Inefficiency of land restitution process leaves many gloomy*

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President Jacob Zuma put the spotlight on traditional leaders when he urged them to secure the services of lawyers for a reopened land restitution process. “I think those who are claiming should find good lawyers to help address this matter… you could put together your resources to look at this law, to look at the claims on behalf of your people, so that no-one is left outside,” he said in an address to the National House of Traditional Leaders.

Now, by a vote of eight provinces to one, the National Council of Provinces (NCOP) has given the Restitution of Land Rights Amendment Bill its final approval and people who lost their land to colonialism and apartheid will have another five years to lodge claims. The government estimates that there could be 379,000 new claims with the reopening of the land claims process. That is nearly six times the 63 455 claims lodged before the previous claim window closed at the end of 1998 and could cost between R129 billion and R179 billion over the next 15 years.

The bill adopted in the last minutes of the life of the current NCOP does not mention traditional leaders, but one of the eight provinces that backed it in a final vote last Thursday (March 27) made the same link as President Zuma to its significance as a potential bolster to the status and power of traditional leaders in rural areas.“The Bill should… fulfil its legal mandate to protect, support and build the capacity of traditional leaderships,” the North West legislature said in its brief voting mandate to provincial delegates in the NCOP.

In much of the platinum-rich North West, access to land ownership is related to access to the mineral wealth of the land. Currently, there are a number of court cases in the province challenging traditional leaders’ abuses around land and mineral wealth. In some of them, communities are challenging traditional leaders’ unilateral action in signing mining deals on private and communal land.

In this context, the emphasis on the role in land restitution of traditional leaders as proxy holders for the communities they lead has raised concerns for many people in the area.

In preparation for its voting mandate to its NCOP delegates, the North West provincial legislature held public hearings on the draft bill in March. These hearings saw a massive response from dispossessed communities making oral and written submissions. Some of the issues raised at these hearings include:

  • Concern that the launch of new claims would create backlogs;
  • Title deeds not being provided for claims that have been finalised;
  • Claims made before the 1998 deadline still unresolved;
  • Mining activity on land that is subject to unresolved restitution claims;
  • Reports of corruption and inefficiency in the processing of land claims; and
  • People not receiving all of the portions of land that they claimed.

The role of traditional leaders in the restitution process proved controversial with some people suggesting they should be included because of their leadership position and others preferring to lay personal claims. Explicit concern was expressed that mining companies and traditional leaders were already mining on land that is either privately or communally owned, stripping it of its underground wealth and destroying its surface value by leaving it contaminated and unusable once the minerals have been mined.

In this context, many people argued that the inefficiency of the land restitution process, which could restore their rights to the land they live on, was robbing them of current and potential livelihoods related to the mining industry. Groups who submitted claims before 1998 and those who missed this deadline worried also about the existing backlog of claims, suggesting the government was unlikely to be able to handle a new rush of claims.

About R12-billion is needed to settle the 30 000 outstanding claims from the first period, but only R8.7-billion has been allocated for land restitution over the next three years. There is nothing in the budget to cater for the scale of new claims that are expected. Many people who missed the first deadline and plan now to take advantage of the extended deadline worry that at the rate at which claims are being processed they might not be alive to see their land returned to them. These concerns were fuelled by testimonies from people who described how they have been waiting for their claims to be processed for over 15 years.

The North West’s mandate on the Restitution of Land Rights Amendment Bill was disappointing to many people because it made no mention of the complex challenges raised at the March hearings. Instead, a quarter of the mandate was devoted to the potential role of traditional leaders, without reflecting public concerns about their past actions.

This was a lost opportunity to capture some of the specific challenges that legislation around land restitution needs to address.

 

* A version of this article was first published in the Sowetan on 2 April 2014.

opinion-grey Mogale is executive director of the Land Access Movement of South Africa and Thipe is a researcher with the Rural Women’s Action Research Programme at the Centre for Law and Society at UCT.
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