Introduction

This report confined itself to the mandate of monitoring land reform in South Africa, as reflected in section 25 of the Constitution of the Republic of South Africa (the Constitution). This section sets obligations for the state to:

1. institute measures in order to facilitate equitable access to land, subject to the availability of resources (25(5));
2. guarantee tenure security of individuals and communities who were hitherto deprived under the apartheid laws (25(6)); and
3. compensate for property lost by individuals and communities post-19 June 1913 (25(7))

The above-mentioned provisions of the Constitution emanate from section 25, while the 1997 White Paper on South African Land Policy provides for three programmes within which land reform is steered, namely, Redistribution, Tenure Reform, and Restitution.

Therefore, in reviewing and evaluating the measures instituted to enhance the delivery of the Department of Land Affairs, the report used as standards the provisions in these documents, as well as existing international norms and standards, which enunciate state obligations relevant to the three programmes in question. The report also looked into the development of the Economic and Social Rights (ESR) jurisprudence in cases such as Grootboom and TAC, to see if the state’s objectives were realised reasonably, progressively, and as determined by available resources. These efforts are measured against the Constitutional obligations of the state to respect, protect, promote and fulfil the right of access to land, as enshrined in section 7(2) of the Constitution.

Consitutional Obligations

Overall, the Department of Land Affairs (DLA) did formulate and adopt several appropriate measures to ensure that the state does not violate the right of beneficiaries to access the right to land. This also means that the state should abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure, which violates the integrity of the individual or which in any way interferes or limits his/her right to pursue the enjoyment of the rights in the Bill of Rights.

We did not find any act or intention by the state to interfere or deliberately any citizen or prospective beneficiary the right to enjoy or pursue the provisions in the Bill of Rights.

Obligation to Protect (Section 7 (2))

It is the responsibility of the state to prevent the violation of the rights of individuals or communities by a third party/non-State actor. With respect to land, the state must protect vulnerable communities from farm owners or landlords.

Land Restitution

The restitution adopted the following measures in order to protect claimants of land restitution:

1. The Value of a Rural Claims Guideline was established to a) formalise the validation of rural land and a process to guide the settlement of rural claims; b) allow discussion of options with communities; and c) prescribe procedures for a legal entity, the valuation of property and the determination of the restitution award. In other words, the objective is to facilitate a process by which the DLA would approach rural claims
2. The Strategy to Deal with Claims on Forestry Land Conservation Areas and with Mineral Rights – through agreement with the Departments of Water Affairs and Public works – to deal with complicated claims of value like forestry land, land with mineral rights, and conservation areas
3. Standard Settlement Offer Policy Guidelines to establish alternatives for restitution packages for dispossessed urban claimants, and to speed up settlement of urban restitution for claimants who want financial compensation

Land Redistribution

Given the high performance of the Land Redistribution for Agricultural Development (LRAD) sub-programme, it was needless to adopt other policies and strategies. Instead, the DLA saw it fit to forge a link with the Land Bank aimed at accelerating LRAD’s contribution across all programmes.

However, the Land and Agricultural Development Act 15 (2002) was promulgated to replace the Land Bank Act (1944), with the objective of changing the patterns of land ownership. This it would do by providing financial assistance to historically vulnerable beneficiaries, thus advance productivity, profitability and provide conditions for employment, food security, and a sense of financial security for the rural areas.

Tenure Reform

Land delivery to labour tenants has also proved to be problematic, as there are numerous labour tenant claims that must be resolved. It is for this reason that a number of policies were adopted to protect vulnerable people.

1. Farm Dweller Programme to protect farm workers and labour tenants from arbitrary action. It seeks to provided illegally evicted people with alternative land
2. Alternative Dispute Resolution (ADR) was being developed with the objective of improving dispute resolution mechanisms for tenure legislation and related conflicts
3. Electronic Eviction System to monitoring and, therefore, determine the status of eviction. This system was still underway, consequently, fewer eviction cases have gone before the Land Claims Court
4. Land Tenant Act Claims to deal with applications that missed the March 2001 lodgement of labour tenants claims

The Communal Land Rights Bill was enacted after exhaustive consultations so as to eradicate discrimination and arbitrary practices in allotting communal land, thus guaranteeing tenure security to women and children. This Bill was developed to replace the Interim Protection of Informal Land Rights Act (IPILRA), which was a temporary measure to protect victims of tenure insecurity.

The Spatial Information Infrastructure Bill, which was due to be submitted to Cabinet late in 2003, sought to create favourable grounds for land redistribution, entrepreneurship and ownership. This Bill was introduced with the view to informing provincial land reform offices on the kind of land available for land reform as well as restitution projects.

