In awarding land to traditional councils, the state may inadvertently be diluting restitution, writes Carmel Rickard.
Johannesburg - YOU would imagine, wouldn’t you, that once the court battles over a land claim were sorted out and an award was made returning the land to the people who originally lived on it, their legal troubles would be over.
Surely this would start a constructive new era for the community concerned and they could build a new life for themselves and their families? It turns out, however, that this is a hopelessly romantic view.
In reality, many communities find a land claims award is just the start of a protracted new legal and moral battle. This time though, the fight is also against recalcitrant and less-than-efficient government officials as well as traditional leaders who want to establish and impose their own authority in the “new” area.
As you read this, the Constitutional Court will be hearing a dispute illustrating some of these problems and the perilous situation in which an unsophisticated community can easily find themselves through no fault of their own.
The case the judges will consider today involves the Bakgatla-Ba-Kgafela people who brought a successful land claim for the return of properties around the Pilanesberg National Park.
When they won their claim, the question arose of who would actually “own” the new land – in whose name would the land be registered? And it’s the various answers to that question that have led to the Constitutional Court challenge.
From the start, the government has realised that awards of land to communities would need to be formalised in terms of its ownership, so various options were made available.
Originally, communities could own land themselves through a democratically elected body – a communal property association – or a trust. Now it seems a decision has been made that ownership should vest in traditional councils, headed by the traditional leaders, and not in communal property associations, even though this is often the preference of the people involved.
One of the many obvious and troubling results is that traditional leaders may gain personal power and wealth at the expense of the community they should be serving. And the whole land claims exercise, intended to benefit the poorest of the poor, ensuring they can make a living off the land from which they were forced under apartheid, could backfire.
What happened in the case of the Bakgatla is that after they won their land claim, there was a dispute between the ordinary people and their ultra-wealthy traditional leader, Nyalala Pilane. They wanted a democratically based communal property association; he wanted a trust, a form of ownership easily dominated by powerful trustees.
To break the deadlock, the then-minister of rural development and land reform, Lulu Xingwana, suggested registering a provisional communal property association.
During its year-long term, the two sides could work out a lasting solution, she said.
Time passed, and everyone involved assumed the provisional association had become a permanent fixture as the people wanted. When the issue went to the Land Claims Court, it agreed that the association had become permanent: the people had voted for a permanent association as their preferred ownership model and if indeed it had not been properly registered, that was the fault of the department, said the court.
This decision was taken to the Supreme Court of Appeal which found, however, that if a permanent association did not exist, then the community no longer had ownership. The land was, in fact, owned by no one.
Now the Constitutional Court must consider this conundrum and whether the people, awarded the land as restitution for having been dispossessed under apartheid, have once again lost their land.
Aninka Claassens of UCT’s Centre for Law and Society said the issue affected many others since it was common for community property associations not to be properly registered. In her view, it’s a problem caused by official ineptitude combined with government policy that now favours transferring land to traditional councils instead of allowing democratically elected structures to own it themselves.
The constitution says there must be restitution for removed people, but through this case, you can see there’s a problem about who, in fact, should benefit from land awards: families originally uprooted – or broader traditional groups?
Through its preferred policy of giving land to traditional councils rather than to those smaller groups actually affected by apartheid land loss, the government is now diluting restitution available to the smaller group that was dispossessed – and the very essence of restitution is at stake.