focus on the mining company's social development and environmental rehabilitation plans.

In line with the agreement entered into between the Commission and the Agricultural Sector Training Authority (AgricSETA), land reform beneficiaries will receive training on the sustainable management of the restored land, which will help to increase food production and thereby make a significant contribution to the economy of the country. This is of importance, particularly now, at a time where we are faced with escalating costs of food and oil.

The Commission has committed itself to settle a total of about 2585 claims by the end of the 2008 financial year, which will bring the total number of claims settled by the Commission to 98%. We have estimated that about 2% of the outstanding claims will be difficult to settle due to the complex nature of the claims.

A memorandum has been sent to Cabinet explaining the current situation, including the challenges faced by the Commission in finalising the outstanding claims. Cabinet has taken note of the memorandum. The Commission remains committed to settle all the outstanding claims by 2011, depending on the availability of funds. About R18 billion is needed for this purpose. It is a recognised fact that it is not possible for the Treasury to allocate all the funding that is needed in one fiscal year. Given the current recession, the state has lesser resources at its disposal to deliver services to the people.

The issue of development requires a medium to long term approach. In our case the easiest form of development for the beneficiaries is housing development. However, a longer period of time is needed for people to gain benefit from other forms of land use such as agricultural development. In particular, the issue of skills development needs a long term perspective.

Beneficiaries need time to be able to gain the necessary skills to manage the factors of production. Development is linked to the issue of sustainability. It was a mistake to impose a deadline that is not informed by any concrete understanding of the reality concerning issues around land reform, such as legislation issues, capacity within government, etc.

The deadline was put in place with the assumption that certain things were in place, such as the institutional arrangement including policies, etc. The first five years were spent on developing policies that were not in place. The reality is that these were in fact developed as we went along. This has created certain problems for us in meeting the deadline, as indicated earlier. The deadline was fixed without a clear understanding of what it would take to settle all the outstanding claims, as well as an understanding of the complex nature of some of the claims.

There was no anticipation of the resistance that we currently experience from some of the land owners, nor did we anticipate the disputes involving traditional leaders, etc. All these pose real constraints for us, and we are waiting with anxiety to see what will happen. The reality is that we will need at least five years to settle the approximately 5000 claims that are still outstanding.

Republished with permission from SA Deeds Journal