2.3 General discussion on land as a subject matter (What is land)
2.3.3 Recognition of the right to access land
reform program be rigorously implemented and enforced. Before the right to access to land can be properly implemented to suit the socio-economic rights of people, perhaps it is pertinent that attention be focused on how this right is recognised and how it can be best implemented to alleviate poverty amongst the historically disadvantaged people.
obligation to afford citizens access to land in a just and equitable manner, but Section 36 permits the state to perform within its means and thus according to its available resources.
People’s livelihood is wholly depended on land, hence the right to access to land is of paramount significance to all people. However, this right is subject to limitation in terms of Section 36 and there are number of provisions to be taken into account when limiting a right.
Such as the purpose of the limitation, the nature and extent of the limitation and the relationship between the purpose of the limitation and the limitation. For instance, if the right to access land is limited due to the activities that are carried on the land, such as mining activities. The people who were previously dispossessed of the land in question were deprived access to the land, their right to access the land is limited for health reasons, such that mining site is not conducive for residential or agricultural purposes. However, the people can be compensated for their land. Therefore, the extent of limitation in this scenario is closely related to the purpose of limitation. Thus, the people’s right to access land was limited due to the uncopiable status of the land. Article 14 of the ILO 169 Convention highlights that the state must identify the land which people previously occupied and protect the people’s rights over the land.
The state is entrusted with responsibility of identifying and making land available to people who were dispossessed of their land. In order for the state to grant access to land for people who were previously dispossessed of their land, However the state can only provide within its means of available resources. Therefore, realisation of access to land for all citizen could be a lengthy process as it is depended on availability of state’s resources. Hence the lengthy process of redistributing land to Black people is justified by state lack of resources. The state is further required to promulgate legislation that will regulate the procedure and process to afford people access to land in terms of Article 14 of the ILO 169 Convention which provides that states must make adequate procedures to resolve land claims.
According to the Convention, the state must play an active role in ensuring that people who were dispossessed of their land receive their land back. The responsibility to reform land to accommodate those who were previously disadvantaged, is on the state. The state is entrusted with the duty to introduce land reform, which is customised and well suited to the country, depending on the challenges the country is facing regarding land. Whether they are ownership challenges, access or regulations governing specific areas. A well-suited legislation for the country’s land challenges had to be promulgated and implemented with
the objective to grant access to land to all citizens. South Africa introduced its own land reform program with a three-tier system, land restitution, land redistribution and land tenure reform. Land restitution is aimed at compensating and restoring land to those who were previously dispossessed, while land restitution is generally aimed at facilitating right to access to land for purposes of residential and agricultural purposes. Land tenure system is focused on granting people secure tenure system. According to American declaration on human rights of indigenous people Section 5: Social, Economic, and Property Rights Article XXV indigenous people have a right over the lands and resource which they previously occupied. According to this provision people are entitled to land that they historically possessed. Which in South African land context, Black people possessed all the land within the country. However, upon arrival of the Colonial and the Dutch, Black people were dispossessed of their land. Through the operation of colonial system which created injustices and inequality practices amongst blacks and whites. The colonial system favoured white people over black people. As a result of the discrimination, legacy of landlessness and poverty amongst Black South Africans is still thriving, an injustice which the democratic government is seeking to redress. When Black people were dispossessed of their land, they lost their way of making a living, and had to look for employment from their white oppressors.
Black person’s way of making a living was now limited to employment, although the kind of employment was not gainful. They were not remunerated well and as a result Black people lived from hand to mouth, a poverty-stricken lifestyle that become a legacy over the years. Black people’s livelihood changed from farming for survival to slavering for survival. They tilled the grounds they previously owned, as slaves. The lands which they laid their ancestors to rest become their slavering grounds. Black people are known for their diverse culture, tradition and customs. Which they practice with pride and understanding; hence it is of paramount importance to them to gain access to lands which they previously owned for purposes of practising their culture and customs. To perform ceremonies such as ancestral worship, ceremonies that are closer to their hearts and way of living.