The report, titled Monitoring and Investigating the Systemic Challenges Affecting the Land Restitution Process in SA, reveals a significant number of problems including under-staffing, lack of technical skills and inadequate research capacity as some of the challenges that have hindered the restitution of land rights. The Commission remains concerned that these systemic challenges and gaps remain unresolved; and that, although the number of outstanding claims is not reliable as the system of counting has changed so often, thousands of people have been waiting for almost two decades to have their matters dealt with. Some documents appear to have been lost and there is also no clarity about how the existing claimants will not be prejudiced by legislative amendments.

The decision by the president to re-open the land claims for a further five years, from 30 June 2014 to 30 June 2019 constitutes an important step to enable people who were unable or inadequately prepared to present their claims prior to the 1998 deadline for submissions. However, the Commission is of the view that in order to address and remedy the land restitution process in South Africa, it is necessary to deal with the challenges identified over the past 20 years; and not to depend on legislative changes that fail to address issues that have been identified as needing to be remedied.

The Commission conducted hearings on Land Restitution on 12 November and 05 December 2013 to monitor and investigate the Systemic Challenges Affecting the Land Restitution Process in South Africa. The Commission convened a hearing in terms of section 9(1)(c) of the Human Rights Commission Act, 54 of 1994 (HRC Act) which gives it powers to call on Government to provide responses on progress made towards the realisation of human rights.

The hearings were propelled by Land Restitution complaints and queries which are received by the Commission on a regular basis. As at August 2013, the SAHRC had 193 property and land related complaints nationally. Sixty percent of these complaints were at the investigation phase, 37% at assessment phase, and 3% at litigation phase. While some of the complaints were on the issue of the 1998 deadline, there were a number of challenges raised which made resolution of existing claims difficult.

During the hearings, the Commission received submissions from the Department of Rural Development and Land Reform (DRDLR), the Department of Public Works (DPW), the Commission for Restitution of Land Rights (CRLR), the Chief Surveyor General (CSG), and the Land Rights Management Facility (LRMF) and other parties who have a direct relationship to the Government’s implementation of the land restitution process.

FINDINGS

The hearings revealed the following:

•    The DRDLR and the CRLR identified poor research methodology that informed the land claims. While the CRLR acknowledged difficulties with regard to how the existing claims have been recorded and captured in a number of different ways over time and problems that have occurred as a result of documents and files being lost, there was no indication of how the CRLR intends to deal with these problems.
•    The backlog of unresolved restitution claims raises concerns that claims filed under the new restitution period might further undermine the fulfillment of existing claims.
•    Significant challenges in relation to the calculations and determination of the value of land from which individuals and communities were historically dispossessed, but which today have to be seen in the context of subsequent developments and uses.
•    SAHRC is concerned at the absence of capacity with the CSG to do historical research work and, if there is a proposal to recommend resettlement, to provide a proper survey of the land and complete register of all land owned by different spheres of government and parastatals, to help the Department and community develop plans for the future given the fact that this comes two decades into our democracy.
•    The SAHRC is also concerned about the fact that the cadastral surveys of million hectares of land have not been undertaken and the plans and resources necessary for this do not appear to be in place. Sub-divisions and title deeds have not been finalized and registered. This is particularly relevant in cases when the same land is subject to competing claims – a phenomenon that the SAHRC believes will increase now that the lodgement of claims has been reopened.
•    The Commission understands that the CRLR is tasked with facilitating the policies of the state in relation to restitution, acting first to secure the interests of those whose lives were uprooted and destroyed through discriminatory regimes of colonialism and apartheid. It is the Commission’s view that these interests will not at all times be the same as the DRDLR and thus is concerned that in the current set-up this is unclear and that the CRLR defers to the DRDLR priorities in relation to the settlement of claims and the post-settlement arrangements which the CRLR ought to confirm and ensure that there are arrangements in place to support prior to the finalization of the settlement.

The Commission will follow up with all parties in respect of whom recommendations were made, to facilitate their implementation.
This report will has been sent to Parliament and will be made available to the public on our website www.sahrc.org.za.

ENDS

Issued by the SA Human Rights Commission
Isaac Mangena
Spokesperson