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Land Reform in South Africa: An Overview

Published online by Cambridge University Press:  28 February 2019

Extract

South Africa suffered a long history of colonization, racial domination and land dispossession that resulted in the bulk of the agricultural land being owned by a white minority. Black people resisted being dispossessed but were defeated by the superior arms of the newcomers. As Lewin has written, “whatever minor causes there may have been for the many Bantu-European wars, the desire for land was the fundamental cause.” Despite the claims that South Africa was largely uninhabited at the time of the arrival of Europeans, documentary evidence shows that in fact the land was inhabited. Thus the journal of the first European to settle at the Cape, Jan van Riebeeck records incidents of confrontation with the indigenous Khoi-khoi (or Hottentots) in 1655.

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Proceedings
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Copyright © 2004 by the International Association of Law Libraries. 

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References

1 Lewin, J. The Native in South Africa, Witwatersrand University Press, Johannesburg. Quoted in Letsoalo, “Land ‘Reforms’ – State initiatives” in de Klerk, Michael, ed: A Harvest of Discontent: The Land Question in South Africa, 1944. 99-111 at 100.Google Scholar

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17 Restitution of Land Rights Act 22 of 1994.Google Scholar

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28 According to the Chief Restitution Commissioner, the average price has been between R1000 to R4000 per hectare, which is already expensive. However, in the case of the Tenbosch farms in Mpumalamga, the owner demanded R23000 per hectare and R45000 per hectare for the other. Thus one farm of 150,000 hectares would cost R1.2 billion, much more than the restitution budget for the year. See Gwanya, , supra fn. 23.Google Scholar

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30 According to the CRLR, although the allocation for restitution was substantially increased in 2003-2004 from R391 million to R800 million, the Commission required R1.2 billion to finalize the claims prioritized for that year and a similar amount was required for the following year. Gwanya, 2003 supra fn. 23.Google Scholar

31 CRLR 2003: Annual Report April 2002-March 2003. The number of claims reported has increased from the 68,878 previously reported as it was discovered during the validation exercise that some claim forms included more that one plot of land or different land rights.Google Scholar

32 CRLR 2004, “Cumulative Statistics as at 29 February 2004” available at http://land.pwv.gov.za/restitution. Accessed 12/04/04. The statistics show that as of 29 February, 48,463 claims had been settled. Recent research, however, has disputed the accuracy of CRLR statistics. See Hall, 2003 supra fn. 22 at 27-29.Google Scholar

33 According to the Department of Land Affairs Annual Report 2001-2002 commercial farms consisted of 82 million hectares in 2000.Google Scholar

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35 CRLR 2003: Annual Report April 2002-March 2003 p. 5. The Annual Report states that although rural claims constitute only 20% of all claims, they affect the largest numbers of the rural poor and they involve the largest tracts of land. It gives the example of one claim in Kwazulu-Natal involving 43,000 hectares and more than 1000 households.Google Scholar

36 CRLR 2004 supra fn. 34. It is stated here that of the 5973 rural claims settled, 2743 have involved restoration, 3225 monetary compensation and 5 alternative remedy.Google Scholar

37 Hall, 2003 supra fn. 22 at 11.Google Scholar

38 The Commission claims that it encourages claimants to opt for land but adds: “Most urban claimants have demanded that it is their right to choose financial compensation, which enables them to resolve many survival problems, which they are facing.” Gwanya, 2003 supra fn. 23 at 6.Google Scholar

39 Ibid. 8.Google Scholar

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41 Ibid. par 93.Google Scholar

42 Ibid. par 94.Google Scholar

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48 Grootboom supra par 41. This limitation is consistent with Article 2 of the International Covenant on Economic, Social and Cultural Rights which states: “Each State Party to the present Covenant undertakes to take steps, individually and through international cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means …”Google Scholar

49 See for instance: Soobramoney v Minister of Health (Kwa Zulu-Natal) 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC) par 29 and Minister of Health and others v Treatment Action Campaign and others 2002 (5) SA 751 (CC); 2002 (10) BCLR 1033 (CC) par 37-38.Google Scholar

