land restitution in south africa: rights, development, and the restrained state

Land Restitution in South Africa: Rights, Development, and the Restrained StateAuthor(s): Ruth HallSource: Canadian Journal of African Studies / Revue Canadienne des Études Africaines, Vol.38, No. 3 (2004), pp. 654-671Published by: Taylor & Francis, Ltd. on behalf of the Canadian Association of African StudiesStable URL: http://www.jstor.org/stable/4107260 .

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Land Restitution in South Africa: Rights, Development, and the Restrained State

Ruth Hall

Resume Cet article place la restitution des terres a l'intdrieur de ddbats plus larges sur la maniere dont l'Afrique du Sud doit faire face a l'expropriation passee, et ce faisant, donner forme ta un avenir agraire equitable. II dccrit les origines de la restitution et ses structures Igales et institutionnelles, retrace les succes et les ichecs les plus importants et souligne les difficultis a resoudre. S'il y a eu de gros succas, les difficultis actuelles rencontries par le programme de restitution sont fondamentales et mettent en cause le fondement meme de l'etat post-apartheid, de ses relations avec, d'une part, les proprietaires terriens, les gens sans terres d'autre part, et sa politique axie sur son projet de diveloppement. Si l'engagement, pris par le gouvernement du

post-apartheid vis-ai-vis du programme de restitution a etd une victoire pour ceux

qui ont fait pression pour le droit de retourner sur leurs terres, la nature limitee de cet engagement reflete non seulement les compromis de l'accord politique ayant servi de base a la transition vers la democratie, mais aussi la tendance actuelle vers une politique etatique neo-liberale.

Introduction During the negotiated transition to democracy, many South Africans

expected that liberation would bring the return of land of which they had been dispossessed under colonialism and apartheid, but the terms on which the transition was negotiated constrained the parameters of how this could

happen. During the constitutional negotiations in the Convention for a Democratic South Africa (CODESA), the African National Congress (ANC) rejected land confiscation, agreed to protect existing property rights, and later adopted a "willing buyer, willing seller" approach to land reform. The Constitution of 1996 confirmed the protection of private property rights, but qualified them by providing for state expropriation and also mandating

This paper draws on research under the aegis of the "Evaluating Land and Agrarian Reform in South Africa" research programme at PLAAS and, in particular, the report entitled "Rural Restitution" (Hall 2003). I am grateful to Anna Bohlin, Thembela

Kepe, Evie Plaice, and Cheryl Walker for comments on an earlier version, which was

presented at the Conference on Ten Years of Democracy in Southern Africa at

Queens University, Kingston, on 2-5 May 2004.

654



Hall: Land Restitution in South Africa 655

a three-pronged programme comprised of land restitution, land redistribu-

tion, and land tenure reform (South Africa 1993, 1996). This article locates land restitution within wider debates on how South

Africa is to confront past dispossession and, in so doing, shape an equitable agrarian future. It describes the origins of restitution and its legal and institutional frameworks, traces key achievements and shortcomings, and

points to central conundrums that now confront it. One such dilemma arises from the protection of existing property rights and the reliance on

negotiated sales at market prices, which greatly complicate the commitment to restore land to the dispossessed. Another is how to deliver a

programme of this magnitude, complexity, and cost, while conforming, at the same time, to prevailing policies of fiscal restraint and a limited role for the state in the economy.

While there have been important successes, the current challenges facing the restitution programme are fundamental and go to the heart of the character of the post-apartheid state, its relations with both landowners and the landless, and its orientation to its developmental project. On the one

hand, the commitment to a land restitution programme by the post- apartheid government was a victory for those who lobbied for the right to return to their land. On the other hand, the constrained nature of the land restitution programme reflects not only the compromises of the political settlement that laid the foundation for democratic transition but also the state's current neo-liberal economic orientation.

