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Land Reform: Issues and Challenges

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Land Reform: Issues and Challenges Land reform: Issues and challenges A comparative overview of experiences in Zimbabwe, Namibia, South Africa and Australia BERTUS DE VILLIERS KONRAD ADENAUER FOUNDATION • OCCASIONAL PAPERS • JOHANNESBURG • APRIL 2003 © KAS, 2003 All rights reserved While copyright in this publication as a whole is vested in the Konrad-Adenauer- Stiftung, copyright in the text rests with the individual authors, and no paper may be reproduced in whole or part without the express permission, in writing, of both authors and the publisher. It should be noted that any opinions expressed are the responsibility of the individual authors and that the Konrad-Adenauer-Stiftung does not necessarily subscribe to the opinions of contributors. ISBN: 0-620-30369-7 Published by: Konrad-Adenauer-Stiftung 60 Hume Road Dunkeld 2195 Johannesburg Republic of South Africa PO Box 1383 Houghton 2041 Johannesburg Republic of South Africa Telephone: (+27 +11) 214-2900 Telefax: (+27 +11) 214-2913/4 E-mail: [email protected] www.kas.org.za Editing, DTP and production: Tyrus Text and Design Reproduction: Rapid Repro Printing: Stups Printing Table of contents The author iv Acknowledgements iv Introduction 1 CHAPTER 1 5 Zimbabwe: From land reform to land occupation CHAPTER 2 29 Namibia: Slow but enough? CHAPTER 3 45 South Africa: The challenge for ‘real’ transformation CHAPTER 4 81 Managing land claims in South Africa: Improving the process CHAPTER 5 89 Australia: Native title—a quiver of disappointments CHAPTER 6 131 South African–Australian comparison CHAPTER 7 141 Final comments and observations ANNEXURE I 151 Examples of major land reform grants and programmes in South Africa ANNEXURE II 161 Summary of the main outcomes of restitution claims settled up to 31 December 2002 Occasional Paper Series 165 Seminar Reports 170 The author Dr Bertus de Villiers (LL.B, LL.D) is a widely recognised expert in constitutional law. His background includes comparative research in constitutional law, extensive publications (more than 70 articles and 5 books) and practical experience that covers a wide range of constitutional topics such as the protection of human rights, land reform, federalism, intergovernmental relations and electoral systems. He is currently manager: Legal and Native Title, Goldfields Land and Sea Council, Kalgoorlie, Australia, as well as solicitor at law (Western Australia) and advocate of the High Court (South Africa). He is therefore ideally placed to engage the topic of land reform due to his extensive practical experience in the theory and application of land claims and the management thereof in South Africa and Australia. He was previously involved as lead negotiator and drafter for South African National Parks in the settlement of the Makuleke claim in the Kruger National Park and is currently involved in assisting various Aboriginal groups in Australia in the preparation and management of their native title claims. Acknowledgements The author would like to express his appreciation to Konrad Adenauer Foundation (South Africa), Goldfields Land and Sea Council (Australia) and ATSIC (Australia) for their respective contributions towards this research and the publication thereof. The views and opinions expressed are those of the author and do not necessarily reflect the views and opinions of his current or previous employers, the sponsors of the research or individuals with whom interviews were conducted. The research was concluded in December 2002 and therefore does not include references to or reflect on any developments that may occur after that date. Introduction Land reform is probably one of the most difficult domestic policy issues to be dealt with by Zimbabwe, Namibia, South Africa and Australia. In each of these countries the process of land reform is incomplete. Zimbabwe, on one side of the spectrum, is facing a crisis in democratisation due to its radical approach to land reform. On the other side of the spectrum is Australia which, as a stable and respected democracy, has difficulty explaining why the land needs of such a small minority of its people cannot be dealt with more effectively. In between there is Namibia, where the winds of change and the pressure to ‘radicalise’ land reform are increasing. And then there is South Africa where systems and policies to deal with land reform are probably the most advanced from a legal perspective, but where the resources, patience and other practical issues to execute reform effectively are becoming serious hurdles in implementing policies. The stability of Australia is not threatened by the lack of effective land reform, but its credibility as a leading democracy is eroded by the apparent inability or unwillingness to deal with the land aspirations of Aboriginal people. In the three African studies, however, the very democratic basis that took so long to be established could be threatened if land reform fails. Land reform is generally