As for tenure reform, the DLA transferred 30 000ha through 201 projects. Delivery in this regard has been quite minimal, and tenure security was still beyond reach. However, the government thought of strengthening the Extension of Security of Tenure Act (ESTA) and Labour Tenants Act (LTA) in the Consolidated ESTA/LTA Bill in order to ensure the protection of labour tenants.

Obligation to Promote (Section 7 (2))

The state is expected to promote awareness of their rights through public education and other means of information, in order to create an environment where people can enjoy their rights and freedoms. The Communication Strategy for Claimants and Other Stakeholders to inform claimants about restitution matters, and to improve communication between the DLA and provincial satellite offices. This was facilitated by a call centre.

By embracing the Communication Strategy for Claimants and other Stakeholders the CRLR was promoting the right of access to land so people did not remain ignorant of the application of the law and matters relating to land restitution.

Regarding land tenure rights, however, people were not well informed, even though there was evidence of rallies and workshops to inform prospective beneficiaries. But people would not even report unbecoming behaviour of landowners. To some extent, both landowners and public officials, particularly members of the police overlooked ESTA. Hence, illegal evictions went on unabated. Meanwhile, monitoring mechanisms have not yet matured.

Obligation to Fulfil (Section 7 (2))

The state is obliged to institute measures that enable people to access entitlements to the right. These measures cannot be secured through personal efforts. Also, the state parties are expected to provide a specific right when an individual or group is unable, for reasons beyond their control, to realise the right themselves by the means at their disposal, for example, people in disaster situations or those who are vulnerable.

We begin by looking at the restitution programme. That is, the state must refrain from interfering in order to deprive the citizens of the right.

Restitution

The Commission for Restitution of Land Rights instituted a number of strategies and projects. They include the following:

1. Condonation of (restitution) Claims to allow people to lodge claims after the cut-off date of December 1998. The plight of this category of claimants is covered by section 10(1) of the Restitution Act which states that people whose claims were late because they were ignorant of the deadline, may lodge their claims through other land reform programmes, for example, land redistribution and tenure reform
2. Settlement Planning Grant to assist poor communities acquire, settle and develop land. It also facilitates mobilisation of funds
3. Post-Settlement Support to ensure viability of projects after claims have been settled. Nine (9) Regional Land Claims Offices were established to facilitate and coordinate development.

Two pieces of legislation were considered. The Restitution of Land Rights Bill (2003) was introduced to amend the Restitution of Land Rights Act 22 of 1994, so as to empower the Minister of Agriculture and Land Affairs to acquire or expropriate land for restitution without a Court Order.

With regard to delivery, more restitution claims were settled during the 2002-2003 financial year than during the 2001-2002 period. Whereas there were 12 094 claims settled during the 2000-2001 reporting cycle, there were 36 488 by March 2003 – an increase of close to 25 000 settled claims in 11 months. This was far more than was targeted Most of these claims were urban base, although rural claims increased appreciably. Among these were claims, which involved conservation land in Kwazulu-Natal (48); Mpumalanga (35); Eastern Cape (23); and Limpopo (13).

Land Redistribution’s LRAD has also delivered more land surpassing its targets for the 2002-2003 financial year – 103 682ha against the target of 81 555ha. This land went to 6 170 people instead of the targeted 3 601 beneficiaries. This was encouraging, given the compelling need for more land distribution.

Tenure Reform

Several policies and strategies were adopted. They are:

1. Proactive Land Acquisition Strategy, which cuts across all land reform programmes, to direct policy on land acquisition and land for housing for informal settlements
2. Urban Renewal Programme to spearhead projects in given townships in the Northern Cape, Gauteng, Eastern Cape and Western Cape, to alleviate poverty
3. State Land Disposal Policy to dispose state land for agricultural purposes. The DLA is expected to release land to the state. Land administration guidelines were completed

Having evidenced the DLA’s formulation and adoption of policies and strategies, it is our contention that the state is fulfilling its obligations to facilitate right of access to land.

Assessment and Critique

Section 27(2) of the Constitution requires the state to "take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation…" of given rights. Therefore, it is important that, in examining the state’s performance, we look at the standard of reasonableness and the Constitutional limitations, namely, availability of resources and progressive realisation.

The DLA has taken appropriate steps to institute measures to meet the requirements of reasonableness. This reasonableness is substantiated by the achievements of land reform programmes. This is in line with the Grootboom judgement that measures will pass the test of reasonableness not only in conception but also in their implementation. LRAD performed exceptionally well in its ability to distribute land through all programmes, having made it possible also for labour tenant applicants to be awarded housing grants. The pieces of legislation that were instituted and amended, for example, the CLRB, Tenure Security Laws Consolidation and Amendment Bill, as well as the Restitution Act, will ensure that the rights of prospective beneficiaries of land will endure. Also, the policies, projects and strategies cited above prove that there are efforts by the DLA to reach the set objectives and goals.

