PLJ - RURAL LAND JUSTICE - PEOPLE'S LAW JOURNAL - LAND AND ACCOUNTABILITY RESEARCH CENTRE
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PLJ
APRIL 2016
PEOPLE’S LAW JOURNAL
RURAL LAND
JUSTICE
PLJ i
PEOPLE’S LAW JOURNAL
RURAL LAND JUSTICE
Land and Accountability
Research Centre (LARC)
— formerly the Rural Women’s Action
Funeka Miriam Mateza of Cala, Eastern Cape participates in a public Research Programme (RWAR) at the
hearing on the repeal of the Black Authorities Act, July 2010.
Centre for Law and Society
CONTENTS
Written by the Land & Accountability Research Centre
Introduction: The Struggle for Land Rights in South Africa 1
Customary Law: Some Introductory Thoughts 5
Faculty of Law
All Africa House Patriarchs and Pariahs: The Geography of Traditional Leadership 11
University of Cape Town
Private Bag X3
Rondebosch 7701
Cape Town Overturning Dispossession: Land Restitution in the Post-Apartheid Era 16
South Africa
Tel: +27 21 650 3288
Fax: +27 21 650 3095 Empty Promises? Big Talk as Funds for Land Reform Diminish 21
Authors and contributors: Aninka Claassens, Michael Clark, Alide
Dasnois, Monica de Souza, Thiyane Duda, Daniel Huizenga, Thuto Thipe,
Tara Weinberg, and Zackie Achmat. The Politics of Recapitalisation: How Land Redistribution Funds are Being Diverted to Elites 27
Special thanks to the generous contributions of LARC’s funders:
Atlantic Philanthropies, Claude Leon Foundation, Heinrich Böll
Foundation, Millennium Trust, and the RAITH Foundation.
A Luta Continua: New Laws are a Setback for Rural Women 35
Edited and published by Ndifuna Ukwazi
“Cleansing of the Statute Book”: Customary Law, Inheritance and the Right to Equality 41
Centralisation without Consent: Rural Communal Land Rights under Threat 47
Office 302, 47 on Strand To the Heart of Land Reform: The Bakgatla ba Kgafela CPA at the Constitutional Court 55
Strand Street
Cape Town
Tel: +27 21 423 3089 Mining Law: Know the Law, Know Your Rights 60
Fax: +27 21 423 7554
Email: contact@nu.org.za
NU funders: “They are Robbing Us”: How Mining is Affecting the Residents of Makhasaneni 62
Ford Foundation, RAITH Foundation, Hivos, Open Society Foundation,
Millennium Trust, Wallace Foundation, South African Development Fund,
International Budget Partnership
Protecting the Land Rights of Rural People: Is the IPILRA the Answer? 69
Printed by Creda
Design & layout by Chloë Swingewood
The views expressed in this guide are those of the authors and do not
necessarily reflect those of the aforementioned funders.
INTRODUCTION
The Struggle for Land Rights in South Africa
F
rom the arrival of Dutch South West Africa. These regions insecure as a result of past
settlers in the Cape were specifically designated for racially discriminatory laws
right through to the fall black people living under ‘tribal’ or practices is entitled, to the
of apartheid, the expansion of leadership, and were treated extent provided by an Act of
colonial power in South Africa differently from the rest of the Parliament, either to tenure
was epitomised by the growth of country. Through this project of which is legally secure or to
white-controlled territory and fragmentation, the government comparable redress.”1
the corresponding loss of land by sought to strip black people of their And yet, more than 20 years
Africans. A range of treaties and South African citizenship and, by on, and notwithstanding the
laws cemented these relations, extension, many of their rights. government’s plans for land
and over time radically restricted The opening lines of the restitution, the realisation of
African people’s land ownership – 1993 Interim Constitution re- this constitutional ideal remains
eventually shrinking this to just incorporated the homelands elusive in many rural areas, and
13% of the total land in South into a unified South Africa. It especially for those who live in the
Africa (under the 1913 Natives ensured a system of elected local former homelands. Several non-
Land Act and later the 1936 Native government, replacing ‘tribal’ governmental and community-
Trust and Land Act). governance within the former based organisations have
The term ‘Bantustans’ was first Bantustans. In section 25(6) of the expressed concern that current
used in the 1940s, and before long 1996 Constitution, equality with and proposed legislation either
it came to denote the homelands respect to land rights was affirmed weakens or has the potential to
set aside by the apartheid with the words:
government for black ethnic “A person or community 1 Section 25(6) goes hand-in-hand with section 25(9),
which compels Parliament to enact the prescribed
groups both in South Africa and whose tenure of land is legally legislation.
PLJ 1
In troduction In troduction
weaken the security of land tenure with reference to the experiences in mining areas; and, through
of these rural communities. of many residents who have taken a case study of Makhaseni in
Given the importance of part in this drawn-out process. KwaZulu-Natal, Chapter 11
land rights in any equal and Chapters 4-6 focus on illustrates how mining companies
just society, this volume of the questions of finance, examining and traditional authorities have
People’s Law Journal (PLJ) focuses the limitations of restitution ignored people’s individual and
on South Africa’s historically rights, budget allocations, and the collective land rights by failing to
marginalised peoples, with broader financial implications consult with them properly.
particular emphasis on their (lack of land reform for government. This volume of the PLJ
of ) access and rights to land. A Chapter 7 analyses South African concludes with a chapter on the
number of articles examine the land reform from the perspective Interim Protection of Informal
extent to which post-apartheid of rural women, with a focus on Land Rights Act (IPILRA) which,
laws have addressed the legacy of the ways in which women have passed in 1996, seeks to provide
past administrations, while some navigated and negotiated the tenure security to people with
reveal the ongoing challenges terms on which they have accessed informal land rights. Debates in
confronting the residents of the land for themselves and their recent years have highlighted
former homelands today. families. What follows is then contradictions in understandings
We begin with an introductory an analysis of Bhe and Others v of who owns the land in traditional
chapter on South African Khayelitsha Magistrate and Others, council areas, giving rise to
customary law, in which it is argued a case involving customary law insecurity and vulnerability among
that such a legal system should and land rights which reached the residents. This article therefore
be interpreted by the judiciary Constitutional Court in 2004. offers suggestions as to how this
as ‘living’ (and not codified). Chapter 8 examines the status situation can be improved.
