Regulatory Impact Assessment Report for Proposed Draft Restitution Policy

11 July Thursday 2013

REGULATORY IMPACT ASSESSMENT REPORT FOR PROPOSED DRAFT RESTITUTION POLICY: RE-OPENING OF LODGEMENT OF CLAIMS

A REPORT COMMISSIONED

THE DEPARTMENT OF RURAL DEVELOPMENT AND LAND REFORM

Compiled by:

Prof Samuel Kariuki

In consultation with:

The Department of Rural Development and Land Reform CONTENTS

GLOSSARY...... 4 1. EXECUTIVE SUMMARY...... 6 1.1 Brief Background...... 6 1.2 Proposed Policy Reforms...... 8 1.3 Context of Proposed Reforms...... 8 1.3.1 The 1913 Natives Land Act and impact of post 1913 dispossession...... 8 1.3.2 Challenges of the curent restitution policy and programme...... 11 1.3.3 Reasons for exclusions...... 12 1.3.4 Numbers of excluded...... 16 1.4 Purpose of RIA Study...... 17 1.5 Options Analysis...... 17 1.5.1 OPTION 1: Policy Inaction - Maintain restrictive timeframes for the restitution programme ...... 17 1.5.2 OPTION 2: Enact Policy Amendments - Re-open cut-off dates and allow further lodgement of claims...... 19 1.6 Monitoring and Evaluation...... 28 1.7 Recommendation and Summary...... 30 2. INTRODUCTION...... 31 2.1 Title of Regulatory Impact Assessment (RIA)...... 31 2.2 Title of RIA Volume 1...... 31 2.3 Issues...... 31 2.4 Objectives of the RIA...... 32 2.5 Current Restitution Policy and Programme...... 33 2.6 Limitations and Challenges of Current Programme...... 35 2.7 Proposed Policy Reforms...... 35 3.0 PROBLEM STATEMENT...... 36 3.1 Exclusions as a result of the 1913 and 1998 cut-off dates...... 36 3.2 Categories and Numbers of People Excluded...... 37 3.2.1 Figures of those unable to lodge claims by the 1998 cut-off date...... 38 3.2.2 Figures of betterment victims...... 39 3.2.3 Figures of pre-1913 dispossessions...... 40 3.2.4 Figures of farm dwellers and labour tenants excluded from programme...... 41 3.3 Underlying Reasons for Exclusions...... 45 3.3.1 Weaknesses in the design of restitution...... 45 3.3.2 Lack of awareness of the right to restitution and claims process...... 48

2 3.3.3 Exclusion of those dispossessed under “Betterment” Policies...... 51 3.3.4 Ommission of pre-1913 land alienation...... 57 3.3.5 Exclusion of certain labour tenants and farm dwellers...... 61 3.4 The 1913 Natives Land Act and the Impact of post 1913 Dispossession...... 63 3.4.1 Intended objectives and provisions of Natives Land Act of 1913...... 64 3.4.2 Major impacts of 1913 Act...... 65 4.0 PUBLIC RESPONSES TO 2013 RESTITUTION BILL...... 70 4.1 Responses from NGOs in the Land Sector...... 70 4.2 Academic Sector Responses...... 71 4.3 Responses from Organised Agriculture...... 72 4.4 Business Chambers Responses...... 74 4.5 Responses from Traditional Authorities...... 75 4.6 Responses from Indigenous Rights Organisations and others...... 76 5.0 POLICY OPTIONS...... 77 5.1 OPTION 1: Policy Inaction- Maintain current restrictive timeframes for restitution programme...... 77 5.1.1 Adequacy of the “Stake Your Claim” campaign...... 78 5.1.2 Problems with financial compensation...... 78 5.1.3 Restoration of dispossessed land is not feasible...... 79 5.1.4 Disturbances in the land market, land-based investments and production...... 80 5.1.5 Impact on Redistributon, Tenure reform and other development programmes...... 81 5.1.6 Opposition to allowing submission of pre-1913 claims...... 82 5.2 OPTION 2: Re-open cut-off dates and allow further lodgement of claims...... 83 5.2.1 Envisaged benefits of re-opening cut-off dates within the Context of Ailing Rural Economies, The 2011 Green Paper, The 2012 National Development Plan and The Census 2011 Data...... 83 5.2.2 Anticipated costs of processing new claims...... 90 5.3 Alternatives and Assessment of Options...... 99 6.0 THE SOCIO-ECONOMIC IMPACTS OF RE-OPENING 1998 DEADLINE...... 100 6.1 Introduction...... 100 6.1.1 Methodology...... 100 6.1.2 Current socio-economic status of South Africa...... 101 6.1.3 Baseline claims information...... 102 6.1.4 Socio-Economic Impact Assessment and Cost Benefit Analysis approach...... 105 6.2 Socio-Economic Impact Results...... 106 6.2.1 Impact in terms of Administrative costs...... 106 6.2.2 Impact in terms of land claims scenario costs...... 107 6.3 Cost Benefit Analysis of Three Scenarios for Re-Opening 1913 Claims...... 112 6.4 Summary of Findings...... 115 6.5 Socio-economic impact results for opening pre-1913 claims...... 116 7.0 MONITORING AND EVALUATION...... 116 8.0 THE CONCEPT OF THE “FIRST NATIONS” AND ABORIGINAL TITLE...... 118

3 8.1 Conceptualisation of “First Nations” and “Aboriginal Title”...... 118 8.2 ‘Discovery Rights’ versus the concept of ‘Limited Possessor’...... 119 9.0 INTERNATIONAL REVIEW...... 121 9.1 Introduction...... 121 9.2 AUSTRALIA...... 122 9.2.1The Terra nullius v. John Batman case and the Mabo and others v. State of Queensland case ...... 122 9.2.2 The Native Title Act of 1993 and the subsequent restitution programme...... 123 9.2.3 Responses to the Mabo Ruling...... 123 9.3 NEW ZEALAND...... 124 9.3.1 Implementation of the restitution programme...... 125 9.3.2 Impact of the programme and lessons for South Africa...... 126 9.4 CANADA...... 127 9.4.1 Objectives and implementation of the restitution policy...... 128 9.4.2 Impact, Societal Responses and Possible Lessons...... 129 9.5 GERMANY...... 130 9.5.1 The first and second waves of restitution policy...... 130 9.5.2 Implementation and impacts of restitution policy...... 131

List of Tables

TABLE 1: TOTAL ESTIMATES OF PERSONS EXCLUDED FROM RESTITUTION PROGRAMME...... 42 TABLE 2: PROVINCIAL CRLR ESTIMATIONS OF THOSE EXCLUDED AND EXPECTED NEW CLAIMS...... 43 TABLE 3: NUMBERS OF HECTARES AND PRICE OF RESTITUTED LAND IN 2011/2012...... 94 TABLE 4: CLAIM COSTS BY PROVINCE, 1995-2013...... 104 TABLE 5: MACROECONOMIC EFFECT OF THE ADMINISTRATIVE EXPENDITURE OVER FIVE YEARS...... 107 TABLE 6: SUMMARY OF ASSUMPTIONS MADE IN THE THREE POST 1913 SCENARIOS...... 108 TABLE 7: MACROECONOMIC EFFECT OF THE LAND CLAIMS RE-OPENING SCENARIO ONE OVER FIVE YEARS...... 109 TABLE 8: MACROECONOMIC EFFECT OF THE LAND CLAIMS RE-OPENING SCENARIO TWO OVER FIVE YEARS...... 110 TABLE 9: MACROECONOMIC EFFECT OF THE LAND CLAIMS RE-OPENING SCENARIO THREE OVER FIVE YEARS...... 112 TABLE 10: SUMMARY OF THE CBA NET EFFECT (IN NVP) OF THE THREE SCENARIOS POST 1913...... 113

List of Figures

FIGURE 1: NUMBER OF CLAIMS LODGED PER PROVINCE, 1995-2013...... 103 FIGURE 2: SUMMARY OF THE KEY ASPECTS OF INCREASING ADMINISTRATIVE CAPACITY...... 107

4 GLOSSARY

Acronym Full Description

RIA Regulatory Impact Assessment DRDLR Department of Rural Development and Land Reform CRLR Commission for Restitution of Land Rights LCC Land Claims Court CPA Community Property Association WB World Bank GEAR Growth, Employment and Redistribution programme SIP Strategic Infrastructure Project NDP National Development Plan (2012) RLRAB Restitution of Land Rights Amendment Bill, 2013 NGO Non-Governmental Organisation AFAFSA African Farmers’ Association of South Africa AFRA Association for Rural Advancement NAFU National African Farmers’ Union LPM Landless People’s Movement WB/WS Willing buyer/ Willing seller (WB/WS) DLA Department of Land Affairs EIA Socio-Economic Impact Assessment CBA Cost Benefit Analysis GDP Gross Domestic Product NLC National Land Committee GLLC Gauteng Land Claims Committee

5 LTA Labour Tenants Act, No. 3 of 1996 ESTA Extension of Security of Tenure Act, No. 62 of 1997 LRC Legal Resources Center CALS Centre for Applied Legal Studies SAP Structural Adjustment Programme IMF International Monetary Fund TRC Truth and Reconciliation Commission BRC Border Rural Committee SANT South African Native Trust SPP Surplus Peoples Project SSDP Settlement Support and Development Planning Division RLCC Regional Land Claims Commission OFS Orange Free State SANNC South African Native National Congress IRASA Institute for the Restoration of the Aborigines of South Africa LAMOSA Land Access Movement of South Africa PLAAS Institute for Poverty, Land and Agrarian Studies CDE Centre for Development and Enterprise GIS Geographical Information System IDP Integrated Development Plan KZN KwaZulu-Natal EC Eastern Cape NNTT National Native Title Tribunal 1. EXECUTIVE SUMMARY

1.1 Brief Background

This Regulatory Impact Assessment (RIA) is focused on the feasibility of the re-opening of the

6 1998 deadline for the lodgement of land claims by various persons and communities who were excluded from the restitution programme. The Restitution of Land Rights Act, 22 of 1994 was the first law passed by the new ANC-led democratic government that provided redress for the massive land dispossession that occurred under colonial and apartheid governments. As part of the restitution leg of the constitutionally-sanctioned three-pronged land reform programme, the 1994 Act provides persons (or their direct descendants) and groups an opportunity to restitution claim for lost land rights as a result of racially discriminatory legislation after 1913. This right is confirmed by Section 25(7) of the 1996 Constitution which states

A person or community dispossessed of property after June 19 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.1

Between the start of 1995 through 31 December 1998, claims for restitution for alienated land rights were accepted by government. The Department of Rural Development and Land Reform (DRDLR) has indicated that of the approximately 80 000 claims received by the end of this window period2. Government has indicated that in addition to the beneficiaries of these unsettled claims, there are substantial numbers of dispossessed citizens who have not been able realise their constitutionally-sanctioned right to restitution for various reasons. Four categories of people have been identified as having been excluded, namely those who were unable to lodge a claim before the closing date of 31 December 1998; those who were dispossessed prior to the designated cut-off date of 19 June 1913; and people who lost land rights as a result of betterment schemes and were thus prohibited by the Commission for Restitution of Land Rights (CRLR) from lodging claims before December 1998; and certain categories of farm dwellers and labour tenants.

Although the 1997 White Paper envisioned that these categories of dispossession would be addressed by the other legs of the country’s land reform programme, namely redistribution and tenure reform, this has not manifested and therefore requests to re-open the cut-off dates and permit further submission of claims have consistently been made to Government. While an estimated 345 463 households consisting of 1.7 million restitution beneficiaries have reportedly benefited from the current programme (as of March 2012),3 this latter figure falls drastically short of the estimated 7.5 million people who were dispossessed of their land rights as a result of racial discrimination after promulgation of the Natives Land Act in 1913.4 Thus a large proportion of South Africa’s historically disadvantaged population has been excluded from their

1RSA (Republic of South Africa), 1996. Constitution of the Repuiblic of South Africa, No. 108 of 1996. Government Printers: Pretoria. Section 25(7). 2Andrew, N. 2006.The dilemmas of apologizing for apartheid: South African land restitution and the Modimolle land claim. Ph. D. sociologie-démographie, Université de Paris V, René Descartes. 3DRDLR, RIA terms of reference 4Kariuki and Olivier, 2011.

7 constitutionally-mandated right to restitution for alienated land rights, which is the key focus of this RIA study.

1.2 Proposed Policy Reforms

This RIA study assesses the feasibility for three key policy reforms that intend to create an expanded and more inclusive restitution programme implemented by well-capacitated and capable institutions and accompanied by an effective beneficiary support system. The three proposed reforms include:

1. Re-open the lodgement of restitution claims: emphasised as the most important needed reform by consulted restitution beneficiaries, this involves enabling eligible persons and groups who did not submit claims by the cut-off date of 31 December 1998 to lodge claims for a period of five years after the proposed legislation takes effect.

2. Improve the planning and administrative processes of the restitution programme: amendments presented here aim to ensure a more effective implementation of the restitution programme to avoid the costly and cumbersome delays that have characterised implementation of the current policy. Proposed reforms provide for three phases of the new restitution process: first those unresolved claims lodged by 31 December 1998 should be processed, followed by those unlawfully excluded (including claims filed by victims of betterment schemes) and finally those excluded due to the 1998 cut-off date.

3. Improve support provided to restitution beneficiaries: an improved beneficiary support programme that aims to advance national rural development objectives is proposed. This is envisioned to occur through a capacitated institutional restitution structure in which the CRLR is made autonomous from the DRDLR and supported by a higher staffed Land Claims Court (LCC) as well as the 2011 Green Paper’s proposed structures including the Land Rights Management Board, Land Rights Management Committees, Office of the Valuer General and the Land Management Commission (to be established).

1.3 Context of Proposed Reforms

1.3.1 The 1913 Natives Land Act and impact of post 1913 dispossession The Natives Land Act, No. 27 of 1913 was the first major piece of legislation passed by the country’s oppressive white governments that dispossessed the majority of the population of their land and livelihoods.5 Considered the cornerstone of apartheid, the 1913 Natives Land Act is directly linked to the inequality and impoverishment that plagues South Africa.6 The socio- economic repercussions of the Act cannot be understated as the highly unequal nature of

5Plaatje, S. and A.F.B., 1976. Homeless! Landless! Outlawed!: the plight of South African Natives interview with Solomon Plaatje. English in Africa, 3(2), pp. 59-63; Feinberg, H.M. 1993. “The 1913 Natives Land Act in South Africa: politics, race, and segregation in the early 20th century.” The International Journal of African Historical Studies, 26(1), pp. 65-109. 6 Daniels, R., 1989. The Agrarian land question in South Africa in its historical context, 1652-1988. American Journal of Economics and Sociology, 48(3), pp. 65-89.

8 contemporary South African society can be directly traced back to its passage. As the Constitution provides the right to restitution or equitable redress to those who were dispossessed of their land and property due to promulgation of the 1913 Act or subsequent racially discriminatory legislation and practices, it is important to explore briefly the devastating consequences that this law held for the nation’s African population.

The Natives Land Act was promulgated in persuance of multiple objectives. These include attempts to prevent squatting and sharecropping arrangements on white-owned farms; to create an abundance of cheap labour (for white farmers and the mining industry); to put an end to land purchases by Africans; to bring about uniformity in policies regarding Africans in the new Union; and to promote segregation.7 Such aims are readily visible in the mains provisions of the Act. The most important provision was the creation of a number of reserves, limiting black purchase or ownership of land to only 7.3 percent of the country’s total land surface.8 Africans were forbidden from buying or renting land outside of these delineated reserve areas. Freehold tenure was also prohibited in the ‘scheduled areas’ with land held in trust for different communities.

Another important provision of the 1913 Act was the prohibition of both sharecropping and “squatting” on white-owned farms, especially in the Orange Free State (OFS) where increasing numbers of whites perceived black occupation of land as a major threat to their economic survival.9Because independent Africans either “squatting” or leasing land in white areas were less likely to provide labour for low wages from either mining capitalists or Afrikaner farmers as they could create their own enterprises and generate other means of sustenance from the land, these were considered a major factor in undermining agricultural productivity and development of an industrial state.10

The 1913 Natives Land Act abolished indigenous forms of communal tenure that had existed amongst African communities for centuries and the approximately 4.5 million Africans living in South Africa during this time were crowded into a miniscule portion of the country’s land surface, essentially rendered landless and homeless in the country of their birth.11 The subsequent impacts of this dispossession saturated every aspect of African life and society. One of the most devastating effects of the 1913 Natives Land Act was to severely undermine African agriculture.

7 See Tatz, 1962; Nieuwenhuysen, 1968; Wickins, 1981; Keegan, 1986; Daniels, 1989; Feinberg, 1993. 8Willan, B., 1979.The Anti-Slavery and Aborigines' Protection Society and the South African Natives' Land Act of 1913.The Journal of African History, 20(1), pp. 83-102. 9British Institute of International and Comparative Law, 1915.South African Native Land Laws.Journal of the Society of Comparative Legislation, New Series, 15(1), pp. 9-16. 10 Daniels, R., 1989. The Agrarian land question in South Africa in its historical context, 1652-1988. American Journal of Economics and Sociology, 48(3),pp. 65-89. 11Plaatje, S., 1916.Native life in South Africa before and since the European War and the Boer Rebellion: Johannesburg: Ravan Press.

9 Significant numbers of Africans had become successful agricultural producers during the 19th century.12 However, due to various unfavourable structural factors and political interventions from 1886 onwards, by 1913 the African peasantry exhibited grim signs of agricultural decline and the Natives Land Act almost completely wiped out the remaining independent black farmers who had survived such obstacles.13 Former relatively autonomous African farmers were forced into wage labour (for instance, in the Transvaal the black agricultural labour force grew by 75% between 1918 and 1930 and by 1927, farming in Natal reserves produced less than 25% of residents’ subsistence needs). Thus the development of the African agricultural sector was halted.14

This massive loss of land and means of production black South Africans experienced as a result of the 1913 Act was accompanied by an enormous loss of assets. Evicted families were not only forced to move off their land, but also to leave behind their dwellings, tools, furniture, clothing, kitchenware and other important household items. Many evictees, most notably in the OFS and Transvaal, were given extremely short notices and thus were able to take only what they could carry. In addition, other important livelihood assets including sources of water, fuelwood, cultivated crops, wild foods and hunted game were lost with the dispossession of land and subsequent forced migration of entire African communities to reserve areas after passage of the 1913 Act.15 Replacement of livelihood assets and livestock was extremely difficult in the overcrowded reserves as they were characterized by depleted natural resources, deteriorated soils and drastically limited grazing lands.16 Without sufficient agricultural land to cultivate food for subsistence and other resources to assist in replacing lost assets, the ability of Africans to meet their livelihood needs became increasingly difficult.

As a result of the 1913 Act, South Africa’s former homelands, home to 16 million historically disadvantaged citizens,17now consist of the most environmentally degraded lands found in South Africa. While colonial governments intentionally drew reserve boundaries to exclude land with valuable agricultural potential or mineral resources, forcing Africans into hilly, rocky areas with thin topsoil and unpredictable rainfall, the land quality and environmental conditions in today’s communal areas is much worse than before promulgation of the 1913 Act.This environmental deterioration can largely be attributed to the conditions of overpopulation and land congestion

12 See for example Bundy, C., 1972. The Emergence and Decline of a South African Peasantry.African Affairs, 71; Bundy, C., 1979.The Rise and Fall of the South African Peasantry. London: Heinemann;Houghton, D.H., 1964. The South African Economy. London. Pp. 52-53. 13Bundy, C., 1972.Op.Cit. pp. 371. 14 Oettle, N., Fakir, S., Wentzel, W. Giddings, S. & Whiteside, M., 1998. Encouraging sustainable smallholder agriculture in South Africa. Hillside: Environment and Development Consultancy Ltd; Delius, P., 1995. A History of Land Struggles: 1652-1980. Unpublished paper prepared for the NLC Land Reform Vision, Johannesburg. Pp. 26-27. 15Plaatje, S. 1916. Op.Cit. 16Durning, A. B., 1990.Apartheid's Environmental Toll. Worldwatch Paper 95. 17 Mayende, G., 2004. The Challenge of Land Tenure Reform in South Africa.Issues, Problems and Prospects.In Roth, M., Nxasana, V, Sibanda, S and Yates, T. 2004.Finding Solutions Securing Rights. Lexis Nexis, Butterworths.

10 that has characterized the reserves for close to a century now.18Throughout the second half of the twentieth century, land in these areas became increasingly scarcer, making it virtually impossible for homeland residents to engage in agricultural production. Today, subsistence farming is extremely difficult due to limited plot size and decreased quality of soils. Per capita food production in the former reserves has fallen drastically, with these areas now net importers of food goods.19

Thus, as is demonstrated above, the enactment of the Natives’ Land Bill in June 1913 had quite a number of negative consequences for African life. People were turned into wanderers – away from the land of their birth – and underwent different conditions of slavery, persecution, vagabondage, oppression and even the loss of their lives and those of the family members. 20 Families and communities were often broken up, independent agricultural producers were forced into barely compensated wage labour and millions were overcrowded into the least arable areas of the country.

The Natives Land Act of 1913 was followed by several more racially discriminatory pieces of legislation, instigating a long and devastating history of forced removals and evictions of Africans from their ancestral lands. These laws included (amongst others) the 1927 Native Administration Act, the 1936 Native Trust and Land Act, the 1951 Prevention of Illegal Squatting Act, the Bantu Authorities Act of 1951, and the Promotion of Bantu Self Government Act of 1959. In order to address the unquantifiable loss of land and assets that resulted from such legislation, the newly elected ANC government initiated the three-pronged land reform programme, consisting of restitution, redistribution and tenure reform. The restitution programme came into effect with passage of the Restitution of Land Rights Act in 1994.

1.3.2 Challenges of the curent restitution policy and programme In the 18 years that have passed since promulgation of the Restitution of Land Rights Act, limited progress has been achieved in realizing the main goals of the programme, expressly the aim to “restore land and other restitutionary measures to people dispossessed by racially discriminatory legislation and price, in such a way as the provide support to the vital process of reconciliation, reconstruction and development”as well as objectives of advancing national reconciliation, inclusive economic development, social transformation and improving livelihoods.21 The limited inroads restitution has made in providing such redress is largely due to limitations that have characterised the programme including:

 The slow pace of processing and settling claims;

18Ibid. 19Nhlapo, M.S., Kasumba, H. & Ruhiiga, T.M., 2011.Growth Challenges of Homeland Towns in Post-Apartheid South Africa.Journal of Social Science J, 29(1), pp. 47-56. 20 Msimang, R.W., 1914. Natives Land Act 1913: Specific Cases of Evictions and Hardships. Cape Town: Friends of the South African Library, 1996. 21DLA (Department of Land Affairs). 1997. Op.Cit. Pp. 52, section 4.13.

11  The subordination of land restitution to property rights;

 The majority of settlements have consisted of pecuniary compensation rather than restoration of land or prioritisation in state development initiatives;

 Inadequate provision of post settlement support and failure to link with broader development initiatives;

 Challenges of reconstituting communities and problems experienced by Community Property Associations (CPAs);

 Lack of institutional capacity, underfunding and understaffing of the programme as well as lack of coordination with other Government land and rural development initiatives; and

 Exclusion of significant numbers of people and communities.

This last major limitation is directly related to the restitution programme’s restrictive timeframes, which are highly problematic as they have resulted in the exclusion of the large majority of the historically marginalised citizens who lost property rights under colonial and apartheid regimes. Due to its exclusive nature, restitution has not fulfilled one of its primary objectives of affording redress to “substantial numbers of claimants who were dispossessed of land after 1913 under racially discriminatory laws and processes”.22 The exclusions have also hindered the potential for the programme to alter the spatial imprints of apartheid. Furthermore, the cut-off dates have meant that the right to restitution is applied unevenly, with some areas of the country and categories of dispossessed persons and communities benefitting whilst others are excluded.23

1.3.3 Reasons for exclusions The underlying reasons for exclusions can largely be attributed to weaknesses in formulation of the current restitution policy. First, the transitional and international context in which the restitution policy was designed ensured that the programme would remain limited in scope and that the right to restitution was undermined by the entrenchment of private property rights in the 1996 Constitution. This can be attributed to the weighty influence of international actors such as the World Bank (WB), the powerful sway of white business interests and the ANC’s political needs.24 Additionally, the fact that lawyers (rather than a mixture of historians, sociologists and human rights activists) played a dominant role in restitution policy development meant that the process of restitution was viewed as a reversal of a limited category of discriminatory land transfers as opposed one that must tackle the “need to redress the deeper social and psychological impacts of apartheid land law”.25

22DLA (Department of Land Affairs). 1997. Op.Cit. 23 Makgetla, N.S. 2010. Synthesis Paper: South Africa Lead Economics, Develop Planning Division, Development Bank of Southern Africa. 24 RSA (Republic of South Africa). 1993. Constitution of the Republic of South Africa Act, No. 200 of 1993. Pretoria: Government Printers.Section 2. 25Roux, T. 2008.Op.Cit Pp. 154.

12 The implications of the constitutional compromise struck at Kempton Park for restitution meant that the constitutionally protected private property rights largely acquired through racially motivated processes of dispossession by white landowners could only be restored to original black indigenous citizens through a lengthy and highly legalistic process that required extensive preparation, organisation and resources.26 Furthermore, the restitution programme was constrained to permit only claims for dispossession which occurred after promulgation of the 1913 Natives Land Act.

The second major factor that contributed to the exclusiveness of the restitution programme was the inadequate attention and effort (as well as insufficient time) dedicated to creating a widespread awareness of the restitution process amongst the general public. From the start, focus was placed on the settling as opposed to the lodging of claims.27 Also, the beginning years of the programme were spent establishing institutional infrastructure and tackling the innumerable capacity constraints of the CRLR rather than addressing the low submission of restitution applications. For some regions of the country such as the Western Cape, more than a year passed before regional CRLR offices had established permanent headquarters or hired communication officers.28 Problems in developing a well functioning and efficient restitution programme were exacerbated by the changing political and economic context of the mid-1990s with the adoption of the Growth, Employment and Redistribution programme (GEAR) in 1995, which greatly limited funds available to the CRLR and thus the scope of the restitution programme.

While the “Stake Your Claim” Campaign attempted to spread awareness of the programme and encourage more eligible citizens to submit claims, available evidence reveals that the three years allotted for lodging claims was highly inadequate for educating the public of the right to file applications for restitution (with one study reporting that as late as 2006 a significant number of people remained unaware of the programme).29 Thus the institutional weaknesses characterising the initial years of the programme, the failure of communication strategies to reach a majority of those who were alienated from their land post 1913 and the relatively short timeframe allotted for submission of claims resulted in widespread lack of awareness of the constitutionally mandated right to restitution.

The other underlying reasons for the exclusiveness of restitution policy are directly related to the specific groups who were prevented from submitting claims. In addition to those who were unable to submit claims by the 1998 cut-off date, other categories of groups excluded from the restitution programme include:

26Andrew, N. 2006.Op.Cit. 27Westaway, A. 2008.Re-membering the Centennial South African Nation-State. PhD Thesis, University of Fort Hare. Available at: ufh.netd.ac.za/bitstream/10353/149/1/Westaway%20thesis.pdf. 28Ibid. 29Aliber, M., Reitzes, M. & M. Roefs. 2006. Op.Cit.

13  The victims of betterment planning, which “involved the centrally planned and imposed re-organisation of rural communities by changing where people lived, how they used their land, and how much land was available to them30”. Betterment schemes were enacted through various Proclamations permitted by the 1913 Natives Land Act, the 1927 Native Administration Act and the 1936 South African Native Trust and Land Act. Under the guise of environmental conservation, prevention of soil erosion and agricultural development, reserve areas were separated into different zones designated for residential use, grazing or agricultural purposes and residents were forced to relocate to specific zones.

Implemented in the 10 former homelands, betterment schemes resulted in tremendously negative impacts on African life including the destruction of peasant farming, dissolution of family systems, community disintegration, cultural deterioration and massive loss of land and livelihood resources.31 In addition, betterment increased land congestion, environmental degradation and impoverishment in the former homelands.32 Despite the fact that this category of dispossession was directly a result of racially discriminatory laws and practices resulting in the forced removal of between 1.3 and 4 million people, the drafters of the 1997 White Paper on South African Land Policy deemed the devastating effects of betterment planning irrelevant to land restitution.33

 Descendants of individuals and groups who lost land rights prior to 19 June 1913, which has rendered the restitution programme disproportionately exclusive as most of the land in South Africa was alienated from indigenous groups before the Natives Land Act of 1913 was passed. Pre-1913 dispossession of indigenous South Africans occurred as early as 1657 and continued throughout the 18th and 19th centuries. Initial land alienation from the San and Khoe was justified by Dutch settlers on the grounds that the land was terra nullius (without an owner) as well as racist assertions that the indigenous peoples were physically and mentally inferior human beings.34

In addition to the numerous instances of armed conflict and broken promises that resulted in loss of indigenous rights to land, several pieces of legislation were promulgated to alienate indigenous groups from the land and thus force them into indentured labour. These included the Caledon Code’ of 1809; the Kaffir Pass Act of 1856; the Orange Free State Occupation Law enacted of 1866; the 1884 Native Location Act; the Squatter Laws of 1887; the Natives Locations Act of 1879; the Glen Grey Act of 1894; the 1895 Squatter Laws Act; the 1904 Masters and Servants Ordinance; the Native Occupation of Land Act of 1908; and the Mission Stations and Communal Reserves Act 29 of 1909. Despite the fact that this legislation (as well as innumerable racially discriminatory practices carried out by white settlers and colonial governments) resulted in the majority of

30 Border Rural Committee (BRC), 2001. Keiskammahoek Communal Betterment Claims: Gwili-Gwili. Gxulu, Mnyameni, Mtwaku, Ndlovini, Ngobozana, Upper Ngqumeya: Information Pack for the Purposes of Formulating Settlement Agreements(East London: Border Rural Committee) [Keiskammahoek Communal Betterment Claims]. 31DRDLR, 2011b.Legal analysis of, and recommendation in respect of, land dispossessions caused by the implementation of “betterment planning” policies and legislation with specific reference to the former Transkei. (Unpublished). 32DRDLR, 2011b.Op.Cit. 33 Andersson, J. and Axelsson, L. 2005. ‘Cata – A Former Homeland Village Affected by Betterment, Eastern Cape, South Africa’, (Unpublished). 34 Yanou, M.A. 2006. The 1913 Cut-off Date for Restitution of Dispossessed Land in South Africa: A Critical Appraisal. Africa Development, Vol. XXXI, No. 3, pp. 177–188.

14 indigenous South Africans being dispossessed of their land prior to passage of the Natives Land Act, these lost land rights were excluded from the restitution programme.35

 Certain categories of labour tenants and farm dwellers: While labour tenants who had lived and worked on commercial farms for a minimum of ten years prior to their displacement are eligible to claim a right to restitution, persons and communities who were evicted in the post-transition era (who do not fall within the scope of the Restitution Act as such rights were ineffectively covered by tenure reform legislation); those commercial farm dwellers and labour tenants who managed to remain living on white-owned commercial farms; and long-time occupiers of commercial farms who cannot prove they were evicted for explicitly racial reasons are also excluded from the restitution programme.

It is estimated that between 1 and 4 million people have been illegally evicted from commercial farms since the introduction of democracy in 1994.36 Furthermore, it is estimated that there are currently 3 million farm dwellers and 20 000 labour tenants residing on privately-owned commercial farms in South Africa.37While the 1997 White Paper envisioned the needs of these groups being addressed through other land reform programmes, this has not happened and evictees and people currently living in commercial farming areas represent one of the most impoverished segments of the population.

1.3.4 Numbers of excluded It is extremely difficult to determine the exact number of historically dispossessed South Africans who have been excluded from the restitution programme and thus how many new claims could be lodged under the new restitution policy. Not only has the CRLR failed to keep records of those claims submitted after 1998, but there are also no official records listing the massive numbers of forced displacements that occurred in the twentieth century. What is known regarding figures of dispossessed individuals and communities who were excluded from claiming their right to restitution is that, of the estimated 7.5 million (which is a conservative calculation) people alienated from their land after 1913, the DRDLR reports that only 1.7 million individuals have benefitted from the restitution programme (less than 23 per cent of the 7.5 million estimate).38

Only recently, as amendments to the 1998 cut-off date have been proposed, have provincial CRLR offices begun computing estimated figures of new claims they expect to be submitted. Here, regional offices were requested by the national DRDLR office to estimate how many people (namely those unable to submit claims by the 1998 deadline and the victims of betterment schemes) had been excluded and how many claims were expected during the new proposed

35Roux, T. 2008.Op.Cit. Pp. 155–156. 36Institute for Poverty, Land and Agrarian Studies (PLAAS), 2011. Submission to the Department of Rural Development and Land Reform: Comments on the Green Paper on Land Reform 2011. Cape Town: PLAAS. Pp. 3; DLA, 2007. Land Rights Management Facility Concept Document. 37Ibid. 38 Kariuki, S. and Olivier, 2011; DRDLR, RIA terms of reference.

