New land restitution process set to be messy*

The Department of Rural Development and Land Reform has made much ado about the reopening of the land claims process under the newly amended Restitution Act.

At face value, the new process gives long overdue political recognition to dispossessed communities hamstrung by the initial closing of the lodgement process in 1998. But land reform advocates have been sceptical and have questioned whether the new claims window is for the benefit of communities — or for traditional leaders such as Zulu King Goodwill Zwelithini, who is reportedly working on a mega-claim on behalf of “the Zulu nation”. The king is said to be claiming land lost not only in KwaZulu-Natal but also parts of neighbouring provinces.

Herein lies the trouble with the new process and the scramble it seems to have spurred among traditional leaders who are publicly proclaiming their rightful custodianship over vast areas of SA. Although restitution claims by traditional authorities have been recognised since 1994, they have also been highly contested and politically fraught. The conflicts and counterclaims for the platinum-rich land restored to Bafokeng by other traditional authorities and communities are evidence of this.

The problem is that land claims by traditional leaders must necessarily demonstrate that the claiming royal house exercised legitimate authority over the area and its population at the time of dispossession. Historically, this is difficult to prove given the high degree of localised autonomy of precolonial societies, where the recognition of a central authority was a much more flexible arrangement than Europeans assumed when they arrived.

In the context of present land reform, disputes over historical authority raise politically thorny questions over how to determine “original and rightful occupancy”. Invariably “culture”, “tradition” and “custom” are invoked to explain which clan or royal house has legitimate historical authority. Traditional leaders have already been through this process, when the Nhlapho Commission was tasked with verifying claims to traditional leadership in 2004-10.

Some rural rights advocates view the new act as part of a rising neo-traditionalist pact between the government and traditional leaders, who view themselves as legitimate customary authorities over rural residents in particular.

Land rights researchers Nomboniso Gasa and Nolundi Luwaya suspect that the new act was passed purely to placate angry traditional leaders after the failure to pass the Traditional Courts Bill. They argue that the amended act offers virtually nothing new to communities either by way of budget or administrative mechanisms to expedite claims.

While the new restitution act does not explicitly give power to traditional leaders, a series of actions and pronouncements by state officials hint that their sympathies lie with the kings and chiefs. President Jacob Zuma’s direct encouragement to the House of Traditional Leaders that it procures legal assistance to claim “on behalf of their people” only make suspicions that traditional leaders are the prime targets more compelling. Soothing the wounded egos of traditional leaders may buy some short-term political leverage, but the actual process of verifying and adjudicating competing land claims by the various royal houses may blow up in the African National Congress’s face. Or not?

Ultimately, it is the courts that will decide winners and losers. As royal houses make claims for overlapping areas, the executive and the MPs who passed the act will be under no obligation to resolve emerging conflicts, while the royal houses may find themselves engaged in protracted legal battles over land ownership. In the process, the political imperative for restitution may lose legitimacy if claims are not successfully awarded.

There remains the potential for acrimonious conflicts to spill over into communities as irresolvable disputes arise between royal leaders. One can only hope that the leadership displayed in passing the act will be available as the messy business of history and custom collides with the desire for land and power.

*This article was first published on Business Day’s BDLive on 15 July 2014.

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