ATC110525: Report Petition lodged with the Speaker of the National Assembly by the Western Cape Land Restitution Claimants on 03 June 2010

Rural Development and Land Reform

Report of the Portfolio Committee on Rural Development and Land Reform on the Petition lodged with the Speaker of the National Assembly by the Western Cape Land Restitution Claimants on 03 June 2010, dated 25 May 2011.


The Portfolio Committee on Rural Development and Land Reform, having considered the petition lodged by the Western Cape Land Restitution Claimants, reports as follows:


1.         Introduction


The Western Cape Province Land Restitution Claimants lodged the petition dated 28 May 2010 with the Speaker of the National Assembly on 03 June 2010 through a member of the Portfolio Committee on Rural Development and Land Reform (the Committee), Ms A Steyn, MP. The following organizations represented the claimants: the Institution for the Restoration of the Aborigines of South Africa (IRASA), the Congress for the Aboriginal Leaders of South Africa (CONFLASA), the District Six Advocacy Committee (DSAC) and the following land claimant groups: Raapkraal, Constantia, Kirstenbosch, Claremont/Newlands, Klawer, Goodwood, Windermere/Kesington, and Hout Bay.


The petition sought the intervention of Parliament in resolving what the petitioners regarded as the failure of the Regional Land Claims Commissioner’s office of the Western Cape (RLCC) to promptly process land claims lodged with the Commission on Restitution of Land Rights (the Commission). Petitioners appealed for the application of the administrative responsibility of Parliament to intervene in the alleged failures of the RLCC. The petition, being of a general nature, was referred to the Portfolio Committee on Rural Development and Land Reform on 06 July 2010 for consideration and report in terms of Rule 315 (b) of the Rules of the National Assembly.


This report, therefore, describes processes followed by the Committee to examine the petition, highlights key aspects of the grievances, and provides an overview of the responses from the Commission and the DRDLR. It concludes with the Committee’s observation and recommendations to the National Assembly, the Department of Rural Development and Land Reform (DRDLR) and the Commission.


2.         The scope and methodology for examining the petition in question


The Committee, having the petition tabled before it for consideration and report, sought to understand the nature of grievances highlighted through the petition, identify challenges confronting land restitution in general and to a particular point address specific questions related to land claims cited in the petition. It further sought to identify ways in which processing of land claims in the Western Cape in particular can be improved.


Examination of the petition entailed analysis of the petition and responses provided by the Commission. Analysis was located within a broader framework expounded by provisions of Section 25 of the Constitution of the Republic ofSouth Africa, Act 108 of 1996 and the Restitution of Land Rights Act, No 22 of 1994 as amended. The Committee further invited petitioners as witnesses at the Committee meeting for discussion on the subject of the petition. A detailed process that the Committee followed is provided in Table 1 below and illustrates a lengthy process undertaken between 4 August 2010 and 9 March 2011. This process was prolonged due to failure of the RLCC and the Commission to provide comprehensible responses on questions from the Committee.


Table 1: Details of events during consideration of the petition 




·         The Speaker of the National Assembly referred the petition to the Committee


·         Consideration of witness evidence on contents of the petition

·         Consideration responses from the Commission and DRDLR


·         Consideration of additional responses as requested by the committee. However, the response of the Commission failed to specifically address the 10 grievances of the petitioners.


·         Consideration of the Report from the CRLR. The report did not provide details about developments on land under claim and a strategy to fast track settlement of particular land claims in the petition


·         Consideration of the Turn-Around Strategy of the Commission.


·         Consideration of written responses from the Commission; the Committee could not finalise the petition due to failure of the RLCC to appear and provide responses to specific queries that arose from a letter submitted.


·         Deliberations on the findings of the committee with regard to the petition


·         Final deliberations and adoption of the committee report on the petition


3.         Overview of the petition


The petition, read with oral presentations by petitioners, highlighted three broad areas of concern with regard to processing of land claims in the Western Cape; namely, limitations of the legislative framework for restitution; grievances of process of restitution and conduct of officials implementing restitution; and settlement of specific land claims.


