Land Restitution Process - Review and Proposals: briefing

Meeting report

JOINT MEETING OF THE PORTFOLIO COMMITTEE AND SELECT COMMITTEE OF LAND AFFAIRS
24 February 1999
LAND RESTITUTION PROCESS - REVIEW AND PROPOSALS: BRIEFING

Documents handed out:
Report of the Acting Chief Land Claims Commissioner
Summary of the National Profile of the Restitution Process (see appendix)
Explanatory Memorandum: Vote 22 - Land Affairs department budget estimate 1999/2000

SUMMARY
Acting Chief Land Claims Commissioner, Adv Mgoqi, briefed the committee on the Commission on Restitution of Land Rights activities and future plans.

MINUTES
The meeting began with a follow-on question time from the meeting the day before:

Questions from committee members:

Land Disposal Committees: How will they be selected and how will their existence be communicated to the public ?
Transfer of Funds: A concern was raised regarding the transfer of funds from the Department to institutions / lawyers.
Land Ownership: What is happening about the people who are not in townships, e.g. rural areas ?
Housing Grant: Is R16 000 not too little especially because of the very small increase from R15 000 ?

Answers from the Director General, Mr G Budlender:
Land Disposal Committees: These are an administrative mechanism for government to enable co-ordination in dealing with requests for land. They will be representative of the relevant bodies, such as Department of Land Affairs, Public Works and provincial government. The general public need not know of their existence; the public will deal directly with the Department or the Department of Public Works.

Transfer of Funds: R16 000 is usually sufficient to cover the land, with something over. The difficulty is that, on one hand, some control is needed over the money to ensure that it is not used for personal short-term needs, but on the other hand, the Department does not want to make it too difficult for people to use the money. If services are needed, e.g. water, roads, then the money is transferred to the District Council; if it is a small amount, it is transferred into the trust account of the attorney representing the community. In both cases the institution or attorney with the money is accountable to the Department, and the use of the money is audited. As far as administrative charges are concerned, there has been some grumbling in the District Council because they do not receive an administrative fee. In the case of attorneys, administrative charges usually come out of the interest on the trust account, with the capital amount staying intact.

Land Ownership: Rural areas generally are not surveyed according to a General Plan held in the Deeds Office which makes transfer of ownership difficult. The new Land Rights Bill will address this in two ways: firstly, by securing the position of people on land, giving them legally enforceable tenure (which should help them to get bonds from the bank), and secondly, by putting in place a mechanism for people to get ownership of that land.
Housing Grant: This question of how large/small the grant should be is debated continuously. There is no clear answer. Clearly, there is a limited budget and a balance needs to be struck between competing concerns. On the one hand, the Department wants to spread the resources to benefit the maximum number of people, but at the same time it wants to give people an amount that will provide them with real support. The R16 000 is pegged to the Department of Housing grant. The question is whether this link should be continued. What amount is appropriate also depends on who you are targeting.

Feedback And Summary of the Restitution Review
Why the Review?
Mr Roberts (Chairperson of the Review) gave an introduction to the review: The review arose out of a general concern of the public, the ministry and others, about the rate of delivery of restitution and the way the process was being conducted. The Minister therefore ordered a review to come up with a report exposing the problems and bottlenecks and a set of recommendations to overcome the problems. The review necessitated investigations into the institutions interacting in the restitution process, such as the Land Claims Court, the Land Claims Commission and the Department of Land Affairs Directorate. The investigation was carried out in consultation with these institutions. The review began in July 1998 and has been completed.

Summary of Report:
Dr Andries du Toit (consultant heading up the investigation) summarised the key elements of the review report.
Analysis of the key problems:
It is generally accepted that restitution has been slow. It is popularly reported that only 9 000 out of 34 000 claims have been solved – this is something of an oversimplification.

The slowness of delivery is a symptom of more serious underlying issues:
For a number of reasons, including inappropriate information technology, the process has been unplanned with a lack of accuracy;
There is a strong perception of opposition between restitution and development – that the process of restitution halts other development initiatives;
There exists a lack of trust and poor coordination between the institutions responsible for restitution. This has led to a sense of frustration and has also raised concerns of sustainability.

These problems have largely arisen because of the following factors:
The designers of the restitution process never imagined the large number of claims that have been received. The restitution process was originally envisaged to be concerned with a number of fairly well-understood removals of rural communities and "black spots". In fact over 80% of the claims are urban claims from individuals. This has caught the institutions off-guard and swamped them.

The nature of the problems of people claiming restitution has been different to what was expected. In the past the basic problem was thought to be whether or not people were entitled to their claims. In fact, the state has been far more accommodating than expected and the real problem has been how to carry out restitution – practical issues such as planning implications.

The institutions have been set up in such a way that it is difficult to make quick, clear decisions. There is an overall unclear sense of who is ultimately in charge of or responsible for the restitution process. The process therefore finds itself without a driver. This has led to a myriad of problems between institutions, including a lack of trust and the inability to always operate smoothly as a team.

