In order to have a just reflection on the impact and the contribution of the restitution programme in South Africa, one needs to locate it within its rightful context. What seems clear and should not to be forgotten is that the restitution programme emerged as a solution to the legacy of a deep historical racial divide in South Africa.
Access to land and ownership patterns were and still are in the hands of few white farmers and agro-industries. Taking its mandate from the constitution, restitution seeks to address these skewed land access realities and give land back to black people who suffered loss of property as they were forcibly removed from their land.
The reality of South Africa has shown that hunger for land and widespread abuse taking place on farms are not historical realities but still exist today. People living in the region have seen growing poverty and deepening inequality. The big question is why? This article looks at this question as a way of exposing the limitations of restitution and examining if it is aloof from real socio-political dynamics that exist in our society.
Interpretation of the Restitution Act Within the Department of Land Affairs (DLA) there is no clear collaborative understanding between the Land Reform Office (responsible for the Tenure Reform and Redistribution Programmes) and the Land Claims Commission (LCC). It appears from the Land Claims Commission’s side, there is no willingness to face the fact that over decades, movement of communities searching for jobs and security have increased the number of people living on farms as tenants and/or as labourers. This attitude becomes clear when one observes the manner in which they interpret section 25 of the Constitution and the Restitution Act 22 of 1994. The over emphasis on rights of original residents or claimants blunts the LCC’s sensitivity towards the rights of current farm tenants. Despite the introduction of the Labour Tenants Act of 1998, sometimes referred to as the Land Reform Act, there still is no recognition of the weight of rights of tenants. This competition and misinterpretation of pieces of legislation often leads to conflict among communities as they wrestle with the question of rights of access and ownership of land.
Market friendly policies One wonders why there is such an emphasis on market friendly policies. Some of the reasons can be attributed to the actual foundations of the restitution programme. As an element of land reform, it too is based on a neo-liberal policy framework. Use of the word security goes beyond the meaning of “occupation and usufruct rights, free from threat of eviction, with access to productive land and natural resources which are essential for rural livelihoods” but instead are stretched to notions of ‘security’ which fi t within policies of economic liberalisation and privatisation. It seems that in the restitution programme, the underpinning principle is economic viability of the land, therefore secure rights need not upset the ongoing economic activity, or prohibit potential economic activity. This has often led to widespread threats of eviction of people currently residing on farms and in some cases is the cause of evictions on farms. Potential landowners often prioritize profit, yet to be generated, over the rights of tenants living on the farm. This has shown itself as black farmers increasingly getting involved in large scale agri-business or game farming.
What went wrong?
It seems that restitution as a programme has been stripped of its political and historical mandate. What was supposed to be its mission is to promote equity for victims of dispossessions by the state, particularly the landless and rural poor. Further, restitution purportedly strove to contribute towards an equitable redistribution of land rights. Its values are the promotion of gender equity, just and equitable redress, prioritizing the needs of land development and promotion of Batho Pele.
It is increasingly evident that none of the above has been achieved. The rural poor are even more vulnerable, particularly women and children. Urban business patriarchy and traditional leadership are increasingly gaining more support from the restitution programme. The detachment of the programme from its real mandate has resulted in a lack of co-operation from within DLA and enormous lack of cohesion between programmes. If there was just emphasis on restitution, it would have considered the value of other programmes and their contribution to land reform. This would have positively affected abuse of women and children on farms and threats of evictions.
In summary there are a few convictions that one needs to put forward. Restitution has for the past twelve years, been as follows:
• It is like a train on the wrong rail, moving in the wrong direction and driven by the wrong driver.
• Whatever is done, is not done for justice but is driven by money.
• Land does not get into the hands of the right people.
• It is a façade, with no substance, and blames the victims whom it is meant to be helping for not taking advantage of it.
• It has introduced foreign concepts (mainly the pursuit of the economy) to rural people, which disrupts their rural lifestyles.
• It does not give back the full value of what was lost.
• It plays with peoples’ trust, therefore it has no integrity.
For real land reform to take place, restitution must be seen as part of an integrated whole. It is not above other land reform programmes. Land reform, through all its programmes, needs to take into account the experiences and history of landlessness, and unfold in a way which distributes resources fairly to bring change based on what people really need, not what the market wants. It should be noted that unless this is done, heresy incubated within restitution will grow, a neo-liberal economic agenda will continue to oppress more people and we will see even more forced removals.
The Restitution cut off date
When the State President announced his first cut off date of December 2005 for the work of the Restitution Commission, it was accepted with mixed feeling by different people and organisations. AFRA, as a land rights organisation, welcomed the decision around the first cut off date of December 2005. The subsequent extension to 2008 takes the programme past its sell by date.
AFRA believes that if this programme was shut down timeously, it would provide an opportunity to properly critique and review the programme. This argument is based on the premise that from the outset there has been little correlation between numbers of people historically dispossessed of their land and the number of people who lodged restitution claims. The 1913 cut off date, while probably a sensible provision to avoid dealing with complex historical confl icts, has meant that restitution can only look at dispossessions that took place after South Africa had already been colonised, during which period the largest land dispossessions had already taken place.
The restitution programme needs to shift the balance of forces in power, particular within the agricultural economy, and land tenure patterns caused by racial discrimination – which it is not doing because of the way it was conceptualised.
Whatever the strength and limitations of the restitution process, by its nature, it has a limited contribution to make to a fundamental change of property relations.