3.1        Weaknesses in the legislative framework for restitution: The petitioners pointed out that Section 25(7) of the Constitution does not provide for an opportunity for the Khoisan people to lodge claims in terms of the Restitution of Land Rights Act of 1994 (the Act). Both the Constitution and the Act prescribes that a person or community is entitled to restitution if he/she or a direct descendant lost land rights after 19 June 1913.  Petitioners argued that the 1913 date left out some racially-based land dispossessions that occurred prior the 1913 and the most affected are the Khoisan people whose land rights were lost as early as 1652.

3.2        Grievances on processes for restitution and conduct of officials implementing restitution: The petitioners recorded 13 ‘challenges’ with regards to restitution processes. Noting the similarities and overlap of ‘challenges’, the committee grouped grievances as follows:

Ÿ         Numerous unresolved land claims, many claimants have since perished while waiting to be restored to their land, and the RLCC deliberately delayed settlement of land claims and implementation of agreements;

Ÿ         Misplaced/ lost land claim forms submitted prior to the 31st December 1998.

Ÿ         Developments on land under restitution claims;

Ÿ         The RLCC deliberately lied to, misinformed, and threatened land claimants in order to confuse and frustrate them. In addition, petitioners complained about ineffective and irresponsible approaches of the RLCC towards land claimants;

Ÿ         Acts of corruption between officials of the RLCC and the developers;

Ÿ         Selective and subjective administrative application of policies; and

Ÿ         Numerous claimants have exhausted the overbearing bureaucratic processes and were left without other options but to utilize legal representation. In so doing they exhausted their financial resources.

3.3        Settlement of specific land claims: Petitioners submitted specific land claims that illustrated the failure of the RLCC to facilitate speedy resolution of the land claims and lengthy bureaucratic processes.  Table 2 below outlines those land claims and summarises challenges of those claims.


Table 2: Particular land claims submitted through the petition

Land Claim



·         Delayed settlement of land claims.


·         Lack of communication with regard to settlement of the claim.

Claremont/ Newlands

·         Delays in settlement of land claim.

Houtbay Phase 2

·         Delays in settlement of land claim, and sale of land to foreign nationals.

Kirstenbosch/ Protea Village

·         Delays in settlement of land claim.

Raapkraal (8 claimants)

·         Land claim forms and supporting documents were missing; the RLCC could not account for the loss of documents. Claimants were being coerced into accepting cash compensation than the restoration of land.

Goodwood, Windermere, Kensington

·         Delays in settlement of land claims.


·         Claimants were informed by the RLCC that there were no funds to purchase land for restoration of their lost land rights.

District Six Advocacy Committee

·         The RLCC was not impartial when dealing with the District Six matters, hence failure to resolve existing disputes. The land awarded to claimants was being sold and transferred without consent of the plot owners.

Nigel Daniels

·         Part of the claim was rejected for non-compliance. In addition, documents for Bredasdorp land claim were lost. Delayed settlement of the Klein Pieters Vallei land claim.


4.                   Responses of the Commission on Restitution of Land Rights


4.1               Land dispossessions that occurred prior to 19 June 1913


The Commission operates within the ambit of the Constitution and the Restitution of Land Rights Act, No 22 of 1994 (the Act). Provisions of Section 25 (7) of the Constitution and Section 2 of the Act prescribe that persons or communities dispossessed of a right in land after 19 June 1913 as a result of past racially discriminative laws or practices are entitled to restitution of right in land and in terms of the Act, such persons must have lodged the claim for restitution on a prescribed form by no later than the 31st of December 1998.  Neither the Commission nor the DRDLR could condone claims for land rights lost prior to June 1913. Therefore, all land claims that did not meet the criteria of 19 June 1913, 31st December 1998, and had no evidence for land dispossession would be considered as non-compliant. However, in the event that the Commission finds that a claimant did not qualify for restitution in terms of the Act but have expressed a need for land, the Commission could refer those groups or individuals to the DRDLR for assistance in terms of land redistribution or tenure reform programmes.


4.2               Grievances on processes for restitution and conduct of officials implementing restitution


This section provides the responses of the Commission with regard to specific grievances and challenges outlined in the petition.


