by Amanda van den Barg

RESTORING DIGNITY, ONE HECTARE AT A TIME

A means to address the historical legacies of both Apartheid and colonialism, which saw a vast amount of the countries resources transferred into the hands of the few, The Commission on Restitution of Land Rights (CRLR) has made great strides in restoring the land to various individuals and communities.

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Land restitution has been one of the critical issues facing the government since South Africa achieved democracy in 1994 and the achievements made in this regard since the promulgation of the Restitution of Land Right Act 22 have been significant.

The legal basis for land restitution was provided by the 1993 Interim Constitution, section 25(7) of the 1996 Constitution and the Restitution of Land Rights Act. The Restitution of Land Rights Act 22 was later promulgated in 1994 in terms of the Interim Constitution of the Republic of South Africa Act 200 of 1993 for that purpose.

The Act also established a Commission on Restitution of Land Rights in 1995 under a Chief Land Claims Commissioner as well as Regional Land Claims Commissioners representing the nine provinces, all tasked with the mandate of assisting claimants in submitting their land claim, receiving and acknowledging all claims lodged and advising claimants on the progress of their land claim.

The Restitution Act was later amended in 1997 to bring it in line with the 1996 Constitution shifting the approach from a judicial one to an administrative one in 1999. Rather than having to go through the Commission on Restitution of Land Rights, claimants were allowed direct access to the Land Claims Court and the Minister of Land Affairs was given higher powers to settle claims through negotiation.

The primary objective of the CRLR is aimed at dealing with the administration of land claims and compensation of the present owners and restitution to the claimants, including screening all land claims and identifying those who qualify in terms of the Constitution and the Restitution Act and attempting to solve these claims by administrative or mediation procedures.

Nomfundo Ntloko-Gobodo, Chief Land Claims Commissioner and an activist at heart, explains that land restitution—only one of the four pillars that make up the Department of Rural Development and Land Reform’s Land Reform Programme—is crucial to achieving the vision of an integrated, inclusive economy.

“As the Commission, our focus is not land reform but land restitution, which is just one pillar. Land reform really falls under the umbrella of the department, and this umbrella also covers land tenure and administration, which deals with upgrading tenure rights and the redistribution and proactive acquisition of land which would, for example, see suitable land going to emerging farmers. Under this umbrella, there is also a mandate to create development opportunities for this land, and the restitution of land is then specifically mandated by the constitution to address the issues of our past. Here we look at those individuals who dispossessed of their land because of past laws.

“For us, it’s about ensuring that restorative justice is served, and our practice is very different to the other three pillars. That being said, all four of these pillars have to work together, particularly when it comes to opportunities to either acquire or develop land and we, as the Commission, work to identify where these people lost their land right, we address it and where necessary, provide them with an adequate alternative solution,” she says.

An overview of the last 20 years

“The last 20 years have been a rollercoaster and I often remind people that when we started, South Africa was doing it for the first time. We have learnt a lot of important lessons and, of course, we have made a few mistakes along the way, but we have done a lot of good things too,” says Ntloko-Gobodo.

The first cut-off date for land claim applications was at the end of 1998, where the Commission’s office received a total of 80 000 applications by the end of that year. By March 2017, the number of unresolved claims had dropped to 6 700, leaving a lot of work that still needs to be done.

“What people often don’t understand is the complexity of the process of settling claims. They can be incredibly complicated, especially claims from individuals or communities in rural areas. Often we’re dealing with old boundaries, or the claimant will simply tell you that their land rights extend from under that tree to that river.

“Ultimately, however, the Act mandates us to assist them and claimants can be as vague as they like, but the obligation is always on us to unpack what their description of the land really means,” she explains.

According to her, another complication arises when land rights or claims overlap each other, with each claimant claiming similar tracks of land. This is also not extraordinary in the South African context when you take into account our history.

“One piece of land can, and often does, have different rights for different communities and it takes some time to try to unbundle all of that. There are also instances where we fail to reach a suitable agreement with a landowner, who just doesn’t see eye to eye or they’re simply not willing to participate. In that situation, we can’t just ride over them and this is why it’s important for people to understand the process,” says Ntloko-Gobodo.

“To address some of these challenges we work with a lot of different people, using whatever historical information is available as well as anthropologists and aerial maps, and we look at all of this before we say the claim is valid. This extra information also becomes very important in a case where we can’t get people from the two sides to agree, in which case we need to go to court, which can often make things even more complex. In some cases, this can take a really long time and cause a lot of frustration,” she adds.

While she admits that in the beginning, the CRLR was still learning to navigate all of these challenges, they have since had time to review their processes in order to ensure that the organisation is more efficient. This includes taking full advantage of the new technology and systems that have been made available in order for them to provide claimants with a better service.

