Restitution of Land Rights Amendment Act

The Restitution of Land Rights Act (No. 22 of 1994) was passed to great applause in 1994. Its goal was to offer a solution to people who had lost their land as a result of racially discriminatory practices such as forced removals. This included people who were dumped in Bantustans and put under traditional leaders.

The Restitution of Land Rights Amendment Act was passed by the National Assembly and National Council of Provinces. It was signed by President Zuma on 30, June 2014. The claims lodgement period reopened on 1 July, 2014. However, concerns about the Act remain.

It is crucial that we roll back the legacy of land dispossession resulting from colonialism and apartheid. But does the new Restitution of Land Rights Amendment Act (hereafter the Act) provide hope for solving these problems?

The Act comes at a time when land reform and land distribution are failing. Meanwhile, millions of South Africans still lack “security of land tenure”, especially those living in rural areas and in the former Bantustans. While some protections have been put in place, these (with the exception of the Interim Protection of Informal Land Rights Act [IPILRA]) do not cover people living in communal areas. Furthermore, there are beneficiaries of the previous Restitution of Land Rights Act who have still not received their land titles as a result of opposition by traditional leaders. The Act must also be read in the context of other laws and policies, especially the Communal Land Tenure Policy and the Recapitalisation and Development Policy. In this current context, the Act is unlikely to meet the needs of rural people, and could well undermine their land rights as protected in Section 25(6) of the Constitution.

The New Act

Key Dates

What’s in the Act?

• Reopening the lodgement period

Re-opens the lodgement period for restitution claims to allow people to put in claims until June 30, 2019

• Betterment

Explicitly allows people dispossessed under Betterment to put in restitution claims.

• Prioritisation but not ring fencing of prior claims

Various groups and organisations made submissions to Parliament about the problems that the re-opening of claims is likely to cause for the many existing outstanding claims that have still not been processed 20 years after claims were first allowed. They argued that the Bill should be amended to ‘ring fence’ and protect existing claims from competition by new claims that could delay them for many years. The proposal for ring fencing existing claims was not adopted. Instead the law allows the Commission to prioritise claims lodged prior to the 1998 deadline, which have not yet been completely resolved, but it does not guarantee this will be done. This is stated in Section 6(1)(g):

“(1) The Commission shall, at a meeting or through the Chief Land Claims Commissioner, a regional land claims commissioner or a person designated by any such commissioner –
(g) ensure that priority is given to claims lodged not later than 31 December 1998 and which were not finalised at the date of the commencement of the Restitution of Land Rights Amendment Act, 2014.”

According to Commission on Restitution of Land Rights, 20 592 claims (or 25.87 per cent of the total land claims registered with the Department) have not yet been finalised or the settlement agreement has not been fully implemented. Around 50% of the land already acquired for restitution has still not been transferred to the beneficiaries. Several claimants have been waiting for over 10 years for the implementation of their settlement agreement.

The backlog of unresolved restitution claims raises concerns that claims filed in the new restitution period might further undermine the fulfilment of existing claims. Worse than that, the lodgement of new counter-claims may be used to justify the Commission and Department’s refusal to honour transfer agreements and restitution awards that they would otherwise be legally bound to honour.

In light of these issues, submissions on the Restitution Act asked that the Act ring fence earlier claims by asking for court permission to handle counterclaims to the same land at the same time as claims lodged by the 1998 deadline. But the Act stops short of ring fencing. It only prioritises claims lodged before 1998. The Act says the Commission should consider the prioritisation of claims lodged by the 1998 deadline and it cannot ignore these claims or leave them to last because they are complex. BUT it does not say how the Commission should deal with prioritising claims lodged by the 1998 deadline. With the current words in the Act, if new claims are lodged on the same land as a claim submitted by 31 December 1998, the Commission can deal with the new and old claims at the same time. Therefore the Commission can decide that until they have investigated the new claim, the old claim cannot be prioritised. Therefore, the prioritisation provision in the Act does not protect prior claimants enough.

In order to hold the Commission to its commitment to prioritise claims lodged prior to 1998, you should monitor the claims that are being settled to see if they are prior claims. Also, groups who are still waiting for their claims to be resolved should approach the Commission with a short written motivation on the need to prioritise its claim and ask that something be done about it within a month.

• 1913 cut-off date remains

Despite President Zuma saying that the Restitution Act would be amended to allow people dispossessed before 1913 to lodge a claim, these amendments never took place. The Act still states that only people who lost land as a result of racially discriminatory practices after 1913 and before 1994 can lodge a claim. The next section discusses the 1913 cut-off date.

What does the 1913 cut-off date mean?

