2.3 General discussion on land as a subject matter (What is land)
2.4.5 Declaration on the right and responsibility of individuals, groups and organs of
governments are tasked and obligated to guarantee “full and prior informed consent regarding relocation”.223 Additionally, states are required to provide a solution where evictions are not carried out in compliance with international law.
It is, however, not clear why Blacks who were affected by land dispossession, the forceful relocation was not favoured with remedies during the apartheid era. Such remedy must
“provide or ensure fair and just compensation for any losses of personal, real or other property or goods, including rights or interests in property”.224 In the South African land context, that would mean restitution and redistribution of land to the Black people. Together with necessary mechanism to enable the people to use land productively to regain their social and economic status in the society, and alleviate poverty, hunger and starvation.
According to ILO Convention 169, an assessment of damage to individuals should be
“where the home and land also provide a sole livelihood for evicted inhabitants, account for value of land”.225 With the South African land reform system, restitution and redistribution processes have not been easy to carry out, and as a result most of the land claims are addressed by a way of compensation than redistribution. Due to many reasons such as the land which the claim is brought against has already been developed and it is not feasible that restitution can take place. Furthermore, the conditions connected to forced evictions do not always allow restitution or restoration, but where conditions allow, in awareness of the development tasks, governments are guided to assist returning persons in getting back their possessions and offer them voluntary return.226
2.4.5 Declaration on the right and responsibility of individuals, groups and organs of
promote human rights. This clearly indicates that people’s livelihood depends on access to human rights. According to Garibaldi et al., human welfare depends on the amount and stability of agricultural production, as determined by crop yield and cultivated area.227 Therefore, in order to ensure survival of people there must be some sort of protection and recognition of their basic human rights. People need food, water and shelter for survival, it is within the nature of a person require nourishment for survival. However, Owoeye and Adedeji are of the view that land is of paramount importance to development, growth and housing delivery in any society.228 It is not only the wellbeing of people that is depended on land, however, even development in this evolving world requires access to land, for building infrastructures that will better the living conditions of all people. Hence Owoeye et al. opines that land is of crucial element in property development process.229 Therefore, its acquisition is vital to achieving official and sustainable housing delivery in urban environment. Having highlighted the need for human rights, it is also pertinent to point out that basic human rights are solely dependent on access to land for realisation. There is a need to have land in order to achieve realisation of basic human rights, rights such as food, shelter and clean water.
Land is needed to farm and produce food crops, to tend to animals, to build houses, to drill and bore water, basically human livelihood is closely depended on land. Hence Article 3 of the Declaration emphasises that member states should legislate laws that recognise, protect and actively implement basic human rights.
Within the South African legal context, basic human rights are recognised and protected by the Constitution. However, realisation of some of the basic human rights are hindered by the slow pace of restoring land to Black people. The slow pace of land reform defeats the objective of availing land to everyone. Consequently, affects realisation of basic human rights such as adequate housing and food. Where land reform has managed to restore land, there are no support services to aid the poor land beneficiaries to productively utilise the land to realise their basic human rights. The lack of comprehensive post-settlement support services to land reform beneficiaries does not only result in redistributed land laying fallow, but also fails to alleviate poverty and moreover hinders active realisation of basic human rights. Owoeye et al. is of the view that is crucial to note that providing people with access
227 Lucas A Gribaldi, Marcelo A Aizen, Alexandra M Klein, Saul A Cunnigham, and Lawrence D Harder, Global growth and stability of agricultural yield decrease with a pollinator dependence.
228 Owoeyo OJ and Adedeji. 2015. YMD, Urban land acquisition for sustainable housing delivery in Akure, Nigeria, 4(1):.10-20, International Journal of developing societies.
229 Ibid note 228.
to land and empowering them to make effective use of it is central to poverty alleviation.230 Article 13 of the Declaration read together with article 3 states that people have a right to receive resources to enable them to actively achieve their human rights. In the land context it is only fitting that land reform beneficiaries be afforded post-settlement support in funding and other resources in order to ensure that land reform beneficiaries actively achieve their basic human rights. Through productive use of redistributed land, beneficiaries can combat hunger and starvation and alleviate poverty in their lives.
2.4.6 International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966
The ICESCR also advocates for the recognition and realisation of basic human rights, outlined in Article 11. Article 11 acknowledges that every person is entitled to a dignified life of adequate standard of living including adequate food, shelter and clothing. According to Boonyabancha land and housing are important assets for the poor which do not necessary only provide shelter but also generate income for the poor.231 Therefore, people use land for shelter, food and development and for economic purposes. The economic benefit can be driven from productive use of land, such as commercial farming or leasing or even selling land and proceeds thereof used to better the lives of people. Omirin is also of the view that access to land and property rights is a major key element in economic growth and development.232 The ICESCR mandates member states to ensure that basic human rights are actively realised. However, in order to ensure that basic human rights are actively achieved, the member state must first ensure that there is access to land.233 Ensuring access to land in the South African land reform context that will require radical implementation of the programme with intention not to only redistribute land but also to ensure that land is used productively to combat hunger and starvation and consequently alleviate poverty.
230 Owoeyo note 228.
231 Bonyabancha S (2009) Land for housing the poor by the poor, experience from the Baan Mankong nation wide slum upgrading programme in Thailand, environment and urbanization, 21(2): 309-329.
232 Omirin MM (2002) Issues in land accessibility in Nigeria, proceedings of national workshop on land management and property, tax reform in Nigeria department of estate and management, University of Lagos, Akoka, Lagos, Nigeria.
233 Article 11 of International Covenant on Economic, Social and Cultural Rights 1996 (ICESCR)
2.4.7 General discussion on interrelation of declarations promoting access to land