Current Challenges

The land claims process in South Africa is fraught with serious challenges that severely undermine the basic and constitutional rights of claimants, who were originally deprived their rights by Apartheid dispossession. If left unaddressed, the violations of rights will not only continue, but scale up with the increase of new land claims.

* People’s rights to land restitution and reform are severely undermined by:

* The severe lack of capacity within the Land Claims Commission

* Procedural and bureaucratic factors at the claims lodgment phase lack of awareness on rights

* Lack of Institutions and networks to Support Claimants

Procedural and bureaucratic factors

Basic errors committed by officials and claimants when filling in the claim form have major implications on their restitution rights. All information on claim forms were ruled to be legal and binding and cannot be subsequently altered. In a Judgement in the Land Claims court, (Minar vs The Regional Land Claims Commissioner for Mpumalanga LCC42/06) it was ruled that since the claimant had specified only one part of the dispossessed property (perhaps due to lack of information on complicated official property sub-divisions and references), the other 90% which he had rights to, would not be considered for restitution.

We have identified various similar issues that have had damaging impacts on the overall restitution outcome for claimants: either disqualifying them or resulting in partial restitution. These include the following:

* The use of traditional names vs the official registered property names

* Missing information regarding the year of settlement, dispossession, type of rights being claimed, the institution or individual who dispossessed them

* Claim forms not being stamped officially on the day the claim form was lodged (Land owners have questioned the validity of such claims where claim forms were not stamped and have won)

* Insistence by the Commission staff that community claims be lodged through Traditional Authorities (which is not a requirement). This undermines people’s rights, particularly women.

Lack of awareness on rights

Based on recent work in over 50 land claims nationally (involving communities, labour tenants, Group Areas and Bantustan removals), it has become obvious that claimants rights are not sufficiently protected at any stage of the restitution process.

As a result violations arise from (inter alia) the power imbalances between claimants and the Commission, delays of over 20 years in the processing of claims, a complete lack of feedback on progress of claims, lack of transparency on settlement options, encouragement of financial compensation (as opposed to land restoration), omissions by the Commission and misinformation on rights and procedures.

In the Settlement Phase, for example, people are discouraged from taking restoration of Land and are not aware of possible support for agriculture and other enterprises.

Lack of Capacity

The Land Claims Commission has taken over 20 years to deal with 79 696 pre-1998 claims due to various internal factors ranging from capacity issues to incompetencies.

The process has frustrated not only the beneficiaries of Restitution but also current land owners of properties under claim. There have been various claims that have been tested legally in the Land Claims and Constitutional Courts where claimants have lost out on the their rightful dues as a result of basic errors on the claim form, with great cost to their rights.

This calamitous situation is exacerbated by the predictions that claims in the new land claims window will exceed the previously lodged claims by a factor of 5 – 79 000 claims were lodged in the 1995-1998 window, the expectation is that over 400 000 claims will be lodged under the Amended Restitution Act. The Institute for Policy, Land and Agrarian Studies (PLAAS) estimates that the Commission would need 144 years to process these claims at the current rate.

It is clear that the Commission’s lack of capacity fundamentally threatens the realization of people’s rights. This will be more severe given the predicted numbers.

Lack of Institutions and Networks

By being treated as individual and disconnected clients of the Commission, claimants are isolated from each other and lack contact, relationship and organization. This prevents useful information (on success factors, settlements, problems, etc) from being shared. It also limits abilities to mobilize, organize and advocate for claimants’ rights. This evident from there being no lobby for land claimants in the country.

As evident above, claimants have either lost access to rights in land, or make impaired choices that do not benefit them. Without intervention, we expect the rights of land claimants to be severely undermined in the next while, unless urgent interventions are made.

This calamitous situation is exacerbated by the predictions that claims in the new land claims window will exceed the previously lodged claims by a factor of 5 – 79 000 claims were lodged in the 1995-1998 window, the expectation is that over 400 000 claims will be lodged under the Amended Restitution Act. The Institute for Policy, Land and Agrarian Studies (PLAAS) estimates that the Commission would need 144 years to process these claims at the current rate.

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