4.2.1          Numerous claimants have since perished in the hope of being restored to their land


The Commission acknowledged that the process of restitution was challenging and that there were delays with regard to settlement of land claims. The delays were attributed to the following factors: lack of supporting documents for land claims, community or family disputes with regard to who was entitled to restitution, unavailability of land for restoration, and challenges on validity of land claims by the land owners. In addition, the cost of land acquisition and the amount of funds made available for land acquisition also determined the pace at which land restitution could be implemented.


With regard to progress on settlement of land claims in the Western Cape, the Commission reported that by November 2010, only 919 land claims were outstanding. Of the outstanding land claims, the RLCC had planned to settle 342 claims during the 2010/11 financial year. The plan further outlined that the remaining 577 claims would be settled by the end of financial year 2012/13. The process of settlement of land claims would be assisted by the ‘turn-around strategy’ of the CRLR. The strategy states that “the Commission intends to address the issues of backlog vs. current claims by allocating 80% of the annual budget to the finalisation of the back log and 20% to settling of current claims”.


4.2.2          Misplacement and loss of land claim forms and supporting documents by the Commission


The Commission was aware of allegations that some land claim forms and supporting documents were lost. However, it requested that claimants whose documents could not be found should visit the RLCC: Western Cape with proof of lodgement of land claims so that files could be reopened and investigations on particular land claims could be finalised. The Commission was not in a position to reopen files without any proof of lodgement of claim prior to the cut-off date of 31 December 1998, as required by Section 2(1) of the Act.


4.2.3     Developments that occurred on land under restitution claim


Section 11.7(aA) of the Restitution of Land Rights Act of 1994 prohibits the disposal, lease, subdivision, rezoning or development of land under land reform. However, in an event where a landowner wished to develop a particular piece of land and provided that a land claim had been published in the government gazette, the act provides that approval should be sought from the land claims commissioner. According to the RLCC, Sadiem Claim – erf 2274 of Constantia was the only claim in the Western Cape where the existing land owner initiated developments on the claimed piece of land without the application of Section 11.7. (aA) of the Restitution of Land Rights Act of 1994. In response, the Commission applied for an interdict to stop proposed development. However, the existing owner is opposing the interdict. At the time of the committee deliberations on this report, the matter was still in court.


4.2.4          Claimants have been lied to, misinformed and threatened by officials’ abuse of administrative responsibility


This section addresses two complaints about misinformation of claimants, deliberate telling of lies and abuse of administrative responsibility. The Commission regarded the above complaint as an allegation until further details relating to the complaint were submitted so that investigations could be conducted; if any one was found guilty of lies and threatening claimants, corrective measures would be taken. The Commission could only act if information was brought forward on the allegations and the investigation would help the Commission and the DRDLR to deal with the matter appropriately.  It was also emphasised that the Commission and the DRDLR strive to ensure compliance with the Batho-Pele principles.


4.2.5          Corruption by some officials of the RLCC and the developers


The Commission informed the Committee that the DRDLR, including all its entities such as the Commission, has a zero tolerance for corruption. It further pleaded with the petitioners that if they were aware of an act of corruption within the Commission and the DRDLR, they should report it to the anti-corruption hotline (0800701701) or to the South African Police Services. Alternatively, information could be provided to the Department of Rural Development and Land Reform. The complaint about corruption was regarded as an allegation until further information and evidence were provided for the Commission to investigate it and take appropriate action.


4.2.6          Deliberate delay for settlement of land claims and implementation of settlement agreements


The Commission outlined a business process of facilitating settlement of land claims, from the lodgement phase to the final phase of implementation of the settlement agreement. However, the business processes of settlement of land claims were hampered by a number of challenges such as community/family disputes regarding who is entitled to restitution, unavailability of land for restitution, the cost of land acquisition, and difficulties with regard to release of land by government departments and municipalities. In the context of this petition, the City of Cape Town and the Department of Public Works were the two state organs that had difficulties in releasing the land for land reform purposes.


