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Publication

MAIL & GUARDIAN

Page

29

Date

Fri 04 May 2018

AVE (ZAR)

58578.24

Expropriatinglandwon'tridusofredtapeCurrent land reformpolicy issoboggeddownbybureaucracythat there'llbenoquick-fix solutionLANDBulelwa Mabasa

he need for land expropri-ation must be understoodas being foremost aboutsocial justice and a consti-tutional imperative. It is

about anticipating the reversal of adeliberate, systematic and legislatederadication of a nation's sense ofdignity, belonging, culture and his-tory. It is a wound that has festeredlong enough.The irony is that current policy

(with or without the proposedamendment of section 25 of theConstitution) has not sought as itsobjective a wholesale project thatwould enable widespread redressaimed at benefiting the black major-ity as owners of land.Instead, land policy is premised

on only three pillars, which areoften incorrectly used interchange-ably when they mean different thingswith distinct objectives and focuses.They are restitution, land redistribu-tion and tenure reform.

RestitutionRestitution is governed by theRestitution of Land Rights Act of1994, as amended. This piece oflegislation is useful only for thosefamilies, individuals or communitieswho are able to show that they hadinhabited or occupied specific landthat they were dispossessed of afterJune19 1913 as a result of raciallybased laws, for which they were notpaid compensation.The initial deadline for lodging

land claims was December 31 1998.The 2014 Restitution of Land RightsAmendment Act, however, extendedthe deadline for submitting claimsto June 29 2019. Although claimantsmay still lodge restitution claims,

the Constitutional Court ruled in its"land access" judgment that therehad not been adequate public con-sultation before the amendment Actwas promulgated. The effect is thatwhereas new land claims may stillbe lodged, they may not be inves-tigated until the Commission onRestitution of Land Rights completesand settles all claims lodged prior toDecember 311998.The process of lodging a land claim

may sound easy enough but there areinherent systemic hurdles that makeit difficult for claimants to achieverestitution. Here are some of thereasons:& Most families have to rely on oral

history and the existence of elderswith knowledge of the description,location and extent of the land thattheir ancestors previously occupied.The inherent difficulty is the bur-den of proof associated with prov-ing these claims, although it is theLand Claims Commission - a statu-tory body, founded in terms of theRestitution Act - that must investi-gate, research and settle claims andmake recommendations to the min-ister of rural settlements and landreform.© The commission's work is criti-

cal in helping to determine whetheror not a claim is ultimately recom-mended as being valid. But thedepartment's budget allocation hasbeen on a steady decline, enjoying awoeful less than 1% of the nationalbudget. The budget allocation for thecommission under the Jacob Zumaadministration dwindled from aboutR1.85-billion to R930-million in the2016-2017 financial year.& Even in instances where a land-

owner may recognise the validity ofa claim, he or she may challenge theamount of compensation offered bythe state to purchase the land so that

Tough call: The pervasive nature of corruption has marred hopes of ensuring that large numbers of emergingfarmers enter into and thrive in the agricultural and food production industries. Photo: Paul Botes

it can be restored to the claimants.In the case of a landowner who isunwilling to sell his or her property,protracted, lengthy and time-con-suming litigation is inevitable.& Land claimants may opt for

the actual land to be restored or forfinancial compensation. With mostland claims being concentrated inrural areas, and with rapid urbanmigration and demand for jobs inthe cities, it is hardly surprising thatfinancial compensation would be aviable option for most claimants.€ Only the Land Claims Court is

lawfully able to sanction the award-ing of land, with the approval of theminister and the commission. Thistypically leads to laborious, time-consuming, expensive and extremelylengthy litigation. Limited access tolegal representation is a factor thathas automatically kept poorer com-munities from claiming and beingawarded land.

Land redistributionLand redistribution as a second pillarof land policy has, as its bias, a strongemphasis on agricultural land.In 1998, the Thabo Mbeki admin-

istration set a target of 30% of landbeing transferred to emerging black

The successor failure ofachieving land reform isnot entirely dependenton whether or notcompensation is paid

farmers. Though targets are neces-sary, it is even more important todesign programmes and have spe-cialised agricultural universities thatare specifically geared towards stim-ulating interest in transforming theagricultural economy and encour-aging commercial farming from thegrassroots level.But the redistribution policy, much

like restitution, does not have as itsend goal ensuring a sizeable per-centage of black participation inthe ownership of food production.Haphazard and inconsistent imple-mentation of different policies overthe past two decades has not yieldedthe desired results.The pervasive nature of corruption

and its effects in almost all spheres ofgovernment and the private sectorhave similarly marred any real hopesof ensuring that large numbers ofemerging farmers enter into andthrive in the agricultural and foodproduction industries.

Tenure reformAlthough the current policy andlegislation on tenure reform seek toprotect those working and living onfarms from unwarranted and unlaw-ful evictions and to help labour ten-ants to acquire land rights, we haveover the years witnessed many casesof unlawful evictions.Perhaps most tragic in the sphere

of tenure reform has been the state'sfailure to create mechanisms and aprocess within which labour tenantscan lodge claims.For instance, it took 20 years and

the applicants in the Mwelase case

to challenge the state to appoint aspecial master to receive and pro-cesslabour tenants' claims over land,as envisaged in the Land Reform(Labour Tenants) Act of 1996. ThisAct was enacted according to section25(6) of the Constitution. Curiously,when the case was heard in 2016, 20years after the promulgation of theAct, the state had still failed to takeany steps to elevate the rights of mil-lions of labour tenants.

Where to from here?The success or failure of achievingland reform is not entirely depend-ent on whether or not compensationis paid for the expropriation of landby the state for land reform purposes.Even if the Constitution were to

be amended to make it possible forzero compensation to be paid forthe expropriation of land, the insti-tutional, political, bureaucratic andpractical challenges remain firmlywith us.We have seen that even in

instances where the state has paidlandowners compensation, many ofthem remain on the purchased landand continue with business opera-tions because of the cumbersomeand bureaucratic nature of the insti-tutions' workings.Equally, in the absence of legisla-

tion making it compulsory for thestate to provide meaningful post-set-tlement support, land reform goalswill continue to elude us.

Bulelwa Mabasa is a directorand land claims specialistat Werksmans Attorneys