“We often stop to ask ourselves if we would want to be a client. If the answer is no, then we know that there’s a problem. We need to look into whether or not their experience is a pleasant or traumatic one because we ultimately want to be seen as an organisation that is efficient, effective, fully understands its mandate and respects its client. We also want our clientele to understand that we are not the Department of Rural Development and Land Reform but the Commission and that means that our primary task is redress. Our history saw the taking of dignity and it is our job now to restore that dignity.

“That being said, we do take full advantage of the work done by the various departments, particularly those that speak to what we want to achieve and we collaborate whenever possible where we see that our clients can benefit,” she explains.

So far, the CRLR has impacted over 2 million beneficiaries, where 105 600 of those are female-headed household, acquired 3.4-million hectares of land at a total cost of R21 billion and offered financial compensation to claimants to the value of R12 billion.

“We also provide grants and to date, R37 billion of taxpayers money has gone towards this significant cause. We are at a point now where we are asking ourselves if we can we do it differently? I think, for now, what we have to do is make sure that we focus on those 6 000 claims mostly from KwaZulu-Natal, Limpopo, Mpumalanga, the Eastern Cape and the Western Cape. The Free State will likely be the first province to conclude all of the old order claims made.

The Commission often also experiences problems when dealing with communities who, while dealing with a claim, are united by a shared vision but start fighting about positions and money grants as soon as they have the land. According to the Commissioner, often the money given to the community does not end up in the right hands.

“This may still be one of the biggest challenges we face and restitution is supposed to benefit the most vulnerable members of that community, and if it doesn’t then we have not achieved our mandate. In any particular community, there is normally a gogo who stays with her grandchildren, she has nothing and this is why we use that gogo as a measure for ourselves. Where we provide restitution, that gogo must benefit and when she does, we know that everyone else has benefited too. The people who fight over the land, over the money are the ones who are then disadvantaging that gogo, where they should be elevating her grandchildren, giving them a step up from poverty,” she explains.

“It can’t be about the people who think that they know the most because they are often not looking to serve their community but fill their own pockets instead. When we were fighting Apartheid, these communities were standing up together, not because they were going to benefit but because they understood the principle, so what has changed?

“How is it possible that they are now not involved, but looking to the government to solve all of their issues. Rebuilding our nation is, I believe, a collective responsibility that we all must share,” Ntloko-Gobodo says.

On the other side of the table, the CRLR often deals with landowners and while, in the beginning, this part of the process may have been quite tricky at times, there is now a much better understanding of the Commission and why it does what it does.

“I think people have come to realise that you’re not left with nothing once the process has been completed and often, even claimants who receive the land still want to partner with the previous owners. Yes, sometimes people do get angry, and they don’t want to participate, and then we have to approach the court in order to expropriate the land through the old expropriation act. But, generally, we do find cooperation. Our staff also work extremely hard, and what may have started out as an archaic vehicle is really starting to turn around. We work very hard, be it weekdays or weekends, for these communities and my team is very passionate about their work. They understand that it’s not just a job, that it’s about giving dignity back,” she says.

Of course, for the CRLR, one of the most significant achievements is the communities themselves, many of whom have thrived off and made optimum use of the land they have been given. Some of these communities have even begun to provide for the future of their children by establishing bursary funds to finance the education of their children up to tertiary level.

Others are using their restored land to break into new markets, competing amongst the best in the country and in other international markets with their exports.

“And, despite the obvious challenges we have faced, the CRLR was still able to meet all of its performance targets for the 2016/17 financial year. We were able to settle 804 land claims against our annual target of 615 claims and we finalised 672 claims against our annual target of 454 claims.

“We are moving swiftly to ensure that claims that were lodged before 1998 are researched and as a result, we have increased our annual research target. Therefore, for this last financial year, we were happy to report that we had researched 1 558 claims against a target of 1 530,” she says.

The Commission was also able to expend 100% of its annual allocated budget.

Reshaping the rural economy

Contributing to the change in land ownership patterns and providing access to land for production, the Department of Rural Development and Land Reform has delivered a total of 201 430 hectares, including property transferred through tenure programmes, redistribution and the settlement of restitution claims. And, of this, 136 938 hectares have been allocated to smallholder farmers, contributing significantly to the NDP target of 300 000 smallholder farmers by 2030.

But, for the Commissioner, a large part of restitution is not only restoring land to those previously disposed by past laws but also ensuring that once land has been granted to a claimant, they are able to properly make use of and benefit from the land, particularly in rural areas where growing the economy and developing outlying towns has become a priority for the national government.

“Remember that we as a Commission only present an opportunity. We require land that was dispossessed and that is our constant mandate, but we do work towards creating opportunities for these claimants with a focus on transformation and development. Where possible, we unlock opportunities for those communities through land restitution and we look at its value with potential development opportunities. We also work with other government departments or stakeholders in the private sector,” she says.

