Rural Restitution

Mpumalanga workshop

13 November 2003

Intro to restitution

• Based on the recognition of forced removals as a key injustice suffered by black people under colonial rule and apartheid.

• 3.5 million people forcibly removed between 1960 and 1983 alone – through black spot clearances, homeland consolidation & Group Areas Act.

• Restitution is a rights-based programme within land reform – while redistribution is discretionary.

• One of the 3 legs of land reform and governed by its objectives which combine redress of historical injustice with the aims of promoting equitable land ownership, secure tenure rights economic growth.

Constitutional mandate

• Redistribution: 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. Section 25(5)

• Tenure reform: A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress. Section 25(6)

• Restitution: A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress. Section 25(7)

Legal & institutional framework

• Restitution of Land Rights Act 22 of 1994 was enacted to give effect to this right and create the means by which people could realise this right.

• It established:– Commission on the Restitution of Land Rights to assist

people to make claims, to investigate their validity, prioritise them and prepare them for settlement or adjudication

– Land Claims Court to approve claims, grant restitution orders and adjudicate disputes

• This process was amended in 1999 when an administrative route of settling claims by negotiation with claimants was introduced. This proved to be much quicker than the judicial route.

Implementation (1)• Lodgement: starting slowly but picked up when DLA,

CRLR and NLC launched a ‘Stake your claim’ campaign – 63,455 claims lodged by Dec 1998.

• Validation: to determine prima facie evidence, record location of land and composition of claimant group. Validation Campaign from 2001-2002 but still not possible to say how much land has been claimed nor number of claimants. Validation process in general split urban claims down to household level, & amalgamated rural claims into community claims.

• Prioritisation: large numbers of claimants, elderly, those who suffered substantially – officially – and those in nodal areas and urban claims (up until recently). Now rural claims are to be prioritised.

Implementation (2)• Monetary value of the claim (MVOC): the MVOC must be

calculated in respect of each claim. Some disputes over valuation, with RLCCs complaining that there are not enough service providers to choose among. Two methods give different results: current value or historical value inflated to current rands.

• Options for claims settlement:– Land restoration: in practice dependent on willingness of current owners

to sell at prices the Commission offers.– Alternative land: based on MVOC, usually because owner is unwilling to

sell or because of value added to the property.– Financial compensation: instead of determining the MVOC, standard

settlement offers (SSOs) used esp. for urban claims– Developmental compensation: rebuilding communities & infrastructure…

roads, public works, schools, clinics, income generation projects.

Implementation (3)• Expropriation: invoked in only 2 claims. ‘Gildenhuys

formula’ to determine compensation not used in negotiated sales.

• Methods of claims settlement:– Normal: settlement of claim and then implementation– Partial settlement: settlement agreements in respect of some of

the land – eg. one farm – but complaints that these claims are then not prioritsed.

– The payout approach: settlement agreements signed upfront, indicating that people will get land, but not what land – and money is transferred into a trust account

• Social complexities: overlapping claims to land, owners & tenants, claimants & farm dwellers

• Post-transfer support: SSDP

Settlement of claims

• The pace of restitution accelerated rapidly from 1999.– Of the 63 455 claims lodged, only 41 were settled

by March 1999, but by March 2003 this had risen dramatically to 36 488 claims.

– The programme had by March 2003 delivered more than half a million hectares (750 000 by end of June), and spent R2 billion on awards to claimants.

The national picture

• Most of the settled claims are urban claims that have been settled through financial compensation. – Of the 36 488 claims settled by March 2003, the PLAAS

study could identify only 185 rural claims settled with land.– This means that the bulk of the rural claims are still

outstanding (approx 11,500), yet these hold most potential to transform landholding, redress the past & address poverty.

• Political pressure has been applied to settle all claims by 2005. There is no indication that this is possible, given the number of large rural claims outstanding.

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The cost of restitution

• The cost of land for settled rural claims cost an average of R1.7 million each so far – and one in six of these were settled with state land (no capital cost)

• It is not clear whether the rest of the rural claims will cost, on average, more or less or the same

• Even so, we could expect that completing the restitution process will cost a great deal – very conservatively, R10 billion for the rural claims, R1 billion for the urban claims, plus RDGs and SPGs and perhaps another 25% operating budget.

