Indigenous Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Indigenous Law Bulletin |
|
In 1994, South Africa began the long and difficult process of rebuilding the country post-apartheid. One of` the most pressing issues for the ANC Government was that of land reform. In a country facing considerable problems stemming from poverty and unemployment, state-driven land reform was seen as a crucial part of the programme for reconstruction and development in South Africa.
A key element in the land reform process is restitution of land to Black South Africans. The land restitution procedure differs considerably from the native title process in Australia. Whilst native title in Australia focuses on establishing the existence of prior rights by reference to custom and tradition, land restitution in South Africa is a pro-active programme for the reparation of past injustices by the state. As such, it can provide Australia with an important example of how practical steps can be taken towards reconciliation with its Indigenous people.
Colonialism, and later territorial segregation, the lynchpin of apartheid, has left South Africa with racially skewed land ownership patterns. Under apartheid, Black South Africans, who made up 87% of the population, had effectively been confined to 13% of the territorial area of the country, in the notorious ‘homelands’ or bantustans.[1] This was part of a process of internal decolonisation resettlement, which culminated in the South African Government declaring some of the bantustans ‘independent’ and stripping their inhabitants of their South African citizenship. Although official removals policy initially focussed on the segregation of Black South Africans, it was soon extended to include all non-whites; for example those designated coloured, Indian, Malay or Chinese.[2] Those who fell within these officially designated groups were forced to relocate from central urban areas to under-serviced suburbs on the peripheries of major cities. The official statistics suggest that over three and a half million persons were removed from their homes and resettled in inferior areas, sometimes with little or no housing.
The restitution of land process is one part of the overall South African land reform programme. This programme has three major parts:[3]
The goal of the land restitution policy is to restore land and provide other restitutionary remedies to people dispossessed by racially discriminatory laws or practices. This must be done in “such a way as to provide support to the process of reconciliation, reconstruction and development”.[6] The policy explicitly acknowledges the injustices of previous land policies and acknowledges the need to make restitution for forced dispossessions.[7] This linkage between reconciliation and land, and the notion of restitution for dispossession, can be sharply contrasted with the Australian situation. The Howard government has expressly refused to acknowledge that land rights and reconciliation go hand in hand.
The criteria for claiming are established by s 25 of the Constitution[8] and s 2 of the Restitution of Land Rights Act 1994.[9] In order to make a claim, a person or community must have been dispossessed of a right in land after 19 June 1913 as the result of past racially discriminatory laws or practices, or be the direct descendant of such a person.[10] No person or community will be entitled to restoration if just and equitable compensation was paid at the time of dispossession.[11] Further, it should be noted that in South Africa all land can potentially be claimed. No distinction is made, for example, between State and privately owned land for these purposes. This contrasts the situation in Australia, where no claim can be made with respect to freehold land.
The cut-off date for claims of 19 June 1913 was chosen to reflect the date of enactment of the Native Administration Act 1913, a racially discriminatory law which ushered in the formal adoption of territorial segregation as the leading principle of post-Union[12] land policy.[13]
Claimants must also have been dispossessed of a “right in land”. The definition, contained in s 1 of the Restitution of Land Rights Act, is extremely broad:
any right in land whether registered or unregistered, and may include the interest of a labour tenant and sharecropper, a customary law interest, the interest of a beneficiary under a trust arrangement and beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in question.
This definition allows claims not only by those who had registered interests in land, but also by those who were owners under customary laws, as well as those who occupied the land without the benefit of any formal arrangement for more than 10 years.
Finally, the dispossession must be the result of past racially discriminatory laws or practices. Racially discriminatory laws might include any of a number of acts passed since 1913. Examples include the Black Resettlement Act 1954 or the Group Areas Acts 1950 and 1966, which are discussed in some detail below. Notably, however, the Act also allows for claims as a result of racially discriminatory practices. Thus, dispossession under supposedly racially neutral laws, such as the Slums Act 1979 or the Prevention of Illegal Squatting Act 1951, may entitle a person to claim, as may dispossession by non-state parties, for example farmers.[14]
As can be seen from the above, the South African restitution of land process differs significantly from one based on the recognition of native title. Although there are some proposed native title claims in South Africa, the sheer magnitude of the dispossession, and the completely different demographics, mean that the Australian doctrine of native title is of little use. The most striking difference between the Australian and South African approaches is that while in South Africa the fact of dispossession allows a claim, in Australia dispossession generally results in no claim being possible because the plaintiffs have failed to maintain a connection to the land.
The claims process also differs significantly from that in Australia. One of the results of apartheid is that find it difficult to access the legal system. It was recognised by the government that one of the results of the massive inequalities in wealth and education standards was that any redistribution of land would need to be state driven, rather than left to market forces. The Restitution of Land Rights Commission was established in 1994 by the Restitution of Land Rights Act. Unlike the National Native Title Tribunal, which facilitates claims, but also acts as a neutral mediation service, the Commission’s function is to act on behalf of claimants. Generally speaking, most claimants do not require legal representation until the actual court hearing.
