The Restitution of Land Rights Act 22 of 1994 was the first law that the ANC-led Government of National Unity passed. The legislation affirmed the right to restitution and defined the process by which those who were deemed eligible could lodge their claims. Eligibility for restitution is based on proof that property rights existed and were lost through racial discriminatory laws and practices from June 1913.
What is restitution?
Restitution is a programme that gives those that were dispossessed of land or their descendants an enforceable right to have their access to land or property that was unfairly taken, restored or compensated. The Restitution of Land Rights Act establishes two institutions to drive the process of restitution:
The timeframe for restitution was 18-years from 1995.
• Initially three years were allowed for claims to be lodged; with the final deadline being the 31st December 1998.
• Five years were envisaged for the settlement of claims.
• A further ten years for the implementation of all court orders and settlement agreements.
How far have we come with restitution?
1. Claims lodged:
A total of 63,455 claims forms were reported as lodged with the CRLR by 31 December 1998.
2. Claims settled:
By the end of 2006, the CRLR reported a total of 73,433 claims settled, involving nearly a quarter of a million households. In 2007, Minister Lulu Xingwana announced that 74,417 claims had been settled and that only 5,279 rural claims remained, implying that all urban claims were settled.
However, the shifting definitions used by the CRLR make it difficult to establish with any certainty what has been achieved and what is yet to be done. In some provinces the number of settled claims has overtaken the total for claims originally reported as lodged, for instance in the Eastern Cape where settled claims now exceed by 70% the number of claims originally submitted.
The major limitations on eligibility were the 1913 cut-off date and the 1998 deadline for claims to be lodged. Both dates have been energetically contested.
The reason given by previous Ministers of Land Affairs for not accepting claims predating 1913 was that this would open the way for claims on land already occupied by blacks, rather than focusing on white-owned land.
Because colonial interruption and dispossession started in from Cape Town, heading eastwards and northward during the 18th and 19th centuries, most black South Africans had lost independent access to land by 1913. Only in the far interior did black communities retain independent access to large tracts of ancestral land under communal tenure. That is why there are very few rural claims in the Western Cape and why large portions of Limpopo and Mpumalanga – estimated between 50 and 70% of the farmland – are subject to claims.
Many people also claim not to have known of the December 1998 deadline. There is also the fact that people removed from land in terms of betterment policy were prevented from lodging claims for restitution because the policy as stipulated in the 1996 White Paper which stated that “claims of those dispossessed under betterment policies, which involved removal and loss of land rights for millions of inhabitants of the former Bantustans, should be addressed through tenure security programmes, land administration reform and land redistribution support programmes”
The Restitution of Land Rights Amendment Bill of 2013
On 23 May 2013 the Restitution of Land Rights Amendment Bill was published for public comment. The Bill provides for:
• the reopening of lodgement of land claims for a period of five years
• the extension of the date for lodging of restitution from 31 December 1998 to 18 June 2018
• the simplification of procedures to appoint judges of the Land Claims Court
• regulation of appointment, tenure and conditions of service for Land Claims Court judges.
The public is invited to submit written comments on the Bill, no later than 22 June 2013.
The publication of the Bill follows President Jacob Zuma’s announcement when he opened parliament on 14 February 2013 and when he said;
(T)here are proposed amendments to the Restitution of Land Rights Act, 1994 in order to provide for the re-opening of the lodgement of restitution claims, by people who missed the deadline of 31 December 1998. Also to be explored, are exceptions to the June 1913 cut-off date to accommodate claims by the descendants of the Khoi and San as well as heritage sites and historical landmarks.
The Restitution of Land Rights Amendment Bill says nothing about the 1913 cut-off date as this will require the amendment of section 25 (7) of the Constitution.
That section of the Constitution makes restitution possible “a person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices”.
The explanatory memorandum to the Bill states that research is being done on the extent and quantity of people affected by pre-1913 land dispossession.
The memorandum also indicates that “the dispossessions of land before 19 June 1913 as a result of state action will be dealt with separately”.
1. Commission on Restitution of Land Rights (CRLR)
To assist claimants, investigate valid claims and prepare them for settlement or adjudication
• The CRLR was then placed under the authority of a national chief land claims commissioner, with regional land claims commissioners (RLCCs) responsible for its work in the provinces.
2. Land Claim Court (LCC
To approve claims, grant restitution orders, and adjudicate disputes on the basis of the investigations presented to it.
• A specialist court
• Appeals against its judgments could be made to the Supreme Court of Appeal (SCA) or in the Constitutional Court (ConCourt).
