PLJ - RURAL LAND JUSTICE - PEOPLE'S LAW JOURNAL - LAND AND ACCOUNTABILITY RESEARCH CENTRE

 
PLJ - RURAL LAND JUSTICE - PEOPLE'S LAW JOURNAL - LAND AND ACCOUNTABILITY RESEARCH CENTRE
PLJ
                         APRIL 2016

  PEOPLE’S LAW JOURNAL

RURAL LAND
    JUSTICE

                              PLJ     i
PLJ - RURAL LAND JUSTICE - PEOPLE'S LAW JOURNAL - LAND AND ACCOUNTABILITY RESEARCH CENTRE
PEOPLE’S LAW JOURNAL
                                                                               RURAL LAND JUSTICE

                                                                                       Land and Accountability
                                                                                       Research Centre (LARC)
                                                                                       — formerly the Rural Women’s Action
Funeka Miriam Mateza of Cala, Eastern Cape participates in a public                     Research Programme (RWAR) at the
hearing on the repeal of the Black Authorities Act, July 2010.
                                                                                                 Centre for Law and Society
PLJ - RURAL LAND JUSTICE - PEOPLE'S LAW JOURNAL - LAND AND ACCOUNTABILITY RESEARCH CENTRE
CONTENTS

Written by the Land & Accountability Research Centre
                                                                        Introduction: The Struggle for Land Rights in South Africa	  1

                                                                        Customary Law: Some Introductory Thoughts	  5
Faculty of Law
All Africa House                                                        Patriarchs and Pariahs: The Geography of Traditional Leadership                                11
University of Cape Town
Private Bag X3
Rondebosch 7701
Cape Town                                                               Overturning Dispossession: Land Restitution in the Post-Apartheid Era                          16
South Africa
Tel: +27 21 650 3288
Fax: +27 21 650 3095                                                    Empty Promises? Big Talk as Funds for Land Reform Diminish                                     21
Authors and contributors: Aninka Claassens, Michael Clark, Alide
Dasnois, Monica de Souza, Thiyane Duda, Daniel Huizenga, Thuto Thipe,
Tara Weinberg, and Zackie Achmat.                                       The Politics of Recapitalisation: How Land Redistribution Funds are Being Diverted to Elites   27
Special thanks to the generous contributions of LARC’s funders:
Atlantic Philanthropies, Claude Leon Foundation, Heinrich Böll
Foundation, Millennium Trust, and the RAITH Foundation.
                                                                        A Luta Continua: New Laws are a Setback for Rural Women                                        35
Edited and published by Ndifuna Ukwazi
                                                                        “Cleansing of the Statute Book”: Customary Law, Inheritance and the Right to Equality          41

                                                                        Centralisation without Consent: Rural Communal Land Rights under Threat                        47

Office 302, 47 on Strand                                                To the Heart of Land Reform: The Bakgatla ba Kgafela CPA at the Constitutional Court           55
Strand Street
Cape Town
Tel: +27 21 423 3089                                                    Mining Law: Know the Law, Know Your Rights                                                     60
Fax: +27 21 423 7554
Email: contact@nu.org.za
NU funders:                                                             “They are Robbing Us”: How Mining is Affecting the Residents of Makhasaneni                    62
Ford Foundation, RAITH Foundation, Hivos, Open Society Foundation,
Millennium Trust, Wallace Foundation, South African Development Fund,
International Budget Partnership
                                                                        Protecting the Land Rights of Rural People: Is the IPILRA the Answer?                          69
Printed by Creda
Design & layout by Chloë Swingewood
The views expressed in this guide are those of the authors and do not
necessarily reflect those of the aforementioned funders.
PLJ - RURAL LAND JUSTICE - PEOPLE'S LAW JOURNAL - LAND AND ACCOUNTABILITY RESEARCH CENTRE
INTRODUCTION
    The Struggle for Land Rights in South Africa

F
        rom the arrival of Dutch      South West Africa. These regions           insecure as a result of past
        settlers in the Cape          were specifically designated for           racially discriminatory laws
        right through to the fall     black people living under ‘tribal’         or practices is entitled, to the
of apartheid, the expansion of        leadership, and were treated               extent provided by an Act of
colonial power in South Africa        differently from the rest of the           Parliament, either to tenure
was epitomised by the growth of       country. Through this project of           which is legally secure or to
white-controlled territory and        fragmentation, the government              comparable redress.”1
the corresponding loss of land by     sought to strip black people of their   And yet, more than 20 years
Africans. A range of treaties and     South African citizenship and, by       on, and notwithstanding the
laws cemented these relations,        extension, many of their rights.        government’s plans for land
and over time radically restricted       The opening lines of the             restitution, the realisation of
African people’s land ownership –     1993 Interim Constitution re-           this constitutional ideal remains
eventually shrinking this to just     incorporated the homelands              elusive in many rural areas, and
13% of the total land in South        into a unified South Africa. It         especially for those who live in the
Africa (under the 1913 Natives        ensured a system of elected local       former homelands. Several non-
Land Act and later the 1936 Native    government, replacing ‘tribal’          governmental and community-
Trust and Land Act).                  governance within the former            based organisations have
    The term ‘Bantustans’ was first   Bantustans. In section 25(6) of the     expressed concern that current
used in the 1940s, and before long    1996 Constitution, equality with        and proposed legislation either
it came to denote the homelands       respect to land rights was affirmed     weakens or has the potential to
set aside by the apartheid            with the words:
government for black ethnic              “A person or community               1 Section 25(6) goes hand-in-hand with section 25(9),
                                                                              which compels Parliament to enact the prescribed
groups both in South Africa and          whose tenure of land is legally      legislation.

                                                                                                                          PLJ     1
PLJ - RURAL LAND JUSTICE - PEOPLE'S LAW JOURNAL - LAND AND ACCOUNTABILITY RESEARCH CENTRE
In troduction                                                                                                     In troduction

                weaken the security of land tenure     with reference to the experiences      in mining areas; and, through
                of these rural communities.            of many residents who have taken       a case study of Makhaseni in
                   Given the importance of             part in this drawn-out process.        KwaZulu-Natal, Chapter 11
                land rights in any equal and              Chapters 4-6 focus on               illustrates how mining companies
                just society, this volume of the       questions of finance, examining        and traditional authorities have
                People’s Law Journal (PLJ) focuses     the limitations of restitution         ignored people’s individual and
                on South Africa’s historically         rights, budget allocations, and the    collective land rights by failing to
                marginalised peoples, with             broader financial implications         consult with them properly.
                particular emphasis on their (lack     of land reform for government.            This volume of the PLJ
                of ) access and rights to land. A      Chapter 7 analyses South African       concludes with a chapter on the
                number of articles examine the         land reform from the perspective       Interim Protection of Informal
                extent to which post-apartheid         of rural women, with a focus on        Land Rights Act (IPILRA) which,
                laws have addressed the legacy of      the ways in which women have           passed in 1996, seeks to provide
                past administrations, while some       navigated and negotiated the           tenure security to people with
                reveal the ongoing challenges          terms on which they have accessed      informal land rights. Debates in
                confronting the residents of the       land for themselves and their          recent years have highlighted
                former homelands today.                families. What follows is then         contradictions in understandings
                   We begin with an introductory       an analysis of Bhe and Others v        of who owns the land in traditional
                chapter on South African               Khayelitsha Magistrate and Others,     council areas, giving rise to
                customary law, in which it is argued   a case involving customary law         insecurity and vulnerability among
                that such a legal system should        and land rights which reached the      residents. This article therefore
                be interpreted by the judiciary        Constitutional Court in 2004.          offers suggestions as to how this
                as ‘living’ (and not codified).           Chapter 8 examines the status       situation can be improved.
                The second section then reveals        of communal land in South                 In closing, it is important to
                how South Africa’s democratic          African law, drawing attention to      acknowledge the authors of this
                government has come to rely on         the types of rights that individuals   publication. At the University of
                the homeland boundaries, set           and groups can claim, and how          Cape Town, researchers based
                down by the 1951 Black Authorities     land in communal areas is              at the Land and Accountability
                Act, in its administrative mapping     allocated. A second landmark           Research Centre (LARC) –
                of traditional leaderships.            case, heard at the ConCourt in         formerly the Centre for Law and
                   Through an analysis of the          2015, is then examined. It involved    Society (CLS)’s Rural Women’s
                Restitution of Land Rights Act –       the Bakgatla ba Kgafela Communal       Action Research Programme
                which was passed in 1994 to            Property Association’s capacity to     (RWAR) – worked in collaboration
                address the grievances of people       hold platinum-rich land on behalf      with colleagues and activists from
                previously dispossessed of land        of restitution beneficiaries in the    partner organisations. Unless
                whether by forced removals or          North West Province.                   otherwise specified, each article
                other discriminatory practices –          The next two sections relate        in this edition was authored by
                the issue of land restitution in       specifically to mining law –           the LARC team rather than by any
                the former homelands is then           Chapter 10 provides an overview        individual researcher.
                brought to the fore in Chapter 3,      of the land rights of people living

