The following OP-ED is a collaborative effort by Zimkhitha Mhlahlo, Teddy Weinstein, Cecile van Schalkwyk and Cameron McConnachie of the LRC
Ready for Restitution? The People Are But our Institutions are Not!
South Africa embarked on a land reform process in 1994 to address the country’s tragic history of inequitable land distribution along racial lines. One of the aims of the process is to provide redress for people dispossessed of their rights in land as a result of racially discriminatory laws or practices. At the centre of this project is the establishment of the Commission on Restitution of Land Rights, an independent body tasked with receiving and investigating the land claims instituted in terms of the Restitution of Land Rights Act 22 of 1994 (the Act). The Commission has the power to mediate and settle disputes arising from claims, advise the Minister of Agriculture, Land Reform and Rural Development in exercising his/her powers under the Act and refer claims to the Land Claims Court. The Act envisioned a dynamic body with the relevant knowledge and expertise to settle claims quickly and efficiently.
Sadly, the current Commission and the shackled Land Claims Court are a far cry from this ideal. Dysfunctional, under-resourced, with corrupt elements and facing a seemingly insurmountable backlog of claims, the Commission must be reformed if the program of land redistribution is to be realized. The latest statistics on the Commission’s service delivery record shows that 77,334 claims have been settled. These claims were awarded to a total of 1.8 million individuals from 369,451 households. Of these, 136,968 (or 37%) of households are female headed. Of the 77,334 claims, a whopping 71,292 (92%) have been settled with financial compensation.
A recent report by the High Level Panel on the assessment of key legislation identifies the myriad problems facing the Commission. There are more than 26,000 unsettled or unfinalized claims. At the current rate, it will take at least 35 years to finalize the claims filed before the cutoff year of 1998. If land claims are reopened, as the government attempted to do in 2014, it is anticipated that 397,000 new claims will be lodged. This will bring the timeline for completing the land restitution program (at the current rate) up to an astonishing 709 years! This clearly won’t work.
There are few cases that illustrate the failures of the Commission as well as the land claim of the Prudhoe Community near Peddie in the Eastern Cape. The case involves three communities with competing land claims over 85 farms between the Fish and Mpekweni Rivers (which includes two parcels of land containing a hotel and golf course). The Legal Resources Centre (LRC) represents the Prudhoe Community that claims restitution of 26 farms, which claim competes with that of the neighbouring Mazizini Community. The Prudhoe Community lodged their claim in December 1998 after they were forcefully removed by the Ciskei Government during the late 1980s from 26 farms, and dumped on the farm Prudhoe. The forced removals were affected by the former homeland government, ostensibly to make way for large-scale agricultural development which never materialised.
The case first came to the attention of the LRC after the Land Claims Court, preceded by a recommendation by the Commission and the Minister, awarded two of the farms on which the Fish River Sun hotel is located, to the Mazizini Community in 2010 without considering the competing claim of the Prudhoe. The LRC assisted the community at the Supreme Court of Appeal (SCA) to have the judgment rescinded in 2011 and referred back to the Land Claims Court to decide which community are the rightful claimants. Eight years later the dispute has still not been finalised. This is despite a 2018 Land Claims Court judgment awarding restitution to the Prudhoe Community. This judgment is currently being appealed by the Mazizini Community and is back in the Supreme Court of Appeal awaiting a date. Many of the Commission’s failures identified by the High Level Panel are evident in the handling of this case.
The High Level Panel identified the lack of capacity as one of the driving factors behind the failures of the Commission. The Commission was not set up to deal with the sheer number of claims lodged before 1998. Staff lack proper legal and historical training and high turnover contributes to poor institutional memory. Record keeping in the Commission is often in disarray, while research reports are inaccessible or simply absent. This results in a lengthy and frustrating process that has seen many claimants wait more than 20 years to have their claims adjudicated. In the Prudhoe case the Commission produced three different, sometimes conflicting, research reports for the purpose of investigating the merits of the claims. The reports each took nearly five years to complete and when they were finally released the Prudhoe Community still had to appoint an independent historical expert to clarify some of the inaccuracies in the reports.
The court’s 2018 judgment criticized the poor quality of the Commission’s referral reports, which supported the land being returned to the Mazizini Community without any legal or factual basis for such recommendation. The court found the Commission’s conduct fell short of the constitutional standard expected of organs of state in terms of section 195 of the Constitution.
