Restitution bill dead on arrival

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Members of the Kwa-Dukathole community, outside the Land Claims Court in Randburg. Picture: Matthews Baloyi

With land reform already in disarray, the government will not be able to settle new claims, writes Tara Weinberg.

The Restitution of Land Rights Amendment Bill is awaiting President Jacob Zuma’s signature. But it is dead in the water, signed or not. The government has neither the money nor the human capacity to settle outstanding restitution claims, let alone the new ones the bill will elicit.

People who made claims before 1998, or who still lack security of land tenure are likely to suffer most when restitution reopens. They pointed this out in the public hearings on the bill held since last year.

The response of government officials has been to bury their heads in the sand.

The Department of Rural Development and Land Reform estimates it will cost between R129 billion and R179bn over the next 15 years to settle new restitution claims – a massive increase on the R22bn that has been spent on the restitution programme since 1994.

It would require a major reprioritisation of the national budget. Regular assurances by senior officials and by Land Affairs Minister Gugile Nkwinti that this reprioritisation has happened are shown to be unfounded in the budget released by the Treasury.

The amount allocated to restitution over the next three years is only R8.7bn. Far from reflecting an increase, this is a decrease in real terms from R3.4bn in 2013/14 to R2.7bn in 2014/15. The amount will not be enough to settle existing claims – of which there are around 30 000 – let alone the estimated 379 000 new claims that will be elicited by extending the deadline.

The bill is thus likely to generate expectations among claimants that cannot be met. If the land restitution budget was to increase at the level of inflation, it would take 121 years to settle all the claims.

The budget will now be spread more thinly over even more claims. There is nothing in the bill that compels the Commission on Restitution of Land Rights to prioritise pre-1998 claims. As a result, some of the most vocal opposition to the bill has come from among the 30 000 rural communities still waiting for their claims to be settled or for promised compensation to be implemented.

At hearings co-ordinated by Parliament around the country, a common complaint from restitution beneficiaries was that the government had told them there was not enough money to restore land to them, or that financial compensation and support was limited by budgetary constraints. Attendees requested clarity on the budget available for re-opening restitution in each province.

Participants at the hearings also raised many concerns about the government’s capacity to deliver to all those who lodge claims. Complaints centred on officials’ incompetence, corruption and lack of accountability, as well as lack of support for claimant groups after a claim is settled.

In Waterberg in Limpopo some participants at the hearing said officials had told them their claims had been lost. In Mnambithi in KwaZulu-Natal, people spoke of bribing officials to get their claims processed faster. People at the Botshabelo hearing in Free State said elderly people in their communities had been deceived into thinking they had to pay officials money prior to submitting a claim.

In Middelburg, Mpumalanga, old men wept as they spoke about waiting over a decade for the finalisation of their claims. Others told of the high costs and deep pain they had suffered because of the failures of the restitution process.

Farmers in Middelburg explained that delays in the resolution of their restitution claims had compelled them to sell their livestock – their only source of income. Some had to pay high rents to farm owners so that their livestock could graze. Some of this rented land is the very same land that is subject to restitution claims.

A woman at a public hearing in the Eastern Cape said government officials had told her that if she put in a land claim, she would receive enough land to make her “faint”. “I want to faint!” she exclaimed at the hearing. “Will I ever faint?”

The department’s response to queries about the budget and chronic problems with the restitution programme has been to dismiss them as trivialities. According to the Limpopo legislature’s voting mandate to its National Council of Provinces delegation on the bill, the department instructed the provincial legislatures to make sure their public hearings did not degenerate into complaint sessions about “challenges facing the department or the commission regarding previous land claims”.

In response to such concerns the department told the NCOP that the budget was irrelevant to reopening restitution. It said it should not be required to show it had adequate funds to settle claims before restitution is reopened. It argued that such a requirement would “limit the right to restitution” as set out in the constitution.

But the failure to allocate a sufficient budget to settle land claims limits the right to restitution. It could also violate the right to security of tenure by leaving claimants unsure of the status of their land.

As restitution claimants at the public hearings expressed, complaints about money and capacity to make restitution a reality are not trivialities. They are matters of life and death for millions of people in South Africa. This is what is at stake when the bill is passed.

fact box

After the advent of democratic rule in 1994, the newly elected ANC-led government was faced with the task of dealing with a legacy of centuries of land dispossession. A “willing-buyer, willing-seller” policy was adopted as the preferred method of land reform.

While land dispossession had been achieved under white minority rule through violence and racially discriminative legislation, the new government had to strike a balance between nation building and addressing the land issue. New legislative frameworks governing land reform through the lodging of land claims, expropriation, redistribution and restitution were established.

The government intended to redistribute 30 percent of land to black people by 2014. However, the process has been slow due the inflating of prices by farmers on identified land, and the falling into disuse of expropriated land given to black farmers.

A new approach to land reform has been proposed with admission that the “willing-buyer, willing-seller” model is not workable. – www.sahistory.org.za

* Tara Weinberg is a researcher with the Rural Women’s Action Research Programme at the Centre for Law and Society, UCT.

** The views expressed here are not necessarily those of Independent Newspapers.

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