How the NCOP passed the Restitution Bill

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On March 25th the National Council of Provinces (NCOP) voted for the Restitution of Land Rights Amendment Bill (Restitution Bill) to be passed. When the Bill becomes an Act, it will reopen the period for people to lodge restitution claims until 2019.

The bill was passed after five out of nine provinces voted for it at a final mandate meeting of the NCOP. A few months ago it was decided the Bill would not be processed only by the National Assembly, but also by the second house of Parliament, the NCOP.  

The final mandates of the Northern Cape, North West, Limpopo, Mpumalanga and the Eastern Cape accepted the bill unconditionally, while the Western Cape voted against the bill. The Free State and Gauteng’s mandates were not presented at the meeting. KwaZulu-Natal (KZN) also failed to present its final mandate as it was still deliberating.

This was after all amendments proposed by KZN and the Western Cape were rejected by the Select Committee on the advice of the Department of Rural Development and Land Reform (DRDLR) at an earlier meeting of the committee. The proposed amendments included prioritising and protecting existing outstanding claims, limiting the re-opened period for lodging claims to 6 months (instead of 5 years) and making it a condition that sufficient budget to settle all claims arising from the reopening of the lodgement process must be guaranteed before reopening.

If the NCOP had accepted any amendments it would have resulted in the bill being sent back to the National Assembly, which had already closed for the elections, thereby preventing the passing of the bill before elections.

The DRDLR responded to the proposals for prioritisation of claims lodged prior to 1998 (of which there are about 30,000) by referring to clause 6 (1)(g) in the Restitution Bill.  This recently inserted clause allows for the prioritisation of prior claims at the discretion of the Chief Land Claims Commissioner. It provides no legal protection to existing claims, which stakeholders such as the Legal Resource Centre motivated. As a result the clause will not protect claims from being harmed by resource constraints resulting from reopening the lodgment period.

Resources will be a major stumbling block for settling restitution claims. The budget unveiled by Treasury shows the amount in the budget – 8.7 billion – will not be enough to settle claims lodged before 1998 let alone the new claims that will be elicited by reopening restitution (estimated at 379,000).

In light of budgetary restrictions, the government will need to decide which claims to settle first. The absence of ring fencing opens up a space for claims to be settled on a politically motivated basis and for traditional leaders to lodge claims that counter pre-1998 ones. The North West mandate points to this possibility quite plainly. This mandate interprets the bill to be about reopening the lodgement process to give traditional leaders the opportunity to lodge claims and reverse land awards to Trusts (that hold land awarded to claimants who lodged by the1998 deadline).  The threat posed by claims by traditional leaders is particularly real in a context where the DRDLR has delayed transferring restitution and land reform land to some registered CPAs in the Eastern Cape, North West and Mpumalanga.

The delays in transfer have had serious material consequences for claimants.  Not only are they deprived of the land to which they are legally entitled, but they also forego the accompanying development grants that would have enabled them to move and start rebuilding their lives. People have expressed their frustrations and despair resulting from these delays, opaque administrative processes, corrupt officials and the lack of post-settlement support at the hearings held by the National Assembly.

To prevent similar expressions in the NCOP hearings, the report attached to Limpopo’s mandate shows that the Limpopo Legislature and the DRDLR colluded to keep “complaints” out the hearing. This was done by setting up a table outside the hearing for “complains [sic] and queries regarding the old land claims”. This reveals the DRDLR’s disingenuous attempt to disconnect the Restitution Bill from the current challenges experienced by many claimants, even though the proposed amendments will have a direct effect on their claims when this bill becomes law.

In the first round of hearings held by the National Assembly, to placate claimants the deputy land claims commissioner, Thami Mdontswa, went as far as making promises to claimants to expedite their claims and travelled with them to see the land they had claimed. However, the chairperson of the Mawubuye Umhlaba Wethu  CPA in Mpumalanga – one of the claimant groups visited by the deputy commissioner – informed us that he has been trying in vain since December last year to get a response from the deputy commissioner. There were similar reports from groups in the Northern Cape.

The dangers of reopening the restitution process are immediate for people living in rural areas, in particular claimant communities. Large scale land transfers to traditional leaders will be difficult to reverse, entrenching their power at the expense of those who were dispossessed as a result of racial discrimination. In the meanwhile, the delays in restoring land (that will be exacerbated by the reopening) continue to have adverse implications for citizens in rural areas. Attempts to bring these costly implications to the attention of the state are suppressed and excluded from participatory process for citizens in the fear that they will derail the process. Yet this process is about a bill that is, without any doubt, connected to the daily challenges they face due to insecure tenure and landlessness.

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