The Framework for Restitution It is a peculiarity of South Africa's land reform that a limited project of historical redress is being implemented alongside a wider programme of land redistribution, and that these operate within parallel legal and institutional frameworks. Restitution of land to those blacks dispossessed through forced removals was initially conceived of by the ANC as the key land reform to be undertaken by a new democratic government (ANC 1992). The democratic settlement provided that only those dispossessed after the enactment of the landmark Natives Land Act of 1913 would be eligible for restitution. The land redistribution programme then emerged to cater to the needs of landless people who did not quality for restitution (ANC no

date; ANC 1994). Alongside these two initiatives, a tenure reform

programme was designed to secure the rights of people living under inse- cure arrangements on land owned by others, including the state and private landowners. These three "legs" of land reform were expected to pursue the twin objectives of equity and efficiency: to transform the racially skewed

pattern of land ownership, while improving rural incomes and contributing to economic growth (DLA 1997).



656 CJAS / RCEA 38: 3 2004

The ANC did not have detailed proposals for land reform to put on the table when the CODESA talks started in 1991. It rapidly assembled a Land Commission to develop a policy framework and convened a Land Claims Court Working Group to map out the details. The ANC's Ready-to-Govern policy document stated that: "Priority will be given to victims of forced removal who, wherever possible, should get land back taken from them by the apartheid state" (ANC 1992). How this aim would square with the protection of existing property rights was not elaborated at that stage. It is difficult to disentangle the ANC's emerging policy position on land reform from compromises made for strategic reasons in the course of the transition

negotiations.1 What is clear is that the ANC conceded protection of existing property rights and preservation of the commercial agricultural sector in the interests of both political stability and food security.

The Restitution of Land Rights Act 22 of 1994 was the first transformatory law promulgated by the new government. The impetus for a programme of land restitution originally came from rural communities that had lost their land within living memory and had the support of a network of solidarity groups and non-governmental organisations around the country. As a result, restitution was conceived as a limited programme of redress rather than part of a wider agrarian restructuring. The inclusion of urban claims to property lost as a result of the Group Areas Act of 1950 marked another change in the original, primarily rural, vision of restitution and expanded its scope substantially.

The aim of the restitution programme thus became to restore land or provide other redress to those who had been unfairly dispossessed since 1913. Restitution is to address the loss of land rights that resulted from homeland consolidation, forced removals from "black spots," the Group Areas Act, and related laws that designated land on a racial basis, as well as the losses suffered by former labour tenants, beneficial occupiers of land, and residents affected by betterment planning in the former homelands. As acknowledged in the White Paper on South African Land Policy, "[f]orced removals in support of racial segregation have caused enormous suffering and hardship in South Africa and no settlement of land issues can be reached without addressing such historical injustices" (DLA 1997, 28). From 1960 to 1983 alone, an estimated 3.5 million people were forcibly removed (Platzky and Walker 1985, 9-12).

While the land redistribution programme is discretionary, restitution is a rights-based programme in that eligible claimants have the right to restoration of, or compensation for, land of which they were dispossessed. The right to restitution of land rights was confirmed in Section 25(7) of the 1996 Constitution:

A person or community dispossessed of property after 19 June 1913 as




a result of past racially discriminatory laws and practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress (South Africa 1996, Section 25(7)). The Restitution Act also detailed the procedures for realizing this right.

Those dispossessed, or their descendants, are eligible to submit claims against the state (rather than against landowners) for restoration of their original land rights, provision of alternative land, monetary compensation, or other redress (South Africa 1994, Section 10(1)). The period originally envisaged to achieve restitution was eighteen years in total, including the lodging and settlement of claims, as well as the final implementation of settlement agreements (DLA 1997, 49). The Act established a Land Claims Court (LCC) to adjudicate claims and make restitution orders and a Commission on the Restitution of Land Rights (CRLR) to assist people to make claims, to investigate their validity, to prioritise them, and to prepare for settlement or adjudication. The Commission falls under the authority of the Chief Land Claims Commissioner. Regional Land Claims Commissions (RLCCs) in each province have their own regional commis- sioners, except for Gauteng and the North West, which fall under the authority of one commissioner, as do the Northern Cape and Free State.

A Decade of Restitution: Achievements and Shortcomings At first, claimants were slow to lodge their claims, leading to concerns that many were unaware of the process. The "Stake your Claim" campaign, undertaken jointly by the Commission, the Department of Land Affairs (DLA), and the National Land Committee (NLC) then succeeded in informing a large number of people of their right to claim.2 By the deadline for claims in December 1998, 63 455 claims had been lodged.