There is a general lack of procedures to using limited resources effectively. For example, individual pay-outs in urban areas incur large administrative costs and use of resources. There has so far been an inability to mass-process urban claims effectively.

There has been a lack of concerted attention paid or policy formulated as to how to achieve the "how".
There is a sense that claimants are reduced to a passive role in the process. They are not partners in finding ways to solve the problems. This is largely because the process has been court-oriented.

Any solution had to find a way of dealing with these broad problems.
Four criteria are essential to a solution:
Restitution needs to be implemented by one organisation with the clear authority to drive the process as a whole from the beginning to the end and the clear authority to make decisions.
There needs to be a much clearer legal avenue for the mass processing of claims, especially urban claims.
There needs to be a process that can focus coherent energy on the question of "how" to achieve restitution, including development issues.
This process must be done in a way that involves the claimants themselves.

Recommendations:
Advocate Mgoqi (acting Chief Land Claims Commissioner) reported on the way forward:
As a result of the review, the Minister had made an important announcement last year that from 5 November 1998 there was going to be a single body dealing with restitution, namely the Commission, which would be integrated into the Department of Land Affairs to create a single line of accountability.

The process would be administrative rather than court driven.
The Commission would be given wider powers to finalise claims and the court would have a more focussed role in the following cases:
where claims are disputed;
where complex legal questions are involved;
in direct access cases;
in review \ appeal hearings.

Since that announcement there has been intensive interaction between the Commission and the Department of Land Affairs in establishing:
a single programme management;
a single line of authority / accountability;
clear policy directives;
negotiated settlement as the norm, rather than a court process;
mutual trust and cooperation between Land Affairs and the Commission.

The areas that have been identified to be currently dealt with are:
the integration of Land Affairs and the Commission and process re-engineering;
the streamlining of finances and administration;
information management (the process of manipulating data to produce intelligent reports);communication and liaison;
amendments to legislation (beginning with the Bill and with more to come)

Budget Position:
Advocate Mgoqi read from the "Explanatory Memorandum":
Subprogramme 6.1: Support with Restitution Claims
1998/1999 Budget R 28,4 million
Proposed 1999/2000 R 26,6 million
In the previous financial years, a provision of R6 million was made for legal aid to assist claimants who required legal assistance. This provision is now borne by the Legal Aid Board which is financed by the Department of Justice. This in effect means that there is an increase of R4,4 million.

Programme 4: Land Reform Policy
The Transfer payments budget for restitution settlements has been increased by R 3,5 million. (i.e. The funds allocated for actual restitution / settlement of claims)
There will also be a further recourse to a R50 million. These increases will be important in speeding up the process of restitution.

Report Of The Acting Chief Land Claims Commissioner
Advocate Mgoqi took the committee very quickly through the contents of the report entitled On the Commission on Restitution of Land Rights - A National Profile of the Restitution Process. He also went over a summary version, A Summary of the National Profile of the Restitution Process.

Questions from the Portfolio Committee:
1 Criteria for prioritisation: What criteria are used in prioritising claims?
2 Percentage of urban claims: The percentage given that 85% of the claims are urban claims seems to be a signal that something is wrong, that information has not been forwarded to the rural masses, that those people who should have submitted claims have not been informed. Does this mean that we should consider extending the cut-off date?
3 Claims after the cut-off date: In view of the number of people who brought claims as a result of the publicity campaign, did many more claims come in after the cut-off date which will not be considered?

Response from Adv Mgoqi:
The Restitution Act prescribes criteria for the prioritisation of claims, including the number of persons involved, whether the claimants suffered severe losses, whether the claimants have pressing needs. They have also included persons of advanced age.
There is a danger in statistics – 80% is a province-specific figure. For example in Kwazulu-Natal and in the Western Cape, there are more urban claims, but in the Northern Cape and the Northern Province the reverse is true. 85% is not a national statistic.
Comment from another commissioner: We should disaggregate what is meant by ‘urban" – "urban" refers to small individually held pieces of land where the claim is from one person or one family. Compare rural claims which are often thousands of families or hectares of land.
Comment from Director-General : Confirmed the Commissioner’s viewpoint. Awareness is not the problem. He did some rough calculations and concluded that even though 85% of the claims were urban, this would translate into about 600 000 people (6 persons a family), while the 15% rural claims would conservatively (50 families per claim) be about 3,6 million people.
The information campaign specifically targeted rural people in two ways: firstly, with an intensive radio campaign, and secondly with face-to-face encounters through workshops and roadshows.
Comment from another commissioner: The number of people who have submitted claims has shown the success of the awareness campaign; one of the things the campaign stressed was the cut-off date, so people would have been very aware of it. In her area, only a handful of late claims came in, which have been rejected.
Comment from Director-General: Noted that the Surplus People’s Project survey found that about 3,5 million people were forcibly removed by the apartheid government, and quite a few of these would not qualify for restitution for various reasons. Considering his rough estimates about the number of people who have claimed restitution, there would appear to have been a great deal of success in informing people about the restitution process.

