Seven facts about the Restitution of Land Rights Act

Thanks to the amendment of 1994’s Restitution of Land Rights Act, and the continued slow pace of transfer to land beneficiaries, land reform has once again been thrust into the public eye.

The department of rural development and land reform’s unilateral approach to implementing policy, and its apparent kneejerk response to political pressure, is having a significant impact on farming communities and those awaiting the transfer of land.

The government’s project to bestow autocratic power upon traditional leaders as a way to govern the former homeland areas has opened up more than a few political, cultural and economic cans of worms.  Here are seven facts to consider:

1. There’s a new expiry date
The most significant amendment to the Restitution of Land Rights Act of 1994 relates to the cut-off time for lodging land claims. The initial cut-off time of December 31 1998 has been changed to June 30 2019.

Another amendment states that the Act will “ensure that priority is given to claims lodged not later than December 31 1998 and which were not finalised at the date of the commencement of the Restitution of Land Rights Amendment Act of 2014”. 

2. Nobody cares about the expiry date
Although the amendment of the Act does not deal with claims relating to land held before 1913, a slew of claims initiated by royal houses and traditional leaders is claiming land that was supposedly dispossessed before the cut-off date.

In February this year President Jacob Zuma encouraged those present at the opening of the National House of Traditional Leaders to “find good lawyers” in order to facilitate their claims to the communities. Commentators say that the president has in effect encouraged chiefs to take custody of every land claim made within their jurisdiction.

3. Beneficiaries must work the land or lose it
The government appears to have been prompted to rethink the entire issue of land reform by the sheer number of communities voicing their anger about how commercially viable land acquired through restitution has been conditionally transferred or not transferred at all. 

A recent paper by Ruth Hall, an associate professor at the University of the Western Cape-based Institute for Poverty, Land and Agrarian Studies, argues that since 2011 the proactive land acquisition strategy has become the only route through which the state is redistributing land. 

“Eligibility is broad and unclear, yet new insistence on ‘production discipline’ suggests that those with the resources to continue commercial farming operations will be prioritised, and that the state will evict its beneficiary tenants unable to do so,” she writes.

4. Traditional land reform traditionally gets shot down
Two significant laws relating to land ownership in former Bantustan areas have been shot down already. One is the Communal Land Rights Act of 2004, which in effect transferred ownership of all the land in the former Bantustans to traditional communities headed by traditional councils. This law was struck down in the Constitutional Court in 2010. 

The other is the Traditional Courts Bill which, according to land rights researcher Aninka Claassens, “reinforced the construct of unilateral chiefly power within those tribal boundaries that coincide with the boundaries of the Bantustan, enabling chiefs to order forced labour and the power to take away customary entitlement such as land rights”. Lacking sufficient support, this Bill stalled in Parliament.

5. Reforms meant to counter the EFF are illogical
Earlier this year, the department of rural development and land reform announced plans to redistribute 50% of commercial farmland to farmworkers as a way of redressing past injustices. The announcement – seen by some as a political game to fend off the Economic Freedom Fighters, and its call for expropriation of land without compensation – proved to be illogical.

Land and agriculture researcher Stephen Greenberg wrote, “According to the proposal, all workers with between 10 and 25 years of ‘disciplined service’ on the land will be entitled to a 10% share equity based on market value of the land; those with 25-49 years service to get 25% share equity; and those with 50 years or more get 50% share equity. For example, if a farm has five workers with over 50 years’ service, will they each receive 50%? The only alternative is that they share the 50% allocated to this category. Thus, the more workers there are on a farm, the smaller their share. This is an arbitrary and unjust method of distributing resources.”

6. The Ciskei is the new frontier
While all eyes are on the spectacular land claims being made by kings and other traditional leaders, land commentators are saying the Eastern Cape should prove to be an interesting focus as the impact of the 19th century frontier wars is brought to the fore. 

Historian and former Nhlapo Commission commissioner Jeff Peires says lower-level traditional leaders in the former Ciskei are going to claim quite a few white commercial farms, because the Ciskei is where the frontier wars were fought. “From East London to the Free State, all those farms are on commercial land. And the frontier wars went up to the 1880s, affecting East London to Queenstown and beyond.”

7. Traditional leaders keep the economy lubricated
In a recent talk at a Wiser seminar on land rights, rural economy and mining researcher Gavin Capps argued that the shift in the government’s interest from urban to rural areas was related to the frenetic growth of the mining industry. 

“The consolidation of the South African state after 1910 – and the whole series of legislation that laid down the spatial and social and racial divisions of South Africa – was inherited [by the new democratic government] in 1994. The Land Acts of 1913 and 1936, the Nation Authorities Act of 1927 – the consolidation of these tenure laws is linked in part to the construction of the migrant labour system. Chiefs played important roles in the functioning of the system. This is part of their legacy despite the changes experienced in 1994,” said Capps.

“Where before the homeland areas were the places for the production and reproduction of migrant labour and the dumping ground for the reserve of labour, now these areas are becoming the prime source of the economy.”

• Read more from Kwanele Sosibo

• Twitter: @KwaneleSosibo