15 lodgement period of five years. Numbers provided for each category totaled 26 418 and 137 420, respectively (see Table 2 in Chapter 3).39

However, Commission officials emphasised that these numbers were extremely conservative as no records had been maintained regarding the number of late restitution requests they received due to prior understanding that the lodgement period would remain closed. Additionally, these statistics covered only 5 out of the 9 provinces as some regional offices provided no reponse or were unsure of numbers. Thus, what is certain regarding the number of new claims to be expected as a result of re-opening the lodgement window is that this figure will be much higher than the 80 000 claims previously received. Based on provincial CRLR estimates, the Socio- Economic Assessment (EIA) conducted as part of this RIA estimated that the number of new claims to be submitted would increase by a factor of five, amounting to approximately 400 000.40 This increase is largely because victims of betterment planning shall be included, many people are now more aware of their rights, and the lodgement period will be extended by a substantial amount of time, giving ample opportunity for eligible citizens to stake their claim.

1.4 Purpose of RIA Study

Given the many problems faced by the restitution programme since its inception, most particularly its exclusive nature and failure to substantially improve livelihoods of beneficiaries, Government has introduced the proposed reforms described above with the envisioned outcomes of an expanded, more inclusive and well-capacitated programme. Therefore, the purpose of this RIA study is to evaluate the administrative, fiscal, legal and socio-economic feasibility of the re- opening of the lodgement of claims.

This consists of assessing the nature of the problem at hand and how well this is understood; the underlying reasons for the exclusiveness and ineffectiveness of the current restitution programme and why existing policy needs to be amended; the direct and indirect financial, legislative, socio- economic and political implications involved in both maintaining the status quo and enacting proposed reforms; and the international experience with restitution programmes worldwide, especially those that have undergone similar reforms.

This RIA will serve as a key tool used by policy-makers to develop sound evidence-based restitution policies that maximise intended beneficial outcomes, while minimising negative impacts and unintended consequences. The study furthermore increases accountability and transparency in policy-making by clarifying all expected costs and benefits of the proposed reforms for all interested parties. It presents the best option for addressing the exclusive nature (as well as various other limitations) of the current restitution policy and programme to policy- makers in order that legislative decisions render the most beneficial outcomes for marginalised citizens and the South African society overall. Additionally, this RIA study highlights the

39DRDLR, 2013c.Op.Cit. 40Statistical Development Economists, 2013.Land Restitution: Socio-Economic Impact Assessment. Unpublished.

16 necessary steps that need to be adhered to in order for the proposed policy reforms to be implemented successfully.

1.5 Options Analysis

Two policy options to address the weaknesses of the current restitution policy and programme are assessed in this RIA namely (1) retaining the 1998 cut-off dates for restitution or (2) re- opening these restrictive timeframes to allow for submission of new claims by the various categories of persons and communities excluded from the current programme. These options are summarised below and presented in detail inChapter 5.

1.5.1 OPTION 1: Policy Inaction - Maintain restrictive timeframes for the restitution programme Preference for policy inaction rests on various arguments that emphasise the importance of the cut-off dates and the risks associated with re-opening the lodgement process. Justifications for resisting pressure to allow submission of new claims include:

 The adequacy of the mass communication campaign to alert potential claimants of their right to restitution: government officials posit that this effort to educate eligible citizens of their right to restitution was comprehensive and reached all areas of the country, thus creating widespread awareness of the programme. The campaign included radio and television broadcasts, newspaper advertisements, extensive distribution of pamphlets, posters, t-shirts and hats, taxi-rank promotions, workshops and establishment of a National Call Centre with a toll free number to assist claimants with questions.

 The likelihood that new claimants will opt for financial compensation: Government officials have indicated that many late claimants have requested settlements of cash compensation and thus re-opening the cut-off dates will only increase costs of the restitution programme without producing sustainable development outcomes or altering the unequal patterns of land ownership in South Africa.

 The lack of feasibility of restituting dispossessed rights to property: This concern partially arises from the fact that much of the land currently involved in rural restitution claims is occupied by other historically disadvantaged citizens. Allowing submission of new claims will certainly increase the amount of occupied land under claim and thus poses serious risks of heightened conflicts between different groups as well as increasing tenure insecurity. Additionally, provision of alternative land in certain cases may not be practical or affordable. However, these complications are explicitly acknowledged by the proposed restitution policy and provisions are made to address such issues.

 Risks of further disturbances in production, the land market and land-based investments: As the current restitution policy requires that land under claim be published in the Government Gazette and places various restrictions on such property (including prohibiting its sale), business interests and organised agriculture have asserted that the restitution programme has held extremely negative implications for land markets,

17 investments in land under claim and economically important productive sectors such as agriculture. 41 This is related to the uncertainty of future ownership, the long delays in processing of claims (which sometimes means land involved in rural claims is removed from the land market for years, and the refusal of banks and investors to accept gazetted land as collateral for loans. Furthermore, concerns that settlements of new rural claims will result in disruption of commercial agricultural production have been frequently expressed. These issues are also addressed by proposals put forward in the new policy framework.

 Negative implications for other legs of land reform and other state development programmes: this argument against re-opening the lodging of claims process argues that restitution has been an extremely costly programme which has generated few benefits for beneficiaries. Rather than continue to devote state funds to the processing and settlement of restitution claims, opponents of amending the 1913 and 1998 cut- off dates posit that resources should be dedicated to other socio-economic and welfare priorities (including other areas of land reform) that spread benefits to across historically disadvantaged communities evenly.

However, it is crucial to note that Option 1 (Policy Inaction) will entail a continuity in the structural limitations of the current restitution policy and programme. Above all, the historic quest to deal with questions of historic redress, reconciliation, and social justice will remain. In a context of heightened awareness on the exclusive and restrictive nature of restitution, coupled with public awareness of the original aims of the Restitution Act, intensive lobbying by communities, organised groupings, and affected citizens at large will go unabated. Policy inaction therefore will be a deferrement of a problem on historic injustice that must and should be dealt with in advancing the national imperatives of transformation, nation building, and creation of an inclusive society.

1.5.2 OPTION 2: Enact Policy Amendments - Re-open cut-off dates and allow further lodgement of claims This second option, namely to re-open the cut-off dates to allow for further lodgement of claims to expand the scope of restitution and render it a more inclusive programme, is bolstered by various arguments that provide solid rationalisations for amending current restitution policy. These justifications are based on the fact that a large majority of eligible citizens were excluded from the process and thus denied their constitutionally-mandated right to restitution for alienated land rights. Limitations in policy design, institutional functioning and length and methods of communication strategies educating the general public about restitution resulted in a proportionately low number of claimants as compared to the millions who suffered forced removals under colonial and apartheid regimes.

Re-opening the cut-off dates will allow many more involuntarily displaced individuals and groups to rightly file applications for restitution and thus be given the chance at redress for historical injustices, especially considering that this has not been provided through other legs of the land reform programme as promised. Beyond fulfilling this firm principal aim of expanding the scope of restitution to ensure a more inclusive programme that extends the chance for

41Centre for Development and Enterprise (CDE). 2008. Land Reform in South Africa: Getting back on track. CDE Research No. 16. CDE: Johannesburg.

18 restitution to all constitutionally entitled persons and communities, there are many foreseen beneficial outcomes of re-opening the lodging of claims process. These are presented in the following sub-section.

1.5.2.1 Envisaged Benefits of amending Cut-off dates

There are many potential benefits of allowing submission of new restitution claims within a context of an improved administrative framework and capacitated institutional environment. First, the proposed amendments will engender a more expansive and inclusive restitution programme in which the millions of excluded dispossessed can again be informed of their right to claim restitution and given enough time to organise and file applications. Secondly, extending the cut-off dates by five years offers more stability within the CRLR (and thus more effective functioning of this institution), creating more certainty within Commission posts and staff positions. Supported by the administrative and institutional reforms proposed, this enables better functioning institutions that can process and settle claims efficiently and consistently, thus avoiding the many problems (and associated costs) that have arisen due to protracted delays of implementation of the current policy.

Thirdly, the prioritisation of land restoration over financial compensation offers to significantly enhance restitution’s ability of altering South Africa’s skewed patterns of land ownership. Largely attributable to the almost complete exclusion of betterment victims and the heavy pressure placed on urban claimants to accept payments of financial compensation as opposed to alternative land or redress in the form of state developmental assistance, restitution has failed to help realise the land reform programme’s key objective of undoing the spatial imprints of apartheid.42 Re-opening the 1998 deadline to permit further submission of claims expands the possibility for the programme to help decongest the former homeland areas and create more equitable access to land in the country.

Fourthly, the proposed restitution policy provides the opportunity for major improvements in the planning of restitution projects, not only in the enhanced provision of beneficiary support services, but also in coordination with other infrastructure projects and national development initiatives. Here, land targeted for restoration can be linked with the areas earmarked for state development, including within the 23/24 poorest districts, the presidential infrastructure projects and the strategic infrastructure projects (SIPs), particularly those dealing with rural areas. This more coordinated area-based approach towards restitution planning offers to drastically improve the lives of beneficiaries, a crucial aspect that is visibly lacking in the past 18 years of implementation.

Fifth, allowing new claimants to retrieve their right to restitution for dispossessed land offers great opportunity to both advance the underlying principles of the 2011 Green Paper and to help

42 Hall, R. 2009. Op.Cit.

19 achieve the National Development Plan’s (NDP) vision for 2030. The re-opening of lodging of claims process and revamping of the restitution policy framework to incorporate the proposed administrative and institutional reforms are closely aligned with the 2011 Green Paper’s acknowledgement that radical means are required to overcome the devastating effects of discriminatory colonial and apartheid land policies.

The first underying principle of land reform outlined in the 2011 Green Paper, deracialisation of the rural economy, can be partially achieved through a revamped restitution programme as landless and land-hungry rural citizens are either restored their ancestral land, provided alternative land, paid equitable financial compensation for their lost rights, become prioritised recipients of state-led development and/ or receive special recognition for their dispossession. As long as re-opening the cut-off dates is linked with the other envisioned outcomes of the proposed reforms, namely the improvement of the planning and administration system of the restitution programme and the development of an effective beneficiary support system for successful claimants, the ability of new rural restitution beneficiaries to participate and benefit in the rural economy will be greatly increased.

Additionally, fulfillment of the second Green Paper principle, democratic and equitable land allocation and use across race, gender and class also depends upon making the restitution programme more inclusive and improving its overall functioning and support offered to beneficiaries. As discussed earlier, the current programme has made little progress in altering the unequal land distribution patterns in South Africa as most claims have been settled with cash compensation and many of the communities who have been restored land have failed to ensure fair and equitable distribution of restituted rights.43 The proposed reforms have much potential to overcome these limitations and thus ensure more equitable ownership of and access to land as they rest upon building a more capacitated institutional infrastructure that can assure land is restored where possible. A capacitated restitution programme enables Government to monitor restored land more closely and intervene in situations where land is administered in an undemocratic way.

Sixth, as with the 2011 Green Paper principles, the proposed restitution policy is also closely aligned with the goals and vision of the NDP. Beyond the aims of eradicating poverty and decreasing inequality, the NDP’s main objectives include building national unity, addressing historical injustices, improving quality of life for all South Africans, decreasing unemployment and expanding the economy with benefits of this distributed equally throughout South Africa.44With more than 37% of the population residing in rural areas in 2011, building inclusive rural economies is also a key area of prioritization for overall national development.

43 Hall, R. 2003. Op.Cit. 44National Planning Commission (NPC), 2011.Op.Cit.

20 The extent to which the nation’s rural areas lag behind its metropoles and secondary cities is indicated by the backlogs in infrastructure and social services delivery found in South Africa’s ruralities. The lack of water provision, sanitation, electricity, health facilities, schools and other socio-economic services and infrastructure is mostly concentrated in the former homelands and farm dweller settlements in commercial farming areas.45 The 2011 Census indicated that the percentages of households living without basic services such as running water and electricity were significantly higher in rural provinces (the Eastern Cape (EC), Limpopo and KwaZulu- Natal (KZN)) than predominantly urban provinces. The former provinces also had the highest rates of unnatural death, orphans and unemployment as well as lowest average household incomes and levels of education.46

Furthermore, the 2011 Census showed that there is substantial out-migration from rural areas, yet population congestion in the former homelands remains a serious challenge to rural development. Though KZN, the EC and Limpopo cover less than 32% of the country’s surface area, they consisted of nearly 43% of the population in 2011.47 The overburden on land and resources and overcrowding of people resulting from the Communal Areas’ high population densities has translated into an overwhelming pressure on already inadequate infrastructure and public service delivery, food supplies and lack of economic opportunities. The proposed restitution programme not only intends to generate a much more inclusive approach to agrarian reform, but also an improved beneficiary support system which addresses the developmental deficiencies of past rural development and land reform programmes. Thus the proposed reforms go far beyond restoring alienated land rights, with the alternative forms of redress, particularly priority access to state-led development programmes, opening the possibility for integrating current national development initiatives with the underlying principles of land reform.

Thus, re-opening the cut-off dates not only provides potential for resolving past historical injustices, but also lends much potential to realising the NDP’s goal of overcoming rural poverty as an expanded programme with an improved beneficiary support component will increase rural inhabitants’ access to land and resources as well as government services (such as education, housing health care and infrastructure development). The new restitution framework’s dedication to significantly contributing to the NDP’s vision is most apparent in its provision that empowers the Minister to prioritise claims which advance realisation of the elimination of poverty and reduction of inequality by 2030. This provision constitutes one of the potentially most beneficial aspects of the proposed amendments as it opens the way for the poorest dispossessed persons and groups to access the land reform programme and thus contribute to national development. This observation gains urgency and further validation given the recent 2011 Census data which

45 Makgetla, N.S., 2010. Op.Cit. 46Statistics South Africa (SSA), 2011.Op.Cit. 47Statistics South Africa (SSA), 2011.Op.Cit.

21 further highlighted the crisis of social inequality, unemployment and poverty in rural South Africa.

Additionally, as demonstrated by the EIA,through the provision of employment opportunities and income, the land reform re-opening will contribute towards maintaining and/or elevating the standard of living of the society that it affects. An increase in employment will be accompanied by an increase in individual and household income that will translate into an increase in the demand for goods and services.48 This then provides an opportunity for the expansion of business productivity and/or the start-up of new businesses. The land reform re-opening will further generate/sustain production and GDP (that are accompanied by employment opportunities) in a time where a particularly burning need for these exists. Thus, re-opening the lodgement dates of the restitution programme can effectively contribute to achieving the NDP’s envisioned expanded social, economic and political opportunities for rural communities and advance overall national development and poverty reduction goals.

1.5.2.2 Public response to 2013 Restituiton Bill

In assessing the potential socio-economic implications of the proposed policy, it is important to gauge how the general public will react to the re-opening. With the Restitution of Land Rights Amendment Bill, 2013 (RLRAB) published in the Government Gazette on 23 May 2013 for public comment, the proposed reforms have prompted mixed reactions from various segments of society.

Overall, the proposed re-opening of the 1998 cut-off date for submission of restitution claims has received widespread support from NGOs representing the landless, land-hungry and rural poor. Commentary submitted to the DRDLR by NGOs in the land sector has expressed unequivocal support for the re-opening, emphasising the pressing national imperative to return wrongfully appropriated land to the large numbers of dispossessed who remain without redress or reparation for lost land rights.

However, certain provisions of the RLRAB have elicited strong disapproval from these organisations, most notably point 9 of the 2013 Bill. Here, section 33 of the 1994 Act is amended to stipulate that, in cases where restoration of a right in land is claimed, the feasibility and cost of such restoration as well as the ability of the claimant to use the land productively must be considered before the Minister reaches a final decision. Pointing out that the land was stolen from claimants (with no payment of compensation or regard for sustained productivity), submissions from NGOs argue that placing these conditionalities (or any for that matter) on restoration of land is unjust as it undermines the constitutionally enshrined right to restitution and excludes many potential claimants who will be unable to meet these requirements. While acknowledging that ensuring food security and economic growth are important, it is posited that

48Statistical Development Economists, 2013.Land Restitution: Socio-Economic Impact Assessment. Unpublished.

22 these objectives should be addressed in other ways such as provision of adequate post-settlement support to restitution beneficiaries.

While the re-opening received widespread support from NGOs in the land sector, submissions to the DRDLR from researchers and analysts in the academic sector represented a more mixed response, with some land reform experts supporting the re-opening and others completely opposed. The latter seriously questioned the suitability of the re-opening in addressing apartheid’s legacy of spatial inequity, especially in relation to betterment displacements, which will require a multifaceted programme that tackles complex tenure, developmental, service delivery and governance issues in a coordinated and integrated manner.

Rather than answer to the needs of the rural (and urban) landless and land-hungry, various academics viewed the re-opening as a potential vehicle for further land dispossession and warned of the danger the re-opening poses for “opening the floodgates for traditional leaders to claim vast swathes of land, which they could rule as their personal fiefdoms”.49 Here it was argued that in combination with the proposed communal tenure reform that restituted or redistributed land in Communal Areas no longer be registered under CPA ownership, re-opening the claims process enables apartheid-established traditional leaders to claim restitution for land placed under their control by the Bantu Authorities Act of 1951. This would serve to further undermine tenure security and democratic land allocation in many areas of the country as well as to exacerbate land-related conflicts among communities.

In light of these limitations, most academic submissions found that the RLRAB was seriously flawed and should be withdrawn. In place of re-opening the lodgement period, it was suggested that those claimants who were excluded from the chance to claim their right to restitution (including pre-1913 dispossessions) should be accomodated on a case-by-case basis through the redistribution programme. In addition, it was recommended that a distinct policy framework addressing the needs of betterment victims should be developed and linked with a national programme of renewal for areas where such displacement occurred.

Unsurprisingly, the proposed extension of the window period for submitting restitution claims was welcomed by associations representing African farmers, particularly those located in KwaZulu-Natal, which, in stating their full support of the Bill, emphasised the skewed land distribution in the province where large sugarcane and lumber corporations own most of the land and dominate these industries.50 However, most of the submissions presented to the DRDLR by organised agriculture (mostly consisting of groups representing white commercial farmers)

49Claassens, A. and Weinberg, T. 2013New Restitution Bill could open floodgates for chiefs’ land claims. Custom Contested: Views and Voices. [Online] 06 June. Available at: http://www.customcontested.co.za/new-restitution- bill-could-open-floodgates-for-chiefs-land-claims. [Accessed: 19 June 2013]. 50Phillips, L. 2013. Disagreement on land reform bill.Farmer’s weekly. [Online] 17 June. Available at: http://www.farmersweekly.co.za/news.aspx?id=40865&h=Disagreementonlandreformbill [Accessed: 19 June 2013].

23 expressed staunch opposition to the re-opening, claiming that this proposed measure is at odds with the interests of both landowners and existing claimants. Reasons cited for this opposition were largely based on presumptions that the proposed amendment holds disastrous implications for commercial agricultural as it threatens to create a black cloud of uncertainty over the farming sector.

Emphasising the overwhelming number of problems in implementation faced by the current restitution programme including flawed research methodology that resulted in the gazetting of unfounded claims, poor communication by the CRLR with landowners and claimants, institutional deficiencies, improper valuations, corruption, delays and lack of planning and post settlement support, comments submitted by organised agriculture warn that the re-openingwould protract the uncertainty that has plagued land ownership over the past two decades and thus cause deinvestment in the agricultural and forestry sectors. Such loss of investment is predicted to result in many negative impacts nationally including decreased production levels, loss of jobs and severe food insecurity.

Submissions made to the DRDLR by groups representing various business chambers echoed many of the concerns raised by representatives of large-scale commercial agriculture, namely that allowing lodgement of new restitution claims would “reintroduce a third decade of renewed market uncertainty” in the land sector, creating an environment of deinvestment and declining agricultural production.51 Emphasising the significant deficit in the national budget, the extremely expensive nature of the restitution process to date and the insufficient funds and administrative capacity to resolve complex outstanding claims, responses from the business sector were consistent in their overall rejection of the 2013 RLRAB (although approval was expressed for certain provisions of the bill such as conditionalities placed on land restoration and criminalisation of fraudulent claims).

Other risks stated in justification of this position entailed exacerbated social conflict (especially between landowners and claimants) and creation of unrealistic expectations amongst claimants that will only lead to disappointment and further disruptions in social cohesion. Also mentioned was the sufficiency of the mass communication campaign in 1998 and the fact that no examples existed of other countries in which restitution cut-off dates were extended after so many years has passed since prescribed deadlines.

Finally, the reaction of traditional leadership councils to the proposed extension of the lodgement window was overwhelmingly positive, with one group writing that this was “welcomed as a dream come true”.52 However, as with other supportive voices, many concerns were raised by

51Business Unity South Africa (BUSA), 2013. BUSA Submission Document, Notice 503 of 2013: Department of Rural Development and Land Reform, Draft Restitution of Land Rights Amendment Bill, 2013. 52Manavhela Traditional Leadership, 2013. Submission to the DRDLR commenting on the Restitution Of Land Rights Amendment Bill, 2013 after the Presentation by Mr Tele Maphoto, Bolivia Lodge on the 14th June 2013.

24 traditional bodies regarding the proposed reforms. These mostly centered around the delays in the settling and finalisation of unresolved claims, with anxieties that allowing submission of new claims would only suspend settlements further. Naming counter-claims and lack of capacitated institutions as major reasons behind these delays, certain councils were anxious that settlements would not occur in their lifetime, stressing that those community members most familiar with the history of farms were “passing on day by day”.53 Additionally, some traditional authorities took issue with conditionalities placed on land restoration, the failure of the Bill to outline parameters for (or outright deny) CPA ownership of land, and RLCCs’ inabilities to resolve disputes concerning competing claims.

1.5.2.4 Socio-Economic Impact Assessment results54

As part of this RIA, a Socio-Economic Impact Assessment (EIA) study (referred to above) was conducted to identify and quantify the macroeconomic impacts that are likely to occur as a result of the implementation of the proposed land restitution policy. This consisted of an economic study that attempted to determine how the economy will react if such a policy is implemented. The economic analysis considered various aspects of the policy to re-open post 1913 claims as well as pre-1913 for descendants of the Khoe and San.

Data from the approximately 79 580 claims that have been settled from the first round of land claims (which were accepted between 1995 and 1998) was analysed in order to create a baseline. The information in the baseline was used to make estimations for future claims. Even though this is the best method of estimation of the nature of future claims, there are uncertainties to which degree future claims will be similar to historic data. Therefore, averages taken from historic data were used with care, as not to make unrealistic assumptions.

It is also important to know the current socio-economic status of South Africa as this was used in the EIA as a point of reference. Certain aspects in the South African economy, such as poverty, unemployment and inequality are important issues to address. The success of any policy should, at least in part, be assessed on the impact it made on these problems. Another socio-economic aspect that might be influenced by re-opening the land claim period is the disposable income of a household. An increase in disposable income could enable households to buy more goods and services that will have various indirect impacts on the economy. Also, the agricultural sector is an important sector that might be influenced by land claims re-opening. This is particularly true in the case where land is given to claimants. Furthermore, the nature of different types of infrastructure, such as sanitation, water and energy, can be influenced by land claims, particularly if infrastructure is used as means of compensation.

53Mothapo Royal Council, 2013. Submission to the DRDLR of notice 503 of 2013: The Restitution of Land Rights Amendment Bill, 21 June. 54 Information presented here has been extracted from Statistical Development Economists, 2013. Op.Cit.

25 In order to draw up a Cost Benefit Analysis (CBA) of the different scenarios, all costs and benefits should be quantified in order to compare all the scenarios with each other. Costs and benefits can either be of a direct, indirect or induced consequence of the policy. There are also unquantifiable costs and benefits that were not included in the cost benefit analysis. These unquantifiable costs and benefits are still important for the economy, but due to the inability to put it in monetary terms, they are excluded from the study. It is however important to acknowledge these possible costs and benefits are important. Thus, the findings of this report should therefore be considered from a conservative point of view.

Three scenarios were sketched for the re-opening of land claims post 1913. The first scenario claimed that there will be a fivefold increase in claims in the second round of claims; however the composition of the claims will be the same as in the baseline. The second scenario also assumed that claims will increase by a factor of five, nevertheless that 25% of those claims will be financial and 75% of them will be land claims. The DRDLR stated that financial compensation will only be used as a last resort, but in urban areas it is difficult to reimburse built land. Therefore, it is further assumed that all non-metropolitan claims will be settled with financial compensation and financial claims will follow baseline trends across district municipalities. The third scenario assumed that the claims will increase fivefold but that 50% will be financial claims and 50% will be land claims. Scenario three also assumed that all non- metropolitan district municipalities will settle claims with financial compensation, which will follow baseline trends across district municipalities.

In addition to the three scenarios discussed above, two scenarios were illustrated for the opening of land claims prior to 1913. The first scenario assumed that all South Africans classified as indigenous individuals/groups, will claim and that all claims will be settled by means of financial compensation. The second scenario assumed that all the indigenous groups will claim but that 90% will be settled by means of financial compensation and 10% by means of alternative compensation such as special recognition. Both these claims had some positive impact on the economy. In the second scenario the impact was significantly greater due to compensation by means of infrastructure and special recognition, however, the cost of the scenario was also significantly greater.

Based on the EIA it can be concluded that the re-opening of the restitution policy (post 1913) could impact the economy in various ways. All three scenarios had some positive impact on the economy. Production increased in all the scenarios; there is an increase in GDP and an increase in national production levels and an increase in economic growth. Significant job creation was also present in all three scenarios; jobs were created directly by employing additional administrative staff as well as significant employment creation in the indirect and induced effects over the five-year period. It is estimated that approximately 8 932 860 individuals could benefit directly from the claims representing about 2 481 350 households.

26 Each scenario will have a unique positive leverage effect on the socio-economic status of the economy. In addition, access to land as well as financial claim compensation will find its way into the productive sectors of the economy. This will lead to higher consumer expenditure on durable, semi-durable and consumer goods and services that will stimulate new job creation and poverty alleviation. In each of the three scenarios there are a certain percentage of claims that is estimated to be land claims; this can have a significant impact on a large percentage of South Africans that are not currently property owners. A significant portion of South Africans live in informal dwellings therefore land claims could potentially increase the living standard of those South Africans that do not own property and are therefore not able to practice subsistence farming.

Scenario three in which land claims would decrease and financial claims increase was found to have the largest positive macroeconomic impact on the national economy. This is so because the effects of financial compensation find its way directly into the economy while the direct benefits of access to land depends on the productive utilisation through agriculture or real estate development.

It can therefore be concluded that from the findings of the Economic Impact Assessment that financial claims combined with alternative compensation methods should be encouraged. The positive economic leverage effect resulting from financial claims and alternative compensation methods are more than that of land claims. Financial claims and alternative compensation approaches will also be less disruptive since fewer people will have to be relocated to new areas. Financial claims and the proposed alternative compensation methods such as infrastructure provision and land recognition will thus not only address the redistribution of land but also promote social cohesion. However, as the EIA study only included impacts that could be quantified monetarily, this conclusion must be taken with caution as various indirect impacts of both land restoration and other alternative means of redress may hold more long-term benefits for beneficiaries and the society at large.

1.6 Monitoring and Evaluation

A crucial aspect of implementing the proposed policy changes will be to establish a M&E system that monitors the effectiveness of the reforms in achieving intended policy objectives. This shall entail developing monitoring indicators which are Specific, Measurable, Achievable, Relevant and Timebound (SMART) as well as the design of participatory mechanisms for all relevant stakeholders and their structures to provide input regarding programme implementation and impact. While the specific responsibilities for, and frequency of monitoring and reporting will be elaborated upon at a later stage, it is crucial that the M&E system evaluate and monitor the following:

27  Provincial data regarding the number and specific details of claims submitted during the five year extended lodgement period (i.e. for what pieces of land and time period of stated dispossession, whether the land in question is the subject of other claims, from what category of excluded persons/ communities claims are lodged by, etc);

 Forms of restitution awarded to successful claimants and natures of such awards including amounts paid for land and numbers of hectares restituted, amounts of financial compensation awarded per beneficiary and details of other forms of redress provided;

 Reasons for and numbers of rejecetd claims and socio-economic information of unsuccessful claimants (as well as whether they are referred to/ able to participate in other land reform programmes);

 Baseline information of successful beneficiaries prior to receiving restitution so that the impact of various forms of redress on claimants livelihoods can be properly evaluated;

 The length of time it takes to resolve the new and existing 8 000 claims and the institutional requirements for their successful settlement (i.e. numbers of staff and departments involved, administrative costs, whether dispute management and resolution was needed, etc)

 The establishment and operations of legal entities representing groups who receive restitution, their compliance with democratic procedures of land allocation (and/ or equal distribution of other forms of redress awarded) and support provided to them by Government;

 The provision of post settlement support to those claimants who are restored land, associated challenges that arise and how these are addressed;

 The overall impacts of financial compensation, land restitution, prioritisation of beneficiaries in national development projects and other forms of redress on all interested parties including the state, claimants, landowners, agro-business, etc;

 The nature and number of land restitution court cases, their outcomes and associated costs;

 The ways in which restitution awards (including restituted land) are utilised by beneficiaries as well as how this use impacts other South African citizens and especially key economic sectors; and

 The impacts of the policy reforms on realisation of national objectives including increased food security, emplyment creation, inclusive economic growth, poverty reduction, equitable land distribution, national reconciliation, social cohesion and rural development.

Possible indicators that will signify if the proposed reforms are successful in accomplishing policy goals include:

 Widespread awareness of the restitution programme and the requirements for lodging claims throughout all of South Africa;

 Inclusion of diverse groups of dispossessed citizens in the restitution programme;

 Significantly enhanced and capacitated restitution institutions capable of more efficient and less costly resolution of claims;

28  Improved incomes and livelihoods for claimants;

 Adequate provision of post settlement support to successful claimants who are restored land;

 Sustained or enhanced agricultural production and deracialisation of the commercial agricultural sector;

 Increased land access and ownership amongst historically marginalised persons;

 Enhanced service provision and infrastructure in rural areas; and

 Greater cooperation of existing land owners in advancing social cohesion and overall societal transformation.

1.7 Recommendation and Summary

Based on the analysis conducted by this RIA study on the feasibility of the extending the 1998 deadline and enacting other proposed reforms, Option 2, the re-opening of the cut-off dates to allow for further lodgement of claims to expand the scope of restitution and render it a more inclusive programme, is recommended. This offers the most effective solution for overcoming the numerous challenges and limitations faced by the currrent restitution programme. Not only do the potential socio-economic benefits of the re-opening far outweigh the potential risks and costs of maintaining the status quo (Option 1), but adopting the proposed reforms also fulfills the constitutional imperative to provide historical redress to persons and communities who lost their land rights as a result of racially discriminatory laws and practices. The limitations faced by the current restitution programme, most particularly its exclusive nature, can be overcome by re-opening the lodgement window and affecting institutional reforms that render the current restitution process more effective. It is thus crucial that the lodging of claims process be re-opened in order for the excluded millions who experienced this unspeakable suffering to have a chance to claim their constitutionally sanctioned right to restitution.

The remaining chapters of this report are organised as follows. The introduction summarises the main issues considered and the objectives of the RIA, discusses the various limitations and challenges of the current restitution policy and programme and presents the key reforms to be assessed by this RIA. Chapter 3 demonstrates the nature and extent of the main problem being addressed, namely the exclusiveness of the current restitution programme, and discusses the underlying reasons for this. Chapter 4 of the report presents some of the public responses to the publication of the 2013 Restitution Bill while Chapter 5 provides a comprehensive assessment of the policy options considered. Chapter 6 summarises the main findings of the EIA conducted to determine the potential costs and benefits of the proposed policy changes. Chapter 7 presents a framework for monitoring and evaluating execution of the proposed policy, while Chapter 8 discusses the concept of “First Nations” and Aboriginal Title. Finally, Chapter 9 provides an international review of four countries’ experiences with restitution programmes, namely Australia, Canada, New Zealand and Germany, and how South Africa can learn from these.

29 2. INTRODUCTION

2.1 Title of Regulatory Impact Assessment (RIA)

This report is the first volume (Volume 1) of the Regulatory Impact Assessment (RIA) studyon the feasibility of the re-opening of lodgement of land claims, and provision of exceptions to the 1913 cutoff date to accommodate the descendants of the Khoe and San, heritage sites and historical landmarks.

2.2 Title of RIAVolume 1

Regulatory Impact Assessment Report for Proposed Draft Restitution Policy: Re-opening of Lodgement of Claims.

2.3 Issues

This RIA assesses the feasibility and potential socio-economic impacts of proposed reforms to extend the window period for the lodgement of restitution claims by five years in order to render the restitution programme more inclusive. Various limitations of the current restitution policy and weakenesses in implementation of the programme (enacted through the promulgation of the Restitution of Land Rights Act of 1994) resulted in the exclusion of a significant proportion of the population who experienced dispossession of land rights under racially oppressive colonial and apartheid regimes.

Reasons for the exclusiveness of the current programme include lack of awareness amongst historically marginalised communities of their right to claim restitution; the relatively short window period previously allotted for submitting claims; the global and national context of South Africa’s democratic transition which resulted in the poor design of restitution policy; and intentional exclusion of certain forms (and time periods) of dispossession such as forced displacements that occurred as a result of betterment planning schemes. The main problem that the proposed reforms seeks to address is this very exclusiveness, in which an estimated less than 23% of historically displaced South Africans have been able to successfully claim their constotutionally sanctioned right to restitution for lost land rights.

