Durban - Advocate Tembeka Ngcukaitobi on Thursday delivered the Dr Phyllis Naidoo Memorial Lecture and highlighted the failures of South Africa’s land reform programme and how despite being pro poor it had mainly benefited the rich, and why it should still be pursued.
Presenting the memorial lecture at the University of KwaZulu-Natal, Ngcukaitobi said that as of 2018 the government had spent in the region of R60 billion on land restitution with more than 60% having been paid to landowners.
“We can also see that the land reform programme has largely benefited white landowners. Why then, do we have a pro-poor legal and policy framework, but it benefits the rich? In 2019 the Constitutional Court decided a case about the slow pace in resolving labour tenant claims, also reflecting broadly on land reform.
“The court lambasted the state for placing in jeopardy the “constitutional security and future” of South Africa. Little had been achieved in the first 25 years of freedom to undo the legacies of centuries of conquest, the court noted,” Ngcukaitobi said.
He said that the court had found that the reason was the state’s “failure to practically manage and expedite land reform measures in accordance with constitutional and statutory promises”.
“The consequence was to ‘profoundly exacerbate the intensity and bitterness of the national debate about land reform.’ The Constitution, the courts and the laws were not to blame. At fault was the ‘institutional incapacity of the department to do what the statute and the Constitution require of it’,” Ngcukaitobi said.
He also cited former president Kgalema Motlanthe’s 2017 High Level Panel on the Assessment of Key Legislation and Acceleration of Fundamental Change which, when touching on land, painted a devastating critique of the state’s performance in the settlement of restitution claims.
It found that despite the cut-off date for land claims being 1998, to date, there were more than 7 000 unsettled claims and over 19 000 yet to be finalised “old order” claims.
“The Panel exposed the extremely slow rate of restitution claims, concluding that it will take up to 35 years to finalise all old order claims, 143 years to settle new order claims and, if land claims are reopened, up to 709 years to complete Land Restitution.
“Institutional capacity is evidenced in lack of skills and capacity, overlapping and conflicting claims, and inconsistent monetary awards. A possible explanation for these shortcomings is the lack of sufficient resources,” Ngcukaitobi said.
He added that, however, the budget for land restitution had been consistently underspent and that this evidences how severe problems lie in implementation and the capacity of the system itself.
“There is yet another feature of the land story. Chronic, systemic and endemic corruption. Claimants are corrupt. Landowners are corrupt. State officials are corrupt.
“In 2018, the Special Investigative Unit, one of our corruption busting institutions, presented its findings and recommendations on fraud, corruption and maladministration in the land reform programme,” Ngcukaitobi said.
He said that the SIU’s basic finding was that the entire system of land reform was rotten from the bottom up.
Ngcukaitobi said that of the 148 individual land reform projects examined by the SIU between 2011 and 2017, it found that at least one out of every four claims was fraudulent while there were also bogus beneficiaries, or “rent a crowd”.
However, despite the challenges faced by the land restitution programme, Ngcukaitobi said that the restitution programme spoke to the injustice of forced removals of people from their homes in which they had lived for generations to go to strange places.
“It provides a succour for injustice. Not any act of injustice. A specific act of injustice. A forced removal of a person by a particular person at a particular time. It makes visible, tangible, human concepts and notions of struggle.
“Restitution gives dispossession a human face. A hundred years after the initial act of forced removals, families still celebrate the return to the land. In this sense, restitution is more than the material benefits from the productive use of the land,” Ngcukaitobi said.
He added that it was also about memory, the public affirmation that black people’s pain matters, and restoration of lost identities.
“This is why restitution of land shall remain the most contentious and the most important of the land reform programmes. For this reason, even as we consider a needs based system of entitlement to land, abandoning the restitution programme is not an answer,” Ngcukaitobi said.
SUNDAY TRIBUNE