Claims lodged by Provinces
Province Total claims Total claims Total claims Total claims
as of Dec 1998 as of March 2002 as of Feb 2003 as ofJune 2007
Eastern Cape 9,615 9,469
Free State 2,213
Northern Cape 12,044 2,502
Western Cape 11,938
Gauteng 15,843 13,158
North West 2,508
KZN 14,208 14,808
Mpumalanga 11,745 6,473
Total 63,455 68,878 72,975 79,696
Settled claims by Provinces as of December 2006
Province Claims households Hectares Land cost Total Land cost
in rands in rands award as % of
Eastern Cape 16,081 47,742 72,073 216,811,427 1,218,659,673 18
Free State 2,582 4,601 44,464 9,845,559 109,152,504 9
Gauteng 13,146 14,262 7,557 89,633,196 772,414,448 12
KZN 14,051 46,692 392,630 910,983,599 2,251,875,143 40
Limpopo 2,781 33,944 175,256 1,406,450,687 1,743,518,580 80
Mpumalanga 2,214 34,475 175,256 1,406,450,687 1,743,518,580 80
Northern Cape 3,620 11,649 296,108 201,173,769 505,083,172 40
North West 3,649 25,812 188,396 490,515,999 840,072,119 58
Western Cape 15,309 19,843 3,115 8,216,187 633,433717 1
Security of Tenure
The Land Shall Be Shared Among Those Who Work It! Restrictions of land ownership on a racial basis shall be ended, and all the land re-divided amongst those who work it, to banish famine and land hunger. (Freedom Charter, adapted at the Congress of the People, 26 June 1955)
One of the main pillars from the ANC Manifesto towards 1994 elections was the implementation of the Freedom Charter. This included the provision of the Charter that asserts the sharing of land among those who work it. As part of this the new ANC-led government passed a number of laws whose aim was to give security of tenure to labour tenants and farmworkers. These were:
• Land Reform (Labour Tenants) Act 3 of 1996,
• Extension of Security of Tenure Act 62 of 1997 and
• Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
Despite the enactment of these laws statistics show that in the same period that these laws were in operation, huge numbers of labour tenants and farm dwellers were evicted:
• Between 1995 and 2004, over two million black people left white farms where they lived, of whom about 930,000 were evicted and the principal reason for evictions was loss of farm employment.
• The eviction peaked in 1997, when the government passed the Extension of Security of Tenure Act (ESTA), and in 2003, when a minimum wage for farm workers was introduced.
Why are these laws not effective?
1. Land Reform (Labour Tenants) Act 3 – LTA of 1996
A person entitled to the protection and benefit of LTA must be a person who, as of 02 June 1995, lived on a farm, had a right to use land for grazing or cropping and in consideration thereof provided labour to the owner of the land and whose parent or grandparent had a similar arrangement on a farm.
The Act provides that such labour tenant may not be evicted except in terms of an order of the Land Claims Court and only for refusing or failing to provide labour or for committing a material breach of the agreement with the owner that is not practically possible to remedy.
A tenant who is 65 years of age or above or who as a result of disability is unable to work may not be evicted for failing to provide labour. A labour tenant need not provide labour to the owner personally but may nominate a representative to perform the labour. In practice it is the wives and children of labor tenants who fulfill the labour obligations of the labour tenant.
Although the Act is an important law that attempts to balance the interests of landowners and those who have worked the land for years or even generations, some landowners have resisted it. They argue that the presence of labour tenants with long-term security on the land has devalued their properties. Intimidation and illegal evictions are still continuing. The Act is also limited in its scope in that it covers only a tenant whose parent or grandparent is or was in a labour tenancy arrangement on a farm. Thus persons who have provided labour on a farm in exchange for the right to reside and use land but whose parents or grandparents never had such an arrangement do not qualify for protection under the Act. The generational requirement was introduced precisely to limit the number of claimants by benefitting those whose extended families have served longest but as has been observed in a number of cases, the generational requirement has resulted in unfairness for some otherwise deserving tenants. Another problem is that, probably because of poor government communication, a number of qualifying labour tenants never applied in time for ownership of the land on which they live.
2. Extension of Security of Tenure Act (ESTA)
ESTA applies to rural occupiers. An occupier is defined as a person who occupies land with the consent of the owner or person in charge. The consent may be express or implied. Besides farmworkers, former farmworkers and their families, the Act covers labor tenants and persons who have a labour tenancy agreement but do not qualify for protection under the LTA because they do not fulfill one of the conditions such as the generational requirement.
Similar to the LTA, ESTA is intended to provide security of tenure to occupiers. An occupier may only be evicted by an order of court for serious misconduct or a serious breach of the agreement between him or her and the owner. An owner can no longer rely on a simple assertion of ownership and the concomitant right to regain possession. S/he has to show a justifiable ground, in terms of the Act, for the termination of the agreement before he can seek an eviction order. He must also show compliance with the procedures set out by the Act.
An attempt is made to balance the interests of owners and those of occupiers who have been forced by historical factors, especially racial discrimination, to live on other people’s land. Besides spelling out the right to security of tenure to reside and use the land, ESTA requires that before an application for eviction can be considered by a court, the applicant must have given notice of not less than two months to the occupier, the provincial
Department of Land Affairs and the municipality in whose areas of jurisdiction the land is located. The purpose of the notice is not only to give the occupier an opportunity to prepare his/her case but allow the Department of Land Affairs to attempt mediation and for the municipality to consider possible alternative accommodation if the eviction is granted and the evictees have nowhere else to go.
