Restitution of Land Rights Act Amendment Proposals: input by Land Claimants & Commission on Restitution on Land Rights

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Meeting report

AGRICULTURE AND LAND AFFAIRS PORTFOLIO COMMITTEE
29 MAY 2007
RESTITUTION OF LAND RIGHTS ACT AMENDMENT PROPOSALS: INPUT BY LAND CLAIMANTS & COMMISSION ON RESTITUTION ON LAND RIGHTS

Chairperson: Ms D Hlengethwa (ANC)

Documents handed out:
Restitution Amendment: Cut-off dates proposal by Commission on Restitution on Land Rights
Gauteng Land Restitution Claims Committee submission
Estate Januari Grootboom: Land Claim presentation
Statistics on Settled Restitution Claims
Restitution of Land Rights Act, No 22 of 1994
Committee Report on Department of Agriculture and Land Affairs Budget vote no. 29

SUMMARY
The Committee heard the case of the Januari Grootboom claim where one of the claimants noted areas of concern about the Restitution of Land Rights Act which he felt failed historically disadvantaged citizens.

The Gauteng Land Restitution Claims Committee submission urged the government to amend the cut-off dates contained in sub-section 2(1) e of the Restitution of Land Rights Act 22 of 1994 as amended. They requested government to listen to those in favour of re-opening the lodgment of claims.

The Commissioner of Land Affairs spoke about the many calls they had received from stakeholders for the re-opening of the cut-off dates of 31 December 1998 and 19 June 1913 as stipulated in the Restitution of Land Rights Act. They looked at the implications of re-opening the dates, suggested remedies and drew some conclusions.

MINUTES
Estate Januari Grootboom Land Claim submission
Mr Arthur Grootboom (Researcher: Grootboom Land Claim) pointed out areas of concern relating to both the Estate Januari Grootboom and other land claims. He noted that the land claims legislation should "Redress, Restore and Restitute". He said that the Acts fails historically disadvantaged citizens in four broad categories: excluding landowners prior to 1652, disallowing claimants prior to 20 June 1913, disregarding the consequences of certain Acts, "condoning" expropriation during Apartheid. He spoke about the claim form being totally inadequate. 

He emphasised that certain procedural prohibitions debarred illiterate people from engaging in registration of land. Many had been cheated out of land in the past. His impression was that the Act had perhaps been rushed through Parliament without taking into account a broader perspective.

Commission on Restitution of Land Rights presentation
Mr Tozi Gwanya (National Land Claims Commissioner) spoke to the numerous requests to extend the cut-off dates in the land restitution process. His presentation looked at the cut-off dates of 19 June 1913 and December 1998, the Commission's awareness campaign, Claims Lodged, Claims Settled, Request for Late Lodgement, Implications of Reopening of 13 June 1913 and December 1998 and Remedies.

He concluded by emphasising his confidence in the process the Committee’s follows for all land claims. He concluded by exclaiming the extend to which the Commission goes to validate and processes claims but added by stating his understanding the sensitiveness of the land claims Issue.

Gauteng Land Restitution Claims Committee submission
Mr H Mohokare (Chairperson: GLRCC) urged government to address certain very important issues regarding sub-section 2(1) e of the Restitution of Land Rights Act 22 of 1994 as amended. He requested government to listen to those in favor of re-opening the lodgment of claims.

Discussion
Mr D.Dlali (ANC) wanted Mr Grootboom to clarify what the Januari Grootboom group was asking of the Committee so as to ensure the Committee took the right direction in the matter.

Mr Grootboom emphasised that his group believes that the Act should be reviewed. They have knocked on various doors to try to ensure economic restitution for those with land claims. The process of the submission of land claims was not done according to law seeing that the Commission made no effort to assist in the lodgement of the Grootboom claim. The Commission could not have done so because proper research had not been done. The Restitution of Land Rights Act failed to deliver economic restitution not only to their particular claim but also to all other land claimants.

Adv S.Holomisa (ANC) wanted to know what the 'assistance' was that Mr Grootboom referred to, that he said the Commission failed to give.

Mr Grootboom responded that those that submitted the Grootboom claim did not have the information that was now uncovered by research. The form used for submitting the claim did not capture the extent and history of the claim.

Ms B.Ntuli (ANC) tryied to clarify what Mr Grootboom was saying by explaining that not all the land had been given back in the settlement of the claim.

Mr Dlali asked if such a lodged claim would be extended in a case where the original claim had excluded, for whatever reason, a portion of land. He asked if the Grootboom group was able to convince the Commission that the excluded portion was in fact a part excluded from the original claim. He pointed out to Mr Grootboom that the Water Act has been amended so that government now owned all natural water resources.

Adv Holomisa suggested that it would be a very good course-of-action if the Commissioner participated in the discussion.

Mr Grootboom replied that, despite history clearly proving that certain portions had been excluded from the original claim, the claim form prevented the full extent of the claimed to be lodged. There was clear and documented proof that the land was obtained in a covert way and these factors should be taken into account when the Commission determined the value of land that was lost. He said that the loss of the water rights of the Grootboom claim should also have been taking into account when the group was compensated. He was in possession of a report that clearly indicated that the Water Act as amended was not currently being applied in practice.

