Land victims had a decade to claim

There are many reasons to be wary of Rural Development and Land Reform Minister Gugile Nkwinti’s plan to ask the Cabinet to reopen the land claims process.

The original period for individuals and communities who were dispossessed of their land during the colonial and apartheid eras to claim either restitution of ownership or compensation lasted for about three years, from shortly after the advent of democracy to December 1998.

However, the closing date for claims was extended twice — Mr Nkwinti handed over compensation cheques totalling R16m to beneficiaries in Kenton-on-Sea as recently as this week — taking the total claims period to more than a decade. Surely that is long enough for even the most remote, rural and least educated South Africans to have been informed of their rights.

There is already evidence that shifting the goal posts has encouraged spurious claims from chancers hoping for a windfall. And since the majority of successful claimants have opted for financial compensation rather than to get their land back, the process has done little to increase black property ownership, especially in rural areas.

As necessary as the restitution process undoubtedly was, and as laudable as its goals may have been, there have been unintended consequences. One of these is the effect the uncertainty over ownership has had on agricultural production. Commercial farmers have been reluctant to invest in their businesses while there are land claims hanging over their heads. Extending the claims window yet again will worsen the situation and place further pressure on a sector that is already in decline.

Finally, the ministry has suggested the claims window will be extended to include the colonial period before the promulgation of the 1913 Land Act, which removed the right of black South Africans to own land in 80% of the country. This would complicate an already complex process from a legal perspective, since ownership records that far back are notoriously sketchy, and risks bogging the process down in a flood of unprovable claims based on anecdotal evidence passed down through the generations by word of mouth.

That said, there are few issues as emotionally charged or politically sensitive as land ownership in SA, so it would not be wise to dismiss Mr Nkwinti’s proposal on solely practical grounds. The country’s shameful history of dispossession and exploitation of the indigenous population demands that no stone be left unturned in our efforts to rectify past injustices. It may be naive to hope that populists like Julius Malema will refrain from using the land issue to stoke racial animosity for political ends if all possible claims are considered, but that is no reason not to try for that ideal.

However, if the claims process is reopened, it is essential for the country as a whole that the criteria be clear and that a filtering mechanism be put in place to deal with claims timeously and avoid the creation of an industry that is an end in itself. Mr Nkwinti said research by his department showed that the claims process was "poorly done" and prejudicial to potential claimants, such as those who were out of the country or prevented by their personal circumstances from taking advantage of the claims window.

This needs to be explored further in a transparent manner; if found to be true it may be possible to reopen the process only for those who can show on the balance of probabilities that their failure to meet the deadline despite having a decade to do so was through no fault of their own.

It may also be an opportunity for the government to start addressing the problems caused by so few restitution beneficiaries opt ing to return to the land of their forefathers. It is no good forcing city dwellers to take up farming, but simply handing out cash is not serving the national cause either.

Restitution and land reform should not be conflated, but if we want to avoid conflict in the future it makes sense to ensure that the goals at least complement each other.

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