Part I: by Nihad Boqai (BADIL)
During the 20th century, especially during its second half, South Africa and Israel were ‘twin’ examples of racist colonial projects and ongoing violations of basic human rights of ‘native’ peoples. During the 1990s, two relevant historic reconciliation processes took place: the Oslo agreements between the Palestine Liberation Organization (PLO) and the Israeli government in Palestine, and the agreement between the African National Congress (ANC) and the "White" government of South Africa.
As is well-known, the first process witnessed a total collapse following the failure of final status negotiations between Palestinians and Israelis at Camp David, USA (2000) and Taba, Egypt (2001). Israel subsequently extended its control over more Palestinian land through further land expropriation and displacement. Basic human rights are still ignored. Refugees remain especially vulnerable. In South Africa the national reconciliation process is ongoing. It has faced significant challenges, but at the same time, it has made significant achievements.
Between 10-19 November 2003, BADIL Resource Center organized a fact finding delegation to South Africa to study the process of land reform and property restitution, community participation, and the challenges faced by South Africans in the post-Apartheid era. The delegation consisted of 9 Palestinian activists and researchers in the field of refugee rights from historic Palestine, Lebanon and Europe. The first BADIL fact finding delegation traveled to Bosnia-Herzegovina in June 2002 to study the return process of the Bosnian refugees and internally displaced persons. (See, al-Majdal 14, June 2002)
During the visit to South Africa, members of the delegation met with a number of government officials, NGOs and researchers, in addition to community leaders and activists. The delegation also participated in a workshop on rural land restitution in the city of Nelspruit (Mpumalanga Province), and made a number of field visits in Kwazulu-Natal Province and around the city of Johannesburg.
Land reform is a critical issue for South Africa, in general, and for the reconciliation process, in particular. The history of land dispossession, which was characterized by brutal forced removals and evictions, has left a nation divided along racial lines and a black majority in need of land. These people, especially those from rural areas, lost their lands through a long process of dispossession combining elements of purchase, negotiation, force, legal fiat, fraud and displacement.
A history of dispossession
Dispossession of the black South Africans from their lands began in 1652, when the first European settlers arrived in the Cape Province of South Africa, and continued until the 1990s. During the last latter part of the 19th century, white European settlers promulgated a number of laws that provided the basic framework for the creation of separate African reserves to serve as a source of labor for the "white farms". This legislation included, the 1894 Glen Grey Act and the 1899 Cape Private Locations Act.
The government of the Union of South Africa, established in 1910, also adopted policies to inhibit the further growth of the African peasantry, and relocate them on white-owned farms. This included the introduction of the Native Land Act of 1913. The Act created a number of African "reserves" for the settlement of black South Africans, which would serve as pools of migrant labor for white-owned farms and urban-based industry.
The government adopted further discriminatory laws to acquire control of more land. The Masters and Servants Law (Transvaal and Natal) Amendment Act of 1926, the Native Service Contracts Act of 1932, and the Native Trust and Land Act of 1936 forced all Africans outside of the reserves into the white agricultural economy, while extending existing controls over labour tenancy. In total, approximately 2 million people were tied to white farms through these laws.
During the Apartheid era (1948-1990), the “Nationalist government” embarked on a systematic program of eliminating squatting and transforming labor tenancy into wage labor through the vigorous enforcement of the 1936 Act. Attempts to increase the removal of "squatters" from farms, and from urban areas, led to the introduction of the Prevention of Illegal Squatting Act of 1951. This legislation empowered white farmers and local authorities to evict farm tenants with relative impunity. These powers were given further effect through the 1964 Bantu Laws Amendment Act, which allowed for the rapid eviction and removal of tenants and “black spot” (segregation areas) residents.
As result, over 600,000 black people living in black spot communities were resettled through large-scale brutal removals carried out by government until 1958. In addition, it is estimated that between 1960 and 1983, a total of 2.3-3.5 million people were removed from white rural areas around the country. About 450,000 people in rural Natal were forcibly removed from their homes and their land under apartheid legislation between 1948 and 1982. With the end of the Apartheid era, land reform became a major focus due to the fact that 80 per cent of the country’s population was living on only 13 per cent of the land due to apartheid policies and laws.