Ensuring sound policies are in place and correctly implemented is also paramount to ensuring that land restitution remains a sustainable means of redress in the years to come. The Commissioner also believes that land restitution and rural development could go a long way to address over-population in urban areas.

“Rapid urbanisation is something that we shouldn’t just let happen by default. I think we should plan better by creating more economically viable, if not still, small rural towns. We should also be upgrading infrastructure in rural areas so that people don’t feel the need to come to the big metros for an opportunity. Here, it is really the role of the department to create vibrant rural economies, and we as the CRLR actively operate in that space in order to help create those opportunities for people who are very often unemployed,” Ntloko-Gobodo says.

“What we do is acquire land and then assess what is happening. We look at what other opportunities the land may offer, be it high-value land like a grain farming or land used for the purpose of tourism. While we acquire the land, we do bring in development managers. We have a good example of that in the Eastern Cape, where the restored land boasted a large hotel. The communities agreed to lease a portion of that land back to the hotel while allowing them to perform other activities there but obviously, nothing that is contrary to or lowers the value of that hotel,” she explains.

The Commission, where necessary, has also brought in the assistance of transactional advisors who help communities to conceptualise the value-add of their land, as well provide grants to these communities so that they can kick-start new opportunities. To ensure that there is no isolated development in that area, the CRLR also coordinates with various departments, like agriculture and tourism, as well as surrounding municipalities.

“This is important because if a community decides they want to build houses on their land, we need to work with the municipality so that we can coordinate with neighbouring communities. Let’s say 2 000 people benefit from the new houses; there may, in fact, be a further 5 000 more who will benefit from things like job creation. We look for those opportunities and we talk to local mayors so that we know and understand what’s going on. In addition, every time a settlement of a claim is approved, the Minister sends off a register of all approved claims to various stakeholders to ensure that they are aware.

“We have to ensure that the new entity is sustainable and that it can work. And if we get to gogo then we know we’ve done our work. There are people who already have access to opportunities, that’s not who we aim to serve. For this reason, it is again important to ensure that the Commission is more efficient and not just us as the Commission but all of our stakeholders too,” she says.

More restitution needed in years to come

Looking ahead, the primary aim of the Commission is to ensure that all claims lodged before the 1998 deadline are settled.

In 2014, an amendment to the restitution of Land Rights Act was introduced, designed to re-open the window for the lodging of land claims under the Restitution of Land Rights Act, 1994. Under the first Act, the deadline for claims was 31 December 1998. The amendment gave those forcefully evicted from their land until 30 June 2019 to lodge claims.

Late last year, the Constitutional Court, however, ruled the amendment to the Act invalid, prohibiting the Commissioner from dealing with the new claims lodged until all old claims had been dealt with. With this ruling, Parliament was also given 24 months to pass a new Act, which will re-open the window for lodging land claims and people who want to lodge a land claim will have an opportunity for their claim to be considered.

In the two years leading up to this ruling, the CRLR had, however, gone to great lengths to streamline the application process, introducing a paperless lodgement system, which proved to be very successful in ensuring that the information provided by claimants was accurately recorded and stored electronically. In addition, the Commission also launched mobile lodgement offices in order to make the land claims process much more comfortable and more convenient for land claimants.

The mobile lodgement offices or busses that were specially equipped with technology to process applications for land claims on site were well received by communities as it made it easier for them to lodge their claims without having to travel long distances from rural areas.

“With these events in mind, a key aspect of our work in the coming months will be to finish all outstanding research so that we may know how many of the remaining claims are valid and how, where and what the nature of the claim is. This is important because we want to ensure that, with the reintroduction of the new legislation, we are adequately prepared to deal with the claims coming in,” she says.

The Commission received roughly 163 000 new claims between 2014 and 2016 and while they might not all necessarily be valid, they can’t be looked at until new legislation is passed, and the Commission has settled all old order claims.

“People have asked the question, ‘Why would the government reopen restitution when it’s taken these people so long to come forward?’, and my answer to those people is that restitution has arrived and it’s restorative. If you lost a right, you are entitled to redress that right but you can’t say that because you didn’t put your hand up first, you lost out on your chance to address the injustice. In order for reconciliation, we must acknowledge our past. For this reason, we hope to soon finish with the old claims in time for the new law,” she says.

Ntloko-Gobodo also believes that in order for the Commission to handle all new claims, the organisation itself needs to become more effective and efficient. Work has already started on building a new commission, one based on the Minister’s recommendations in his 2017 budget speech.

“The Minister has said that we must become a Chapter 9 institution and we have already started working towards that. We have gotten a variety of experts involved in the planning stages and we have spoken to National Treasury so that we are able to properly structure ourselves and become more effective. We have done many reviews and asked ourselves, ‘What will it take to become more effective?’. I am hoping that in the near future, people will begin to see the change,” she says.

