Issued by: Ministry for Agriculture and Land Affairs
27 November 2001
It is unfortunate that as we start this conference members who are also supposed to be here, are unfortunately outside, picketing. Even though as Government and as Minister in particular, we've made mention that we will seek to find time to interact with them. It is hoped that they are going to be part of this conference. This conference is an indaba which is aimed to openly discuss the various challenges that we face in the land matter in South Africa today. It is also a conference that is coming timely when also the SADEC region is deliberating on how it would deal with land issues in Southern Africa. Minister Pohambo is here to also share the experience arising from the challenges that they face in Namibia trying to address the very same matter.
Honourable guests and delegates in the past two our National Parliament held a debate on the importance of a successful land reform programme in our country.
In some way the debate pointed out some of the achievements that we have made as a country in the implementation of our land reform. This we have done while acknowledging some of the challenges that we still need to confront in order to ensure that none of us in future can still be called the landless.
This conference comes at a better time when communities and their organisations are making an assessment of where we are a country and as government, but also as communities. There is obviously jubilation from those who have benefited from the work that has been done so far. On the other hand there are those whose needs are not yet satisfied who continue to remind us that we need to do more in order to speed up the change. We want to say a better life is what we are striving for, not for a few, but for all. Some of these people are the majority of our rural communities who live in what used to be called reserves or Bantustans whose quest is for more land and development, and secure tenure that is recognised by the laws of our land. Other communities who are also affected by the same frustration are those in commercial farms as workers and labour tenants. While there are interim measures that were designed to help, the challenge still remains.
As we moved forward towards the transformation of our society we cannot forget to look back where we come from. The nature if land holding and tenure arrangements remain a constant reminder of colonial and apartheid South Africa.
Together we are here as South Africans to map out what will be the best for all of us. It must however be said that because of the given past we also had particular experiences of tenure security, some without any tenure security at all.
Land reform in SA arises from the scale and scope of land dispossession of the African people that took place since 1652. The dispossession was based on control and dominance over the black majority of this country by white minority. By the end of the 19th century millions of African people were displaced into ever smaller and poorer patches of land, resulting in over-crowding and environmental degradation. These later were known as native reserves which served as pools of cheap migrant labour for white-owned farms and mining companies.
During the first three decades of the 20th century there were struggles within the white ruling class over the precise nature of the uniform native policy that they all agreed was necessary. The differences arose from the inheritance of the different systems of African administration in the four provinces before 1910 and the contradictory views of white farmers and mining companies on the principle of African reserves. White farmers did not support the idea and the mineworkers did not share the same interests with their bosses on the mines and in the factories.
When the National Party government came into power in 1948, it started to review the native policy. The ultimate result was the introduction of the separate development policy. Blacks were divided along ethnic lines and grouped together accordingly to form what was called 'self-governing territories or national Bantu units'. This system entrenched the position of traditional leaders and headmen as colonial and apartheid agents of dominance in the reserves. The implementation of the separate development policy resulted in the second spate of mass forced removals, which took place from the 1960s through the 70s. Africans in 'black spots' -the areas where Africans had acquired freehold title to their land outside the Bantustans - were forced to move to the Bantustans as a matter of urgency by government priority. About 3,5 million people were removed from urban and rural areas.
Notwithstanding this realities of where we come from, as a country in 1994 we succeeded in putting in place a constitutional and legal framework for implementation of land reform. We agreed on one hand that it was important to honour and protect those with property while at the same time we needed to allocate new rights to those without properties.
All South Africans through the constitution and the White Paper on Land Policy reached consensus that to effect Land Reform government had to implement three programmes, namely Redistribution, Restitution and Tenure Reform.
The objectives of these three programmes which bring about National Reconciliation, Social and Economic Development and provide land for settlement and other economic use such as agriculture.
It is important for all of us as we sit through this conference to reflect a bit on how far we've gone. If indeed these were our objectives of why we needed to undertake this task. If one has to start with the Restitution programme:
At the end of the cut-off date in December 1998, 67,314 claims by groups and individuals had been lodged, of which about 80 percent were urban and 20% rural.
Until about 1998, the framework we used was purely a judicial process which dealt with the settlement of restitution claims. However, in 1999 as a result of our experience we understood that there was a need for an amendment to ensure that a faster pace can be attained in dealing with restitution in an administrative process. This intervention by the legislature some of whom are present here today, assisted us to settle a number of claims which we wouldn't have been able to do prior to that. As at the end at October 2001 out of the 67 314 land claims, 12 863 have been settled, translating into 39 209 households, 365 567 ha of land being transferred to people. It must be said that this is a good beginning it shows that indeed we're trying to improve on the pace of our delivery.
a) Clearly more has to be done, one has to admit, if one considers that many communities has been waiting for the resolution of their claims for a long time. Not just from 1994 when we broke with the apartheid past, but long before from the times they were removed. It is even necessary for us to critically look at what has been some of the problems.