2   PLJ                                                                                                                    PLJ   3
PLJ - RURAL LAND JUSTICE - PEOPLE'S LAW JOURNAL - LAND AND ACCOUNTABILITY RESEARCH CENTRE
CUSTOMARY
             LAW
          Some Introductory Thoughts

4   PLJ                                PLJ   5
PLJ - RURAL LAND JUSTICE - PEOPLE'S LAW JOURNAL - LAND AND ACCOUNTABILITY RESEARCH CENTRE
Customary Law                                                                                                                                                                                                                                                              Customary Law

                                                                                                                “Rural people are facing                                   Customary law of                      noted that although “in the past it     judges found that the Valoyi royal
                                                                                                                critical times when all                                    succession: The                       was not permissible by the Valoyis      family did have the authority to
                                                                                                                people are free … Facing                                   Shilubana case                        that a female child be heir, in terms   develop its own customary law of
                                                                                                                a chain of taxation,                                                                             of democracy and the new Republic       succession, adding that “the free
                                                                                                                being in the position
                                                                                                                                                                           S
                                                                                                                                                                                   hilubana v Nwamitwa, a        of South African Constitution it is     development by communities of
                                                                                                                of losing rights of land                                           case decided in 2008, arose   now permissible … since she is also     their own laws to meet the needs
                                                                                                                without compensation,                                              from a decision made by the   equal to a male child.”                 of a rapidly changing society must
                                                                                                                put on the street as wild                                  Valoyi royal family of the Limpopo       The Premier of Limpopo               be respected and facilitated”
                                                                                                                animals, treated not as                                    region to award the chieftainship     Province Ngoako Ramathlodi duly         (Shilubana, para 45).
                                                                                                                South Africans, forced                                     to Tinyiko Shilubana, the daughter    appointed Tinyiko as hosi. But             The judgment went on:
                                                                                                                with custom which                                          of the previous chief, Fofoza.        her cousin, Sidwell Nwamitwa,           “[A] court must consider both
                                                                                                                comes from apartheid                                       As Fofoza had fathered only           the son of Richard, challenged          the traditions and the present
                                                                                                                boundaries, women                                          daughters, when he died in 1968       her appointment, saying it was          practice of the community. If
                                                                                                                are not encouraged to                                      the chieftainship had passed          contrary to customary law. The          development happens within the
                                                                                                                participate in all matters                                 to his younger brother, Richard       Pretoria High Court and later the       community, the court must strive
                                                                                                                freely.”                                                   Nwamitwa. When the latter died        Supreme Court of Appeal ruled in        to recognise and give effect to
                                                                                                                Melmoth Black Farmers Association,                         in 2001, the community resolved       Sidwell’s favour.                       that development, to the extent
                                                                                                                KwaZulu-Natal (2014)
                                                                                                                                                                           to appoint Ms Shilubana as hosi          However, Shilubana                   consistent with adequately
A consultation between the Mohlohlo farming community and its lawyers, Richard Spoor and Steven Goldblatt, to                                                              (chief).                              successfully appealed to the            upholding the protection of rights”
discuss attempts by the Anglo-American Corporation to make room for a platinum mine by forcing them off their
land, Mokopane, Limpopo, 2006 (David Goldblatt).                                                                                                                              In its resolution, the community   Constitutional Court, where the         (Shilubana, para 49).

W
              hat is customary law?                       words, it is law derived from the                     principles of democracy and
              How is the content                          actual practices, principles and                      accountability in customary law.
              of customary law                            negotiations that people use and                      These processes, however, are
determined? Since 1994, the                               engage with in their everyday lives.                  rarely straightforward; they have
Constitutional Court has dealt                            ‘Living’ customary law is defined                     been (and will continue to be)
with several important questions                          in contrast to an understanding                       contested, even among the judges
related to customary law – in cases                       of customary law that is                              themselves. Fortunately, the
regarding land, marriage, divorce,                        ‘codified’ (written down) and                         ConCourt has been developing
inheritance, leadership, and                              thereby strictly defined. Such an                     judgments on living customary law
political association. Judgments                          interpretation reflects the Court’s                   which reflect an understanding of
on these cases provide insight                            desire to protect constitutionalism                   power relations and politics in the
into how living customary law is                          and democratic process in                             real world.
developing in the Court and how                           customary law.
its evolving content is understood                           Several ConCourt judgments,
and applied in relation to rural                          two of which are discussed
land rights.                                              below and another on page 41,
   According to the ConCourt,                             open up opportunities and                             Right: Hosi Tinyiko Shilubana was the first woman in
customary law must be                                     spaces, sometimes unexpectedly,                       South Africa to legally contest her right to chieftaincy
                                                                                                                after the position was assumed by male relatives. Her
understood as ‘living’ – in other                         for ordinary people to assert                         position was confirmed in the ConCourt.

6   PLJ                                                                                                                                                                                                                                                                              PLJ   7
PLJ - RURAL LAND JUSTICE - PEOPLE'S LAW JOURNAL - LAND AND ACCOUNTABILITY RESEARCH CENTRE
Customary Law                                                                                                                  Customary Law

                Right of dissent and                               Court and the Supreme Court                 and the Bill of Rights. But courts
                free association in                                of Appeal both refused leave to             ought not to be dismissive
                traditional communities:                           appeal, but the ConCourt heard              of these institutions when
                The Pilane case                                    the appeal and upheld it by a               they insist on the observance
                                                                   majority of eight judges to two.            of traditional governance