In addition, the proposed reforms seek to address the many other problems faced by restitution that have translated into an extremely costly programme unable to significantly improve the lives of beneficiaries. Here, the proposed re-opening of the 1998 cut-off date for lodgement of claims is accompanied by reforms that intend to increase the institutional capacity of the restiutiton programme as well as to establish a drastically enhanced beneficiary support system.

30 2.4 Objectives of the RIA

Given the many problems faced by the restitution programme since its inception, most particularly its exclusive nature and failure to substantially improve livelihoods of beneficiaries, Government has introduced the proposed reforms described above with the envisioned outcomes of an expanded, more inclusive and well-capacitated programme. Therefore, the primary objective of this regulatory impact assessment (RIA) study is to evaluate the direct and indirect administrative, fiscal, legal, socio-economic and political implications of the proposal for re- opening the window period for the lodgement of claims, which will allow for submission of new claims by persons and groups previously excluded from the chance to claim restitution for dispossession of land rights experienced under colonial and apartheid regimes.

Additionally, other objectives of this RIA aim to:

 Examine the nature and extent of the problems that proposed reforms seek to address (including the exclusiveness of the current restitution programme, the instititional difficulties faced in processing claims and the failure of government to adequately provide post settlement support to beneficiaries) and indicate whether proposed regulatory and policy changes provide optimal solutions to overcome these;

 Present the available options that can be adopted including maintaining the cut-off dates or amending restrictive timeframes and implications of such;

 Analyse the potential impacts (including the costs and benefits) of the re-opening and other proposed reforms as well as other options on different actors in the land market sectors within all spheres of govermment and the private sector;

 Assess whether extension of the window period to submit claims by five years is the best reponse to dealing with the exclusiveness of the programme, as well as to promote and protect the rights and interests current claimants, those excluded from the programme, current land owners, the State and other interested parties;

 Examine the ways in which the proposed reforms impact the socio-economic goals of the Government including rural development and land reform, employment creation, poverty reduction, elimination of inequality, economic growth and overall national development;

 Indicate whether consultation processes of the various stakeholders were inclusive and sufficient as well as present consulted stakeholders’ views of the re-opening and other proposed policy changes; and

 Consider how South Africa can learn from international experiences with amending lodgement of claims deadlines for restitution, allowing submission of claims for indigenous land rights and other aspects of restitution programmes in different countries.

Considering the above, this RIA will serve as a key tool used by policy-makers to develop sound evidence-based restitution policies that maximise intended beneficial outcomes, while minimising negative impacts and unintended consequences. The study furthermore increases accountability and transparency in policy-making by clarifying all expected costs and benefits of

31 the proposed reforms for all interested parties. It presents the best option for addressing the exclusive nature (as well as various other limitations) of the current restitution policy and programme to policy-makers in order that legislative decisions render the most beneficial outcomes for marginalised citizens and South African society at large. Additionally, this RIA study highlights the necessary steps that need to be adhered to in order for policy to be implemented successfully.

2.5 Current Restitution Policy and Programme

The Restitution of Land Rights Act, 22 of 1994 was the first piece of legislation promulgated by the ANC to provide redress to those who lost property rights under colonial and apartheid regimes. The 1994 Act entitles individuals (or their direct descendants) and communities a right to restitution if they were dispossessed of rights to land prior to 27 April 1994 as a result of racially discriminatory laws. Section 25(7) of the 1996 Constitution further confirms the right to restitution, stating that

A person or community dispossessed of property after June 19 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.55

The Restitution of Land Rights Act established two structures to guide the restitution process: the Commission on the Restitution of Land Rights (CRLR) and the Land Claims Court (LCC). Inaugurated in 1995, the CRLR was given the responsibilities of informing the public about the restitution programme, soliciting and investigating land restitution claims and preparing claims for settlement or adjudication. The LCC was formed in 1996 as a specialized court to approve claims, grant restitution orders and adjudicate restitution disputes. While the 1994 Act does not outline specific parameters for individual cases of dispossession, the 1997 White Paper on Land Reform provides a guiding framework listing five forms of restitution or redress. These include:

. Restoration of rights to original land that was alienated from claimants;

. Provision of alternative land;

. Payment of financial compensation;

. Alternative relief (which can consist of packages containing a combination of the above, sharing of land or provision of services and infrastructure development where claimants currently reside);

. Priority access to other government housing, development and land programmes.

As with the Redistribution leg of South Africa’s land reform programme, the restitution process is demand-led, with the onus of claiming the right to restitution placed on eligible persons or

55RSA (Republic of South Africa), 1996. Constitution of the Repuiblic of South Africa, No. 108 of 1996. Government Printers: Pretoria. Section 25(7).

32 communities. In order to be considered, claimants must lodge restitution claims for specific properties with the CRLR and are required to provide sufficient evidence that such rights existed and were alienated as a result of discriminatory laws and practices implemented after promulgation of the Natives Land Act on 19 June 1913.

In addition to being dispossessed of a right to land after 1913 due to racially discriminatory laws or practices, eligible individuals or communities must have lodged a claim for restitution by 31 December 1998. Initially, the cut-off date for lodgement of claims was set for 30 June 1998. However the 1994 Act was amended to extend this deadline by six months as there was concern that significant numbers of potential claimants remained unaware of their rights to submit claims. Out of estimated figures falling between 3.5 to 7.5 million South Africans dispossessed of their land rights during apartheid, only 33 000 persons and groups had lodged claims by March 1998.56

Due to the inadequate number of lodgements, the CRLR together with the DLA and the National Land Committee (NLC) embarked upon a “Stake Your Claim” awareness campaign between May and December 1998 to inform historically marginalised citizens about the restitution programme and their right to submit a claim. The campaign involved radio, television and newspaper advertisements, workshops held in both urban and rural areas, the distribution of posters and pamphlets, taxi rank promotions, door-to-door visits and a national toll-free Call Center. As a result of the campaign, the number of lodged claims almost doubled with 63 455 claims submitted by 31 December 1998.57

As of March 2012, an estimated 76 705 restitution claims had been settled through the restoration of 2 870 893 hectares of land and payments of financial compensation totaling R6.5 billion. This has reportedly benefitted approximately 345 463 households consisting of 1.7 million restitution beneficiaries.58 This figure represents less than 22.7% of the 7.5 million South Africas who suffered post 1913 dispossession as a result of discriminatory laws and practices.59

2.6 Limitations and Challenges of Current Programme

The main goal of restitution, explicitly outlined in the 1997 White Paper, is to “restore land and other restitutionary measures to people dispossessed by racially discriminatory legislation and price, in such a way as to provide support to the vital process of reconciliation, reconstruction

56Platzky, L. and C. Walker. 1985. The Surplus People: Forced Removals in South Africa. Johannesburg: Ravan Press. Pp. 9-12; Kariuki and Olivier, 2011; CRLR. 2007. Restitution Amendment Bill Proposal: Cut-off dates 19 June 1913 and 31 December 1998: Public Hearings. Portfolio Committee on Agriculture and Land Affairs, 29 May 2007. Internet: http://www.pmg.org.za/docs/2005/ 050621germiston.htm. Access: 05 May 2013. 57 Hall, R. 2009. Another Countryside? Policy Options for Land and Agrarian Reform in Southern Africa. Cape Town: Programme for Land and Agrarian Studies (PLAAS), University of the Western Cape. 58DRDLR, RIA terms of reference. 59Agence France Presse, 2005. S. Africa may tighten screws on white farmers on land issue, 14 April. In Andrew, N. 2006.Op.Cit.

33 and development”.60 While some headway has been accomplished by Government in advancing historical justice and providing redress to victims of dispossession, serious limitations have characterised the programme including the slow pace of processing and settling claims; the subordination of land restitution to property rights; the majority of claims have been settled with cash compensation; inadequate provision of post settlement support and failure to link with broader development initiatives; problems experienced by CPAs; institutional deficiencies including understaffing, high staff turnover rates; lack of a delegated authority, tension between the CRLR and the DLA and overall lack of institutional capacity;61 and exclusion of significant numbers of people and communities.

This last major limitation of the restitution programme is the central focus of the Regulatory Impact Assessment (RIA) presented herein. If one looks beyond the numbers of claims that are reportedly settled, progress made in realising restitution’s primary objectives of advancing national reconciliation, inclusive economic development, social transformation and improving livelihoods is much less than anticipated.62 In addition, the majority of land rights lost due to the long history of colonial and apartheid induced dispossession and impoverishment have not been addressed by the restitution leg of South Africa’s land reform programme. This is directly a result of the limitations of the current policy, most notably the 1913 and 1998 cut-off dates, and weaknesses in implementation of the restitution programme as described above.

2.7 Proposed Policy Reforms

The limitations of the restitution programme are explicitly acknowledged by the 2011 Green Paper on Land Reform, which names a “problematic restitution model and its support system” as one of the primary challenges hindering South Africa’s programme of land and agrarian reform.63 The 1997 White Paper on South African Land Policy, which was published a mere three years after passage of the 1994 Restitution Act, mandated that progress achieved by the programme be “evaluated periodically, to review time frames and develop any delays which may occur”.64 As the past 18 years of implementation has revealed, not least through the postponements of set periods of five years and ten years for the finalisation of claims and adjudication/ implementation of all court orders, respectively, the limitations of the programme must be addressed through a comprehensive review and reform of current restitution policy.

Thus, in line with the 2011 Green Paper’s proposals for overhauling the entire land reform programme, three key sets of restitution policy reforms are proposed in the draft policy

60DLA (Department of Land Affairs). 1997. Op.Cit. Pp. 52, section 4.13. 61 Walker, C. 2002. Agrarian Change, Gender and Land Reform.A South African Case Study.United Nations Research Institute for Social Development. 62 Walker, C., Bohlin, A., Hall, R. and T. Kepe (eds.). 2010. Land, Memory, Reconstruction, and Justice: Perspectives on Land Claims in South Africa. Athens, Ohio: Ohio University Press. Pp. 28. 63DRDLR, 2011a.Green Paper on Rural Development and Land Reform.Pp. 5.Section 5(h). 64DLA (Department of Land Affairs). 1997. Op.Cit. Pp. 52, section 4.13.

34 frawework for restitution: (1) to re-open the lodgement process; (2) to improve the planning and administrative processes of the restitution programme; and (3) to improve the beneficiary support system provided to restitution claimants.65

The first set of reforms entails permitting the submission of new claims by those who were unable to lodge by the cut-off date of 31 December 1998 for a period of ten years, specifying how claims shall be processed and the content and circumstances of restitution awards. This is envisioned to render the programme more inclusive and expand its scope. The second set of reforms make various provisions that aim to overcome the legnthy delays and numerous other challenges that have characterised implementation of land restitution. Thirdly, the proposed reformsshall be supported by an enhanced beneficiary support programme that assists in fulfilling stated objectives of increasing food production, food security, commercialization of small farmers and creating employment opportunities. This will be realised through an enhanced institutional context in which the CRLR is given autonomy and supported by not only a well- resourced LCC, but also various other institutions including the National Rural Youth Service Corps and the 2011 Green Paper’s proposed Land Rights Management Board, Land Rights Management Committees, Office of Valuer General and the Land Management Commission.

3.0 PROBLEM STATEMENT

3.1 Exclusions as a result of the 1913 and 1998 cut-off dates

It is estimated that a minimum of 3.5 million people were involuntarily displaced from their land due to colonial and apartheid policies enacted post 1913.66 This number more than doubles to a figure of 7.5 million if those people who were victims of betterment and homeland consolidation schemes are included.67 With approximately than 80 000 restitution claims submitted prior to the cut-off date of 31 December 1998, reportedly benefitting an estimated 1.7 million people as of 31 March 2012, the vast majority of those who lost their land rights after promulgation of the Natives Land Act of 1913 (as well as their descendants) were unable to realize their right to restitution.68 Thus the cut-off date of December 1998 is highly problematic as it excludes most citizens who were alienated from their land as a result of racial discrimination from their constitutionally-sanctioned right to restitution. Furthermore, as most indigenous South Africans had already experienced massive alienation of land rights due to colonial conquest and systematic dispossession prior to 1913, the current Restitution policy also excludes a large

65DRDLR, 2013a.Op.Cit. 66Platzky, L. and C. Walker. 1985. Op.Cit. 67Kariuki, S. and Olivier, 2011. 68Ibid; Makgetla, N.S. 2010.Op.Cit.

35 majority of the population who experienced forced displacement throughout South Africa’s long history of racial exploitation and forced displacement.69

As a result of these exclusions, the restitution programme has failed to achieve one of its primary objectives of providing restitution or equitable redress to “substantial numbers of claimants who were dispossessed of land after 1913 under racially discriminatory laws and processes”.70 The cut-off dates have also impeded restitution from significantly altering the spatial imprints of apartheid and creating a more equitable pattern of land access and ownership in South Africa. Moreover, the timeframes have meant that the right to restitution is applied unevenly across society, with some areas of the country and categories of dispossessed persons and communities benefitting whilst others are excluded.71

The DRDLR is now proposing a new policy framework that will allow for the re-opening of the claims process to address these failings of the restitution policy. The justifications for re-opening the cut-off dates to allow for further lodgement of claims are multifold and include weaknesses in the initial design and formation of the restitution programme; limitations of the programme’s institutional infrastructure and verification systems; widespread lack of awareness among dispossessed individuals and groups of their right to restitution prior to the 1998 deadline for lodgement of claims; and exclusion of persons and groups who were dispossessed of their property as a result of betterment policies, those who lost land rights prior to 1913 and others as discussed below.

3.2 Categories and Numbers of People Excluded

Four specific categories of people and communities that lost their property rights through the above forms of dispossession have been excluded from the restitution programme as a result of the policy’s stipulated June 1913 cut-off date and December 1998 deadline for submitting claims. These include: (1) those who were unable to lodge claims by the cut-off date of 31 December 1998; (2) those dispossessed through betterment planning schemes and not permitted to lodge claims by the CRLR before the cut-off date of December 1998; (3) those who were dispossessed of their land rights prior to June 1913; and (4) certain categories of farm dwellers and labour tenants who either still live/ work on white-owned commerical farms or who were evicted through illegal means after the enactment of tenure reform legislation post 1994. These groups are described in more detail within the context of underlying reasons why the restitution programme fails to address the vast majority of land alienation suffered by victims of colonial and apartheid discriminatory policies.

69Hall, R. 2010. Op.Cit. 70DLA (Department of Land Affairs). 1997. Op.Cit. 71 Makgetla, N.S. 2010. Synthesis Paper: South Africa Lead Economics, Develop Planning Division, Development Bank of Southern Africa.

36 3.2.1 Figures of those unable to lodge claims by the 1998 cut-off date Before exploring the reasons behind the current restitution policy’s extensive omissions, it is first important to attempt an extrapolation of the total numbers of persons and communities who were excluded from lodging claims. While the apartheid government kept meticulous accounts of title deeds throughout the twentieth century, official records citing figures for the total number of persons who were alienated from their land through the eleven documented processes of forced displacement are non-existent. Additionally, the CRLR has neglected to maintain records of claims that were deemed ineligible for restitution under the current policy as well as those lodged after 1998.

Recently inquiries were made to CRLR regional offices as to how many claims were expected as a result of re-opening the cut-off dates and responses given totaled more than 130 000. However, only 5 offices (out of 9 provinces) responded to this inquiry, with nearly all acknowledging the extremely conservative nature of these estimates.72

While various figures are available in the literature, there are no official records stating the numbers of South Africans who were removed due to implementation of betterment planning (with much of this information deliberately hidden by the apartheid regime). Furthermore, although the numbers of evictions of people from commercial farms has risen steadily since 1994, there is still no systematic national monitoring system that collects information on evictions.73 And finally, while the first land office and deeds registry was established in the early 1800s in Cape Town74, the multitudinous cases of racially motivated land dispossession that occurred in the pre-1913 period are only sporadically documented throughout available literature. Thus, it is necessary to note that the figures of those excluded from the restitution programme cited here are based on secondary data extricated from various academic sources and archival material.

What we do know is that the DRDLR’s estimated figure of 1.7 million individuals benefitting from restitution awards as of March 201275 is less than half of the frequently cited figure of 3.5 million people who were forcibly removed in the period between 1960-1982 as originally quantified by Platzky and Walker (1985).76 This traditional estimate of 3.5 million is extremely conservative and somewhat problematic as it excludes various forms of dispossession including forced displacement which arose not as a result of government policy, but through extra-legal actions of landowners (i.e. constructive evictions); relocations that occurred as a consequence of

72DRDLR, 2013c. Inquiries to regional CRLR offices regarding numbers of excluded and claims expected as a result of re-opening 1998 cut-off date. Personal communication. 73 Hall, R., 2004. Op.Cit. 74 Kirk, J.F. 1991. Race, Class, Liberalism, and Segregation: The 1883 Native Strangers' Location Bill in Port Elizabeth, South Africa. The International Journal of African Historical Studies, Vol. 24, No. 2, pp. 293-321. 75DRDLR, RIA terms of reference 76 Platzky, L. and C. Walker. 1985. Op.Cit.

37 betterment planning, influx control and homeland consolidation schemes; and categories of removals that occurred after 1982 as well as persons and groups who experienced multiple displacements.

Thus, if victims of betterment planning and homeland consolidation schemes alone are incorporated, the total estimated figure of individual displacements that occurred after 1913 as a result of racially discriminatory laws or practices reaches 7.5 million, meaning that less than 23% of eligible citizens have claimed their right to restitution.77 As will be discussed shortly, one of the principal underlying reasons for this low figure of claimants is the 1998 cut-off date for submitting claims, in which significant numbers of people lacked awareness of the restitution process or were unable to file claims by this date for various reasons.

While it is practically impossible to know how many people were excluded from the restitution programme as a result of the 1998 cut-off date without conducting a comprehensive study, presentations given during the 2007 parliamentary hearings on amending restitution’s restrictive timeframes indicate that this number is substantial. The Portfolio Committee on Agriculture and Land Affairs reported that the Gauteng Land Claims Committee (GLLC), consisting of 29 areas of the province, alone represents a minimum of 60 000 individuals who were excluded from the restitution lodgement process. During the Portfolio Committee’s visit in May of 2005, the GLLC was still in the process of collecting statistics, thus it is likely that this figure is now significantly higher.78 Regional DRDLR offices reported that they have received at a certain 26 418 complaints or enquiries from persons and communities who intended to lodge a restitution claim but missed the 1998 deadline (see Table 2 on page 31). This was qualified by regional offices’ emphasis that such enquiries were most often not recorded after the 1998 deadline due to the DLA’s emphatic assertion that no claims would be accepted after this date.79 As this statistic covers only 5 of 9 provinces in South Africa, the number of people excluded from the claims process due to of awareness of their right to restitution or other reasons is thus most probably located in the many hundreds of thousands.

3.2.2 Figures of betterment victims The figure of those excluded from betterment planning due to the current policy’s omission of this group is estimated to fall between 1.3 and 2.5 million people.80 However, Lovo (2010) projects that the number of people experiencing forced relocation as a result of implementation of betterment schemes in KZN alone reached over 1 million, thus the total figure of victims of betterment planning could be much higher than these original estimates.81

77Kariuki, S. and Olivier, 2011. 78CRLR. 2007. Op.Cit. 79DRDLR, 2013c.Op.Cit. 80 Andersson, J. and Axelsson, L. 2005. Op.Cit. 81Ibid.

38 With only a few betterment claims succeeding to date, less than 2 500 people have received redress for land rights lost as a result of betterment planning.82 Thus, in addition to the potentially hundreds of thousands of people excluded as a result of the 1998 cut-off date, between 1 and 4 million South Africans whose dispossession is attributable to betterment planning were prevented from claiming their constitutionally-mandated right to restitution. According to regional CRLR offices’ responses received concerning the number of betterment claims expected to be submitted to their respective offices, a total of 137 420 was reported by 5 offices, with emphasis placed on the fact that this number was also extremely conservative.83

3.2.3 Figures of pre-1913 dispossessions As the current restitution policy (as well as the 1996 Constitution) provides that only land rights that were lost after 19 June 1913 qualify for restitution, the third category of excluded persons and groups involuntarily displaced due to racial discrimination consist of the countless cases of dispossession that occurred in the 17th, 18th, and 19th centuries. Various examples of these pre- 1913 displacements (due to colonial military conquests and racially discriminatory laws and practices) are cited in the available literature, as well as some indication of numbers of people dispossessed in these specific instances. For example, one author refers to the displacement of more than 20 000 Gqunukwebe (people of mixed Xhosa and Khoe-San identity) in the early 19thcentury, which constituted the first massive forced removal of indigenous populations in South African history.84 Another source argues that the consistent increase in the number of Khoe and San, from 20 426 in 1806 to 30 549 in 1823, registered in the ‘opgaaf’ records from the 1800s onwards, represents not population growth, but instead the “continuing process of subordination of Khoisan to white masters” as a result of racially discriminatory legislation and practices.85

Later examples of forced displacement that occurred prior to passage of the Natives Land Act in 1913 include dispossession experienced by various groups of Mfengu, Xhosa, Basotho and Zulu communities as a result of several pieces of legislation and numerous tactics undertaken by colonist governments and white settlers to both dominate the highest quality arable lands in the country as well as to force indigenous South Africans into indentured labour.86 Though even approximate total figures of the numbers of people affected by pre-1913 dispossession are difficult to come by, it is estimated that at least 4.5 million African people lived in South Africa

82DRDLR, 2011b.Op.Cit. 83DRDLR, 2013c.Op.Cit. 84 Christopher, A.J. 1982. Partition and Population in South Africa.Geographical Review, 72, 2, pp. 127-138. 85 Ross, R. 1983. Cape of torments: Slavery and resistance in South Africa. London: Routledge & Kegan Paul.Pp. 42. 86Magubane, B. 1983.Imperialism and the Making of the South African Working Class.Contemporary Marxism, 6, Proletarianization and Class Struggle in Africa (Spring), pp. 19-56; Kirk, J.F. 1991. Op.Cit; Klug, H. 1996.‘Historical claims and the right to restitution’, in J. Van Zyl et al., eds. 1996.Agricultural Land Reform In South Africa: Policies, markets and mechanisms. Cape Town: Oxford University Press, 1996, p. 394; Ross, R. 1983. Op.Cit.

39 by the formation of the Union government in 1910. As the majority of these indigenous groups lost their land rights before 1913, those excluded as a result of the 1913 cut-off date number in the hundreds of thousands to millions.87 Furthermore, only a small percentage of the estimated 320 000 descendants of the San and Khoe of various groups (including the —!Xun, Khwe, and Khomani—the Nama Communities, the Griqua associations and Koranna descendants, and the “revivalist Khoisan”) currently residing in South Africa have received restitution for the immense dispossession experienced by the nation’s original inhabitants.88

3.2.4 Figures of farm dwellers and labour tenants excluded from programme Finally, it is estimated that there are currently 3 million farm dwellers and 20 000 labour tenants residing on privately-owned commercial farms in South Africa.89 However, no national database exists of the numbers and demographics of people living in Commercial Farming Areas. This makes the incidence and nature of illegal evictions, which are already extremely difficult to monitor as evictees become dispersed (often moving in with family members in different locations across the country), largely unknown. Estimates of illegal evictions that have taken place after the advent of democracy range between 1 to 4 million.90

Both long-term residents who remain on commercial farms and those labour tenants and farm dwellers who have been evicted through extra-legal means since 1994 have largely been excluded from the restitution process (discussed more in the following section) despite the fact that the majority of this group were either born on these farms or were forced to move as a result of displacement from other areas of the country. A mere 7 834 labour tenants had received restored land rights by 2011 under the Labour Tenants Act, No. 3 of 1996 (LTA). 91 Figures for other categories of people living on commercial farms whose land rights were protected under the Extension of Security of Tenure Act, No. 62 of 1997 (ESTA) are significantly lower (less than 500).92 Thus, the very minimum number of current farm dwellers, labour tenants and victims of illegal evictions that have been excluded from the current restitution policy fall between 1 and 7 million. A summary of the total estimated numbers of excluded from the restitution programme is presented below.

87 Hall, R. 2009. Op.Cit. 88UNHRC, 2007. Observations on the State of Indigenous Human Rights in Light of the United Nations Declaration on the Rights of Indigenous Peoples: South Africa. Prepared for United Nations Human Rights Council: Universal Periodic Review; Ulgen, O. 2002.Developing the doctrine of Aboriginal Title in South Africa: Source and Content.”Journal of South African Law. 46, 2, pp. 131-154 89Institute for Poverty, Land and Agrarian Studies (PLAAS), 2011. Submission to the Department of Rural Development and Land Reform: Comments on the Green Paper on Land Reform 2011. Cape Town: PLAAS. Pp. 3; DLA, 2007. Land Rights Management Facility Concept Document. 90Ibid; Hall, R., 2004.Op.Cit. 91Cousins, B. & Hall, R. 2011. Rights Without Illusions: The potentials and limits of rights-based approaches to securing land tenure in rural South Africa. Working Paper No. 18.PLAAS. 92 Du Toit, A. 2011. Real acts, imagined landscapes: reflections of South African land reform discourse (or how to do things with land reform). In PLAAS: Land Reform, Agrarian Change and Rural Poverty in the Southern African Region, University of Stellenbosch 8-9 March, 2011.

40 Table 1: Total Estimates of Persons Excluded from Restitution Programme

Those unable to lodge claims by the 1998 cut-off date: 86 000 +++

Victims of betterment planning: 1.3 – 2.5 million +++

Victims of pre-1913 land dispossession: Majority of 4.5 million Africans living in South Africa in 1910

Excluded farm dwellers +/ – 1 to 7 million and labour tenants:

TOTAL: Minimum of 4 886 000

41 Table 2: Provincial CRLR Estimations of Those Excluded and Expected New Claims

PROVINCE Number of enquiries Number of expected Number of Number of expected total Claims to be received by those who Betterment claims to be claims received submitted during Re-opening: missed 1998 cut-off date: lodged during Re- after 1998: opening: LIMPOPO about 10 000 Our estimate is that it will No claims were roughly 20 000 involve thousands of people received after 1998. and we may approximate number of claims to 1000. KWAZULU- One could not record this data as According to the Surplus People 72 It is difficult to believe the number of claims that will be NATAL there hasn't been any signs Project Reports, Vol. 1, an submitted. However the recorded statistics may be useful before of re-opening the estimated number of over a in estimating the expected number of claims and below is lodgement process. Since the 31 million people were affected by a mathematical attempt to do so: December 1998 cut-off date, the what is referred to as "Strategic message from the then Land removals" than Betterment i) Between 1960 - 1982, 300 000 people were evicted from Affairs Department was schemes. farms, 105 000 were removed from Black Spots, 10 000 emphatically that there will be removed as a result of Consolidations, 17 000 due to NO re-opening of the lodgement It is expected that most of the Urban Relocation, 295 000 as a result of Group Areas Act, window. claims under this category will etc. This alone gives a total figure of 727 000 people. be against land under Source: SPP Report. Vol.1, Pg 5, 1 Table 1. ESTIMATED To try and quantify an answer to Ingonyama Trust. NUMBERS REMOVED BY CATEGORY AND REGION, 1960- this would be a thumb suck. 1982. However the experience in This number is unquantifiable at restitution indicate through this stage. ii) The LRS-KZN received over 16 000 claims by 31 walk-ins, field visits, etc that a December 1998. The Restitution Programme has been large number of people could well advertised through processing of these claims and the not make it by the cut-off date. media at large. If one were to use this figure as a benchmark, one may say, three (3) times this amount of claims can be expected, i.e. 3 X 16 394 (lodged claims) = 49 182 expected claims.

iii) Considering the recorded stats above, the number of late claims, Dismissed claims and misplaced/missing files, the number of expected claims in KZN may be estimated at about 95 400 claims (a conservative figure). This estimated figure is open for argument. NORTHERN No accurate statistics have been I do not think we have such 7 Not sure CAPE kept however we would say on claims in the NC province. average we used to received about 5 a month [780 since 1998 cut-off date]- (includes written correspondence, walk in enquiries and telephonic enquiries) these enquiries become more especially when financial compensation pay outs are done in different areas. FREE STATE 38 written complaints 2 Areas in the Free State have The office was not 15 000 and an unlimited number of calls been affected by betterment taking any claims and walk-ins that have not been practice: Thaba Nchu and after the cut-off date recorded QwaQwa. of 199. GAUTENG average of 90 per month = No response 323 20 000 [14 040 since 1998 cut-off date] Note that we refused to accept any late claims at some stage and that might be the cause of the low numbers NORTH WEST 10 - 50 (depending on the No response 9 7 000 districts) per month = [1 560 since 1998 cut-off Note that we refused to accept any late date] claims at some stage and that might be the cause of the low numbers EASTERN CAPE MPUMALANGA WESTERN CAPE TOTAL: 26 418 +++ 411 +++ 137 420 +++

43 3.3 Underlying Reasons for Exclusions

3.3.1 Weaknesses in the design of restitution There is widespread agreement amongst scholars that one of the principal factors limiting the success of restitution in achieving its aim of providing widespread redress for past injustices is the context within which the programme was originally conceived and designed.93 The major players influencing the development and nature of the restitution policy included the ANC, representatives from the World Bank (WB), local NGO activists from the National Land Committee and lawyers from its affiliate organisations including the Legal Resources Center (LRC) and the Centre for Applied Legal Studies (CALS).94 The drive for a restitution policy initially originated from rural dispossessed communities who were represented by NGOs and land rights movements throughout South Africa demanding the return of their land. Thus, from the start of the programme, restitution was devised as a “limited programme of redress rather than part of a wider argarian restructuring”.95 This partially explains a major limitation of the current restitution programme, namely its divorce from broader national development planning and initiatives.96

Additionally, both the transitional and international context of the early 1990s limited the scope of the restitution programme. Roux highlights four factors that were especially influential in shaping the design of the programme, namely the nature of South Africa’s transition from autocratic to democratic rule; the international context of this time period; the dominant position of lawyers in formulating restitution policy; and the decision to separate restitution from the truth and reconciliation process.97 Each of these factors played a significant role in ensuring that rather than prompt a radical restructuring of land ownership in South Africa, the restitution process provided historical restoration of land rights only within the context of constitutionally entrenched private property rights.98

Firstly, the debate surrounding property rights that dominated CODESA discussions during the negotiations was finally resolved late in 1993 with the ANC submitting to National Party and white economic pressures to allow for the confirmation of private property rights and their

93 Hall, R. 2004. Op Cit; Andrew, N. 2006.Op.Cit; Roux, T. 2008.Land restitution and reconciliation in South Africa.In Justice and Reconciliation in South Africa, (6), Cambridge University Press, pp. 144-171; Williams, G. 1996.Setting the Agenda: A Critique of the World Bank's Rural Restructuring Programme for South Africa.Journal of Southern African Studies, 22, 1, Special Issue: State and Development, pp. 139-166. 94 Weideman, M. 2004. Op.Cit. 95Hall, R. 2004. Op Cit.Pp. 565. 96Quan, J., Davis, J and F. Proctor. 2006. Op.Cit. 97Roux, T. 2008.Op.Cit 98Hall, R. 2010. Op.Cit. protection from arbitrary deprivation in the 1993 Interim Constitution.99 This constitutional compromise meant that while a right to Restitution was also affirmed, it would only be applied within the context of “a modern concept of equality before the law towards fundamentally adversarial parties in a situation of extreme inequality in landholding (“let’s play fair on a very unfair playing field”)”.100 Thus, the constitutionally protected private property rights largely acquired through racially motivated processes of dispossession by white landowners could only be restored to original black indigenous citizens through a lengthy and highly legalistic process that required extensive preparation, organisation and resources.101 Not only did this difficult application process for claiming restitution favour land owners as they often possessed sufficient resources and organisation to contest claims, but it was also biased towards more educated (often urban-based) individual claimants with access to legal assistance.102 Therefore the transitional compromise resulted in a highly constrained restitution policy that subordinated the right to restitution to the constitutional protection of existing property rights.

Of equal relevance to the issue at hand, namely the exclusion of millions of dispossessed persons and communities from the restitution programme, was that this compromise reached at Kempton Park also ensured that only land rights lost after 19 June 1913 could be claimed.103 As the majority of land alienated from indigenous South Africans, most particularly the Khoe and San, occurred well before passage of the 1913 Natives Land Act, the 1913 cut-off date meant that those South Africans who lost vast amounts of their traditional territories as a result of colonial “wars, conquest, treaty and treachery” were excluded from the restitution programme.104Roux posits that this was mutually convenient for both the National Party and the ANC as it both protected established white land ownership and served to “stabilise the post-apartheid property rights order in the interests of market-driven development” that characterised the dominant economic model beginning to take foothold in ANC policy-making circles.105

Secondly, the subordination of the restitution process to existing private property rights was directly influenced by the international context in which it was formulated. The past two decades had witnessed the hegemonic takeover of neoliberal economics with Ronald Reagan’s emphasis on the “magic of the market place”, the introduction of Structural Adjustment Programmes (SAPs) imposed on countries indebted to the International Monetary Fund (IMF) and WB, and the collapse of communism and socialism throughout Eastern Europe.106 The WB not only played an influential role in determining the nature of South Africa’s transition to democracy,

99RSA (Republic of South Africa). 1993. Constitution of the Republic of South Africa Act, No. 200 of 1993. Pretoria: Government Printers.Section 2. 100Andrew, N. 2006.Op.Cit. Pp. 4. 101Andrew, N. 2006.Op.Cit. 102Ibid. 103Roux, T. 2008.Op.Cit 104DLA (Department of Land Affairs).1997.Op.Cit. 105Roux, T. 2008. Op.Cit. Pp. 154. 106 Peet, R. 2003. Unholy Trinity: The IMF, World Bank and WTO. Wits University Press.

