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The Pace of Land Reform in South Africa

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									                  The Pace of Land Reform in South Africa
    Submission to the Portfolio Committee for Agricultural and Land Affairs,
                               National Assembly

                      Public Hearings held on 18 – 20 October 2004


Introduction
The South African Human Rights Commission (SAHRC) supports and echoes
the call from the many landless people in our country that the pace of land
reform is too slow. At the same time, the SAHRC recognises within a human
rights framework that there has been progressive realisation of the property
rights contained in the constitution that seek to redress the imbalances of the
past. The denial of access to land to the majority of the country’s citizens
during Apartheid is one of the greatest challenges that our young democracy
faces. The Commission welcomes the Portfolio Committee’s holding of these
public hearings. The pace of land reform within our constitutional democracy
and the expectations and needs of our landless people is an important issue
that needs rigorous debate. As a country we constantly need to reflect and
assess on what we have achieved in an endeavour to improve on our past
performances and in so doing contribute towards the delivery of rights to all
who live in this land.

The mandate and functioning of the SAHRC
The SAHRC is one of the independent institutions created in terms of Chapter
9 of the Constitution to support democracy in South Africa.

The SAHRC is mandated by section 184 of the Constitution to:
   (a) Promote respect for human rights and a culture of human rights;
   (b) Promote the protection, development and attainment of human rights;
       and
   (c) Monitor and assess the observance of human rights in the Republic.

The SAHRC has chosen as its focus areas the elimination of discrimination
and the alleviation of poverty. In focussing our work on these areas, the
commission is particularly alert to vulnerable groups such as children, persons
living with and affected with HIV/AIDS, persons with disabilities and non-
nationals.

Under the guidance of Commissioners and the Chief Executive Officer the
work of the SAHRC is delivered through the departments within the


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Secretariat. These are: the Legal Services Department; the Education and
Training Department; and, the Research and Documentation Department. In
addition the SAHRC has offices in seven provinces and a presence in the
remaining two; namely, North West and Mpumalanga through which its
services are delivered.

Land Rights work within the SAHRC
This submission will draw largely on the work of the Commission in its areas
of land rights. The two major areas of work include the Economic and Social
Rights reports that the Commission produces each year and the Inquiry into
Human Rights in Farming Communities.

In June 2004, the SAHRC released its 5th Economic and Social Rights Report.
The Report covers the period 1 April 2002 to 31 March 2003. This work
derives its mandate from section 184(3) of the Constitution which states that:

         “Each year, the Commission must require relevant organs of State to
         provide the Commission with information on the measures that they
         have taken towards the realisation of the rights in the Bill of Rights
         concerning housing, health care, food, water, social security, education
         and the environment.”

In August 2003, the SAHRC released its Final Report on the Inquiry into
Human Rights Violations in Farming Communities. This was a national inquiry
that looked at issues in 4 broad areas, namely land rights, labour rights, safety
and security rights and economic and social rights. The land rights sections of
the Inquiry focuses predominantly on tenure security rights.

Land Reform
Land reform in South Africa is divided into three broad areas, namely land
redistribution, land restitution and tenure reform. This submission will discuss
the challenges that the SAHRC has identified in these areas that impact on
the pace of land reform.

The general conclusion of the 5th Economic and Social Rights Report was that
there was a year on year improvement in land delivery performance by the
State, especially through the land restitution and land redistribution
programmes. Improvement in rural land tenure reform was found to be less
noticeable.

Throughout the Report, the Commission reflects on the demand, voiced by
landless people and others, that the pace of land redress is too slow and
inattentive to vulnerable groups. The Report recommends accelerating land
reform to meet its new targets by relieving budgetary constraints; addressing
personnel shortages within the Department of Land Affairs (as well as the
related issues of lack of quality training and understandable communications);
addressing issues of land acquisition in order to provide land for redistribution;
and the need for improvements in the monitoring and evaluation of land
reform.



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Land Redistribution
Since 1994, only 2% of land has been redistributed. This falls far short of the
30% that was targeted for by government. The two main reasons identified by
the SAHRC for this failure in this area is the lack of land available for
redistribution and the lack of adequate and integrated support services to
beneficiaries of land redistribution programmes.

