The Restitution Act was signed by President Mandela on 17 November 1994 and enacted on 2 December 1994, and the CRLR opened its doors in 1995. The Restitution Programme was further made a constitutional imperative through Section 25(7) of the Constitution. The Constitution states that “a person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws and practices is entitled…either to restitution of that property or to comparable redress”.The right to restitution rests on claimants being able to show that they were dispossessed by means of a racially motivated law or practice.
Types of Removals
It is not easy to come up with an all- encompassing framework that captures all the different types of removals. This is particularly the case within former reserves and homeland areas where removals and resettlement of one group of people impacted on the land rights of others creating conflicting and overlapping rights on the land. There were many different circumstances which led to forced removals, these include:
* Evictions and displacement from White-owned farms, including labour tenants, sharecroppers and surplus workers;
* Group areas removals, removal from mission lands and urban relocations;
* Homeland consolidation and “Black spot” removals; * Betterment within the reserves;
* Conservation, forestry and related removals;
* Removals from land which became South Africa Defense Force (SADF) military training areas; and,
* Internal removals in scheduled and released areas due to consolidation of homelands and construction of dams, irrigation schemes etc.
Restitution is framed by three dates:
19 June 1913, which marks the start of the period in which dispossession is legally recognised in the Constitution of the Republic of South Africa, 1996 (Act No 108 of 1996) (referred to as the Constitution);
2 December 1994, when the Restitution of Land Rights Act, 1994 (Act No 22 of 1994) (referred to as the Restitution Act) was implemented; and
31 December 1998, which marks the cut off for the lodgment of claims. Although under the existing programme claims are not entertained pre-1913, it is acknowledged in the supporting legislation that the major history of dispossession is located in the broader context of colonial conquest and land alienation that occurred throughout the 19th century. In part, the limitation of restitution to the date of the promulgation of the Natives Land Act, 1913 (Act No 27 of 1913) (referred to as the 1913 Land Act) was partly in recognition that the complexity that characterised the development of South Africa’s land dispensation in the 19th century would be extremely difficult to unravel.
The 1913 Act (Act No 27 of 1913) – referred to as the 1913 Act purported to set aside:
* 77% of land for private ownership by whites and white-owned companies;
* 8% solely for African occupation; and
* 13% was reserved as Crown Land for game reserves, forests and other uses. In reality these distinctions were hard to draw. While the 1913 Act set out to precisely demarcate land ownership it left out extensive areas of African freehold property and unsurveyed State land.
The 1936 Native Trust and Land Act, 1936 (Act No 18 of 1936), referred to as the 1936 Native Trust Act, provided the basis for formalising and extending the size of the African reserve areas (‘Reserves’) as recommended by the 1916 Beaumont Commission as it was recognised that the Reserves were overcrowded and resources stressed. The growing crisis in the Reserves was one of the factors driving the passing of the 1936 Native Trust Act, but more importantly, the Act was to provide the justification for subsequent evictions of black sharecroppers and cash tenants farming on white-owned land.
The 1936 Native Trust Act made provision for the purchase of 6.2 million hectares (ha) of so- called ‘released land’ from white farmers in areas adjacent to the scheduled areas. The Act established the South African Native Trust (SANT), which purchased all reserve land not yet owned by the State, and had responsibility for administering African reserve areas.
The SANT imposed systems of control over livestock, introduced the division of arable and grazing land, and enforced residential planning and villagisation (called ‘betterment’) as part of its vision to modernise African agricultural systems.
In addition to the Land Acts successive governments passed a suite of legislation which undermined land rights and facilitated removals. There were numerous laws passed which regulated property rights in urban and rural areas as listed below:
The Native (Black) Urban Areas Act, 1923 (Act No 21 of 1923) divided South Africa into 'prescribed' (urban) and 'non-prescribed' (rural) areas, and strictly controlled the movement of Black males between the two.
The Occupation of Land (Transvaal and Natal), 1941 Restrictions Act No 28 of 1941, better known as the Pegging Act required that all new land and property transactions between Indians and Whites required the approval of the government.
The Natives (Urban Areas) Consolidation Act, 1945 (Act No 25 of 1945) introduced influx control, applicable to Black males only3. People who were deemed to be leading idle or dissolute lives, or who had committed certain specified offences, could be removed from an urban area4.
The Asiatic Land Tenure and Indian Representation Act, 1946 (Act No 28 of 1946) restricted Indian land ownership and residence to specific areas in Natal
The Group Areas Act, 1950 (Act No 41 of 1950): This Act enforced racial segregation by creating different residential areas for different races.
Prevention of Illegal Squatting Act, 1951 (Act No 52 of 1951): From the 1970’s this was one of the common instruments used for forced removals. It afforded landowners, local authorities and government officials many ways of evicting people or demolishing their houses without a court order to get them off the land.
Black Resettlement Act, 1954 (Act No 19 of 1954): This Act granted powers to the government to remove Africans from any area within and next to the magisterial district of Johannesburg. This Act authorised the Sophiatown and other removals. The Trespass Act, 1959 (Act No 6 of 1959): The Act was used in both urban and rural contexts and was used to “… secure the removal of people from land where their presence, has for one reason or another, become inconvenient to the owner of lawful occupier of the land or to the state”. Black (Native) Administration Act, 1927 (Act No 38 of 1927): Section 5(1)(b) provided that “… whenever he deemed it expedient in the public interest, the minister might, without prior
The Trespass Act, 1959 (Act No 6 of 1959): The Act was used in both urban and rural contexts and was used to “… secure the removal of people from land where their presence, has for one reason or another, become inconvenient to the owner of lawful occupier of the land or to the state”.
Black (Native) Administration Act, 1927 (Act No 38 of 1927): Section 5(1)(b) provided that “… whenever he deemed it expedient in the public interest, the minister might, without prior notice to any persons concerned, order any tribe, portion thereof, or individual black person, to move from one place to another within the Republic of South Africa”.
The Black (Bantu) Authorities Act, 1951 (Act No 68 of 1951) allowed for the creation of traditional tribal, regional and territorial authorities initially run by the Native Affairs Department, but with the promise of self-government in the future.
The Blacks (Abolition of Passes and Co-ordination of Documents) Act, 1952 (Act No 67 of 1952) repealed early laws, which differed from province to province, relating to the carrying of passes by Black male workers (e.g. the Native Labour Regulation Act of 1911) and instead required all black persons over the age of 16 in all provinces to carry a 'reference book' at all times.
The Promotion of Bantu Self-Government Act, 1959 (Act No 46 of 1959) announced the existence of eight African ethnic groups based on their linguistic and cultural diversity. The Commissioner-General was assigned to develop a homeland for each group.
The Bantu Homelands Citizenship Act (National States Citizenship Act), 1970 (Act No 26 of 1970) required that all South African Blacks become citizens of one of the self-governing territories.
The Bantu Homelands Constitution Act (National States Constitutional Act), 1971 (Act No 21 of 1971) increased the potential governmental powers of the self-governing homelands and represented a further step towards the creation of independent Bantustans.
Black Laws Amendment Act, 1973 (Act No 7 of 1973) was designed to speed up the planning for partial consolidation of the homelands.
The Expropriation Act, 1975 (Act No 63 of 1975): This Act, which has been amended, is still on the statute books. It sets out the power of Minister to expropriate property for public and certain other purposes and to take the right to use property for public purposes.