Land reform in South Africa has undergone several phases over the years. The Upgrading of Land Tenure Rights Act of 1991 was an attempt by the previous government, assisted by academics, to convert communal land tenure into freehold ownership. With the present government policy recognising the diversity of land tenure systems, this meant that it did not need upgrading, as its purpose was to achieve equality (Letsoalo, 1996). The Interim Protection of Informal Land Rights Act and the Extension of Security of Tenure Act were both enacted in 1994, but neither of them made any provision for setting rules and regulations for access to and control of communal land.
The Communal Property Associations Act, No. 28 of 1996 (CPA), instituted a community-based land tenure arrangement intended to replace the informal system of land holding, one feature of which had been the Permission to Occupy (PTO) certificates applicable in South African villages. The PTO certificate was a system that granted the occupants lesser rights to land which was rented for life. The occupants paid rent to government through homeland authorities (such as local magistrates: see http://www.wiredspace.wits.ac.za) which were set in place in the apartheid era. The new land policy referred to the PTOs as ‘old order’ rights, which were changed to ‘new order’ rights and registered. The conversion of these rights was put into effect by the Communal Land Right Act 11 of 2004 (CLARA) (White Paper on South African Land
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Policy: 2004). CLARA enabled the Minister of Land Affairs to give communities ownership and title to land within the former homelands. Communities would then own the land as juristic persons according to a set of rules. Administration committees were set up to help with both administration and allocation of such land.
The sections that follow consider the various legislative measures aimed at resolution of the land question. Apart from new laws, new institutions such as the Land Claims Court have been established to apply the law and the role of these institutions is also examined here.
2.4.1 The Restitution of Land Rights Act, 22 of 1994
The Restitution of Land Rights Act 22 of 1994 (Restitution Act), and its amendments after the promulgation of the Constitution in 1996, covered individuals dispossessed of their rights after 19 June 1913 as a result of past racially discriminatory laws or practices. The Act also established a Commission on Restitution of Land Rights to investigate all claims for the restitution of land rights made by 31 December 1998. The Commission made recommendations to the Chief Land Claims Commissioner (http;//www.south africa-new york.net/sacg/land affairs.htm).
The Restitution Act required that people entitled to claim restitution of land lodge their claims with the Land Claims Commissioner, observing the procedures laid down for dealing with those claims. Reflecting the complexity of land reform issues, opinions differ on the basic import of the Restitution Act.
It means that people have different views on how to apply the Restitution Act.
There are those who view the Land Claims Commissioner as the right institution while others consider the Land Claims Court process as too complicated. For Sibanda (2001: 2) this legislation directly confronts the injustices caused by apartheid, whereas Cliffe (2000: 275) sees it as purely a guide for the legal implementation of land reform.
A Land Claims Court was established to determine the right to restitution of land and compensation payable for expropriated land. Section 35(5) of the Restitution Act allowed the Minister of Land Affairs to only expropriate land.
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This was done through an order from the Land Claims Court or in terms of an agreement with the parties involved.
2.4.2 The Restitution of Land Rights Amendment Act, 22 of 2003
The goal of the Restitution Act was to compensate or restore land to people dispossessed after 19 July 1913. The policy intended to provide restitution remedies in a way that supports the vital process of reconciliation, reconstruction and development. Restitution was an integral and primary part of the Land Reform Programme. It was closely linked to both land redistribution and tenure (www.south africa-new york.net/sacg/land affairs.htm)
The Restitution of Land Rights Amendment Act, 2003 replaced Section 35(5) of the Restitution Act with a new Section 42(e). The memorandum on the objectives of the Restitution Bill stated that the provisions of the Restitution Act for the acquisition or expropriation of land and recourse to the Land Claims Court were unsatisfactory and delayed the restitution process. The new Section 42 (e) provided that “the Minister might purchase, acquire or in any manner expropriate land for which a claim was lodged under the Restitution Act.” The purpose was to restore or award the land or part of it to the claimant (Farmers’ Weekly, 6/2/2004: 8). In other words, a court order was no longer needed. The Minister might expropriate land on his/her own accord. However, the Minister might only expropriate land for the purpose of awarding it to a claimant who was entitled to the restitution of a right to land.
Furthermore, Section 42(e) required that the expropriation had to be in terms of Section 3 of the Promotion of Administrative Justice Act, 2000. This calls for the Minister’s administrative actions to be procedurally fair. The affected parties must receive adequate notice to make representations with regard to the action. In addition, a new Section 42(e)(1)(6) to be included in the Restitution Act, enabled the Minister to expropriate land over which there was no claim. The purpose was to restore land or a portion thereof to a claimant who was entitled to restitution, or provide alternative relief.
The new Section 42(e) further provided that the Expropriation Act, of 1975 applied to an expropriation under the Restitution Act. The Expropriation Act
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required notification of expropriation to be served. It provided for the passing of ownership on the date of expropriation and sets the date on which ownership commenced as the date of expropriation. It set out the requirements for possession of the property, and offered determination of compensation (Farmers’ Weekly, 6/2/2004: 8). The following section discusses the Communal Land Rights Act, 2004 which focuses on the legal security of tenure for communities.
2.4.3 The Communal Land Rights Act, 11 of 2004
The Communal Land Rights Act, 2004 essentially provided legal security of tenure by transferring land to communities and providing for the administration of such land. This would allow security of tenure to those who were entitled to it. In terms of legislation, the Minister was obliged to transfer communal land to entitled communities. Similarly, the right to expropriate under the Communal Rights Act must be for the purposes of that Act and is subject to the Promotion of Administrative Justice Act and the Expropriation Act.
In an event that the Minister acted outside of the objectives and constraints of the legislation, such action might be subjected to judicial review (Farmers’
Weekly, 6/2/2004: 9).
2.4.4 Extension of Security of Tenure Act, 1997
The Act gave occupiers who lived on someone else’s land on or after February 1997 with the permission of the owner, a secured right to live on and use that land. It provided ways in which occupiers could strengthen these rights with financial help from the state, thereby becoming owners. The legislation stipulated the procedure that owners and persons in charge of rural or peri- urban land must follow before they could evict people (Farmers’ Weekly, 6/2/2004: 9). The legislation also regulated the day-to-day relationship between owners and people living on rural or peri-urban land, in such a way that all parties’ human rights were recognised and protected. This discussion in respect of the various Acts of legislation lays a foundation that required public administrators to ensure that the land question was addressed.
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