Addressing the history of land dispossession in South Africa was, therefore, one of the first steps and the main challenge of the new government after the collapse of the Apartheid regime. Through meetings with South African officials, including the Chief Commissioner on the Restitution of Land Rights, Mr Tozi Gwanya, and Cheryl Walker, former Commissioner for the Restitution of Land Rights in Kwazulu-Natal province, and NGOs, the delegation looked at the government program on land reform and restitution in the post-Apartheid era. Since 1994, land reform policy in South Africa has focused on three components: the restitution of land rights, the reform of tenure systems, and a land redistribution program. Each of these components have established their own laws and institutions to implement land reform.
The restitution component aims to restore rights in land to those who lost them as a result of racially discriminatory legislation or practice since 1913. Victims of land dispossession were given until December 1998 to lodge a claim for the restoration of their rights with a Land Claims Commission, which would endeavor to reach a settlement between claimants and land owners, or provide settlement or compensation via the Land Claims Court. The basic principle of the process is a commitment to restorative justice and redress for the land dispossession suffered by black individuals and communities during the colonial period and under apartheid.
There are two significant policy frameworks governing the restitution of land rights: the Constitution of South Africa, and the Restitution of Land Rights Act of 1994. The Constitution of South Africa (1996) outlines the basic principles under which restitution shall take place in Section 25(7): "A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress." The Restitution of Land Rights Act of 1994 provided for the establishment of a Land Claims Commission and Court to implement the requirements of the Constitution.
Restitution proceeded from 1994 to 1998 at an extremely slow pace, and proved to be a difficult process for communities. By mid-1998, a paltry 28 claims had been resolved out of a total of 42,000 submitted. Of the 63,455 claims lodged, only 41 were settled by March 1999. This led the Department for Land Affairs and the Land Claims Commission to change the land restitution policy in order to resolve different categories of claims. Through this strategy the large numbers of individual urban claims would be rapidly resolved through financial compensation payments. Until 2000, around 10,000 households received lands (around 174,000 hectares), in addition to another some 3,000 households, which received compensation. In total, around 4,000 claims were settled.
The pace of restitution accelerated rapidly since 1999. By March 2003 this had risen dramatically to 36,488 claims, affecting more than half a million hectares (750,000 by end of June). However, a study by the Programme for Land and Agrarian Studies in the University of Western Cape (PLAAS) found that most of the settled claims are urban claims that have been settled through financial compensation. Despite the political pressure that has been applied to settle all claims by 2005, there is no indication that this is possible, given the number of outstanding large rural claims.
One of the important issues raised by the delegation and discussed during various meetings and field visits was the case of the rural land restitution, especially during meetings with Association for Rural Advancement based on Pietermartizburg city-Kwazulu-Natal Province (AFRA), and the National Land Committee (NLC) in Johannesburg. The BADIL delegation also participated in a workshop on this issue in Nelspruit organized by PLAAS, in addition to the field visits to the farms and “townships” in Kwazulu-Natal Province that are home to the majority of the rural population.
Despite the rapid increase in the total number of settled claims, the bulk of the rural claims are still outstanding, yet these hold most potential to transform landholding, redress the past and address poverty. Of the 36,488 claims settled by March 2003, the PLAAS study could identify only 185 rural claims settled with land rather than compensation. According to the same study, in Mpumalanga Province (61.5 percent of the total population are rural), there are 6,473 claims lodged (1,226 urban 19 percent and 5,210 rural 81 percent), however, until March 2003, only 635 claims were settled, of which 297 were rural.
The Land Redistribution Program provides the poor with land for residential and productive purposes in order to improve their livelihoods. Land redistribution was intended to assist the urban and rural poor, farm workers, labor tenants, and emergent farmers. The Program aimed to redistribute 30 percent of farmland in the period until 1999. The Program provided a Settlement and Land Acquisition Grant to households or groups to purchase land from willing sellers, including the state, according to the Provision of Certain Land for Settlement Act of 1993. The Constitution of South Africa (1996) also outlines (Section 25(5)) also the basic principles for redistribution: “The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”
There are approximately 82.8 million hectares in use by commercial farmers in South Africa. Until 2000, only 667,285 hectares of farmland was redistributed, or approved for redistribution, or around 0.81 percent to date.