                I
                     n 2009, members of the                           The dissenting judges, Chief             protocols and conventions
                     Motlhabe community in the                     Justice Mogoeng and Justice                 on the basis of whatever
                     platinum-rich North West                      Nkabinde, suggested that courts             limitation they might impose on
                Province wanted to break away                      should support and protect                  constitutional rights” (Pilane,
                from the Bakgatla ba Kgafela                       recognised traditional authorities,         paras 78-79).
                traditional community, of                          and that constitutional rights           The two judges supported the
                which they were a part, owing to                   should be limited, if necessary, in      Bakgatla ba Kgafela claim that
CAPTION?
                problems with the chief and the                    order to achieve this. Chief Justice     calling a meeting of the Motlhabe
                administration. The provincial                     Mogoeng and Justice Nkabinde             villagers “had the potential of
                government advised that they                       wrote:                                   creating factions and disorder”
                take steps according to the North                     “Traditional leadership is a          which could make the community
                West Traditional Leadership                           unique and fragile institution. If    “ungovernable”, and noted that
                and Governance Act of 2005                            it is to be preserved, it should be   “[d]isorderliness is on the rise
                and the Traditional Leadership                        approached with the necessary         in this country and traditional
                and Governance Framework Act                          understanding and sensitivity.        communities are no exception”
                of 2003. But before they could                        Courts, Parliament and the            (Pilane, para 118).
                take these steps, their plans                         Executive would do well to               In a judgment written by Justice
                were opposed by the leaders of                        treat African customary law,          Skweyiya, the majority of judges
                the Bakgatla ba Kgafela tribe,                        traditions and institutions not as    dismissed this concern:
                who applied to the North West                         an inconvenience to be tolerated         “I see no reason to believe
                High Court to stop the Motlhabe                       but as a heritage to be nurtured         that the lawful exercise of the
                community from having meetings                        and preserved for posterity,             applicants’ rights would result
                about the issue.                                      particularly in view of the many         in chaos and disorder. Rather,
                   The Court granted the                              years of distortion and abuse            there is an inherent value in
                interdict, partly on the grounds                      under the apartheid regime.              allowing dissenting voices
                that the Motlhabe leaders –                               “Bearing in mind the                 to be heard and, in doing so,
                members of the royal family of                        need to help these fledgling             permitting robust discussion
                Motlhabe village – had, contrary                      institutions to rebuild and              which strengthens our
                to certain legal provisions,                          sustain themselves, threats              democracy and its institutions”
                referred to themselves as the                         to traditional leadership and            (Pilane, para 69).
                “Motlhabe tribal authority” in                        related institutions should not       He concluded that it was within
                a community notice. The High                          be taken lightly. The institution     the rights of the Motlhabe
                                                                      of traditional leadership must        community to meet and that the
                Opposite: Community members celebrate the             respond and adapt to change, in       law would not tolerate an attempt
                inauguration of Hosi Tinyiko Shilubana after her
                appointment was upheld in the ConCourt.               harmony with the Constitution         to silence criticism or discussion.

8   PLJ                                                                                                                                   PLJ   9
PLJ - RURAL LAND JUSTICE - PEOPLE'S LAW JOURNAL - LAND AND ACCOUNTABILITY RESEARCH CENTRE
Customary Law

   In other words, the judges         assets held under customary law.         New battles are likely to be
differed on two questions:               The new laws apply only in         waged over the mineral and land
•• What is the customary law and      the areas set apart by the Bantu      rights of rural communities, as
   the traditional leadership that    Authorities Act of 1951 – namely,     we have seen with the platinum-
   the Constitution says must be      the tribal jurisdictions that made    rich territories of the North West.
   nurtured and preserved?            up the former Bantustans. This        They are likely to concern two
•• Does preserving it mean that       geography consist of the ‘original    questions: Who is entitled to the
   members of the communities         reserves’ established by the 1913     benefits of the mineral rights? And
   affected do not have the           and 1936 Land Acts, in addition       what is the nature and extent of
   same rights and freedoms           to ‘the dumping grounds’ set          the accountability of the leaders
   of association, speech and         aside for the three and a half        who have control?
   assembly as other South            million people who were forcibly         We can expect fierce disputes,
   Africans?                          removed from ‘white’ South Africa     since there are significant vested
The majority found that members       during the process of Bantustan       interests and benefits to be gained
of traditional communities do not     consolidation. The people who         or lost in the mining sector. There
forfeit their constitutional rights   bore the brunt of the Land Acts       is also widespread disdain for
through their membership to           and forced removals are therefore     corruption and the enrichment of
those communities.                    once again being subjected, by law,   a few at the expense of many.
                                      and not necessarily by choice, to        Given the recent support
                                      imposed tribal identities and all-    the ConCourt has shown for
The way forward                       powerful traditional leaders.         democratisation processes in
                                         This raises the fundamental        customary law, now is an optimal
                                                                                                                                PATRIARCHS AND
O
          ver recent years there      question of whether ‘customary’       moment to bring these issues
          have been several

                                                                                                                                   PARIAHS
                                      law can be imposed on some parts      before the judges. Only five years
          legislative efforts to      of the country and not others, or     from now, it is likely that mining
reverse the democratisation           rather on some South Africans but     rights will have been settled, land
project and undermine living          not others – without taking into      rights will have been lost, and
customary law. The Traditional        account the wishes of the people      much of the membership of the                  The Geography of Traditional Leadership
Leadership and Governance             concerned.                            ConCourt will have changed.
Framework Act (the Framework             It is one thing to say that, in
Act), the new Traditional and         general, white South Africans do

                                                                                                                  T
KhoiSan Leadership Bill (that aims    not live according to customary                                                      he Bantustans ceased          many rural areas because several       land-related laws which have been
to repeal the Framework Act),         law, and that many black South                                                       to exist with the dawn        laws adopted over the past 12 years    developed for these areas, while
the Traditional Courts Bill and       Africans do. It is quite another                                                     of democracy in South         have linked people’s land rights to    drawing attention to how these laws
recent or promised amendments         to reduce customary law to the                                              Africa. Despite this, laws relating    traditional leadership.                impact the ways people can exercise
to a variety of land laws all show    power of the chief, to impose it on                                         to traditional leadership and             In this article we explore how,     their rights to land.
a desire to put more power in the     everyone living within apartheid-                                           governance still, for the most part,   under democracy, the former
                                                                                                                                                                                                Above: A map depicting the former homelands or
hands of traditional authorities      era boundaries, and to restrict its                                         apply in the former Bantustans,        Bantustans came to be the areas        Bantustans - small reserves of rural land designated to
                                                                                                                                                                                                black people in terms of the 1913 and 1936 Land Acts.
and traditional leaders and to        application to 17 million out of 54                                         or ‘homelands’. This is important      where laws of traditional leadership   The areas where current traditional councils govern
make them the owners of land and      million South Africans.                                                     for understanding land rights in       still apply. It will focus on the      closely mirror these boundaries.

10   PLJ                                                                                                                                                                                                                                    PLJ      11
PLJ - RURAL LAND JUSTICE - PEOPLE'S LAW JOURNAL - LAND AND ACCOUNTABILITY RESEARCH CENTRE
Patriarchs and Pariahs                                                                                                            Patriarchs and Pariahs

The Bantustans                          that tribe. These colonial and
                                        apartheid-era interferences                           “Awaking on

T
         o understand the               had a significant impact on the                       Friday morning,
         significance of laws           relationships between chiefs and                      June 20, 1913, the
         applying only to the           the people under their leadership,                    South African
former Bantustans, it is important      as well as how people held chiefs                     Native found
to understand the history and           accountable.                                          himself, not
purpose of the formation of the                                                               actually a slave,
Bantustans, the different ways that                                                           but a pariah in the
their imposition violated people        The laws governing                                    land of his birth.”
                                                                                              Sol Plaatje (writer, intellectual
and deprived them of their basic        traditional leaders after
                                                                                              and founding General Secretary
rights, and how the maintenance         apartheid                                             of the Native National Congress)
of these boundaries continues                                                                 on the Land Act, 1913.