There was a noticeable improvement in DLA’s spending of the allocated funds. Taking one programme after the other, the budget was used thus: Of the R1billion allocated for the year under review, R394m went to the restitution programme, while R417m was shared between the land reform programmes, namely, redistribution and tenure reform (which got R2.2m) for its projects. Tenure reform looks like the only programme short-changed, because the Medium Term Expenditure Framework (MTEF) has allocated only R5.8 million for the financial years between 2002 and 2006.

Compared to the 2000-2001 financial year, where the department had a deficit of more than R150 million, there was in 2002-2003 a limited budget under spending of R14 million. That implied that even with limited budget allocation, 0.5% of the total government for 2002-2003, the department worked satisfactorily. Provincial offices also reported over-commitment of their budgets. However, while the DLA saw the R14m as minimal, we would like to maintain that the funds could have been channelled to other programmes, for instance post-settlement support.

The restitution budget was not adequate; hence, the Land Restitution Commissioner, Tozi Gwanya, proposed that R1.2 billion was needed to service the settlement of claims during 2002-2003 only.

Nearly all of the land reform allocation was spent, with approximately R1,6m deficit. The money did not include allocation for LRAD projects, which had a budget of R442 million.

There is a shortage of human resources in the DLA, which affected performance; hence, projects, for example, post-settlement support could not be attended to successfully.

Progressive realisation is contingent on the availability of resources and being goal-oriented, within a given period of time. DLA is determined to correct its shortcomings by removing obstacles. In preparing for land delivery, the DLA is also formulating plans to further the development of the beneficiaries through post-settlement support projects (although these are still few and far between). Thus the environment for progressive realisation is gradually being opened.

Overall, there was minimal progress, considering that targets were not met within the initially set time period. This is due to numerous challenges the DLA still has to overcome.

Challenges

Despite the outstanding performance during the year under review, the DLA is facing serious challenges. It is irrefutable that the land reform programme has remained slow. Only an estimated 2,4% of the targeted 30% land was transferred in ten years. This paints a gloomy picture, as the goal was to transfer 25 million hectares in 5 years. Even though the targets have been shifted, there are questions remaining on how these targets will me met.

Various reasons account for this slow pace in delivery. Even if there were financial resources, the daunting problem remains that of land scarcity. Most land is still in the hands of white commercial farmers, who are reluctant to part with it. The market-based willing seller, willing buyer notion is an added burden, particularly for emerging and aspiring farmers. Meanwhile, white farmers blame bureaucratic processes as obstacles to the sale of land.

Limited budgets are also limiting delivery, as plans have to be designed within the allocated funding. The DLA still has to deal with the massive numbers of claims yet unresolved, that is subject to additional funding. The lack of adequate post-settlement support projects affects other development imperatives, including laying down infrastructure, and training of beneficiaries.

With respect to tenure reform, it is unsettling that farm owners and other officials ignore provisions of legislation, and continue with arbitrary treatment of labour tenants and other farm dwellers. Many labour tenant applications have not been serviced in Mpumalanga and Kwazulu-Natal.

Restitution claimants are numerous in the rural areas, where problems comprise not only community disputes, but also complex claims that include claims with implications to conservation land, mineral resources and forestry. Other administrative issues include lack of documentation by claimants, and that other areas are treacherous in that they lack infrastructure for transportation.

Many beneficiaries are still ignorant of the programmes of the DLA. This problem is exacerbated by the fact that the department lacks people to post as field workers.

Recommendations

Conditions to avail land for redistribution must be created through the increase of the budget. Land scarcity does not only affect satisfying the needs of the beneficiaries to be granted restitution, but other aspects of development as well.

Funds must be mobilised to hire, train and retain more people in land programmes.

The willing-seller, willing buyer concept must be done away with, as it disadvantages both the government and the landless. The state should explore other ways of acquiring land; it may also learn from land reform programmes in other countries.

Given legislation must be reinforced in order to ensure tenure security of labour tenants and farm dwellers. The SAHRC must collaborate with the DLA on how best to enforce ESTA, in order to stop arbitrary actions of the landowners. Unfortunately, to date, neither the SAHRC nor the DLA initiated this collaboration. The DLA reported that 799 eviction cases went before the Land Claims Court between 1998 and 2003. Because the DLA does not have monitoring systems in place it cannot be confidently concluded that these statistics are reliable.