Land tenure reform
Land tenure reform as the third component of the program aims to protect people from evictions. Tenure reform refers to changes in the terms and conditions, under which land is held, used and transacted. There are four major tenure laws: the Extension of Security of Tenure Act of 1997, which provides people living on commercial farms with measures to regulate evictions and provide tenure security; the Land Reform (Labour Tenants) Act of 1996, which protects residential and land use rights, such as grazing and crop rights, of labor tenants on farms where they live, and gives them the right to purchase that land; the Communal Property Association Act of 1996, which enables communities or groups to acquire, hold and manage property in terms of a written constitution; and, the Interim Protection of Informal Land Rights Act of 1996, which provides a short term measure to protect people with informal land rights and interests in land – primarily in previous homeland areas – from eviction or other infringement. In addition, the Constitution re-enforces land reform under the Section 25 (6). "A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress."
In practice, the government program has faced many challenges, problems and obstacles that make the land reform process slow. One of the problems is related to political basis of land reform. Although the first explicitly segregationist and comprehensive Land Act was introduced in 1913, it is clearly an arbitrary date from which to determine justice in restitution. Segregationist land reform was already well under way by the time the 1913 Land Act was introduced, and well before its introduction black South Africans lost their land, or their rights in land. Ways of dealing with pre-1913 claims that satisfy the needs of these communities have still not been found. A second contentious area has been how to deal with the existence of a range of rights that are not explicitly recognized in a historical context of colonialism, segregation and apartheid. Throughout the period before and after 1913, many black South Africans struggled to retain access to land though a range of agreements which, while initially temporary, grew permanent over time. Labor tenancy and sharecropping are examples of this. Although the Restitution Act recognizes that a right in land may include such interests, they have not been accepted as restitution claims.
In addition, claims for commercial agricultural land are costly and most of the rural population (around half of the rural population are unemployed) cannot pay. Current owners must also agree to the sale of the land and compensation to current landowners must also be fair and just. These underlying limitations of the redistribution process provide special protection to the current property owners. The "willing-buyer, willing-seller" framework and the requirement of "fair and just" compensation for existing landowners, has placed financial constraints on the extent of land transfer. NGOs and land activists have expressed their lack of trust in the government’s commitment to the land reform process.
Voices of the grassroots
During the visit, members of the delegation met with a number of popular leaders of landless South Africans, especially in the townships. In addition to the NGOs that support land rights for black South Africans, like NLC and AFRA, delegation members met with activists of the Landless People’s Movement (LPM) that are leading the struggle for the defense of land rights.
Most of the activists of the landless movement in South Africa accuse the government and the African National Congress of excluding rural black communities, and the NGOs and other civil society organizations from real participation in the decision-making processes of land reform. At the same time, community activists are pressing officials to implement their rights. LPM has conditioned its support for the ANC in getting lands for the residents, and has threatened to boycott the election next year, under the slogan of "No Land, No Vote".
At the same time, activists are pessimistic about the future, and their relations with the government and the ANC. While government officials express their hope to complete land reform by 2005, activists claim that the social movement on land will become stronger in the future, especially because of “government inaction”.
The challenges and the problems concerning the land restitution and land reform process in South African demonstrate that the process is incredibly complex and fraught with dangers. Peace agreements, therefore, need to have as many details as possible tied up at the beginning. Insufficient political will combined with agreements that leave issues open for future disagreement may not only delay but set back the entire reconciliation process. The South African experience also demonstrates the danger of political compromises over basic rights such as the decision not to address pre-1913 land claims. Community participation in the decision-making process is therefore critical to ensure that such compromises have popular support and can be sustained during implementation of the agreement.
|BADIL's full-color 2004 calendar is now available!