• Recent and projected increases are welcome but unlikely to be able to address the scale of restitution. Over time, the limited budget for restitution will have to be seriously re-thought.

Restitution in Mpumalanga

• 6,473 Claims lodged in Mpumalanga– 1,226 were urban (19%)– 5,210 were rural (81%)

• Slow progress until 2003:– 635 settled by March 2003– 297 of these were rural acc. to CRLR– 26 rural claims dismissed

Rural claims settled

• Boomplaats (1)• Botshabelo (1)• Doornkop (1)• Frischgewaard (1)• Kafferskraal (1)• Kalkfontein (1)• Kromkrans (56) – labour tenants claimed individually• Leidenberg (1)• Lissabon (1)• Steelpoortpark (1)

Rural restitution achievements

• In Mpumalanga, as at March 2003:– 65 claims (as lodged) settled– 10 projects established– 25,783 hectares transferred (or earmarked for transfer)– R33,823,000 spent on land (1 settled with state land)– Approx. 4,950 households benefitted

• This represents 1.3% of the rural claims lodged• Since March, a number of major rural claims settled

with land, including through joint ventures: Hall & Sons, etc…

Rural claims outstanding?

• Not clear• Some amalgamated through validation process• Some dismissed as invalid• Perhaps in the region of 4,500• Is better information available?

Thinking about restitution

• Turning back the clock: how feasible and desirable is this? People lost more than land – tangible assets like housing & infrastructure and intangible assets like social networks. What can restitution restore?

• Rights versus development: there can be trade-offs in some situations, especially where the land use preferences of claimants are contrary to the developmental interests of government.

• Individual versus community: the importance of building viable legal entities to secure individuals’ rights.

Conclusions (1)

• Progress with the settlement of claims has accelerated rapidly

• Most have been settled with cash payouts• Acquiring land for restoration remains a stumbling

block in some instances – what mechanisms are available and how can they be used?

• Restitution could be used as a basis for comprehensive solutions to local land needs, in areas where much land is under claim

• Post-settlement support has been recognised as a central challenge – but the CRLR relies on other agencies to give effect to it

Conclusions (2)

• Restitution has not been adequately monitored – an audit of settled rural claims is now underway

• Substantially increased resources are needed to address effectively those rural claims outstanding – in Mpumalanga and nationally– Capital budgets: well over R1 mill per rural claim– Current budgets: to increase institutional capacity

• Restitution is important as a political symbol, but it is unclear whether there exists sufficient political support to ensure long-term success

• The presidential deadline is not achievable

Challenges

• High cost of commercial agricultural land• Unwillingness of current owners to sell in some

instances• Capacity of RLCC to provide effective facilitation of

complex groups and negotiate cost effective sales• Provision of post-transfer support – SSDP units

overloaded

Lessons for Palestine (1)• Restitution will be as good as the political settlement

out of which it emerges• Restitution will be slow, expensive and complex – a

minimalist state will not be up to the task• If expropriation is to be used, with or without

compensation, • If full market price is to be paid, who is going to fund

this? • Is there a society-wide basis to support and keep a

check on the process?• How do you establish clear parameters to avoid

unduly high expectations?

Lessons for Palestine (2)• Some restitution may be ‘reparations’ (like the TRC)

while some restitution may be developmental, a kind of land reform – how will restitution fit within a wider process of reconciliation?

• Having administrative options is useful – the court process is cumbersome – but how do you protect people’s rights so they can really exercise their rights to the remedy they choose?

• Back to what (arbitary?) point in time do you turn back the clock? What rationale can guide this – and who will buy into this? What dispossession will not get addressed in this way – and could this lead to future complications?

Lessons for Palestine (3)• Restoration of land is a first step in a larger process –

and local government and other actors need to buy in early in the process – they will be key in the long term

• What notion of ‘justice’ can guide restoration – what about people who were discriminated against in the past – eg. women or ethnic minorities?

• Who will own the land, who will administer it and allocate rights on it – are crucial questions, as important as the transfer itself, to avoid future conflict.

• How do you restore land rights where substantial developments have taken place?