Further comments from the Portfolio Committee:
Process of restitution: Dr Schoeman (NP) wanted to know if a community was removed from land A to land B, and so lays claim to land A, but some of the community did not want to move and get restitution, what happens to land B? There were also some concerns from other committee members about specific communities that they were aware of regarding the restitution process.
Legal representatives: Why are legal representatives only paid for once the process is in court? Should funds not be made available to lawyers to assist in making the claims?
Prioritisation of claims: One of the members was not satisfied with simply following the Act – she said that problems could arise where unoccupied land was taken over by squatters.

Appendix 1:
A SUMMARY OF THE NATIONAL PROFILE OF THE RESTITUTION PROCESS

· THE AMOUNT OF CLAIMS NOW LODGED TOTAL 63,455. (Breakdown as on page 1)
· 80% OF THESE ARE URBAN RESTITUTION CLAIMS, THE BULK OF WHICH ARE FINANCIAL COMPENSATION CLAIMS.
· IT MAKES STRATEGIC SENSE FOR THESE TO BE PRIORITISED FOR FINALISATION SO AS TO GET THEM OUT OF THE WAY.
· OF THE TOTAL CLAIMS RECEIVED THUS APPROXIMATELY 8,217 CLAIMS HAVE BEEN VALIDATED.
· OF THESE THE TOTAL NUMBER OF CLAIMS UNDER RESEARCH ARE 7192
· CLAIMS UNDER NEGOTIATION ARE 2866

· TOTAL NUMBER OF CLAIMS SETTLED ARE 34 (See statistical progress report at the end)
· CLAIMS BEFORE THE LAND CLAIMS COURT ARE 61 CASES
· CLAIMS PRIORITISED FOR SETTLEMENT ARE 138
· CLAIMS TO BE SETTLED ADMINISTRATIVELY ARE 130
· ELEMENTS OF A NATIONAL PLAN OF ACTION
· THE PROCESS IS GOING TO MAKE A MAJOR SHIFT FROM A COURT DRIVEN PROCESS TO AN ADMINISTRATIVE PROCESS , WITH COMMISSIONERS HAVING POWERS DELEGATED TO THEM TO FINALISE CLAIMS.
· COURT HAVING A MORE DEFINED AND FOCUSSED ROLE IN:
· DISPUTED CASES
· CASES WITH COMPLEX POINTS OF LAW
· DIRECT ACCESS CASES
· REVIEW CASES AND;
· APPEAL CASES
· STREAMINGI BATCHING OF CLAIMS
· FOCUS ON URBAN INDIVIDUAL AND COMMUNITY CLAIMS WHERE CLAIMANTS PREFER FINANCIAL COMPENSATION
· RESTORATION CASES
· ALTERNATIVE LAND CASES
· ENGAGING EXISTING DLA PERSONNEL IN NATIONAL AND PROVINCIAL OFFICES
· USING ALTERNATIVE DISPUTE RESOLUTION METHODS VIA THE NATIONAL LAND REFORM MEDIATION AND ARBITRATION PANEL
· STRENGTHENING THE RESEARCH CAPACITY, FROM THE DEED SEARCHES, IN ORDER TO SPEED UP THE RATE OF DELIVERY
· DOING VALUATIONS ON A GEOGRAPHIC BASIS COVERING A LARGE NUMBER OF CLAIMS, IN PREPARATION FOR EFFECTIVE NEGOTIATIONS.
· ENSURING THAT EACH OF THE STREAMS FOR FINANCIAL COMPENSATION, RESTORATON OF THE LAND LOST AND ALTERNATIVE LAND ALLOCATION ARE HEADED BY A STRONG NEGOTIATOR FORMING PART OF THE NEGOTIATION AND SETTLEMENT UNIT WITHIN THE COMMISSION, NOW AN INTEGRAL PART OF THE DEPARTMENT OF LAND AFFAIRS.
· THE REMARKS OF THE FINANCE MINISTER, TREVOR MANUEL, IN HIS
BUDGET SPEECH , UNDER THE SUB HEADING PROVIDING ACCESS TO LAND,
ARE APT, WHEN HE SAID "LAND REFORM IS GAINING MOMENTUM"
LAND RESTITUTION IN PARTICULAR WILL SEE THOUSANDS OF PEOPLE
GETTING BACK THEIR LAND, ALTERNATIVE OR FINANCIAL
COMPENSATION.


LAND REFORM IS HAPPENING LAND IS RETURNING, UMHLABA UYABUYA!

THERE IS A ROLLING ACTION OF DELIVERY, NOW AND INTO THE FUTURE!


By: Adv. W.A. Mgoqi
Acting Chief Land Claims Commissioner