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A con­tentious new act seeks to trans­fer land from its pre­vi­ous right­ful own­ers to

CityPress - - Voices & Careers - Aninka Claassens voices@ city­press. co. za

he re­opened land resti­tu­tion process had net­ted 55 973 new claims by the time the min­is­ter of ru­ral devel­op­ment and land re­form, Gugile Nk­winti, de­liv­ered his bud­get ad­dress last week. That is not far from the 80 000 claims lodged be­fore 1998 – and the new win­dow is open un­til June 2019.

Last year’s Resti­tu­tion of Land Rights Amend­ment Act has been pro­moted with buses kit­ted out as mo­bile claim of­fices on ru­ral road­shows that raise new hope and make for good pub­lic­ity ahead of next year’s lo­cal gov­ern­ment elec­tions.

The prob­lem is that, while Nk­winti’s depart­ment es­ti­mates that new claims could cost R180 bil­lion, his bud­get is only R2.7 bil­lion a year. There is not nearly enough money in his bud­get to pay for the 28 000 un­re­solved old claims – let alone new ones.

What is go­ing on here? Rais­ing ex­pec­ta­tions that can never be ful­filled is a po­lit­i­cally danger­ous game.

Pres­i­dent Ja­cob Zuma has twice en­cour­aged mem­bers of the Na­tional House of Tra­di­tional Lead­ers to make con­sol­i­dated tribal claims, but there is no pro­vi­sion in law for claims on land lost in the wars of con­quest in the 1800s. Only those who lost land af­ter 1913 are el­i­gi­ble for resti­tu­tion.

The Resti­tu­tion of Land Rights Act of 1994 and our Con­sti­tu­tion sought to dis­man­tle the home­lands.

More than 3.5 mil­lion black South Africans were forcibly re­moved from their homes be­tween 1960 and 1986. Most were dumped in re­set­tle­ment camps that were sub­se­quently in­cor­po­rated into the home­lands, in­creas­ing the land and rev­enue base of home­land lead­ers enor­mously.

Those re­sist­ing forced re­movals ap­pealed to home­land lead­ers, in­clud­ing Man­go­suthu Buthelezi of KwaZulu and Lu­cas Man­gope of Bo­phuthatswana, but only Enos Mabuza of KaNg­wane fought back. This led to the re­prieve of Drie­fontein and KwaNgema in 1986 and ul­ti­mately to the end of the pol­icy of forced re­movals.

The Communal Prop­erty As­so­ci­a­tions Act of 1996 al­lowed peo­ple who qual­i­fied for resti­tu­tion to form demo­cratic land-own­ing as­so­ci­a­tions, but tra­di­tional lead­ers ob­jected, say­ing this un­der­mined their power and author­ity. They de­manded that land not be re­turned to the peo­ple who lost it, but to the over­ar­ch­ing “tribes” that were cre­ated in terms of the Bantu Au­thor­i­ties Act.

The for­mer home­lands are well known to be the poor­est parts of South Africa. Iron­i­cally, how­ever, some were later found to hold most of the coun­try’s new min­eral wealth.

The plat­inum belt is in the for­mer Bo­phuthatswana and Le­bowa. Rich de­posits of iron, coal and ti­ta­nium have been dis­cov­ered else­where.

With min­ing li­cences is­sued only to com­pa­nies with black eco­nomic em­pow­er­ment (BEE) share­hold­ers, th­ese ar­eas are now at the cen­tre of a feed­ing frenzy by the new elite.

The ini­tial land re­form pol­icy took a sharp about turn in 2003 from a fo­cus on the poor and from elected struc­tures own­ing resti­tu­tion land.

The ill-con­sid­ered Communal Land Rights Act of 2004 sought to trans­fer all land, in­clud­ing that owned by land-own­ing as­so­ci­a­tions, to tra­di­tional lead­ers “on be­half of tra­di­tional com­mu­ni­ties”.

Although the land-rights act was struck down by the Con­sti­tu­tional Court on pro­ce­dural grounds, Nk­winti con­tin­ues to in­sist that the land must go to tra­di­tional lead­ers. He says or­di­nary peo­ple need only “in­sti­tu­tional use rights”.

But there is a prob­lem: the Con­sti­tu­tion and the resti­tu­tion act clearly spec­ify that only those who had land taken from them – and then only af­ter 1913 – are en­ti­tled to resti­tu­tion.

How can gov­ern­ment stop the set­tle­ment of out­stand­ing valid resti­tu­tion claims brought by legally con­sti­tuted land-own­ing as­so­ci­a­tions and still hon­our Zuma’s prom­ises to tra­di­tional lead­ers?

The an­swer seems to be by trump­ing the out­stand­ing claims by land-own­ing as­so­ci­a­tions and trusts with coun­ter­claims by chiefs, and by flood­ing the strug­gling resti­tu­tion process so com­pre­hen­sively that only cherry-picked claims get to float to the top. In the chaos that is now in­evitable, the al­lo­ca­tion of the avail­able resti­tu­tion bud­get will no longer be ac­cord­ing to the law, but sub­ject to po­lit­i­cal favour.

Re­cently, there has been vi­o­lence at the Bokoni mine in Lim­popo and at Xolobeni on the Wild Coast, where events have fol­lowed a now familiar pat­tern.

Min­ing com­pa­nies win chiefs over with sub­stan­tial per­sonal benefits, while the peo­ple whose houses and fields are de­stroyed are nei­ther con­sulted nor re­warded.

Of course, not all chiefs be­have in this way, but enough do to make this a sys­tem­atic prob­lem.

Nk­winti sug­gested in his bud­get speech that land-own­ing as­so­ci­a­tion mem­bers would each get a hectare of their own. But what is a hectare com­pared with the much larger ar­eas to which ru­ral peo­ple have his­tor­i­cal rights?

The fields, forests and graz­ing ar­eas that pro­vide food, wa­ter, thatch­ing grass, herbs and wood that sus­tain peo­ple’s life­styles are un­der threat from ra­pa­cious min­ing deals bro­kered by chiefs with BEE shares.

What we are see­ing is dis­pos­ses­sion dressed up as land re­form. The only re­dis­tri­bu­tion tak­ing place here is from the poor to the rich. Claassens is direc­tor of the Ru­ral Women’s Ac­tion Re­search pro­gramme at the Cen­tre for Law and

So­ci­ety at the Uni­ver­sity of Cape Town

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