The second section then reveals of communal land in South In closing, it is important to
how South Africa’s democratic African law, drawing attention to acknowledge the authors of this
government has come to rely on the types of rights that individuals publication. At the University of
the homeland boundaries, set and groups can claim, and how Cape Town, researchers based
down by the 1951 Black Authorities land in communal areas is at the Land and Accountability
Act, in its administrative mapping allocated. A second landmark Research Centre (LARC) –
of traditional leaderships. case, heard at the ConCourt in formerly the Centre for Law and
Through an analysis of the 2015, is then examined. It involved Society (CLS)’s Rural Women’s
Restitution of Land Rights Act – the Bakgatla ba Kgafela Communal Action Research Programme
which was passed in 1994 to Property Association’s capacity to (RWAR) – worked in collaboration
address the grievances of people hold platinum-rich land on behalf with colleagues and activists from
previously dispossessed of land of restitution beneficiaries in the partner organisations. Unless
whether by forced removals or North West Province. otherwise specified, each article
other discriminatory practices – The next two sections relate in this edition was authored by
the issue of land restitution in specifically to mining law – the LARC team rather than by any
the former homelands is then Chapter 10 provides an overview individual researcher.
brought to the fore in Chapter 3, of the land rights of people living
2 PLJ PLJ 3
CUSTOMARY
LAW
Some Introductory Thoughts
4 PLJ PLJ 5
Customary Law Customary Law
“Rural people are facing Customary law of noted that although “in the past it judges found that the Valoyi royal
critical times when all succession: The was not permissible by the Valoyis family did have the authority to
people are free … Facing Shilubana case that a female child be heir, in terms develop its own customary law of
a chain of taxation, of democracy and the new Republic succession, adding that “the free
being in the position
S
hilubana v Nwamitwa, a of South African Constitution it is development by communities of
of losing rights of land case decided in 2008, arose now permissible … since she is also their own laws to meet the needs
without compensation, from a decision made by the equal to a male child.” of a rapidly changing society must
put on the street as wild Valoyi royal family of the Limpopo The Premier of Limpopo be respected and facilitated”
animals, treated not as region to award the chieftainship Province Ngoako Ramathlodi duly (Shilubana, para 45).
South Africans, forced to Tinyiko Shilubana, the daughter appointed Tinyiko as hosi. But The judgment went on:
with custom which of the previous chief, Fofoza. her cousin, Sidwell Nwamitwa, “[A] court must consider both
comes from apartheid As Fofoza had fathered only the son of Richard, challenged the traditions and the present
boundaries, women daughters, when he died in 1968 her appointment, saying it was practice of the community. If
are not encouraged to the chieftainship had passed contrary to customary law. The development happens within the
participate in all matters to his younger brother, Richard Pretoria High Court and later the community, the court must strive
freely.” Nwamitwa. When the latter died Supreme Court of Appeal ruled in to recognise and give effect to
Melmoth Black Farmers Association, in 2001, the community resolved Sidwell’s favour. that development, to the extent
KwaZulu-Natal (2014)
to appoint Ms Shilubana as hosi However, Shilubana consistent with adequately
A consultation between the Mohlohlo farming community and its lawyers, Richard Spoor and Steven Goldblatt, to (chief). successfully appealed to the upholding the protection of rights”
discuss attempts by the Anglo-American Corporation to make room for a platinum mine by forcing them off their
land, Mokopane, Limpopo, 2006 (David Goldblatt). In its resolution, the community Constitutional Court, where the (Shilubana, para 49).
W
hat is customary law? words, it is law derived from the principles of democracy and
How is the content actual practices, principles and accountability in customary law.
of customary law negotiations that people use and These processes, however, are
determined? Since 1994, the engage with in their everyday lives. rarely straightforward; they have
Constitutional Court has dealt ‘Living’ customary law is defined been (and will continue to be)
with several important questions in contrast to an understanding contested, even among the judges
related to customary law – in cases of customary law that is themselves. Fortunately, the
regarding land, marriage, divorce, ‘codified’ (written down) and ConCourt has been developing
inheritance, leadership, and thereby strictly defined. Such an judgments on living customary law
political association. Judgments interpretation reflects the Court’s which reflect an understanding of
on these cases provide insight desire to protect constitutionalism power relations and politics in the
into how living customary law is and democratic process in real world.
developing in the Court and how customary law.
its evolving content is understood Several ConCourt judgments,
and applied in relation to rural two of which are discussed
land rights. below and another on page 41,
According to the ConCourt, open up opportunities and Right: Hosi Tinyiko Shilubana was the first woman in
customary law must be spaces, sometimes unexpectedly, South Africa to legally contest her right to chieftaincy
after the position was assumed by male relatives. Her
understood as ‘living’ – in other for ordinary people to assert position was confirmed in the ConCourt.
6 PLJ PLJ 7
Customary Law Customary Law
Right of dissent and Court and the Supreme Court and the Bill of Rights. But courts
free association in of Appeal both refused leave to ought not to be dismissive
traditional communities: appeal, but the ConCourt heard of these institutions when
The Pilane case the appeal and upheld it by a they insist on the observance
majority of eight judges to two. of traditional governance
I
n 2009, members of the The dissenting judges, Chief protocols and conventions
Motlhabe community in the Justice Mogoeng and Justice on the basis of whatever
platinum-rich North West Nkabinde, suggested that courts limitation they might impose on
Province wanted to break away should support and protect constitutional rights” (Pilane,
from the Bakgatla ba Kgafela recognised traditional authorities, paras 78-79).
traditional community, of and that constitutional rights The two judges supported the
which they were a part, owing to should be limited, if necessary, in Bakgatla ba Kgafela claim that
CAPTION?