accepted to mean restitution,1 redistribution2 and/or confirmation of rights in land to the benefit of the poor or dispossessed.3 Land reform is therefore more than a mere land claim–driven process where ancestral land is claimed back by people who were dispossessed. It includes a land claim process, but is widened to refer also to the acquisition of land for distribution to the landless, and the changing and securing tenure to ensure protection for 2 LAND REFORM: ISSUES AND CHALLENGES those who occupy it. In its broadest sense, land reform therefore entails a wide spectrum of options such as land claims, acquisition and distribution of land, access to land for certain purposes, land use planning, infrastructure development, farming and commercial support, resettlement programmes, security of tenure and training. (Refer to Annexure 1 for a brief overview of the main land reform programmes under way in South Africa.) The focus of this publication is primarily on land restitution whereby rights to ancestral land are restored (be it by a claim-driven process or a land acquisition process) as an important element of land reform, although some comments will be made to land reform in general. It therefore falls beyond the scope of this study to compare and analyse different land reform policies in the broadest sense. The emphasis is rather on the legal arrangements used in four countries—Zimbabwe, Namibia, South Africa and Australia—to effect land restitution (return of ancestral land), the institutions responsible for overseeing the process, and progress made with the restitution process. It is not intended to provide a detailed overview of historical land practices and discriminatory policies in each of the countries. Suffice to say that in all four countries the themes of inequality, colonial dominance and discrimination have led to the indigenous inhabitants being forced off their land for the benefit of white settlers. While the scale of dispossession in Africa may be more visible than in Australia, the fact is that Aboriginal people’s land rights aspirations in Australia remain one of the most neglected topics in public policy making. The recognition of native title in Australia was forced upon the country by the High Court and as yet there is no consistent nationwide land reform policy to assist Aboriginal people to return to, live on and manage their ancestral lands. Native title, at its very core, is a weak right that does not fully address the land needs of Aboriginal people. Several reasons can be advanced for choosing these four countries as case studies. Extensive research has been done on each of the countries but little comparisons have been made between their respective legal arrangements and experiences. All four are what could be termed non-treaty dispensations, which contrast with countries such as the United States (US), Canada and New Zealand where some form of historic treaty was entered into between the colonial power and local indigenous people. All four have embarked upon land reform fairly recently. In the case of the three countries in Southern Africa, the land reform process was activated by the launch of democratisation with newly elected regimes taking office, while in Australia the High Court in 1992 virtually forced INTRODUCTION 3 the Commonwealth Parliament to deal with the topic of native title. Although ‘native title’ has not been recognised in any of the Southern African case studies, it is quite possible that in time to come the doctrine of native title may reverberate in Southern Africa and even in other parts of Africa which share a common law tradition. All four countries are engaged—Zimbabwe until recently—in what can be called market-based land reform. This essentially entails the acquisition of land by the government on the basis of the willing buyer–willing seller principle. A key element that impacts upon the way in which land restoration is approached is whether land reform is market-driven, non-market driven or a combination of the two. By market-driven reform is meant where new tenants or the state have to acquire land on a willing buyer–willing seller basis. Whether the state or new tenant acquires the land, experience shows that the process can be very costly and is usually driven by land that becomes available on the market rather than acquiring land in a cohesive manner in pursuance of a land acquisition plan. Non-market driven reform is where the state opts for a policy of expropriation whereby land is taken (with or without adequate compensation) for redistribution. It could also include packages to assist new tenants to find their feet, establish their businesses and support them for a period of time. Non- market driven reform has the benefit that government can decide where and when it wants to expropriate land, but if abused, as in Zimbabwe, it has obvious implications for democratic standards and economic development and stability. A successful land reform model probably requires a combination of market and non-market reform.
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