Progress with restitution has most commonly been measured by counting the number of claims that have been settled. By this measure, the pace of the programme increased dramatically from 1999 onwards, following the implementation of recommendations from a ministerial review (Du Toit et al. 1998). The review resulted in a shift from a judicial process, in which the Land Claims Court adjudicated each claim and made restitution orders for land to be restored or other redress, to a largely administrative process in which the Commission settles claims primarily through negotiation, only referring cases to the court when there are disputes or when claimants contest the type or level of compensation offered. The introduction in 2000 of Standard Settlement Offers (SSOs) of cash compensation for urban claims at R40 000 per household for former owners (R50 000 in certain metropolitan areas) and R17 500 per household for former long-term tenants was another innovation that enabled the Commission to speed up the settlement of claims dramatically.



658 CJAS / RCEA 38: 3 2004

Primarily as a result of these two changes, the number of claims settled

jumped from 41 in 1999 to 3 916 in 2000; 12 074 in 2001; 29 877 in 2002; and 36 488 in 2003 (CRLR 2003a, 25).3 By the end of February 2004, a cumulative total of 48 463 claims had been settled, resulting in the transfer of 810 292 hectares of land (just under one percent of agricultural land in the country) at a cost of just over R1 billion (see Table 1). A further R2 billion had been

paid out to claimants in cash or other forms of compensation. The achievements are substantial but need to be disaggregated. The

provincial situation detailed in Table 1 reveals that, in terms of land area, the most significant transfers have been in the northeast - particularly Mpumalanga and KwaZulu-Natal - and the semi-arid Northern Cape. Far less land has been transferred in the desperately poor provinces of Limpopo and the Eastern Cape, in the "maize triangle" of the Free State, and even less in the commercial agricultural heartland of the Western Cape and the largely urban province of Gauteng. While rural claims were not evenly spread across the country, the variation by province also reflects uneven progress. For

example, the Eastern Cape and Limpopo have a large volume of rural claims but little restoration. Further analysis of the data reveals both the complexity of the results to date and the challenges that still remain.

Table 1: Restitution Claims Settled as at 29 February 2004

PROVINCE CLAIMS HOUSE HECTARES LAND TOTAL HOLDS COST AWARD

Eastern Cape 12 943 26 742 28 338 198 226 881 700 718 858

Free State 2031 2718 43315 13051 926 48 018 628

Gauteng 9 312 9 304 3 453 30 285 287 413 607 585

KwaZulu-Natal 10 332 22 909 132 379 230 856 845 697 214 240

Mpumalanga 1 354 14124 240 014 254 640 523 337 172 320

North West 1237 11 881 71 484 93 992 542 166 806 425

Northern Cape 1501 5 273 233 634 69 753 602 136 938 547

Limpopo 1209 12 722 54 575 129 502 792 205 305 630

Western Cape 8544 11 653 3100 8 096 187 347147 021

TOTAL 48 463 117 326 810 292 1 028 406 585 3 052 929 254

Source: DLA (2004)

DISAGGREGATING THE DATA ON RESTITUTION

Counting restitution claims has become a favourite pastime of analysts. Disaggregation is very revealing of the multiple truths about restitution - about its significant achievements and substantial limitations. Equally, though, statistics can be used to service just about any argument about restitution.




The number of claims settled is now more than half of the original total. This result has been frequently, and erroneously, understood to indicate that the programme is more than halfway complete. In a classic illus- tration of "apples and oranges," this inaccurate conclusion results from conflating different types of claims: those involving individual households with those involving entire communities; those pertaining to small urban plots with those applying to large swathes of high value agricultural land; those involving cash compensation as recognition of loss and suffering with those involving the restoration of land and related resources. The vast majority of settlements, so far, are of urban claims receiving cash compensation. In some group claims, each individual household is cited as a settled claim.