The Act lists a number of rights as mutual rights between owners and occupiers. These rights mirror a number of rights listed in the Constitution, including: dignity, freedom of association, freedom of movement, privacy, religion etc, which were frequently denied workers on farms. There is a right to family life, ensuring that occupiers are allowed to live with members of their families in accordance with their culture, which was often denied to them. There is also a right to visit family graves on the land even for non-occupiers.
Recently, ESTA was emended to give occupiers the right to bury deceased members of their families on the farm on which they live, if there is an established practice of occupiers burying family members on the farm. There is also a right to bury a long-term occupier [i.e., one who has lived on the land for over 10 years and is 60 years old] who was living on the land at the time of his/her death, even if there is no established practice.
Commercial farmers vehemently opposed the passing of the Act and many continue to defy it by evicting occupiers illegally or intimidating occupiers into leaving the farms. They claim that ESTA violates their Constitutional right to property. They also argue that security of tenure of occupiers makes prospective buyers of farms reluctant to buy and this depresses prices.
On the other hand, occupiers and some civil society organizations have argued that the protection given by ESTA is inadequate if not illusory since arbitrary evictions do not require either the private landowner or the state to actually provide alternative land on which evicted persons can be resettled. Further, most applications are brought in the magistrates court. Many magistrates have not embraced transformation and invariably grant eviction orders without much concern for the statutory protection, especially in undefended proceedings where default judgment is given. Although this problem is mitigated by the automatic review of eviction orders by the Land Claims Court sometimes the setting aside of the order comes too late when the evicted occupier has given up and left and cannot be traced.
It must be acknowledged that ESTA is an important step in controlling the damage caused by apartheid. Ultimately, however, what is needed is for those whose only home is on other people’s land to get land of their own on which they can live peacefully and derive a living without the fear of eviction hanging over their heads. S4 of ESTA empowers the Minister of Agriculture and Land Affairs to grant subsidies to enable occupiers, former occupiers and other persons who need long term security of tenure to acquire rights in the land they currently occupy or other land. However, the section does not create a right to land and indications are that the Department of Land Affairs has not exploited this avenue of redistribution: to call for a social impact report indicating the availability of alternative accommodation and the impact the eviction is likely to have on the evictees, there is no obligation on either the private landowner or the state to actually provide alternative land on which evicted persons can be resettled.
3. Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
The Prevention of Illegal Eviction and Unlawful Occupation of Land Act protects South Africans from being unlawfully evicted from the land or property they live on. It sets out the procedure for the eviction of unlawful occupiers of land and states that no person may be arbitrarily evicted from their home. According to the Act, the circumstances of the person being evicted must be taken into account and the law should be carried out in a fair manner. The Act also puts a duty on the court to give special consideration to the rights of the elderly, disabled persons and particularly households headed by women.
When Is a Person Occupying Land Unlawfully?
According to the Act, an unlawful occupier is a person who occupies land without the express or tacit consent of the owner, or without any other right in law to live on the land. This excludes people occupying land in terms of the Extension of Security of Tenure Act, 1997, and a person whose rights are protected by the Interim Protection of Informal Land Rights Act, 1996.
In addition to this, no person is allowed to receive money or other forms of payment for the occupation of land that does not belong to them. Any person who breaks this law is liable for a fine or imprisonment of up to two years. They will also have to repay the money.
When Is It Legal to Evict a Person?
A landowner who wants to evict an illegal occupier must serve a written notice to both the municipality and the person who is to be evicted. The notice must be served at least 14 days before the date set for the eviction proceedings.
There are two categories of unlawful occupiers of land and the court treats them differently.
People who have occupied land for less than six months: People who fall into this category have less protection, and the court may simply grant an order for eviction if it seems fair. The court will, however, give special consideration to vulnerable groups (i.e. the elderly, children, disabled persons and households that are headed by women).
People who have occupied land for six months: In these cases, the court will consider whether land has been made available to the person by a municipality or other organ of state before granting the eviction order.
If the court finds that there is no valid defence, it will order the eviction of the unlawful occupier and will set a fair date by which the person must leave the land and a fair date upon which the eviction order may be carried out if the person does not leave.
Land redistribution forms one part of the government’s land reform programme, alongside restitution and tenure reform. All three aspects of the land reform programme are ultimately derived from the Constitution of South Africa. Section 25(5) of the Constitution states:
The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. (RSA 1996).
Access to land is one of the socio-economic rights set out in the Bill of Rights, but nowhere is it stated that everyone has the right to land. Lahiff and Rugege (2002) argue that in meeting its constitutional obligation, the state may choose to redistribute state land, purchase or expropriate privately-owned land for redistribution, or make it possible for people to purchase land by means of subsidies and through facilitating access to credit on favourable terms.