problems with the chief and the order to achieve this. Chief Justice calling a meeting of the Motlhabe
administration. The provincial Mogoeng and Justice Nkabinde villagers “had the potential of
government advised that they wrote: creating factions and disorder”
take steps according to the North “Traditional leadership is a which could make the community
West Traditional Leadership unique and fragile institution. If “ungovernable”, and noted that
and Governance Act of 2005 it is to be preserved, it should be “[d]isorderliness is on the rise
and the Traditional Leadership approached with the necessary in this country and traditional
and Governance Framework Act understanding and sensitivity. communities are no exception”
of 2003. But before they could Courts, Parliament and the (Pilane, para 118).
take these steps, their plans Executive would do well to In a judgment written by Justice
were opposed by the leaders of treat African customary law, Skweyiya, the majority of judges
the Bakgatla ba Kgafela tribe, traditions and institutions not as dismissed this concern:
who applied to the North West an inconvenience to be tolerated “I see no reason to believe
High Court to stop the Motlhabe but as a heritage to be nurtured that the lawful exercise of the
community from having meetings and preserved for posterity, applicants’ rights would result
about the issue. particularly in view of the many in chaos and disorder. Rather,
The Court granted the years of distortion and abuse there is an inherent value in
interdict, partly on the grounds under the apartheid regime. allowing dissenting voices
that the Motlhabe leaders – “Bearing in mind the to be heard and, in doing so,
members of the royal family of need to help these fledgling permitting robust discussion
Motlhabe village – had, contrary institutions to rebuild and which strengthens our
to certain legal provisions, sustain themselves, threats democracy and its institutions”
referred to themselves as the to traditional leadership and (Pilane, para 69).
“Motlhabe tribal authority” in related institutions should not He concluded that it was within
a community notice. The High be taken lightly. The institution the rights of the Motlhabe
of traditional leadership must community to meet and that the
Opposite: Community members celebrate the respond and adapt to change, in law would not tolerate an attempt
inauguration of Hosi Tinyiko Shilubana after her
appointment was upheld in the ConCourt. harmony with the Constitution to silence criticism or discussion.
8 PLJ PLJ 9
Customary Law
In other words, the judges assets held under customary law. New battles are likely to be
differed on two questions: The new laws apply only in waged over the mineral and land
•• What is the customary law and the areas set apart by the Bantu rights of rural communities, as
the traditional leadership that Authorities Act of 1951 – namely, we have seen with the platinum-
the Constitution says must be the tribal jurisdictions that made rich territories of the North West.
nurtured and preserved? up the former Bantustans. This They are likely to concern two
•• Does preserving it mean that geography consist of the ‘original questions: Who is entitled to the
members of the communities reserves’ established by the 1913 benefits of the mineral rights? And
affected do not have the and 1936 Land Acts, in addition what is the nature and extent of
same rights and freedoms to ‘the dumping grounds’ set the accountability of the leaders
of association, speech and aside for the three and a half who have control?
assembly as other South million people who were forcibly We can expect fierce disputes,
Africans? removed from ‘white’ South Africa since there are significant vested
The majority found that members during the process of Bantustan interests and benefits to be gained
of traditional communities do not consolidation. The people who or lost in the mining sector. There
forfeit their constitutional rights bore the brunt of the Land Acts is also widespread disdain for
through their membership to and forced removals are therefore corruption and the enrichment of
those communities. once again being subjected, by law, a few at the expense of many.
and not necessarily by choice, to Given the recent support
imposed tribal identities and all- the ConCourt has shown for
The way forward powerful traditional leaders. democratisation processes in
This raises the fundamental customary law, now is an optimal
PATRIARCHS AND
O
ver recent years there question of whether ‘customary’ moment to bring these issues
have been several
PARIAHS
law can be imposed on some parts before the judges. Only five years
legislative efforts to of the country and not others, or from now, it is likely that mining
reverse the democratisation rather on some South Africans but rights will have been settled, land
project and undermine living not others – without taking into rights will have been lost, and
customary law. The Traditional account the wishes of the people much of the membership of the The Geography of Traditional Leadership
Leadership and Governance concerned. ConCourt will have changed.
Framework Act (the Framework It is one thing to say that, in
Act), the new Traditional and general, white South Africans do
T
KhoiSan Leadership Bill (that aims not live according to customary he Bantustans ceased many rural areas because several land-related laws which have been
to repeal the Framework Act), law, and that many black South to exist with the dawn laws adopted over the past 12 years developed for these areas, while
the Traditional Courts Bill and Africans do. It is quite another of democracy in South have linked people’s land rights to drawing attention to how these laws
recent or promised amendments to reduce customary law to the Africa. Despite this, laws relating traditional leadership. impact the ways people can exercise
to a variety of land laws all show power of the chief, to impose it on to traditional leadership and In this article we explore how, their rights to land.
a desire to put more power in the everyone living within apartheid- governance still, for the most part, under democracy, the former
Above: A map depicting the former homelands or
hands of traditional authorities era boundaries, and to restrict its apply in the former Bantustans, Bantustans came to be the areas Bantustans - small reserves of rural land designated to
black people in terms of the 1913 and 1936 Land Acts.
and traditional leaders and to application to 17 million out of 54 or ‘homelands’. This is important where laws of traditional leadership The areas where current traditional councils govern
make them the owners of land and million South Africans. for understanding land rights in still apply. It will focus on the closely mirror these boundaries.
10 PLJ PLJ 11
Patriarchs and Pariahs Patriarchs and Pariahs
The Bantustans that tribe. These colonial and
apartheid-era interferences “Awaking on
T
o understand the had a significant impact on the Friday morning,
significance of laws relationships between chiefs and June 20, 1913, the
applying only to the the people under their leadership, South African
former Bantustans, it is important as well as how people held chiefs Native found
to understand the history and accountable. himself, not
purpose of the formation of the actually a slave,
Bantustans, the different ways that but a pariah in the
their imposition violated people The laws governing land of his birth.”
Sol Plaatje (writer, intellectual
and deprived them of their basic traditional leaders after
and founding General Secretary
rights, and how the maintenance apartheid of the Native National Congress)
of these boundaries continues on the Land Act, 1913.
