LAND RESTITUTION IN SOUTH AFRICA International Workshop on Land Restitution in Transitional Contexts, Cartagena, Colombia June 30, to July 3, 2015

Background 2

The democratic State passed the Restitution of Land Rights Act on 22 November A person, direct descendant of a person, an estate, or a community is entitled to restitution if: It was dispossessed of a right in land After 19 June 1913 As a result of past racially discriminatory laws or practices Did not receive compensation or other consideration that is just and equitable, calculated at the time of dispossession, in terms of the Constitution Formula Lodged a claim for restitution within the prescribed timeframe. The Restitution of Land Rights Act,

The Act creates the Commission on Restitution of Land Rights and the Land Claims Court. The Commission is responsible for the administration of the land restitution process. Its’ functions are to solicit land claims, investigates them, and attempt to resolve them through mediation or negotiations. The Land Claims Court adjudicates disputes from the land claims process. The Minister of Rural Development and Land Reform is empowered to enter into agreements for the settlement of claims, and to provide development support. The Restitution of Land Rights Act,

land claims have been settled since 1994: 1,88 million people have benefitted from the programme (from 379, 997 households, of which 142, 264 are female headed households, and 792 are headed by persons with disabilities); 3,16 million hectares have been awarded, acquired at a cost of R18,196 billion (US $ 1, 469 billion); R4, 167 billion (US$ 336,6 million) has been awarded as development support to beneficiaries of land restored to them; R8, 503 billion (US$ 686, 8 million) has been paid as financial compensation; R30, 874 billion (US$2.493 billion) is the total restitution award made to date. There are 8035 outstanding land claims (lodged before 1998 cut-off date). The Restitution of Land Rights Act,

A 2009 evaluation of Land Restitution Programme revealed that: – Between 1994 and 2009, Land Reform Interventions, in general, focused mainly on the number of hectares land acquired. – Little attention was paid to the qualitative aspects of land reform, i.e. the development of productive forces and the creation of institutional conditions for changing / balancing, power relations in the sector. – The pace of the settlement of claims has been slow, owing in the main to limited capacity within the Commission, and community disputes. – Deserving persons and communities did not participate in the land restitution programme because they did not lodge claims by the 31 December 1998 cut-off date, or lost land before 19 June Lessons Learnt 6

The National Development Plan: Vision 2030 sets out a plan to eradicate poverty and lessen inequality by 2030 as well as addressing other challenges facing South Africa. The broad goals of the plan are to build a united country, resolve historical injustices, uplift the quality of life of all South Africans, accelerate social and economic change, eradicate poverty and unemployment and reduce inequality and expand the economy and distribute its benefits equitably. To address rural poverty, the plan states that “rural communities require greater social economic and political opportunities”, and Land Reform is one of the initiatives identified to create opportunities for economic transformation. Government Interventions 7

In 2009 Government adopted the Comprehensive Rural Development Programme which serves as the overarching policy trajectory and strategy for the Department of Rural Development and Land Reform (to which the Commission in an entity). The Green Paper on Land Reform (2011) gave birth to the Agrarian Transformation System, which is defined as a rapid and fundamental change (systems and patterns of ownership and control) of land, livestock, cropping and community. The Rural Development Framework (2013) defines rural development measurable, which are meant to run sequentially (for effective planning) and simultaneously (guided by the plans): (a) meeting basic human needs, (b) rural enterprise development, and (c) rural agro-industries sustained by rural markets and rural financing facilities. The mandate for the DRDLR is summarised as follows: Government Interventions 8

Roads, bridges, energy, water services, sanitation, library, crèches, early childhood centres, Police stations, clinics, houses, small rural towns revitalisation. 1.State and Public Land  lease hold 2. Private Land  Free hold with limited extent 3.Foreign land ownership  A combination of freehold with limited extent and leasehold; and, 4. Communal land  Communal tenure: communal tenure with institutionalized use rights. 5. Institutions 5.1Land Management Commission 5.2Valuer General 5.3 Land Rights Management Board with District and Local Committees 5.4National Rural Youth Service Corps 5.5 Rural Development Agency with rural cooperatives financing facility Food Security: Strategic Partnerships: Mentoring Co-management Share equity  Modalities being worked out between the Dept and farmers; big and small Meeting Basic Human Needs Enterprise development Agro-village industries; credit facilities; markets Phase I Phase II Phase III Tenure System Reform Rural development measurables

