ATC091104: Report 2008/09 Annual Report of the Commission on Restitution of Land Rights

Rural Development and Land Reform

Report of the Portfolio Committee on Rural Development and Land Reform on the 2008/09 Annual Report of the Commission on Restitution of Land Rights, dated 4 November 2009

 

The Portfolio Committee on Rural Development and Land Reform, having considered the 2008/09 Annual Report of the Commission on Restitution of Land Rights, reports as follows:

 

1.              Introduction

 

The briefing on the 2008/09 annual report of the Commission on Restitution of Land Rights (CRLR) took place on 28 October 2009.

 

The following people appeared before the committee for the briefing on the annual report:  The Chief Land Claims Commissioner (CLCC), Mr. Andrew Mphela and Deputy Director General – Land Tenure Reform, Mr. Mdu Shabane. They were accompanied by the following Regional Land Claims Commissioners (RLCCs): Ms. Beverly Jansen (Western Cape), Mr. Sidney Hlongwane (Free State and Northern Cape), Ms. Tumi Seboka (Gauteng and North-West; also acting for Mpumalanga); Ms Linda Faleni (Eastern Cape) and Mr. Tete Maphoto (Limpopo). At the time of the briefing, Commissioner Mr. Mphela was also an acting RLCC for Kwazulu-Natal.

 

The CRLR is established in terms of the Restitution of Land Rights Act, No. 22 of 1994 with powers to provide restoration of land rights and equitable redress in line with provisions of section 25 (7) of the Constitution,1996 (Act 108 of 1996). The aim of the CRLR is to be “leaders in the restitution of land rights to victims of racial land dispossession in a manner that ensures sustainable socio-economic development”. Its mission is “to promote reconciliation by ensuring equity for victims of land dispossession by the state, through sustainable development initiatives and equitable redistribution of land’.

 

This report is presented against the background of the following strategic objectives that the CRLR set for itself:

           To provide equitable redress to victims of racial land dispossession in terms of the Restitution of Land Rights Act, 1994 (No.22 of 1994);

           To provide access to rights in land, including land ownership and sustainable development;

           To foster national reconciliation and stability; and

           To improve household welfare, underpinning economic growth, contributing to poverty alleviation.

 

Various targets for settlement of all land restitution claims were set since 2005. The CRLR currently intends to finalize the land restitution process by the year 2014. Over the years public expectation for the resolution of the question of land restitution was high. This report, therefore, should also be understood in the context of a program of land restitution that began 15 years ago and is still struggling to finalize claims irrespective of the various readjustments of targets and increase in budget allocation over the years until a drop in allocation in the financial year 2008/09.

 

The Committee’s main concern is with regards to the performance of the CRLR in relation to redressing the land dispossession injustices by restoring original land or a just and equitable compensation in the form of alternative land, monetary compensation or development package. The committee notes that the escalating land prices are a hindrance to the speedy resolution of land claims. The CRLR has maintained its track record of spending almost 100% of their budget allocation but without making significant progress in meeting the targets set. The committee is further concerned about the number of failed land restitution projects.

 

This report shall first provide a summary of the presentation by the CLCC, Mr. Andrew Mphela, then offer the committee’s findings with regards to the 2008/09 annual report of the CRLR and conclude by presenting the Portfolio Committee’s recommendations regarding the land restitution process, the role of the CRLR and the Department of Rural Development and Land Reform.

 

2.              Presentation of the Annual Report of the CRLR by Mr. Andrew Mphela, the CLCC

 

2.1.        Overview of the performance of the CRLR

 

Restitution of land rights involves a process of redressing the racially based land dispossession of the past, and further building the nation guided by the principles of the Constitution. The Bill of Rights provides for right to gain access to land. It specifically also puts the state under obligation to ensure that a person or community disposed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled to either restitution of that property or to equitable redress.

 

Access to land, particularly by the rural poor, has a potential to impact positively on their food security needs and their basic means of livelihoods. A successful land restitution process therefore, is a significant and crucial factor in rural development especially with the current trends around escalation of food prices and global economic meltdown. Achieving a successful land restitution process that empowers beneficiaries and help fight against hunger and poverty is dependant upon effective post settlement support within the context of rural development. It further requires sufficient resources, capacity building programmes and cooperative governance.