Some of the problems that we faced to settle the claims has been the process between the claimants and the land owners concerning the compensation price where land restoration is a preferred route.
b) This we must say none of us anticipated before, but it is a reality that we've had to live through. The other preferred by a number of communities and individuals opt for financial compensation as opposed to land. It may be said, as other critics have always said, that even if we can boast about such numbers it is meaningless because what people have received is only cash, not land. I would like to remind all of us here that these are the choices that we make when we put the compensation forms as part of our legislation. We said people can choose to have land, people can choose to have original land or alternative land, We also said those who don't want to make such choice, they can choose compensation in terms of monetary receipt. And this is what some communities have chosen, and indeed if you look at the scale of that choice is larger than what people have opted for land. It is a worrisome fact, however, because very little people through this process, we can say, have access to land.
The other matter is the administrative capacity in the various provincial Commission offices. We can fight here if we look at the previous five years. One of offices had to be shared by one Commissioner. In some instances even the capacity in those offices resulted in a loss or delay without speeding up the process. However, some interventions have been made to resolve this problem. It must also be said that within this process there are still communities supported by some of the non-governmental organisations that still prefer to proceed through a judicial process. And I think in this instance the Commission and the Department have very little to do once such a choice is made because all of us would respect the differences of authority between the judiciary, the legislature and the executive.
The other important element which we must also say is that in settling of this claims: mid-stream you always find that there are changes that occur. Within the same group there are sometimes those who choose to follow the judicial process while others want to go through an administrative process. And mediation between the groups sometimes take a lot of time and this is another course of delay. While we say all these are the challenges that we face, it has not stopped us to continuously find a solution around which we can work forward.
The other important programme of our land reform programme has been the Redistribution Process. This process has always been demand-led. It does not involve the prior acquisition of land by the State for subsequent settlement. Because the land was both relatively costly and unavailable in small grant-size that Government provide, people wishing to acquire land with the grant had to form themselves into groups to acquire land on the open market.
From 1996 to 1998 we must say that project approvals picked up again in this area. By the end of 1998, about 600,000 hectares of land which affected about 35,000 households was delivered. This is an average of approximately 17 hectares per household. A study that was done, known asThe Quality of Life Survey, in 1999 by an independent agency monitoring the effects of the programme, concluded in its report for the year 2000 that both the performance and impact of the programme had improved since the previous survey in 1998. Accordingly again from the recent study conducted in August 2001:
Approximately 87,000 households have benefited from the redistribution programme since 1994 both by accessing land for settlement and production.
This has translate today to 435 000 people based on the average family size of 5 persons per household getting land which they can call their own.
It is also necessary for this Directorate to tell honourable members and delegates that are here, that during this time, as a Department we always strived to ensure that it was not only land that we delivered, but we've also dealt with the improvement in land that people have received from the State. We must say that here there've been challenges, but also there have been successes. We continue to ensure that as Government we respond to the diverse needs that people inform us they need. One of these has been to make an attempt to address the need of the emerging farmers through the agricultural land development programme, known as LRAD.
It has broadened the scope of the land redistribution programme by including assistance to black emergent commercial farmers but not to the detriment of the rural poor. I must also say this programme is one of the programmes where there was much consultation which took almost a year between those who preferred that the programme must prioritise the interests of the rural poor and those who are waiting anxiously to find a resolution to the need for an agrarian reform. It is our view that through the consultation process we're able to find the balance.
Honourable delegates, we are here today to find solutions to one of the programmes that has been very, very weak. This has been the land tenure programme. As I said earlier on that our land reform programme include three programmes: restitution, redistribution and land tenure. It must be said that in trying to deal with this programme we must realise that in SA we've acknowledged also through our policy, that we will retain where possible, a dual tenure system, acknowledging that we still have a free-hold land tenure system in the country as well as the customary land tenure, particularly those in communal areas. We've also acknowledged that there is a grey area in between particularly those people who live on farms as farm workers and labour tenants. Chairperson, as I say this has been a slow process, it does not mean, however, that nothing has been done. When one looks at the tenure reform affecting farm workers and farm occupiers in white farm areas and peri-urban areas, two pieces of legislation were promulgated in 1996 and 1997, known as the Extension of Security of Tenure Act as well as the Labour Tenant Act. These sought to deal in the interim with the spate of eviction that we're seeing, certainly in commercial farms. But more importantly, it was trying to deal with those people who neither fell within the Restitution Programme, however, they were also not classically falling within the Redistribution programme because of their circumstances and we therefore had to take into consideration that the reality of our country wanted us to become creative and find solutions. It must be said however, that there had been challenges raised from both sides particular with regard to ESTA.