Because of the multiple ways that rural claims are counted, official statistics are unreliable. By December 2002, official data reported 10 836 rural claims as settled (CRLR 2002b). A year later, this number had dropped to 5 833, of which about a half involved cash compensation (CRLR 2004). An analysis conducted in the first half of 2003 underscores the importance of focusing attention on a specific category: those rural claims in which land has been restored. Although 36 488 claims had been settled by March 2003, only 185 rural claims had been settled with the restoration of land (Hall 2003). The small number is misleading by itself since these were mostly large community claims involving substantial areas of land and accounting for a large amount of the total cost of restitution awards. Even so, this progress must be assessed in relation to the task ahead.

The total number of claims is a moving target; the data change as multiple claims are consolidated for the purposes of settlement and others are split up. The number of rural claims still outstanding is also not entirely clear. From official sources, it seems that approximately ten thousand are outstanding; but earlier data reporting the claims as lodged suggest the number should be closer to eighteen thousand (CRLR 2001a, 14; Minister of Agriculture and Land Affairs 2003). While the precise number of rural claims settled is uncertain, what is clear is that restitution has not yet made significant progress in rural areas and has hardly begun to face the likely time, cost, complexity and, potentially, conflict involved (Hall 2003).

Protecting Property Rights and Transforming Property Relations A complexity in the implementation of restitution arises from the constitutional protection of property rights and the decision to rely on negotiated sales at market price. The compromise reached at CODESA, and confirmed in what were arguably the most controversial debates in the Constitutional Assembly (Walker 2003), was entrenched in Section 25(1) of the 1996



660 CJAS / RCEA 38: 3 2004

Constitution as follows: "No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary depri- vation of property" (South Africa 1996, Section 25(1)).

The right to return for the millions of the dispossessed and their descendants has been recognised, but it is offset by the constitutional entrenchment of the established property rights of existing owners.

Nevertheless, these rights are not inviolable; the constitution provides for

expropriation on various grounds, including the achievement of restitution. To balance these competing rights, a bureaucratically mediated, in some cases judicially mediated, process has developed. The right to restitution is also not absolute. Its realization in practice is contingent on the current owner being a "willing seller" at the price offered, or on the willingness of the state to expropriate. The Commission has complained of "exorbitant land prices and uncooperative white farmers" (CRLR 2003d, 5). While this

may be true, the policy itself makes restitution costly and reliant on the

cooperation of landowners. The process provides owners with substantial

price-setting powers and, in the absence of expropriation, an effective veto on the restoration of land to claimants.

Hendricks and Ntsebeza (2000) and Hendricks (2004) have argued that

given the historical injustices involved in the land question, the protection of existing property rights in the 1990s amounted to legitimising "colonial land theft." Since, in their view, the constitution preserves property relations established through colonial and apartheid dispossession, the rights of the dispossessed are subordinated to those of current owners. Land reform in South Africa is thus seriously impeded by constitutional recognition of the legitimacy of precisely the relations it seeks to transform. From this

judgement, they conclude that far-reaching land reform cannot be achieved within the existing constitutional framework.

However, the constitutional arrangements established in the democratic transition did try to strike a balance between respecting the status quo and providing for transformation. While protecting ownership rights, the constitution also explicitly empowered the state to expropriate property in the public interest, including "the nation's commitment to land reform"

(South Africa 1996, Section 25(4)). Whereas, previously, the law permitted expropriation only for "public purposes," the new arrangements made

possible the transfer of property from one private owner to another. Yet the state has resorted to expropriation only in two restitution claims -

Boomplaats in Mpumalanga (where it was later revoked) and Farmerfield in the Eastern Cape. The reluctance to use these powers stemmed from a political decision to adopt the "willing buyer, willing seller" approach, as advo- cated by the World Bank during the democratic transition (World Bank

1993). While this policy framework applies primarily to the redistribution




programme, the commitment to limit state interference has meant that restitution has also been premised on negotiated sales.