T
to perpetuate particular forms of he Traditional Leadership
violence. and Governance
Under apartheid, 7% of the land Framework Act of
in South Africa was allocated to 2003 (the Framework Act) was
black people (in accordance with developed “to restore the integrity
the Land Act of 1913). and legitimacy of the institution
In 1936, the Natives Trust and of traditional leadership in line
Land Act increased this percentage with customary law and practices.”
to 13%. The apartheid government This law made the chiefs, tribes
used this legislation as the basis and tribal authorities created
for creating ten homelands, each before 1994 the new traditional
for a different tribe. The creation leaders, traditional communities and
of these homelands was incredibly traditional councils, respectively.
violent as hundreds of thousands Tribal authorities were the
of people were forcibly removed local governance structures in
from their homes. the Bantustans. Together, their
In addition, the Black boundaries made up those of
Administration Act of 1927 gave the Bantustans. By converting
the Governor General of South tribal authorities to traditional
Africa the power to create and councils, the Framework Act
divide tribes, as well as to appoint maintained the boundaries of the
and dismiss chiefs. In effect, this Bantustans. Recent laws that deal
enabled the government to call
any group of black people a tribe, to Right: Sol Plaatje, seated bottom-right, with other
members of the South African Native National
decide which tribe any individual Congress Deputation which travelled to London
belonged to, and to determine in 1914 in order to challenge the 1913 Land Act
(Historical Papers Research Archive, University of
which individual should lead the Witwatersrand, Johannesburg, South Africa).
12 PLJ PLJ 13Patriarchs and Pariahs Patriarchs and Pariahs
traditional councils are being hierarchies predetermines
treated as a fourth level of governance structures as well
government that only applies to as the relationship between
traditional council areas. This traditional leadership institutions
is made worse because a large and the people living under this
number of traditional councils are leadership.
“Gone was the old
not democratically elected. The principles of democracy,
give-and-take of tribal
In 2015, the Traditional and equality, and freedom to
consultation, and in its
Khoi-San Leadership Bill (which practice one’s culture of choice
place there was now
will replace the Framework Act) should decide the parameters
the autocratic power
was tabled in Parliament. If this Bill of traditional governance and
bestowed on the more
becomes law, it will retain the same leadership. To imagine African
ambitious Chiefs, who
boundaries for traditional council governance systems as bound to
became arrogant in
areas and strengthen the powers of Bantustan geographical areas is to
the knowledge that
traditional leaders in these areas. A merge understandings of African
government might
revised version of the Traditional identity and rights with racist
was behind them.”
Govan Mbeki (Rivonia Trialist), Courts Bill is also expected in frameworks established by the
The Peasants’ Revolt (1964). Parliament later in 2016. discredited colonial and apartheid
governments.
with traditional councils have Another proposed law – the rights to land and strip them Citizens or subjects?
applied to traditional council Traditional Courts Bill (TCB), first of membership of their
T
areas, meaning that these laws introduced in 2008 and again in community. he Bantustans restricted
apply to the former homelands. 2012 – would have given traditional In Parliamentary submissions, millions of black South
Although provisions in many of councils more powers. However, many women living within Africans to small areas
the provincial laws, which related it lapsed in Parliament because traditional communities argued of land, they imposed traditional
to the Framework Act, allowed for not enough provinces voted in that the TCB would reinforce leadership structures in the place
changes of these boundaries, few its favour. The TCB would have patriarchal power especially of government bodies that served
changes have been made. declared that: because traditional courts are ‘white South Africa’, and they
The Communal Land Rights Act •• It is a criminal offence not to mostly presided over by men treated people as ‘tribal subjects’
of 2004 (CLRA) gave traditional appear before a traditional court who have the authority to limit rather than citizens.
councils the power to administer once summoned; the extent to which women can The continuation of the
communal land and to represent •• Decisions of a traditional court participate. artificial boundaries of so-called
traditional communities as owners have the same force as those of The Constitution allows for traditional areas threatens to
of the land. This would have Magistrates’ Courts; national, provincial and local perpetuate many of the founding
allowed traditional councils •• Traditional courts can impose government. Civil-society values and goals behind the
control over the occupation, use punishments including unpaid organisations have argued that tribalising of black people through
and administration of communal labour; and the Bantustans. In many ways,
land. The ConCourt struck down •• Traditional courts can Above: Govan Mbeki, former leader of the African
this use of old geographical
the CLRA in 2010 (see p. 50). revoke people’s customary National Congress and Rivonia trialist. boundaries and leadership
14 PLJ PLJ 15Overt urning Dispossession
Law as a Tool of •• The 1936 Native Trusts and “Power, Accountability and
Dispossession Land Act increased the African Apartheid Borders” in Land,
reserves slightly (from 7% to Power & Custom, 2008)
•• The 1913 Land Act was one of a 13% of the country). The 1936 •• After the passing of the Group
series of laws that dispossessed Act also established the ‘6 native Areas Act (1950) and the
black people of their land and rule’, which meant any group of Bantu Authorities Act (1951),
rendered their rights to land more than six black people who the apartheid government
insecure. One of the Act’s had purchased land together embarked on several waves
intentions was to further sideline had to constitute themselves of forced removals, lasting
African farmers and labour as a tribe under a chief or they until the late 1980s. Bulldozers
tenants and to force black people would lose their land. This law swept across cities and the
into becoming labourers in the distorted local and customary countryside, inflicting violence
cities or on the mines on terms land systems in favour of an to Black, Coloured and Indian
set by white owners (Colin undemocratic model that was people by destroying their
Bundy, The Rise and Fall of the easier for the government to homes, neighbourhoods and
South African Peasantry, 1979) control (Aninka Claassens, ways of life.
Our Constitution recognises that has made some progress, it has re-opening of claims in 2014. One
it is crucial that we roll back the also been riddled with problems. woman from Port Elizabeth said
legacy of land dispossession which In particular, the programme government officials had told her
has resulted from colonialism and has been very slow to settle and that, if she put in a land claim,
apartheid. finalise claims. There remain she would receive enough land to
The Restitution of Land Rights 30,000 claims which have not make her “faint”. “I want to faint!”