Challenges to the pace of land redistribution
   Transferring land to the disadvantaged
         o There is a scarcity of viable commercial agricultural land in
             South Africa. There is only a small fraction of commercial
             agricultural land in the possession of the State.
         o Present landowners of commercial agricultural land do not
             willingly sell their land. In some instances there is a tendency by
             these landowners to overprice their land.
         o Land in South Africa is expensive and buyers including the State
             cannot afford to purchase land.
         o The DLA has not used its powers of expropriation in suitable
             instances to expropriate commercial agricultural land where it is
             needed for land redistribution programmes.
         o In those instances were land is sold by commercial farmers
             there are bureaucratic structures that prolong the sale of land
             resulting in not being an attractive option to landowners.

        Overall economic development of the rural communities
           o There is often inadequate post transfer support
           o There is no centralised integrated institution that coordinates the
               services that are needed for beneficiaries of land programmes.
               Land reform cannot happen in isolation to other socio economic
               rights.
           o There are budget inadequacies resulting in some provinces
               having already committed their budgets for the coming years
               and being unable to process further LRAD applications.

Thus whilst the LRAD Programme, the major delivery vehicle of the DLA’s
land redistribution programme, has reached its targets, and in some cases
have gone beyond these targets, there are still many challenges that need to
be addressed in order to ensure that land redistribution is successful in the
long term. The major weakness of land redistribution lies in the
ineffectiveness of post settlement support of LRAD projects.

Rural communities are growing impatient with the slow pace of land reform.
There is the risk that this impatience could give rise to drastic measures
outside of the legal and constitutional framework being taken by communities
- such as land invasions. The SAHRC cannot support such actions that occur
outside of the law. However, the genuine frustrations of people on the ground
need to be managed and addressed. To this end, it is critical that effective
communication and education programmes about land reform is embarked
upon by the DLA in order that communities can understand the complex


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nature and challenges that face government in delivering upon and realising
land reform.

During the public hearings of the Farming Inquiry a call was made for the
amendment to the property clause in the constitution as this was viewed as an
obstacle to the pace of land reform. In 2004, the SAHRC hosted a seminar on
this topic. Arising out of the seminar, the SAHRC was not convinced that the
property clause as it stands acts as an obstacle to land reform as the precise
nature of how it impacts on land reform could not be adequately identified. It
appeared rather that land reform was impeded by poor implementation of
legislation and policies and that certain policy choices that have been made,
such as the willing-buyer / willing seller principle and the DLA’s policy towards
using its expropriation powers, should be revisited.

Land Restitution
Undoubtedly, great progress has been made in the area of land restitution.
Having begun very slowly, the pace of land restitution delivered through the
Commission for the Restitution of Land Rights (CRLR) has increased
enormously. This can be attributed to the fact that in settling claims, land
transfer is not always the chosen method of compensation. Rather, financial
compensation is awarded to claimants.

Should the nature of the settlements granted to claimants exceed the budget
allocation then the 31 December 2005 deadline for the processing of all land
claims may not be reached. It should also be noted that there are still a
number of rural claims that must be settled. In some instances, these claims
involve large tracts of land over which complicated and pro-longed
negotiations with the current landowner are necessary. Based on these
factors it is not certain that the CRLR will compete its work by the end of
2005.

Challenges to the pace of land restitution
   The number of outstanding unsettled claims
         o There are still many land claims that must be finalised and it is
             not certain whether the 31 December 2005 deadline will be
             reached. 48 825 claims (as at 31 March 2004) have been settled
             since 1995. Whilst the CRLR is reportedly working in overdrive,
             the other government departments with which they must interact
             do not operate with the same sense of urgency.

        Political pressures
            o President Mbeki has set the cut off date at 31 December 2005.
            o There is pressure from NGO’s that the process be completed.
            o There is a lack of support for the process from some
                 landowners.

        Minimal resources
            o The CRLR budget may be insufficient for it to complete its work
               by the cut off date.



