On the 6&7 December 2003 TCOE organised a Tribunal on Landlessness in Port Elizabeth Technikon where communities from different corners of this country expressed their experience with land reform. The tribunal heard evidence from landless communities, land-based organisations and land experts on the progress of various areas of land reform and the impact it has on the ground, given the objectives of the programme and the targets set for the delivery process. TCOE’s aim of organising the tribunal is to provide a platform for the voices of the rural landless communities to make themselves heard in the land debate in South Africa and allow government to respond to the claims made against it. It is our belief as TCOE that the government alone cannot achieve equitable land redistribution and it is therefore crucial that victims of land dispossession play an active role in the process of resolving the land question in this country. Furthermore, our work is basically to assist rural communities to enter into a dialogue with government and other stakeholders at various levels to bring their concerns to the public domain and work together with relevant government offices towards the resolution of such problems. Community participation in the development programmes, land reform included, is TCOE’s idea of a working democracy that is earned through centuries of painful struggle against oppression.

Regarding the pace at which land has been transferred, this report offers a comprehensive look at various aspects of the programme and in-depth analysis of the progress thus. The analysis is based not only on the research conducted in the land reform field but also on testimonies of landless communities. From the beginning, the tribunal was presented with evidence that the land reform programme is burdened with a multiplicity of challenges that put the government in a position to take tough decisions about the key aspects of the programme. The breadth and depth of the report not only provides an analysis of the problems but also go further to include recommendations on possible avenues that could be explored to improve the situation. The nature of this document incorporates a wide range of sources and was put together with an understanding that it will be forwarded to the government. The report has already been submitted to the office of the Deputy Director General and the Land Claims Commission, after the meetings on the 17 and 24 May 2004 in Pretoria.

To reverse the racially-skewed land ownership patterns the government introduced the land reform programme that rests on three pillars, namely:

• Restitution- the restoration of land rights to those who were dispossessed under discriminatory laws of the past.
• Land redistribution- the provisions of access to land for residential and economic development purposes.
• Tenure reform- to provide security of tenure to those who occupy the land they do not own.

In going about implementing this programme, the state promised to deliver 30% of agricultural land to the landless black communities in its first 5 years in office. The policy framework within which this programme was implemented is based on the willing buyer/willing seller principle where the owners of agricultural land are encouraged to sell their land to the state for purposes of redistribution. Moreover, the passing of the Labour Reform (Tenants) Act 3 of 1996 and the Extension of Security of Tenure Act 62 of 1997 served to protect labour tenants against arbitrary evictions.

The government has not succeeded in achieving the 30% target they promised in 1994 and the deadline was extended to 2014. This was mainly due to a number of problems (outlined below) that the state encountered and the rural poor, in the process, is increasingly getting frustrated by the pace of the delivery. One of the reasons is that the state has managed to transfer only a little over 3% of the land in the last 10 years it has been driving the programme.

The land debate has unearthed a number critical issues which are seen as obstacles to an equitable redistribution of land, some related to policy while others have more to do with implementation. The government has also found the landowners reluctant to sell their land to the government and when they are willing to sell the asking price is astronomical. Under the current policy framework, the land reform programme needs the support of the landowners and in cases where the landowners refuse to sell land to the state, even when the land is under claim, results in a deadlock that necessitate the intervention of the court. Moreover, the land acquisition packages that the government has set aside to assist the landless communities who have an interest in agriculture are at best inadequate and at worst inaccessible.

In the words of the Deputy-Director General, Mr Glen Thomas, ‘land reform needs extraordinary measures.’ It is in the spirit of acknowledging the truth of the DDG’s words that TCOE has embarked on a campaign to assist rural communities to be active participants in various levels of the land reform programme.