                                        T
to perpetuate particular forms of                 he Traditional Leadership
violence.                                         and Governance
   Under apartheid, 7% of the land                Framework Act of
in South Africa was allocated to        2003 (the Framework Act) was
black people (in accordance with        developed “to restore the integrity
the Land Act of 1913).                  and legitimacy of the institution
   In 1936, the Natives Trust and       of traditional leadership in line
Land Act increased this percentage      with customary law and practices.”
to 13%. The apartheid government        This law made the chiefs, tribes
used this legislation as the basis      and tribal authorities created
for creating ten homelands, each        before 1994 the new traditional
for a different tribe. The creation     leaders, traditional communities and
of these homelands was incredibly       traditional councils, respectively.
violent as hundreds of thousands           Tribal authorities were the
of people were forcibly removed         local governance structures in
from their homes.                       the Bantustans. Together, their
   In addition, the Black               boundaries made up those of
Administration Act of 1927 gave         the Bantustans. By converting
the Governor General of South           tribal authorities to traditional
Africa the power to create and          councils, the Framework Act
divide tribes, as well as to appoint    maintained the boundaries of the
and dismiss chiefs. In effect, this     Bantustans. Recent laws that deal
enabled the government to call
any group of black people a tribe, to   Right: Sol Plaatje, seated bottom-right, with other
                                        members of the South African Native National
decide which tribe any individual       Congress Deputation which travelled to London
belonged to, and to determine           in 1914 in order to challenge the 1913 Land Act
                                        (Historical Papers Research Archive, University of
which individual should lead            the Witwatersrand, Johannesburg, South Africa).

12   PLJ                                                                                                                                          PLJ   13
Patriarchs and Pariahs                                                                                                                                                                                         Patriarchs and Pariahs

                                                                                                                                traditional councils are being           hierarchies predetermines
                                                                                                                                treated as a fourth level of             governance structures as well
                                                                                                                                government that only applies to          as the relationship between
                                                                                                                                traditional council areas. This          traditional leadership institutions
                                                                                                                                is made worse because a large            and the people living under this
                                                                                                                                number of traditional councils are       leadership.
“Gone was the old
                                                                                                                                not democratically elected.                 The principles of democracy,
give-and-take of tribal
                                                                                                                                   In 2015, the Traditional and          equality, and freedom to
consultation, and in its
                                                                                                                                Khoi-San Leadership Bill (which          practice one’s culture of choice
place there was now
                                                                                                                                will replace the Framework Act)          should decide the parameters
the autocratic power
                                                                                                                                was tabled in Parliament. If this Bill   of traditional governance and
bestowed on the more
                                                                                                                                becomes law, it will retain the same     leadership. To imagine African
ambitious Chiefs, who
                                                                                                                                boundaries for traditional council       governance systems as bound to
became arrogant in
                                                                                                                                areas and strengthen the powers of       Bantustan geographical areas is to
the knowledge that
                                                                                                                                traditional leaders in these areas. A    merge understandings of African
government might
                                                                                                                                revised version of the Traditional       identity and rights with racist
was behind them.”
Govan Mbeki (Rivonia Trialist),                                                                                                 Courts Bill is also expected in          frameworks established by the
The Peasants’ Revolt (1964).                                                                                                    Parliament later in 2016.                discredited colonial and apartheid
                                                                                                                                                                         governments.

with traditional councils have           Another proposed law – the             rights to land and strip them                   Citizens or subjects?
applied to traditional council       Traditional Courts Bill (TCB), first       of membership of their

                                                                                                                                T
areas, meaning that these laws       introduced in 2008 and again in            community.                                               he Bantustans restricted
apply to the former homelands.       2012 – would have given traditional     In Parliamentary submissions,                               millions of black South
Although provisions in many of       councils more powers. However,          many women living within                                    Africans to small areas
the provincial laws, which related   it lapsed in Parliament because         traditional communities argued                     of land, they imposed traditional
to the Framework Act, allowed for    not enough provinces voted in           that the TCB would reinforce                       leadership structures in the place
changes of these boundaries, few     its favour. The TCB would have          patriarchal power especially                       of government bodies that served
changes have been made.              declared that:                          because traditional courts are                     ‘white South Africa’, and they
   The Communal Land Rights Act      •• It is a criminal offence not to      mostly presided over by men                        treated people as ‘tribal subjects’
of 2004 (CLRA) gave traditional          appear before a traditional court   who have the authority to limit                    rather than citizens.
councils the power to administer         once summoned;                      the extent to which women can                         The continuation of the
communal land and to represent       •• Decisions of a traditional court     participate.                                       artificial boundaries of so-called
traditional communities as owners        have the same force as those of        The Constitution allows for                     traditional areas threatens to
of the land. This would have             Magistrates’ Courts;                national, provincial and local                     perpetuate many of the founding
allowed traditional councils         •• Traditional courts can impose        government. Civil-society                          values and goals behind the
control over the occupation, use         punishments including unpaid        organisations have argued that                     tribalising of black people through
and administration of communal           labour; and                                                                            the Bantustans. In many ways,
land. The ConCourt struck down       •• Traditional courts can               Above: Govan Mbeki, former leader of the African
                                                                                                                                this use of old geographical
the CLRA in 2010 (see p. 50).            revoke people’s customary           National Congress and Rivonia trialist.            boundaries and leadership

14   PLJ                                                                                                                                                                                                                       PLJ   15
Overt urning Dispossession

                                                                       Law as a Tool of                                 •• The 1936 Native Trusts and               “Power, Accountability and
                                                                       Dispossession                                      Land Act increased the African            Apartheid Borders” in Land,
                                                                                                                          reserves slightly (from 7% to             Power & Custom, 2008)
                                                                       •• The 1913 Land Act was one of a                  13% of the country). The 1936          •• After the passing of the Group
                                                                          series of laws that dispossessed                Act also established the ‘6 native        Areas Act (1950) and the
                                                                          black people of their land and                  rule’, which meant any group of           Bantu Authorities Act (1951),
                                                                          rendered their rights to land                   more than six black people who            the apartheid government
                                                                          insecure. One of the Act’s                      had purchased land together               embarked on several waves
                                                                          intentions was to further sideline              had to constitute themselves              of forced removals, lasting
                                                                          African farmers and labour                      as a tribe under a chief or they          until the late 1980s. Bulldozers
                                                                          tenants and to force black people               would lose their land. This law           swept across cities and the
                                                                          into becoming labourers in the                  distorted local and customary             countryside, inflicting violence
                                                                          cities or on the mines on terms                 land systems in favour of an              to Black, Coloured and Indian
                                                                          set by white owners (Colin                      undemocratic model that was               people by destroying their
                                                                          Bundy, The Rise and Fall of the                 easier for the government to              homes, neighbourhoods and
                                                                          South African Peasantry, 1979)                  control (Aninka Claassens,                ways of life.

                                                                       Our Constitution recognises that                 has made some progress, it has           re-opening of claims in 2014. One
                                                                       it is crucial that we roll back the              also been riddled with problems.         woman from Port Elizabeth said
                                                                       legacy of land dispossession which               In particular, the programme             government officials had told her
                                                                       has resulted from colonialism and                has been very slow to settle and         that, if she put in a land claim,
                                                                       apartheid.                                       finalise claims. There remain            she would receive enough land to
                                                                           The Restitution of Land Rights               30,000 claims which have not             make her “faint”. “I want to faint!”
                                                                       Act, passed in 1994, was one of                  been completely resolved. It is not      she exclaimed at the hearing. “Will
                                                                       the laws intended to address the                 surprising, then, that the most vocal    I ever faint?”