Sections 25(1), (2), (3) and (4) of the Constitution serve to protect property against arbitrary action by the state and stress the requirement of legality and due process in dealings between the state and property owners. At the same time, the Constitution makes it clear that the right to property is not absolute. Property may not only be subject to restriction or regulation by the state but may be expropriated ‘for a public purpose or in the public interest’, subject to just and equitable compensation. The public interest is clearly stated to include land reform.
The specific objectives and approach of the redistribution policy are set out in the 1997 White Paper on South African Land Policy:
• to provide the poor with access to land for residential and productive uses, in order to improve their income and quality of life.
• to assist the poor, labour tenants, farm workers, women, as well as emergent farmers.
Redistributive land reform will be largely based on willing-buyer willing-seller arrangements. Government will assist in the purchase of land, but will in general not be the buyer or owner. Rather, it will make land acquisition grants available and will support and finance the required planning process. In many cases, communities are expected to pool their resources to negotiate, buy and jointly hold land under a formal title deed. Opportunities are also offered for individuals to access the grant for land acquisition (DLA 1997b:38).
Further legal basis for redistribution is provided by the Provision of Certain Land for Settlement Act 126 of 1993, amended in 1998 and now entitled the Provision of Land and Assistance Act 126 of 1993 (known as Act 126).
Whereas the original Act allowed for the granting of an advance or subsidy ‘to any person’, the 1998 amendment specified the categories of persons that could be assisted. These included ‘persons who have no land or who have limited access to land, and who wish to gain access to land or to additional land’, persons wishing to upgrade their land tenure, or persons who have been dispossessed of their right in land but do not have a right to restitution under the Restitution of Land Rights Act 22 of 1994.
The various grants that have been established in terms of Act 126 and are currently available are summarised in Table 1 on the next page.
The methods chosen by the state to bring about redistribution are largely, although not entirely, based on the operation of the existing land market through various assisted purchase measures. Beneficiaries of the redistribution programme are not generally provided with land by the state. Rather, the state assists people who might otherwise be unable to enter the land market to purchase property of their own – the so-called willing buyers. This strategy presupposes that the existing land market can deal effectively with what might be expected to be a very substantial transfer of land, and that the intended beneficiaries, even with state assistance, will be able to engage effectively in the market. The programme is heavily dependent on the voluntary sale of land by current owners – the so-called willing sellers.
Until late 1999, the redistribution programme was based largely on the provision of SLAG, a grant of R16 000 made available to qualifying households. Most projects under this programme involved groups of applicants pooling their grants to buy formerly white-owned farms for commercial agricultural purposes. Less commonly, groups of farm workers have used the grant to purchase equity shares in existing farming enterprises. A separate grant for the acquisition of municipal commonage has been made available to municipalities wishing to provide communal land for use (typically grazing) by inhabitants of smaller rural towns. Various other grants and services have also been made available to participants in the redistribution programme (seeTable 1).
Following the general elections of 1999, the new Minister of Agriculture and Land Affairs announced a sweeping review of land reform policy and programmes, including a moratorium on new redistribution projects. In February 2000 the minister released a policy statement concerning strategic directions on land issues (MALA 2000). This identified some of the problems being faced by the DLA in implementing land reform and outlined the general policy direction that would be followed in future. Particular attention was given to the redistribution policy.
The Policy statement lists a number of ‘severe limitations’ in the structure and implementation of SLAG, including over-reliance on market forces, payment of inflated prices for marginal land, lack of any significant contribution to the development of semi-commercial and commercial black farmers, and limited impact on rural employment or transformation of agricultural land holdings. To address these and other problems, the minister proposed a revised redistribution programme that would include grants for aspiring commercial farmers, food safety net grants for the rural poor, settlement grants for both urban and rural poor to access land for settlement, and a revised commonage grant that would be available to both municipalities and tribal authorities.
The Policy statement also lifted the moratorium on new redistribution projects that had been imposed six months before (MALA 2000). The minister’s Policy statement was followed by a lengthy period of review and debate, and it was not until June 2001 that a definitive new redistribution policy was unveiled, entitled Land redistribution for agricultural development: A sub-programme of the land redistribution programme
(MALA 2001a). The official launch of the new programme (generally referred to as LRAD) took place in August 2001.
The four types of projects that can be supported under LRAD are:
• food safety net projects: agricultural production primarily for subsistence purposes
• share equity schemes: purchase of shares in established commercial agricultural enterprises
• commercial agricultural production: agricultural production primarily for the market
• agriculture in communal areas: existing subsistence or commercial production in the former homelands (MALA 2001a).
The key mechanism offered by LRAD is a grant system that beneficiaries can access along a sliding scale from R20 000 to R100 000. All beneficiaries are required to make a contribution, in cash or in kind, the size of which will determine the value of the grant for which they qualify. The minimum ‘own contribution’ is R5 000, with which an applicant can obtain a grant of R20 000, while a maximum grant of R100 000 is available to those who are able to contribute R400 000 or more. At the bottom-end of the scale, the R5 000 minimum contribution can be made in the form of ‘sweat equity’ (labour), ostensibly to ensure that poor people can participate in the programme.
