The festering sore must be healed speedily, as SA cannot wait another few decades for proper redress.
The land reform challenge in SA involves many issues: land restitution, intended to redress the loss of land by black communities and individuals since 1913; land redistribution by the state to black South Africans to change the skewed pattern of land ownership; and tenure reform.
In recent months the issue of expropriation without compensation has hogged the headlines.
Ten years ago the Centre for Development and Enterprise recommended that resolution of the restitution backlog should be the first priority for successful land reform because it lay at the root of so many other challenges in virtually all regions of the country.
Sadly, this advice and the offer of a partnership on land reform from business leadership were not accepted by the government. Since then the situation has become considerably worse.
The original deadline for lodging land restitution claims was 1998. Claims could only be made for land lost after 1913 as a result of racially discriminatory laws or practices. It was envisaged that the process would primarily provide redress for the so-called “black spot” removals that took place under apartheid, and that it would be completed within five years. Once this goal was achieved land redistribution was to be the central focus of land reform.
Unfortunately, numerous deadlines have passed without this goal being achieved. The 2017 high-level panel report to Parliament chaired by former president Kgalema Motlanthe claims there are still more than 7,000 unsettled, and more than 19,000 unfinalised, “old-order” claims (pre-1999). It estimates that at the current rate of progress it will take 43 years before the backlog is cleared.
In 2014 the Zuma administration, seeking to shore up its rural support base and consolidate its alliance with traditional leaders, reopened land claims. It took this step despite many thousands of claims for restitution lodged in or before 1998 remaining unresolved.
In the 12 months after the 2014 act came into effect, 166,000 new claims were lodged — double the number in the first round. The act was challenged by communities deeply concerned that their decades-long wait for a resolution of their claims would be further drawn out.
In 2015 the Constitutional Court declared the Restitution of Land Rights Amendment Act 15 of 2014 to be invalid and stipulated that land claims lodged by 1998 be finalised before a re-enactment of the 2014 act. The court recognised the validity of the new claims, but it prohibited any further processing of them until all old-order claims were completed. Parliament was given 24 months to introduce new legislation. Failing that, the chief land claims commissioner had to apply to court for an order on the processing of claims lodged after July 1 2014.
Earlier in 2018 the Treasury’s modelling estimated that new claims already lodged would take 200 years to conclude at a cost of about R600bn. If the process of lodging new claims is reopened, the high-level panel estimates a total of 397,000 new claims will be made and could take 709 years to finalise. Even if these alarming figures are somewhat exaggerated, it will certainly take many decades and vast amounts of money for land restitution to be complete.
The claims process was reopened in 2014 without a strategy to overcome the obstacles that had impeded the rate of progress until then.
In 1999, in an attempt to speed up restitution, an administrative route was established that bypassed the Land Claims Court. This decision had unforeseen consequences: quality of work deteriorated due to a lack of effective oversight; thousands of claims were gazetted and settled on the basis of inadequate research; in defiance of the law, claims were “bunched” together and artificial communal property associations created that often became dysfunctional.
Large numbers of unresolved, overlapping and directly competing claims have contributed to mounting ethnic and “tribal” tensions, as well as xenophobic sentiments. As a result, vast areas of the countryside resemble tinder boxes at risk of igniting with the next spark.
Unresolved claims that have dragged on for decades discourage farmers from investing in land and pursuing new economic opportunities.
Instead, many adopt a survivalist strategy, extracting what they can from the land with minimum inputs while laying off all but the most essential workers. The result has been escalating levels of unemployment in rural areas and low levels of productivity on many farms. Many of the most bitterly contested and seemingly insoluble claims are in potentially highly productive regions.
Case studies suggest that little if any economic benefit has accrued to the majority of recipients of restituted land. Workers and tenants who reside on restituted land have suffered losses of jobs and security. In some instances, black beneficiaries of land reform have discovered that land they have been given is also under claim. Some have abandoned farming as a result. The existence of vast areas of land embroiled in legal disputes is an obstacle to securing farms for redistribution.
The country faces some critical choices. The looming Constitutional Court process, which must take place in July, will help chart a route forward in relation to new-order claims.
However, this will not change the fact that 19,000 old-order claims remain, which will take decades to clear. Nor will it wish away the 166,000 new-order claims that could jeopardise the security and viability of rural producers for decades. Many new claims overlap with each other as some are on land that is already under claim. The morass of unresolved, overlapping and conflicting claims will worsen.
Some hold the view that expropriation without compensation will provide a panacea for these problems. They are profoundly wrong. Aside from its deleterious effect on the wider economy, it will not solve the lack of administrative capacity, nor will it clear the multitude of conflicting and overlapping claims that remain unresolved.
An urgent discussion is needed on how to treat the new claims and how to provide adequate levels of funding, capacity building and legal support to finalise old claims.
The state cannot achieve this alone and needs a determined partnership with private and civil society actors. This festering sore needs to be healed. SA must deal with the realities of land redress, but it cannot take the rest of this century.
A process to drive a fair, speedy approach needs to be developed and progress on restitution claims reported to Parliament every six months. This could involve the establishment of a dedicated unit to make it happen, so that by 2030 SA can look back on a job well done.
- Bernstein is head of the Centre for Development and Enterprise. This article draws on a research paper written for the centre by Prof Peter Delius.