Act, passed in 1994, was one of been completely resolved. It is not she exclaimed at the hearing. “Will
the laws intended to address the surprising, then, that the most vocal I ever faint?”
O
ver the course of the past legacy of dispossession in South opposition to the Restitution of
400 years, black people Africa. It opened a window of Land Rights Amendment Act came “A person or community
OVERTURNING in South Africa have
been repeatedly dispossessed of
their land, rights and livelihoods.
five years – between 1994 and
1998 – during which people
could lodge claims for land on
from among the tens of thousands
of dispossessed people who had
waited almost 20 years for their
dispossessed of property
after 19 June 2013 as
DISPOSSESSION Dispossession arose in many
forms, from colonial wars of
which their ancestors had once
resided. Then, two decades later,
claims to be settled, their land to be
transferred, or their compensation
a result of racially
discriminatory laws or
practices is entitled, to
conquest to the economic forces a new Restitution of Land Rights to be paid out.
Restitution in the that pushed the African peasantry Amendment Act was passed, The frustration of these
the extent provided by
an Act of Parliament,
post-apartheid era into the wage-labour system on
white-owned farms and mines,
opening a second window from 1
July 2014 until 30 June 2019.
claimants bubbled over at
public hearings that Parliament
either to restitution
of that property or to
and the laws that were backed While the restitution programme and the Department of Rural equitable redress.”
by the might of the colonial and Development and Land Reform Section 25 (7) of the Constitution
Top left: A man leaving Magopa during a forced
apartheid governments. removal, 1983 (Paul Weinberg). (the Department) held on the
16 PLJ PLJ 17Overt urning Dispossession Overt urning Dispossession
Land restitution: years. But the current budget for claims have still not been settled The 1913 cut-off date and people still raise many concerns. options available to would-be
A magic solution? land restitution is much lower since 1998 have lobbied for their traditional leaders’ claims Claims by traditional leaders claimants and encourages them to
than this – closer to R2.7 billion per claims to be ring-fenced and often do not take into account the identify with traditional leaders.
W M
ith the land year. What does this mean? That fully resolved before new claims any traditional leaders complex history of the areas from Particularly under threat are
redistribution and it would take another 121 years to are settled. There are fears that, have made it clear that which they arise. In some cases, Communal Property Associations
land tenure reform settle all claims. without transparent guidelines in they intend to lodge many different groups (families, (CPAs) which, established in
programmes still far from their Since it would take so long place to decide whose claims will land claims. One is due to be clans etc.) have occupied the same 1996, ensure that land reform
targets, the urgency with which to settle all the claims, the be settled first, the Commission lodged on behalf of the Zulu king, piece of land at different points in beneficiaries can acquire and
the state pushed through the Restitution Commission will will prioritise claims by people King Goodwill Zwelithini, together time. The situation is particularly manage land as groups.
re-opening of restitution claims need to prioritise certain claims with political power behind them, with the Ingonyama Trust, for dangerous in places like KZN, According to the Communal
was telling. It indicated that the for settlement. People whose such as traditional leaders. possibly the entire province of where there is a history of violent Property Associations Act of
government regards it as the KwaZulu-Natal (KZN) – including entanglements around issues of 1996, CPAs are intended to give
answer to South Africa’s complex the Durban Metro – as well as parts land and traditional leadership. effect to the democratic decision-
land reform dilemmas. But there of the Eastern Cape, Mpumalanga For example, in Babanango, making processes envisioned by
are numerous problems that look and the Free State. The intention a small town in KZN’s Zululand the writers of the Constitution.
likely to hamper the restitution is to reclaim land taken from the municipality, a group filed a land However, two policies developed
programme as new claims are Zulu kingdom during the colonial restitution claim and labour by the Department in recent
lodged. Among the most pressing period — from 1838 onwards — tenants’ claim many years ago. years – namely, the Draft Policy
is the lack of state funds allocated first by the Voortrekkers and then Authorities say that these claims Paper on CPAs and the Communal
to the re-opening of land claims by the British. are still “being processed”. King Land Tenure Policy – have
(see p. 21). This suggests that Indeed, President Jacob Zuma Zwelithini has recently begun sidelined CPAs in favour of
the government is selling empty has been encouraging traditional laying the foundations for the traditional leaders.
promises. leaders to make such land claims. building of a royal palace on the The Department’s policy
In his speech to the National Babanango land. While the King says that no new CPAs will
RESTITUTION IN NUMBERS (as of 1 April 2015) House of Traditional Leaders in negotiates via the Amafa Heritage be established in areas where
How long until all 2014, he told traditional leaders Council, on the grounds that the traditional councils already exist.
restitution claims
are resolved? 57 300 to get “good lawyers” so that they
could put in land claims.
But according to the Restitution
area is an important Zulu heritage
site, fences have been erected
preventing the local people from
In the Eastern Cape and North
West, there are several groups of
restitution claimants who have
claims have already been lodged since July 2014
I
n order to meet its goal of Act, only people who were accessing water and pastures for experienced severe delays, either
resolving all existing and
new claims (409,000) in the 379 000 dispossessed of land after 1913
qualify for restitution. This means
their animals. in the transfer of land to their CPAs
or the registration of the CPAs
coming 15 years, the government new claims are expected before 2019 that if King Zwelithini were to themselves (owing to objections
would need to speed up its lodge a claim for land lost in 1838, CPAs versus traditional by traditional leaders).
settlement rate six-fold. Assuming
that the new claims will be as
121 years that claim would not be valid.