The government recently extended its powers in the Restitution of Land Rights Amendment Act 48 of 2003, which empowers the Minister of Land Affairs to expropriate property for restitution (and other land reform

purposes) without a court order (South Africa 2003a). This step is in line with the previous shift in 1999 from settling restitution claims through judicial means to proceeding by an administrative process. The Commission justified the change on the grounds that expropriation needed to be a credible threat. It decided that judicious (rather than judicial) use of

expropriation in selected cases of restitution could have an important demonstration effect. The state is likely to proceed by this route only rarely when other means fail to bring owners of land under claim to the negotiat- ing table. Unsurprisingly, the new powers sparked substantial debate, with claimants and land rights groups applauding it and calling on government to use its new powers, while landowners and the foreign, as well as some

local, media drew parallels with the state confiscations taking place in Zimbabwe. In any case, the amendment act gives the state substantial and thus far unused room for manoeuvre. Until the state decides to use these

powers, the constraints on land restitution will remain. It is important to

recognise that the impediments to more decisive action are political, not

essentially legal or constitutional.

Redress from a Restrained State Restitution claims are directed to the state, rather than against current

owners, but since the development of the land restitution policies, the

government has adopted its neo-liberal macroeconomic programme. The result is a restrained state. In the Growth, Employment and Redistribution

(GEAR) strategy of 1996, there was a commitment, inter alia, to reduce the

budget deficit and shrink the public sector (South Africa 2003b). This section briefly considers two effects of the restrained state on land restitution: insufficient administrative resources to process land claims and insufficient funds to settle them, both by-products of the GEAR policies.

INSTITUTIONAL CONSTRAINTS

Prime among the Commission's institutional challenges are inadequate numbers of staff, high turnover, and a lack of delegated authority, all of which result in delays in settling claims. Levels of staffing in the commission are widely agreed to be insufficient. In February 2003, only 342 of its 433 posts were staffed (CRLR 2003b, 24). The regional commissioner in

Limpopo estimated that a fourfold increase in staffing levels would be needed to deal with existing claims. Facing serious shortages of staff, the



662 CJAS / RCEA 38: 3 2oo4

Commission relies extensively on contracted service providers. A donor- funded and outsourced "Validation Campaign" enabled the Commission to validate almost all claims by early 2003, but not to pursue them to later stages. After an interval of a year, another donor-funded and outsourced "Verification Campaign" emerged to verify the details of about 26 000 claims by June 2005 at a total cost of about R66 million. Verification involves determining for each claim who was dispossessed of land rights, who their descendants are, the nature of the rights in question, relating these findings to the land under claim, and securing the nomination of claimants' representatives through, for example, powers of attorney (CRLR 2003c).

There are differing views within the Commission on the impact of outsourcing on both its administrative processes and their outcomes. The former Chief Commissioner, Wallace Mgoqi, argued in favour of outsourcing and limiting the role of the Commission to identifying the tasks to be outsourced, making contracts with service providers, and managing them.4 However, other Commission staff allege that there are not enough appro- priately skilled service providers and that they are unevenly distributed across the country (most are based in metropolitan areas). Furthermore, the Commission's fieldworkers and community liaison officers lack the time and skills to manage the service providers who are available. Outsourcing has the potential to relieve pressure on the Commission, but comes with limitations. Political support to invest heavily in institutional capacity is not likely to be forthcoming, given the current budgetary constraints on expansion of the public service. The effects of inadequate staffing levels are compounded by the onerous procedural requirements of restitution, as currently defined. In the circumstances, restitution can be expected to proceed slowly. Progress may be further constrained as the urban claims are finalised and work begins on the large numbers of complex rural claims.

FISCAL RESTRAINT

At an early stage of the transition, the ANC agreed that the costs of land reform were to be borne by the state (and therefore by society at large), rather than by those who happen to be the current owners of claimed land (Claassens 1994, 103). Entrenched property rights constrain land reform not only by limiting the availability of land, but also by increasing its cost. Market-led land reform is inherently costly. Lack of money, however, was not the major problem initially. Up until the last two years, the Commission had not succeeded in spending its annual allocation in the Land Affairs budget. Expenditure increased rapidly once the Commission was empowered to make offers of cash compensation. As the number of settled claims accelerated, the Commission secured further budget




Figure 1: Restitution Budget Trends 1997/98 to 2006/07

1600

1400 -----

-+- Total 1200 ------

,1000 -+ Capital -- - I000 ...........