                                O
                                          ver the course of the past   legacy of dispossession in South                 opposition to the Restitution of
                                          400 years, black people      Africa. It opened a window of                    Land Rights Amendment Act came           “A person or community
 OVERTURNING                              in South Africa have
                                been repeatedly dispossessed of
                                their land, rights and livelihoods.
                                                                       five years – between 1994 and
                                                                       1998 – during which people
                                                                       could lodge claims for land on
                                                                                                                        from among the tens of thousands
                                                                                                                        of dispossessed people who had
                                                                                                                        waited almost 20 years for their
                                                                                                                                                                 dispossessed of property
                                                                                                                                                                 after 19 June 2013 as

 DISPOSSESSION                  Dispossession arose in many
                                forms, from colonial wars of
                                                                       which their ancestors had once
                                                                       resided. Then, two decades later,
                                                                                                                        claims to be settled, their land to be
                                                                                                                        transferred, or their compensation
                                                                                                                                                                 a result of racially
                                                                                                                                                                 discriminatory laws or
                                                                                                                                                                 practices is entitled, to
                                conquest to the economic forces        a new Restitution of Land Rights                 to be paid out.
           Restitution in the   that pushed the African peasantry      Amendment Act was passed,                           The frustration of these
                                                                                                                                                                 the extent provided by
                                                                                                                                                                 an Act of Parliament,
           post-apartheid era   into the wage-labour system on
                                white-owned farms and mines,
                                                                       opening a second window from 1
                                                                       July 2014 until 30 June 2019.
                                                                                                                        claimants bubbled over at
                                                                                                                        public hearings that Parliament
                                                                                                                                                                 either to restitution
                                                                                                                                                                 of that property or to
                                and the laws that were backed              While the restitution programme              and the Department of Rural              equitable redress.”
                                by the might of the colonial and                                                        Development and Land Reform              Section 25 (7) of the Constitution
                                                                       Top left: A man leaving Magopa during a forced
                                apartheid governments.                 removal, 1983 (Paul Weinberg).                   (the Department) held on the

16   PLJ                                                                                                                                                                                              PLJ   17
Overt urning Dispossession                                                                                                                                                                              Overt urning Dispossession

Land restitution:                      years. But the current budget for        claims have still not been settled   The 1913 cut-off date and              people still raise many concerns.      options available to would-be
A magic solution?                      land restitution is much lower           since 1998 have lobbied for their    traditional leaders’ claims            Claims by traditional leaders          claimants and encourages them to
                                       than this – closer to R2.7 billion per   claims to be ring-fenced and                                                often do not take into account the     identify with traditional leaders.

W                                                                                                                    M
              ith the land             year. What does this mean? That          fully resolved before new claims                  any traditional leaders   complex history of the areas from      Particularly under threat are
              redistribution and       it would take another 121 years to       are settled. There are fears that,                have made it clear that   which they arise. In some cases,       Communal Property Associations
              land tenure reform       settle all claims.                       without transparent guidelines in                 they intend to lodge      many different groups (families,       (CPAs) which, established in
programmes still far from their           Since it would take so long           place to decide whose claims will    land claims. One is due to be          clans etc.) have occupied the same     1996, ensure that land reform
targets, the urgency with which        to settle all the claims, the            be settled first, the Commission     lodged on behalf of the Zulu king,     piece of land at different points in   beneficiaries can acquire and
the state pushed through the           Restitution Commission will              will prioritise claims by people     King Goodwill Zwelithini, together     time. The situation is particularly    manage land as groups.
re-opening of restitution claims       need to prioritise certain claims        with political power behind them,    with the Ingonyama Trust, for          dangerous in places like KZN,             According to the Communal
was telling. It indicated that the     for settlement. People whose             such as traditional leaders.         possibly the entire province of        where there is a history of violent    Property Associations Act of
government regards it as the                                                                                         KwaZulu-Natal (KZN) – including        entanglements around issues of         1996, CPAs are intended to give
answer to South Africa’s complex                                                                                     the Durban Metro – as well as parts    land and traditional leadership.       effect to the democratic decision-
land reform dilemmas. But there                                                                                      of the Eastern Cape, Mpumalanga           For example, in Babanango,          making processes envisioned by
are numerous problems that look                                                                                      and the Free State. The intention      a small town in KZN’s Zululand         the writers of the Constitution.
likely to hamper the restitution                                                                                     is to reclaim land taken from the      municipality, a group filed a land     However, two policies developed
programme as new claims are                                                                                          Zulu kingdom during the colonial       restitution claim and labour           by the Department in recent
lodged. Among the most pressing                                                                                      period — from 1838 onwards —           tenants’ claim many years ago.         years – namely, the Draft Policy
is the lack of state funds allocated                                                                                 first by the Voortrekkers and then     Authorities say that these claims      Paper on CPAs and the Communal
to the re-opening of land claims                                                                                     by the British.                        are still “being processed”. King      Land Tenure Policy – have
(see p. 21). This suggests that                                                                                          Indeed, President Jacob Zuma       Zwelithini has recently begun          sidelined CPAs in favour of
the government is selling empty                                                                                      has been encouraging traditional       laying the foundations for the         traditional leaders.
promises.                                                                                                            leaders to make such land claims.      building of a royal palace on the         The Department’s policy
                                                                                                                     In his speech to the National          Babanango land. While the King         says that no new CPAs will
                                              RESTITUTION IN NUMBERS (as of 1 April 2015)                            House of Traditional Leaders in        negotiates via the Amafa Heritage      be established in areas where
How long until all                                                                                                   2014, he told traditional leaders      Council, on the grounds that the       traditional councils already exist.
restitution claims
are resolved?                                                       57 300                                           to get “good lawyers” so that they
                                                                                                                     could put in land claims.
                                                                                                                         But according to the Restitution
                                                                                                                                                            area is an important Zulu heritage
                                                                                                                                                            site, fences have been erected
                                                                                                                                                            preventing the local people from
                                                                                                                                                                                                   In the Eastern Cape and North
                                                                                                                                                                                                   West, there are several groups of
                                                                                                                                                                                                   restitution claimants who have
                                                     claims have already been lodged since July 2014

I
     n order to meet its goal of                                                                                     Act, only people who were              accessing water and pastures for       experienced severe delays, either
     resolving all existing and
     new claims (409,000) in the                                  379 000                                            dispossessed of land after 1913
                                                                                                                     qualify for restitution. This means
                                                                                                                                                            their animals.                         in the transfer of land to their CPAs
                                                                                                                                                                                                   or the registration of the CPAs
coming 15 years, the government                            new claims are expected before 2019                       that if King Zwelithini were to                                               themselves (owing to objections
would need to speed up its                                                                                           lodge a claim for land lost in 1838,   CPAs versus traditional                by traditional leaders).
settlement rate six-fold. Assuming
that the new claims will be as
                                                                121 years                                            that claim would not be valid.
                                                                                                                     The same of course applies to any
                                                                                                                                                            leadership                                Restitution is a vital component
                                                                                                                                                                                                   of South Africa’s land reform

                                                                                                                                                            T
                                           the time it would take to finalise pre- and post-1998 land claims if
cheap and easy to settle as past                                                                                     other traditional leaders who try to           he second window for           programme. And yet the re-
                                                    claims continue to be settled at the current rate
claims (an unlikely prospect), it                                                                                    claim land lost before 1913.                   restitution claims has been    opening of the window has
would require an annual budget                                                                                           Nevertheless, claims by                    accompanied by a policy        gone hand-in-hand with the
of R12 billion over a period of 15                                                                                   traditional leaders on behalf of       shift which, in effect, reduces the    government’s efforts to favour