The calendar features photos of Palestinians visiting their lost homes in Israel; the resigning of streets in Majdal to commemorate the Palestinians who lived there until it was depopulated of Palestinians in 1948 and after; living in the shadow of the "security" wall and refugee camp life in West Bank.
Special dates in Palestinian history are listed by month and the introduction outlines the role of international law in the search for a durable solution to the Palestinian refugee issue. The calendar is in English and Arabic.
Part Two: by Mahmoud Issa
Writing a quick impression about a ten-day visit to South Africa may be a difficult task, especially if one seeks to do justice to a cause that goes back four centuries in history. It is not so difficult, however, for a Palestinian refugee who too has been deprived of his home and land for more than half a century. The resemblance between what happened in South Africa and what happened in Palestine is striking, although the actual history of these two countries is quite different.
The planting of a memorial tree for my village, Lubya (located in the Galilee), in Pretoria, South Africa by the Minister of Water Affairs and Forestry, Mr. Ronnie Kasrils, a South African Jew, is in itself an event with historical significance. The forest, which was planted on the debris of Lubya by a Jewish national organization is called South African Forest. The act of planting a tree accompanied by a plaque “renaming” the village to its original name is in itself part of the process of undoing the injustices that befell our own village in 1948.
The memorial reads as follows:
Dedicated by the Honourable Minister
(Minister of Water Affairs and Forestry)
To the Palestinian village of Lubya upon whose ruins a forest was built where cows were permitted to graze but the displaced occupants are not allowed to return.(1)
Meeting with the Landless People’s Movement
On 7 November 2003, shortly before we arrived in South Africa, the Landless People’s Movement (LPM) held a demonstration urging people to boycott the upcoming national elections under the slogan: “No Land, No Vote!” The LPM accuse the government of reneging on its 1994 election promise to return land to those dispossessed under apartheid. “We were slaves under Apartheid and now we are still landless. Our land is sold to international companies,” says Samantha Hargreaves from the Landless People’s Movement, which was established in 2001.
“They have a willing-buyer, willing-seller policy. But the poor don’t have money to buy land,” Mnisi, the LPM’s Gauteng chairperson wrote in an article one day before the demonstration. “We want positive feedback within seven days. If our demands are not met we will take the land by force…We voted before, but our voices weren’t heard.” Samson Lesabe of Thembelihe, also from the LPM said: “I voted for Mandela because he cares for the people. But I won’t vote for Thabo Mbeiki’s government. They can come and shoot me. I will die for my land.”
The slow pace of land reform has fuelled anger among the rural and urban poor. Ten years after the end of Apartheid many black South Africans are still landless, still face evictions and human rights abuses on farms, and still suffer from insecure land tenure in their former homelands. The motto of the Landless People’s Movement is: “Land Now! Organize and Unite.” According to their Charter, the government must expropriate the land of absentee landlords, abusive farmers, indebted farmers, all unused or under-utilised land, and all land that is otherwise unproductive.
Chief Commissioner’s version of the land story
In Pretoria, Tozi Gwanya, Chief Commissioner on the Restitution of Land Rights, compared racism in the old South Africa with that in Israel. According to Gwanya, the problem in South Africa started in 1652 when the white settlers arrived and started taking the land from the blacks. Resistance from the black population intensified in the 1800s provoking the two colonial powers – the English and the Dutch Afrikaners – to unite and establish a unitary government in 1910. In 1913 they issued the Native Land Act giving exclusive rights in land to the white minority. The process of dispossession continued until the end of the Apartheid regime in the early 1990s.
One of the first acts of the post-Apartheid era was the adoption of legislation to undo the historical process of dispossession since 1913. According to Chief Commissioner Tozi, the black population initially did not trust the process. It was only through an act of Parliament and an amendment to the Constitution that people and communities were given more opportunities to reclaim their property. The Commissioner said that all forms of documentation should be used to settle property claims, including oral evidence, graves and family trees.