 

The CRLR’s endeavours to fast track the settlement of land claims have been affected by a variety of factors, namely;

           Complexity of rural claims affects the pace at which the CRLR can settle land claims. Rural claims are characterised by large numbers of beneficiary households and large number of hectares of land, overlapping of rights by claimant communities often leading to community disputes based on boundaries and who the rightful claimant is, and the kind of production and enterprises poses challenges to post settlement arrangements.

           Land claims on forestry and mining land also present a greater challenge to the CRLR and even more risk because of the nature of business operations. The CRLR has had to find innovative ways to ensure that the successful restoration of forestry and mining land.

           The cost of land is a critical matter that affects the CRLR’s efforts to fast track the restitution process. With the limits in terms of budget allocation, the CRLR can only restore a certain number of hectares. During the year under review the CRLR estimated the average cost of land at R12 949.00 per hectare and has found that they spent more money to buy less hectares of land.

 

During the 2008/09 financial year, the CRLR had planned to settle 2585 land claims, revised to 389 in line with the CRLR’s extended tenure. By the end of the financial year 2008/09, the CRLR managed to settle a total of 653 land claims (545 settled and 108 dismissed), involving about 30 112 households comprising approximately 136 000 individuals.  Since 1995, the CRLR has cumulatively settled a total of 75 400 claims benefiting total number of 315 433 households. The total claims settled represent 95.5% of claims lodged by the cut off date of 31 December 1998. By the 31st March 2009, the CRLR was yet to settle 4296 claims detailed as follows:  Eastern Cape (552), Free State (28), Northern Cape (189), Gauteng (3), North West (195), Kwazulu-Natal (1652), Limpopo (422), Mpumalanga (712), and Western Cape (573). 

 

Cumulative statistics on settled land claims (1995 – 31 March 2009)

	Restoration	Financial compensation	Alternative Remedy
Urban claims	15439	47726	2477
Rural claims	4652	4562	436
Total	20091	52288	2913

 

2.2.       Performance Perspectives of the CRLR

 

The CLCC presented the following perspectives in relation to the performance of the CRLR: finances, business process and the finalization of the outstanding land claims.

 

           Financial matters   

 

The CLCC provided an overview of financial matters of the CRLR’s with specific reference to 2008/09 budget allocation and its spending. The Commission spent almost 100% of their total budget allocation of R3.1 billion. A total amount of R2, 8 billion was spent on land purchase and financial compensation to land claimants, whereas approximately R338 million was spent on recurrent costs including salaries and service providers. A total of R803 million was committed as development grants to assist beneficiaries with the development of their newly acquired land. 

 

           Business Process Perspective

 

The CRLR set 2005 as a deadline to complete all land restitution claims lodged by the 31st December 1998. Subsequently, the end of 2008/09 was also set as a deadline after a realization that it was impossible meet the deadline for restitution. During the reporting year, the CRLR further readjusted targets to completing the restitution process by the end of the year 2013/2014 subject to availability of sufficient budget allocation. The extension was motivated for on the basis that the majority of outstanding claims are rural and complex in nature. The completion of such claims would require sufficient resources for land acquisition and provision of development support to beneficiaries.

 

The CRLR also experienced challenges with regards to some of the strategic partnership arrangements entered into between government, beneficiaries and private sector agricultural companies. These joint ventures are commonly referred to strategic partnerships. One of the large strategic partners called the South African Farm Management (SAFM) collapsed and faced liquidation together with some of its subsidiary companies. The collapse of SAFM affected certain projects in Limpopo (Levubu, Mamahlola, and Zebediela) and Mpumalanga (Giba). The CLCC also pointed out that not all such relationships did result in desired skills transfer and economic beneficiation of beneficiaries. The CRLR has started with the review of all partnerships in order to ensure that the state as well as beneficiaries obtains value for money for the financial investment that goes into such partnerships. 

