A claim for land

Land & Local Government: Implications of Restitution
AFRA News No. 61 December 2006
A claim for land: What’s the difference between a Labour Tenant claim and a restitution claim? - Bheki Ndlela

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It is well known that the Restitution Commission has been encountering difficulties in dealing with rural land claims, particularly those claims which include farm land. Amongst the challenges faced by the DLA Provincial Land Reform Offi ce (PLRO) and Regional Land Claim Commission (RLCC) in KwaZulu-Natal is the resolution of overlapping Restitution and Labour Tenant claims on farm land. The issue is made more complex in the rural environment where, unlike urban claims where people would ordinarily opt for monetary compensation, ownership of the land is a more critical aspect.

The origin of difficulties with overlapping claims is the lack of collective approach or strategy between the Department of Land Affairs (DLA) and the RLCC in dealing with them. Also, through the likes of the Agri-BEE policy, government has created expectations amongst communities that real opportunity exists for them to become small farmers and thereby to sustain their livelihoods. Yet there is a lack of implementation strategy with regard to the new policies and processing of claims. The issue of overlapping claims has become a struggle for both sections of the DLA in KZN.

Why do labour tenant and restitution claims overlap?
Historically major countryside or rural dispossessions where driven by the demand for labour in mines and also by market demand for agricultural produce. People who were living as subsistence farmers (peasants) were stripped of their land and forced to work for white farmers in return for occupational rights, thereby becoming labour tenants. Another form of dispossession was as a direct result of notorious discriminatory apartheid government acts.

When the new government came into place in 1994, it created opportunities for all those who were dispossessed as a direct result of past discriminatory laws to submit applications for their rights to land to be restituted through the Restitution Act no 22 of 1994. Th e government also recognised the impact of historical laws and practices on people living on farms as farm dwellers, hence the Land Reform (Labour Tenants) Act. Claimants were advised to make Section 16 applications under this Act, for assistance in securing tenure rights to land on which they live and use.

In many areas these claims overlap – the same piece of land is being claimed under two diff erent Acts by diff erent groups of people for redress of dispossession at diff erent stages in our history. In other areas, the same group of claimants has made a claim under each piece of legislation. Why? Because people are looking for the simplest, easiest and fastest solution to justice and to secure tenure or acquire land.

The primary problem is the way in which the two laws have been conceptualized. The issue of tenure has not been addressed in a coherent way and there is no clear strategy to address the land needs of people. Th ere is fundamentally a lack of political will to deal adequately with land matters and as a result there are no mechanisms in place to substantively address these overlaps. Government offi cials are working on the assumption that there is a right which supersedes or overrides the other i.e. A Restitution right overrides any right on land. However this has never been tested in court. Th e outcome of this confusion is that claims have been delayed and claimants have been left in darkness.

Impact of overlapping claims

There are numerous cases where claims under these two Acts overlap in KZN, and where the rising confusion from both Departments’ officials filters down to the communities. Some classic examples of overlapping claims are Gongolo in the Estcourt area, Ingogo in Newcastle and Impendle State Land at Impendle.

For the purposes of this edition, I interviewed people from community structures from these areas to get their views on the matter:
Mr. Sthembiso Mahlaba – Gongolo Community Committee
Mr. Mahlaba is chairperson of Gongolo Community Committee, which represents both claimants groups.
“These overlaps are a problem to communities, especially those living on farms, as the RLCC official always stresses that Restitution supersedes Labour Tenant Claims. That alone causes uncertainty for communities living on farms. It has left people confused about whether they have any rights as labour tenants. In fact, what’s happening here is that the government is causing unnecessary confusion amongst the community with its programmes, instead of addressing our land need.
“Let me give you an example. With one of the farms here that the Commission has bought for people – Birdspruit Farm, Gongolo, there is community in-fighting over that farm because restitution claimants are telling inside people (the people living on the farm) that they, the restitution claimants are the land owners now and that they will make the rules, not the people living on the farm. “The DLA and Commission activities are not even connected to the Municipality’s programmes. Local Government offi cials and Mayors in particular are as confused as communities on the ground and that begins to tell us that Land Reform in South Africa is not considered as the key aspect of rural development.”

Mr. Zukwa Madlala – Impendle Tenants’ Forum
Mr. Madlala is the chairperson of the Impendle Tenants Forum representing people currently living on farms under Impendle State Land. The committee was formed as a response to the current land crisis at Impendle.
“Mfowethu, I don’t want even to talk about something happening here at Impendle. We thought everything would be simply as it was promised by government offi cials from DLA. However things turned out to be a nightmare after we found out that there is a restitution claim in this area. Government departments – DLA, RLCC, Ezemvelo and Agriculture – are playing games with us.
“We are not sure about our future. These departments are not consulting with us as labour tenants who have lodged claims, and every consultation done is with Restitution claimants. I don’t know whether it’s because their claim is better than ours. “We can’t even use the land because we are waiting for these claims to be resolved. It is more than 10 years now. Mfowethu, I think the only thing these departments had done well is to create confl ict and confusion among the restitution and Labour Tenants Claimants.”

Mr. Micheal Majola – Abathembu Restitution Claimant Group
Mr. Majola is the chairperson of the Abathembu Restitution claimants and also sits on the Gongolo committee.
“I think the government is making a mistake in separating the claims according to its programmes, especially in areas like Gongolo where people regard themselves as one. Perhaps if some kind of a collective approach was used with such claims we wouldn’t be experiencing such problems and delays. I also think that maybe it’s time now for labour tenants to take their matters or cases to court.”

Mr. Mangaliso Kubheka – Ingogo Restitution Claimants Trust

Mr. Kubheka is the member of Newcastle Farm Dwellers Committee and also member of Ingogo Restitution Claimants Trust.
“I think lessons can be learnt from what’s happening with the Charlestown Claim. This blanket approach by RLCC can cause some problems and serious damages. However one can also not deny the fact that there are delays in these claims.”

Conclusion
Land reform needs to interlink with other agricultural programmes like LRAD, and these programmes need to have a synergy with Local Government programmes. It is important for the RLCC and DLA to revive their roles in the broader South African context so that they can begin to deliver as expected by all role players. Land reform cannot happened in isolation from other critical government tools like IDPs, but mostly we need to shift our thinking from pocketed three legged land reform towards addressing tenure needs, ensuring better lives and food security for the rural poor and landless.