The Commissioner gave as an example a recent case where 6,000 hectares of land was transferred to black South Africans. The current white owners of the property meanwhile received 63,000,000 Rands (USD 10 million) in compensation. “Before expropriating the land, we should give the farmers a chance,” said the Commissioner. “We decide where we buy the land. Where people have their graves we will buy the land.” Many white farmers took the opportunity to sell their land to the government at market value, which NGOs claim is much higher than its actual worth. Many farmers who had gone bankrupt for other reasons, therefore, had an interest in selling their lands to the government for the purpose of land restitution.
I asked the Commissioner whether international donors, the World Bank, and other international actors had pressured South Africa to accept the 1994 compromise which led to the end of Apartheid but where the white minority still controls the economy, suggesting that the situation was somewhat similar to the Oslo accords which ended catastrophically with more confiscation of land, an apartheid wall, and the doubling of settlements. Commissioner Tozi stated that the international environment had been unfriendly and this had created a necessity for compromise.
In response to criticism that the land reform process was not moving fast enough, the Commissioner said: “I said to the LPM, ‘Go and educate the people first.’ ‘Go and make the land more productive.’ We gave 799,000 hectares of land to the blacks. But it is embarrassing to say to you that sometimes some people will not work the land given to them.”
Restitution is a rights based program
Driving five hours from Johannesburg, we met with Ruth Hall, an academic from Cape Town University, who has examined the deficiences in the land restitution process and various solutions. We also attended a workshop on land reform conducted by the Programme for Land and Agrarian Studies in the University of Western Cape (PLAAS).
One of the main difficulties facing the land restitution process in South Africa, says Hall, has been the length of time required to settle claims. Out of the 36,488 claims involving more than half a million hectares settled by March 2003, only 185 were rural claims (PLAAS). It is also expensive. Rural claims cost about 10 million Rand per claim with urban claims running about 1 million Rand.
Hall pointed out that any restitution process must be clear about what rights can be restored. For example, restitution can involve more than just land. Should it also cover assets like housing and infrastructure or less tangible things like damage to social networks? Should it focus on restitution of rights or broader notions of development. Should the process cater to individual or community interests, or both? What happens when current owners are unwilling to sell the land? Are there mechanisms for enforcement?
According to Hall, “restitution in South Africa has not been adequately monitored.” “It is important as a political symbol,” she said, “but it is clear that political support is insufficient.” Hall also said that the deadline for the resolution of claims was not achievable. “We cannot limit constitutional rights by law.” In other cases military interference in land use led to further complications in the restitution process.
During a subsequent workshop with local activists, the question of land reform in Zimbabwe and the taking of land by force evoked emotional responses from local participants. Some doubted the sincerity of Robert Mugabe’s reforms. “Why now, and not before?” commented one activist. Others felt that in South Africa, unlike Zimbabwe, NGOs and the balance of power would prevent land grabs by the dispossessed black majority, although they admitted that frustration is building up among the people.
Meeting with AFRA and the church land program in Kwazulu – Natal
“We find that the forces against us are global,” said Mark, one of the members of the Association for Rural Advancement (AFRA) who we met in Kwazulu-Natal. “We should see the broader global struggle against neo-imperialism.” Mark viewed the situations in Palestine and in South Africa as part of the same struggle against neo-imperialism. He saluted the Palestinian people in their struggle against occupation and dispossession of their land. Everywhere we went, local organizations in South Africa greeted us with the word intifada.
We also sent a message of solidarity to landless South Africans. Mangaliso, one of the landless members of the community, described the situation of the Magombato family as symbolic of the problems landless South Africans are facing with white farmers. “They asked us to evict the dead people from the farm. One of our friends died two months ago and is buried there with his family.” He told us how a farmer shot at one of his friends, and when the Association for Rural Advancement contacted the farmer to send a lawyer to settle the issue, the farmer answered: ‘The lawyer who is coming should have a weapon with him, because I have weapon with me.’
