Response to ‘Re-opening restitution: Election promises doomed to backfire’

I have received a number of interesting comments via social media on the piece Re-opening restitution: Election promises doomed to backfire. The hearings are related to the Restitution of Land Rights Amendment Bill, which was tabled in parliament in October. I would like to continue this conversation by responding to some of the comments here, and drawing out some of the issues they raised.

In a 500-word piece it’s very difficult to explain the nuances of each case, with its internal dynamics. One commentator explained the background to the Amaliestein Zoar case in the Western Cape and pointed out that the group’s claim was not compliant with the criteria for restitution. As a result the case was made for them to receive land through the redistribution programme. But the issue there is still not settled.

The Amaliestein Zoar case is an example of how re-opening restitution will open the door for a range of claimants to seek restorative justice and compensation for landlessness. It will result in claims and counter-claims, and will require major research and probably legal challenges.

Another commentator noted that there are people who did not have the opportunity to lodge claims during the previous restitution window, and should be given the opportunity to do so. He warned that a knee-jerk cynical reaction to re-opening restitution is destructive, and I don’t want my piece to be read as such.

I’m not against re-opening restitution per say but I am skeptical of re-opening at this particular juncture in time – in the context of land reform and land redistribution programmes that lack direction and show few gains, a backlog of 20 000 unresolved restitution claims* (some groups have been waiting over 13 years) and in the context of policies unlikely to benefit rural people. These policies include the Recapitalisation and Development Policy, which requires restitution claimants to apply for financial support through the Recapitalisation and Development Fund, instead of through a fund set aside specifically for restitution. In order for these funds to be released, applicants must show that they have a business plan and a “strategic partner”, and will also be subject to a “use it or lose it clause”, which could discriminate against people who cannot keep up with the business plan. Restitution also comes in the context of the Communal Land Tenure Policy, which states that Communal Property Associations will be “carefully considered and principally discouraged” – thus undermining one of the key vehicles through which groups constituted themselves to make restitution claims.

I would argue that it is not helpful to existing restitution claimants waiting for their land or to potential claimants to open up the restitution process against the backdrop described above. There are many people in South Africa awaiting redress for land dispossession – and not all issues can be remedied through restitution. Restitution is a very specific programme. Thousands are still living with insecurity of land tenure. To more fully redress the legacy of land dispossession we need comprehensive tenure reform and not just a symbolic gesture towards reform – like putting a plaster on a wound – as Restitution appears to be in this context. So I would argue the government is skewing its priorities by focusing on restitution – and that it will distract from the larger task of land tenure reform that we so desperately need.

The government is not monolithic and so I have no doubt there are people in government who are sincere in promoting restitution in a way that addresses the legacy of dispossession that characterises our country. But the hearings on the Restitution Bill show there is a strong directive from influential sections of the government to push for re-opening restitution no matter what doubts others have about the process, or opposition they find from people on the ground along the way – and this is disappointing. It undermines those efforts that are sincerely invested in this process.

I’d welcome further discussion with you in the comments section, as I think this is an important debate.


*According to a powerpoint presentation by Nomfundo Gobodo (Chief Land Claims Commissioner) to the Ad Hoc Committee on the Legacy of the Native Land Act (23/08/2013) 8 733 claims are “outstanding (not yet settled at all)” (page 8). However, out of 79 582 claims lodged (page 10), 58 990 have been “finalised” (defined on page 10 as “all funds paid and all land purchased and transferred”). This means there is a backlog of 20 583 claims which have not been finalised (includes the 8 733 “outstanding” claims) – where backlog is defined (page 10) to include a claim that is “not finalised [i.e. all funds paid, all land transferred to claimants] within the financial year in which it was approved”. There are therefore many claimants in a position where the claim has been approved, even gazetted and 42D signed but who have still not received their land. They spoke up at the hearings against re-opening restitution, concerned it would delay and complicate finalisation of their claims if the call for claims was to reopen.

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