The Commission denied that it deliberately delayed settlement of land claims. It referred a particular case commonly known as the ‘Booth Matter’; where there were delays regarding implementation of the settlement agreement and it was the only case in the Western Cape with difficulties in implementation of the settlement agreement. Factual information about the Booth matter was that after the settlement agreement was concluded and the land was released, the Commission started preparing for the implementation of the settlement agreement. But the process was hampered by a court challenge for the settlement where neighbours opposed the settlement. The matter was still in court at the time of the committee’s deliberations on the petition.   


4.2.7          Selective and subjective administrative applications


The Commission required further information on the above complaint so that it could investigate and determine who was involved. It further reported that decisions or actions by functionaries of the Restitution Act constituted administrative action and, in terms of Section 36 of the Restitution Act and Promotion of Administrative Justice Act, could be reviewed by the Land Claims Court should any party be aggrieved by them.


4.2.8          Numerous claimants have exhausted overbearing bureaucratic processes and have been forced to utilise legal representation and in so doing exhaust their financial resources


Section 29 (4) of the Restitution of Land Rights Act of 1994 allows the Commission to pay for legal costs incurred by valid claimants. However, the claimants also had rights to seek legal advice from experts on their own account when the need arises. The Commission reported that it had never forced any claimant to seek legal experts or representation.

4.3        Responses to complaints about particular land claims


The Commission, having studied the petition, reported that CONFLASA and IRASA were non-claimants because the Commission did not receive claims under those names; and Raapkraal Land Claim was a non-compliant claim. With regard to the District Six Action Committee, the Commission reported that it did not represent any claimant because the RLCC formed part of a Task Team that was addressing issues of the District Six Land Claim and the District Six Action Committee was not part of that Task Team. The District Six Action Committee was requested to submit power of attorney to the RLCC for it to be included in the task team.


Table 3: Summary of responses on specific claims contained in the petition


Current status and Challenges



·         Negotiation of settlement of the land claim by the state, claimants and land owners.  When they secure an agreement, the land would be transferred to claimants. The challenge reported was that the negotiation process was taking too long.



·         The RLCC was negotiating with the Municipality for the release of land for restitution purposes on one hand while on the other negotiations related to financial compensation were going on. However, negotiations for the release of land have taken too long.



·         The RLCC was negotiating for the release of land by the City of Cape Town and Department of Public Works. With regard to financial compensation, the RLCC was still conducting further research on particular claims.

Houtbay Phase 2

·         Land claimants have selected an option to receive alternative land as an equitable redress. The RLCC was still negotiating the acquisition of land from the Municipality.

Houtbay Financial Claimants

·         According to the RLCC, the claim was settled through financial compensation and each claimant was awarded R17, 500.00. There were no challenges reported.

Kirstenbosch/ Protea Village

·         The RLCC negotiated a settlement through financial compensation but the former tenants opted for the standard settlement offer for tenancy rights. The neighbours objected to the settlement option. The matter has been referred to court.



·         4 claims were settled and 4 remain unsettled. Financial compensation of R88680.00 was paid. The challenge is with regards to the release of land by municipality.

Goodwood, Windermere, Kensington

·         The RLCC was still negotiating the settlement and waiting to obtain agreements for the release of land by the municipality.


5.         Observations of the Portfolio Committee on Rural Development and Land Reform


5.1.             The 1913 date, as a base line for lodgement of land claims, indeed excluded those people whose rights in land were unjustly taken away from them. However, the Constitution and the Restitution of land rights act, 1994 provided a framework for restitution which included determination of the period from which victims of land dispossessions could lodge a claim; that is 19 June 1913. The committee noted that there were still some sections of the society who were still aggrieved by the fact that the legal framework in place did not provide them with the opportunity to lodge land claims.


5.2.             In terms of the Restitution of Land Rights, Act No 22 of 1994, the Commission is mandated to process land claims and within reasonable times provide information and progress reports to land claimants. The extent to which the claimants ended submitting a petition to parliament is indicative of the lack of efficient communication between the Commission and the land claimants.