The same of course applies to any
leadership Restitution is a vital component
of South Africa’s land reform
T
the time it would take to finalise pre- and post-1998 land claims if
cheap and easy to settle as past other traditional leaders who try to he second window for programme. And yet the re-
claims continue to be settled at the current rate
claims (an unlikely prospect), it claim land lost before 1913. restitution claims has been opening of the window has
would require an annual budget Nevertheless, claims by accompanied by a policy gone hand-in-hand with the
of R12 billion over a period of 15 traditional leaders on behalf of shift which, in effect, reduces the government’s efforts to favour
18 PLJ PLJ 19Overt urning Dispossession
How the law protects •• To lodge a restitution claim, •• Note that the Restitution Act
restitution claimants: you do not have to align with defines a community as a group
a traditional leader, council or of people who hold land jointly
•• Section 18 of the Constitution tribe. Section 2 of the Restitution and have shared rules about
protects the right to freedom Act confirms that the key how to hold, access and manage
of association. This means that criterion for claiming is that you the land. The definition also
you can choose how you want to must be “a person, community provides that a community
identify yourself or your group or part of a community could be a part of a larger group.
when you make a claim. It can dispossessed of a right in land
be a problem if a traditional after 19 June 1913 as a result of
leader puts in a claim on your past racially discriminatory laws
behalf without your consent. or practices”.
EMPTY PROMISES?
elites, including traditional leaders
and mining magnets, while side-
take action to protect people
who lodged claims before 1998.
Some tools remain open to
people whose rights to restitution
Big talk as funds for land reform diminish
lining the people whose ancestral If it does not do so, it will be in have been or are now at risk of
land was taken from them as the violation of section 25(6) and being violated. Two of these tools
result of racial discrimination. section 25(7) of the Constitution, are the protections provided for in
G
In light of the slow settlement of which provide for security of the law and the ability to organise overnment says it is 30,000 outstanding claims tenure reform (grouped together
restitution claims and traditional tenure and restitution for people on a mass scale. committed to land (lodged before the first deadline in the budget) is 0.1% more than
leaders’ stated intentions to lodge who were dispossessed of their reform but there is in 1998). However, the most it was in 2015/2016. Such small
claims, the government must land, respectively. not enough money in the land recent national budget clearly increases mask how much the land
reform budget to deliver on these shows that there is not enough reform budget has declined over
promises (and this is not the first money in the budget to deliver on the last six years.
time). government’s promises. In fact, until this year, the
When President Jacob Zuma land reform budget has been
announced in 2013 that the land shrinking annually. The trend is
restitution process would be re- The funds have not been alarming. As shown in the figures
opened and that people would be made available on page 22, soon after President
able to lodge new claims until the Zuma’s government took office,
T
end of June 2019, the government he total funding available the land reform budgets were
promised that it would dedicate for land restitution in the increasing. However, since
the resources required to deal 2016/17 budget (the latest 2010/2011, they have decreased
with the expected 379,000 new budget) of the Department of considerably. Overall, the land
claims (at an estimated cost of Rural Development and Land reform budget under President
R180 billion). Reform (or Department) is 8% Zuma is far lower than the budget
Government also promised more than it was in 2015/16. The during most of President Thabo
to prioritise the approximately funding for land redistribution and Mbeki’s second term.
20 PLJ PLJ 21Overt urning Dispossession Overt urning Dispossession
1+99
Budget Trends for Land Restitution and Redistribution 2008-2015 Land reform makes up 0.4% of the
(Inflation adjusted in 2015 constant Rand) national budget (2016)
6.0
5.5
TOTAL BUDGET, R MILLIONS
Restitution
5.0
Redistribution
4.5
4.0
3.5
3.0
2.5
Government’s land reform programme includes three projects aimed at
undoing the effects of land dispossession under apartheid:
2.0
2008/09 2009/10 2010/11 2011/12 2012/13 2013/14 2014/15 2015/16
•• LAND RESTITUTION •• LAND REDISTRIBUTION •• TENURE REFORM
3,4 refers to the process of refers to the process of refers to processes that try
returning land to people changing the racial patterns to strengthen the rights
who were dispossessed of of land ownership in South that people have over
2,8 their land under apartheid. Africa. Under apartheid land, especially when
most black people were not those rights are weak as a
allowed to own land and this result of apartheid.
project tries to rectify this.
2,2
1,6
1
Total Funds Capital Funds Total Funds for Capital Funds for
for Restitution for Restitution Redistribution and Redistribution and
Tenure Reform Tenure Reform
2013/14 2014/15 2015/16
22 PLJ PLJ 23Overt urning Dispossession Empty P romises?
Budget trends in restitution speeding up land reform, settling
and redistribution, 2008– old land claims, and dealing with
2015 the flood of incoming new land
claims.
T
o make matters worse, The Treasury is also unwilling
the increase in funding to fund new schemes such as that
for land restitution is of paying farmers 50% of the value
mostly to pay for travel costs, of their land (without the farmers’
research consultants and giving it up) in return for shares for
additional staff at the already a small fraction of their workers.
overburdened Commission on Instead, the National Treasury is
Restitution of Land Rights. Only a putting in only enough money for
portion of the whole ever reaches the land reform process to march
the claimants. on at its current snail’s pace.
The budget figures clearly
show that Government is not
Funds for land reform prioritising land reform even
though it claims to be.
I
n general, land reform is
not well-funded. It usually
makes up about 1% of
the national budget. In 2016,
however, the land reform budget
makes up only 0.4% of the
national budget (see R. Hall,
“Land reform: The Time Bomb
Ticks”, PLAAS Blog: Another
Countryside, February 2016).
What does the lower budget
tell us?
T
he budget suggests
that, in practice, the
National Treasury does
not conform to the policy talk of
Government. It is not prepared to
fund the Department’s promises
of expanding certain programmes,
24 PLJ PLJ 25THE POLITICS OF
RECAPITALISATION
How Land Redistribution Funds are Being
Diverted to Elites
26 PLJ PLJ 27The Poli tics of Recapi talisation The Poli tics of Recapi talisation
T
he Department of the Free State are particularly February 2015 meeting of the restitution and redistribution
Rural Development unhappy with their strategic Parliamentary Committee claimants (which is what it was
and Land Reform partners, raising serious questions on Rural Development and intended for).