Policy also allows for LRAD beneficiaries to ‘trade up’, or graduate, from one grant level to another. Grants may be accumulated until the ceiling of R100000 (the maximum level of the grant) has been reached. LRAD has largely, but not entirely, replaced SLAG, which continues to be used for certain, limited purposes.
The LRAD programme differs from SLAG in a number of important respects. Firstly, by making grants available to individuals rather than to households, it substantially increases the level of grant funding obtainable, since each adult in a household can apply. Under LRAD, a typical poor black household with three adults would, in theory, be able to obtain three grants of R20000 each (a total of R60000) rather than one grant of R16 000 under SLAG. Secondly, the approval and implementation of projects have been decentralised to provincial and district level and closer cooperation is expected between various government departments and spheres of government, with an enhanced role for district municipalities and provincial departments of agriculture. Despite these changes, considerable continuities with past policies are also evident.
The programme continues to be described as demand-led, meaning that beneficiaries themselves must define the type of project in which they wish to engage and must identify their own land. Acquisition of land, from either private or public sources, continues to be on the basis of the willing-buyer, willing-seller approach.
LRAD grants can be used for the outright purchase of freehold land or for leasing land with an option to purchase, as long as such land will be used at least partially for agricultural purposes. It can also be used to contribute towards investments in land. People living in communal areas, with secure access to agricultural land, can apply for the grant to make productive investments in their land, such as the development of infrastructure or land improvements.
All projects approved under LRAD must meet certain eligibility criteria. The approval of the grants is based on the ‘viability of the proposed project, which takes into account total project costs and project profitability’ (MALA 2001a:7). Every project application must be accompanied by a business plan and strict commercial criteria are employed to assess the viability of these projects.
Government employees are not currently eligible to benefit from LRAD, but a policy amendment has been proposed to allow certain types of employees to access LRAD – presumably rural residents and low-income categories whose engagement in agriculture does not conflict with their employment. To promote gender equity and redress discrimination against women, one third of all resources under LRAD are intended to go towards women (MALA 2001a:6).
LRAD is open to individuals or groups, although large groups are discouraged from applying. Group projects require the setting up of an appropriate legal entity, such as a communal property association (CPA), a trust or a close corporation. LRAD is intended to make a major contribution to achieving government’s target of transferring 30% of agricultural land – a total area of approximately 24 662 871 hectares (24.66million hectares) – within 15 years. To achieve this target over a period of 15 years would require an average annual transfer of 1 644 191 hectares (1.64 million hectares).
Assessment of LRAD in terms of the policy’s objectives:
1. Redistribution achievements
Achieving greater equality in land ownership and improving the livelihoods of rural people are the main challenges facing land redistribution in South Africa. This section assessess the contribution the redistribution programme, and specifically LRAD, is making to transforming the racially-based pattern of land ownership and developing the rural economy.
Before proceeding to a critical and holistic analysis of quantitative and qualitative information, trends in land delivery over time and across provinces are examined, along with trends in budget allocations and expenditure. It should be noted that since the start of the land reform process, the DLA has reported largely on the quantitative targets and achievements of land redistribution, such as hectares of land transferred, number of projects, number of beneficiaries and the like.
2. Land transferred
Following a slow start, redistribution of land has accelerated considerably in recent years (see Table 2). According to the DLA, 1.4 million hectares have been transferred to 130 000 beneficiaries from the start of the programme in 1994 to 31 December 2002. It should be noted that most statistics published by the DLA for the period since 1994 lump together all land transfers that occur under the various sub-programmes of redistribution (e.g. LRAD, settlement, municipal commonage) along with land transferred under the farm dwellers’ tenure reform programme.
Great unevenness is found across provinces in terms of the amount of land transferred, as shown in Figure 1, as well as in the number of projects approved and the number of beneficiaries. The province with the most land transferred is the Northern Cape, where large areas of semi-arid grazing land have been transferred, mainly through the municipal commonage programme.
Looking specifically at LRAD, Table 3 presents the provincial breakdown of the LRAD projects approved until 31 December 2002 (DLA 2003). From August 2001 to 30 June 2002, 125 000 hectares were transferred through LRAD. During the six months from July 2002 to December 2002, a further 140 000 hectares were redistributed, indicating an accelerated delivery of land.
There is wide variation in the amount of land transferred under LRAD across the provinces, ranging from 51 600 hectares in the Eastern Cape to 1 284 hectares in Gauteng. Half of all the land transferred was in just three provinces: Eastern Cape, Free State and Mpumalanga. More than half of all LRAD projects were in the Eastern Cape and Free State.