 

The provision of strategic support for restitution beneficiaries has been identified as a critical and priority issue by the CRLR. The CRLR, therefore, concluded agreements with the First National Bank (FNB), Development Bank of South Africa (DBSA), Amahlathi Forestry Group and Anglo regarding provision of such support.  Additional agreement was entered into with AgriSETA for the provision of critical skills training for the new land owners.

 

Following a review of land restitution projects, the CRLR identified some 200 struggling projects which they intend to recapitalize with the support from the Department of Agriculture as part of the Land and Agrarian Reform Project (LARP).

 

           Strategic Plan for finalization of outstanding claims

 

By the 31st March 2009 the CRLR was yet to settle 4296 land claims across all Regional Land Claims Commissioner’s (RLCC) offices. The CLCC further pointed out that four RLCC offices are preparing to finalize all land claims at the end of 2009/10 financial year; namely Gauteng (3), Free State (28), Northern Cape (189) and Western Cape (573) depending on availability of resources. The remaining offices would complete their claims over the next four years, i.e. Mpumalanga (2012), Limpopo (2013), and Kwazulu-Natal (2014).  The CRLR would further require a total amount of R65, 3 billion to settle all outstanding claims by the 2014.

 

Total projected cost for restitution

	Cost (billion)
MTEF requirement	R10,4
Committed projects	R21,5
Betterment claims	R10,0
Kruger National Park	R20,0
2009/10 Budget	R3,4
Total	R65,3

 

2.3.       Corporate Services

 

The unit is located under the Chief Directorate Restitution and Management Support and assists the CLCC and RLCC offices in developing internal policies that are consistent with the Restitution of Land Rights Act and the Public Funds Management Act (PFMA). It also deals with compilation and monitoring of policy, post settlement support, quality assurance to set standards, risk management , legal services, communication and human resources management and administration and information management services. The annual report highlights the following achievements under this unit:

 

           During the year 2008/09, vacancy rate of the CRLR decreased from 30% to 20%. The CRLR experiences high rate of staff turnover due to the high pressure and workload for project officers. It is also difficult to fill vacancies because in the market there are fewer people who have an understanding of Restitution process.

           The unit is implementing a training program to ensure that project officers involved in negotiation of sales do understand the field of property valuation. This program intends to curb the challenge of paying for unnecessary high land prices.

           The unit has also developed settlement models that will ensure sustainability.

           By the end of the financial year 2008/09, there were 174 matters in the Land Claims Court. The Commission also took two matters for expropriation, i.e. Sandford community in Mpumalanga and Moeketsi Ga ChathlekaCommunity in Limpopo.

 

 

3.              The Portfolio Committee’s findings on the 2008/09 Annual Report of the Commission on Restitution of Land Rights 

 

The Committee commended the CRLR for the report presented and the commitment to land restitution. However, the Committee is concerned about failure to meet the targets, the cost of land restitution, impact of land restitution, and lack of detail in the published report.

 

The following are specific findings with regards to the land restitution and the performance of the CRLR:

 

§         Failure by the CRLR to fill in strategic vacancies and the vacancy rate of 20% is among the factors that lead to failure to achieve targets and to poor and unsustainable projects. Strategic positions include those ones for people with understanding of the property market to assist in negotiating good purchase prices, those responsible for quality assurance and risk management. 

 

§         There is a high number of dysfunctional Communal Property Associations (CPAs) owning land restored in terms of the Restitution of Land Rights Act, 1994. The committee could not establish if there were systems in place to support these Communal Property Institutes (CPIs). Majority of the CPAs do not report to the Director-General as per provisions of the Communal Property Associations Act, 1996 (Act 28 of 1996).   Many CPAs are crippled by infighting, conflicts between the traditional councils and the elected CPA committee members. Such often hampers development and are a threat to sustainable development on restored land.

 

§         It takes a long time between the publication of a gazette notice about a claim on a piece of land and the actual transfer of land. It is in this interim period that many farms get run down due to lack of investment on production or the property itself which in most cases can be linked to the feeling of uncertainty by the land owners. The committee has also received many concerns from both the property owners and their organizations and well as the land claimants on questions related to lack of information from the CRLR on status of specific claims and farms associated with those claims.