18   PLJ                                                                                                                                                                                                                        PLJ   19
Overt urning Dispossession

How the law protects                    •• To lodge a restitution claim,        •• Note that the Restitution Act
restitution claimants:                    you do not have to align with           defines a community as a group
                                          a traditional leader, council or        of people who hold land jointly
•• Section 18 of the Constitution         tribe. Section 2 of the Restitution     and have shared rules about
     protects the right to freedom        Act confirms that the key               how to hold, access and manage
     of association. This means that      criterion for claiming is that you      the land. The definition also
     you can choose how you want to       must be “a person, community            provides that a community
     identify yourself or your group      or part of a community                  could be a part of a larger group.
     when you make a claim. It can        dispossessed of a right in land
     be a problem if a traditional        after 19 June 1913 as a result of
     leader puts in a claim on your       past racially discriminatory laws
     behalf without your consent.         or practices”.
                                                                                                                                    EMPTY PROMISES?
elites, including traditional leaders
and mining magnets, while side-
                                        take action to protect people
                                        who lodged claims before 1998.
                                                                                   Some tools remain open to
                                                                                people whose rights to restitution
                                                                                                                              Big talk as funds for land reform diminish
lining the people whose ancestral       If it does not do so, it will be in     have been or are now at risk of
land was taken from them as the         violation of section 25(6) and          being violated. Two of these tools
result of racial discrimination.        section 25(7) of the Constitution,      are the protections provided for in

                                                                                                                       G
   In light of the slow settlement of   which provide for security of           the law and the ability to organise              overnment says it is        30,000 outstanding claims             tenure reform (grouped together
restitution claims and traditional      tenure and restitution for people       on a mass scale.                                 committed to land           (lodged before the first deadline     in the budget) is 0.1% more than
leaders’ stated intentions to lodge     who were dispossessed of their                                                           reform but there is         in 1998). However, the most           it was in 2015/2016. Such small
claims, the government must             land, respectively.                                                            not enough money in the land          recent national budget clearly        increases mask how much the land
                                                                                                                       reform budget to deliver on these     shows that there is not enough        reform budget has declined over
                                                                                                                       promises (and this is not the first   money in the budget to deliver on     the last six years.
                                                                                                                       time).                                government’s promises.                   In fact, until this year, the
                                                                                                                          When President Jacob Zuma                                                land reform budget has been
                                                                                                                       announced in 2013 that the land                                             shrinking annually. The trend is
                                                                                                                       restitution process would be re-      The funds have not been               alarming. As shown in the figures
                                                                                                                       opened and that people would be       made available                        on page 22, soon after President
                                                                                                                       able to lodge new claims until the                                          Zuma’s government took office,

                                                                                                                                                             T
                                                                                                                       end of June 2019, the government             he total funding available     the land reform budgets were
                                                                                                                       promised that it would dedicate              for land restitution in the    increasing. However, since
                                                                                                                       the resources required to deal               2016/17 budget (the latest     2010/2011, they have decreased
                                                                                                                       with the expected 379,000 new         budget) of the Department of          considerably. Overall, the land
                                                                                                                       claims (at an estimated cost of       Rural Development and Land            reform budget under President
                                                                                                                       R180 billion).                        Reform (or Department) is 8%          Zuma is far lower than the budget
                                                                                                                          Government also promised           more than it was in 2015/16. The      during most of President Thabo
                                                                                                                       to prioritise the approximately       funding for land redistribution and   Mbeki’s second term.

20    PLJ                                                                                                                                                                                                                    PLJ   21
Overt urning Dispossession                                                                                                                                                                                          Overt urning Dispossession

                                                                                                                                                                            1+99
                                          Budget Trends for Land Restitution and Redistribution 2008-2015                                                                  Land reform makes up 0.4% of the
                                                                   (Inflation adjusted in 2015 constant Rand)                                                                   national budget (2016)
                                           6.0

                                           5.5
           TOTAL BUDGET, R MILLIONS

                                                                                                                   Restitution
                                           5.0
                                                                                                                   Redistribution

                                           4.5

                                           4.0

                                           3.5

                                           3.0

                                           2.5
                                                                                                                                                   Government’s land reform programme includes three projects aimed at
                                                                                                                                                        undoing the effects of land dispossession under apartheid:
                                           2.0
                                                    2008/09 2009/10 2010/11         2011/12    2012/13    2013/14     2014/15    2015/16
                                                                                                                                            •• LAND RESTITUTION              •• LAND REDISTRIBUTION             •• TENURE REFORM
                        3,4                                                                                                                  refers to the process of          refers to the process of          refers to processes that try
                                                                                                                                             returning land to people          changing the racial patterns      to strengthen the rights
                                                                                                                                             who were dispossessed of          of land ownership in South        that people have over
                       2,8                                                                                                                   their land under apartheid.       Africa. Under apartheid           land, especially when
                                                                                                                                                                               most black people were not        those rights are weak as a
                                                                                                                                                                               allowed to own land and this      result of apartheid.
                                                                                                                                                                               project tries to rectify this.
                       2,2

                         1,6

                                      1
                                                  Total Funds            Capital Funds         Total Funds for          Capital Funds for
                                                 for Restitution         for Restitution      Redistribution and       Redistribution and
                                                                                               Tenure Reform             Tenure Reform
                                                                         2013/14           2014/15       2015/16

22   PLJ                                                                                                                                                                                                                                    PLJ   23
Overt urning Dispossession                                                           Empty P romises?

                             Budget trends in restitution         speeding up land reform, settling
                             and redistribution, 2008–            old land claims, and dealing with
                             2015                                 the flood of incoming new land
                                                                  claims.

                             T
                                     o make matters worse,           The Treasury is also unwilling
                                     the increase in funding      to fund new schemes such as that
                                     for land restitution is      of paying farmers 50% of the value
                             mostly to pay for travel costs,      of their land (without the farmers’
                             research consultants and             giving it up) in return for shares for
                             additional staff at the already      a small fraction of their workers.
                             overburdened Commission on           Instead, the National Treasury is
                             Restitution of Land Rights. Only a   putting in only enough money for
                             portion of the whole ever reaches    the land reform process to march
                             the claimants.                       on at its current snail’s pace.
                                                                     The budget figures clearly
                                                                  show that Government is not
                             Funds for land reform                prioritising land reform even
                                                                  though it claims to be.

                             I
                                 n general, land reform is
                                 not well-funded. It usually
                                 makes up about 1% of
                             the national budget. In 2016,
                             however, the land reform budget
                             makes up only 0.4% of the
                             national budget (see R. Hall,
                             “Land reform: The Time Bomb
                             Ticks”, PLAAS Blog: Another
                             Countryside, February 2016).

                             What does the lower budget
                             tell us?