Commercial farmers on one hand feel that this legislation does impact negatively on the status of their farms. While on the other, the farm workers are also raising an element that they don't have as yet a secure tenure in the areas where they live. This continuously is becoming an area that this conference will have to deliberate upon in a way of finding a lasting solution that will on one hand take into consideration the importance of our agricultural economy while on the other it takes into consideration the need for a secure tenure for our farm workers.
We also need to say that in the tenure reform in former homeland and ex-South African Development Trust areas there has been some work done.
After 1994 Government enacted the Interim Protection of Informal Land Rights Act as an interim mechanism to protect insecure land tenure rights held by many South Africans pending the promulgation of an overarching tenure reform legislation.
The Act provides protection against deprivation of informal rights to land.
In cases where there is a threat of deprivation of these rights, the Act ensures that the process of deprivation happens only with the consent of the holder of such an informal right.
A plethora of legislation has been inherited from the colonial and apartheid governments. Many of them have either been amended or repealed. New ones have also been promulgated. However, this has not significantly reduced the challenges that we face. When we decided to call this conference it was because that we understood that any resolution of the land problem in South Africa particularly the tenure problem, Government cannot do it alone without calling a number of stakeholders who are affected to share with us their experiences, but also to help us to find solutions. On our own as Government you will recall that prior to 1999 there was the Land Rights Bill which had already been drafted through consultation with the majority of you. However, we acknowledge that was certain weaknesses in the said Act.
We therefore moved to look at some of the loopholes and undertook some of the consultations. Some of the people in the non-governmental organizations as well as the traditional authorities have met with our officials to look for what could be an amicable solution. So what would we do during this conference? In part we will present what we think can be the best legislative framework for tenure reform in South Africa. Through the principles and the Bill that will be presented to you, we're saying as Government, we recognize the underlying rights of individuals and groups to produce off the land which is nominally owned by the State.
We say rights rest in the people who occupy, use or have access to the land, not in institutions. In some cases the underlying rights belong to groups and in other cases to individual families. We are saying it is important that all of us find a way in which such rights can be protected, but also how people in rural communities can utilize such an important asset for their development. We are also saying where the right to be confirmed exist on a group basis , the co-owners must have choice about the structures which manage their land rights on a day to day basis. We are here not instructing or making a preference, but we are saying together with all of you we may find what is the best in which we can make a framework. But we are also saying the affected parties in those communities are the best who must make a choice. In the presentation of this Bill, we are also saying it is necessary not to delay making a legal framework for a rural tenure system in South Africa, because this effect development in a number of ways.
In a number of cases that have been reported to this Department, it has become very clear that where in rural communities development come such as investment, there is always competing needs of who has authority over what land as a resource. And I am saying, it is important to find a way in some of these matters can be dealt within an acknowledged framework that is acceptable by Court. One of the other elements that we seek to deal with in this Bill, is to deal with the administrative system that has to pertain in such areas. We are loathe to admit that because of the gap that has existed thus far there has been a chaotic management system in any in a number of this areas. Some of you would recall that there used to be what was called PTOs or permission to Occupy wich was actually an understanding between the one who had the land allotted by the relevant authority in the rural communities. We also know that such PTOs, in some instances, would never invalidate a man that was acceptable by those who had put resources to him there.
And therefore it created a problem. However, even that system in time it became very redundant or chaotic in the way it was done. It is therefore necessary that all of us in dealing with this conference we understood the urgency that we had as we came in, that we need to continue the transformation process no matter how hard. As we come in this context as Government, we are also here to share with our African brothers coming from the various countries, one of the Namibia, Uganda, some of the participants who are here who will share with us their own experiences of how they have tried to deal with this complex matter. We are not here to examine the case, but we are to share the experiences with you. We are saying South Africa's land reform for it to succeed needs Government, needs civil society, needs the legislature, needs Amafazi, needs Amakhosi. Because we need a better life will, only be achieved when we all work together. It is in this context that we open this conference and hope that all of you, each one of you, you feel very comfortable sharing your views openly with us in trying to find a solution to tenure reform in South Africa.
We have gone through a systematic programme internally to address areas in policy and legislation that needs to be improved. Importantly with respect to tenure reform the Department has been engaged in an intensive process of drafting legislation - the Communal Land Rights Bill - to address the problems relating to land tenure in the former homelands' communal areas and to come up with an equitable and credible land tenure system in these areas.
The core principles of the Bill are: Recognition of the underlying rights of individuals and groups to much of the land which is nominally state owned:
Rights vest in the people who occupy, use or have access to the land, not in institutions such as traditional authorities or municipalities.