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              o The CRLR is currently experiencing a high staff turnover rate in
                anticipation of its closure in December 2005.
              o There is currently insufficient staff for the CRLR to carry out its
                work.
              o Contracted service providers are also not adequately skilled and
                proper control and monitoring of heir work cannot be carried out
                due to a lack of staff within the CRLR.
              o Expensive prices of land

        Other
            o Illiterate claimants, resulting in claims taking longer to process
            o Claimants not possessing basic documents such as ID
               documents, resulting in delays in the processing of claims.

Land reform is not an end in itself; it must go beyond mere compensation or
settlement and focus on economic empowerment of rural communities. It is
thus important that claims should not be processed merely in order that we
can state that the process of land restitution is completed; or, that the process
of giving monetary compensation to claimants acts as a poverty relief
measure rather than as constitutionally demanded land restitution process to
address the imbalances and injustices of the past. Rather, restoring land to
rural claimants should be favoured within a context in which the necessary
support is provided in order that the land is used in a sustainable and
productive manner that contributes towards the economic empowerment of
poor rural communities.

Land Tenure Reform
Arbitrary evictions continue to occur in South Africa despite the promulgation
of legislation such as the Extension of Security of Tenure Act 92/1997 (ESTA)
and the Land Reform (Labour Tenants) Act 3/1996 (LTA). Despite the
protections in ESTA there have been very few criminal prosecutions for the
act of eviction against a landowner. Many farm dwellers still do not enjoy
security of tenure. ESTA is a contested piece of legislation amongst role-
player with landowners claiming that parts of the ESTA are unconstitutional
and expressing open dislike for the legislation; and, farm dwellers arguing that
the legislation does not provide them with enough protection.

Land rights in the communal areas, which constitute 13% of the country’s land
surface and which is home too a third of the population, has still not been
adequately dealt with. The Communal Land Rights Act only came into law in
February 2004.

Challenges to the pace of tenure reform
   The implementation of legislation has been weak resulting in
      enforcement mechanisms failing to provide the necessary protection.
   The lack of institutional and financial support to implement the
      legislation results in systems that are shielded from external
      observation.
   There is a lack of knowledge of the legislation amongst all role-players.
   There is a lack of compliance with the legislation.



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        There has been insufficient training about the legislation for relevant
         role-players.
        Bureaucratic processes and a lack of strong institutions constrain
         projects. E.g. working relationships between the DLA and
         municipalities has not always been satisfactory.
        There is no eviction monitoring system.
        Many cases of eviction go unreported due to a lack of knowledge about
         the law or a lack of access to justice to enforce rights contained in the
         law.
        LRAD has been given preference over tenure reform projects.
        There is a scarcity of land available to provide secure tenure.
        The process of providing secure tenure and determining land rights in
         the communal areas has not been realised due to a lack of adequate
         legislation. Many role-players contest the current Communal Land
         Rights Act.

Security of tenure is another area of land reform that demands the
cooperative interaction between different government agencies. There are
many state role-players such as the DLA, police, court prosecutors,
magistrates, and social workers, amongst others that need to work together
when confronted with an eviction that has occurred. The ESTA Forums that
have been established in some of the provinces are supported. It is
encouraged that those provinces that do not have ESTA forums establish
them in order that inter departmental cooperation can take place in eviction
matters.

Recommendations
The SAHRC has made a number of recommendations in its Economic and
Social Rights Reports as well as it Final Report on the Inquiry into Human
Rights Violations in Farming Communities on measures that can be taken that
would speed up the pace of land reform in South Africa. Listed below are a
number of these measures:

    a. Staff
The shortages of personnel within the DLA must be addressed urgently.
Vacant posts must be filled.
Adequate training for staff must be provided in order that they may adequately
carry out their tasks.
The DLA must make greater use of field workers who can respond to
situations quickly and effectively.
Field workers must actively seek out those instances of human rights abuses
that occur in accessible areas and where abuses are generally not reported.

    b. Budget
    The land reform budget must be increased if the pace of land reform is to
    increase.
    The DLA is no longer under spending its budget as was occurring in the
    past. The budget now appears to be inadequate given the enormity of the
    task at hand.