                             T
                                     he budget suggests
                                     that, in practice, the
                                     National Treasury does
                             not conform to the policy talk of
                             Government. It is not prepared to
                             fund the Department’s promises
                             of expanding certain programmes,

24   PLJ                                                                                        PLJ   25
THE POLITICS OF
           RECAPITALISATION
           How Land Redistribution Funds are Being
                     Diverted to Elites

26   PLJ                                        PLJ   27
The Poli tics of Recapi talisation                                                                                                                                The Poli tics of Recapi talisation

                                              T
                                                       he Department of             the Free State are particularly         February 2015 meeting of the          restitution and redistribution
                                                       Rural Development            unhappy with their strategic            Parliamentary Committee               claimants (which is what it was
                                                       and Land Reform              partners, raising serious questions     on Rural Development and              intended for).
                                              (the Department)’s only               about whether they are actually         Land Reform. “Action needs               At the February 2015
                                              funding initiative for land           empowering or exploiting land           to be taken. This is wasteful         parliamentary meeting, Grain SA
                                              reform beneficiaries, called the      reform beneficiaries.                   and fruitless expenditure,”           told MPs that only 32 of its 600
                                              Recapitalisation and Development         The report investigated strategic    said one MP. “Budget is               black emerging farmer members
                                              Programme (or RECAP), seems           partners attached to projects in        flowing but the services are          had received RECAP grants. Their
                                              to be diverting funds away from       Gauteng, North West, Limpopo,           not coming,” said another             3,500 members in ‘communal
                                              land reform and towards a small       the Eastern Cape, KwaZulu-Natal         (Parliamentary Monitoring             areas’ were told the policy did
                                              group of commercial farmers and       and the Free State, and found that      Group (PMG), “Public                  not apply to them (PMG, “Public
                                              preferred ‘strategic partners’.       the majority of strategic partners      Hearings on Implementation            Hearings on Implementation
                                                  According to the new land         reside in Gauteng. A number             of the Recapitalisation and           of the Recapitalisation and
                                              policies, the only way to acquire     of beneficiaries said they felt         Development Programme”,               Development Programme”, Public
                                              financial support for land received   strategic partners were “imposed”       Public Monitoring Group, 4            Monitoring Group, 4 February
                                              through a land reform programme       on them. Many beneficiaries also        February 2015: https://pmg.org.za/    2015).
                                              is through the RECAP. The             commented that they had little          committee-meeting/19977/).
                                              two previous grants that were         control over their own RECAP                                                  The South African government
                                              awarded in terms of the land          funds.                                                                        uses the term communal areas
                                              redistribution programme (the                                                 Misallocations                        to refer to all land in the former
                                              Restitution Discretionary Grants                                                                                    Bantustans.

                                                                                                                            T
                                              and Settlement Planning Grants)       The DPME report                                  he RECAP programme
                                              have been discontinued. In order      contained further alarming                       was launched to support      Many of the bigger grants are going
                                              to receive a RECAP grant you must     findings on RECAP:                               people who were given        to a few people with political
                                              prove that you have a business plan                                           land under the restitution or         connections. Farmers who
                                              and a strategic partner.              •• The average expenditure per          redistribution policies after         were already financially strong
                                                                                       beneficiary in the Free State is     1994, but did not get adequate        “bypassed provincial government
                                                                                       R1.02 million, but RECAP has         follow-up capital and support to      officials and contacted senior
                                              Empowering or exploiting?                not created a single full-time job   farm productively. The DPME           politicians to have their farms
                                                                                       in the province;                     report shows, however, that only      prioritised for recapitalisation,”

                                              I
                                                   nstead of using the RECAP        •• RECAP swallows at least a            29 grants in its sample went to       the DPME said in its report.
                                                   programme to help new               quarter of the Department’s          restitution projects and 16 to land
                                                   farmers, many of these              yearly budget;                       redistribution beneficiaries.
                                              strategic partners are ‘farming’      •• The national average                    In the same period, 564 grants     Elite capture
                                              state subsidies. A 2013 report,          expenditure is R2.9 million          went to new commercial ventures,

                                                                                                                                                                  T
                                              commissioned by the Department           per project and R463,284 per         most of them on land owned                     he way that RECAP is
                                              of Planning, Monitoring                  beneficiary;                         by government and leased to                    being implemented fits
                                              and Evaluation (DPME) in              •• The average cost per job created     ‘beneficiaries’. So RECAP funding              the broader picture of
                                              the Presidency, found that               by RECAP is R588,284.                is more often going to new            elite capture across all aspects
Previous page: photo by Chris Morris (2014)   beneficiaries in North West and       This led to an outcry at a              commercial projects than to land      of land reform. Far from the

28   PLJ                                                                                                                                                                                       PLJ     29
The Poli tics of Recapi talisation                                        The Poli tics of Recapi talisation

                                                                             But RECAP, like other land
                                     “Land reform is                      reform policies such as the
                                     not only about                       Communal Land Tenure Policy
                                     agriculture but                      (CLTP), denies the substantive
                                     agriculture is a                     land rights of people living in
                                     crucial component                    rural areas by making their ability
                                     of land reform.                      to use their land conditional
                                     Land reform should                   upon their ability to draw up a
                                     address the various                  commercial business plan and
                                     land needs of the                    the actions of imposed strategic
                                     beneficiaries …                      partners (see p. 47).
                                     post settlement                         “I guess elite capture is part of
                                     should not only be                   the process,” the Department’s
                                     seen in terms of the                 Director General Mdu Shabane
                                     Farmer Support                       said at the February 2015 meeting
                                     Programme                            in Parliament. “We’ve seen
                                     or the existing                      people coming from nothing
                                     Recapitalisation                     and becoming so powerful. They
                                     and Development                      have a vision of saying they want
                                     Programme which                      to make a billion. I think that’s
                                     targets farming                      exactly what we want them to
                                     with strategic                       do. We need to restore the class
                                     partnerships.”                       of black commercial farmers
                                     Ad hoc committee on the legacy       destroyed by the 1913 Land Act.”
                                     of the 1913 Land Act, Report,
                                     November 2014.
                                                                             With the Department
                                                                          determined to follow the path Mr
                                                                          Shabane describes, it seems they
                                     land reform budget supporting        will not heed the warnings of
                                     redistribution to the poor, it       land reform beneficiaries and the
                                     entrenches inequality between        DPME report to move away from
                                     the rich and poor.                   conditional funding systems
                                        Land reform programmes            with vague selection criteria
                                     should be geared towards             and towards a comprehensive
                                     redressing the terrible legacies     support system for a range
                                     of the dispossession of black        of land reform beneficiaries,
                                     South Africans and the persistent,   not just those on a path to
                                     unequal distribution of land and     commercial agriculture.
                                     resources.

                                     Photo by Chris Morris (2014).

30   PLJ                                                                                              PLJ   31
The Poli tics of Recapi talisation                                                                                                                                                                 The Poli tics of Recapi talisation

                      LAND REFORM IN
                       OUR LIFETIME?
               The Story of the Stellenbosch Small
                      Farm Holdings Trust