(the Department)’s only about whether they are actually Land Reform. “Action needs At the February 2015
funding initiative for land empowering or exploiting land to be taken. This is wasteful parliamentary meeting, Grain SA
reform beneficiaries, called the reform beneficiaries. and fruitless expenditure,” told MPs that only 32 of its 600
Recapitalisation and Development The report investigated strategic said one MP. “Budget is black emerging farmer members
Programme (or RECAP), seems partners attached to projects in flowing but the services are had received RECAP grants. Their
to be diverting funds away from Gauteng, North West, Limpopo, not coming,” said another 3,500 members in ‘communal
land reform and towards a small the Eastern Cape, KwaZulu-Natal (Parliamentary Monitoring areas’ were told the policy did
group of commercial farmers and and the Free State, and found that Group (PMG), “Public not apply to them (PMG, “Public
preferred ‘strategic partners’. the majority of strategic partners Hearings on Implementation Hearings on Implementation
According to the new land reside in Gauteng. A number of the Recapitalisation and of the Recapitalisation and
policies, the only way to acquire of beneficiaries said they felt Development Programme”, Development Programme”, Public
financial support for land received strategic partners were “imposed” Public Monitoring Group, 4 Monitoring Group, 4 February
through a land reform programme on them. Many beneficiaries also February 2015: https://pmg.org.za/ 2015).
is through the RECAP. The commented that they had little committee-meeting/19977/).
two previous grants that were control over their own RECAP The South African government
awarded in terms of the land funds. uses the term communal areas
redistribution programme (the Misallocations to refer to all land in the former
Restitution Discretionary Grants Bantustans.
T
and Settlement Planning Grants) The DPME report he RECAP programme
have been discontinued. In order contained further alarming was launched to support Many of the bigger grants are going
to receive a RECAP grant you must findings on RECAP: people who were given to a few people with political
prove that you have a business plan land under the restitution or connections. Farmers who
and a strategic partner. •• The average expenditure per redistribution policies after were already financially strong
beneficiary in the Free State is 1994, but did not get adequate “bypassed provincial government
R1.02 million, but RECAP has follow-up capital and support to officials and contacted senior
Empowering or exploiting? not created a single full-time job farm productively. The DPME politicians to have their farms
in the province; report shows, however, that only prioritised for recapitalisation,”
I
nstead of using the RECAP •• RECAP swallows at least a 29 grants in its sample went to the DPME said in its report.
programme to help new quarter of the Department’s restitution projects and 16 to land
farmers, many of these yearly budget; redistribution beneficiaries.
strategic partners are ‘farming’ •• The national average In the same period, 564 grants Elite capture
state subsidies. A 2013 report, expenditure is R2.9 million went to new commercial ventures,
T
commissioned by the Department per project and R463,284 per most of them on land owned he way that RECAP is
of Planning, Monitoring beneficiary; by government and leased to being implemented fits
and Evaluation (DPME) in •• The average cost per job created ‘beneficiaries’. So RECAP funding the broader picture of
the Presidency, found that by RECAP is R588,284. is more often going to new elite capture across all aspects
Previous page: photo by Chris Morris (2014) beneficiaries in North West and This led to an outcry at a commercial projects than to land of land reform. Far from the
28 PLJ PLJ 29The Poli tics of Recapi talisation The Poli tics of Recapi talisation
But RECAP, like other land
“Land reform is reform policies such as the
not only about Communal Land Tenure Policy
agriculture but (CLTP), denies the substantive
agriculture is a land rights of people living in
crucial component rural areas by making their ability
of land reform. to use their land conditional
Land reform should upon their ability to draw up a
address the various commercial business plan and
land needs of the the actions of imposed strategic
beneficiaries … partners (see p. 47).
post settlement “I guess elite capture is part of
should not only be the process,” the Department’s
seen in terms of the Director General Mdu Shabane
Farmer Support said at the February 2015 meeting
Programme in Parliament. “We’ve seen
or the existing people coming from nothing
Recapitalisation and becoming so powerful. They
and Development have a vision of saying they want
Programme which to make a billion. I think that’s
targets farming exactly what we want them to
with strategic do. We need to restore the class
partnerships.” of black commercial farmers
Ad hoc committee on the legacy destroyed by the 1913 Land Act.”
of the 1913 Land Act, Report,
November 2014.
With the Department
determined to follow the path Mr
Shabane describes, it seems they
land reform budget supporting will not heed the warnings of
redistribution to the poor, it land reform beneficiaries and the
entrenches inequality between DPME report to move away from
the rich and poor. conditional funding systems
Land reform programmes with vague selection criteria
should be geared towards and towards a comprehensive
redressing the terrible legacies support system for a range
of the dispossession of black of land reform beneficiaries,
South Africans and the persistent, not just those on a path to
unequal distribution of land and commercial agriculture.
resources.
Photo by Chris Morris (2014).
30 PLJ PLJ 31The Poli tics of Recapi talisation The Poli tics of Recapi talisation
LAND REFORM IN
OUR LIFETIME?
The Story of the Stellenbosch Small
Farm Holdings Trust
T
he Stellenbosch Small of the plots. Instead, the idea is The Department even ring-
Farm Holdings Trust was for the site to remain in the hands fenced around R11 million for this
formed in 2003 by ten of the municipality from one purpose. But the municipality
landless but highly skilled farmers. generation of farmers to the next. never submitted an application for
All previously disadvantaged In order for this long-term goal to government funding until it was
individuals, they lacked the means be achieved, however, the irrigation drafted on their behalf in 2008 by
to purchase land or to rent land at infrastructure needs urgent the University of Stellenbosch and
market rates. upgrading. From its earliest stage, a team of engineers.