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    c. Policies
    Revisiting the willing buyer / willing seller policy
    The willing-buyer / willing-seller concept does not always benefit landless
    people. This market-based concept of redistribution favours emergent
    farmers and not the landless poor who do not have a financial base on
    which to enter land programmes. Other methods of land redistribution
    must be explored.

    A policy needs to be determined which sets out when the use of
    expropriation powers would be suitable.

    The purchase of land by foreigners needs to be investigated in order to
    determine whether this has contributed to the boom in property prices. The
    Inquiry that has been established by the Minister, in this regard, is
    supported.

    d. Greater inter departmental cooperation and multi stakeholder forums
    Effective support mechanisms must be put in place to help resettled
    families and communities with the rehabilitation of their land so as to
    promote development and alleviate poverty. Inter departmental
    cooperation and multi stakeholder forums should be formalised with plans,
    strategies and Memorandum of Understandings.

    e. Farming Community Forum
    A Farming Community Forum, as recommended in the SAHRC’s Farming
    Inquiry Report. needs to be established. This forum for dialogue should be
    created between the three major social partners from farming
    communities: namely, farm dwellers, farm owners and government. This
    forum will create a platform where parties can confront each other on an
    equal basis to resolve issues that impeded the enjoyment of rights in rural
    communities.

    f. Developing effective monitoring and evaluation systems
    Incidents of rights violations must be monitored and recorded.

    g. Strengthening provincial DLA offices
    Provincial offices must be empowered to draw plans and budgets for the
    implementation of all land reform programmes.

    h. Seeking creative ways in which to make land available
    The DLA must consider commencing the use of the Subdivision of
    Agricultural Land Act Repeal Act 64 of 1998 to make more good quality
    land available to land reform beneficiaries.
    The Proactive Land Acquisition Strategy must be implemented in order
    that it complements the sub-programmes and support projects pertaining
    to settlements and housing.

    i. Developing effective monitoring structures
    Monitoring structures are necessary for ESTA to be effectively
    implemented and for illegal evictions to be stopped.


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    j. Tenure Reform
    The consolidation process of ESTA and LTA needs to be speeded up and
    implemented effectively.
    The Alternative Dispute Resolution project of the DLA needs to be
    finalised and implemented.

    k. Education and Information Dissemination
    The DLA needs to increase its education and information dissemination
    activities in order that communities are adequately informed on the
    progress of land reform and also that they are educated about the
    complexities of land reform.

    l. Providing a voice for the landless
    The DLA needs to create more local forums that will provide a forum for
    the voices of the landless to be heard. The forum must also provide a
    forum where landless people can participate in the decision-making
    processes around land reform that affect them.

Conclusion
In considering the pace of land reform in South Africa, we must be guided by
the constitution and the rights enshrined therein. The Constitution sets out
specific obligations for government to ensure that redress is provided for past
racial discrimination. In the Grootboom judgement (Government of the
Republic of South Africa and Others v Grootboom and Others 2000 (11)
BCLR 1169 (CC)), the Constitutional Court emphasised the three elements
that must be considered in determining whether the State is fulfilling its
constitutional obligations. These are: progressive realisation, the
reasonableness of the measures and the availability of resources. Whilst on
the whole it may be said that the DLA has generally achieved progressive
realisation of this right, there are aspects of the land reform programme that
may not stand up to constitutional scrutiny. For example, the reasonableness
of the measures implemented to provide tenure security could be challenged
based on the lack of effective implementation of this legislation.

Albeit that the pace of land reform has been slow in South Africa, it becomes
increasingly clear that land reform cannot be viewed in isolation from other
social and economic rights. Land reform needs to be approached within the
context of development and the alleviation of poverty. There needs to be
greater coordinated efforts amongst the key role-players in realising all of the
socio economic rights. It is of utmost importance that sufficient education and
information dissemination takes place in order that landless people are aware
of the complex challenges involved in land reform. Within this context we
need to reach agreement through consensus with key role-players what the
pace of land reform should be. Flowing from this consensus we need
indicators in order for us to determine whether the agreed upon pace is being
achieved.




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18 – 20 October 2004

								
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