In pursuit of the objects of the NDP the DRDLR adopted the Rural Economy Transformation Model. A Wagon Wheel, which is part of the RETM, provides for a land use plan as well as security of tenure for households, particularly vulnerable ones – female and child headed ones, as depicted in Figures 2 (a) and (b) below. The Wagon Wheel is also enhanced by a clearly delineated administrative and developmental institutions, each with a defined role; and how each institution relates to the others, as indicated in Figure 2 (c) below. Rural Economy Transformation Model 10

Residential Economic Social Services Outer Boundary: Single Title Title Holder: Governance Structure. ROYAL HOUSEHOLD COMMUNALLY OWNED: Collective and individual enterprise and industrial sector TRADITIONAL MANAGEMENT (Moral Authority) 1 – 7 HOUSEHOLD SECTOR: Basic unit of production * * * * * * * * * * * * * * * * * * * COMMUNALLY OWNED: GRAZING INFRASTRUCTURE CROPPING Roles: Title Holder Adjudication of disputes on land Reference Point Land allocation COMMUNITY- PUBLIC-PRIVATE- COLLABORATION MINING FORESTRY TOURISM * * * * MANUFACTURING 11 DEVELOPMENT CORRIDORS INVESTMENT AND DEVELOPMENT FINANCING FACILITY (IDFF)

Residential Economic Social Services Outer Boundary: Single Title Title Holder: Governance Structure. COMMUNALLY OWNED: Collective and individual enterprise and industrial sector 8 1 – 8 HOUSEHOLD SECTOR: Basic unit of production COMMUNALLY OWNED: GRAZING INFRASTRUCTURE CROPPING Roles: Title Holder Adjudication of disputes on land Reference Point Land allocation COMMUNITY- PUBLIC-PRIVATE- COLLABORATION MINING FORESTRY TOURISM MANUFACTURING 12 ENVIRONMENTAL MANAGEMENT INVESTMENT AND DEVELOPMENT FINANCING FACILITY (IDFF) DEVELOPMENT CORRIDORS

AUTHORITY: THE STATE ADMIN. RESPONSIBILITY: GOVERNANCE STRUCTURE HOUSEHOLDS: Basic Unit of Production and Retailing Manufacturers and Consumers of Goods and Services Rate Payers Voters INSTITUTIONALISED USE RIGHTS/FULL RIGHTS: Perpetuate the right in law (use rights) Can bequeath the right Can use it as collateral Protection against land sharks: -First right of refusal: household -Second right of refusal: governance structure -Third right of refusal: Govt Rights and Responsibilities Duties and Services Opportunities and Constraints Active Citizenry and Capable State: The National Development Plan As set out in the Constitution and the law of the Republic Traditional Council/ CPA Committee/ Trust, as the case may be. Key elements of accountability: Substantive, NOT numerical quorum Quarterly meetings Annual reports to Parliament via drdlr Regular elections, as defined by the law IDFF: Representative of Households, CPI, Traditional Council, Municipal Council, Local Business, Civic Structures INVESTMENT AND DEVELOPMENT FINANCING FACILITY

In June 2014 the President signed into law the Restitution of Land Rights Amendment Act providing for the re-opening of lodgement of land claims. All those who were dispossessed of rights in land, after 19 June 1913, as a result of past racially discriminatory laws or practices, and who did not receive just and equitable compensation calculated at the time of dispossession, can lodge claims for restitution, until 30 June More than 62, 000 new claims have been lodged. It is anticipated that 397, 000 claims will be lodged under the amendment. The claims lodged before 1998 cut-off date are prioritised over the new claims that are currently being lodged. Restitution Amendment Act,

In the 2013 State of the Nation Address the President announced that Government would explore Exceptions to the 1913 cut-off date for land claims, to accommodate the Khoi and San, historical land-marks and heritage sites. The exceptions are three fold, i.e. to accommodate: – The descendants of the Khoi and San; – Heritage Sites (all South Africans); and – Historical Land-marks (all South Africans). The point of departure for the exceptions is that by the enactment of the Natives Land Act on 19 June 1913 the Khoi and San, and other Bantu Speaking Africans, had already lost the land. A programme of the exceptions is currently being developed. Exceptions Programme 15

Thank You! Thami Mdontswa Deputy Land Claims Commissioner Commission on Restitution of Land Rights Republic of South Africa 16