Other services of the LRRP include:

The work of the LRRP contributes towards initiating and supporting tenure security reforms, access to land and constitutional empowerment of communities. It has also intervened using its research information in policies at national, provincial and local levels.

1. Ten years after the transition to democracy, the success of land reform in South Africa remains uncertain. None of the three components of the current programme (restitution, redistribution and tenure reform – see the Department of Land Affairs White Paper on South African Land Policy, April 1997) is performing according to expectations. By the end of March 2004, only 48 825 of the 63 455 land claims lodged in terms of the Restitution of Land Rights Act 22 of 1994 (‘the Restitution Act’) had been settled. It is clear that the restitution process has taken far longer to complete than originally anticipated. It is recognised however that there has been acceleration on the rate of finalisation of claims. Nevertheless, the patience of restitution claimants, especially in the Limpopo Province and Mpumalanga, is wearing thin. NGOs are beginning to question whether their interests are really being served by the South African government’s strict adherence to the rule of law. In the urban context, the recent policy shift towards settling claims by means of lump sum payments threatens to undermine political support for the programme even further.
2. The land redistribution programme has fared little better. To date, less than 3% of South Africa’s farming land has been redistributed, against an initial undertaking of 83 million hectares in ten years. The new redistribution policy marks fundamental shift from the vision articulated in the White Paper on South African Land Policy. Discussion documents released thus far indicate that the DLA will henceforth put more emphasis on transforming the racial composition of the commercial farming class. The rural poor, who have neither the experience nor the capital to participate in the new programme, may well be excluded.

4. Outside the former Bantustans, on white-owned commercial farms, the rate of illegal evictions remains unacceptably high, notwithstanding the enactment of a brace of legislation aimed at extending security of tenure to the most vulnerable of these groupings: farm workers and labour tenants. The dysfunctional Legal Aid system, in particular, has given rise to a situation where statutory rights against unfair eviction are not enforced in practice. In the result, evicted farm workers and labour tenants continue to swell the ranks of the landless poor.
5. In the absence of effective land reform, and with no real prospect of delivery in the next coming years, the rule of law in many areas of the South African countryside is beginning to collapse. The Limpopo Province, Mpumalanga, KwaZulu-Natal and parts of the Eastern Cape are particularly badly affected. In these provinces, many farms are being abandoned because of threats of violence. At the same time, violence against farm workers continues to hit the headlines. To make matters worse, the very law enforcement agencies (police, prosecutors and magistrates) who are supposed to be grappling with this situation, are themselves often implicated in acts of violence against the rural poor, or at least seen to be condoning such practices.
6. In this uncertain climate, poor rural communities, more than ever, require outside, independent assistance in order to press their claims to land and resources for sustainable development and livelihood. Given the rapid changes in the policy environment, it is now generally agreed that the current approach, according to which NGOs and CBOs attempt to seek assistance for poor communities under one or other component of the DLA’s land reform programme, is not delivering results at acceptable rates. In particular, this approach appears to be vulnerable on two fronts: first, the shift in policy direction, as described above; and, second, even where existing policies are maintained, to a lack of capacity on the part of government to deliver meaningful results. Only by working closely with a manageable number of self-motivated communities can NGOs hope to make an impact.
7. Three land-acquisition-based development strategies appear to remain open to the rural poor in the current climate. First, those communities who have lodged claims with the Commission on Restitution of Land Rights, may attempt to accelerate the settlement of their claims by using the direct access procedures provided for in Chapter IIIA of the Restitution Act. In essence, this strategy amounts to requesting the Land Claims Court, through an appropriate order, to concretise the community’s land claim. On the few occasions in which this strategy has been used, the Court has shown itself to be sensitive to the development needs of claimants. In particular, litigation must address the issue of sustainability and motivate how particular claims can meet economic needs. In this way, litigation will provide a forum in which these needs can be debated in a formal manner. The critical challenge is to find a way of expediting the restitution process in a way that is replicable and provides sustainable results for the claimant communities.
8. Another strategy open to communities, with or without a formal land claim lodged in terms of the Restitution Act, is to engage the private sector, particularly companies with large estates, for assistance. Since the transition to democracy in 1994, the private sector’s attitude towards land reform has been largely that of the interested bystander. The future security of all land rights in South Africa, including ownership rights, depends on effective land reform.