45 with the proposals made in its 1993 ‘Options for Land Reform and Rural Restructuring in South Africa’ (one of the principal documents in determining the nature of redistribution programme), but also in ensuring the constitutional entrenchment of private property rights, the establishment of a “separate judicial process” in restitution policy and the inclusion of the 1913 cut-off date. These latter two proposals were especially curious as they were based on the Chilean example of land restitution enacted under Frei and Allende, a programme that had proved to be excessively costly, time-consuming and inefficient.107

The WB’s emphasis on the then dominant notions of the sanctity of private property rights, fair and judicious processes for settling claims, the importance of cut-off dates and the perfect workings of the market thus resulted in constrained policy choices that have ultimately hampered the success of the restitution programme. This influence of the WB and the international neoliberal context has translated into a restitution programme in which

the statutory scheme for land restitution in the Restitution Act treats property rights in land subject to a valid restitution claim as unjust holdings, to be restored to the claimant against payment of just and equitable compensation, or retained by the landowner against the provision of equitable redress to the claimant. In both cases, the state acts as restitution banker, interposing itself between the landowner and the claimant, and funding the costs of legitimising the property rights order from general revenue.108

The third aspect argued by Roux and other scholars as having significant impacts on the design of the restitution programme is the dominant position lawyers played in policy formulation. After the right to restitution was confirmed by the 1993 Interim Constitution, the specific details of the restitution process were developed by an ANC-established Land Claims Working Group (consisting mostly of lawyers). This process was separated from other land reforms (such as the redistribution programme and agricultural restructuring) that were being formulated by WB and South African economists.109 Predictably, the predominant influence of lawyers in the development of the restitution policy resulted in a programme that merely reverses a limited category of discriminatory land transfers as opposed to tackling the “need to redress the deeper social and psychological impacts of apartheid land law”.110

The prominent position assigned to the LCC in the restitution process (especially prior to the Land Restitution and Reform Laws Amendment Act of 1999 which placed the CRLR at the center of the programme) has not only been a major reason for the slow pace of restitution (as it gives landowners the opportunity to refute claims), but has also ensured that lawyers and

107 Weideman, M. 2004. Op.Cit. 108Roux, T. 2008. Op.Cit Pp. 154. 109Hall, R. 2010. ‘Reconciling the past, present, and future: the parameters and practices of land restitution in South Africa’. In: Cherryl Walker/Anna Bohlin/Ruth Hall/Thembela Kepe [ed.]: Land, memory, reconstruction, and justice: perspectives on land claims in South Africa. Athens: Ohio University Press. Pp. 17-40. 110Roux, T. 2008.Op.Cit Pp. 154.

46 government officials are the “central actors in the process” while claimants can only “observe from the sidelines”.111 In addition, the resulting technicist and legalistic conception has tended to limit the ability of marginalised (particularly older and more illiterate) citizens to access their right to restitution.112

Finally, Roux discusses how the macro-policy decision to isolate the land restitution programme from the truth and reconciliation process (enacted through the Promotion of National Unity and Reconciliation Act) ultimately hindered the programme’s ability to contribute to national reconciliation, one of the expressed key goals of restitution. This also meant that the massive cases of forced displacement occurring under colonial and apartheid rule were excluded from the flagrant human rights violations dealt with by the TRC.113 Thus the destruction of homes, livelihoods, family life, community cohesion, political organisation and culture accompanying forced removals that culminated in the mass impoverishment and humiliation of the majority population were reduced to issues of legal redress rather than the emotionally complex and devastating experiences they represented.

Combined with the other major limitations of the current restitution process, the weaknesses in policy design largely attributable to the international and transitional context within which restitution was formulated has translated into serious problems characterising the programme. Not least of these is the massive exclusion of millions of South Africa’s landless citizens.

3.3.2 Lack of awareness of the right to restitution and claims process Another chief failing of restitution leading to its exclusive nature has been its dominant focus on the settling of claims to the detriment of the lodging of claims. From the beginning of the programme, attention of government, civil society and the media has concentrated on the slow rate of claims settlement rather than on the wide discrepancy in numbers concerning those who experienced dispossession compared to the exceptionally low number of submitted claims.114 Underlying reasons for this were directly related to the political weight that settlement of claims carried as restitution was one of the most tangible ways for the new democratic government to prove its commitment to restorative justice.115 Thus, while focus during the first years of the programme would have been better placed on educating the general population of their rights under the restitution programme as well as the requirements for submitting claims to ensure that

111Du Toit, A. 2000. ‘The End of Restitution: Getting real about land claims’, in Cousins B (ed.), 200. At the Crossroads: Land and Agrarian Reform in South Africa into the 21st Century, PLAAS, UWC. 112CRLR. 2007b. Restitution of Land Rights Act Amendment Proposals: input by Land Claimants & Commission on Restitution on Land Rights. Agriculture and Land Affairs Portfolio Committee Parliamentary Hearings 29 May 2007. Available at: http://www.pmg.org.za/minutes/ 20070528-restitution-land-rights-act-amendment-proposals- input-land-claimants-commission-res. 113Roux, T. 2008.Op.Cit 114Westaway, A. 2008.Re-membering the Centennial South African Nation-State. PhD Thesis, University of Fort Hare. Available at: ufh.netd.ac.za/bitstream/10353/149/1/Westaway%20thesis.pdf. 115Walker, C. 2000. Relocating Restitution, Transformation, 44.

47 all potential claimants were aware of these critical details while the lodgement period was still open (especially considering that the right to restitution is not automatic and must be claimed), the settlement of claims took the center stage throughout the 1990s. This is unfortunately still the case today.

In addition to the scant attention paid to ensuring that sufficient numbers of claims were lodged by the initial 30 June 1998 cut-off date, the first few years of the restitution process was characterised by institutional challenges and capacity constraints that severely affected how many claims were submitted. As the 1994 Restitution Act called for the creation of new institutions to oversee the restitution process, newly appointed Commissioners were justifiably preoccupied with building the institutional infrastructure to carry out their mandates during the outset of the programme.116 In order to function properly, the CRLR needed to establish its offices, procure equipment and furniture, attract capable staff and develop strategies for researching claims.

This translated into a major distraction from their imperative foremost task, namely the solicitation of claims. For some regions of the country such as the Western Cape, more than a year passed before regional offices had established permanent offices or hired communication officers, rapidly eating up the preciously short period of three years allotted for submission (later extended by 6 months).117 In addition, the newly elected democratic government was in the process of establishing a capable bureaucracy with sufficient administrative skills, a cumbersome and lengthy task that also occupied much of the CRLR’s time and energy.

It is also important to consider the changing political and economic context of the mid-1990s when evaluating the CRLR’s lack of attention focused on the solicitation of claims. The state’s adoption of the conservative macroeconomic policy in 1995, namely the Growth, Employment and Redistribution (GEAR) programme which emphasised the primacy of the market, fiscal austerity and a minimal role for the state, drastically impacted the CRLR’s ability to manage all areas of the restitution programme.118 Importantly, this limited the scope of the programme as the CRLR faced serious staff shortages due to budget constraints. While in 1996/7 the CRLR was given a budget of R 14 million (considered hugely inadequate by Commission officials), the figure decreased to only R 10 million in 1997/8.119

The underbudgeting of the CRLR not only resulted in severe human resource capacity constraints, but also short supplies of necessary equipment such as telephones.120 The inadequate provision of resources rendered the inherently complex administration procedures of the

116Westaway, A. 2008.Op.Cit. 117Ibid. 118 Walker, C. 2002.Op.Cit. 119Westaway, A. 2008.Op.Cit. 120Brown, M., Erasmus, J., Kingwill, R., Murray, C. & Roodt, M. 1998.Land Restitution in South Africa: A long way home. Idasa: Cape Town.

48 restitution programme, including the researching, evaluation, adjudication and settling of claims (in addition to the planning and implementation of restitution awards), extremely difficult.

Furthermore, the staffing constraints and overwhelming administrative challenges facing the CRLR exacerbated existing tensions between the Commission, the LCC and the DLA. After prolonged conflict between the two structures, the DLA (who was responsible for determining the restitution budget) opened the space for 30 new positions within the CRLR in 1998 and the Commission was further expanded by 50 new employees as a result of receiving additional funding from the Netherlands government.121 With the deadline for submission of claims set this same year, the increase in numbers of posts within the restitution programme proved much too late to significantly compensate for the lack of proper solicitation efforts characterising the prior three years of the programme.

Thus, by the initial deadline of 30 June 1998 set for the submission of claims, only 33 000 claimants accessed the programme and lodged a claim. Concluding that this figure was at great odds with the millions of people dispossessed of their property rights under colonial and apartheid regimes, the Government acknowledged that the period of time for lodging claims was too short and extended it by six months.122 The massive “Stake Your Claim” Campaign was thus launched to spread awareness of the restitution programme during this time period and the number of claims submitted by the final lodgement deadline of 31 December 1998 increased to 63 455.123

Although this large increase in claims is appreciated, available evidence corroborates arguments that the six month extension period allotted for lodging claims was still highly inadequate to ensure sufficient numbers of eligible citizens were aware of their right to restitution.124 Different groups have asserted that the CRLR’s communication strategies aimed at creating awareness of the restitution process failed to reach many dispossessed South Africans, most notably in rural areas where “many people do not know that the Land Restitution Act even exists”.125 This lack of awareness is corroborated by the findings of one study conducted as late as 2006 which reported that less than one third of the 177 study participants who experienced dispossession of land rights after 1913 could accurately describe the restitution programme. Of the study respondents who reported they or their ancestors had been deprived of land after 1913, only 9% had

121Budlender, G. 1998. Letters to the editor, Mail & Guardian, October 23 – 29. 122Hall, R. 2004. ‘Land Restitution in South Africa: Rights, Development and the Restrained State’, Canadian Journal of African Studies, 38, 3. Pp. 654-671. 123 Hall, R. 2009. Another Countryside? Op.Cit. 124Aliber, M., Reitzes, M. & M. Roefs. 2006. Assessing the Alignment of South Africa’s Land Reform Policy to People’s Aspirations and Expectations: A Policy-oriented report based on a survey of three provinces. Human Sciences Research Council. 125Gauteng Land Restitution Claims Committee, 2007. Discussion Document Presented to the Portfolio Committee on Agriculture and Land Affairs. Restitution Amendment Bill Proposal: Cut-off dates 19 June 1913 and 31 December 1998: Public Hearings. Portfolio Committee on Agriculture and Land Affairs, 29 May 2007.

49 successfully lodged claims.126 In addition, 14% of the research participants did not know how to submit a claim for restitution. Authors of the study concluded that

Possibly the single most significant finding is the pervasive lack of awareness regarding land reform among blacks…The most concerning aspect of this is in respect of land restitution, wherein the study found that a large proportion of households who had experienced land dispossession since 1913 did not have sufficient knowledge of land reform to engage with the claims process, which closed in 1998.127

Furthermore, the timeframe designated for submitting claims for restitution was insufficient for potential claimants to gather the required evidence (including identity documents, birth and death certificates etc) needed for claims to be considered by the CRLR.128 Although the Restitution Act affords alterative relief (through other legs of the land reform programme and state housing and development programmes) for dispossessed citizens who do not meet the requirements for restitution, this only applies to those who submitted claims by the December 1998 deadline.129 As many South Africans only became aware of the restitution process after this date upon witnessing others who were awarded redress through the programme, large numbers of authentic potential beneficiaries have been excluded.130

Thus the institutional weaknesses characterising the initial years of the programme, the failure of communication strategies to reach a majority of those who were alienated from their land post 1913 and the relatively short timeframe allotted for submission of claims resulted in widespread lack of awareness of the constitutionally mandated right to restitution. This lack of awareness has posed a major barrier for deprived citizens to access the programme. This alone provides solid justification for the re-opening of the claims process to allow those persons and communities who were unable to file claims by the 31 December 1998 cut-off date a chance at historical redress for the land alienation they suffered due to colonial and apartheid racially discriminatory policies and practices.

3.3.3 Exclusion of those dispossessed under “Betterment” Policies A third fundamentally problematic deficiency of the current restitution policy is its exclusion of those persons and communities who were victims of apartheid engineered “Betterment” planning schemes. While various definitions exist for betterment planning, this report adopts the Border Rural Committee’s (BRC) definition as it is clear-cut and most applicable to the purposes of this RIA:

126Aliber, M., Reitzes, M. & M. Roefs. 2006. Op.Cit. 127Ibid. Pp. 38. 128Twala, C. and J. Selesho, 2013.Rural and Agrarian Development Discourse in a Post-apartheid South Africa: An Agro-ecological Challenge. Journal of Human Ecology, 41, 1, pp. 9-18; Andrew, N. 2006.Op.Cit. 129DRDLR, 2013a.Op.Cit. 130Aliber, M., Reitzes, M. & M. Roefs. 2006. Op.Cit.

50 Betterment planning... involved the centrally planned and imposed re-organisation of rural communities by changing where people lived, how they used their land, and how much land was available to them.131

Expanding on this definition, the LCC described “Betterment” as policies practiced in the former homelands beginning as early as the 1930s and continuing throughout the twentieth century which “aimed to regulate access to land and land control and land usage in these areas, either directly by the South African Government or indirectly through the puppet governments established in the Bantustans”.132 Betterment planning went completely against the grain of traditional African tenure systems. The latter embraced inclusive communal rights to land in which a carefully established equilibrium existed between household rights to residential and arable land and collective rights to grazing and other forms of commonage spaces.133

Under colonial and apartheid betterment planning (sometimes referred to as ‘villigisation’), on the other hand, selected areas were divided into separate land use zones – grazing, arable and residential. Indigenous South Africans were forced to relocate into designated use zones and were dispossessed of the best quality arable and grazing lands. There were tremendously negative impacts on African life as a result of this form of forced removals including destruction of peasant farming, dissolution family systems, disruption of community organisation, cultural deterioration and massive loss of livelihood resources.134

Despite the fact that betterment schemes affected between an estimated 1.3 and 4 million people and were enacted post 19 June 1913, victims of this form of land alienation were excluded from the restitution process.135 As dispossessions that transpired as a result of betterment schemes represent a significant proportion of claims that were wrongfully denied under the current restitution programme, the proposed restitution framework suggests that of the three phases to accompany the re-opening of the 1998 cut-off date (1: Processing outstanding claims; 2: Dealing with claims that were wrongfully denied; and 3: Addressing new claims that will be submitted based on the re-opening of the lodgement deadline), claims associated with betterment planning

131Border Rural Committee (BRC), 2001. Keiskammahoek Communal Betterment Claims: Gwili-Gwili. Gxulu, Mnyameni, Mtwaku, Ndlovini, Ngobozana, Upper Ngqumeya: Information Pack for the Purposes of Formulating Settlement Agreements(East London: Border Rural Committee) [Keiskammahoek Communal Betterment Claims]. 132Hlolweni, Mfolozi & Etyeni Communities v North Pondoland Sugar (Pty) Ltd and Others LCC 41/03 fn 15. The judgment was handed down by Bam JP; Yawitch, J. 1981. Betterment: The Myth of Homeland Agriculture. Johannesburg: South African Institute of Race Relations. 133Cousins, B. 2008. Contextualising the controversies, dilemmas of communal tenure reform in post-apartheid South Africa: in LAND, POWER & CUSTOM: Controversies generated by South Africa`s Communal Land Rights Act, edited by A. Claassens and B. Cousins. Cape Town: UCT Press. 134DRDLR, 2011b. Legal analysis of, and recommendation in respect of, land dispossessions caused by the implementation of “betterment Planning” policies and legislation with specific reference to the former Transkei. (Unpublished). 135 Andersson, J. and Axelsson, L. 2005. ‘Cata – A Former Homeland Village Affected by Betterment, Eastern Cape, South Africa’, (Unpublished).

51 should fall into the second phase. The following sub-sections of this report provide a brief overview of betterment planning and the reasons why such claims were excluded from the lodgement process.

3.3.3.1 Historical and legislative background of betterment planning

Although certain aspects of betterment planning can be found in pre-1913 racially discriminatory legislation such as the Glen Grey Act of 1994, betterment schemes were initiated through three significant segregation laws, namely the 1913 Natives Land Act, the 1927 Native Administration Act and the 1936 South African Native Trust and Land Act.136 Not only did these Acts provide the foundation for racial segregation through the creation of reserves (which ultimately resulted in 86% of South Africa’s land surface under the ownership of the 13% white minority population while 76.7% of the population (Africans) controlled a meagre 15% of the land137), but they also enabled the apartheid regime to institute betterment schemes throughout most of the twentieth century (from the 1940s to 1980s). This occurred within the ten scheduled and released areas established by the 1913 and 1936 Acts, respectively, which became the ten homelands that today make up South Africa’s communal areas.

These included the Transkei, Bophuthatswana, Venda, Ciskei, Gazankulu, KaNgwane, KwaNdebele, KwaZulu, Lebowa and QuaQua. Unless granted approval by the Governor- General, land in these areas was prohibited from being sold or transferred to any person who was not considered a native while Africans were forbidden from purchasing land outside of the reserves. As the 1927 Act made provisions (amongst others) empowering the State President to appoint chiefs and headman as well as to define their distinct jurisdictions (with the aim of exerting more control over indigenous South Africans), the 1936 Act released an additional 6 million hectares for black occupation and created the South African Native Trust (SANT). With administration of the reserves as SANT’s main responsibility, the 1936 Act allowed SANT officials to circumvent traditional authorities to intervene in what the colonialist government than deemed “primitive agricultural” practices in the reserves. This was based on the “conviction, partly arising from the report of the Native Economic Commission of 1932 that it was essential to modernise African agriculture in order to prevent an incipient ecological disaster that could lead to massive urbanisation”.138 Thus an array of policies were formulated to “improve” native agriculture including stock culling, separation of arable, residential and grazing lands, villigisation, and restrictions on chopping down trees. This mixture of policies is now referred to in the literature as “betterment planning”.139

136DRDLR, 2011b.Op.Cit. 137 Wegerif, M. 2004. A Critical Appraisal of South Africa’s Market-based Land Reform Policy: The Case of the Land Redistribution for Agricultural Development (LRAD) Programme in Limpopo.Research Report 19. Cape Town: Programme for Land and Agrarian Studies (PLAAS), University of the Western Cape. 138 Kariuki, S. 2013. Betterment Planning and its Implication for Restitution Policy in South Africa.Pp. 27. 139Ibid.

52 Under the legislation named above, betterment schemes were enacted through various Proclamations that dictated where people were to live and how land in these reserve areas was to be used. Most significant to betterment planning was Proclamation 116 of 1949 or the Betterment Areas Proclamation which alleged to promote development in the reserves.140 Proclamation 116 empowered the Native Commissioner to demarcate certain areas as grazing, residential or agricultural land and to regulate livestock. Extending the scope of Proclamation No. 31 of 1939 (referred to as the Livestock Control and Improvement Proclamation), which accorded the Minister powers to designate areas that were betterment lands and to determine who in that area kept livestock, where they grazed their animals and how many they kept, the Betterment Areas Proclamation also increased the number of crimes that could be committed under betterment laws and made their corresponding penalties more severe.141

Implementation of betterment planning under the administration of SANT became more and more coercive throughout the twentieth century, with white commissioners imposing unfounded and destructive practices on Africans. Though there was much resistance to such control, the various revolts failed to prevent further involuntary displacement and betterment practices continued to result in dispossession of Africans into the 1980s.142

3.3.3.2 Impact of Betterment Schemes

Betterment schemes, executed in the name of environmental conservation, prevention of soil erosion and agricultural development, resulted in the forced removal of huge segments of the black, coloured and Indian populations, with estimated figures of betterment victims falling between 1.3 and 4 million people.143 This form of dispossession destroyed livelihood systems and eroded culture as families and communities were forced from their ancestral lands and scattered throughout the Bantustans. Ironically, rather than achieving professed intentions of protecting the environment and establishing sustainable communities, betterment invariably led to increased congestion, environmental degradation and impoverishment in the former homelands.144

One of the most far-reaching consequences of betterment planning was a significant restructuring of rural communities. As opposed to the original dispersed pattern of homesteads found in traditional African settlements, betterment schemes involved the forced concentration of people into western-type planned villages.145 This proved destructive to indigenous forms of agriculture

140DRDLR, 2011b.Op.Cit. 141 Yawitch, J. 1981. Op. Cit. Pp. 14. 142Delius, P. 1995. “A History of Land Struggles: 1652-1980.” Unpublished paper prepared for the NLC Land Reform Vision, Johannesburg. 143 Andersson, J. and Axelsson, L. 2005. Op.Cit. 144DRDLR, 2011b.Op.Cit. 145 Letsoalo, E.M. & Rogerson C.M. 1982. ‘Rural “Development” Planning under Apartheid: Betterment Planning in Lebowa, South Africa’, Geoforum, 13, 4, pp. 301–314.

53 which relied upon a continuity between residential land and fields as family members were then able to divide sowing, plowing and other tasks while also attending to the family’s daily sustenance needs.146 In betterment villages, living and farming areas were not only separated, but also not linked to an individual homestead and as a result this system broke down.

Moreover, betterment policies forced people to leave their ancestral homes and construct new living quarters in foreign environments with insufficient resources. Natural resources including land and water were much sparser in the reserves, forcing many displacees into worsening impoverishment.147 The increasing congestion of people in villages resulted in over-exploitation of the already scarce resources and severe erosion. Being forced to move from familiar lands to foreign territories (which involved the abandonment of ancestral graves, the dispersal of kin and destruction of support networks) was extremely socially disruptive. As De Wet emphasizes, this also involved the destruction of political organisations and economic relationships which had proved crucial to community cohesion within traditional African settlements.148

Figures citing the extent of dispossession that occurred as a result of betterment policies are extremely disturbing. It is estimated that Betterment schemes were implemented across 70% of all homeland areas by the mid-1970s. Indicative of this widespread use of betterment planning by the apartheid government are the increasing population densities of the Bantustans which nearly doubled in the last decades of the 20th century, rising from almost 19 people per square kilometre in 1970 to 34 people per square km 1995.149 One example of this massive dispossession is the betterment schemes carried out in Chatha Valley in which arable land- holdings per household were reduced from an average of 1.72 ha per household in 1949 to 0.43 ha in 1981. The proportions of landless households in this area increased from 10% to 40% during this time period.150Dispossessed South Africans endured immeasurable social, economic and cultural costs as a result of this prevalent and devastating form of land alienation which still remains to be redressed. The Surplus Peoples Project (SPP) contends that "betterment has forcibly removed more people in more places with greater social consequences and provoking more resistance than any other category of forced removal in South Africa".151

3.3.3.3 Exclusion of betterment victims from the restitution process

Although “Betterment” policies were clearly driven by racially discriminatory motivations of the apartheid government, namely as a “political project aimed at advancing racial segregation whilst masquerading as an economic project aimed at the emancipation of residents of the 146 Yawitch, J. 1981. Op. Cit. Pp. 48 – 49. 147 Yawitch, J. 1981. Op. Cit. Pp. 50. 148De Wet, C. 1995. Moving Together, Drifting Apart. Betterment Planning and Villagisation in a South African Homeland.Witwatersrand University Press. 149 Kariuki, K. 2013. Op.Cit. 150DRDLR, 2011b.Op.Cit. 151Surplus People’s Project. 1983. Forced Removals in South Africa: The Eastern Cape. Vol. 2 of the SPP Report. 110.

54 homelands”, the drafters of the 1997 White Paper on South African Land Policy deemed the devastating effects of betterment planning irrelevant to land restitution.152 Accordingly, the White Paper stated that “claims of those dispossessed under 'Betterment' policies, which involved the forced removal and loss of land rights for millions of inhabitants of the former Bantustans, should be addressed through land tenure security programmes, land administration reform and land redistribution programmes”.153 This stipulation led to regional CRLR offices dissuading victims of betterment policies to lodge claims for restitution.154 The Eastern Cape Regional Land Claims Commissioner went as far as to outright refuse claims submitted by those individuals and communities dispossessed as a result of betterment policies, arguing that they did not meet the specified restitution requirements. In addition, victims of betterment schemes were informed NOT to apply for restitution during the public communication campaign carried out in 1998.155

3.3.3.4 Successful claims for restitution lodged by betterment victims

While a small number of communities who lost land due to betterment planning schemes were successful in claiming their right to restitution (including the Chatha community), more than 95% of betterment victims have been excluded from the restitution programme.156 This is despite the LCC’s ruling that cases of land alienation which occurred due to the implementation of betterment policies meet the requirements for restitution. However, promising policy developments have taken place in the EC (where an estimated 800 communities suffered land dispossession as a result of betterment schemes) that could potentially expand the restitution programme’s scope. Such advances include the 1999 settlement of the Chatha betterment claim (in which each claimant was awarded R 31 679 totaling R 10.5 million) and the creation of a Settlement Support and Development Planning Division (SSDP) within Eastern Cape’s Regional Land Claims Commission (RLCC).157 Also, following the successful Chatha settlement, a second major betterment claim succeeded in 2002 at Keiskammahoek, benefitting more than 2 000 households.158

Given the great likelihood that betterment planning schemes account for a large proportion (and possibly the majority) of forced displacements that occurred post 1913 as a result of colonial and apartheid engineered racially discriminatory legislation and practices, it is incontrovertible that dispossessed individuals and communities suffering the consequences of such schemes meet the eligibility requirements set out by the Restitution of Land Rights Act. This is confirmed by the LCC’s decision rendered in the Chatha case. Therefore the almost total neglect of betterment victims by the restitution process is a major limitation of the programme that has resulted in its

152 Kariuki, K. 2013. Op.Cit. 153DLA (Department of Land Affairs). 1997.Op.Cit.Pp. 79, Section 4.14.3. 154DRDLR, 2011b.Op.Cit. 155Ibid. 156Ibid. 157 Weideman, M. 2004. Op.Cit. 158DRDLR, 2011b.Op.Cit.

55 exceedingly exclusive nature. This shortcoming can be definitively overcome by re-opening the 31 December 1998 cut-off date to allow for victims of betterment policies to submit claims for restitution of dispossessed property rights. Apparent in the few victorious betterment claims, a legal precedent has now been established for the restitution programme to accept such claims as valid.

3.3.4 Ommission of pre-1913 land alienation As indigenous South Africans had been alienated from most of their land before the Natives Land Act of 1913 came into effect, the omission of claims for dispossessions that occurred prior to 1913 (the cut-off date for restitution as set out in Section 25(7) of the 1996 Constitution) has translated into an extremely exclusive restitution programme. Not only does this preclude almost all people of San and Khoe descent who were the first groups in South Africa to experience involuntary displacement beginning with the arrival of the Dutch in the seventeenth century, but also the many other indigenous communities who lost their rights to land as a result of racially discriminatory measures enacted by various colonial governments.

Contrary to myths that white Europeans found vast expanses of unoccupied lands upon initial settlement in the southern-most region of the African continent, the region known today as South Africa was inhabited by various groups of indigenous peoples at least 100 000 years before the arrival of the Dutch in 1652.159These groups included the Khoe who primarily inhabited the western coast and had adopted a pastoral lifestyle in the first centuries AD; the San (termed Bushmen by early European terminology) who lived in small bands numbering from 20 to 200 people and who were hunters and gatherers moving between the coast and the hinterland; and various groups of Bantu-speaking agro-pastoralists who migrated to the interior of South Africa also around 2 000 years ago.160 Different waves of dispossession resulted in the displacement of the majority of these indigenous communities by 1913.

This began as early as 1657 when the Dutch Crown allotted farms to settlers (referred to as ‘free burghers’) in the arable regions of the Cape, encroaching significantly on the seasonal pasturage lands of the Khoe.A year later the first official act of forced removals occurred in South Africa with Jan van Riebeeck’s order that the Khoe could no longer reside west of the Salt and Liesbeek rivers.161 From this point onwards, military conquest, colonial expansion and racially discriminatory legislation became the dominant means of dispossession in South Africa. The Khoe lost their land and livelihoods and increasing numbers were forced to provide labour to white European settlers.162 Similarly, the small groups of nomadic San were dispossessed of key

159 Delius, P. 1983. The Land Belongs to Us: The Pedi Polity, the Boers and the British in the Nineteenth Century Transvaal. London. 160 Davenport, T. R. H. 1987. South Africa: A Modern History. Hong Kong: MacMillan (PTY) LTD. 161 Levin R.M. 1996. Land Restitution, the Chieftancy and Territoriality: The case of the Mmaboi Land Claim in South Africa’s Northern Province, Centre for African Studies, March 1996. 162Johnson, D. Representing the Cape “Hottentots,” from the French Enlightenment to Post-apartheid South Africa.

56 hunting grounds and forced to retreat far into the Drakensburg mountains, where still today paintings of their oppressors can be seen on cave walls.163 The Dutch settlers justified their alienation of these lands by describing the territory as terra nullius (without an owner).164

Throughout the 1700s, the Dutch-descended settlers overtook the lands of Khoe communities along the southern coast of the continent and moved east from the Hottentot Holland mountains all the way to the Fish River.165 This process rendered the Khoe and San impoverished as they no longer possessed grazing lands for their livestock as well as causing their almost complete political disintegration. Some communities of Khoe retreated north of the Orange River or into lands inhabited by the Xhosa people, while others became servile labourers working alongside slaves to form the majority of agricultural labourers in areas such as the Overberg.166 The majority of Khoe communities who had managed to escape bondage on white settler farms retreated into the interior and were forced into a life of hunting and gathering more akin to the existence of the San.167

The 1800s witnessed the massive migration of white settlers northeast, who eventually conquered vast areas of the country’s best lands through armed conflict and corrupt and often broken treaties. In addition, several pieces of discriminatory legislation were passed to further dispossess indigenous South Africans of their land rights, beginning with the ‘Caledon Code’ of 1809 which attempted to force all San and Khoe communities to reside in a ‘fixed place of abode’ as servants to white farmers.168 This piece of legislation was strengthened by another law passed in 1812 that required all Khoe and San children who had lived on white farms in their first eight years to be apprenticed by the settlers until they reached the age of 18.169 Following these acts, the Kaffir Pass Act was promulgated by the British in 1856, prohibiting the amaXhosa from entering certain parts of the Cape Colony except to provide labour to white settlers; the Orange Free State Occupation Law was enacted in 1866 which intended to “establish a barrier of white-owned farms, three deep, along the border of the ‘Conquered Territory’”; the 1884 Native Location Act in the Cape Colony imposed taxes on both white farmers and African squatters not employed by the landowner; and the Squatter Laws were promulgated in 1887 in

Project Muse. 163Chute, J. A. 2008. A common hunger: Land Rights in Canada and South Africa. Journal of Colonialism and Colonial History,Vol. 9, no, 3. 164 Yanou, M.A. 2006. The 1913 Cut-off Date for Restitution of Dispossessed Land in South Africa: A Critical Appraisal. Africa Development, Vol. XXXI, No. 3, pp. 177–188. 165Ross, R. 1997. The Kat River Rebellion and KhoiKhoi Nationalism: The Fate of an Ethnic Identification. Kronos: Journal of Cape History, Vol. 24, pg. 24-91. 166Ibid. 167Ross, R. 1997. Op. Cit. 168Ibid. 169Ibid.