Mr Gwanya stated that some claims were not articulate in terms of mapping the extent of the land. To determine the actual extent of land lost by a community or group, the Commission engaged in the mapping of land. This was also the procedure followed in the Grootboom claim. If water rights were part of the original land, claimants would be compensated for that loss. However claimants would not be compensated for the hope that their land could have been developed. The Commission compensated as to what it saw as just and equitable. He also highlighted the fact that South Africa was superior in the expropriation and compensation of claims when compared to countries such as New Zealand. The issue of water rights remained a great challenge for the Commission as the rights are, in some instances, not held by the current owner of the land but by other owners. The Commission tried to restore the rights as they were at the time.

Dr van Niekerk (DA) asked if the Gauteng Land Restitution Claims Committee had considered taking their matter to the Constitutional Court.

Mr Dlali commented that the issue of forced removals was indeed a very emotional matter. He asked why, despite the awareness campaign by the Commission, it had taken so long for people and groups to lodge their cases. He also asked if the Gauteng Land Restitution Claims Committee suggested that the issue of land claims had to be an open-ended matter. He asked if redistribution fitted in with point 2.18 of their submission:
Our other observation is that the two sub-clauses still appear in the Constitution under the Bill of Rights long after the closing date for submission of claims.

Dr Mattera (GLRCC) responded that in contrast with for instance the Jews, who had been allowed for an unrestricted period to have their justice, the struggle for justice in South Africa had been given a time frame. This was not fair to the people who had suffered greatly because of forced removals. In his view the human element was missing from Parliament. They had considered taking the matter to the Constitutional Court but in the spirit of the liberation, had decided first to approach the Committee.

Mr H Mohokare (GLRCC) added that taking the matter to the Constitutional Court and given the outcome of the meeting with the Portfolio Committee, this option might still be exercised. Given the high illiteracy rates among many of the older generation, it was perfectly understandable that many people do not know that the Land Restitution Act even exists. The Commission had only started with their campaign six months prior to the cut-off date and this was very unfair indeed. He pleaded with government to re-look at subsection 2(1)e

Ms M Nkompe-Ngewnya (ANC) highlighted the historic nature of the meeting and felt it was important that the whole matter of land redistribution and land claims be reviewed.

Mr E Hengu (GLRCC) commented that land, in his view, was an African heritage. He pleaded with the Commission not to pressurise them into losing this heritage. Government should extend this even if it was for a period of 30 or 40 years.

Mr S Noge (GLRCC) said that the problem was not with the claimants but was the result of failure on the side of the Commission itself. The Commission should have gone to the people on the ground.

Ms Ntuli commented that forced removals was still a painful subject. She commended the GLRCC for first approaching the Committee instead of going directly to the Constitutional Court.

The Chairperson agreed with the view that land was indeed a matter of heritage. She asked the GLRCC if in in cases where a claimant opts for money as compensation, whether this would not be effectively destroying their heritage. Her concern was that in cases where people are compensated with money, that the money might cause discord and fighting.

Mr C Khanyile (GLRCC) responded that the issue of land claims in the Gauteng area was unique because of the fact that many areas now had shopping malls and residential areas on that specific land. Everyone affected should benefit from land redistribution but he highlighted the fact that, in reality, only 16% of the people affected were currently benefiting from the Act. He asserted that what those compensated claimants chose to do with their money did not concern the Commission or government. It was the right of those compensated to spend the money as they wished.

Mr Mohokare added that it would be the right thing to do to extend the cut-off date but added that they would be satisfied only if the Constitution were amended.

Mr Dlali asked if it was the GLRCC's opinion that if the dates for lodging claims was extended, that the Constitution must also be amended. If this were to be done, how would that help those that had not known about the claims process?

Mr Mohokare replied that land restitution was a constitutional right but the Constitution was currently silent on the issue of time.

Ms Nkompe-Ngwenya was of the view that the Constitution should be re-looked at. She disagreed with the comment that those who opt to receive compensation, did not affect government. She pointed out that these individuals often end up in the courts or even in jail.

Adv Holomisa asked the Commission how many people had lodged claims since the cut-off date.

Mr Dlali asked how much research was done into a claim before validating it in terms of mapping. He commented that due to the high illiteracy rate in rural areas, it was understandable that lodgement of claims might take longer. He asked what the Commission was doing to ensure that compensation was awarded fairly.

Mr Gwanya responded that no database exists of people that have lodged claims after the cut-off date. The only database that the Commission has is of those who actually lodged claims. He commented that in the Grootboom case, acceptable research had been done. The Commission used a checklist in approving any claim and had applied the checklist to the Grootboom’s claim. In cases where claimants were not familiar with the dimensions of the land, a mapping-exercise was used to determine the actual dimensions of the land. After a claim had been validated, an optional assessment was done in which claimants were asked how they would utilise and/or develop the land.

Mr Grootboom emphasised that that they had come to the Committee in the hopes that the contents of their research would be taken into account but they would leave disillusioned and none the wiser.

The meeting was adjourned.


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