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Rural Development Minister Gugile Nkwinti will meet representatives of Khoisan communities in the Northern Cape next month over their land restitution claims which pre-date the 1913 Natives Land Act, which is the cutoff for land claims.
This is in line with the promises made in the ANC’s January 8 statement and President Jacob Zuma’s State of the Nation address last week.
However, a constitutional pickle is in the making: Section 25(7) states June 19, 1913 – when the Natives Land Act came into force – is the date after which anyone deprived of property because of racially discriminatory laws or practices can claim restitution. An argument could be made that for the government to be able to consider claims based on dispossession before this date, the constitution will have to be amended.
Nkwinti told Independent Newspapers that a legal team was scrutinising this and other constitutional matters arising from, among others, the abolition of the “willing seller, willing seller” approach in favour of the “just and equitable” principle. A report-back from these lawyers was expected by next weekend, the minister added.
Meanwhile, next month’s meeting in Kimberley is expected to see a host of tricky issues surface, including how one determines just who are descendants of the Khoi and San. This thorny issue has been simmering for years, dating back to the early 2000s when then-provincial and local government minister Sydney Mufamadi moved to introduce traditional leaders governance legislation.
Despite meetings between the government and representatives of the Khoisan, the issues of lineage and ancestry were never successfully settled. Today the Western Cape is the only province without a house of traditional leaders.
The cut-off date for lodging land claims was December 1998, but reopening the process would be relatively easy, a straightforward legislative amendment. The land claims process is expected to re-open on June 19, neatly marking the centenary of the coming into force of the Natives Land Act, which dispossessed millions of black South Africans of land. This comes on the back of a heavy, and potentially explosive, legislative programme which would see changes in the land tenure system – including a ban on foreign ownership of land, guaranteed security of tenure in communal areas under traditional leaders and limitations to agricultural land ownership.
“Many countries have restrictions on foreign land ownership. The government is not out of line,” said Ben Cousins, the National Research Foundation chairman in Poverty, Land and Agrarian Studies at the University of the Western Cape.
“By evoking national citizenship, it evokes national sovereignty with those political overtones.”
However, he added, given that it was a massive task to implement the ban, questions should be asked about whether this was justifiable, since there were pressing land reform needs.
It would be a huge task, because deed offices did not register owners in terms of nationality or race, and tracing the owners of companies which owned land would be a major undertaking, Nkwinti said.
His department was now liaising with the departments of justice, trade and industry and home affairs to establish the nationality and race of owners for an audit of both private and state land.
It had already emerged that the state owned 22 percent of land. Once the cabinet gave the audits of state and private land the nod, it would be made public, Nkwinti said.
Meanwhile, ago-economists were looking at what would constitute a viable farm. He said that hectares in excess of this size could be purchased by the state for land reform.
This approach, which is termed “freehold with limitations”, formed part of the government’s efforts to break what it regarded as the monopolisation of commercial agriculture and was motivated by not only economic reasons, but also social responsibility, said Nkwinti.
Today there are about 37 000 white commercial farmers who produce 95 percent of South Africa’s food; 10 years ago there were 77 000 such farmers, lending weight to the argument that land reform has concentrated ownership in wealthy, white hands.
During the State of the Nation address, Cousins said while making determinations on the size of viable farms would be relatively simple in a unified agricultural environment, like West Bengal, it was a “tough job” in South Africa, where climate, crop and circumstances varied greatly. However, he added, small- scale commercial farmers could be highly productive, particularly if access to markets was opened up.
“We are drifting. I don’t think we have sufficient clarity – who, what, where and how,” Cousins commented on land reform.
And while new institutions like the land surveyor and land management agency would be established to oversee the tenure and land reforms, he said that questions remained over the high turnover of staff at the rural development and agriculture departments.