5.3.              The committee observed that the process of land restitution was indeed taking longer than initially anticipated. The committee was aware of the delays due to a range of reasons. One of the constraints related to the amount of resources available for the purchase of land at a market value as required by the Act. It acknowledged that there were problems with regard to ever increasing of land prices and in some cases land being bought at a price higher than the market value.


5.4.             The Committee noted with concern apparent lack of communication and co-operation among state organs to ensure that the process of land restitution is brought to finality through release of state land for restitution. The RLCC in the Western Cape can not resolve land claims because it is entangled in lengthy processes of negotiations which it was unclear as to whether there will be any resolution hence frustration by the claimants. An example was the City of Cape Town and the Department of Public Works. The Committee further noted an input by the opposition on its own investigation of lack of cooperation from the City of Cape Town and the Provincial Government of the Western Cape. The City of Cape Town denied that they were delaying the process and that they have no knowledge of such negotiations with the RLCC.


5.5.             The Committee welcomed the explanation by the Commission with regards to matters that were referred to Courts for adjudication. There was little or nothing that the Commission could do once matters were referred to Courts. Claimants would have to wait for the Courts to finalise their matters.


5.6.             South Africa is in its 17th year of implementation of land claims. Despite the Commission having settled almost 95% of land claims lodged, the majority of land claims remaining were the real claims involving land transfers. The outstanding claims, if resolved with restoration of land would contribute to the transformation of the land holding patterns of South Africa. The long period of waiting has frustrated many of the patient land claimants. The petition attests to the frustration. South Africa is confronted with a real question of making resources available for acquisition of land for restitution, and some of this land is prime agricultural land and strategic national assets.

5.7.             Discussions on release of land should also consider what happens once land has been restored to claimant household, group or community. Examples of the District Six claim show that due consideration of institutional arrangements, coupled with actual support and capacity buildings of land holding entities are critical issues for sustainable land restitution process. Capacity building should be relevant to specific groups, for example, the District Six Trust could be supported in real estate management because of its focus on land management and housing development.


5.8.             In addition, multiple allegations in the petitions require further investigation. Although few names of individuals were mentioned during the oral testimony by the petitioners, the majority of the people involved were not. It therefore makes it difficult for the Committee to ascertain if indeed there was corruption or nepotism in the RLCC.


5.9.             The Commission has a weak data-base of land claims in its office. Once a land claim form or documents are lost, it entirely relies on claimants to bring evidence of lodgement of land claims. Where claimants can not provide evidence, there is an apparent lack of plan to deal with the matter, suggesting that there was nothing that the Commission could do about it.


6.                   Recommendations


6.1               With regards to concerns related to the date of 19 June 1913 as a baseline for restitution, the Portfolio Committee recommends that the Department of Rural Development and Land Reform and the Commission on Restitution of Land Rights should consider the following:


6.1.1          Engaging in the process of consultations with IRASA, CONFLASA to ascertain whether the constituency represented by these groups have particular land needs as well as other concerns;

6.1.2          Where there are land needs, the Department of Rural Development and Land Reform should consider purchasing land for interested individuals and groups through its land redistribution programs;

6.1.3          To report to the National Assembly about the process of facilitation on the above issues and a programme of action to resolve the complaints within three months after the adoption of this report.




6.2               The Department of Rural Development and Land Reform together with the Commission should also:

6.2.1          Submit to the National Assembly a programme for providing progress report on all the land claims included in the petition by 30 July 2011. A report on the implementation of the programme should further be submitted to the National Assembly within three months after the adoption of this report.

6.2.2          Convene a collective meeting of the DRDLR and all land holding departments in the Western Cape to develop a strategy for speedy release of state land for land reform purposes and the DRDLR, as a convener, should report to the National Assembly about commitments and programme of action within three months after the adoption of this report.

6.2.3          Constantly update the ‘land base’ in order to ensure that when claimants lose information, database will serve as a back up. In addition, a complete database about land restored to communities should be updated on a regular basis.


6.3               To encourage petitioners to submit further details about allegations raised in the petition to the DRDLR, the South African Police Services, the Anti-corruption toll-free number or any other relevant avenues so that the alleged abuse of administrative responsibility and corruption could be rooted out. 


Report to be considered.


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