57 the Transvaal, aimed at removing Africans from reserve land and forcing them to provide labour to white farmers.170

Legislation promulgated in the last part of the 1900s and beginning of the twentieth century intended to further restrict the residence and mobility of indigenous South Africans. These laws included the Natives Locations Act of 1879, the Glen Grey Act of 1894 and the 1895 Squatter Laws Act, which were instituted in the Cape Colony, Transvaal and the Transkei areas, respectively. Not only did these laws limit the number of Africans who could live in designated areas, but imposed taxes on non-titleholders in efforts to prevent squatting.171

Following this, the 1904 Masters and Servants Ordinance was promulgated to deprive African tenants legal rights to land by referring to them as servants instead of wage labourers. Thus, this particular piece of legislation “established the legal basis for the process of forced removal and eviction of labour tenants and farm workers” that has continued relatively unabated into the twenty-first century.172 In addition, the Native Occupation of Land Act was passed in 1908 in the Transvaal with the intention of decreasing the numbers of indigenous communities allowed to reside on white-claimed farms. The same year the Mission Stations and Communal Reserves Act 29 of 1909 rendered land that had previously been administered by mission stations under colonial state control and defined these areas as reserves.173

After the Second Anglo-Boer War (1899 to 1902), between the British and the two Afrikaner Republics of the Transvaal and Orange Free State, the Union of South Africa was established through passage of the Union of South Africa Act 1909 by the British Government. This Act provided that all laws that applied to the four colonies174 would cease to apply to that colony only, but would apply to the whole Union.175 Legislation mentioned above, and other laws that had been passed by the colonies therefore continued to apply in the Union. Thus, by the time the Natives Land Act was passed in 1913, reserving approximately 7% of the land in South Africa for the Black majority population, millions of indigenous South Africans had already been dispossessed of their land rights.176 As argued by one scholar, the 1913 Natives Land Act merely

170 See http://www.nelsonmandela.org/omalley/index.php/site/q/03lv01538/04lv01646/05lv01673.htm [accessed on 19 January 2013]. 171 Davenport, T. R. H. 1987. Op.Cit; Delius, P. 1995. “A History of Land Struggles: 1652-1980.” Unpublished paper prepared for the NLC Land Reform Vision, Johannesburg; Letsoalo, E.M. 1987. Land Reform in South Africa: A Black Perspective. Johannesburg: Skotaville Publishers. Pp. 36. 172Weideman, M. 2004. A History of Dispossession. Available at: wiredspace.wits.ac.za/bitstream/10539/275 /.../13_chapter1.pdf (Accessed on 20 FEB 2013). 173 DLA, 2001: 4. 174 Being the Cape of Good Hope, Natal, Transvaal and Orange Free State. 175Section 7 of the Union of South Africa Act, 1909. 176 Mbeki, T. 2003. The Land Shall Belong to Those Who Work it. ANCT Today, 3, 24. [online]. See http://www.anc.org.za/docs/anctoday/2003/at24.htm [accessed on 19 January 2013].

58 “gave legislative effect to a process of land seizure by the white settlers that has been going on since Jan van Riebeek set foot on the shores of the Cape of Good Hope in 1652.”177

However, South Africa’s protracted history of dispossession did not carry significant weight in the early 1990 policy discussions on restitution when, as discussed previously, claims for alienated land that predated 1913 were excluded due to the political compromise that occurred during the constitutional negotiations at CODESA.178 In neglecting to appoint historians from the group of experts commissioned to formulate restitution policy, the WB (together with white landed interests and right-leaning ANC representatives) ensured that policy discussions were not positioned within the context of South Africa’s long history of dispossession.179 The resulting technicist (as opposed to social justice) approach taken towards restitution meant that, although the majority of the country’s land surface had come under white possession through various discriminatory means during the 250 years of predominantly white domination prior to the twentieth century, only those claims for dispossession that occurred after 1913 would be considered eligible for restitution.180

The Government’s main justifications for the 19 June 1913 cut-off date rested on the need to safeguard the future stability of South Africa as well as the lack of written documentation to validate pre-1913 claims. Firstly, allowing the submission of pre-1913 claims was assumed as potentially threatening to social cohesion as it may precipitate violent intra- and inter-tribal conflicts. Here, the 1997 White Paper states that

…ancestral land claims could create a number of problems and legal-political complexities that would be impossible to unravel. [M]ost deep historical claims are justified on the basis of membership of a tribal kingdom or chiefdom. The entertainment of such claims would serve to awaken and/or prolong destructive ethnic and racial politics.181

Secondly, argued in both the White Paper and a decade later during the Parliamentary hearings convened in 2007 to consider proposals to amend both the 1913 and 1998 cut-off dates, the supposed lack of written documentation to verify pre-1913 dispossessions would render such claims impossible to resolve.182 Other reasons to maintain the 1913 cut-off date put forward by Government included the large numbers and scattered state of descendants of original inhabitants, the inherently complicated and overlapping nature of pre-1913 displacement that would place unmanageable burdens on the CRLR, and the economic dangers of large tracts of South Africa’s land becoming the subject of restitution claims.183 Instead of dealing with the

177 Mbeki, T. 2003. Op.Cit. 178Roux, T. 2008.Op.Cit. Pp. 155–156. 179 Weideman, M. 2004. Op.Cit. 180Hall, R. 2003. Op.Cit. 181DLA (Department of Land Affairs).1997. Op.Cit. Section 4.14.2. 182Roux, T. 2008. Op.Cit; Hall, R. 2009.Another Countryside? Op.Cit; CRLR.2007b. Op.Cit. 183 Weideman, M. 2004. Op.Cit.

59 massive land alienation and involuntary displacement that occurred prior to 1913 through the restitution programme, the White Paper reassured that the needs of those excluded by this cut-off date would be addressed through the redistribution and tenure reform legs of South Africa’s land reform programme.184

Both justifications for the cut-off date and this latter assertion that persons and communities who submitted claims to land alienated before 1913 may receive “preferential status” in the redistribution or tenure reform programmes have been widely criticised. While all such concerns hold much validity, particularly the massive demographic shift of descendants of those dispossessed of their land rights before 1913, the country’s past 18 years of experience with restitution has revealed that the problems cited as reasons for not including pre-1913 claims have more often than not also characterised post 1913 claims. Thus, limiting the lodging of claims process to post 1913 mostly apartheid engineered forced removals has not successfully prevented a common incidence of restitution-associated conflict amongst communities.185 Regarding the absence of written documentation, numerous historians have identified specific cases of land dispossession that occurred prior to promulgation of the Natives Land Act and thus assert that there is a wealth of information available to establish pre-1913 land rights (such as deeds registries).186 Moreover, the Government’s promise that those who lost rights to land before passage of the Natives Land Act would benefit from other land reform programmes has not been fully realised.

In light of these criticisms, and the continued pressure on the state to reassess the 1913 time- based restriction placed on restitution eligibility, the Government is considering amending restitution policy to allow for the submission of pre-1913 claims. However, as such proposals are outlined in a separate policy document than those pertaining to the re-opening of the 1998 lodgement date (the principal subject of this RIA), they are outside the main concern of this RIA and must be dealt with separately.

3.3.5 Exclusion of certain labour tenants and farm dwellers

Another category of land dispossessions that the Restitution of Land Rights Act of 1994 fails to account for are dispossessed citizens who live(d) and/or work(ed) on commercial farms.187 Although the policy affords a right to restitution for labour tenants who had lived and worked on commercial farms for a minimum of ten years before they were removed, it neglects other groups of farm dwellers and labour tenants who do not fall within the parameters of this provision.188 This includes persons and communities who were evicted in the post-transition era (who do not

184DLA (Department of Land Affairs). 1997. Op.Cit. 185 Hall, R. 2009. Another Countryside? Op.Cit. 186 Feinberg, H.M. 1995. South Africa and Land Ownership: What's in a Deed? History in Africa, 22, pp. 439-443; Klug, H. 1996.Op.Cit. 187 Makgetla, N.S. 2010. Op.Cit. 188DLA (Department of Land Affairs). 1997. Op.Cit.

60 fall within the scope of the Restitution Act as such rights were ineffectively covered by tenure reform legislation); commercial farm dwellers and labour tenants who have managed to remain living/ working on white-owned commercial farms; and long-time occupiers of commercial farms who cannot prove they were evicted for explicitly racial reasons. As with victims of betterment schemes and those alienated from their land pre-1913, the 1997 White Paper’s vision that this latter category excluded from the restitution process would be accorded redress through other areas of land reform has not come to fruition.189

One of the main reasons for this is the failure of tenure reform legislation to protect farm dwellers’ and farm workers’ rights provided under the LTA and the ESTA, and thus their ineffectiveness to prevent illegal evictions.190 The reasons for such failure are located in both the weaknesses in the design of tenure reform legislation as well as their almost complete lack of enforcement. The LTA and ESTA fail to protect people living on commercial farms from becoming victims of constructive evictions (evictees who were: “told to leave the farm and believed they had no option but to comply; received written notice to leave the farm from the owner or court and believed they had no option but to comply; or were forced to leave the farm because conditions were made intolerable for them”).191While these types of evictions are illegal, constructive evictions have become more commonplace and landowners are able to simply aver that occupiers left of their own free will.192

Despite the fact that the vast majority of evictions are carried through without involving a court order (with estimates that only 1% of evictions involved any kind of legal process), landowners are rarely subjected to criminal proceedings for violation of these laws (only one landowner amidst hundreds or even thousands has been charged criminally with this offense to date).193 Furthermore, in the context of evictions where the farm owners have respected the constitutional mandate to acquire a court order and follow necessary legal steps, most farm dwellers were unable to access legal representation despite the 2001 Nkuzi judgment that requires the DRDLR and Ministry of Justice to provide legal services to those people living and working on commercial farms.194

189Ibid. Section 4.14.3. 190Cousins, B. 2002.Legislating Negotiability: Tenure reform in post-aparthied South Africa.In Negotiating property in Africa, Juul, K. and Lund, C. (eds). Portsmouth, New Hampshire: Heinemann, (pp. 67-106). Pp. 16. 191Wegerif, M., Russel, B., & Grundling, I., 2005.Still searching for security: The reality of farm dweller evictions in South Africa.Polokwane North: Nkuzi Development Association. Pp. iii. 192Wegerif, et al., 2005.Op.Cit. 193HRW, 2011.Ripe with abuse: Human rights conditions in South Africa’s fruit and wine industries. New York: Human Rights Watch; Wegerif, et al. 2005. Op.Cit.; Mc Fie, K. 2011. The End of Agriculture in South Africa? Criticisms of clause 15(1) of the Draft Land Tenure Security Bill, 2010.Submitted to University Of Cape Town in fulfillment of requirements LLB.Faculty of Law, University of Cape Town. 194SAHRC, 2009. Progress made in terms of land tenure security, safety and labour relations in farming communities since 2003.

61 This means that of the almost one million (or more) South Africans who have been forcibly displaced from Commercial Farming Areas, at least 830 000 lost their land rights through extra- legal measures. In the 9 years since 2004 numbers of historically marginalised citizens who suffered land dispossession due to illegal measures have far surpassed 1.5 million. None are eligible for restoration of land rights or alternative means of redress under the current restitution policy. This limitation of the current policy contradicts national development and poverty reduction objectives, especially considering that close to half of all people evicted from white- owned commercial farms are children, with women constituting 28% of evictees.195

There is therefore good justification for extending the scope of the restitution policy to allow this last category of excluded citizens dispossessed of their land rights as a result of racially discriminatory practices to lodge restitution claims. With more people having been evicted from farms in the ten years following the advent of democracy in South Africa than in the prior decade196, amending restitution policy to allow farm dwellers and victims of post 1994 illegal evictions to lodge claims would not only answer to the NDP’s aim of eradicating inequality and decreasing poverty, but would also serve as a disincentive to current landowners to carry out constructive evictions.

3.4 The 1913 Natives Land Act and the Impact of post 1913 Dispossession

The Natives Land Act, No. 27 of 1913 was the first major piece of legislation passed by the country’s oppressive white governments that dispossessed the majority of the population of their land and livelihoods.197 This marked the first comprehensive and unified national move toward colonialist and later apartheid legislative efforts at territorial racial segregation of South Africa. Considered the cornerstone of apartheid, the 1913 Natives Land Act is directly linked to the inequality and impoverishment that plagues South Africa.198 The socio-economic repercussions of the Act cannot be understated as the highly unequal nature of contemporary South African society, in which more than 1/3 of the country’s black citizens live in the former homelands and more than 3 million farm dwellers and workers reside on white-owned commercial farms without security of tenure, can be directly traced back to its passage. As the Constitution provides the right to restitution or equitable redress to those who were dispossessed of their land and property due to promulgation of the 1913 Act or subsequent racially discriminatory legislation and practices, it is important here to explore briefly the devastating consequences this law held for the African population.

195Wegerif et al., 2005.Op.Cit. 196HRW, 2011.Op.Cit. 197Plaatje, S. and A.F.B., 1976. Homeless! Landless! Outlawed!: the plight of South African Natives interview with Solomon Plaatje. English in Africa, 3(2), pp. 59-63; Feinberg, H.M. 1993. “The 1913 Natives Land Act in South Africa: politics, race, and segregation in the early 20th century.” The International Journal of African Historical Studies, 26(1), pp. 65-109. 198Daniels, R., 1989. The Agrarian land question in South Africa in its historical context, 1652-1988. American Journal of Economics and Sociology, 48(3), pp. 65-89.

62 3.4.1 Intended objectives and provisions of Natives Land Act of 1913 While the causes for promulgation and intended aims of the Act are the subject of considerable literary debate, a perusal of the available historical accounts indicates that the Natives Land Act was promulgated in persuance of multiple objectives. These include attempts to prevent squatting and sharecropping arrangements on white-owned farms, to create an abundance of cheap labour (for white farmers and the mining industry), to put an end to land purchases by Africans, to bring about uniformity in policies regarding Africans in the new Union, and to promote segregation.199 Such aims are readily visible in the mains provisions of the Act.

The most important provision was the creation of a number of reserves, limiting black purchase or ownership of land to only 7.3% of the country’s total land surface.200 Africans were forbidden from buying or renting land outside of these delineated reserve areas (with the exception of the Cape Colony where the Department of Native Affairs had declared the Act null as land ownership was a requirement for voting eligibility there). Additionally, freehold tenure was prohibited in the ‘scheduled areas’ with land held in trust for different communities. Thus the blueprint for apartheid racial segregation, which resulted in a circulatory migrant labour system considered the cornerstone of apartheid economic development and white rule, was devised long before the establishment of apartheid in the mid-twentieth century.

Another important provision of the 1913 Natives Land Act was the prohibition of both “sowing on shares” or sharecropping and “squatting” on white-owned farms, especially in the OFS where increasing numbers of whites perceived such black occupation of land as a major threat to their economic survival.201 Suffering drought, plagues of locust and diseases that wiped out livestock, economic depression and the severe ravages of the Anglo-Boer War at the turn of the century, white OFS farmers (especially) were threatened by the emerging black sharecropping peasantry who had been somewhat successful in decreasing their dependence on white landowners and employers in the period preceding formation of the Union government.202Because independent Africans either squatting or leasing land in white areas were less likely to provide labour for low wages from either mining capitalists or Afrikaner farmers as they could create their own enterprises and generate other means of sustenance from the land, these were considered a major factor in undermining agricultural productivity and development of an industrial state.203

199 See Tatz, 1962; Nieuwenhuysen, 1968; Wickins, 1981; Keegan, 1986; Daniels, 1989; Murray, 1989; Feinberg, 1993. 200Willan, B., 1979.The Anti-Slavery and Aborigines' Protection Society and the South African Natives' Land Act of 1913.The Journal of African History, 20(1), pp. 83-102. 201British Institute of International and Comparative Law, 1915.South African Native Land Laws.Journal of the Society of Comparative Legislation, New Series, 15(1), pp. 9-16. 202 Ochiltree, I., 2004. Mastering the sharecroppers: land, labour and the search for independence in the US South and South Africa.Journal of Southern African Studies, 30(1), Special Issue: Race and Class in South Africa and the United States, pp. 41-61. 203 Daniels, R., 1989. The Agrarian land question in South Africa in its historical context, 1652-1988. American Journal of Economics and Sociology, 48(3),pp. 65-89.

63 In addition to white farmers’ harsh sentiments against sharecropping and “squatting” in the OFS (driven by their ingrained notions of African inferiority and their desire for black subjugation), many rural whites thought that supplies of African agricultural labour were scarce and they were unable to compete with mines for cheap labour. This scarcity of cheap labour was largely blamed on systems of “squatting” and sharecropping which allowed blacks relatively more autonomy concerning land. While various laws prohibiting “squatting” or limiting the number of families that could live on white-owned farms were passed in the OFS and the Transvaal before the 1913 Act, they were not systematically enforced. As a result, one of the major impetuses for passage of the Natives Land Act, was pressure from these segments of white Union society to address such perceived threats to the economic survival of white agriculture.204

3.4.2 Major impacts of 1913 Act As the 1910 Act of the Union and the Natives Land Act was a terrible defeat for those struggling to protect African rights, there was much resistance to this legislation. It prompted the first organized African and Indian resistance movements opposing oppressive white colonialist policies with the formation of the South African Native National Congress (SANNC) (now the ANC) in 1912 (in which protest to the Act became the main focus of the SANNC’s first campaign) as well as Mahatma Ghandi’s Passive Resistance Campaign of 1913-1914 and the Bloemfontein Anti-pass protest marches.205 However, such resistance proved unsuccessful in overturning the Act’s provisions. Thus, the 1913 Natives Land Act abolished indigenous forms of communal tenure that had existed amongst African communities for centuries and the approximately 4.5 million Africans living in South Africa during this time were crowded into a miniscule portion of the country’s land surface, essentially rendered landless and homeless in the country of their birth.206 The subsequent impacts of this dispossession saturated every aspect of African life and society.

Presenting numerous cases of evictions of African families in the Highveld countrysides, Plaatje’s Native Life in South Africa demonstrates the widespread suffering that blacks experienced as a result of their migration from white-owned farms as they were forced off the land in attempts to escape relegation to labour tenants.207 Plaatje writes, “awaking on Friday morning, June 20, 1913, the South African Native found himself, not actually a slave, but a pariah in the land of his birth.”208 Sometimes given less than two weeks to vacate farms, families and communities forced from their homes as a result of the 1913 Act were deprived of their

204Keegan, T., 1986.Rural Transformations in Industrializing South Africa: The Southern Highveld to 19I4. Johannesburg: Raven. 205Roux, E., 1964.Time Longer than Rope: A history of the Black Man’s Struggle for Freedom in South Africa. Madison: The University of Wisconsin Press. 206Plaatje, S., 1916.Native life in South Africa before and since the European War and the Boer Rebellion: Johannesburg: Ravan Press. 207Plaatje, S., 1916.Op.Cit. 208Ibid.

64 primary means of production (without any compensation), essentially being reduced to “a state of vagabondage with no prospect of permanent settlement”.209

One of the most devastating effects of the 1913 Natives Land Act was to severely undermine African agriculture. Significant numbers of Africans had become successful agricultural producers during the 19th century.210 During 1850s to 1870s, the Ciskei was annexed and large portions of the Transkei came under control by the British, bringing large numbers of Africans in contact with traders, government officials and other whites. With South African commercial agriculture undeveloped at this time, land speculators and white farmers accumulated more revenue by leasing their lands to African tenants, which provided a temporary resolution to the problem of agricultural labour shortages. African peasants, purchasing and leasing land from white landlords, rapidly became industrious and successful agricultural producers, selling grains, livestock, forage and animal products to white settlers. During this period, reports of agricultural surpluses due to cultivation by Africans were not uncommon and they were often the winners of prizes at agricultural shows where they competed with white farmers.211

While between the 1830s and the 1880s, the Cape and Natal territories were administered by the British, the interior was organised into the semi- autonomous, colonially-derived trekker states of the OFS and the South African Republic (Transvaal). A very different pattern of agrarian relationships developed in these regions, in which the territorial rights of different tribes had been completely disregarded and Boer trekkers took ownership of virtually all lands they encountered.212 However, the process of colonial expansion and the land expropriations and taxation attendant upon it did not simply result in the destruction of African agriculture. On the contrary, the years 1830 to 1870 saw the emergence of a South African "peasantry" as "hundreds of thousands" of Africans in the colonised areas successfully resisted migrancy or entry into poorly remunerated wage-labour, instead entering the produce market.213 Through technical innovation, household production was adapted to the use of new implements such as the plough and sufficient agricultural products were produced to satisfy taxation demands, as well as to secure desirable traders' wares.

However, due to various unfavourable structural factors and political interventions from 1886 onwards (including increasing African reliance on purchasing goods and thus increased pressure to enter migrant labour; lack of state investment in social or economic development in the peasant sector; the rinderpest epidemic of 1896-7 and prolonged drought; and the passage of numerous taxation laws, rent increases and evictions in attempts to force Africans off the land

209 Ibid. 210 See for example Bundy, C., 1972. The Emergence and Decline of a South African Peasantry.African Affairs, 71; Bundy, C., 1979.The Rise and Fall of the South African Peasantry. London: Heinemann;Houghton, D.H., 1964. The South African Economy. London. Pp. 52-53. 211 Ibid. 212Bundy, C., 1972.The Emergence and Decline of a South African Peasantry.African Affairs, 71. 213Ibid; Bundy, C., 1979.Op.Cit.

65 and into cheap wage labour), by 1913 the African peasantry exhibited grim signs of agricultural decline and the Natives Land Act almost completely wiped out the remaining independent black farmers who had survived such obstacles.214 Former relatively autonomous African farmers were forced into wage labour (for instance, in the Transvaal the black agricultural labour force grew by 75% between 1918 and 1930 and by 1927, farming in Natal reserves produced less than 25% of residents’ subsistence needs) and the development of the African agricultural sector was ended.215

This massive loss of land and means of production black South Africans experienced as a result of the of the 1913 Act was accompanied by an enormous loss of assets. Evicted families were not only forced to move off their land, but also forced to leave behind their dwellings, tools, furniture, clothing, kitchenware and other important household items. Many evictees, most notably in the OFS and Transvaal, were given extremely short notices and thus were able to take only what they could carry. In addition, other important livelihood assets including sources of water, fuelwood, cultivated crops, wild foods and hunted game were lost with the dispossession of land and subsequent forced migration to reserve areas after passage of the 1913 Act.216

Of considerable significance was the livestock that indigenous South Africans were forced to sacrifice as a consequence of various provisions of the 1913 Act.217 For example, numerous OFS white farmers used the Act’s anti-squatting and anti-sharecropping provisions to force African sharecroppers off their lands with their cattle or to sell their livestock as a condition of remaining labour tenants.218 The magistrate of the Thaba ‘Nchu district reported that 1 050 households were forced to leave their homes, sacrifice their residential assets and livestock and migrate to the Thaba ‘Nchu and Seliba reserves. These areas were the most overpopulated reserves in the Union at that time with estimates exceeding 15 000 by 1918.219

As is discussed in the paragraphs below, replacement of livelihood assets and livestock was extremely difficult in the overcrowded reserves, which were characterized by depleted natural resources, deteriorated soils and drastically limited grazing lands.220 Without sufficient agricultural land to cultivate food for subsistence, the ability of Africans to meet their livelihood needs became increasingly difficult.

214Bundy, C., 1972.Op.Cit. pp. 371. 215 Oettle, N., Fakir, S., Wentzel, W. Giddings, S. & Whiteside, M., 1998. Encouraging sustainable smallholder agriculture in South Africa. Hillside: Environment and Development Consultancy Ltd; Delius, P., 1995. A History of Land Struggles: 1652-1980. Unpublished paper prepared for the NLC Land Reform Vision, Johannesburg. Pp. 26-27. 216Plaatje, S. 1916. Op.Cit. 217 MacKinnon, A.S., 2001. Chiefly Authority, Leapfrogging Headmen and the Political Economy of Zululand, SouthAfrica, ca. 1930-1950.Journal of Southern African Studies, 27(3), Special Issue for Shula Marks, pp. 567-590. 218 Murray, C., 1984. Land, Power and Class in the Thaba 'Nchu District, Orange Free State, 1884-1983. Review of African Political Economy, 29, pp. 30-48. 219Ibid. 220Durning, A. B., 1990.Apartheid's Environmental Toll. Worldwatch Paper 95.

66 As a result of the 1913 Act, South Africa’s former homelands, home to 16 million historically disadvantaged citizens,221now consist of the most environmentally degraded lands found in South Africa. While colonial governments intentionally drew reserve boundaries to exclude land with valuable agricultural potential or mineral resources, forcing Africans into hilly, rocky areas with thin topsoil and unpredictable rainfall, the land quality and environmental conditions in today’s communal areas is much worse than before promulgation of the 1913 Act.The environmental deterioration in the former homelands can largely be attributed to the conditions of overpopulation and land congestion that has characterized the reserves for close to a century.222

Not a decade after promulgation of the Act, various authors were reporting environmental degradation of reserve areas. In his analysis of proletarianisation in the reserves during the mid- 1920s, Henderson pointed out the severe consequences of human congestion in a reserve area located in the EC, which included soil deterioration, depletion of edible grasses and encroachment of the helichrysum weed. In addition, the health of residents was sharply declining, with increasing signs of malnutrition and a birth rate equaling the death rate.223 With other reserve areas mirroring similar trends, government officials became increasingly concerned with the failure of reserve environments to sustain growing African populations and “the threats such posed to racial segregation, social stability and white economic development”.224

Yet oppressive white regimes continued to implement policies that forced greater numbers of blacks into reserve areas, further intensifying human and animal overpopulation. Between the years 1960 and 1980, the population of the former homelands rose from 4.5 million to 11 million.225 Several studies have demonstrated the extent of environmental degradation in the reserves. In a study of the gathering of fuelwood in four reserves, Eberhard found that it is not uncommon for women to walk six to nine kilometers every other day to collect loads weighing approximately 30 kilograms.226

The impact of overcrowding in the Communal Areas and consequent environmental degradation is directly linked to the Natives Land Act of 1913 and subsequent legislation that dispossessed the majority of the nation’s population of their land and livelihoods. Throughout the second half of the twentieth century, land in these areas became increasingly scarcer, making it virtually impossible for homeland residents to engage in agricultural production. Today, subsistence

221 Mayende, G., 2004. The Challenge of Land Tenure Reform in South Africa.Issues, Problems and Prospects.In Roth, M., Nxasana, V, Sibanda, S and Yates, T. 2004.Finding Solutions Securing Rights. Lexis Nexis, Butterworths. 222Ibid. 223 Rich, P.B., 1987. The Appeals of Tuskegee: James Henderson, Lovedale, and the Fortunes of South African Libe ralism, 1906-1930. The International Journal of African Historical Studies, 20(2), pp. 271-292. 224 Tropp, J., 2003. Displaced people, replaced narratives: forest conflicts and historical perspectives in the Tsolo district: Transkei. Journal of Southern African Studies, 29(1), pp. 219. 225Wilson, F., 1991.A land out of balance.In Ramphele, M. & McDowell, C. (eds.), 1987.Restoring the Land: Environment and Change in Post-Apartheid South Africa. London: Panos. Pp. 27-38. 226 Eberhard, A., 1986. Energy Consumption Patterns in Underdeveloped Areas in South Africa. Cape Town.

67 farming is extremely difficult due to limited plot size and decreased quality of soils. Per capita food production in the former reserves has fallen drastically, with these areas now net importers of food goods.227

Thus, as is demonstrated above, the enactment of the Natives’ Land Bill as an Act of Law in June 1913 had quite a number of negative consequences for African life. People were turned into wanderers – away from the land of their birth – and underwent different conditions of slavery, persecution, vagabondage, oppression and even the loss of their lives and those of their family members.228 Families and communities were often broken up, independent agricultural producers were forced into barely compensated wage labour and millions were overcrowded into the least arable areas of the country.

The Natives Land Act of 1913 was followed by several more racially discriminatory pieces of legislation, instigating a long and devastating history of forced removals and evictions of Africans from their ancestral lands. These laws included (amongst others) the 1927 Native Administration Act, the 1936 Native Trust and Land Act, the 1951 Prevention of Illegal Squatting Act, the Bantu Authorities Act of 1951, and the Promotion of Bantu Self Government Act of 1959. In order to address the unquantifiable loss of land and assets that resulted from such legislation, it is crucial that the lodging of claims process be re-opened in order for the excluded millions who experienced this unspeakable suffering to receive redress for past injustices through their constitutionally-sanctioned right to restitution.

4.0PUBLIC RESPONSES TO 2013 RESTITUTION BILL229

In assessing the potential socio-economic implications of the proposed policy, it is important to gauge how the general public will react to the re-opening. With the Restitution of Land Rights Amendment Bill, 2013 (RLRAB) published in the Government Gazette on 23 May 2013 for public comment, the proposed reforms have prompted mixed reactions from various segments of society. Unsurprisingly, groups opposed to extending the 1998 deadline include organized commercial agriculture and business chambers.230 Supporters of the re-opening include black farmers’ unions, NGOs in the land sector and some traditional leadership councils. This section

227Nhlapo, M.S., Kasumba, H. & Ruhiiga, T.M., 2011.Growth Challenges of Homeland Towns in Post-Apartheid South Africa.Journal of Social Science J, 29(1), pp. 47-56. 228 Msimang, R.W., 1914. Natives Land Act 1913: Specific Cases of Evictions and Hardships. Cape Town: Friends of the South African Library, 1996. 229 Public reponses to the re-opening presented in this section are derived from submissions made to the DRDLR after publication of the Restitution of Land Rights Amendment Bill in May 2013. 230 No Author. 2013. Editorial: Land bill may cause problems. Business Day Live. [Online] 04 June. Available at: http://www.bdlive.co.za/opinion/editorials/2013/06/04/editorial-land-bill-may-cause-problems. [Accessed: 19 June 2013].

68 of the report provides a brief account of these mixed public responses to extending the cut-off date for the lodging of claims and other proposed reforms made in the RLRAB.

4.1 Responses from NGOs in the Land Sector

Overall, the proposed re-opening of the 1998 cut-off date for submission of restitution claims has received widespread support from NGOs representing the landless, land-hungry and rural poor. Commentary submitted to the DRDLR by NGOs in the land sector has expressed unequivocal support for the re-opening, emphasising the pressing national imperative to return wrongfully appropriated land to the large numbers of dispossessed who remain without redress or reparation for lost land rights.

However, certain provisions of the RLRAB have elicited strong disapproval from these organisations, most notably point 9 of the 2013 Bill. Here, section 33 of the 1994 Act is amended to stipulate that, in cases where restoration of a right in land is claimed, the feasibility and cost of such restoration, as well as the ability of the claimant to use the land productively, must be considered before the Minister reaches a final decision. Pointing out that the land was stolen from claimants (with no payment of compensation or regard for sustained productivity), submissions from NGOs argue that placing these conditionalities (or any for that matter) on restoration of land is unjust as it undermines the constitutionally enshrined right to restitution and excludes many potential claimants who will be unable to meet such requirements. While acknowledging that ensuring food security and economic growth are important, it is posited that these objectives should be addressed in other ways such as provision of adequate post-settlement support to restitution beneficiaries.

NGOs advocating for land and agrarian rights also took issue with the failure of the RLRAB to provide an analysis of the challenges and progress made by the current restitution programme and to address pre-1913 claims, issues of gender equity and financing of programmes to empower beneficiaries. Considering the above, the following recommendations were made:

 All conditionalities placed on land restoration should be removed from the RLRAB;

 The public should be allotted an extra two months to comment on the Bill;

 Consultation and debates surrounding the RLRAB should include all relevant government departments including Public Works, Agriculture, Water and Forestry, Housing, Municipal governments, Mineral Rights and Energy etc;

 The window period for lodging claims should be lengthened or even done away with so that no statute of limitations is placed on land claims;

 The Bill should address claims for land rights dispossessed before 1913;

69  Dispossessed persons should not only be restored land, but also receive compensation for unquantifiable losses through skills training programmes and other initiatives;

 Betterment claims should be prioritised in the settlement process;

 The RLRAB should be complemented by legislation that secures land rights in the communal areas, thus preventing traditional authorities from claiming such land (which would result in further dispossession of marginalised citizens);

 Claims should be permitted not only for surface rights in land, but also mineral rights and other natural resources;

 The RLRAB needs to address gender equity in which women, youth and other vulnerable persons are ensured equal access and control of restored rights in land and/or other means of redress; and

 Issues of institutional capacity, rights of farm dwellers/ workers, policy coordination, post-settlement support and problems faced by CPAs need to be addressed by the RLRAB.

4.2 Academic Sector Responses

While the re-opening received widespread support from NGOs in the land sector, submissions to the DRDLR from researchers and analysts in the academic sector represented a more mixed response, with some land reform experts supportive of the re-opening and others completely opposed. The latter seriously questioned the suitability of the re-opening in addressing apartheid’s legacy of spatial inequity, especially in relation to betterment displacements, which require a multifaceted programme that tackles complex tenure, developmental, service delivery and governance issues in a coordinated and integrated manner.

Rather than answer to the needs of the rural (and urban) landless and land-hungry, various academics viewed the re-opening as a potential vehicle for further land dispossession and warned of the danger the re-opening poses for “opening the floodgates for traditional leaders to claim vast swathes of land, which they could rule as their personal fiefdoms”.231 Here it was argued that in combination with the proposed communal tenure reform that restituted or redistributed land in Communal Areas no longer be registered under CPA ownership, re-opening the claims process enables apartheid-established traditional leaders to claim restitution for land placed under their control by the Bantu Authorities Act of 1951. This would serve to further undermine tenure security and democratic land allocation in many areas of the country as well as to exacerbate land-related conflicts amongst communities. Instead of indicating a renewed commitment by Government to address the exclusiveness of the restitution programme, some in the academic sector believe that the re-opening of land claims is a political maneuver on the part of the ANC to pacify traditional leaders due to the upcoming 2014 elections.

231Claassens, A. and Weinberg, T. 2013New Restitution Bill could open floodgates for chiefs’ land claims. Custom Contested: Views and Voices. [Online] 06 June. Available at: http://www.customcontested.co.za/new-restitution- bill-could-open-floodgates-for-chiefs-land-claims. [Accessed: 19 June 2013].