The figures in Table 3 show a breakdown of the number of projects processed directly by the land reform offices of the DLA and those processed by the Land Bank. To date, most LRAD projects (approximately 80%) have been processed directly by DLA offices. However, delivery by the Land Bank would appear to have accelerated in recent months. This is particularly the case in KwaZulu-Natal and Mpumalanga, where the majority of LRAD projects have been processed through the Land Bank.
3. Access to land
The LRAD grant is primarily intended to assist applicants to acquire farmland. While the policy promotes the acquisition of privately-owned commercial agricultural land, other sources of land, such as state land and land repossessed by the Land Bank, are not precluded. The state does not generally acquire land on behalf of applicants or take steps to ensure that land is available in areas or in quantities that suit applicants. Rather, the DLA restricts its activities to providing grants and information about land available on the market. In many cases, land of suitable size, quality and price is not available in close proximity to where applicants reside.
While supply of land depends heavily on the willingness of private owners to make land available for sale to land reform beneficiaries, anecdotal evidence suggests that many landowners are not willing to do so and that others have been deterred by the lengthy and bureaucratic process involved. This section looks at the availability of land for redistribution and the manner in which beneficiaries are accessing it under the LRAD programme.
Whether LRAD beneficiaries buy private land or acquire state-owned land, the price is usually market-related. Supply of land on the market, however, is affected by a combination of economic and political factors. Economic factors can include land speculation, changes in land use, conditions in product markets, the indebtedness of the sellers and interest rates.
Land ownership in South Africa has been, and continues to be, highly segmented along racial lines and therefore highly politicised. A decision to sell land, and at what price, may be based on collusion among neighbouring farmers to keep black farmers out of a certain area.
Similarly, a decision to offer state land to land reform beneficiaries before putting it on the open market is essentially a political decision.
LRAD beneficiaries can also use their grants to acquire state and parastatal agricultural land that is being sold off. Information regarding the sale and location of this land must, according to DLA policy, be made publicly available and potential beneficiaries have a period of three months in which to secure the necessary grant (MALA 2001a:12).
Since 2000, the Minister of Land Affairs has prioritised state land disposal as a means to make land available for redistribution, and has indicated that 669 000 hectares of land will be disposed of in favour of land reform beneficiaries (MALA 2001b) (see Table 9). This is supported by provincial state land disposal committees (PSLDCs) which bring together representatives of various government departments and spheres of government (DLA 2002c).
The DLA’s Public Land Support Services (PLSS) unit has developed an online database of public land. However, the database is not accessible to the public. According to one source in the DLA, this is because elements within the state fear that if the general public were to know which land belongs to the state, the land would be targeted for illegal occupation. The PLSS has, however, confirmed that approximately 24 million hectares of land is owned by the state. (Slabbert, pers. comm.).
There are essentially two types of state land disposal under LRAD:
a) Beneficial occupation: Title is transferred to persons already in occupation of the land. Under these circumstances, the value of the land is not deducted from the grant.
b) No beneficial occupation: Through an accounting entry, the value of the land is deducted from the grant (which reverts back to the state) (Mngengwe, pers. comm.).
In 2002 the national Department of Agriculture reported that just over half of the targeted land had been disposed of and that only 11.8% of this land had gone to LRAD beneficiaries.
Officials in the Western Cape Department of Agriculture, however, contested the accuracy of these figures, suggesting that no state land had been available for disposal in the province, and that none had gone to LRAD beneficiaries (Isaacs, pers. comm.).
Land reform grants in terms of Act 126
Level of grant
Redistribution Tenure reform
R20 000 to R100 000 depending on amount of own contribution*
Maximum of 15% of anticipated project costs
Individuals (or groups in where LRAD grants will be pooled)
Settlement Planning Grant
Maximum of 9% of anticipated project costs
SLAG beneficiary households or groups
Land Development Objectives Planning Grant
Maximum of R3 000
Claimants (individuals or groups)
Source: DLA 2002d
Land redistribution per year, 1994–2002
Year Total hectares Total beneficiaries
1994 71 656 1 004
1995 11 629 1 819
1996 60 120 5 068
1997 139 849 10 259
1998 229 009 15 995
1999 239 764 24 900
2000 233 426 34 768
2001 263 071 20 920
2002 203 567 12 216
Unspecified 28 743 3 504
Total 1 480 834 130 453
LRAD projects and hectares, December 2002
Province Land reform office Land Bank Total hectares
Projects Hectares Projects Hectares
Eastern Cape 129 51 632 * * 51 632
Free State 149 39 231 * * 39 231
Gauteng 16 583 18 701 1 284
KwaZulu-Natal 13 21 143 27 11 171 32 314
Limpopo 10 26 221 * * 26 221
Mpumalanga 36 11 882 38 32 326 44 209
Northern Cape 23 15 369 3 13 207 28 576
North West 10 30 645 * * 30 645
Western Cape 29 11 858 3 1 710 13 568
Total 415 208 564 89 59 115 267 680
*Information not available Source: DLA 2003
Land Reform in Communal Areas
Insecure land tenure in communal areas is a key legacy of apartheid, but addressing it has proved to be one of the thorniest problems facing tenure reform policy makers. Government promulgated the Communal Land Rights Act (CLARA) 11 of 2004 in response to Section 25 (6) of the Bill of Rights.