We also met with the Church Land program which is active in the restitution process. In South Africa some churches also participated in the dispossession of the black population. According to Graham, who works for the Church Land program, “church missionary programs and the colonial enterprise went hand in hand.” The fact that churches did not keep records for rural lands, however, makes it difficult now to investigate claims to church properties. Nevertheless, churches should play a key role in the reconciliation process. “Land should not be a financial asset for the priests but a tool for reconciliation with the poor,” said Graham. “We should avoid what we call now cheap reconciliation.” In cases where a white farmer agrees to sell his land to the government, which is then returned to the original owner, there is no process to address historical reconciliation. The process is merely financial.
Other members of AFRA, like Sihle, restated that restitution is a rights based issue and that the property market should not play the main role in the process. Sihle supported the idea of expropriating the land if the claims are agreed upon. Some farmers are profiting from existing laws which make it possible to rezone their land for tourism, and therefore receive more financial compensation from the government. If you offer a poor man a cheque or a piece of land, he will take the cheque. “We think that financial compensation is not a good option for the people. Returning the land without development is not enough.”
In the past black farm workers were bound to white farmer according to old feudal relations. Today technology is replacing many farm workers. Mark argued that it is therefore necessary to change the policies of the African National Congress (ANC) from a reconstruction and development program (RDP) to a growth, employment and redistribution (GEAR) strategy. As Mark observed, however, the government prefers stability over radical reform. He also felt that although there is profound disappointment in the post-Apartheid era, although forced take overs of land, like those in Zimbabwe, are not yet likely to occur in South Africa.
We also made several field visits to see the land restitution and land reform process in action. Twista Majolla from Entabeni was awarded title to 156 hectares of land for eight families in 1996. Every family also received a government grant of 15,000 Rand. This was not enough, however, to buy trucks and equipment for the land.
In Tant town (Greytown) we heard about a situation in 1997 where black farm workers were evicted by force because they participated in what local white farmers called an unlawful strike. The farmer's private police forced the people on trucks and dumped them off along the roadside. One member from the evicted families named Vousi said that 17 families received eviction orders from the Magistrate’s office. Despite limited resources, the Association for Rural Advancement helped provide an attorney to represent the community. “People have the right, but we haven’t the money,” added Pen from AFRA. The court upheld the eviction and now the famlies are living on temporary alternative municipal land with little infrastructure, not unlike the early refugee camps for Palestinians. The new settlement is 17 km from their original farm.
Upcoming Events - Third BADIL Expert Seminar, Cairo, 5-8 March 2004
“We are not allowed to use mud for construction because they said this place is temporary,” said Vousi. Family members are now forced to look for work in nearby towns rather than working on the land. An entire day’s earnings amount to no more than 10 to 25 Rand. “I am born there. Our grandparents graves are there. The farmers used to give us 10 Rand for our work from 6am to 4pm,” said Vousi. “Here people die in greater numbers than before.” When they arrived at the temporary settlement site the families were promised that they would be able to return to the farm in two weeks. Six years have now passed and they are still waiting.
In Rietvlei, previously known by black South Africans as Mbalani, we visited a community where an English land owner who held title to some 20,000 hectares of land had donated 1,250 hectares to 12 landless families. Looking at the land, however, there is little resemblance between the quality of land donated to the 12 families, which is mostly rocky, and that retained by the larger white land owner.
Our last visit was to the renamed town of Masithuthuke, which means, ‘let us develop’. After the previous owner of the land passed away in 1997, the new owner began to harrass the black farm workers so as to evict them from the land. Following interference by AFRA on behalf of the community, the black tenants finally received title to some of the land. Some 335 hectares is now owned by 13 families. The quality of the land, however, is also poor and rocky.
Both communities greeted and bid us farewell with songs, dance, and hospitality that reminded me of the hospitality in Palestinian refugee camps: those who have nothing are so often more generous, open and willing to sacrifice. The Palestinian delegation joined in the folkloric dance with cheer and happiness in a sign of anticipation of the day that they too will repossess the titles and deeds to their lands.
For more information on the land reform and land restitution in South Africa visit the following websites:
The National Land Committee-NLC, http://www.nlc.co.za
The Association for Rural Advancement-AFRA, http://www.afra.co.za
The Department of Land Affairs, http://land.pwv.gov.za