The Trust’s aim is to “promote, the Trust sought to encourage the In 2011, the Department
support and facilitate access to municipality to identify sources of (that has since been renamed The process took several years. been submitted or was simply the fact that there is no need for
land and the use of land on an government grant finance to equip Rural Development and Land Although the new RECAP policy waiting on someone’s desk. By the it. Without a strategic partner, the
equitable basis for the benefit its piece of commonage land with Reform) finally responded to had not yet been adopted, RECAP time the Department met with the farmers would never get access to
of the Beneficiaries”. It has the infrastructure necessary for the application. They indicated guidelines were already published farmers and municipality, all of the water they need to grow their
been granted access to 65 ha of small-scale farming. In particular, that, since the submission of the in around 2013. those officials who had begun the vegetables.
commonage land through the they needed a water reticulation application in 2008, the policy had The requirement to work with project were no longer working for These are some of the struggles
goodwill of a commercial farm system. changed and the application now a mentor/strategic partner had the Department. land reform beneficiaries face
operator holding a long-term lease The Trust struggled for some had to have “a bit more detail”. thus already emerged. However, As a result, no-one knew how through programmes like RECAP.
on the land from the Stellenbosch time to convince the local Inexplicably, and despite the Department, together with much money and time had been
municipality. municipality to get involved in the exasperated protests from the the municipality and the farmers, spent on the application over the
Commonage land is municipal- administration and funding of the farmers, the Department and decided that, given the level of previous five-to-ten years. Worse
owned land that cannot be land reform project. Back in 2006, the municipality decided not skills of these farmers, they would still, it was announced that the
sold and must be used for the the Department of Land Affairs, as to simply refine the application not require such a partner. The only option for the Municipality
socio-economic benefit of the it was then, had already indicated already prepared (at a cost of development of the application was to develop a third application
community. The farmers each that, should they receive an R300,000), but instead appoint proceeded. for the funding, this time with a
occupy 5 ha where they have been application from the municipality consultants at R460,000 to redraft Towards the end of 2013, the strategic partner/mentor in tow.
growing vegetables and herbs, to upgrade the project’s the application entirely. completed application then Left with no choice, the
each for their own account. They infrastructure, they would provide The Department paid for these went missing. It could not be municipality has since been forced
never intend to take ownership the funding. consultations from its own budget. established whether it had in fact to find a strategic partner, despite
32 PLJ PLJ 33A LUTA
CONTINUA
New Laws are a Setback for
Rural Women
S
ince the end of apartheid, since 2003 which centralise power
women in rural areas have in the hands of chiefs, bolstering
used the Constitution their ability to define the content
to fight for their rights to land. of customary law on their own,
In the negotiation of the 1996 without consulting the people who
Constitution, rural women’s are affected.
organisations fought traditional
leaders who argued that the right
to equality should be subject to Women and customary law
official customary law, in which
T
only married men have rights he new laws introduced
to land. The women won that since 2003 are based
struggle, and then again when the on claims that women
ConCourt ruled against the chiefs’ traditionally had no land rights
objections to the Constitution. under customary law. But
Since then, in case after evidence shows that this is not the
case, the ConCourt has struck case.
down ‘official’ customary law as Many authors have written
discriminatory and “a distortion about how official customary law
of the true customary law ... which was ‘constructed’ by government
recognises and acknowledges the officials in conversation with
changes which continually take African male chiefs and elders.
place” (Bhe, para 86). Western categories were imposed
But the gains women have won on African realities, and the rules
since 1994 are now at risk of being described by male elders were
eroded by a set of new laws passed the ones which became official.
34 PLJ PLJ 35A Lu ta Con tinua A Lu ta Con tinua
and stripped married women not lead to the collapse of family Resistance by the chiefs
only of their legal status but also networks and, by extension,
D
of any legal stake in the couple’s society at large. Both government uring the mid-1990s, the
property. officials and chiefs were of the Congress of Traditional
And yet, traditionally, women view that women should be under Leaders of South Africa
did have primary rights to arable the control of their fathers or (Contralesa) and the Inkatha
land, and strong rights to their husbands at all times, and that Freedom Party (IFP) argued that
houses within the extended family. women with independent land the new Constitution would “put
Even single women were allocated rights would have sufficient such hallowed institutions as
land in their own right, and there agency to reject marriage. lobola (bride wealth) in jeopardy,
are also many accounts of women Meanwhile, a woman’s position open the way to allowing women
inheriting land. as breadwinner through farming to succeed to the monarchy on the
At a local level, the official had begun to change as the money same basis as men, and prevent
restrictions imposed on women sent home by migrant workers a father from claiming damages
were often challenged as being replaced small-scale agriculture for the seduction of his daughter”
inconsistent with ‘actual custom’. as the main source of household (Certification of the Constitution,
But as the power of the apartheid income. Men were increasingly para 200).
government grew stronger, and earning the money to pay for During this time, Chief
the land base in the tiny African bride wealth. No longer were they Patekile Holomisa, the President
reserves (or ‘homelands’) came depending on, and contributing of Contralesa, declared: “Let
under pressure, ‘customary’ to, family networks held together us not confuse each other and
restrictions on women’s land by farming, marriage and the misinterpret that equality shall
These rules tended to exaggerate rights came to be more strictly exchange of cattle. be applicable to each and every
the power and status of the elders enforced by white government Increasing numbers of widows thing. No woman can be the head
at the expense of women and officials. Rights over fields came to and deserted wives found of a family. The head of a family
young men, and were often in be regarded as male property to be themselves faced with eviction is always a man.” He added that it
contradiction with actual practice inherited by the eldest son. from their marital homes at the was “embarrassing and shocking
on the ground. Linked to the mounting whim of their in-laws. Widows to see women claiming to be
This ‘official’ and simplified pressure on land was the and wives became vulnerable to traditional leaders”.
version of customary law, where perception, held by officials and losing the homes and resources But the Constitutional
the male head of the household African patriarchs, that women they had built up over decades of Court has ruled that the official
was the only owner of the land and with independent land rights married life. customary law in textbooks and in
women were seen only as wives or were less likely to marry and that But after apartheid ended and laws like the Black Administration
daughters, hid a more complicated declining marriage rates would the homelands were abolished, Act is not ‘true customary law’,
reality in which single women women could finally use the which evolves as people change
could and did acquire and inherit Constitution to argue for the their patterns of life (see p. 41).
Opposite, top: Members of the Mogopa community
land rights. on their way to a meeting, 1984 (Paul Weinberg). rights they had lost under ‘official’
Opposite, bottom: (from left) Beauty Mkhize, Sizani
The Black Administration Act Ngubane and Jane Vilakazi, community leaders customary law.
of 1951, for instance, made the and struggle stalwarts, attend the Land Divided
Conference commemorating the centenary of the
husband the only property owner 1913 Land Act, March 2013.
36 PLJ PLJ 37You can also read