By 2010, however, the Constitutional Court had declared the Act unconstitutional, and it was not at all clear how government intended to fill the legal vacuum. Fierce public debate and community mobilisation, which formed the basis of the successful legal challenge by four rural community groups some six years later, accompanied the passage of the Act through parliament in 2003 and 2004.
Key controversies included:
• the powers over land to be wielded by traditional leaders and traditional councils,
• the nature and content of communal land rights, gender equality, and
• whether or not law-making processes and procedures had allowed for sufficient consultation.
Contrasting interpretations of rights, citizenship and customary law were at the core of these controversies.
1.1 A contested terrain
According to a White Paper on South African Land Policy that set out the fundamentals of post-apartheid land reform policy, tenure reform in communal areas must confront the underlying problem of the second class status of black land rights in law. Rights of occupation and use in black rural areas were not adequately recognised in South African law prior to 1994, with limited rights being granted in the form of a conditional permit — usually a ‘Permission to Occupy’ (PTO) certificate. Weak legal status was exacerbated by overcrowding and forced overlapping of rights resulting from apartheid segregation polices of forced removals and evictions.
Groups of black South Africans who purchased farms in the late-19th and early-20th centuries (but who could not hold title deeds because of legal restrictions on black ownership) experience particular problems.
Some owners were dispossessed and have lodged restitution claims; others still occupy their land, but title deeds continue to show the Minister as trustee-owner. Whether dispossessed or not, these groups were often placed under the jurisdictional authority of neighbouring chiefs, some of whom abused their authority by allocating land to outsiders in return for cash payments.
The White Paper also identifies a key problem of partial breakdown of communal tenure systems due to lack of legal recognition, declining administrative support, accompanied by corruption and abuse by some traditional leaders. Lack of clarity on land rights and tensions between local government bodies and traditional leaders over land allocation for development projects constrain infrastructure and service provision in rural areas. Discrimination against women is a particular problem in land allocation: in the past, PTOs were issued only to men; widows and divorcees are often evicted from family land; and women are excluded from decision-making structures.
As outlined above, communal tenure reform in South Africa is a constitutional imperative. In 1996, an Interim Protection of Informal Land Rights Act (IPILRA) was passed as a ‘holding measure’, but an annual extension has been necessary since then due to the absence of any other law. IPILRA requires only consultation with occupiers and users of provides no legal certainty on the nature of such rights and seems to have been used to secure rights in only a few cases.
In 2004, parliament approved CLARA but government never implemented it, in part because of the legal challenge mounted in 2005.
The Act provided for the ‘transfer of title’ to a community, provided:
• the ‘community’ drew up and registered its rules in order to be recognised as a juristic personality legally capable of owning land
• ‘community’ land boundaries were surveyed and registered, and
• a rights enquiry investigated the nature and extent of existing rights and interests in the land.
Individual community members would be issued a deed of communal land right, which could be upgraded to freehold title if the whole community agreed. A land administration committee was to enforce rules and exert ownership powers on behalf of the ‘community’.
Section 21 (2) of the Act specified that a Traditional Council established under the Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA) ‘may’ act as the committee (tribal authorities established under the Bantu Authorities Act 68 of 1951 are reconstituted as traditional councils under the TLGFA.
According to the Department of Land Affairs (DLA), people could choose which body — a traditional council or other institution — would act as the land administration committee, but in another interpretation of the relevant sections, traditional councils, wherever they exist, would automatically become the land administration committee, and rights holders would not be able to exert choice.
CLARA did not set out any procedures for exercising choice about who should act as a land administration committee, which suggests that the term ‘may’ was permissive only, allowing traditional councils to exercise land administration powers.
The TLGFA specifies that the roles and functions of traditional councils may include land administration. The passage of the Communal Land Rights Bill (CLRB) through parliament was stormy.
Various civil society groups, including representatives of twelve rural communities, contested its appropriateness and constitutionality during portfolio committee hearings in 2003.
The provisions for traditional leaders’ land administration powers and gender equality were particularly contentious.
Critics argued that the CLRB did not provide for democratic communal tenure, as it:
• did not allow rural people to choose either the overall nature of the tenure system to be adopted or which local institution would have responsibility for land administration;
• failed to provide for downward accountability of land administrators to rights holders; and
• failed to adequately address gendered inequalities inherent in the ‘old order rights’ (such as PTOs), which would be upgraded to ‘new order rights’ in the new law.
They also argued that traditional leaders would effectively have more powers over land than ever before. The traditional leader lobby, led by the Congress of Traditional Leaders of South Africa (Contralesa), fully supported the draft law, which they saw as recognising their customary role as ‘trustees’ of community land. Government’s ‘inadequate’ consultation with rural people before drafting the law was also contested, as the Constitution requires parliament to facilitate public involvement in legislative processes.