800 r 0 0 -~? --- ??? ???-?-?--- ------- ---?---- ?----- ?---- -----?------ - -- - ------ ----?------- -?? ~ ?? ????? ?? ?-------?-?-- 0

200

6 0080 0 ............................................. .............. ------.. ------------------------------... --. ......... ----------------------...............

4 0 0 ................. ................. ..---............ ................. .................. ... ---...... ...................... ................. .................

\\ v \, \O \O \, \,. \O2 \, \O ,,;

2 0 0 - --------------------- -----------------------------

Financial year

Source: National Treasury (2004) * Notes: The figures are not adjusted for inflation. Figures for 2005/06 and 2006/07

are projected, not actual.

increases (see Figure 1). There has been rapid growth in the restitution

budget over the past few years, particularly in the funds for awards to

claimants, of which about a third is spent on land. Very little money is available for overhead costs - only seventeen percent of the total allocation and less than a half of this amount goes for staffing (National Treasury 2004, 837). The budget allocation for restitution in 2004-05 was R933 million, a nine percent increase from the previous financial year.

If the cost of rural claims already settled is in any way indicative of the

likely cost of those still outstanding, which is by no means certain, very substantial funds will still be needed. Land awards, thus far, have cost an

average of over R1.7 million per claim. In addition, substantial amounts have gone towards settlement planning and payment of discretionary grants to claimants. However, there are no reliable cost estimates of what is needed to settle outstanding claims. They will not be forthcoming as long as key questions remain unanswered. First, how much land is under claim?

Second, where is this land? Third, what is its market value? There is the possibility of using expropriation to minimise the capital

cost of restitution, but it is often exaggerated. Compensation to owners must be "just and equitable," according to the Constitution. The Constitution also provides that factors other than market price can be taken into account, including the current use of the property, the history of its

acquisition and use, the extent of past state subsidy in improving the property, and the purpose of the expropriation (South Africa 1996, Section 25(3)). These provisions empower the state to reduce the cost of land reform and



664 CJAS / RCEA 38: 3 2004

to avoid the "double subsidy" that would be involved in paying market prices to white farmers whose land values were inflated by apartheid-era subsidies.

While there is widespread agreement on the need for further funds for land reform in general and for restitution in particular, the consensus is superficial. To fund restitution adequately would require budget increases of an order of magnitude far greater than any yet conceived and would require levels of political support not currently in evidence. More affordable alternatives, such as proceeding by expropriation at below market rates, are even more politically contentious. There is little to indicate that such methods will be pursued.

Agrarian Change: Rights and Development Restitution in South Africa seeks a balance between recognising rights, on the one hand, and promoting development, on the other. Land reform is supposed to restore identity and promote reconciliation, while redistribut- ing wealth and strengthening the rural economy (DLA 1997). Restoring rights and promoting development are competing objectives and, in some cases, irreconcilable. Here are two interrelated points. First, in the absence of adequate post-transfer support for claimants, restoring land rights is not likely to lead to development (CRLR 2003bd).5 As one commentator noted as early as 1997, "justice alone is not something you can eat."6 Second, in the absence of substantial state support, the priority given to the preservation and development of the rural economy has promoted risk-averse and non-transformatory options, leading to outcomes that subordinate the aspi- rations of claimants to the pragmatism of preserving existing land uses.

The institutional separation of Agriculture and Land Affairs in different departments and the continued schism between the two in terms of policy, administration, and budget mean that the transfer of land has not been strongly linked to support for agricultural production. All three of the DLA's Quality of Life reports, its prime monitoring tool, have identified inadequate or absent post-transfer support as a key shortcoming (Jacobs 2003). Very little is known in concrete terms about the impact of restitution on livelihoods and agricultural output. Certain trends have, however, been identified. While there are some clear success stories, in general very little agricultural activity has been happening on farmland restored via restitution (DLA 2003). In some cases, only a few of the successful claimants have moved onto the land; people opt to retain existing precarious livelihoods where they are, or "straddle" the two by sending some family members to live and work on the restored land (Andrew, Ainslie and Shackleton 2003). There is another ominous development. A small but undisclosed number of communal property associations (CPAs), through which groups jointly hold




and manage their land, have been liquidated, and the land sold off, largely due to indebtedness. In the case of the #Khomani San claim in the Northern Cape, the DLA intervened to prevent the land from being sold in execution of debt (Groenewald 2002). The matter is of sufficient concern that the Director-General of Land Affairs has convened a "land loss" committee to look comprehensively into this phenomenon.