50 Provision of Land and Assistance Act 126 1993.Google Scholar

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57 Hall, R. 2003 supra fn. 54. Hall, however, observes that these figures do not distinguish between land transferred under section 4 of ESTA and land transferred under other redistribution mechanisms.Google Scholar

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70 In the period 1995/96 to 1998/99 the Department underspent its budget by a total of R1.4 billion, spending less than half its allocated budget for the period: Streek: “Land Minister under spends by R1.4 billion Mail & Guardian 26 May. However, it must be pointed out that more recently, the Department has been spending its allocation. According to the Director-General, by December 2002 that financial year's budget was 94% spent. Department of Land Affairs Media Briefing 2002, 03/12/2002. http://land.pwv.gov.za. Accessed 05/08/2003. In 2003 the DLA spent 99% of its budget. “Report by the Director General to the Agriculture and Land Affairs Portfolio Committee 4 Feb 2004. Summary by the Parliamentary Monitoring Group: http://www.pmg.org.za.Google Scholar

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72 White Paper on South African Land Policy, supra. Box 4.3.Google Scholar

73 Ibid. Box 4.4.Google Scholar

74 Information from a law student whose family was involved in such a scheme in the Western Cape.Google Scholar

75 White Paper on South African Land Policy, supra. 28.Google Scholar

76 Anderson, and Pienaar, , “Municipal Commonage” Policy Brief No. 6 PLAAS University of the Western Cape, 2004.Google Scholar

77 Ibid. quoting figures from DLA.Google Scholar

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83 There have been several drafts of the bill. The current version is the Communal Land Rights Bill 2003’ which has been before Parliament since late 2003.Google Scholar

84 In Ngcobo v Salimba, Ngcobo v Van Rensburg [1999] 2 All SA 491 (A) it was held that all the three requirements must be met before a person can be classified as a labor tenant.Google Scholar

85 A material breach would be, for instance, assault, threats to the owner or other members of the farm community, unreasonably denying the owner access to the land occupied etc. See Van Zuydam v Zulu [1999] 2 All SA 100 (LCC).Google Scholar

86 See Klopper v Mkhize and others 1998 (1) SA 406 (N); Tselentis Mining (Pty) Ltd v Ndlalose and others 1998 (1) SA 411 (N) and Ngcobo v Salimba; Ngcobo v Van Rensburg supra fn. 84.Google Scholar

87 The Land Affairs General Amendment Act 51 of 2001 amended ESTA by deleting the exclusion of labor tenants from the definition of occupier.Google Scholar

88 ESTA ss6-10.Google Scholar

89 Land Affairs General Amendment Act 51 of 2001 amends ESTA by inserting ss6 (2) (dA).Google Scholar

90 Ibid. inserting new S.6 (5).Google Scholar

91 For instance applicant in Nhlabathi v Fick [2003] 2 All SA 323 (LCC) argued that the right to bury in S6(2) dA was unconstitutional. However, the court found that the deprivation was justifiable in a democratic society based on S 36 of the Constitution.Google Scholar

92 Even some judges have expressed their dislike for land reform legislation. In Joubert v Van Rensburg [2002] All SA 473 (W) the judge stated that ESTA was unconstitutional in that it violated the right to property although the issue had not been raised in the pleadings or argued before the court. Both the Supreme Court of Appeal [Mkangeli v Joubert [2002] 2 All SA473 (A) and the Constitutional Court Mkangeli v Joubert [2001] (4) BCLR 316 (CC) subsequently disapproved of the statement and the political stance of the judge in Joubert v Van Rensburg.Google Scholar

93 Republic of South Africa: Communal Land Rights Bill [B 67B-2003]. Available at http://www.pmg.org.za. Accessed 20/02/04.Google Scholar

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96 Traditional Leadership and Governance Act 41 of 2003.Google Scholar

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