2.1.1 Shortcomings in Land Reform

The DLA provides assistance to a number of projects nationally, provincially and locally through its land reform programmes. For purposes of this submission, CALS uses Maphepheni and the Doringkloof communities’ experience to illustrate problems of implementing land reform laws and policies.

The Maphepheni community is an informal peri-rural settlement, consisting of approximately 270 families in Mpumalanga Province. The community faced a long period of unrest due to evictions instigated by Mondi Ltd. Most community members in Maphepheni are employed by Mondi Ltd and allowed to reside on Mondi Ltd land as such. Community members brought relatives and friends seeking employment who later overcrowded the land resulting to eviction threats. The 1993 Interim Constitution of the Republic of South Africa was enacted and prevented unfair and illegal evictions. Mondi Ltd. honoured the changes brought by the Constitution by ceasing its threats on evicting the community instead sold the occupied land to the Maphepheni community at lesser cost.

The DLA assisted Maphepheni community with grants to purchase the land for residencial use. Maphepheni community formed a Communal Property Association (CPA) to hold the land jointly as a common property. The grant remaining from the sale of land was to be used for housing development. For purposes of establishing houses, the Maphepheni community was advised to entrust its project and available funds to either the district council or service provider. Maphepheni Communal Property Association was registered on the 23^rd of December 1997, after a lengthy process of negotiations. The land was transferred in the name of the community on the 06 November 2000 and the purchase price paid to Mondi Ltd on the 13^th December 2000, which money was to be invested in the community for development projects.

There is confusion with regard to management of the housing between the DLA, Piet Retief Local Council and Department of Housing. The DLA is willing to take over the project, but it lacked capacity. Department of Housing looked at the project as the DLAs’ because of the Settlement/Land Acquisition Grant (SLAG) provided by DLA. On the other hand, the Piet Retief Local Council was not involved because it regarded CPAs as private entities not entitled to development by the local council. Initially the Minister of DLA approved 286 families in Maphepheni area as qualifying beneficiaries for land and housing development although they were CPAs. Being a CPA was not an issue for housing as it approved 500 subsidies through the Peoples Housing Process. The community did not have problems with the housing department assistance.

The CALS, DLA and Housing Department held a conference on the 29^th of August 2000. Participants came from the Piet Retief Local Council, CPAs, Department of Housing and Bahlangene Developments agreed to facilitate and coordinate the conference aimed at optimizing development of CPAs. The Bahlangene Developments acted as support organisation appointed by the Department of Housing to develop institutional subsidy framework in CPAs. The problem was that other housing projects found it difficult to work with CPA as these were viewed as private entities without income. The process of establishing housing structures has not taken place. The example of the Maphepheni community assists in highlighting some of the challenges the CPA communities’ areas go through.

The importance of early interactions between different spheres of government facilitates for better understanding of legislations and necessary development.

Doringkloof is approximately 30 kilometres from Magaliesburg town, in Gauteng Province. There are fifty-five (55) households. Most of the young adults in the community working in neighbouring farms and children of school going age. These children travel long distances for their education. Community members also have to travel to Magaliesburg to access markets, social and other services.

The farm owner threatened the community with evictions. The DLA intervened by implementing the land reform programme intended to address the tenure insecurity problems to address the problems of the Doringkloof community. It used ESTA legislation to protect the community from evictions. The community was assisted with settlement grant to purchase part of the farm from the owner (Mr D Huddy) for farm workers to use for residential and agricultural purposes. The grant was also used for the equipment. The Magaliesburg municipality with the regional African National Congress office were the two key stakeholders assisting the Doringkloof community.

The settlement project became legal entity. There are advantages and disadvantages in forming a legal entity. The advantages include allowing community members to own land jointly with equal rights of access and responsibilities exercised by all beneficiaries registered in the entity. It is also the entity that enters into service transactions with service providers and other stakeholders. The disadvantage as shown above is reluctance of some local government to participate in the development of the legal entity.