Without funds for development, restitution could become a case of "tin toilets and that's it," a phrase used by Monty Roodt to describe the problem of "reverse dumping" - in effect, a return to apartheid-era outcomes, with people assigned to undeveloped land incapable of providing decent livelihoods.7 The difficulties involved with translating "rights" into "development" are now well recognised by the Commission, which has, over the past few years, acquired a more developmental orientation. However, the Commission itself is not a development agency - it is neither appropri- ately constituted nor funded for such a role. Nevertheless, there are some signs of progress. Settlement Support Development and Planning (SSDPs) units have been established in all regional commissions to oversee the implementation of post-transfer development plans by a range of other state and non-state agencies (Hall 2003). The Commission has also entered into a trilateral agreement with the Land Bank and the National Development Agency (NDA), paving the way for restitution claimants to access loans and receive mentoring and management support (Jacobs 2003). In 2004, for the first time, the Department of Agriculture made budgetary provision for a Comprehensive Agricultural Support Package, which is to assist newly settled farmers; an amount of R750 million is to be made available over a period of three years, of which a portion is to be earmarked for certain priority land reform beneficiaries - and, presumably, this will include some land restitution groups (National Treasury 2004).

While institutional, programmatic, and budgetary changes have been made to link rights to development, these are subject to the macroeconomic framework that governs the state's priorities for agriculture. GEAR places emphasis on modernisation to make farming more competitive in an environment of trade liberalisation and export-led growth, following rapid deregulation and the removal of direct and indirect subsidies (South Africa 2003b). Public funding to support agriculture plummeted from the late 1980s to the late 1990s, as production subsidies were abolished, and other services were privatised or subjected to cost recovery. Government spending on agriculture fell rapidly to R2.5 billion in 2001, barely forty-five percent of the budget in 1988 (Vink and Kirsten 2003, 6). There are contin- uing trends toward capital-intensive methods, job shedding, productivity, and efficiency. These conditions mean that new entrants, including the beneficiaries of land restitution, and particularly those unable to sustain



666 CJAS / RCEA 38: 3 2004

high risk and high debt, face an especially hostile economic climate. The prevailing policies for commercial agriculture are not conducive to convert- ing access to land into improved livelihoods for substantial numbers of the rural poor.

As restitution has become more "developmental," it has adopted some of the trappings of the discretionary redistribution programme (for example, business planning, joint ventures, and mentorship), which itself has shifted the emphasis from supplying land for the rural poor to supporting a class of black commercial farmers. In practice, the restoration of land risks becom- ing subordinated to economic considerations, especially the priority given to maintaining production levels in the rural economy. In these circumstances, land restitution may come to be seen more as a threat to the agricultural economy than as an instrument for needed rural transformation; attention has focused on how to minimize the impact of restitution rather than how to harness its transformatory potential. For instance, subdivision of farms to encourage small-holder production has not been actively pursued. Instead, most community claims result in group ownership of land and collective production.

As restitution has become more developmental and government more concerned about the possibility of land claimants failing to farm success- fully, the Commission has increasingly opted for ways of settling claims that enable existing land uses to remain unchanged. These include: (1) Restoration of land to claimants but subject to their agreement to lease it to existing operators for a defined period - an example is the Makotopong claim in Limpopo, which has leased property to the major tomato producer ZZ2;8 (2) Joint ventures between claimants and commercial partners - for example, the Mdluli claim in Mpumalanga, which involves leasing back the land to a major horticultural exporter, H.L. Hall and Sons, as a means for claimants to acquire equity in that company (Ntsikelelo-Moya 2003); (3) Co-management agreements between claimants and national or provincial parks boards with respect to claims on environmentally protected areas - for example, Makuleke in Limpopo (Magome and Murombedzi 2003) and Dwesa-Cwebe in the Eastern Cape (Palmer, Timmermans and Fay 2000).