The Commission is also tasked with notifying all interested parties of claims, including the current owners of the land. During the course of the Prudhoe trial, the parties realised that the Commission had failed to notify dozens of affected land owners when many arrived at court after reading about the case in the media. This happened twice, even after the Commission had outsources the function to a private firm of attorneys. The court was forced to postpone the matter for a further six months and tasked the LRC attorneys with ensuring that proper notice was affected.
The incompetence of the Commission’s investigations and their failure to comply with their legislative duties has had devastating consequences for the Prudhoe claimants that cannot be quantified in monetary terms. Since the institution of the land claim, 109 of the original 124 heads of households have passed away in poverty and never saw their land returned to them. The remaining claimants are old and frail and unlikely to see the outcome of the protracted litigation. For these claimants the dream of returning to the land that they lost due to colonial and apartheid-era laws and practices will never be realised.
The second problem identified by the Panel is one of process. In 1999, the Commission was empowered to settle claims administratively outside of court. This rendered the process ad hoc and vulnerable to corruption. The decision to award two of the farms to the Mazizini Community without considering the Prudhoe Community’s claim illustrates this lack of oversight. The decision was taken arbitrarily and without any regard to the merits of the Mazizini’s claim. The court ultimately found that the Mazizini Community does not meet the requirements for restitution, which is a stark reminder of just how ill-advised the 2008 decision was.
Another problematic practice is to “bunch” claims together into artificial Communal Property Associations (CPAs). These constructs completely ignore the definition of “community” in the legislation and are often dysfunctional and mired by competing interests. Despite this practice being undertaken in the name of “efficiency,” it leads to confusion and dissatisfaction among claimants. This in turn has led to the Land Claims Court being overwhelmed with cases, further delaying many claims as they become embroiled in lengthy and expensive litigation. Throughout the Prudhoe case the Commission and the Minister were insistent that the competing communities actually belonged to the same community despite all three research reports pointing to the contrary. The Minister also proposed a settlement model that would see families obtaining small parcels of one hectare plots while the vast majority of the land would to all intents and purposes be owned by the Mazizini community. This was despite the Prudhoe Community’s contention, which the Land Claims Court agreed with, that they did not form part of the Mazizini at all and were a community with a unique cultural identity.
The Legal Resources Centre supports a number of recommendations proposed by the High Level Panel to help repair the efficiency and integrity of the Commission. First and foremost, the independence of the Commission as a separate entity from the Department of Agriculture, Land Reform, and Rural Development must be restored. The two, while still formally and legally separate, have fallen under the growing power of the Minister. This has increased the politicisation of the claims process which sees unrelated interests and considerations form part of a claims process that were intended to be rooted in clear legal rules and principles.
Secondly, the Commission must provide proper legal and historical training to its employees to capacitate them to manage the Commission’s work. This includes training in the process of recording and administering claims and managing an appropriate filing system. Consultants that are responsible for compiling research reports on the claims must be historical experts capable of conducting comprehensive research on the validity of claims.
Thirdly, the Land Claims Court needs to appoint permanent judges with expertise in land reform. The court relies on acting judges which has delayed the finalization of claims. Furthermore, the practice of creating unnecessary CPAs must be stopped immediately and existing, improperly consolidated claims withdrawn and reconfigured. The proper claimants must be heard by the court to empower individual claimants and restore their trust in the Commission’s process.
The proposed reforms will go far in expediting the land claims process and ensure that claimants are able to use the land to better their lives and that of their children. For the Prudhoe community it has been a long and frustrating road. Mr Gladman Tom, the chairperson of the Prudhoe community land claims committee, has described the process as a “battle” that has lasted more than 20 years. “Many people have died and they will not see the land returned to them. We want to use the land to build schools, clinics, and develop agricultural and tourist opportunities, but the longer it takes for the claim to be finalized, the longer we will suffer in poverty.”
In a time when the question of land reform in South Africa is dominating the political landscape, there is a need for both the Commission and the Minister to work towards ensuring that the process of restitution is expedited. The people, and Prudhoe, are desperate!
Inspired by our history, the Constitution and international human rights standards, the LRC is committed to a fully democratic society based on the principle of substantive equality. The LRC seeks to ensure that the principles, rights and responsibilities enshrined in our national Constitution are respected, promoted, protected and fulfilled.