70 Furthermore, researchers and analysts in the academic sector raised numerous concerns similar to those of NGOs regarding shortcomings of the RLRAB including neglect of pre-1913 claims, inadeqate evaluation of the current programme as well as the anticipated impact of the proposed reforms, the restrictiveness of cost feasibility and productivity conditionalities placed on land restoration, lack of attention paid to institutional improvements necessary to carry out proposed reforms, insufficient time allowed for consultation of the 2013 Bill, and absence of plans for aligning the restitution programme with other national objectives.

In light of these limitations, most academic submissions found that the RLRAB was seriously flawed and should be withdrawn. In place of re-opening the lodgement period, it was suggested that those claimants who were excluded from the chance to claim their right to restitution (including pre-1913 dispossessions) should be accomodated on a case-by-case basis through the redistribution programme. In addition, it was recommended that a distinct policy framework addressing the needs of betterment victims should be developed and linked with a national programme of renewal for areas where such displacement occurred.

4.3 Responses from Organised Agriculture

Unsurprisingly, the proposed extension of the window period for submitting restitution claims was welcomed by associations representing African farmers, particularly those located in KwaZulu-Natal, which, in stating their full support of the Bill, emphasised the skewed land distribution in the province where large sugarcane and lumber corporations own most of the land and dominate these industries.232 However, most of the submissions presented to the DRDLR by organised agriculture (mostly consisting of groups representing white commercial farmers) expressed staunch opposition to the re-opening, claiming that this proposed measure is at odds with the interests of both landowners and existing claimants. Reasons cited for this opposition were based largely on presumptions that the proposed amendment holds disastrous implications for commercial agricultural as it threatens to create a black cloud of uncertainty over the farming sector.

Emphasising the overwhelming number of problems in implementation faced by the current restitution programme including flawed research methodology that resulted in the gazetting of unfounded claims, inadequate communication by the CRLR with landowners and claimants, institutional deficiencies, improper valuations, corruption, delays and lack of planning and post settlement support, comments submitted by organised agriculture warn that the re-opening would protract the uncertainty that has plagued land ownership over the past two decades and thus cause deinvestment in the agricultural and forestry sectors. Such loss of investment is predicted

232Phillips, L. 2013. Disagreement on land reform bill.Farmer’s weekly. [Online] 17 June. Available at: http://www.farmersweekly.co.za/news.aspx?id=40865&h=Disagreementonlandreformbill [Accessed: 19 June 2013].

71 to result in many negative impacts nationally including decreased production levels, loss of jobs and severe food insecurity.

Furthermore, organisations representing commercial farmers warned against numerous other unintended consequences that would arise from allowing submission of new restitution claims. These included expensivelegal proceedings, further complications related to duplicate claims, deepening conflict between current beneficiaries of restitution awards and new claimants, the squandering of scarce government funds on fraudulent claims and a never-ending restitution programme that hampers overall economic growth.

In addition, these groups warned that extension of the 1998 deadline could hold negative implications for the redistribution programme, with one representative stating “I’m afraid we view the re-opening of land claims as nothing short of a disaster…to start all over with land claims now, it will also put the whole redistribution process, where we work with serious farmers, it in the freezer box”.233 Though the RLRAB’s proposed amendments to prosecute faudulent claims and to take cost and sustained productivity in mind when making decisions related to land restoration were welcomed by these groups, overall, the Bill was viewed to carry more disadvantages than benefits. However, in the case of the RLRAB being upheld, the following suggestions were made:

 All outstanding claims, institutional deficiencies and fiscal requirements should be resolved before the re- opening is reconsidered;

 The window period for submitting claims be shortened to one month instead of the Bill’s suggested time period of 5 years;

 The prescribed penalties for submitting claims are inadequate to serve as real deterrants and should therefore be more severe and retroactive;

 Provisions should be made for the nomination of independent experts to mediate land claims disputes and to make recommndations to the LCC;

 A specialist unit should be established to oversee the valuation process (and the expropiation process in cases where this applies), ensuring that these are in compliance with required legal principles;

 Claimants should be rewarded compensation only equal to the value of rights lost, preferably through alternative forms of redress such as prioritisation in housing programmes; and

 Landowners should be entitled to legal aid on the same basis as claimants.

233No Author. 2013. Land claims Act in spotlight. eNCA. [Online] 08 June. Available at: http://www.enca.com/south-africa/land-claims-act-spotlight. [Accessed: 19 June 2013].

72 4.4 Business Chambers Responses

Submissions made to the DRDLR by groups representing various business chambers echoed many of the concerns raised by representatives of large-scale commercial agriculture, namely that allowing lodgement of new restitution claims would “reintroduce a third decade of renewed market uncertainty” in the land sector, creating an environment of deinvestment and declining agricultural production.234 The re-opening is alleged to not only negatively affect landowners (and land use), but also its intended beneficiaries as it is predicted that subsequent worsened food insecurity and unemployment will follow. Emphasising the significant deficit in the national budget, the extremely expensive nature of the restitution process to date and the insufficient funds and administrative capacity to resolve complex outstanding claims, responses from the business sector were consistent in their overall rejection of the 2013 RLRAB (although approval was expressed for certain provisions of the bill such as conditionalities placed on land restoration and criminalisation of fraudulent claims).

Other risks stated in justification of this position entailed exacerbated social conflict (especially between landowners and claimants) and creation of unrealistic expectations amongst claimants that will only lead to disappointment and further disruptions in social cohesion. Also mentioned was the sufficiency of the mass communication campaign in 1998 and the fact that no examples existed of other countries in which restitution cut-off dates were extended after so many years has passed since prescribed deadlines. Recommendations made in commentary on the RLRAB by the business sector included:

 Persons and groups who did not lodge claims by the 1998 deadline should receive redress for lost land rights through the redistribution programme;

 Restitution structures should be capacitated and all claims be processed expiditiously;

 The DRDLR should seriously consider out-sourcing the LCC’s work in order to expedite the finalization of claims;

 If the land claims process is re-opened, it should be shortened to a period of six months and only “known bona fide” excluded claimants should be able to submit claims;

 Restoration of land should be prohibited in cases where existing mining rights and land rights previously restored to other claimants are affected;

 Past LCC decisions regarding rejected claims and settlements should not be affected by new claims;

 Deeds offices should be required (and enabled) to record registered land claims on all properties in question (as well as remove these once claims are resolved);

234Business Unity South Africa (BUSA), 2013. BUSA Submission Document, Notice 503 of 2013: Department of Rural Development and Land Reform, Draft Restitution of Land Rights Amendment Bill, 2013.

73  Clarity needs to be provided around the wording of “media” in the proposed amendment to Section 11(c) of the 1994 Act as this lacks specificity; and

 Fraudulent claims need to be penalised (retroactively) with harsher sentences.

4.5 Responses from Traditional Authorities

Although one submission made to the DRDLR by a traditional authority rejected the RLRAB, the reaction of traditional leadership councils to the proposed extension of the lodgement window was overwhelmingly positive, with one group writing that this was “welcomed as a dream come true”.235 However, as with other supportive voices, many concerns were raised by traditional bodies regarding the proposed reforms. These mostly centered around the delays in the settling and finalisation of unresolved claims, with anxieties that allowing submission of new claims would only suspend settlements further. Naming counter-claims and lack of capacitated institutions as major reasons behind these delays, certain councils were anxious that settlements would not occur in their lifetime, stressing that those community members most familiar with the history of farms were “passing on day by day”.236 Additionally, some traditional authorities took issue with conditionalities placed on land restoration, the failure of the Bill to outline parameters for (or outright deny) CPA ownership of land, and RLCCs’ inabilities to resolve disputes concerning competing claims.

Several propositions for improving the RLRAB were presented by traditional leadership councils including that:

 Unresolved claims should be finalised before new claims are researched or settled;

 The WB/WS model of land acquisition must be done away with;

 Cost and productivity conditionalities should be replaced by provisions that enable beneficiaries to enter into joint equity schemes or lease arrangements;

 Those who did not claim their lost land rights in totality by 31 December 1998 should now be permitted to do so;

 Land restituted to claimants must benefit the entire community, including those currently residing on the property in question;

 Eviction or removal of individuals or groups presently residing on restored land should be prohibited;

 Traditional leaders should be empowered to assist in dispute resolution;

235Manavhela Traditional Leadership, 2013. Submission to the DRDLR commenting on the Restitution Of Land Rights Amendment Bill, 2013 after the Presentation by Mr Tele Maphoto, Bolivia Lodge on the 14th June 2013. 236Mothapo Royal Council, 2013. Submission to the DRDLR of notice 503 of 2013: The Restitution of Land Rights Amendment Bill, 21 June.

74  Land previously wrongfully restituted or redistributed to other individuals, clans, tribes or communities should be made available for restitution;

 Those unable to claim restitution by 2018 due to circumstances beyond their control (i.e. incarceration or hospitalisation) should be allowed to lodge late claims;

 Notices of claims should be published in the media and gazette and circulated nationally, provincially and locally in all official languages;

 Submission of more than one claim by an individual or community in different areas should be prohibited and subject to criminal proceedings;

 The DRDLR should assist beneficiaries in ensuring that land is used productively through training, mentoring and provision of financial assistance;

 In cases where two separate claims are lodged for the same land and the minister is satisfied that both are legitimate, awards of claimants in agreement with prescribed settlement should not be held captive in cases where the other claimant disputes decision;

 Members of communities claiming land restoration should be awarded use rather than ownership rights; and

 Other factors must be considering in determining feasibility of land restoration including whether the land is occupied and when this occurred, size of land already owned by claimant, the importance of the land to the claimant and the manner of dispossession.

4.6 Responses from Indigenous Rights Organisations and others

Finally, it is important to note that numerous other individuals and groups submitted commentary on the proposed re-opening and other RLRAB reforms who are not mentioned above. Originating from a variety of corners, these include organisations representing indigenous peoples (especially groups of Khoe and San descendants), community associations, labour tenants and farm dwellers who were victims of constructive evictions, previous claimants, government officials, religious groups and organisations representing the interests of Afrikaans people. Views expressed by these groups were as varied as their backgrounds, ranging from extreme disapproval to complete endorsement of the proposed reforms. Proposals put forward in these submissions that have not been previously discussed in this chapter include:

 Decisions of the CRLR and the LCC regarding all claims should be made public;

 Contemplated developments on unoccupied land that is or becomes the subject of a restitution claim should be halted until final decisions are rendered;

 Ability to sustain productivity should only be assessed once adequate support systems are provided to beneficiaries;

75  The re-opening of the window for claims lodgement should be accompanied by a re-opening of the Truth and Reconciliation hearings for those who suffered dispossession under colonial and apartheid regimes;

 Claims for financial compensation should not be restricted, especially for individual claimants;

 Claims previously submitted after 1998 should be treated similar to those lodged prior to this deadline.

 Capacitation of restitution institutions should involve recruitment of staff from land-based NGO’s;

 Dedicated sub-departments (or units) should be established to deal with different claims, e.g. betterment, stand-alones and pre-1913. Dedicated staff could then be appointed to specialise in these different claim processes;

 In addition to NARYSEC, community structures that already exist and have been liaising with the Commission on restitution claims should be utilised to facilitate claims in their respective localities, instead of appointing new personnel;

 There should be a mandatory review of performance by Government officials and those found to be incompetent and/or to have engaged in corrupt activities, be relased form duty and/or penalised; and

 Claims by those persons who have been evicted from Commercial Farming Areas should be permitted, taking into consideration inputs, duration of stay and losses suffered.

5.0 POLICY OPTIONS

5.1 OPTION 1: Policy Inaction- Maintain current restrictive timeframes for restitution programme

As mentioned earlier, demands on Government to reassess the timeframe restrictions that have resulted in the exclusion of millions of dispossessed citizens from their constitutionally sanctioned right to restitution have been voiced from various corners of the country since passage of the 1994 Act. These calls for re-opening the process for the lodging of claims were one of the main resolutions adopted at the National Land Summit in 2005 as well as the subject of parliamentary hearings in May 2007.237 Until recently such pressure has been strongly resisted by the DLA and CRLR, with numerous arguments originating from Government, business interests, landowners and scholars citing multiple reasons why time restrictions must be maintained.

The main issues raised in arguments proffered for resisting pressure to allow for the submission of new restitution claims and thus to maintain both the 31 December 1998 deadline and 19 June 1913 cut-off date include the: adequacy of mass communication campaign to alert potential claimants of their right to restitution; likelihood that new claimants will opt for financial

237 Hall, R. 2009. Another Countryside? Op.Cit; CRLR. 2007b.

76 compensation which is highly problematic; lack of feasibility of restituting dispossessed rights to property, especially considering that much of this land is occupied by other historically disadvantaged citizens; risks of further disturbances in production, the land market and land- based investments; negative implications for other legs of land reform (namely, the redistribution and tenure reform programmes) as well as other state-run social and economic development initiatives; and the complicated and prolonged nature of dispossession in South Africa that prevents admission of pre-1913 claims for restitution. Several of these justifications for upholding the current restrictive timeframes of the restitution programme have been expressed recently in the media as a result of publication of the 2013 Restitution Bill. They are presented briefly in the following sub-sections.

5.1.1 Adequacy of the “Stake Your Claim” campaign

As mentioned earlier, the CRLR and the DLA launched a mass communication campaign between May and December 1998 due to concerns that insufficient numbers of persons and groups had lodged claims for restitution of dispossessed land rights. Though numerous weaknesses of this awareness campaign have been cited, various groups (including researchers from the Institute for Poverty, Land and Agrarian Studies (PLAAS)) maintain that this six month-long education exercise was sufficient to alert the general public of the restitution programme and process.238 Government officials supported this contention during the parliamentary hearings held by the Portfolio Committee on Agriculture and Land Affairs in 2007, emphasising the comprehensive nature of the “Stake You Claim” campaign. Thus, based on the reportedly sufficient ground covered by this mass communication campaign, there are those who contend that the 1998 deadline for submission of claims should remain closed.

5.1.2 Problems with financial compensation

One of Government’s principal positions taken in their justification for past refusal to re-open the cut-off dates and allow for further submission of claims is directly related to the fact that the large majority of restitution cases (particularly urban claimants) have been settled through financial compensation.239 During the 2007 parliamentary hearings reassessing the 1998 and 1913 timeframes, the Chief Land Claims Commissioner, Tozi Gwanya, asserted that “financial compensation has led to a lot of family disputes, fraudulent claims by wrongful claimants, and abuse of the Restitution award on unproductive expenditures which do not prioritize sustainable livelihoods”.240 It was also argued that the likely risk of having to settle new claims through payment of financial compensation fails to produce sustainable development outcomes and renders the restitution programme unaffordable.241 As the settling of claims through financial

238Institute for Poverty, Land and Agrarian Studies (PLAAS), 2011. Op.Cit; CRLR. 2007. Op.Cit. 239 Weideman, M. 2004. Op.Cit. 240CRLR. 2007. Op.Cit. 241 Weideman, M. 2004. Op.Cit.

77 compensation neglects to address the skewed ownership patterns and thus runs counter to the state’s declared committment to undoing the spatial legacy of apartheid, both NGOs and Government alike have based their opposition to accepting new claims on this limitation of the restitution programme.242 The proposed restitution framework acknowledges the problematic issue of financial compensation and thus stipulates that successful claimants will only be awarded such as a last resort when other forms of restitution are not feasible.

5.1.3 Restoration of dispossessed land is not feasible

An especially convincing argument problematizing the re-opening of the lodgement process rests on the question of feasibility in restoring dispossessed land rights in rural areas. Firstly, significant portions of land being claimed is currently occupied and/or owned by other black South Africans.243 Already, restitution has resulted in opposing interests between claimants and farm workers/ dwellers who are at risk of losing their homes and means of livelihood if land is restored.244 Thus, as argued by AgriSA (refer to previous chapter), re-opening the cut-off dates poses the risk of increasing tenure insecurity for current rights holders as well as creating deepening tensions between various communities of potential land reform beneficiaries.245 Furthermore, while the restitution policy provides for alternative land, this may not be available or affordable.246

These potential problems connected with re-opening the cut-off dates are acknowledged by the proposed restitution policy framework and addressed through specific reforms. Under the proposed framework, original land will be restored only where possible, with several factors considered in determining the feasibility of restoration including: whether returning the land may result in further social disruption; any current provisions made for the land in question, especially in cases where they relate to exercises designed to advance equality and provide redress for past racial discrimination; the circumstances and history of the dispossession as well as any compensation received by claimants for the property; the amount of compensation or value/ extent of land already awarded to previous claimants; the impact of restoring the land on State resources; the current use of the land; changes in currency over time in cases where financial compensation was previously awarded; and any other relevant factors.

242Williams, Rhodri C. 2007. The Contemporary Right to Property Restitution in the Context of Transitional Justice. New York: Occasional Paper Series, International Center for Transitional Justice.Pp. 32. 243Letsoalo, M. 2011. Land reform in post-apartheid South Africa: In transition. Available at: http://maravi.blogspot.com/2011/07/fao-land-reform-in-post-apartheid-south.html.; Hall, R. 2010. ‘Reconciling the past, present, and future: the parameters and practices of land restitution in South Africa’. In: Cherryl Walker/Anna Bohlin/Ruth Hall/Thembela Kepe [ed.]: Land, memory, reconstruction, and justice: perspectives on land claims in South Africa. Athens: Ohio University Press. Pp. 17-40; Centre for Development and Enterprise (CDE). 2008. Op.Cit. 244Hall, R. 2010. Op.Cit. 245Institute for Poverty, Land and Agrarian Studies (PLAAS), 2011. 246Letsoalo, M. 2011. Op.Cit.

78 Additionally, in anticipating that new claims will be made by third parties for land which has already been awarded to other beneficiaries of the programme or is currently occupied by other historically disadvantaged persons or groups, the proposed policy provides for further investigation of the properties, including its history of occupation and the rights of all claimants. Furthermore, proposed policy provides that where the restoration of land is deemed unfeasible, alternative land may be awarded. Where this too is not possible, other options are presented similar to those laid out in the current policy. These include: the payment of financial compensation; prioritisation of successful claimants in the allocation and development of housing and land under relevant state-led development programmes or in special budgetary assistance for services and infrastructure development where claimants currently reside (aligned with objectives of the Comprehensive Rural Development Programme); exceptional recognition of rights (funded by the state) through various forms such as the renaming of farms, towns or districts and construction of museums and other forms of memorabilia; and/ or any combination of the above.

5.1.4 Disturbances in the land market, land-based investments and production

Proponents of maintaining the current cut-off dates, particularly business interests and organised agriculture, argue that the restitution programme has held extremely negative implications for land markets, investments in land under claim and economically important productive sectors such as agriculture.247 The former two adverse impacts of the restitution process are directly related to the fact that the 1994 Restitution of Land Rights Act mandates that claims be published in the Government Gazette once they are deemed legitimate by the Land Claims Commissioner. In addition, several restrictions are placed on the landowner and property in question. The slow pace of restitution, especially characterizing the past few years as Government grapples with the remaining extremely complex rural claims, is claimed to have a “freezing effect on land transactions and further investment in areas under claim”.248 This is due to the fact that once a claim is gazetted, the property in question cannot be sold or transferred in any way. Thus, rural claims over large tracts of land that take years to settle mean that this property is removed the land-market for lengthy periods.

As one of the indicators outlined in the 1997 White Paper for measuring success of restitution is “maintaining public confidence in the land market”, it has been argued that re-opening the lodging of claims will result in further disruptions in the land market.249 The Centre for Development and Enterprise’s (CDE) study of land reform in the Western and Eastern Cape,

247Centre for Development and Enterprise (CDE). 2008. Land Reform in South Africa: Getting back on track. CDE Research No. 16. CDE: Johannesburg. 248Centre for Development and Enterprise (CDE). 2008. Op.Cit.Pp. 24. 249DLA (Department of Land Affairs). 1997. White Paper on South African Land Policy. Pretoria: Government Printers.Section 4.19; Miller, D.L. and A. Pope.2000. South African Land Reform.Journal of African Law, 44, pp. 167-194.

79 KZN and Mpumalanga reported serious disruptions in the land market due to the long drawn-out nature of rural restitution claims.250 In addition, the uncertainty involved in ownership and use of property once a claim is publicized was found to depress investment as banks refused to accept gazetted land as collateral for loans.251

Closely associated with such uncertainty are the potentially negative repercussions restitution holds for agricultural production. The disappointing track record of sustained production on restituted land has caused major apprehensions for Government and business interests alike.252 As claims over expansive tracts of rural land are yet to be settled, concerns have frequently been expressed that restoration of these properties will result in substantial declines in production and disrupted vertical and horizontal linkages to agri-business, thus culminating in significant decreases in jobs. The CDE study revealed that major production industries including sugar, fruit and timber have already experienced severe deinvestment and disruption attributable to stalled restitution claims and are thus at risk of collapsing. It also reported that by April 2008, over 80% of restored farms in the Badplaas area of Mpumalanga were yet to be allocated to beneficiaries and that land-based infrastructure was deteriorating.253

The above arguments serve as the central justification for AgriSA’s (and other representatives of organised white agri-business) rejection of the re-opening of the window period for lodgement of claims as demonstrated in recent public comments on the 2013 Restitution Bill.

5.1.5 Impact on Redistributon, Tenure reform and other development programmes

Another case made for upholding the current restrictive timeframes for submission of claims emphasises the need to devote resources presently absorbed by the restitution process to other socio-economic and welfare priorities (including other areas of land reform). For example, proponents of the redistribution and tenure reform programmes argue that re-opening the cut-off dates will further divert preciously scarce funds from these other two legs of land reform, both of which are assumed to hold greater benefits for substantially larger numbers of historically marginalised citizens.254 In addition, apprehensions that increased numbers of claims may render more people tenure insecure (as discussed in the previous sub-section) and interrupt the achievements being accomplished in improving livelihoods of farm dwellers and redistribution beneficiaries are voiced in the CDE’s conclusion that “unresolved land claims are the single major impediment to “normal” land reform” in the Stellenbosch area.255 250Centre for Development and Enterprise (CDE). 2008. Op.Cit. 251 Makgetla, N.S. 2010. Op.Cit.; CDE, 2009 252Hall, R. 2010. Op.Cit. 253Centre for Development and Enterprise (CDE). 2008. Op.Cit. 254Makopi, S. 2000. Awards to provide security of tenure and comparable redress.In Cousins, B. (ed.), 2000.At the Crossroads. Land and Agrarian Reform in South Africa into the 21st Century. Cape Town: Programme for Land and Agrarian Studies (PLAAS), University of the Western Cape. 255Robinson, P. 2006. Land reform and the land market in the KwaDukuza area, KwaZulu-Natal. Report commissioned by CDE. In Centre for Development and Enterprise (CDE). 2008. Op.Cit.

80 Furthermore, opponents of re-opening the 1998 deadline and 1913 cut-off date argue that funds used to buy restored land and pay financial compensation to restitution claimants would have been better used in other state development priorities such as health, education and employment creation. Here, the dangers of depleting state resources on restitution awards that fail to result in further wealth and employment creation, infrastructure development or commercial enterprise are cautioned as major setbacks of re-opening said timeframes.256

5.1.6 Opposition to allowing submission of pre-1913 claims

Finally, there is widespread opposition to amending the restitution policy and the 1996 Constitution to allow for inclusion of pre-1913 claims. In addition to the arguments presented above, justifications for the 19 June 1913 cut-off date include the possibility for inter-ethnic conflict and national instability if amendments were passed to allow for the lodgement of pre- 1913 claims. Regarding this concern, the 1997 White Paper posits that "[m]ost deep historical claims are justified on the basis of membership of a tribal kingdom or chiefdom. The entertainment of such claims would serve to awaken and/or prolong destructive ethnic and racial politics.”257Beside this reasoning, the fact that most pieces of land in South Africa have been occupied in succession by now dispersed ethnically defined communities has served as further justification for the pre-1913 restriction. Government and scholars have cautioned that re- opening the 1913 cut-off date may result in impossibly complex and conflicting claims that lack written documentation which makes them extremely difficult to resolve.258 In the words of one prominent historian, allowing the lodgement of pre-1913 claims would be to “open a Pandora’s box”.259 Therefore, rather than overwhelm Government with possibly hundreds of thousands or even millions of new restitution claims, it is posited that attention would be better concentrated on improving other areas of South Africa’s programme of land and agrarian reform.

However, it is crucial to note that Option 1 (Policy Inaction) will entail a continuity in the structural limitations of the current restitution policy and programme. Above all, the historic quest to deal with questions of historic redress, reconciliation, and social justice will remain. In a context of heightened awareness on the exclusive and restrictive nature of restitution, coupled with public awareness of the original aims of the Restitution Act, intensive lobbying by communities, organised groupings, and affected citizens at large will go unabated. Policy inaction therefore will be a deferrement of a problem on historic injustice that must and should

256De Villiers, B. 2003. Land reform: Issues and challenges: A comparative overview of experiences in Zimbabwe, Namibia, South Africa and Australia. Konrad Adenauer Foundation Occasional Papers: Johannesburg. 257DLA (Department of Land Affairs).1997.Op.Cit. Pp. Section 3.17.3. 258Roux, T. 2008. Op.Cit. 259Legassik, 2013.Racially motivated land dispossession in Gordonia: Memorial lecture on the 1913 Natives Land Act Kimberley, 15 April 2013. National Khoi-San Dialogue presentations: 15-16 April 2013. Available at: http://www.ruraldevelopment.gov.za/phocadownload/branch/presentations/2013/KhoiSan_15_160413/prof_legassic k_lecture_land_dispossession_gordonia_150413.pdf. (no page numbers).

81 be dealt with in advancing the national imperatives of transformation, nation building, and creation of an inclusive society.

5.2 OPTION 2: Re-open cut-off dates and allow further lodgement of claims

Countering the various rationalisations and cautioned hazards of re-opening the 1913 and 1998 cut-off dates presented above are the numerous arguments in favour of permitting submission of new claims for restitution to the CRLR. As outlined in Chapter 3, serious flaws in policy design, institutional functioning and length and methods of communication strategies educating the general public about restitution resulted in a proportionately low number of claimants as compared to the millions who suffered forced removals under colonial and apartheid regimes. The second option to address this problem is providing a revamped restitution policy that creates opportunity for all those entitled to restoration of land (or alternative redress) to claim their right to restitution. The envisioned benefits and costs of this option are explored below.

5.2.1 Envisaged benefits of re-opening cut-off dates within the Context of Ailing Rural Economies, The 2011 Green Paper, The 2012 National Development Plan and The Census 2011 Data

Although restitution has been referred to as the state’s “flagship programme” of land reform, with the tens of thousands of “settled” claims allegedly attesting to the notable achievements of the programme against a background of painfully slow progress in land reform more generally, there is now widespread recognition that restitution has largely failed to fulfill its primary goals of redressing past injustices, promoting reconciliation and advancing sustainable development. This is readily apparent when considering the realities that the majority of South Africa’s victims of involuntary displacement remain without reparation for past grievances, the restitution process has occasioned further conflict within and amongst various persons and groups rather than engender national reconciliation, and most claimants have not experienced significant livelihood enhancement.260 Allowing submission of new claims within a context of an improved administrative framework and capacitated institutional environment has the potential to drastically change these disappointing outcomes. Beyond fulfilling the obvious principal aim of expanding the scope of the programme to render it more inclusive, extending the chance for restitution to all constitutionally entitled persons and communities, there are many foreseen beneficial outcomes of re-opening the lodging of claims process.

Firstly, re-opening the lodgement period and extending its length to that of five years as proposed in the new restitution policy framework gives the Government ample time to ensure that all eligible persons and groups are aware of their rights and the claims process itself. It guarantees potential claimants the time to organise applications and gather sufficient proof of their dispossessed rights. Furthermore, the proposed five year period removes uncertainty surrounding the ephemeral nature of Commission posts and staff positions that have served as

260Hall, R. 2007. Op.Cit.

82 the principal cause for high staff turnover rates and subsequently long delays and inconsistencies in the settling of claims.261 Here it is estimated that 304 direct employment opportunities will be created as a result of the development of the administrative offices that will be responsible for the smooth operation of the land claims process over the five year period.262 Moreover, this extended period allotted for submission of claims signifies to all stakeholders involved, including Government, civil society and business interests, that rather than the previously conceived brief measure of redress (apparent in the repetitive setting of deadlines), restitution is an ongoing transformative process that cannot be rushed.

Secondly, the admission of new claims within a well-deliberated and carefully calculated administration and resolution process offers to drastically increase the programme’s capability of altering South Africa’s skewed patterns of land ownership. Largely attributable to the almost complete exclusion of betterment victims and the heavy pressure placed on urban claimants to accept payments of financial compensation as opposed to alternative land or redress in the form of state developmental assistance, restitution has failed to help realise the land reform programme’s key objective of undoing the spatial imprints of apartheid.263 Re-opening the 1998 deadline to permit further submission of claims expands the possibility for the programme to help decongest the former homeland areas and create more equitable access to land in the country. The proposed provision that payment of financial compensation be offered to claimants only when restoration of land or allocation of use rights are not feasible also holds the potential to significantly decrease the percentage of landlessness and land-shortage throughout the country. With increased access to land, restitution beneficiaries can enjoy improved food security, income generation opprotunities and an overall higher standard of living.

The third major potential benefit of re-opening the timeframe for lodging of claims is the opportunity it offers for moving away from the “sectoral silo” approach that has dominated land reform and broader social and economic development programmes in South Africa.264 Recently, pilot projects which utilized more integrated area-based approaches have yielded promising outcomes that more directly answer to land reform beneficiaries’ needs as well as contribute to achieving targets for more inclusive growth and development.265 The possibility of area-based models to assume prominence in the planning of land restoration under the restitution programme is already quite perceptible in the use of geographical information systems (GIS) technology by municipalities in both Limpopo and the OFS to map out restitution and labour tenant applications in their respective areas.266 If new claims are permitted within a context

261Ibid. 262Statistical Development Economists, 2013. Land Restitution: Socio-Economic Impact Assessment. Unpublished. 263 Hall, R. 2009. Op.Cit. 264Institute for Poverty, Land and Agrarian Studies (PLAAS), 2011. Op.Cit. Pp. 9. 265 Quan, J., 2008. Land Reform and Rural Territories, Experiences from Brazil and South Africa. International Institute for Environment and Development (IIED). 266Aliber, M. Masika, P. and Quan, J. 2006. Land reform at scale: a case study of Elliot District, Eastern

83 where area-based planning forms the basis of municipal Integrated Development Plans (IDPs) that incorporate restitution awards into their plans, the ability of the restitution programme to produce sustainable development outcomes for beneficiaries could be greatly improved.267

Fourth, allowing new claimants to retrieve their right to restitution for dispossessed land offers great opportunity to both advance the underlying principles of the 2011 Green Paper and to help achieve the National Development Plan’s vision for 2030. The re-opening of the lodgement window process and revamping of the restitution policy framework to incorporate the proposed administrative and institutional reforms are closely aligned with the 2011 Green Paper’s acknowledgement that radical means are required to overcome the devastating effects of discriminatory colonial and apartheid land policies. Furthermore, within a context of state utilization of more proactive methods of land acquisition (including the use of expropriation), improved post settlement support and a multi-sectoral approach to development, an extended and more inclusive restitution programme promises to meaningfully contribute to realising national objectives outlined in the NDP. These intended benefits are discussed in the following sub- sections.

5.2.1.1 Advancing the 2011 Green Paper’s principles

Amending the current deadline of 1998 and thus allowing new claimants to retrieve their right to restitution for dispossessed land (including those who were forcibly displaced prior to promulgation of the Natives Land Act of 1913) offers great opportunity to advance the three underlying principles of the 2011 Green Paper. The 2011 Green Paper sets out three principles that all land reform programmes must embrace, namely deracialisation of the rural economy, democratic and equitable land allocation, and a sustained production discipline for food security.268 The past several years of experience with the current restitution policy has failed to make significant inroads in advancing these three envisioned outcomes of land reform as well as the Government’s expressed long-term goals of social cohesion and development set out in the 2011 Green Paper.

First, providing another chance for historically displaced persons and communities (as well as their descendants) to lodge claims for their constitutionally-sanctioned right to restitution expands the possibility of rural inhabitants to participate in South Africa’s land reform programme. While restoration of land will not be possible in all cases, the alternative options for redress also offers to significantly and positively impact rural livelihoods. This potential becomes especially apparent when reviewing the categories of persons excluded from the

Cape. Land and Territory Working Paper No. 3, NRI Chatham and HSRC, Pretoria and NRI, Chatham. Available at: www.nri.org/projects/reed/docs/3_SA_elliot.pdf; Hall, R. 2009. Another Countryside? Op.Cit. 267Pienaar, J.M. 2011.Restitutionary Road: Reflecting on Good Governance and the Role of the Land Claims Court. Southern African Legal Information Institute (SAFLII). Available at: http://www.saflii.org/za/cases/ZALCC/2005/2.pdf. 268DRDLR, 2011a.Op.Cit. Section 4.1.

84 lodgement process, a large proportion of which are rural (for example residents of the communal areas who were victims of betterment planning policies and those living in commercial farming areas). Thus the first principle underlying land reform, deracialisation of the rural economy can be partially achieved through a revamped restitution programme as landless and land-hungry rural citizens are either restored their ancestral land, provided alternative land, paid equitable financial compensation for their lost rights, become prioritised recipients of state-led development and/ or receive special recognition for their dispossession.