The evidence suggests that the difficulties involved in successful land restitution are not due only or mainly to the much recognised problem of "inadequate post-transfer support." While further support is certainly needed, the problem has other causes and is not easily remediable. The economic conditions facing claimants attempting to farm on their newly restored land mitigate against success. Land reform and post-transfer support cannot themselves offset the effects on successful claimants of adverse agricultural, fiscal, and trade policies. As Walker (2003) points out,




there are limits to what land reform can achieve. The argument here is that the limitations are not intrinsic to restitution policies themselves; they are structured by a hostile macroeconomic environment that can be changed. If conditions cannot be created in which poor people are able to survive and improve their livelihoods on the basis of restored land rights, then these land rights are likely to be lost again, permanently, through the apparently neutral operations of the land market. Rather than inserting claimants into an otherwise unaltered system of commercial farming, which pushes them toward failure, a new alignment of rights and development needs to be explored within a wider process of agrarian restructuring.

Conclusion Present debates that focus on the need to speed up the settlement of claims have deflected attention from the central question of how restitution can contribute to a wider process of agrarian restructuring. Achieving this outcome is the real challenge.

In 2002, President Thabo Mbeki announced a deadline of December 2005 for the finalization of all claims, at which time the Commission is scheduled to be closed. Deciphering the motives for the new insistence on finalizing restitution ahead of its original schedule involves a degree of speculation, not least because the deadline is so arbitrary. If the programme were to continue in its current form, it would take another few decades to complete, at a total cost of tens of billions of rands. It is not surprising, however, that a government with Mbeki's fiscal priorities would shrink from the prospect of large calls on the budget into an indefinite future. It is possible that government wishes to see the frustrating "unplannability" of restitution (Du Toit et al. 1998) off the table so it can pursue the more controllable and plannable work of land redistribution. Precisely how this deadline will be pursued cannot be foreseen, but a variety of "fast-track" solutions, including the further promo- tion of cash compensation and the linking of restitution with redistribution, can be expected in the coming months.

The undue haste to complete land restitution in 2005 may, in effect, thwart the opportunity to achieve needed transformation of social and economic relations and the racially skewed pattern of landholding in the countryside. While more radical means of acquiring and transferring land - and thereby speeding up restitution - are needed, and may find political support, they will not by themselves be sufficient. The current economic and policy environment mitigates against success for new entrants to the farm economy.

This article argues that the political settlement and constitutional protection of property rights fundamentally shaped efforts to redress the legacy of land dispossession. However, the most significant limits to land



668 CJAS / RCEA 38: 3 2oo004

restitution today are the result of the state's commitment to shrinking the role of government and imposing its neo-liberal macroeconomic policies. Effective restitution remains a radical idea that challenges the fundamen- tals of national economic policy in that its success requires a degree of interference with property markets and the vested interests of landowners, the

transfer of significant assets to the poor, major claims on the fiscus, and the

provision of ongoing public support in order to support livelihoods.

Attempts to pursue historical justice and to promote development in a context of neo-liberal reforms that restrain the state severely curtail the enormous potential of land restitution to drive a wider process of rural transformation.

Notes 1 See Walker (2003) for an outline of the debates surrounding property rights during the constitutional negotiations. 2 Subsequently, there have been sporadic and unsuccessful calls by both rural and urban groups for the process to be reopened to allow those who were unaware of the

process to lodge claims. 3 In each case, the effective date is the end of the financial year. The figures are cumulative. 4 Personal communication with Wallace Mgoqi, Chief Land Claims Commissioner, Department of Land Affairs, Pretoria, 2002. 5 Personal communication with Wallace Mgoqi. 6 Personal communication with Catherine Cross, land reform consultant, Durban, 1997. 7 Personal communication with Monty Roodt, Department of Sociology and Industrial Sociology, Rhodes University, Grahamstown, 2003. 8 Personal communication with Marc Wegerif, Director, Nkuzi Development Association, Polokwane, Limpopo, 2002.

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land restitution in south africa: rights, development, and the restrained state

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