During the Tribunal, the following issues were voiced out:

1. Structural Obstacles to Land Reform:

• --Property clause and the protection of private property in the Constitution.
• --Willing-buyer, willing seller or the market led approach to land reform
• Budgetary constraints: the budget allocations over the past 10 years have been totally insufficient for all aspects of land reform
• Political will and low priority given to reform is an indicator of many different things e.g. weak organisation and the balance of forces in the rural hinterland, role of agriculture in the economy.
• Inadequate controls or no controls over the role of the market in land speculation

2) Lack of legislative and policy frameworks:

• The churches have not been confronted on the role of the churches in ownership and custodianship of land throughout the country.
• Parastatals like Transnet and Spoornet continue to own large tracks of land and instead of this land been contributed to a "land bank" it is also been sold and privatised.
• State farms in the former Bantustans or the irrigation schemes also require immediate transfer to those who these schemes.
• All other land acquired under Bantustans must be confiscated and put into the "land bank"
• Land Utilisation framework e.g. Land for agriculture versus land for recreation or conservation.

3. Administrative and Human Resource Capacity of DLA:

The problems emanating from this category are numerous but we have only selected the most important ones.

• Lack of research capacity to follow-up and verify claims.
• No communication procedure to keep claimants and these who have entered the queue for land informed of progress.
• Absence of land audits and directory of land that is under-utilised, or land that is available for sale
• Limited support for community groups that have lodged applications
• Staff lacks confidence to deal with land owners
• No integration and co-ordination between government departments

4. Lack of Political Will

• No ability to prevent farm evictions
• Racism in rural areas continue
• The hold of the traditional authority over land
• Push for financial compensation instead of land in most restitution cases.
• No co-ordination between Local Government and DLA to resolve claims

5) Fragile and weak Organisation of the Rural Poor

• No organization to counter balance the power of the land owners
• Peri- urban White land owners have aggressive methods to keep blacks out
• NGOs unable to support consistently or to keep pressure on government
• No monitoring and exposure of the racism and evictions
• No prosecutions for any ESTA offences

6) Alternatives Needed

There is an urgent need to develop alternative platform and policy framework as a vehicle to mobilize and put pressure.

• The government, together with NGOs, churches and corporate entities, should dialogue on the pros and cons of having a property clause in the constitution with the aim of finding alternatives to the hindrances it creates in the implementation of the land reform programme. The debate should be broadened to include the landless communities in order that the product of such debate would reflect the diversity of the inputs made.

Given the plethora of problems and the urgency implied in the need to address them, the following recommendations were made:

1. Given the history of violent land grabbing, the willing buyer/willing seller approach should be reviewed and again a consultative process of debating the alternative should be started. The delivery of land at the desired rate will not happen if this policy is not reviewed or repealed. This would put the government in a stronger position to use expropriation as a way of speeding up land delivery, a measure that is authorised by the constitution.
2. The budget for land reform should be dramatically increased.
3. The State must play a more proactive role in land and agrarian reform. A special institution must be established that can receive land from commercial farmers, the state and even para-statals, the churches for small-scale agricultural use and food security.
4. Local governments in their role in land reform and land reform must be restructured so that they can become implementing agents so that there should be less red tape along the line of land reform as possible.
5. An extensive capacity enhancing and educational program must be established at all major universities and technikons in the rural areas to develop appropriate skills in capacity of rural use to agriculture, livestock production, the technical skills, build watersheds, labour and management
6. The government needs to regularly consult with and form partnerships with communities whereby the resources found in the community can be used to help the government and the community. The example of this is the role played by a volunteer in Bredasdorp and Struisbaai to educate claimants about the intricacies of the land claims process. The claimants testified that they received more help from the local volunteer than they did from state officials.

The challenges of land reform should not be seen as the problem of the government, instead there is a bigger role to be played by the landless communities, development organisations, churches and business in conjunction with the state. Given the deadlines, which serve as performance indicators for land delivery in this country, there is little choice but to change the manner in which land reform has been approached thus far. In terms of how it will be done, a forum where public input is welcome is a step in the right direction.