As long as re-opening the cut-off dates is linked with the other envisioned outcomes of the proposed reforms, namely the improvement of the planning and administration system of the restitution programme and the development of an effective beneficiary support system for successful claimants, the ability of new rural restitution beneficiaries to participate and benefit in the rural economy will be greatly increased.

Fulfillment of the second principle, democratic and equitable land allocation and use across race, gender and class also depends upon making the restitution programme more inclusive and improving its overall functioning and support offered to beneficiaries. As discussed earlier, the current programme has made little progress in altering the unequal land distribution patterns in South Africa as most claims have been settled with cash compensation and many of the communities who have been restored land have failed to ensure fair and equitable distribution of restituted rights.269 The proposed reforms have much potential to overcome these limitations and thus ensure more equitable ownership of and access to land as they rest upon building a more capacitated institutional infrastructure that can assure land is restored where possible and in these cases CPAs are provided with the support needed to properly manage restituted property rights. Additionally, a capacitated restitution programme enables Government to monitor restored land more closely and to intervene in situations where land is administered in an undemocratic way.

The 2011 Green Paper’s third principle of improving national and household food security through a sustained production discipline is closely linked with the new restitution framework’s proposal that awards of land or use of land are subject to certain conditions. These include:

 a right of first refusal if the beneficiaries intend to alienate the land or rights in land;  that proper planning of the land use (including spatial planning) is undertaken;  that an appropriate model of communal tenure held by a Communal Property Association is proposed by the CPA and approved by the Minister;270  the sustainable use of the land; and  the Minister may, in appropriate circumstances, direct that claimants must relocate to the land allocated in order to curb the congestion that exists in communal areas.

269 Hall, R. 2003. Op.Cit. 270This may take various forms such as institutionalised land user rights adapted from customary tenure systems, sectional titles and a collective land use right.

85 As discussed in the previous chapter, there are those who argue that these conditions infringe upon the independent rights of restitution beneficiaries and pose problems for poorer citizens who are unable to ensure sustained productivity. However, this provision attempts to ensure that permitting new restitution claims and thus opening the door for more land in South Africa to be restituted improves agricultural development rather than hindering this important sector. Unlike the current redistribution programme, the proposed restitution framework does not envision all restitution beneficiaries as developing into commercial farmers, but rather accepts that land may contribute to household food security by boosting multiple livelihood tactics through simply expanding access to land. Furthermore, in response to those who oppose the re-opening for reasons related to risks of deinvestment and disruptions in production (such as AgriSA), the new framework proposes that the current restrictions on gazetted land be removed so as not to hinder development and to counteract the pervasive problem of stalled production or underdevelopment on land involved in restitution claims.

5.2.1.2 Helping realise the NDP’s vision for 2030

As with the 2011 Green Paper principles, the proposed restitution policy is closely aligned with the goals and vision of the National Development Plan (2012). Beyond the aims of eradicating poverty and decreasing inequality, the NDP’s main objectives include building national unity, addressing historical injustices, improving quality of life for all South Africans, decreasing unemployment and expanding the economy with benefits of this distributed equally throughout the South Africa.271 The NDP places rural poverty and marginalisation at the top of its priorities to address in achieving its vision for the country, stating that “by 2030, South Africa's rural communities must have better opportunities to participate fully in the economic, social and political life of the country”.272 Land reform is viewed as a key avenue to extend such opportunity.

Re-opening the cut-off dates to allow submission of further claims for restitution not only provides potential for resolving past historical injustices as it allows persons and communities the chance at redress for alienated lands rights, but also lends much potential to realising the NDP’s goal of overcoming rural poverty as an expanded programme with an improved beneficiary support component will increase rural inhabitants’ access to land and resources as well as access to government services (such as education, housing health care and infrastructure development). The new restitution framework’s dedication to significantly contributing to the NDP’s vision is most apparent in its provision that empowers the Minister to prioritise claims which advance realisation of the elimination of poverty and reduction of inequality by 2030. This provision constitutes one of the potentially most beneficial aspects the proposed amendments as

271National Planning Commission (NPC), 2011.Op.Cit. 272Ibid. Pp. 218.

86 it opens the way for the poorest dispossessed persons and groups to access the land reform programme and thus contribute to national development. This observation gains urgency and further validation given the recent 2011 Census data which further highlighted the crisis of social inequality, unemployment and poverty in rural South Africa.

With more than 37 per cent of the population residing in rural areas in 2011 (19 229 645273 people out of the country’s total population of 51.7 million274), building inclusive rural economies is a key area of prioritization for overall national development. The extent to which the nation’s rural areas lag behind its metropoles and secondary cities is indicated by the backlogs in infrastructure and social services delivery found in South Africa’s ruralities. The lack of water provision, sanitation, electricity, health facilities, schools and other socio-economic services and infrastructure is mostly concentrated in the former homelands and farm dweller settlements in commercial farming areas.275 The 2011 Census reported that while almost 90% of households in the provinces of Gauteng, the OFS and the Western Cape had access to running water, less than 23% of households in the EC and under 15% in KZN and Limpopo enjoyed this basic service.276 Percentages of households living without electricity were also highest in the latter three provinces, which consist of the majority of South Africa’s rural populations. Furthermore, the EC and KZN had an above average rate of death due to unnatural causes as well as the highest numbers of orphans (with numbers of orphans in KZN more than double and triple the other remaining provinces).

When considering the massive gap between the average annual household income in Gauteng and the Western Cape (estimated at R 156 243 and R143, 460 respectively) and the poorest provinces (estimated at R 56 844 in Limpopo and R 64 539 in the EC), the large spatial divide in economic development of the country becomes apparent.277 This is also indicated in extreme disparities between average household incomes in which the lowest were found in Limpopo (R 56 844), the EC (R 64 539) and the North West Province (R 69 955), while incomes in Gauteng (R 156 243) and the Western Cape (R 143 460) boasted averages of more than twice these amounts. The average income of African-headed households amounted to R 60 613 in 2011, falling far below that of white households (R 365 134 per annum). Additionally, the former homeland provinces were found to suffer the highest rates of unemployment across the country, with and unemployment rate of 47.6% in KZN, 51.2% in the EC and 49.9% in Limpopo.278

273 See http://data.worldbank.org/indicator/SP.RUR.TOTL. 274Statistics South Africa (SSA), 2011.Census 2011 Statistical Release. Pretoria: Statistics South Africa. 275 Makgetla, N.S., 2010. Op.Cit. 276Statistics South Africa (SSA), 2011.Op.Cit. 277Ibid. 278Ibid.

87 Due to the underdeveloped and impoverished conditions of rural areas (characterised by a vast gap in opportunities), mass migration is occurring out of these regions into more urban provinces. This is most pronounced in the EC and Limpopo, which experienced a net lifetime migration loss of more than 1.5 million and 1.2 million people, respectively.279 The majority of people leaving these provinces have moved to urban areas, especially within the Gauteng and Western Cape provinces, which show the highest in-flow figures in the 2011 Census. The unabated circular migration of rural residents from the country’s rural to urban areas, a persistent feature of apartheid-driven social engineering, has devastating impacts on both social and economic rural life. Not only does this translate into a significant lack of presence of economically active adults in the prime of their productivity, but also the disunity of family life as fathers and mothers are absent from rural households for elongated periods of time.280

Despite this substantial out-migration from South Africa’s rural areas, population congestion in the former homelands remains a serious challenge to rural development. Though the provinces of KZN, the EC and Limpopo cover less than 32% of the country’s surface area, they consisted of nearly 43% of the population in 2011.281 In fact, while KZN is the third smallest province, it had the second highest population density (113 people per km squared) in 2010.282 The overburden on land and resources and overcrowding of people resulting from the Communal Areas’ high population densities has translated into an overwhelming pressure on already inadequate infrastructure and public service delivery, inadequate food supplies and lack of economic opportunities.

Considering the levels of rural underdevelopment and inequitable patterns of land ownership that characterise South Africa, there is a dire need to infuse land reform initiatives (e.g. through an expanded restitution programme) with rural development efforts to address the land-shortage and various livelihood needs of rural inhabitants. Reforming the restitution programme offers a promising way forward in transcending the limitations of past approaches to land reform and rural development that have excluded large segments of the population. The proposals at hand not only intend to generate a much more inclusive approach to agrarian reform, but also an improved beneficiary support system which addresses the developmental deficiencies of past rural development and land reform programmes.

The proposed policy changes go far beyond restoring alienated land rights. The proposed alternative forms of redress, particularly priority access to state-led development programmes, open the possibility for integrating current national development initiatives (including IPAP, the

279Ibid. 280 Collinson, M., Tollman, S., Kahn, K. & Clark, S. 2003. Highly prevalent circular migration: Households, mobility and economic status in rural South Africa. Paper prepared for Conference on African Migration in Comparative Perspective, Johannesburg, South Africa, 4-7 June, 2003. 281Statistics South Africa (SSA), 2011.Op.Cit. 282 http://www.statssa.gov.za/

88 Infrastructure Build Programme, etc.) with restitution to ensure that South Africa’s spatial inequities and crisis of rural underdevelopment are at long last surmounted. Although the restitution programme affects South Africa as a whole, it is imperative to recognise its effect in space and in relation to the programme and plans of other organs of state including the municipalities where they are located. There is a need for coordination between the land restitution programme and provincial government and local municipalities especially with respect to infrastructural service delivery. With priority access to state resources, special recognition and budgetary assistance included in possible forms of redress under the proposed policy, government services such as education, health care, better basic infrastructure including water, electricity, sanitation, roads etc. can be provided not only to the households to whom land has been restored but also to other families living in the area.

Additionally, through the provision of employment opportunities and income, the land reform re- opening will contribute towards maintaining and/or elevating the standard of living of the society that it affects. An increase in employment will be accompanied by an increase in individual and household income that will translate into an increase in the demand for goods and services. This then provides an opportunity for the expansion of business productivity and/or the start-up of new businesses. The land reform re-opening will further generate/sustain production and GDP (that are accompanied by employment opportunities) in a time where a particularly burning need for these exists. Thus, re-opening the lodgement dates of the restitution programme can effectively contribute to achieving the NDP’s envisioned expanded social, economic and political opportunities for rural communities.

5.2.2 Anticipated costs of processing new claims

A common explanation offered by officials regarding the state’s reluctance to amend timeframes and allow submission of new restitution claims is the alleged enormous financial burden that it would place on Government. Such fears are based on the fact that the processing and settling of the relatively meager number of 77 148 claims to date (as of February 2013) has proven quite expensive.283 A total of R 16.5 billion has been spent on the programme thus far, with R 10 billion dedicated to the 5 856 cases in which land was restored and the remaining R 6.5 billion spent on the 71 292 claims settled with cash compensation.284

This chapter of the RIA will reveal that there are numerous uncertainties and highly variable factors which make it extremely difficult to estimate exactly how much the re-opening will cost. However, the EIA (discussed in detail in the following chapter) conducted to analyse the costs and benefits of the proposed restitution reforms indicated that the anticipated cost ranges of the re-opening fell between R 130 and R 180.2 billion depending on the percentage of new claims

283 (No author), 2013. “South Africa to speed ip land reform”. SouthAfrica.info, 25 February 2013. Available at: http://www.southafrica.info/about/social/land-250213b.htm#.UaI_6xwf8WU. 284Ibid.

89 settled through land restoration or financial compensation.285 These total estimated costs of enacting the proposed reforms consist of costs associated with increases in administrative capacity as well as the land acquired for land claims and financial compensation. The estimates are based on three land claims re-opening scenarios that were formulated based on data collected from the previous round of land claims and a number of varying assumptions that are highlighted in the next chapter.

A Cost Benefit Analysis (CBA) was futher conducted from the results of the economic analysis which excluded certain unquantifiable potential costs and benefits (such as changes in food security, agricultural production, land values, social cohesion or changes in political and civil stability) due to the difficulty in expressing these costs and benefits in real monetary values. The CBA indicated that when future inflation rates and increases in property values are taken into consideration, all re-opening scenarios have a negative net effect in NPV. While this means that the proposed restitution policy is estimated to be unprofitable in economic terms, this does not indicate the value the revamped programme can have qualitatively.

As highlighted frequently in the available literature, the tremendously costly nature of restitution is largely attributable to numerous remediable factors. These include (amongst others) the market-based WB/WS model of land acquisition that has dominated the state’s approach to purchasing land for restoration; overuse of the financial compensation mechanism of alternative redress to settle claims as quickly as possible; and the lack of sufficiently capacitated institutional infrastructure to execute well-planned and coordinated land restoration and development projects under the restitution programme.286 Each of these factors, perceived as major weaknesses contributing to the failure of restitution to achieve its varied objectives and drastically increasing the costs of the programme, can be addressed by various reforms put forward in the proposed restitution policy framework within the context of the 2011 Green Paper proposals for a revamped land reform programme. Thus, while the financial implications of accepting and settling of the potentially hundreds of thousands of new claims that could result from re-opening the cut-off dates are not to be taken lightly, the state can implement restitution in a manner that is financially feasible. This is examined more in the subsections below.

5.2.2.1 Scrapping the willing-buyer/ willing seller approach to acquiring land for restoration

Although the WB/WS approach to land acquisition is not an officially codified characteristic of restitution as it is with the redistribution leg of South Africa’s land reform programme, it has thus far dominated the method in which Government acquires land to be restituted to successful claimants.287 This means that right to restitution (especially in the form of restored land) is not

285Statistical Development Economists, 2013.Op.Cit. 286 Hall, R. 2003. Op.Cit; Hall, R. 2004.Op.Cit; Zenker, O. 2012.Op.Cit; Institute for Poverty, Land and Agrarian Studies (PLAAS), 2011. Op.Cit. 287Hall, R. 2003. Op.Cit.

90 absolute as it depends on the willingness of current landowners to sell the property in question for prices that the CRLR is willing to offer. As indicated in Chapter 3 of this report, the right of the dispossessed to return to their ancestral land is therefore subjugated to constitutionally protected private property rights. The entrenchment of private property rights and the market- based model of land acquisition employed by the state has not only rendered the restoration of land (and the current restitution programme in general) extremely expensive, but also has made it reliant on the cooperation of current landowners.

This method of land acquisition gives landowners a disproportionate amount of power to decide whether and for how much they are willing to sell their land. Provided with essentially what is a final veto on the restoration of land to restitution beneficiaries, owners can outright refuse to sell the land in question and have sometimes been encouraged by certain associations representing organised agriculture to do so.288 Additionally, owners can challenge the validity of claims in which such cases are then referred to the LCC and often take years to resolve. The lengthy judicial processes involved in this latter circumstance has made restoration of land a cumbersome and costly form of redress. In situations where landowners are willing to release their property to the state, a minimum of the current market price is expected, while more frequently landowners have asked for exorbitant prices far outside the Government’s ability to pay. Negotiations between the CRLR and landowners over the price of land is one of the most commonly cited factors that cause both extensive delays in the settling of rural restitution claims and the overly prevalent payment of financial compensation to restitution beneficiaries.289

The current restitution policy provides the CRLR with three options in cases where either landowners refuse to sell or negotiations over land prices are stalled: the state can (1) offer a higher amount for the land, (2) offer claimants alternative options of redress or (3) expropriate the property in question. The latter has been employed successfully only on two occasions despite promulgation of the Restitution of Land Rights Amendment Act 48 of 2003 which enabled the Minister of Land Affairs to expropriate land for restitution (as well as other land reform purposes) without a court order.290 Building on the provision found in Sections 25(2) and 25(4) of the 1996 Constitution which empower Government to expropriate property “for a public purpose or in the public interest” which “includes the nation’s commitment to land reform”, the 2003 Act aimed to serve as a credible threat to current landowners and thus gives the state more sway at the negotiating table.291 However, in spite of widespread support for the amendment voiced during the 2007 Parliamentary hearings held by the Portfolio Committee on Agriculture and Land Affairs, in nearly all restitution cases Government has neglected to utilize

288Ministry of Agriculture and Land Affairs (MALA). 2001. Land Redistribution for Agricultural Development: A subprogramme of the Land Redistribution Programme. Pretoria: MALA. 289Hall, R. 2004. Op.Cit. 290Republic of South Africa, 2003.Restitution of Land Rights Amendment Act, 48 of 2003. Pretoria: Government Printers. 291Hall, R. 2004. Op.Cit.

91 its powers of expropriation to ensure land is restituted to claimants and their descendants.292

The almost complete lack of willingness on the part of the state to navigate restitution negotiations through use of its constitutionally sanctioned powers of expropriation has meant that the costs of restitution (especially those related to rural claims involving the restitution of land) are highly unpredictable. Not only is this a consequence of the unknown purchasing figures landowners may require for property under claim, but is also due to the wide variation in value of land across provinces.

The majority of restitution claims settled through restoration of land have, until recently, consisted of the return of large tracts of property in the more arid regions of the country (especially in the Northern Cape). From 2005, however, the CRLR has been compelled to deal with outstanding rural claims involving high value commercial agricultural land mostly in Limpopo and Mpumalanga. While in some cases the state has paid market value to farm owners, at other times exceptionally high prices were paid for this land.293 For example, while the average price per hectare of land ranged between R 1 000 and R 4 000 in the early 2000s, the DLA reported that farmers were asking as much as R 23 000 per ha.294 The wide differentiation in prices of restituted property is also aptly demonstrated in the pricing of land in Mpumalanga during a spurt of state purchases for restitution purposes after 2007 in which prices ranged from R 23 000 to R 45 000 per ha.295

Furthermore, prices of land are extremely inconsistent and fluctuate constantly, depending on the year of purchase and province in which land is located. This is well demonstrated in reviewing prices paid for restituted land by the DRDLR (formerly the DLA) over the various years. For example, while the price paid per hectare averaged R 5 883 between 2007 and 2008 (with a total of 432 226 ha purchased for restitution at a cumulative price of R 2 543 147 365.76), this figure rose to an average of R 6 990 in 2010/2011 and then again to R 9 735 paid per ha between 2011 and 2012 (with a total of 98483.76 ha bought for R 958 766 401.81 by the state).296 Furthermore, if one examines the costs of land purchased by the state for purposes of restitution between 2011 and 2012, prices paid across provinces fluctuate dramatically. While the Government spent an

292 Lahiff, E., 2008. Land Reform in South Africa: A Status Report. Cape Town: PLAAS. 293Lahiff, E., Davis, N. and T. Manenzhe, 2012.Op.Cit. 294Khan, N. 2007.Op.Cit. 295Didiza, A.T. 2006. Land and Agrarian Reform in South Africa: 1994-2006. Presentation by the Minister for Agriculture and Land Affairs, Republic of South Africa. International Conference on Agrarian Reform and Rural Development, Brazil, 7- 10 March. 296CRLR, 2008.Presentation to the Portfolio Committee on Agriculture and Land Affairs on the Commission on Restitution of Land Rights Annual Report 2007/08. Available at: http://www.pmg.org.za/report/20081119- department-land-affairs-commission-restitution-land-rights-annual-rep; CRLR, 2011. Briefing to the Portfolio Committee on Rural Development and Land Reform: Annual Report of the Commission on Restitution of Land Rights, 2010-2011. Available at: http://d2zmx6mlqh7g3a.cloudfront.net/cdn/farfuture/X8- RxOe7zu_lMTClxvu4tW6jCxzSQ4Sw5uGXXctaj-8/mtime:1318861099/files/docs/111012maphoto_0.pdf; DRDLR, 2012. Presentation to the Portfolio Committee on Rural Development and Land Reform. Available at: http://www.pmg.org.za/report/20121010-briefing-department-rural-development-and-land-reform.

92 average of R 3 481 per ha in the OFS during this time, more than R 6 600 was paid per ha in Mpumalanga, upwards of R 8 200 per ha in the North Western Province, approximately R 14 830 per ha in KZN and an enormous amount of R 936 982 per ha in the Western Cape, respectively.297 A summary of the amounts and price of land purchased by the state under the restitution programme are summarised in Table 3 below.

Table 3: Numbers of Hectares and Price of Restituted Land in 2011/2012298

PROVINCE TOTAL HECTARES TOTAL COST AVG COST PER HA (Rand)

Eastern Cape 0 0.00 0

Orange Free State 1 437 5 002 857.90 3 481

Guateng 0 0.00 0

KwaZulu-Natal 31 508 467 407 534.06 14 834

Limpopo 18 609 149 318 427.65 8 023

Mpumalanga 34 675 230 965 718.00 6 661

Northern Cape 0 3 000 000.00 0

North West 12 252 100 487 855.20 8 201

Western Cape 2.7578 2 584 009.00 936 982

TOTAL 98 483.76 958 766 401.81 9 735

Many factors play into this wide variation in prices of restituted land purchased by the state throughout the provinces including the size of land in question, its location, how it is put to use, the state of the current land market and the landowner’s predisposition and current economic circumstances. Prices for land that hosts high-value agricultural production (such as dairy operations or the processing of sub-tropical fruit) are much greater than those paid for more arid or underdeveloped properties lacking sophisticated infrastructure or valuable resources. Some authors contend that due to the willingness on the part of the state to pay high prices for land under rural restitution claims, “prices for land have skyrocketed, reaching as high as 2.5 times the price on the general market” with landowners “exploit[ing] the state’s need to acquire their

297DRDLR, 2012.Op.Cit. 298Ibid.

93 land, and…us[ing] the threat of protracted litigation to push the state to offer ever-increasing prices”.299 This partially explains why, of the approximately 8 000 rural claims settled thus far, less than half have involved the return of land to claimants.300

Considering the above factors, as well as the unknown numbers and nature of restitution claims that may be filed as a result of re-opening the cut-off dates, computation of a predicted cost of such amendments is highly problematic if not next to impossible. This difficulty in estimating cost is exacerbated by the fact that complicated rural claims often take years of negotiation to settle. Sometimes rural restitution cases end up being heard by the LCC and involve costly judicial processes. In addition, protracted periods have often elapsed between settlement agreements and the state’s actual purchase of land, during which time land prices increase drastically and landowners are no longer willing to accept the original price of agreement. 301 Moreover, amounts of financial compensation paid to restitution beneficiaries have also differed dramatically, with no solid foundation upon which to calculate what proportion of the restitution budget this alternative means of redress would absorb if cut-off dates were re-opened.

The EIA conducted to analyse the costs and benefits of the proposed reforms estimated that the anticipated cost ranges of the re-opening fell between R 130 and R 180.2 billion depending on the percentage of new claims settled through land restoration or financial compensation.302 These total estimated costs of enacting the proposed reforms consist of costs associated with increases in administrative capacity as well as the land acquired for land claims and financial compensation. The estimates are based on three land claims re-opening scenarios that were formulated based on data collected from the previous round of land claims and a number of varying assumptions as discussed in the following chapter.

While the EIA cost estimates seem to render the proposed reforms economically unfeasible, it is evident in considering the factors discussed above that, implemented within a context of an overhauled land reform programme with the established institutions outlined in the 2011 Green Paper and the adoption of a more pro-active land acquisition strategy, costs of settling claims will be drastically reduced. This not only requires the state’s effective utilization of its powers of expropriation, but also capable institutional restitution infrastructure enabled to execute projects involving the restoration of land and other development alternatives of redress in a coordinated manner in which area-based land reform is adopted.

5.2.2.2 Limiting financial compensation payments

Less than 8% of restitution settlements have involved the restoration of land, with the vast

299Binswanger-Mkhize, H.P., Bourguignon, C. & van den Brink, R. (eds.) 2009.Agricultural Land Redistribution: Toward Greater Consensus. Washington, DC: World Bank. 300Binswanger-Mkhize, H.P., Bourguignon, C. & van den Brink, R. (eds.) 2009.Op.Cit. 301Zenker, O. 2012.Op.Cit. 302Statistical Development Economists, 2013.Op.Cit.

94 majority of restitution beneficiaries receiving redress for dispossessed land rights in the form of cash compensation.303 The overuse this form of alternative redress (sometimes referred to as “cheque-book restitution”) has been considered a “quick fix solution to deep and intractable grievances”304 and is highly problematic for the following reasons:

 Payment of financial compensation offers no contribution to advancing the land reform programme’s goal of undoing the spatial imprints of apartheid and creating more equitable ownership of and access to land in South Africa;

 It offers little benefit in promoting sustainable development and creating a more inclusive society;

 The process of determining financial compensation has been characterised by inconsistency, with claimants being awarded wide ranging amounts and further exacerbating inequality as well as resulting in conflict amongst families and communities;

 Once divided amongst what is often several hundred or thousand beneficiaries, awards of cash compensation tend to be too small to significantly improve livelihoods, with much of the money being absorbed by immediate needs (i.e. school fees, rent, sustenance needs, consumer goods etc);

 Claimants who have received cash compensation may not consider this a permanent form of redress and may re-submit claims in the future; and

 Financial compensation cannot be passed on to the next generation and thus provides no sustainable form of redress for families and communities.305

As with the disadvantages of cash compensation, there are various interlinked reasons why this form of redress has dominated restitution settlements. While the protracted delays in settling of restitution claims and low numbers of resolved cases in the early years of the programme prompted the CRLR to encourage large numbers claimants to accept financial compensation (especially for urban claims where restoration of original land was not feasible), experience has shown that claimants themselves have also chosen cash over land or other forms of redress.306 This choice has been motivated by (amongst others) concerns regarding the lengthy delays and uncertainty of other forms of restitution, the complications involved in the restitution of land to large groups, the inability to make use of restored land due to lack of necessary resources and the various challenges of relocating one’s home and family.307

However, despite the enormously high incidence of restitution outcomes settled with pecuniary compensation with this seemingly being the preferable option of many claimants as well as

303 (No author), 2013. “South Africa to speed ip land reform”. SouthAfrica.info, 25 February 2013. Available at: http://www.southafrica.info/about/social/land-250213b.htm#.UaI_6xwf8WU. 304Hall, R. 2010. Op.Cit. Pp. 33. 305 Hall, R. 2010. Op.Cit; Bohlin, A. 2004. A Price on the Past: Cash as Compensation in South African Land Restitution. Canadian Journal of African Studies/ Revue Canadienne des Etudes Africaines, 38, 3, pp. 672-687; Zenker, O. 2012.Op.Cit; Hall, R. 2003.Op.Cit. 306Hall, R. 2003. Op.Cit. 307Bohlin, A. 2004.Op.Cit.

95 restitution officials, the CRLR has indicated that the restoration of land, when feasible, is the desirable settlement outcome.308 This is largely due to the many disadvantages of cash compensation listed above. Restoration of land rights, on the other hand, are a more permanent form of redress that provides opportunities to secure tenure, increase livelihood options, participate in production and other areas of economic development and can be inherited by future generations. For these reasons, the proposed restitution policy stipulates that provision of pecuniary compensation shall only occur in cases where the restoration of ownership rights (or use rights where applicable) is not feasible. As noted earlier, the new policy also provides for other forms of alternative redress that lend more promise to sustainability than cash compensation, namely priority access to state resources and exceptional recognition (or a combination of the above).

There is good probability that the costs of the restitution programme (even with submission of new claims) can stay within the means of the state if the billions which have been paid in past settlements of cash compensation can be avoided in the future. Instead, funds previously dedicated to this form of redress can be allocated to land acquisition accompanied by an effective beneficiary support system that enables claimants to make productive use of restored land. In cases where restitution of land rights or provision of alternative land is not feasible, funds can be directed towards infrastructure, poverty reduction and economic development efforts in targeted areas where benefits will accrue not only to claimants, but also to the broader community. In the few cases where financial compensation is deemed the only and/or best option, beneficiaries should be provided with compensation that is just and equitable, taking into consideration the current value of lost rights, as well as assistance from the state in managing their new finances.

5.2.2.3 Enabling a more efficient well-coordinated restitution process

In addition to the WB/WS model of land acquisition and the over-reliance on financial compensation in the settlement of restitution claims, the acute deficiencies in institutional capacity have translated into an extremely expensive restitution programme. Ironically, the lack of financial and human resources within the CRLR, the DLA and the LCC (largely attributable to the state’s adoption of GEAR and fiscal austerity in public spending) has cost the state significantly. This is mainly apparent in the long delays that characterise the settlement process, especially regarding rural claims that pose major administrative challenges for the DLA and CRLR. As urban claims are smaller, involve individuals or extended families and are thus relatively less complicated to settle (especially considering restoration of land in such cases is not deemed a feasible option and claims are almost always settled with standard payments of cash compensation), they require less state manpower and thus were given priority in the first

308Hall, R. 2004. Op.Cit.

96 decade of the programme. As a result, virtually all urban claims were apparently resolved by 2007.309

This left the CRLR with a backlog in rural claims, many of which involved prime commercial farming land. The process of settling rural restitution claims is protracted and complex, involving difficult validation of claims, tracing hundreds and sometimes thousands of dispossessed and their descendants, verifying who held rights to what land and how claimants are related to the persons originally alienated from their rights. Once this is complete, the CRLR has to establish agreement among claimants as to what form of redress they are seeking and, in cases where there is disagreement, divide the claimants into separate groups. Then there is the lengthy process of negotiating with landowners (which can take years) and settlement planning to conduct, after which implementation of such plans and provision of post settlement support must be executed.

Each of these steps requires effective and efficient staff and adequate resources. As demonstrated earlier, institutional constraints in the form of high staff turnovers, understaffing and underbudgeting, lack of delegated authorities and lack of coordination amongst RLCCs, the CRLR, the DLA and other relevant government departments have all resulted in long delays in settling claims. During this time, land prices have increased drastically, millions (at least) have been spent on extended court cases and funds have been squandered on uncoordinated restitution projects with almost complete lack of post settlement support which brought little or no benefits to the lives of beneficiaries.310 As Hall notes

Contrary to expectations, money to buy back land has not proven to be the main impediment to speeding up restitution. From 2005 the budget allocation from central government has grown sharply, but the Commission’s inability to spend this budget – including under-expenditure of about R1 billion...in 2006/07 – led to a reduced allocation at precisely the time that it was gearing up to finalize claims and requesting more funds from National Treasury. Under-spending is in large part the product of institutional weaknesses in the Commission: while the capital funds for buying land, paying out grants and compensating claimants have risen sharply, the proportion of the budget dedicated to staffing has shrunk over time. Added to this has been a reluctance to expand the Commission in the face of its impending closure.311

In order to ensure that the additional costs incurred by the state due to lack of institutional capacity and associated protracted delays are avoided in the future, the new policy framework proposes various reforms to capacitate restitution institutions and thus improve administrative planning processes as well as provision of post settlement support. These include the prioritisation of settling outstanding rural claims before new claims are processed, providing

309Lahiff, E. 2008.Op.Cit. 310Zenker, O. 2012.Op.Cit; Hall, R. 2003.Op.Cit. 311Hall, R. 2010. Op.Cit. Pp. 32.

97 institutional support to CPAs, a drastically enhanced beneficiary support system, establishing autonomy of the CRLR to lead the process and be supported by the Land Rights Management Board and Land Rights Management Committees, and appointment of five new judges to capacitate the LCC. Such measures will improve the overall functioning of the restitution programme, thus reducing the time and costs involved in the settling of outstanding and new claims.

5.3 Alternatives and Assessment of Options

In addition to the first two options, various other measures have been suggested to tackle the numerous problems associated with the current programme. These include initiation of land reform projects under existing land reform legislation and policies that address the needs of those excluded from restitution; further developing the skills of restitution officials and staff (or, on the other hand, outsourcing most of the work) to speedily resolve outstanding claims so that these personnel may then use their energy to developing non-regulatory solutions to address needs of marginalised citizens unable to participate in the programme; use targeted development interventions to enhance livelihoods of those excluded; and/or encourage strategic partnerships between individuals and groups who were excluded from restitution and large agri-businesses.

While some of the options presented above are needed in addition to amending restitution legislation, none are sufficient in themselves to comprehensively generate the envisioned outcomes of the proposed policy. The position taken in this RIA is that the proposed reforms are absolutely necessary to address the exclusiveness and other major problems faced by restitution programme and to ensure that the programme embraces the underlying principles of land reform outlined in the 2011 Green Paper (as well as its visions of Agrarian Transformation).

6.0 THE SOCIO-ECONOMIC IMPACTS OF RE-OPENING 1998 DEADLINE312

6.1 Introduction

The proposed land restitution legislation will have significant and enduring impacts on the property market and society at large. It is therefore imperative that the possible impact of the proposed extension of the restitution programme be examined and factored into the decision- making process on whether a regulation is desirable. Thus, as part of this RIA, a Socio-Economic Impact Assessment (EIA) study was conducted to identify and quantify the macroeconomic impacts that are likely to occur as a result of the implementation of the proposed land restitution

312 Information presented in this section has been extracted from Statistical Development Economists, 2013. Land Restitution: Socio-Economic Impact Assessment. Unpublished.

98 policy. This consisted of an economic study that attempted to determine how the economy will react if such a policy is implemented. This chapter of the report provides an analysis of the impacts of the proposed policy and legislation on the socio-economic objectives of government including: rural development and land reform, the creation of decent work, eradication of inequality, poverty alleviation and creation of growth.