Many traditional leaders especially in KwaZulu-Natal have made it clear that they intend to lodge land claims. King Goodwill Zwelithini, together with the Ingonyama Trust, intends to lodge a claim for possibly the entire province of KwaZulu-Natal – including the Durban Metro as well as sections of the Eastern Cape, Mpumalanga and the Free State. The aim of the proposed claim on behalf of the king is to claim land taken from the Zulu kingdom during the colonial period — from 1838 onwards — first by the Voortrekkers and then the British. Indeed President Jacob Zuma has been encouraging traditional leaders to make such land claims. In his speech to the National House of Traditional Leaders earlier in 2014, he told traditional leaders to get “good lawyers” so that they could put in land claims.

But according to the Restitution Act only people who were dispossessed of land after 1913 qualify for restitution. If the King were to lodge a claim for land lost in 1838 that claim would not be valid. The same applies to any other traditional leaders who try to claim land lost before 1913. Section 2 of the Restitution Act confirms that only people who meet the following requirements can lodge land claims:

• A person, community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices;
• A direct descendant of a person who was dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices.
• An administrator of the estate of a person who was dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices.
• A person who was dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices but was compensated for the loss of that right in a manner which is just and equitable in line with section 25(3) of the Constitution.

Claims by traditional leaders do not take into account the complex history of KwaZulu-Natal, in which there were many different groups who have overlapping claims to land which various groups occupied at different points in time. These claims are invalid in terms of the Amendment of Land Restitution Act of 2014.

Impact of the Heritage Policy that accompanies the Restitution Act

The Minister of Rural Development and Land Reform, Gugile Nkwinti, has said (07/2014) that the government is going to create a policy and also possibly a law that recognises the claims to land of people dispossessed prior to 1913. This law would be separate from the Restitution Act. As things stand, this is not a law yet but a policy that is under discussion. Government officials refer to this policy as “exceptions to the 1913 cut-off date” or as the “heritage” policy. While this policy is spoken about in reference to the Khoi San, it includes other groups too.

• What will be the focus of the policy?

According to a draft policy document by the government, it will focus on:
1. Land redistribution rather than restitution to people dispossessed pre-1913;
2. Allocating specific pieces of land as heritage sites and historical landmarks (it’s not clear if ownership, lease or use rights will be allocated).

It is unclear from the policy who can claim for this special form of redistribution, and to be allocated heritage sites and historical landmarks. The policy does not say if individuals or groups can claim. It does not define the groups that can claim but implies it will include:

“The Khoi, the San, the Nguni (Zulu and Xhosa speaking communities), the Sotho-Tswana, Sotho, Tsonga and Venda speakers”

• What qualifies as a heritage site or historical landmark?

Deputy Land Claims Commissioner, Thami Mdontswa, defined these terms in April 2014 as follows:

Heritage sites: places, buildings, structures and equipment of cultural significance; places to which oral traditions are attached or which are associated with living heritage; historical settlements and townscapes; landscapes and natural features of cultural significance; geological sites of scientific or cultural importance; topographical, archaeological and paleontological sites; sites that are important in terms of Indigenous Knowledge Systems

Historical landmarks: Sites of significance relating to the history of land dispossession in South Africa; Graves and burial grounds including ancestral graves, royal graves and graves of traditional leaders, graves of victims of conflict, graves of important individuals, historical graves and cemeteries; landmarks that are important to the community or the pattern of South Africa’s history; where uncommon, rare or endangered aspects of South Africa’s natural or cultural heritage are located.

Monitoring the claims process

You may have already lodged a restitution claim prior to the end of 1998. If so, this check list is still important as it tells you what the Restitution Commission should have done/do to settle your claim. Has the Commission fulfilled all these steps?

1. Publish a notice of the claim in the Gazette.
2. Notify the owner of land claimed and any other interested person who might have interest in the land (this is often called a ‘stakeholders’ meeting)
3. Come to visit your land and investigate the claim
4. Send you a letter/email to confirm that your claim is valid
5. Enter into negotiations with land owners and claimants
6. If you are a group of claimants rather than an individual, hold a workshop with you to help you set up a CPA or Trust
7. Register your CPA or Trust once your group has submitted the correct documentation
8. Sign all necessary agreements
9. Hand over the land you were due to have restored to you, alternative land or monetary compensation
10. Tell you about relevant development grants you can apply for

If someone else lodges a claim on the same piece of land as your claim, the Commission must notify you. If you hear that someone has put in a claim on land you claimed, alert us.

Also note: Once a claim has been gazetted no one is allowed to

• Obstruct the passage of the claim;
• Sell, exchange or donate, subdivide, rezone or develop the claimed land without giving the Commission one month’s written notice of his/her intention to do so;
• Remove or evict a claimant who occupied the land in question at the date of commencement of the Restitution Act without the written authority of the Chief Land Claims Commissioner;
• Remove, destroy, damage or make any improvements upon the land without the written authority of the Chief Land Claims Commissioner;
• Enter upon and occupy the land under claim without the permission of the owner or lawful occupier.