T
        he Stellenbosch Small          of the plots. Instead, the idea is          The Department even ring-
        Farm Holdings Trust was        for the site to remain in the hands      fenced around R11 million for this
        formed in 2003 by ten          of the municipality from one             purpose. But the municipality
landless but highly skilled farmers.   generation of farmers to the next.       never submitted an application for
All previously disadvantaged              In order for this long-term goal to   government funding until it was
individuals, they lacked the means     be achieved, however, the irrigation     drafted on their behalf in 2008 by
to purchase land or to rent land at    infrastructure needs urgent              the University of Stellenbosch and
market rates.                          upgrading. From its earliest stage,      a team of engineers.
   The Trust’s aim is to “promote,     the Trust sought to encourage the           In 2011, the Department
support and facilitate access to       municipality to identify sources of      (that has since been renamed          The process took several years.       been submitted or was simply           the fact that there is no need for
land and the use of land on an         government grant finance to equip        Rural Development and Land            Although the new RECAP policy         waiting on someone’s desk. By the      it. Without a strategic partner, the
equitable basis for the benefit        its piece of commonage land with         Reform) finally responded to          had not yet been adopted, RECAP       time the Department met with the       farmers would never get access to
of the Beneficiaries”. It has          the infrastructure necessary for         the application. They indicated       guidelines were already published     farmers and municipality, all of       the water they need to grow their
been granted access to 65 ha of        small-scale farming. In particular,      that, since the submission of the     in around 2013.                       those officials who had begun the      vegetables.
commonage land through the             they needed a water reticulation         application in 2008, the policy had      The requirement to work with       project were no longer working for         These are some of the struggles
goodwill of a commercial farm          system.                                  changed and the application now       a mentor/strategic partner had        the Department.                        land reform beneficiaries face
operator holding a long-term lease        The Trust struggled for some          had to have “a bit more detail”.      thus already emerged. However,           As a result, no-one knew how        through programmes like RECAP.
on the land from the Stellenbosch      time to convince the local                  Inexplicably, and despite          the Department, together with         much money and time had been
municipality.                          municipality to get involved in the      exasperated protests from the         the municipality and the farmers,     spent on the application over the
   Commonage land is municipal-        administration and funding of the        farmers, the Department and           decided that, given the level of      previous five-to-ten years. Worse
owned land that cannot be              land reform project. Back in 2006,       the municipality decided not          skills of these farmers, they would   still, it was announced that the
sold and must be used for the          the Department of Land Affairs, as       to simply refine the application      not require such a partner. The       only option for the Municipality
socio-economic benefit of the          it was then, had already indicated       already prepared (at a cost of        development of the application        was to develop a third application
community. The farmers each            that, should they receive an             R300,000), but instead appoint        proceeded.                            for the funding, this time with a
occupy 5 ha where they have been       application from the municipality        consultants at R460,000 to redraft       Towards the end of 2013, the       strategic partner/mentor in tow.
growing vegetables and herbs,          to upgrade the project’s                 the application entirely.             completed application then               Left with no choice, the
each for their own account. They       infrastructure, they would provide          The Department paid for these      went missing. It could not be         municipality has since been forced
never intend to take ownership         the funding.                             consultations from its own budget.    established whether it had in fact    to find a strategic partner, despite

32   PLJ                                                                                                                                                                                                                        PLJ   33
A LUTA
                       CONTINUA
                New Laws are a Setback for
                     Rural Women

           S
                  ince the end of apartheid,     since 2003 which centralise power
                  women in rural areas have      in the hands of chiefs, bolstering
                  used the Constitution          their ability to define the content
           to fight for their rights to land.    of customary law on their own,
           In the negotiation of the 1996        without consulting the people who
           Constitution, rural women’s           are affected.
           organisations fought traditional
           leaders who argued that the right
           to equality should be subject to      Women and customary law
           official customary law, in which

                                                 T
           only married men have rights                   he new laws introduced
           to land. The women won that                    since 2003 are based
           struggle, and then again when the              on claims that women
           ConCourt ruled against the chiefs’    traditionally had no land rights
           objections to the Constitution.       under customary law. But
              Since then, in case after          evidence shows that this is not the
           case, the ConCourt has struck         case.
           down ‘official’ customary law as         Many authors have written
           discriminatory and “a distortion      about how official customary law
           of the true customary law ... which   was ‘constructed’ by government
           recognises and acknowledges the       officials in conversation with
           changes which continually take        African male chiefs and elders.
           place” (Bhe, para 86).                Western categories were imposed
              But the gains women have won       on African realities, and the rules
           since 1994 are now at risk of being   described by male elders were
           eroded by a set of new laws passed    the ones which became official.

34   PLJ                                                                     PLJ   35
A Lu ta Con tinua                                                                                                                                                       A Lu ta Con tinua

                                                         and stripped married women not                        lead to the collapse of family          Resistance by the chiefs
                                                         only of their legal status but also                   networks and, by extension,

                                                                                                                                                       D
                                                         of any legal stake in the couple’s                    society at large. Both government                 uring the mid-1990s, the
                                                         property.                                             officials and chiefs were of the                  Congress of Traditional
                                                            And yet, traditionally, women                      view that women should be under                   Leaders of South Africa
                                                         did have primary rights to arable                     the control of their fathers or         (Contralesa) and the Inkatha
                                                         land, and strong rights to their                      husbands at all times, and that         Freedom Party (IFP) argued that
                                                         houses within the extended family.                    women with independent land             the new Constitution would “put
                                                         Even single women were allocated                      rights would have sufficient            such hallowed institutions as
                                                         land in their own right, and there                    agency to reject marriage.              lobola (bride wealth) in jeopardy,
                                                         are also many accounts of women                          Meanwhile, a woman’s position        open the way to allowing women
                                                         inheriting land.                                      as breadwinner through farming          to succeed to the monarchy on the
                                                            At a local level, the official                     had begun to change as the money        same basis as men, and prevent
                                                         restrictions imposed on women                         sent home by migrant workers            a father from claiming damages
                                                         were often challenged as being                        replaced small-scale agriculture        for the seduction of his daughter”
                                                         inconsistent with ‘actual custom’.                    as the main source of household         (Certification of the Constitution,
                                                         But as the power of the apartheid                     income. Men were increasingly           para 200).
                                                         government grew stronger, and                         earning the money to pay for               During this time, Chief
                                                         the land base in the tiny African                     bride wealth. No longer were they       Patekile Holomisa, the President
                                                         reserves (or ‘homelands’) came                        depending on, and contributing          of Contralesa, declared: “Let
                                                         under pressure, ‘customary’                           to, family networks held together       us not confuse each other and
                                                         restrictions on women’s land                          by farming, marriage and the            misinterpret that equality shall
                    These rules tended to exaggerate     rights came to be more strictly                       exchange of cattle.                     be applicable to each and every
                    the power and status of the elders   enforced by white government                             Increasing numbers of widows         thing. No woman can be the head
                    at the expense of women and          officials. Rights over fields came to                 and deserted wives found                of a family. The head of a family
                    young men, and were often in         be regarded as male property to be                    themselves faced with eviction          is always a man.” He added that it
                    contradiction with actual practice   inherited by the eldest son.                          from their marital homes at the         was “embarrassing and shocking
                    on the ground.                          Linked to the mounting                             whim of their in-laws. Widows           to see women claiming to be
                       This ‘official’ and simplified    pressure on land was the                              and wives became vulnerable to          traditional leaders”.
                    version of customary law, where      perception, held by officials and                     losing the homes and resources             But the Constitutional
                    the male head of the household       African patriarchs, that women                        they had built up over decades of       Court has ruled that the official
                    was the only owner of the land and   with independent land rights                          married life.                           customary law in textbooks and in
                    women were seen only as wives or     were less likely to marry and that                       But after apartheid ended and        laws like the Black Administration
                    daughters, hid a more complicated    declining marriage rates would                        the homelands were abolished,           Act is not ‘true customary law’,
                    reality in which single women                                                              women could finally use the             which evolves as people change
                    could and did acquire and inherit                                                          Constitution to argue for the           their patterns of life (see p. 41).
                                                         Opposite, top: Members of the Mogopa community
                    land rights.                         on their way to a meeting, 1984 (Paul Weinberg).      rights they had lost under ‘official’
                                                         Opposite, bottom: (from left) Beauty Mkhize, Sizani
                       The Black Administration Act      Ngubane and Jane Vilakazi, community leaders          customary law.
                    of 1951, for instance, made the      and struggle stalwarts, attend the Land Divided
                                                         Conference commemorating the centenary of the
                    husband the only property owner      1913 Land Act, March 2013.

36   PLJ                                                                                                                                                                           PLJ   37
You can also read