6.1.1 Methodology The methodology applied to conduct this analysis involved six steps:

 Step one:a project orientation that entails developing an in-depth understanding of the project and all that it encompasses was conducted.

. Step two: a baseline socio-economic profile was created; the aim was to identify and examine the variables that will be influenced by the land claims re-opening.

 Step three: details of the various project dynamics were provided for both the re-opening of the post 1913 and pre-1913 land claims. Financial and human capital, as well as physical factors, were examined.

 Step four: a CBA and Socio-Economic Impact Assessment were done.

 Step five: an impact evaluation was executed, in which impacts identify the broader economic significance of the project. The economic significance provides the basis for actions that could improve the positive aspects of the project and reduce the negative aspects.

 Step six:a synopsis of the study findings were provided and conclusions made with suggested mechanisms for minimising negative impacts and maximising positive impacts and externalities that may arise if the proposed land claims logement process is re-opened.

6.1.2 Current socio-economic status of South Africa The socio-economic status of South Africa could potentially be significantly impacted by the re- opening of the claims. Therefore, it is important to also understand the current status of the South African economy in order to know what the effects of undertaking the policy will be. The baseline profile was thus developed by assessing certain factors including population and household dynamics, dwelling type and tenure status, labour force structure, income and expenditure, economic profile and access to services and infrastructure.

The structure of the South African economy is multi-faceted; important aspects that could potentially be impacted by land claims are, among others, the living arrangements of South Africans, unemployment and the agricultural sector. Firstly, a significant portion of South Africans live in informal dwellings, whether it is in a back yard or in an informal settlement. The lack of land can be the cause for South Africa to have relatively few substantial farmers; on which land claims could potentially have a significant impact. If tenure and access to land issues are addressed, the ability of the poor to engage meaningfully in the economy could be improved. The re-opening of the lodgment of land claims could increase land ownership and address the

99 housing backlog. Thus land claims hold the potential not only for rectifying past injustices but can also influence the living arrangements of a large portion of South Africans.

Secondly, a large number of the dispossessed populations become wage workers due to their circumstances, i.e. their deprivation of land. South Africa is a country with extremely high unemployment rates, however it differs across the regions; unemployment is the highest in the EC and OFS. Various jobs will be created during the re-opening of land claims and will be considered as decent employment. As unemployment influences the disposable income of a household, financially compensating a claimant for land claims will also increase disposable income. Currently, a household in South Africa spends almost 84% of their income on services and non-durable goods, therefore an increase in the disposable income of households (for example when a financial claim is paid out) would probably lead to higher consumption of services and non-durable goods. As there is a direct linkage between the household expenditure and economic growth, the spending of financial compensation will increase the aggregate demand in the economy, to which the economy will create more jobs in order to meet the increase in demand. Therefore, re-opening the lodging of claims will have a positive effect on the size of the economy as well as to create new job opportunities. Thus, not all jobs created by the proposed policy will work directly with land reforms; most jobs will be created indirectly.

Thirdly, the agricultural sector in South Africa contributes 2.4% to the national economy, but creates more than 5.7 out of 100 employment opportunities in the country. Therefore, the agricultural sector is an important job creator. However, commercial farms are becoming larger and more capital intensive, thus the number of workers per hectare is declining which translates into the decrease of agricultural employment. The agricultural sector is not only important for job creation but also for ensuring food security and sustained production, both of which have also experienced a decline in the last five years and only started to recover. The agricultural sector could potentially be influenced by land claims but due to the difficulty in quantifying these changes, it is mostly not included in the EIA.

Additionally, the size of the South African economy is usually measured by the GDP which represents the total value of all the goods and services produced within the borders of a country in a given year. South Africa had a GDP of R 2 823 billion in 2011 (2012 prices). The primary sector includes agriculture; forestry; fishing; mining and quarrying; and contributed 12.1% to the total GDP. The secondary sector includes manufacturing; electricity; gas; water; and construction and contributed 20.8% to GDP. The tertiary sector includes trade; catering; accommodation; transport; storage; communication; finance; insurance; and real estate and contributed 67% to GDP. These contributions, (especially agricultural contribution to employment and GDP) could potentially be influenced by the re-opening of land claims.

100 The draft policy framework for the land restitution programme stated that not only financial compensation and land restitution will be used to reimburse claimants. Alternative methods such as special recognition; access to resources; and the provision of infrastructure could be given. Considering that 8.8% of South Africans have no access to water; 58.8% of South Africans do not have electricity for heating; 5.2% of South Africans do not have access to sanitation; and 28% of South Africans make use of their own refuse dumps, there is much room for infrastructure and service delivery improvements in South Africa. Allowing submission of new restitution claims can open the way for significant improvement in these areas as infrastructure and service delivery demands can be used to reimburse claimants.

6.1.3 Baseline claims information In order to perform the economic assessment of the proposed re-opening, a starting point upon which predictions are formulated must be created, referred to as a baseline. To create the baseline, historic data of the first round of claims were used. During the first round of claims, more than 80 000 claims were received of which 79 580 have been settled to date. The settling of the claims was time consuming due to their diverse nature and the fact that each claim involves unique circumstances. Due to the time-intensity of the claims, there are still claims that are unsettled and that will still be in the system once the claim period is re-opened. These claims should always be included in the number of potential future claims. The data from these historic claims were analysed in order to create a baseline. The information in the baseline is used to make estimations of future claims. Even though this is the best estimation of the nature of future claims, there are uncertainties to which degree future claims will be similar to historic data. Therefore, averages taken from historic data were used with caution.

Based on the complexity of the cases of land claims resolved thus far and the uncertainty of the number and nature of potential future claimants, there are a number of constraints in using historic data in predicting the possible future claims. First, the current administrative capacity of the DRDLR to handle claims may increase or decrease. Second, various factors such as administrative capacity and media campaigns can influence the number of claims resolved per year. Third, the number of years over which claims will be received is set at five years but this might change in the future. Fourth, the value of each claim, number of beneficiaries and other general circumstances will be highly susceptible to change that leads to difficulty in creating averages and will create certain problems in terms of the reliability of the data. Last, the value of the unresolved claims is unknown. It is important to keep these constraints in mind when evaluating the findings of the economic study.

Considering the aforementioned, the baseline information that informs the cost assessments for the three future scenarios that will be discussed in the next sub-section of this RIA includes the following historic data. The number of claims that are settled each year differs, with the highest numbers of claims processed between the years of 2000 and 2006. The maximum number of

101 claims settled in one year was 14 197 in 2002 and the average number of claims settled per year was 4 421. Approximately 13% of all resolved claims were rural and 87% were urban. Various claims can be grouped together in one project if all the claimants in the group approve. On project basis the urban/rural split was almost 50% and this could be attributed to the fact that small distances in urban areas make it easier for claimants to group.

In the previous round of claims, provinces with the most claims were the Western Cape, the EC and KZN, with 16 895, 16 626 and 15 837 claims respectively. Figure 1 illustrates the number of claims resolved in each province. However, of the total value disbursed, KZN and Mpumalanga paid 35% and 22%, respectively. The claims were also divided in the 52 district municipalities to see how the value of a claim differs between regions. On average the most expensive land value per hectare was in the district municipality of Overberg and the most expensive compensation paid out was in the OR Tambo District Municipality.

Figure 1: Number of Claims Lodged per Province, 1995-2013

Source: Statistical estimations based on DRDLR, 2013 Of the total claims settled, 72 554 were financial compensation; the value of all the financial claims were 31% of the total value disbursed. On average the real value (based on 2013 figures) of a financial claim was R129 930. Of the total settled, 7 026 were land claims with the value of 69% of the total value paid out. This proportion may, however, change under the re-opening of land claims with a focus on alternatives to financial compensation. On average, the real value of

102 a land claim was R2 935 946 with the total cost to date (excluding administrative costs) equaling R 33 billion. Table 4 illustrates the total amount spent on land and financial compensation per province to date. The values are all adjusted for real terms, given in millions of 2013 Rand values, with the table including the total value of all claims after attorney’s fees have been included.

Table 4: Claim Costs by Province, 1995-2013 (R-million 2013 prices)

Total Value of Claims Total financial Province Total Land Cost Including Attorney’s Compensation Fees

Eastern Cape R 120 R 2 273 R 3 228

Free State R 45 R 338 R 455

Gauteng R 181 R 1 179 R 1 496

KwaZulu Natal R 6 852 R 2 709 R 11 458

Limpopo R 4 618 R 595 R 1 723

Mpumalanga R 5 940 R 635 R 7 170

North West R 2 201 R 490 R 3 409

Northern Cape R 666 R 1 205 R 2 180

Western Cape R 78 R 1 450 R 2 029

NATIONAL TOTAL R 20 627 R 9 426 R 33 153

Source: Statistical estimations based on DRDLR, 2013

6.1.4 Socio-Economic Impact Assessment and Cost Benefit Analysis approach The Socio-Economic Impact Assessment is a study of the way in which the direct benefits and costs of a proposed project or programme affects households, as well as the local, regional or national economy. Socio-economic impacts refer to the effects on the level of economic activity and the welfare of households in a given area because of some form of external intervention in the economy. Three types of economic impacts are generally assessed in terms of a socio- economic analysis. These include: (1) the direct effects that are generated when the adoption of a new policy creates an increase in job creation, production, business sales and household income; (2) the indirect effects which occur when the suppliers of goods and services to the new businesses or services experience larger markets and therefore the potential to expand; and (3) the induced effects that represent further shifts in spending on food, clothing, shelter and other consumer goods and services as a consequence of the change in workers and payroll of directly and indirectly affected businesses.

103 There are various direct and indirect costs and benefits involved in re-opening the lodging of claims. The direct costs of re-opening the land claims would include the costs of changing the policy, operational costs and the cost of paying out the claims. Changing the policy includes doing market research, feasibility studies, setting up policy drafts and general planning for implementing the policy. Operational costs entail expenses related to managing the policy (such as the wages and salaries of the employees), the capital needed to implement the policy and general costs of managing the office responsible for implementing the policy. The main direct costs associated with re-opening the land claims would be paying claims, whether this involves land claims, financial compensation, grants or other expenditures.

Indirect costs and benefits of the re-opening also include changes to agricultural production, changes to land values, changes to social cohesion and changes to political and civil stability. Other indirect costs include contractual cost and time for decision making; costs and time of transferring land and encouraging corporation and general administration.313 Indirect costs, such as those previously mentioned, are not quantifiable at this stage of the process as they lack a specified market price and thus will not be included in the economic impact assessment. It is however important to acknowledge these possible costs.

To compare the costs and benefits of each scenario in order to determine if the overall effect of the policy was negative or positive, a Cost Benefit Analysis (CBA) was used. The CBA provides an indication of the costs of the re-opening considering a number of different multiplication factors for various numbers of future claimants. In theory, a CBA requires that all costs and benefits pertaining to the policy should be quantified in monetary values. Certain costs and benefits that do not have market prices should be quantified by doing surveys, using approximations, doing market research, etc. In practice, however, it is not possible to express all costs and benefits in monetary terms and, as indicated above, this information is omitteddue to the difficulty to convert to monetary values.

6.2 Socio-Economic Impact Results

The EIA comprised of two main components. The first represented the administrative costs associated with the implementation of the proposed land restitution. The second component considered the socio-economic impact associated with different scenarios for the land claims re- opening. These are discussed in the sub-sections below.

6.2.1 Impact in terms of Administrative costs The feasibility of the land claims re-opening will rely on the availability of adequate supportive administrative structures. The administrative capacity between 1995 and 2003 could on average handle 4 421 claims annually. Since it is expected that the number of claims will increase during

313 Murray, C. 1997. South African Land Reform: Case-studies in ‘Demand’ and ‘Participation’ in the Free State. Oxford Journal: African Affairs. 96: pp. 198.

104 the re-opening of the land claims, it will have to be accommodated by improved administrative capacity. To increase current administrative capacity, the preliminary estimation is that the DRDLR will take the following steps:

. Establish sixteen Land Restitution Offices located across South Africa;

. Employ 304 staff members to assist in the processing of land claims; and

. Establish five mobile units that can process claims.

The estimated budget for the above interventions is about R 549 million. The impact of the expenditure related with the proposed administrative interventions is illustrated in the table below. The expenditure will be made during the five years that the claims will be re-opened.

Table 5: Macroeconomic Effect of the Administrative Expenditure over Five Years (R-million 2013 prices - unless otherwise stated)

Economic Indicator Cost Benefits Direct Indirect Induced Total Production R 549.2 R 549.2 R 301.3 R 596.2 R 1 446.8 GDP R 355.1 R 174.5 R 242.6 R 772.3 Employment (numbers) 304 702 2 044 3 050 Source: Statistical modelling (National Social Accounting Matrix, N-SAM) based on DRDLR, 2013 From Table 5 it becomes apparent that the direct contribution to the total production in the economy of South Africa will amount to approximately R 549 million. Through the indirect and induced effects, this impact will increase to a total effect of R 1 447 million during the five year period. The administrative expenditure will directly generate a total of approximately R 335 million in GDP during the claim period. The total GDP contribution of the administrative costs will be approximately R 772 million.

As indicated previously, based on preliminary estimations from the DRDLR, the administration of the land claims re-opening will require 304 new employees. Higher production in industries related to the administrative activities will create an additional 702 employment opportunities, while approximately 2 044 new employment opportunities will be generated as a result of an increased demand for consumer goods and services. In total, approximately 3 050 employment opportunities will be created by the administrative expenditure. Figure 2 below summarises this information.

Figure 2: Summary of the Key Aspects of Increasing Administrative Capacity

105 6.2.2 Impact in terms of land claims scenario costs The number and nature of claims that will be lodged during the re-opening of the land claims cannot be estimated with certainty, nor is it known exactly how many claims are outstanding from the initial claiming period (though it has been estimated that approximately 8 000 claims remain to be settled). In order to deal with some of the uncertainties surrounding the nature of future claims, different scenarios were created to conduct the economic impact assessment. The socio-economic impact on South Africa will differ for each scenario since the composition of each varies.

To set the parameters of the scenarios, the baseline data described above was utilised as the starting point upon which predictions were formulated and the following key assumptions were made: claims will increase by a factor of five (this expectation was based on estimations received from the provincial offices); administrative capacity will increase due to government expenditure on administrative resources; this (and the fact that the 5 year window period for submission is 2 years longer than the first) will increase the number of claims lodged per year; the estimated 8 000 unresolved claims will still be in the system when claims are re-opened and was thus included in each scenario; the average beneficiaries per claim will be approximately 22.45; the average household consists of 3.6 individuals; and current agricultural production will not be affected by the proposed land claims.

Further assumptions had to be made in each scenario, in the first scenario for the re-opening of 1913 claims; it is also assumed that the composition of land claims and financial claims will be equal to the baseline (first round of claims). In scenario 2 it is further assumed that the percentage of land claims will increase to 75% and the percentage of financial compensation will decrease to 25%. The DRDLR wants to discourage financially compensating claimants; however, this might be difficult in metropolitan regions. Thus, in scenario two, all claims from non-metropolitan district municipalities will be land claims and financial compensation will follow the baseline trend across district municipalities.

In scenario 3 it is assumed that the percentage of land claims and financial compensation will both be 50%. As with scenario 2, scenario 3 will also assume that all claims from non-

106 metropolitan district municipalities will be land claims and financial claims will follow the baseline trends across district municipalities. Increased administrative capacity will be the same in all the scenarios and will have an effect on the macro economy. Based on the above assumptions, scenarios are analysed in the following sub-sections in order to indicate the potential costs of the re-opening of post 1913 land claims.The following table gives a summary of the assumptions made in the three scenarios for the re-opening of the 1913 claims.

Table 6: Summary of Assumptions made in the Three post 1913 Scenarios

Percentage of Total Claims Area where Claims are Lodged Number of Financial Land Financial Claims Land Claims Compensation Claims Compensation

Baseline 79 580 31% 69% Same as baseline Same as baseline

Scenario 1 397 900 31% 69% Same as baseline Same as baseline

Only in non- Scenario 2 397 900 25% 75% Same as baseline metropolitan areas

Only in non- Scenario 3 397 900 50% 50% Same as baseline metropolitan areas

6.2.2.1 Scenario One: Increase in total claims

This scenario predicts an increase in the number of claims, by a factor of five. Therefore, the cost analysis predicts the costs for the resolution of approximately 397 900 claims. In scenario one the number of land claims compared to the number of financial compensation claims are at the same ratio than in the previous claims period. A total of 33 759 land claims will be lodged and a number of 364 141 financial claims.

The estimated number of claims will result in the following direct costs and benefits:

The total cost of the land claims will amount to R 129 billion;

If all the claims should be resolved, a total of approximately 8 932 850 individuals will benefit directly from the claims; and

2 455 927 households will be positively affected by the claims.

Table 7 below illustrates the macroeconomic impact of scenario one.

107 Table 7: Macroeconomic Effect of the Land Claims Re-opening Scenario One over Five Years

Economic Indicator Cost Benefits Direct Indirect Induced Total Production R 128 888.2 R 128 888.2 R 62 557.7 R 67 500.3 R 259 348.7 GDP R 10 470.7 R 30 676.4 R 29 902.9 R 71 050.1 Employment (numbers) - 107 141 123 550 230 691 Source: Statistical modelling (National Social Accounting Matrix, N-SAM) based on DRDLR, 2013

From Table 7 it can be concluded that total contribution towards production during scenario one of the land claims re-opening will amount to approximately R 129 billion. The direct investment will cause increased production in all sectors of the economy. In total, the proposed policy expenditure will raise the level of production by approximately R 259 billion. Raised production levels are accompanied by increased GDP. The direct impact of the restitution policy will lead to an increase of about R 10 billion in GDP. In total the level of GDP will increase by approximately R 71 billion.

The restitution policy expenditure will not require the employment of any persons additionally to the staff (304 persons) identified in the administrative costs. In order to eliminate the possibility of double counting, there will be no direct employment creation. Increased production in industries resulting from the restitution policy expenditure implies creation of new indirect employment opportunities. The (indirect) impact on employment in supplying industries will manifest in the creation of approximately 107 141 employment opportunities, while the impact on industries supplying consumer goods and services (i.e. the induced impact) will be the creation of approximately 123 550employment opportunities. In total, if the proposed 397 900 claims are resolved, 230 691 new employment could be created throughout South Africa.

6.2.2.2 Scenario Two: Increase in Land Claims with a Decrease in Financial Compensation

In scenario two claims will also increase to a factor of five. However, in scenario two it is assumed that there will be 75% land claims and 25% financial compensation. Thus the number of financial claims decreases to 357 389 and land claims increases to 40 511. According to the DRDLR, financial compensation will only be used as a last resort; in urban areas, however, it is difficult to reimburse land, and financial compensation could potentially be a common approach in urban claims. Therefore, in this scenario it is also assumed that claims in non-metropolitan municipality districts will be compensated with land, while financial compensation will still follow historic trends across district municipalities. Metropolitan district municipalities are Buffalo City; Nelson Mandela Bay; the City of Cape Town; Ekurhuleni; eThekwini the City of Johannesburg, the City of Tshwane; and Mangaung (South African Government Information,

108 2013). The remaining district municipalities are Gauteng, Sedibeng and the West Rand is also included.

The estimated number of claims in scenario two will result in the following direct costs and benefits:

397 900 claims will be lodged;

The total cost of all claims will be approximately R 179 billion; and

If all the claims should be resolved, a total of approximately 8 932 850individuals and 2 455 927 households will benefit directly from the claims.

Table 8 below illustrates the macroeconomic impact of scenario two.

Table 8: Macroeconomic Effect of the Land Claims Re-opening Scenario Two over Five Years (R-million 2013 prices - unless otherwise stated)

Economic Indicator Cost Benefits Direct Indirect Induced Total Production R 179 095.4 R 179 095.4 R 67 351.6 R 72 673.0 R 319 553.3 GDP R 11 273.1 R 33 027.2 R 32 194.4 R 76 494.8 Employment - 115 351 133 017 248 369 (numbers) Source: Statistical modelling (National Social Accounting Matrix, N-SAM) based on DRDLR, 2013

From the table above it becomes apparent that the direct contribution to the total production in the economy of South Africa resulting from the proposed number of land claims will amount to approximately R 179 billion. The total production increase resulting from the indirect and induced impacts will amount to R 319 billion. The land claim process in scenario two will generate a total of approximately R 11 billion in GDP during the five year period. The total GDP contribution will be R 76 billion.

Similar to scenario one, the land claims expenditure will not require the employment of any persons additional to the staff identified in the administrative costs. Therefore, there will be no direct employment creation. The indirect and induced employment creation will create a total of 248 369 new employment opportunities across South Africa.

6.2.2.3 Scenario Three: Increase in financial compensation with a decrease in land claims

During the previous claims period, the majority of settlements have consisted of financial compensation rather than restoration of land or prioritisation in state development initiatives. Scenario three was constructed based on the assumption that this trend will continue. Similar to the other two scenarios, scenario three represents an increase in claims to a factor of five from

109 the previous claims period. In scenario two the number of land claims lodged would increase (to 50% of total claims) while the financial claims decrease (to 50% of total claims). Thus, in scenario three, the ratio of land claims will decrease to 27 007 while financial claims increase to 370 893. Similar to scenario two, it is assumed that the claims in non-metropolitan areas will be settled with restoration of land, while claims settled with financial compensation will follow baseline trends across all district municipalities.

Scenario three will result in the following direct cost and benefits:

397 900 claims will be lodged;

The total cost of all claims will be approximately R 137 billion;

If all the claims should be resolved, a total of approximately 8 932 850 individuals; and

2 481 350 households will benefit directly from the claims.

Table 9 illustrates the macroeconomic impact of scenario three.

Table 9: Macroeconomic Effect of the Land Claims Re-opening Scenario Three over Five Years (R-million 2013 prices - unless otherwise stated)

Benefits Economic Indicator Costs Direct Indirect Induced Total

Production R 137 579.0 R 137 579.0 R 64 430.9 R 69 521.5 R 271 945.9

GDP R 10 784.2 R 31 595.0 R 30 798.3 R 73 177.6

Employment (numbers) - 110 349 127 249 237 598

Source: Statistical modelling (National Social Accounting Matrix, N-SAM) based on DRDLR, 2013

From Table 9 it becomes apparent that the direct contribution to the total production in the economy of South Africa will amount to approximately R 137 billion. Through the indirect and induced effects this impact will increase to a total effect of R 272 billion during the five year period. The 397 900 claims in scenario three will directly generate a total of approximately R 10 billion in GDP during the claim period. The total GDP contribution of the land claims will be approximately R73 billion.

Similar to the previous two scenarios, the land claims expenditure will not require the employment of any persons additionally to the staff identified in the administrative costs. Higher production resulting from the land claims expenditure will create an additional 110 349 employment opportunities, while approximately 127 249 new employment opportunities will be

110 generated as a result of an increased demand for consumer goods and services. In total, 237 598 employment opportunities will be created in scenario three.

6.3 Cost Benefit Analysis of Three Scenarios for Re-Opening 1913 Claims

A fundamental principal of the CBA is to quantify all possible costs and benefits in terms of the current monetary values. Only when all the costs and benefits are listed in current monetary values, the costs and benefits of implementing a policy can be weighed against each other. The difference between the costs and the benefits of a policy is the net effect. When the net effect is positive, the costs of implementing the policy is less than the benefits; it can be seen as a profitable policy; by implementing the policy the government had greater benefits than the costs. If the net effect is negative, the costs are more than the benefits and it can be seen as a non- profitable policy; implementing the policy would cost more than the potential benefits.

In order to express all costs and benefits for all three scenarios in the same monetary values, the following had to be allowed for:

Inflation for future expenditures has to be taken into consideration. Due to uncertainties of future inflation rates, a fixed inflation rate of 4.5% was assumed based on the inflation targets of the South African Reserve Bank;

A reasonable property value rate should be taken into consideration for land claims. A rate of 4.3% (inflation not included) on property investment would be necessary to keep property markets sustainable. 314 This would be regarded as a reasonable property value rate;

The number of claims processed per year and the time needed to settle all claims are based on the trends in baseline data; and

A discount rate should be implemented to express future costs and benefits in current values.315

Given the above consideration and the parameters set in the scenarios, it was possible to create a CBA for each scenario. The total cost of each scenario included the cost of increasing administrative capacity, paying out land claims and financial compensation. The benefit of each scenario is indicated by the changes made to GDP. GDP is frequently used as a measure of welfare to a society. GDP shows the size of the economy or the total income and expenditure of the economy and households are expected to have higher well-being or welfare when they are able to purchase more goods and services.316 Although GDP is not a perfect measure of welfare, it is still the most effective measure available.317 Therefore, any positive changes in GDP will be an indication of the benefits of each scenario.

314Global Property Guide. 2013. [Online] (June 2013). 315 Whitehead, D. 2005. Discount Rates for Cost Benefit Analysis. [Online] < http://www.env-econ.net/2005/08/ discount_rates_.html> (June 2013). 316Stonecash, R. Gans, J., King, S. & Mankiw, G.N. 2011.Principals of Macroeconomics. (5thed.). Cengage Learning. pp. 154. 317Ibid.

111 There are however other unquantifiable costs and benefits not included in this CBA, due to the difficulty to place a market value on these costs and benefits. These costs and benefits could potentially include changes in food security, changes in agricultural production, changes in land values, changes in social cohesion or changes in political and civil stability. In this study it is assumed that these effects will be constant.

The following table gives the net effect in NPV of the three scenarios of re-opening the 1913 claims. All monetary values are given in billions in 2013 Rand values.

Table 10: Summary of the CBA Net Effect (in NVP) of the Three Scenarios post 1913 (R-billion 2013 prices)

Discount Rate Scenario 1 Scenario 2 Scenario 3

0.00% R -143.5 R -244.9 R -162.1

0.50% R -142.2 R -240.8 R -160.2

1.00% R -140.9 R -236.9 R -158.4

1.50% R -139.6 R -233.2 R -156.7

2.00% - R 138.4 - R 229.6 - R 155.0

2.50% - R 137.3 - R 226.2 - R 153.5

3.00% - R 136.1 - R 222.9 - R 151.9

3.50% - R 135.0 - R 219.8 - R 150.4

4.00% - R 134.0 - R 216.8 - R 149.0

4.50% - R 132.9 - R 214.0 - R 147.6

5.00% - R 131.9 - R 211.2 - R 146.3

5.50% - R 130.9 - R 208.6 - R 145.0

6.00% - R 130.0 - R 206.0 - R 143.7

6.50% - R 129.1 - R 203.6 - R 142.5

7.00% - R 128.2 - R 201.3 - R 141.3

7.50% - R 127.3 - R 199.0 - R 140.2

8.00% - R 126.4 - R 196.8 - R 139.1

112 Discount Rate Scenario 1 Scenario 2 Scenario 3

8.50% - R 125.6 - R 194.7 - R 138.0

9.00% - R 124.8 - R 192.7 - R 137.0

9.50% - R 124.0 - R 190.7 - R 135.9

10.00% - R 123.2 - R 188.9 - R 134.9

Source: Statistical estimations based on DRDLR, 2013

Table 10 shows the net effect in NPV for each scenario post 1913. The administrative costs in each scenario are the same because the administrative costs are not dependent on the scenario. The DRDLR has drawn up a budget for administrative costs and these costs are used in each scenario. The net effect for all three scenarios is negative, for all discount rates. The net effect has the largest negative value in scenario two; this is due to the assumptions that a higher percentage of total claims will be land claims.

6.4 Summary of Findings

Based on the EIA it can be concluded that the re-opening of the restitution policy (post 1913) could impact the economy in various ways. All three scenarios had some positive impact on the economy. Production increased in all the scenarios; there is an increase in GDP and an increase in national production levels and an increase in economic growth. Significant job creation was also present in all three scenarios; jobs were created directly by employing additional administrative staff as well as significant employment creation in the indirect and induced effects over the five-year period. It is estimated that approximately 8 932 860 individuals could benefit directly from the claims representing about 2 481 350 households.

Each scenario will have a unique positive leverage effect on the socio-economic status of the economy. In addition, access to land as well as financial claim compensation will find its way into the productive sectors of the economy. This will lead to higher consumer expenditure on durable, semi-durable and consumer goods and services that will stimulate new job creation and poverty alleviation.

In each of the three scenarios there are a certain percentage of claims that is estimated to be land claims; this can have a significant impact on a large percentage of South Africans that are not currently property owners. A significant portion of South Africans live in informal dwellings therefore land claims could potentially increase the living standard of those South Africans that do not own property and are therefore not able to practice subsistence farming.

Scenario three in which land claims would decrease and financial claims increase was found to have the largest positive macroeconomic impact on the national economy. This is so because the

113 effects of financial compensation find its way directly into the economy while the direct benefits of access to land depends on the productive utilisation through agriculture or real estate development.

It can therefore be concluded that from the findings of the EIA that financial claims combined with alternative compensation methods should be encouraged. The positive economic leverage effect resulting from financial claims and alternative compensation methods are more than that of land claims. Financial claims and alternative compensation approaches will also be less disruptive since fewer people will have to be relocated to new areas. Financial claims and the proposed alternative compensation methods such as infrastructure provision and land recognition will thus not only address the redistribution of land but also promote social cohesion. However, as the EIA study only included impacts that could be quantified monetarily, this conclusion must be taken with caution as various indirect impacts of both land restoration and other alternative means of redress may hold more long-term benefits for beneficiaries and the society at large.

6.5 Socio-economic impact results for opening pre-1913 claims

While the costs and benefits of allowing submission of claims for land dispossession that occurred prior to 1913 have been comprehensively covered in another report, it should be noted that an EIA of such indicated that the opening of land claims for the Khoe and San descendants holds various advantages. As with post 1913 claims, different scenarios were formulated for pre- 1913 claims and in both the scenarios there is a positive effect on production and GDP in South Africa. GDP in South Africa grew with 3.3% from 1995-2011, however, objectives to decrease poverty and increase employment is dependent on a higher GDP growth rate. It can thus be said that the 1913 land claims re-opening will contribute towards poverty alleviation and employment creation.

Both pre-1913 claims scenarios that were assessed have the capability to create jobs, whether through administrative funds or compensating successful claims. Creating jobs is an important advantage, given South Africa’s high level of unemployment. The policy to open the lodging of pre-1913 claims will increase the number of jobs in the formal economy. In addition, this can provide the demand for infrastructure in South Africa, whether it is access to water or sanitation. Here, with the second scenario in which 90% of pre-1913 claims were assumed to be resolved through means of financial compensation and 10% through means of alternative compensation, it was found that the impact was significantly greater due to compensation by means of infrastructure and special recognition. However, the cost of the scenario was also significantly greater.

114 7.0 MONITORING AND EVALUATION

One of the major weaknesses of the current restitution programme has been its failure to adequately monitor and evaluate restitution projects. Though the Monitoring and Evaluation Directorate of the DLA (now the DRDLR) was expanded to include restitution in the early 2000s, the national database of information on the restitution programme lacks sufficient detail of crucial information such as disaggregated statistics regarding the nature and exact numbers of pre- and post 1998 claims; how claims were resolved and the length of time that elapsed between their submission and settlement; baseline data of successful claimants; and numbers of beneficiaries and amounts of land, financial compensation and other forms of redress provided per province. In addition, no national monitoring and evaluation (M&E) system exists for monitoring what happens after land is restituted or financial compensation is awarded to beneficiaries, nor systems to monitor and report on the provision of post settlement support.318This lack of reliable and comprehensive M&E means that the socio-economic impact of restitution, especially on the lives of beneficiaries, is largely unknown.

Thus, a crucial aspect of implementing the proposed policy changes will be to establish a M&E system that monitors the effectiveness of the reforms in achieving intended policy objectives. This shall entail developing monitoring indicators which are Specific, Measurable, Achievable, Relevant and Timebound (SMART) as well as the design of participatory mechanisms for all relevant stakeholders and their structures to provide input regarding programme implementation and impact. While the specific responsibilities for, and frequency of monitoring and reporting will be elaborated upon at a later stage, it is crucial that the M&E system evaluate and monitor the following:

 Provincial data regarding the number and specific details of claims submitted during the five year extended lodgement period (i.e. for what pieces of land and time period of stated dispossession, whether the land in question is the subject of other claims, from what category of excluded persons/ communities claims are lodged by, etc);

 Forms of restitution awarded to successful claimants and natures of such awards including amounts paid for land and numbers of hectares restituted, amounts of financial compensation awarded per beneficiary and details of other forms of redress provided;

 Reasons for and numbers of rejecetd claims and socio-economic information of unsuccessful claimants (as well as whether they are referred to/ able to participate in other land reform programmes);

 Baseline information of successful beneficiaries prior to receiving restitution so that the impact of various forms of redress on claimants livelihoods can be properly evaluated;

318Hall, 2003.Op.Cit.

115  The length of time it takes to resolve the new and existing 8 000 claims and the institutional requirements for their successful settlement (i.e. numbers of staff and departments involved, administrative costs, whether dispute management and resolution was needed, etc);

 The establishment and operations of legal entities representing groups who receive restitution, their compliance with democratic procedures of land allocation (and/ or equal distribution of other forms of redress awarded) and support provided to them by Government;

 The provision of post settlement support to those claimants who are restored land, associated challenges that arise and how these are addressed