Civil society groups organised several large workshops in rural areas in different provinces, attended by about 700 people, and some communities selected representatives to make submissions to parliamentary hearings on the CLRB6. At the hearings, speakers from NGOs and community groupings alleged that government had clearly held several meetings with chiefs and members of Contralesa, but not with ordinary rural residents.
In addition, contentious sections giving traditional councils powers over land were inserted into the draft only a few days before public hearings began, allowing no time for public discussion. Several authors have argued that the rapid passage of CLARA through parliament was the result of a political deal between the ANC ruling party and the traditional leader lobby.
Constitutional court challenge
In 2005, four rural communities — Dixie, Kalkfontein, Mayaeyane and Makuleke —launched a constitutional challenge to CLARA (Claassens & Cousins 2008). A history of interference by traditional leaders with the land rights of groups and individuals informed the applicants’ arguments on the constitutionality of CLARA. In their view, transfers of title from the state to ‘communities’ following CLARA implementation would result in control of land being vested in traditional councils, rendering insecure the rights of current occupiers and users. In two of the communities, the jurisdiction of large tribal authorities over smaller groups or communities – an apartheid legacy – was deeply contested.
Legal papers also argued that CLARA was unconstitutional because the nature and content of the ‘new order rights’ being created were not clearly defined. CLARA gave the Minister wide and discretionary powers to determine ‘new order rights’, without clear criteria to guide decisions.
CLARA failed to create opportunities for community members to participate in making crucial decisions or to challenge decisions made about their land rights. Another key omission was the lack of consultation with rights holders about whether or not they wanted transfer of title from the state. It was also argued that CLARA undermined tenure rights of female household members who occupy and use land other than as wives, such as mothers and divorced or unmarried adult sisters or daughters.
A final core argument was that incorrect procedure was followed in passing the law, as the draft bill was wrongly tagged as a section 75 bill, instead of a section 76 bill, which would have needed wider public consultation and participation processes at provincial level.
In October 2008, the North Gauteng High Court declared fifteen key provisions of CLARA invalid and unconstitutional, including those providing for transfer and registration of communal land, determination of rights by the Minister, and the establishment and composition of land administration committees (Tongoane and Others vs Minister for Agriculture and Land Affairs and Others). The judgment did not find the parliamentary process to have been procedurally flawed, and did not strike down CLARA as a whole. In May 2010, however, the Constitutional Court struck down the act in its entirety (Tongoane and Others vs Minister for Agriculture and Land Affairs and Others), having accepted the applicants’ arguments about procedural issues, and therefore did not consider the applicants’ substantive arguments or those contained in the findings of the High Court.
Prior to the hearing, the new Minister of Rural Development and Land Reform Gugile Nkwinti said government would not defend CLARA in court since it was no longer considered consistent with government policy. How government now intends to approach communal tenure reform is still unclear.
1.2 ‘Rights’ as a medium of local struggle
Do people living in communal areas use the notion of socio-economic or human rights in efforts to claim or defend their rights to land?
In contrast to the national policy engagement terrain, in everyday contexts people sometimes appeal to rights, but often invoke customary norms and values — no doubt because land rights are deeply embedded in various social identities, networks and relationships. But ‘custom’ is not rigid and unvarying — it tends to evolve over time, its underlying principles being re-interpreted and adapted to fit altered conditions and circumstances. In communal tenure systems, claims to land are often relational and processual, rather than defined by a clear set of entitlements and duties.
This ‘living customary law’ of land or Oomen’s ‘living law’, is an inherently flexible and dynamic hybrid of different ideas, identities and resources available to those who seek to secure their interests.
The extent to which such claims can be successful, however, also depends on the structure of power relations in which they are mounted. Shifts in power relations in wider social and political contexts, and in expressed laws and policies, can also influence ideas, identities and resources.
Recent research in Msinga, KwaZulu-Natal illustrates the processes at work. Here, the patrilineal system cannot easily accommodate a pent-up demand for land by unmarried women with children. In response, local institutions are starting to re-interpret customary land allocation albeit contested and uneven. Wider political discourses on ‘equal rights for women’ can be discerned, subtly influencing local understanding and helping to shift local power relations.
Local residents in Msinga readily describe the communal tenure system and its underlying principles and procedures appear widely understood and accepted.
The key principle is that married couples with children should be allocated land so that they can establish a homestead (umuzi) and access natural resources to support their families. Single people cannot be allocated land and must live with their parents or other family members.
A family is allocated land under the authority of the household head, rather than to individuals, and the household head is seen as a senior male (umnumzane).
Land holding is strongly associated with the necessity of supporting a family from land-based livelihoods. Descent is traced primarily through men in a patrilineal kinship system deeply concerned with the ‘surname’ established at an umuzi. However, this idealised and normative version of land tenure, as with many other aspects of ‘custom’, is often contradicted in practice. The flexibility of ‘custom’ is also evident in relation to changing marriage practices.