In some cases, the underlying rights belong to groups and in other cases to individuals or families.
Where the rights to be confirmed exist on a group basis, the co-owners must have a choice about the structures, which manage their land rights on a day-to-day basis:
In situations of group-based land rights, basic human rights of all members, as set out in the Constitution, must be protected. Systems of land administration, which are popular and functional, should continue. They provide an important asset given the breakdown of government land administration in many rural areas. The aim is not to destroy viable and representative institutions. Popular and democratic African traditional systems are thus not threatened by the proposed measures.
The law should enable the transfer of ownership from the state to individuals and groups including African traditional communities:
Legal protection must be put in place to ensure that in the case of group-based land rights, the majority of members of the group endorse the legal entity, which takes transfer of the land.
I need to point out quite emphatically that at no point has government or the Ministry decided or intended to transfer ownership of communal land to 'tribal authorities' as some notorious critics of government would want the public to believe. However, in accordance with the Constitution, the Ministry recognises the institution, status and role of traditional leadership in terms of customary law subject to the Constitution. Land will be transferred to groups that regard themselves as African traditional communities subject to certain conditions such democratic decision-making and equality as reflected in the Constitution.
The law should create strong statutory rights for the individuals within group-based tenure systems who occupy the land:
These rights should have the status of property rights. They should protect individuals from deprivation, give them decision-making powers in respect of the land and be registrable in the central Deeds Registry. PTOs should be replaced with rights, which can be similarly registered.
A system of government support to land rights management in group-based tenure systems must ensure that individuals are able to make the key decisions in respect of their land:
Locally accessible procedures should be put in place and resources made available to support local institutions and to provide redress where necessary.
In line with Section 25 (6) of the Constitution, the law should provide for the resolution of particular types of tenure-related disputes arising from overcrowding and overlapping rights through the provision of additional land.
In summary, the Bill will put in place systems of communal tenure that are both equitable and credible, which will in addition facilitate development planning and investment in the communal areas.
As could be gleaned from the core principles of the Bill effective and efficient land administration structures will have to be established to ensure viable communal tenure systems. To this end, we need to draw some lessons from other countries in Africa and elsewhere.
In Botswana Land Boards were established to deal with land administration matters. The attempt here was to forge a collaborative land administration system between traditional authorities and elected local government representatives.
In Uganda, they created a form of occupancy title and/ or tribal title which facilitated adjudication, titling and record storage by local levels of local government.
In Namibia, they are in the process of adopting a new registration law which creates local property offices that would be digitally linked to the central deeds registry. The property office would be an extension of the Department of Lands, Resettlement and Rehabilitation.
The Ministry and the Department are seriously considering structures similar to the land boards of Botswana. These boards will at a broader level of land rights management, probably at a district level, bring together different interest groups in the communal areas and create a forum for co-operation on land rights and development. They would probably include traditional leaders and elected councillors.
Their functions would include, among others, adjudication of land-related disputes, ensure proper consultation with land rights holders, make recommendations with respect to extra resources required in overcrowded or disputed areas and liaise with development agencies and local authorities in matters that affect the land rights holders.
This is an attempt to allow our elected councillors to function efficiently, effectively and harmoniously with Amakhosi in land administration in the communal areas.
Concerning the plight of farm dwellers there is need to move beyond ESTA and LTA. We must start to think about how good land can be made available to farm dwellers and also how they can be provided with support (credit, subsidies, extension services, transport, etc) that will ensure that they use the land productively. To this end, the Department is currently formulating a land acquisition strategy, which, among its other objectives, will target certain agricultural areas with a prevalence of farm dwellers (farm workers and labour tenants) for acquisition. Areas that quickly come to mind are Mpumalanga, KwaZulu-Natal and the Western Cape. Another consideration is establishment of settlements for the communities working on farms. These are sometimes referred to as agri-villages. We need to closely examine the modalities of their establishment to ensure that these become vibrant, viable and sustainable settlements.
For the next four days I expect this conference to closely examine, analyse and deliberate on the issues I have raised and the possible solutions that the Ministry and the Department are considering to extend security of land tenure to all the affected people. As an outcome of the conference I also expect that your contributions will enable government to improve on the existing tenure reform policy framework and its implementation.
In conclusion, I wish to state that it is the government's belief that for land reform to succeed there is a need for broader constructive and meaningful participation and contribution of organs of civil society in support of the government's land reform strategic policies, legislative framework and implementation strategies. This must reflect itself by not only exerting social and political pressure on government, but by coming up with creative proposals in these areas.
As I leave you I wish you every success in your deliberation in the next four days.
I thank you