Part of the vision and mission of the Restitution of Land Rights Act, No. 22 of 1994 as amended, is to have persons or communities dispossessed of property aft er June 19, 1913, as a result of past racial discriminatory laws and practices, restored to such property or receive just and equitable redress.
The legislation does this in order to promote equity for victims of dispossession by the state, particularly the landless and rural poor, and to facilitate development initiatives by bringing together all relevant stakeholders.
Restoration of property or just and equitable redress?
The Restitution Act acknowledges the fact that people find themselves in different circumstances now at the time when the government provides this form of redress, and the legislation is therefore designed to meet these peculiarities by diversifying its options. The manner in which it does this is to allow for the provision of awarding of alternative land or monetary compensation in cases where original land lost cannot be restored.
What seems to be eminently clear from its vision and mission is that the main objective of restitution is to provide equitable redress to victims. But is the programme really achieving this objective? What becomesa problem is that the concept of redress is clearly not uniformly understood in South Africa leading to a variety of expectations not being met. In an attempt to answer this question let us look at what is being restituted, and see if this is really redress or not.
Are we really restoring what was lost?
Restitution is supposed to be about redress of losses that people incurred when they were dispossessed of land that they had legitimate control over and use of. Redress is currently off ered through three diverse options cited above, which include alternative land and compensation. However, AFRA, in working with different communities, has recognised that several issues were ignored in the debate and practice of restitution in South Africa.
One critical aspect is to look at what people lost, and which now needs to be restored. The issue that must be part of any restitution discussion and planning is that people lost rights to land but those rights formed the basis of access to natural, social and physical resources used to build their livelihoods. The concept of redress is both an individual and community issue, as well as a national imperative. The programme of restitution should restore the capacity of people, individually and communally, to survive economically and socially by restoring the capacity that was lost through dispossession. At the same time, it must also be felt at a national level to be incrementally empowering the sectors of the South African society that were disempowered and who have consequently remained disadvantaged for some time due to dispossessions and other forms of land rights losses. The redistributive element of restitution must be evidenced at a national scale. Monetary compensation as an option appears to be undermining this.
Is restitution contributing to changing land ownership patterns?
Another objective of land reform is to shift imbalances in current land ownership patterns, where black people who constitute the majority of the population of this country have access to only 13% of land. Restitution is one programme within land reform that, in terms of its nature and design, was expected to go a long way in achieving this objective. However, due to the diversification of options to accommodate peculiar circumstances in which people find themselves, monetary compensation has defeated this objective.
The majority of the claims settled so far were settled through a monetary compensation option. This does not make any significant changes in land ownership patterns and people’s lives. Instead it continues to entrench the status quo and keeps people trapped in poverty. Due to a sense of desperation and demands to take care of immediate needs, people tend to opt for monetary compensation. As soon as this money runs dry they return to demand a stake in land. Their argument here has always been that monetary compensation is for the sufferings they incurred and challenges they had to face in a whole range of areas in life due to being removed from their land.
Broader development vs redress
Restitution communities find themselves in a very challenging situation. The issue of access to and control of land is a very serious, sensitive issue. It carries sentimental value, which links them to their history and a sense of identity and belonging. While a Land Reform programme is being implemented, it does not seem to be supported by the South African government as a priority over other public and private interest issues. In fact the line between private and public interest has become quite blurred as people’s claims get compromised to give way to conservation and tourism issues, as well as economic ventures with minute benefits to farm dwellers or claimants.
Private interest business plans which clearly indicate that there might be some economic spin-off s to be derived from that particular venture, seem to be passports to land acquisition under the feet of claimants. Black communities who are not just illiterate and cannot manage to put together these fancy business plans, but who also lack financial power to aff ord paying exorbitant amounts charged by service providers for compiling business plans for them, are left to explain why the private business venture should not replace their hope for redress.
The Gongolo and Dukuduku experiences This is what is happening in Gongolo where the landowners’ company, the Gongolo Wildlife Reserve, marketed a business plan to different government departments in the province. Faced with a dilemma between seeing people’s claims through on the claimants’ terms, and supporting the slick economic venture, has lead to many government officials remaining shy in the process. Quiet negotiations with land owners and increasing pressure on claimants to come up with a “better” plan, has left claimants extremely suspicious of government intentions. Under such circumstances possibilities of real social justice and redress remain slim without concrete government support.
People of Dukuduku are also faced with the same fate where their rights in land, as a legitimate restitution claim, over an area that includes a state owned natural coastal forest seems to be out-weighed by nature conservation and tourism issues. A number of attempts have been made by the RLCC, in collaboration with other government departments like Water Affairs and Forestry and Ministers from Local Government and the Housing Department, to frustrate the Dukuduku community claim.
What seems to be ironic here is that even the Land Claims Commission officials seem not to be on the same wave-length about what the policy says, and/or implications in terms of implementation. People seem to be doing different things at different times around similar policy issues. The Chief Land Claims Commissioner acknowledges the fact that people have always co-existed compatibly with nature, generation after generation, and that they still do.
That is why, according to him, people are going to take transfer of land, even land that is deemed to be heritage land and land that attracts tourists. What is happening at Dukuduku is contrary to the Commissioner’s gospel. Powerful interest groups play themselves out around the claimants who find little solace in the RLCC’s haphazard and inconsistent approach to supporting their claim for redress.
Lessons about restoration and redress While it is important to have options available to claimants in order to ensure that their particular needs are met by the restitution process, we need to be mindful that the restitution process meets its objectives with each group of claimants. Unless claims are settled in a manner which gives a real sense of redress to the claimant group and which takes into account loss of history, livelihood, dignity and time as well as loss of a stake in the property market — can it really be called restitution?