The claims process begins on lodgment of the claim form with the Commission.[15] To an Australian, who is more familiar with the (particularly post-amendment) complexities of the registration of a native title claim, the lodgment process is incredibly simple. Claimants in South Africa must fill in two double-sided A4 sheets with certain specified information and provide a number of certified documents. Many claimants provide only sketchy information on the claim form and, at the outset, they generally provide few of the documents required.
It is the function of the Commission to research the claim on behalf of the claimants. Again, this contrasts strongly with the situation in Australia where claimants themselves must prepare the claim, relying on the services of lawyers, anthropologists and others. The complexity of the claim depends to on the nature of the claim. Communal rural claims, which may involve hundreds of people and land currently belonging to a number of white farmers, will necessarily, be more complex than individual urban claims where only one property is at issue.
In contrast to Australia, most claims will be evidenced almost solely by reference to legal documents, for example certificates of title. Except in some large rural claims, the services of historians and anthropologists are generally not required. One of the ironies of apartheid is that dispossession was legally sanctioned. Therefore, there is a trail of paper work relating to the forced sales etc which can now be relied upon to evidence the claim.
Claims are heard by the Land Claims Court. This is a specialist court which hears not only claims under the Restitution of Land Rights Act, but also matters arising under other acts designed to implement other facets of the land reform process. At this stage, the claimants require legal representation, for which legal aid is generally available. Representing the Government, as defendant, is the Department of Lands. However, representatives from the Commission are also present.
According to s 35(1) of the Restitution of Land Rights Act, the Court may order the following forms of restitution:
The most problematic of these is restoration of land. In most cases, the property from which the claimant was dispossessed will have current owners. Problems arise because the property clause of the Constitution both mandates restitution of land and guarantees existing property rights.[16] While the Restitution of Land Rights Act does give the Court the power to expropriate land,[17] government policy is that expropriation is inappropriate, and thus restitution must take place on a ‘willing-seller, willing-buyer basis’. This is particularly difficult in rural areas where in order to effect restoration the government may be required to negotiate for the willing sale of five or six farms.
Other problems also arise with respect to the remedy of compensation. It is as yet unclear what mechanism will be used in order to determine the quantum of compensation. This is also, of course, an issue of current concern in Australia. At this stage, however, it seems that valuation will be based on a straight forward assessment of the market value of the property at the time of dispossession, with no allowances for hardship and suffering. Again this has resonances here in Australia where amendments to the Native Title Act 1993 attempt to limit compensation to market value, and to exclude other issues such as spiritual attachment.
As can be seen, the restitution of land rights process in South Africa proceeds on a quite different basis to the native title process in Australia. However, in common with Australia, the process still has much to deliver in terms of outcomes. As in Australia, few actual determinations have been made. Most of the Court’s work to date has been concerned with insecurity of tenure for labour tenants, rather than restitution. The Commission’s resources have been stretched by the sheer number of claims (over 27 000 to date). Only around 10 claims have been finalised. In common with Australia, the South African Government is now pushing for negotiated, rather than litigated outcomes. What is perhaps most important about the South African process is its recognition of the need to remedy dispossession and to return land to its original owners. This contrasts strongly with Australia where the native title process remains one whereby the claimants must show that, against all odds, they managed to remain on their land, rather than one whereby the injustices of dispossession are acknowledged and an attempt is made to reconnect claimants with their country.
Shaunnagh Dorsett is a lecturer in Law at Griffith University in Queensland. In 1998, she spent three months at the Faculty of Law at the University of Cape Town, and also worked with the Commission on Restitution of Land Rights.
[1] In contrast, an estimated 80% of South Africa was subject to freehold ownership by whites, who constituted about 13% of the population.
[2] Group Areas Act 1950 Section 12 GAA 1950
[3] Department of Land Affairs, White Paper on South African Land Policy, Government Printer, 1997, at 9.
[4] Ibid.
[5] Examples of Acts passed in fulfilment of this policy include the Communal Property Association Act 1996, the Labour Reform (Labour Tenants) Act 1996; and the Extension of Security of Tenure Act 1997.
[6] Above n 3, 52.
[7] Ibid 9, 30.
[8] Constitution of the Republic of South Africa 1996. This replaced the Interim Constitution of 1993.
[9] Restitution of Land Rights Act 1994. The Act is supplemented by the Rules Regarding Procedure of the Land Claims Commission, Government Notice R703 (Government Gazette 16407), 12 May 1995, as amended by Government Notice R1961 (Government Gazette 17603), 29 November 1996, and the Land Claims Court Rules, Government Notice 300 (Government Gazette 17804), 21 February 1997.
[10] Restitution of Land Rights Act 1994, s 2(1)(a). For a definition of ‘direct descendant’ see In re Mayibuye I-Cremin Committee Land Claim: re Sub 121 of the Farm Trekboer, LCC28/1996, 21 November 1997.
[11] Restitution of Land Rights Act 1994, s 2(1A).
[12] That is, the Union of all South Africa under British authority after the Boer War in 1902.
[13] Above n 3, 54.
[14] Ibid.
[15] It should be noted that all claims had to be lodged by 31 December 1998.
[16] Constitution of the Republic of South Africa 1996, s 25
[17] Restitution of Land Rights Act, s. 35(5).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/IndigLawB/1999/67.html