There is a need for a serious reconceptualisation of the land restitution programme in South Africa. In its present form, this programme cannot work and ought to be done away with altogether.
The year 2024 is an important milestone in South Africa’s evolution as a constitutional democracy and the country’s capacity to fulfil some of its constitutional obligations to the dispossessed native.
This year marks 30 years of political freedom for the natives in this country, and most importantly for the purposes of this article, it also marks 30 years of land restitution as a component of land reform and one of the most important cogs of restorative justice conceptualised by those who negotiated for the end of apartheid and the ushering in of constitutional democracy.
This article seeks to provide a brief reflective assessment of land restitution over the past 30 years. I am writing the piece ensconced among the community of Lower Zingcuka in Keiskammahoek, Eastern Cape. This community was in the news on the day of national and provincial elections in May 2024, as they closed down the voting station in protest against the inexplicable delays in settling their land restitution claim.
The story of this community’s struggle for land restitution fully encapsulates the tragedy of land restitution as a mechanism for justice and restoration.
It is a story that depicts shocking levels of incompetence by the state, abhorrent lies and deceit by state officials in their interactions with land restitution claimants, lack of visionary leadership by the Land Claims Commission, zero political will to settle land claims by the political elites and finally, structural and conceptual design faults with the land restitution programme itself, rendering it an inadequate mechanism for the restoration of the humanity of the natives in South Africa.
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The case of Lower Zingcuka
The Lower Zingcuka community lodged their claim for the restitution of their rights to the land from which they were forcefully removed by the apartheid regime. This claim was lodged before the end of December 1998, the set deadline for the lodgment of land restitution claims.
The claim is yet to be settled. Almost all those who lodged this claim, and a good number of those who were direct victims of the forced removals, have since passed away.
Successive ministers responsible for land reform have indicated through several replies to parliamentary questions that the claim was ripe for settlement from as far back as 2014.
The most recent of these ministerial commitments to this community was given in Parliament in October by Minister Mzwanele Nyhontso, who committed that financial compensation to this community would be paid before the end of December 2024. This was of course a lie, as were other previous commitments made by Nyhontso’s predecessors.
We know from these replies to parliamentary questions that Thoko Didiza signed for the settlement of this community’s claim in November 2023, and committed to have compensation paid to this community by March 2024. This did not happen, principally because of incompetence and shocking levels of disrespect demonstrated by officials from the Regional Land Claims Commission towards the claimant community.
We also know that the Regional Land Claims Commission collected banking details from the community and made commitments to pay compensation by September 2024. This was also a lie, and the excuse this time around was that there were allegations of fraud made by a certain chief that there were claimants who were not supposed to be on the list of those who were to receive financial compensation for this claim.
The commission itself had conducted a thorough auditing of claimants before the settlement was signed by Didiza, and that audit was confirmed by community leaders themselves. Most shockingly, there is no recognised chief in the community, so if this latest claim by the department is true, it would mean that the department listened to and trusted imposters over their own auditing processes.
The story of Lower Zingcuka is a story of almost 6,000 other communities across the country whose claims are yet to be settled and have been sent from pillar to post by the department responsible for land reform.
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Foundations of restitution
The land restitution programme predates our Constitution, and was embedded in the Interim Constitution of 1993. As a result, the Restitution of Land Rights Act 22 of 1994 was one of the first pieces of legislation passed by the democratic Parliament.
It was assented to by President Mandela on 17 November 1994, and commenced on 2 December of the same year. This programme was later affirmed by the final Constitution in 1996. In terms of Section 25(7) of the Constitution, and Section 2(1) of the Restitution of Land Rights Act, a person is entitled to claim for the restitution of their land or rights to land if they are:
“A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided for by an Act of Parliament, either to restitution of that property or to equitable redress.”
Communities who meet the criteria set above were allowed to lodge their claims before the end of December 1998. Depending on whom you speak to in the department, the number of people who lodged their claims for the restitution of their land rights by December 1998 varies from 79,000 to just more than 82,000, giving an indication that in fact, the Commission for the Restitution of Land Rights doesn’t know the number of claims lodged.
It seems the officially recognised number of claims lodged by December 1998 now sits at 82,688. The commission claims to have settled most of these claims, barring just about 6,000 outstanding land claims.
In terms of the Constitution, settlement of land claims can take the form of restoring the land that people were dispossessed of, or granting equitable redress. Aside from restoring land, claims are viewed to have been settled if claimant communities are granted alternative land of equal value if restoration of their dispossessed land is impossible, or financial compensation.
Land or financial compensation
The state has spent about R50-billion for this programme, and half of it was for financial compensation to claimant communities, not the restoration of the land. I have heard various government officials claiming that it is communities who opt for financial compensation rather than the restoration of the land.
I doubt the veracity of this claim. What I have heard from many land activists and claimant communities I have interacted with is that in fact, the officials of the Commission coerce communities to opt for financial compensation, as this will save the state the time and effort of negotiating with current owners of the land. I know this to be true in at least two land claims on which I conducted research.
One of them is the Moletele Land Claim in Hoedspruit, Limpopo. This community, which had been removed during apartheid from their land in Hoedspruit to the outskirts of Arconhoek in Mpumalanga, resisted attempts to have them settle for money instead of land, and when government officials failed to coerce them, they then forced a strategic partnership agreement between the community and the immediate past owners of the land.
In terms of that agreement, the previous owners of the land retained almost all the powers to run the various farming establishments in Hoedspruit. The second was a land claim lodged by the communities of Dwesa and Cwebe in the Eastern Cape. In this case too, the initial attempts were to force these communities to accept financial compensation and not the land itself.
The commission has indicated that to settle the remaining land claims lodged by 1998, they would need about 30 years and a budget allocation of R172-billion.
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And that’s not even half of the problem. The Jacob Zuma administration enacted the Restitution of Land Rights Amendment Act in 2014, in terms of which it reopened the opportunity for persons and communities who missed lodging their claims by 1998.
This was to allow people to lodge their land claims between 2014 and 2019. This legislative amendment was later declared as unconstitutional, but the claims lodged up until that stage remain valid. The court directed that the commission must finalise all the 1998 land claims before processing claims lodged between 2014 and 2019. At the rate at which the commission settles claims, it may take more than 100 years for the new claims to be settled.
Design flaws
It is clear from above that land restitution has been a spectacular failure in this country, and while some of this failure is attributable to inept officials, it is in fact the very nature of how land restitution was designed that is the problem.
The first limitation that this design imposed was the 1913 cut-off date for lodging claims. It is a historical fact that most natives had already had their land dispossessed by 1913, and what the restitution programme sought to deal with basically were forced removals, not colonial land dispossession.
The second design fault is the fact that natives are required to parade their dispossession, before someone else who must then determine if the claims to dispossession are legitimate or not.
Thirdly, the state simply has no money to pay off those who now own the land in order to restore the land to its original owners. Hence, the call to expropriate land without compensation.
There are a myriad other problems relating to land restitution, such as the total inadequacy of the then Land Claims Court, now the Land Court, as a platform for mediating land-related disputes.
What this article seeks to demonstrate, however, is that there is a need for a serious reconceptualisation of the land restitution programme in this country, and that in its present form, this programme cannot work and ought to be done away with altogether.
Our land reform aspirations should be driven by a strong land redistribution agenda, aimed at transferring as much land as possible to the natives. Towards this end, the past 30 years of restitution have been a spectacular failure. DM