Where restitution landed at the State of the Nation Address

Parliament in Cape Town.  (Jerusha Sukhdeo-Raath, News24)
Parliament in Cape Town. (Jerusha Sukhdeo-Raath, News24)

Restitution, land reform and land redistribution occupy a prominent position, quite equally, with the all-important “right to property” secured in section 25 of the Constitution.

Restitution, land reform and land redistribution are therefore not matters of choice, but rather, are constitutional obligations placed on the State in order to ensure their eventual realisation.

Yet, in his recent State of the Nation Address, President Jacob Zuma said little on these issues, or on what lies ahead for those affected.

The Regulation of Land Holdings Bill, which seeks to limit land ownership to 12 000 hectares and prohibit foreign land ownership, was noted as being an imminent feature for the legislature and the draft bill is anticipated to be presented to cabinet by April this year.

The ultimate contents of this bill will have great impact on the future appetite of foreign investors in securing land for purposes other than residential properties, such as land purchases in respect of land utilised for purposes of renewable energy projects and projects in the sphere of construction and engineering.

The draft bill is yet to undergo various parliamentary processes, and it remains to be seen whether or not it will pass constitutional muster.

The Commission on Restitution of Land Rights has since the reopening of the submission of claims received close to 121 000 land claims as at December 2015.

The commission received approximately 80 000 land claims before the 31 December 1998 cut-off date. Approximately 60 319 claims lodged before 1998 have been finalised and a total of 7 997 claims were outstanding as at 30 June 2015.

Unsurprisingly, the president offered no clarity on the how the State intends to deal with the allocation of resources and expenditure that flows from the restitution process, especially in light of the reopening of the submission dates for land claims and the price tag attached to the restoration and/or compensation for high value land.

The restitution process has cost the department of land reform and redistribution R30.8bn with some claims such as the Mala-Mala claim being settled at a cost of more than R1.1bn.

It is anticipated that the forthcoming Budget Speech will set out government’s plans on coping with the high-value claims that are being dealt with and the percentage of the allocation of the national budget to land reform and restitution.

Gauteng has presently received the highest number of claims being 11 719. The Free State has received 7 869, Western Cape 7 811, KwaZulu-Natal 7533, Eastern Cape 7 253, Northern Cape 1 213, Limpopo 6 356, North West 1260 and Mpumalanga 4 072 claims.

It is likely that more high-value claims will come to the fore requiring the commission to dig deeper into its pockets, along with the newly established office of the Valuer-General, to strike a harmonious balance between healing wounds of the past, economic growth and maintain food security.

The courts, on the other hand, will undoubtedly play a crucial role in developing the jurisprudence of how the term “just and equitable redress” will be applied in light of the newly proposed Expropriation Bill.

The president also touched on the 50/50 policy framework that seeks to give "relative" rights to people who work and live on farms.

Proposals have been received from commercial farmers and some are already being implemented in the Eastern Cape and the Free State.

Currently, to give credence to this framework, the historical owner of the land automatically retains 50% of the land, while the labourers on the land assume ownership of the remaining 50%, proportional to their contribution to the development of the land, based on the number of years they had worked on the land.

The government will, in turn, pay for the 50% to be shared by the labourers, however the proceeds are then invested into an investment and development fund, to be jointly owned by the parties constituting the new ownership regime.

The fund will be used to develop the managerial and production capacity of the new entrants to land ownership, to further invest on the farm as well to pay out people who wish to opt out of the new regime.

The share to be given to a worker-dweller is dependent on the number of consecutive years the worker-dweller has worked.

The 50/50 policy framework is a by-product of the current Extension of Security Tenure Act (ESTA) and the Labour Tenant Act, both of which seek to elevate the rights of worker-dweller through various ways including providing ownership rights.

Currently, the Restitution Act, the Labour Tenant Act and ESTA, while all having noble and necessary intentions that are rooted in section 25 of the Constitution, lend themselves to the danger of leading to unintended consequences, as they all create separate and distinct categories of people who should receive land: beneficiaries of land restitution on one hand and farm labourers on the other.

There is currently a hiatus in our law that fails to deal with how these potentially conflicting and competing rights are to be dealt with in our law, causing a burdensome dilemma on the commission in seeking commercially sound solutions that protects the interests and rights of all parties.

Land reform, land restitution and land redistribution in South Africa are poised to undergo myriad changes as lawmakers aim to balance the right to property and the State’s obligation to utilise land as a means to achieve poverty alleviation. 

*Bulelwa Mabasa is director of Werksmans Attorneys and Anele Khumalo is a senior associate at the firm.

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