 

§         The committee noted that the annual report lacked detail on the outstanding claims. Whilst the report mentions the numbers of outstanding claims, it does not say what hectares are to be restored per province; it also does not provide status of projects in order to determine an estimate of the amount required for settlement of such claims and target dates for settlement. The committee acknowledged the specific dates targeted for various RLCCs and the projection of costs. However, based on the detail provided it is not possible to ascertain if the projections and targets are realistic or not.

 

§         Weaker institutional arrangements within beneficiary communities are some of the reasons for the failure of projects and a threat to the realization of the livelihoods benefits of land restitution. The Committee is again concerned about absence of support the CPAs and Trusts.

 

§         The committee found that an existing decision taken by the previous cabinet on how the CRLR should deal with land claims in the Kruger National Park (KNP) and other national strategic assets is the main reason why claims on the KNP land have not been finalized yet. The decision is that the CRLR should not restore original land to the land claimants as part of the settlement agreement. However, the CRLR must seek alternatives such as alternative land, development package or financial compensation.

 

§         A number of specific restitution projects were referred to during the discussion to highlighting challenges and frustrations of the beneficiaries. Those include the Babanango claim in the Kwazulu Natal, Koega in the Northern Cape, Ten bush  and Inala projects in Mpumalanga, Levubu communities, Makgoba and Seshego in Limpopo, and Duiseldorp in the Western Cape. These examples reflected on the challenge of post settlement, community disputes, the challenge of strategic partnership, failure by the CRLR to pay amounts due because they have exhausted their budget allocation.

 

§         There are commitments made by the CRLR in respect of the payments of development grants to communities but because of exhaustion of budget allocation, the CRLR has not been able to honour some of those agreements. This raises concern whether the CRLC will be able to meet its targets in the following financial year as it has to pay commitments for the previous financial year.

 

§         The committee found it regrettable that the Department sometimes pays the landowners three times higher than the market value of the property and therefore the review of mechanisms for land acquisition is long overdue. The practice confirms the call for a review of the willing buyer willing seller approach to land redistribution in South Africa.

 

 

4.         Recommendations

 

Having received a briefing from the Chief Land Claims Commissioner, further having engaged with the CRLR on its 2008/09 Annual Report,  the Portfolio Committee on Rural Development and Land Reform makes the following recommendations:

 

(i)                   The CRLR to identify and fill key strategic positions to assist the CRLR to perform on its mandate expeditiously and achieve its targets. The CRLR should also report to Parliament by the end of November 2009 on its time framed plans to reducing the 20% vacancy rate.

 

(ii)                 The CRLR to submit a report to parliament about details of all outstanding claims according to provinces by the end of November 2009. The report should detail the number of claims per province, how many beneficiaries are involved, the type, extent and estimated costs of the land under claim. It should finally state what settlement option has been agreed upon and what the target date for settlement of each claim is.

 

(iii)                The CRLR and the Department of Rural Development and Land Reform to review all the Communal Property Associations and identify possible measures to ensure that the CPAs and Trusts (Common Property Institutions) function properly. They should further report to Parliament on the findings of the review and what they are doing to support the dysfunctional CPAs.

 

(iv)                That provision of post settlement support should support the different targets of land reform beneficiaries as set out in the 2009-2011 strategic plan of the Department of Rural Development and Land Reform. In the context of the comprehensive rural development program, targeted attention should be placed on the needs of the landless poor people whose access to productive land will assist them to meet their daily household food needs.

 

(v)                  The CRLR to submit a report to Parliament about the review of all land restitution projects in South Africa, and strategies for dealing with 200 struggling projects by the end of the second week of November 2009.

 

(vi)        The Department puts in place mechanisms that would ensure that different state departments dispose state land for restitution purposes.

 

(vii)       There should be a review of the cabinet decision not to restore land claims on the Kruger National Park and other national strategic assets, ensuring public dialogue involving the land claimants and interested parties.

 

(viii)       There should be an increase in baseline budget allocation for Restitution in order to enable the CRLR to finalize all land claims.

 

Report considered.