AMONG the slew of “priority” laws hastily adopted at the final sitting of the National Council of Provinces (NCOP) was the Restitution of Land Rights Amendment Bill. This is an exact replay of what happened in 2004, when the contentious Communal Land Rights Act was unceremoniously rammed through Parliament just as it closed for a national election.
The legislative process for the Communal Land Rights Act was so obviously flawed that it was struck down in its entirety by the Constitutional Court in 2010. The Department of Rural Development and Land Reform has tried to avoid the same thing happening to the restitution bill by paying lip service to consultation. But the unduly rushed legislative process may still fall short of the standards required by the constitution. There was insufficient time for the NCOP to take the outcome of the public hearings it did host into account in its consideration of a new five-year window for restitution claims.
There was also huge pressure on the NCOP to avoid amendments, as these would have delayed the bill until after next month’s general elections.
In another attempt to avoid a legal challenge, the bill does not even mention its main beneficiaries — the traditional leaders, who are being encouraged to claim vast swathes of land on behalf of their communities.
When he opened the House of Traditional Leaders on February 27, President Jacob Zuma advised traditional leaders to “put together their resources” to file restitution claims. Less than a week later, King Goodwill Zwelithini announced that he and the amakhosi of KwaZulu-Natal had agreed to submit one consolidated claim for all the land taken from the Zulu nation, saying they would distribute the land “fairly” after that.
The oblique wording of the bill now awaiting Zuma’s signature may make a direct challenge difficult, but it will be a very different story when it comes to actual implementation. Large-scale transfers to traditional leaders would undermine the tenure security guaranteed under section 25(6) of the constitution for the most vulnerable, especially rural women. Such transfers almost certainly would face challenge, case by case, if traditional leaders succeed in their claims.
The restitution bill, like the Communal Land Rights Act 10 years ago, holds out the pre-election promise of land ownership to traditional leaders to encourage them to “deliver the rural vote”.
Whether they can deliver that vote, however, has been called into question by the majority of provinces rejecting the closely associated Traditional Courts Bill, which also proposed new unaccountable powers for traditional leaders.
Rural people made their objections to new laws that shore up Bantustan power dynamics very clear during provincial public hearings about the Traditional Courts Bill. The strategy of appeasing traditional leaders before elections could seriously backfire in relation to rural voters’ confidence in the African National Congress’s commitment to equal citizenship and land reform.
The stated purpose of the restitution bill is to reopen the period for lodging claims. It promises that many more South Africans will be able to benefit from land restitution awards than the 86,000 who, according to government figures, had lodged claims by the original cut-off date of 1998.
The available evidence is that the government has neither the funds nor the capacity to implement the promise. As many rural people pointed out in public hearings, the likely consequence is that new claims will flood, and finally capsize, the already struggling restitution programme.
Finance Minister Pravin Gordhan’s February budget made it clear that large-scale land transfers and compensation would be impossible. With R22bn spent on restitution so far, the Department of Rural Development estimates it will cost a further R124bn to R179bn to settle new claims elicited by the reopening. Yet the budget allocated only R8.7bn to land restitution for the three years to 2017 — too little even for the estimated 30,000 existing unresolved claims.
The reality is that this bill is not just an empty pre-election promise. It is an attempt to divert the benefits of the restitution programme away from those who were forcibly removed in the past, to traditional leaders claiming to act on their behalf.
The Congress of Traditional Leaders of South Africa and the House of Traditional Leaders insist that ownership rights vesting in ordinary people undermine the power and authority of their members.
The department has already refused to transfer restitution land to some communal property associations for more than 10 years, even when signed settlement agreements and court orders were in place.
Restitution awards are being held back so that the land can be transferred to traditional institutions under proposed legislation that is still in the pipeline.
The government is, however, structurally vulnerable to legal challenge for its refusal to transfer land to qualifying communal property associations. The right to restitution is clearly set out in the constitution and the Restitution of Land Rights Act of 1994. The Communal Property Associations Act of 1996 provides explicitly for restitution land to go directly to these elected associations. The government cannot get away with denying these clearly articulated rights indefinitely. In that context, the combination of large numbers of new claims and a minute budget creates ideal cover for prioritising the claims of the politically well-connected, at the expense of those they consider a threat.
While the text of the restitution bill says nothing about traditional leaders, there can be no doubt about the terms on which the bill has been sold politically. The North West legislature’s negotiating mandate to its delegates in the NCOP, for example, supports the bill, as it protects, supports and builds “the capacity of traditional leaders”.
Zuma has also made clear his intention to revive the Communal Land Rights Act, which would further build their powers. He said in his 20-year review last month the act “stagnated following constitutional challenges” but is again in a process of “development”.
The act provided for traditional councils to represent communities “as owners of communal land”, giving them the power to allocate and administer the land rights of the 17-million people living within the boundaries of the former Bantustans. This elevation of the power of traditional leaders at the expense of land rights vesting in ordinary people is consistent with recent policies that confine ownership to traditional institutions and condemn ordinary people to “institutional use rights”. The head of the Eastern Cape House of Traditional Leaders, Zolile Burns-Ncamashe, last week described those who opposed the Communal Land Rights Act as “agents of imperial colonialism masquerading as democrats”.
Restitution was intended to undo the boundaries of the former Bantustans, but the government seems to have changed tack since 1994. New laws re-entrench those boundaries and this bill will be used to bolster the power of traditional leaders at the expense of those who were actually removed. This is exactly the opposite of what was envisaged when the Restitution of Land Rights Act was passed to a standing ovation in Parliament in 1994.
* This article was first published in Business Day on 10 April 2014.