Although the community had a good capital to commence a business activity including the fact that it owned a portion of the land for residential use and other portions for agricultural activity, the feuds among community members hamper development and success of the project. Community members are not willing to invest their farming skills in the community. They would rather work in neighbouring farms for money. There is currently lack of control and management of the property even by the committee members of the legal entity. There is also the problem of mistrust among members of the legal entity. The community has also been assisted to establish a committee but such committee is not empowered to deal with communal. Community members on the other hand, fail to attend community meetings. On the whole there is lack of cooperation among members of the legal entity and they insist on outside intervention to resolve their disputes.

• There is a glaring lack of capacity to implement land reform legislations inter alia, the Communal property Associations Act. On the other hand, the fact that many rural communities lack access to education and facilities renders their participation ineffective.
• Though some notable successes have been made in assisting communities to attain tenure security and other developments, the processes are slow and protracted.
• Due to obstacles in working with communal property associations in rural communities, communities do not benefit from the support of government, organisations such as trade unions and churches on sustained basis.
• This situation has been exacerbated over the past years and now, by a discernible contraction of the public space for discussion of the government’s land reform policy, where discussion documents were made public on short notice periods which rendered informed responses by communities practically impossible.
• The legal institutions established through the land reform programme were and still are not usable as surety to access finance. The legal entities should provide its beneficiary members with a title that would enable individual rights holder use their title as a collateral.
• The fact that communal property (land) is owned by a group or community, pressure on individual’s rights remain unavoidable. Individual members would again not share common ideas, ambition and commitment on what activity needs to be carried on land for self-economic advancement.
• The challenge also is about how service institutions can be made more accessible. It is understandable that separate police stations, courts, hospital clinics cannot be built for small settlement areas.
• There is an urgent need to assist communities such as Maphepheni and Doringkloof by providing intervenors to mediate internal disputes for purposes of development. The fact that community members easily loose confidence in elected committee is a serious one, and that simply means there are no operating committees in many DLA projects which established legal entities.

It remains questionable whether the sudden and largely non-consultative shift in policy direction will force government to reorient its efforts towards finding local solutions, some with the involvement of local government and others independent of government.

1. Land reform legislation and policy re-assessment research and stakeholder engagement;

2. knowledge human rights and land rights education and training on tenure security, access to land and other social and productive resources;
3. the position and role of women and children are emphasized within (i) and (ii) in order to fulfil women and children’s needs;
4. that land reform programmes target rural communities in different tenure arrangements affected by poverty and HIV/AIDS, illiteracy; and lack of necessary and empowering information;
5. DLA needs to work closely with the local authorities to prevent conflicts, duplication of work and development;
6. government should establish relations with the private sector so as to enable the private sector to act proactively to alleviate land hunger, in one of two ways:

2. government also needs to make it easy for poor communities to engage with its processes that are intended to influence land reform policy. Two aspects are crucial to this strategy:

- ensuring that the concentration of government resources on deracialising the commercial farming sector does not further marginalise the rural poor; and

- highlighting the negative consequences for the poor of the shift in policy of transferring land to tribes;

3. establishing legal entities is not an end in itself but requires continued assistance and guidance with the running of the entity. There is a limited value in distributing land to community members without implementing projects for the productive use of land, there is therefore a need to assist communities in becoming productive through self-sustaining development;
4. the problem of land rights acquisition now demands further assistance in the form of community facilitation and capacity building to enable poor rural communities to manage and sustain the development process;
5. in order to give practical effect to the intent and purpose of land reform there is a need to secure tenure, provide housing opportunities, residential sites, proximate schools, usable amenities and infrastructural services;
6. the National Land Tenure Conference held on November 2001 has reassessed the policies and laws on land reform and the outcomes were supposed to influence new policy and implementation strategies. It is important that the policy debate be reoriented to focus on constructive and positive interventions, which show the advantage of particular approaches, rather than remaining at the level of ideology.

In the context of land reform in South Africa, it is important that "constitutional development" is understood as involving and progressive. The aim is to ensure that the jurisprudence advances social upliftment and life conditions of the majority of citizens. The previously marginalised continue to be excluded from equitable share and participation in political, civil, social, economic and cultural affairs of the society.