New Restitution Bill could open floodgates for chiefs’ land claims

The Western Cape leg of the public consultation about the Restitution of Land Rights Amendment Bill started in Cape Town on June 4th. This is only 10 days after the bill was introduced. People are scrambling to make sense of the implications of the bill, and the reasons for its sudden introduction. At face value, the bill seems a generous proposal. It will re-open the window for land claims, allowing people dispossessed of their land to put in claims until 2018.

But scratch the surface and it’s clear that there are inconsistencies in the bill. First, it does not address pre-1913 claims, contrary to the spin government has generated around it. Second, it makes land restoration awards conditional on cost, and on the claimants’ ability to use the land “productively”. This conditionality waters down the constitutionally entrenched right to restitution, which is framed in terms of redress for past discriminatory practices. Apart from undermining the right to restitution, this introduces scope for arbitrary and corrupt decision-making processes.

The third problem with the bill concerns its timing and intent during the lead up to next year’s elections. It is well known that land reform in South Africa is in a shambles, failing hopelessly in meeting its targets. This failure is particularly embarrassing to government during the centenary year of the notorious 1913 Natives Land Act. We need to situate the bill in the context of pre-election promises to various constituencies.

And that brings us to the most serious problem of all. The bill risks opening the floodgates for traditional leaders to claim vast swathes of land, which they could rule as their personal fiefdoms, given other laws and recent statements by Minister of Rural Development and Land Reform Gugile Nkwinti. The minister has gone on record as saying that independent private landholders organised in entities such as Communal Property Associations (CPAs) should no longer be allowed to own land acquired through restitution or redistribution within ‘communal areas’. In his view ‘a communal area within a communal area’ is a bad thing. CPAs are used as legal vehicles by people who were forcibly removed. If CPAs can no longer own restitution land, it opens the door to chiefs to claim ownership of restitution land on behalf of ‘tribes’ that were delineated in terms of the Bantu Authorities Act of 1951.

Since the creation of tribal and Bantustan boundaries was a major driver of forced removals, it is astounding that Nkwinti’s statements and recent laws reinforce these boundaries in the name of land reform. Over three and half million South Africans were forcibly removed from their homes and land in order to clear ‘white’ South Africa of ‘black spots’ and to consolidate the Bantustans. The restitution amendment bill, read together with Nkwinti’s statements, potentially enables chiefs (some of whom, like Chief Mhinga in Makuleke in Limpopo province, were complicit in forced removals) to claim restitution on behalf of ‘traditional communities’ while simultaneously stripping restitution beneficiaries of independent ownership rights.

This is not just a matter of prospective policy. It is already taking place. The Department of Rural Development and Land Reform has refused to transfer title to at least 34 CPAs where restitution awards and signed agreements are in place. This has caused major suffering and division as CPA members question what happened to the land and grants they were promised. One example is the Cata CPA in the Eastern Cape, where claimants have been waiting since 2000 for their land title. The government recently ignored a court order that compelled it to transfer land title to the Cata CPA by May 20th.

Why is government refusing to honour signed agreements and court orders that give effect to the right to restitution set out in Section 25(7) of the Constitution? The simple answer is because of pressure from traditional leaders. This is clearly set out in a 2012 affidavit by a senior government official in the Cata litigation. She said “[d]espite the optimism with which the settlement agreement was done [the process has now] encountered fierce objections by the traditional leaders who state that the agreements transferring ownership of rural land to community-based associations undermined their authority”. She added that “the Minister has issued an instruction that …discussions for the implementation of CLaRA are still continuing and no state land [should] be transferred until this process has been finalised”. This despite the fact that CLaRA, or the Communal Land Rights Act of 2004, was struck down by the Constitutional Court in 2010.

Against that background the Restitution Amendment Bill’s re-opening of land claims has worrying implications. On the eve of the 2014 elections, government is holding out a promise to chiefs that it will do away with independent CPAs and re-open the restitution process to new claims.

Within days of the bill’s introduction King Goodwill Zwelithini promised a gathering of 40 traditional leaders in KwaZulu-Natal that the Ingonyama Trust would assist traditional leaders in instituting land claims, including providing legal support. He said, “As your king, I will abide by the law and approach the government to regain all Zulu land.”

Control over land is the jewel in the crown for traditional leaders. It is being proffered at a time when chiefs are upset about the slow progress of the Traditional Courts Bill after it generated concerted opposition from rural people and women’s groups. The timing of the new bill is very similar to the introduction of the amended Communal Land Rights Bill just before the 2004 elections. The CLaRA gave chiefs effective ownership and control over communal land. This occurred in a context where chiefs had been threatening to boycott the elections because they were not satisfied with the powers provided to them by government.

The irony is that the vehicle being used is the Restitution of Land Rights Act that was passed to a standing ovation in Parliament in 1994. Only 19 years later, it seems that the right to restitution for people who suffered forced removal may be subverted to accommodate chiefly claims to sweeping Bantustan-era powers over an extended land base.

The window for written comments on the bill expires on the 21st of June.

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