In November, the CRLR also held a colloquium where various practitioners and experts were invited to participate and help define their own views and understanding of restitution. In future, the CRLR will also look at various settlement models and the benefits of implementing them, while also looking at mining, agriculture and tourism.

“We are looking at different ways of how and where we can refine or tweak or even introduce new systems. We have also invited international experts to share with us their own lessons on how restitution is best implemented. I strongly believe that the sooner we begin to understand that restitution is about growing an inclusive South Africa foundation, the better. It is without a doubt one of the building blocks of our democracy and while it may be difficult for some people to accept, it must be done. We must embrace the work together and be inclusive. That is our vision for the future,” she says.

Aside from investigating the possibility of turning the Commission into a Chapter 9 institution, the Commissioner has also engaged with various strategists to also look externally at the policies in place for other institutions, like Community Property Associations and their setups. At the moment, she believes that these vehicles are not yet regulated adequately and often end up with communities fighting.

“The department is looking at ways of ensuring that CPAs are being properly regulated to comply with the Act. We all agree that much more needs to be done to improve the support and oversight of CPAs and the department has also worked on amendments to the CPA legislation, which, when approved, will see the establishment of a Registrar of CPAs. This is not only about regulation but also about ensuring that there are proper support structures in place for them, and perhaps amending the CPA bill would make it easier to get other stakeholders on board, to plug in and make sure that together, we will have a greater impact on these communities,” Ntloko-Gobodo says.

“To me, the Commission is just one pillar with 10 sides, these different facets operating in all nine provinces. The most important thing is that each of these provinces has their own strengths, and where one province may be weak in a particular area, it doesn’t matter because we all feed off each of other. So, if KwaZulu-Natal is strong, then we are all strong because we are able to learn from them, and if we’re weak, it’s because we are all still learning. We share our strengths and help each other with weaknesses and it’s more about learning and less about competition because, ultimately, we are still just one team. I also think it will be important for us to pause in the near future and review our systems, looking at everything from project management and electronic processing to a new, paperless way of monitoring our work,” she adds.

About Nomfundo Ntloko-Gobodo

Ntloko-Gobodo, a qualified attorney with more than 14 years’ experience, has always been an activist at heart who firmly believes in the importance and constant protection of human rights.

“It’s this passion and a strong desire for justice that has always been my primary motivation. That’s really what drives me and I have always worked in this field. I started my career as an attorney before I went to work for a community law centre in the Western Cape, focussed on children’s rights. From there, I have only grown more passionate about South African communities and their access to justice,” she says.

She holds a Master’s in Law (UCT), a Master’s in Business Management (ORU-USA), a Diploma in Advanced Labour Law (UNISA), a B-Proc (UKZN- DURBAN) and a Certificate in Housing Policy Development and Management from the University of Witwatersrand.

Ntloko-Gobodo has also worked at the Legal Resource Centre as a Director in the Johannesburg office from 2008 until 2012. Part of her responsibilities included but was not limited to dealing with various socio-economic rights issues, with a high focus on Land Law, Housing Law, Children’s Rights, Access to Justice and Customary Law, among others.

She has also dealt with a number of land claims and interacted with various rural communities who have been dispossessed of their rights in land, and she has worked with the Human Rights Commission as well as the Community Law Centre.

“To me, it’s always about the people, the actual human being and properly acknowledging the wrongs as well as providing proper redress. When you see those communities or individuals at the hand-over celebrations, and you watch as you give them back the title to their land, that’s when you realise just how meaningful it is to give a person back their dignity.

“For someone outside of the process, you might not think it’s a big deal, but for them, it’s still as raw as it was when the injustice first happened. You really begin to appreciate their dignity and it means a lot to be able to provide and restore that dignity. Every time I open those files and I have to read their stories, I immediately remember why it is I do what I do,” she says.

Preferring to adopt a leadership style that is more inclusive and consultative where and as much as possible, she understands that sometimes, as a leader, it’s still up to her to bite the bullet and make those tough decisions.

“One really good example of this happening was when the decision to reopen the restitution process was made in 2014. I took the decision that we, as the Commission, would no longer receive claims manually. I was told I was dreaming but I didn’t want for the Commission to appear as though it was still living in 1920. I gave a lot of thought to how we could step back into the 21st century and I really had to stick to my guns. In the end, we did receive claims electronically, good effective IT systems and security were put in place we were able to catch out the people who were simply wanting to try and take advantage of the new electronic lodgement system. As a good leader, those are the types of decisions you have to take, even when others think it’s impossible and can’t be done,” she says.

“Aside from having to make tough decisions, I also think that while it’s perfectly okay for you to be leading from the front, you must also always understand that you work with a team and that means that you’re only as strong as your weakest link. It means not being scared to make decisions on your own and being fully prepared for the consequences of those decisions. But whatever you do, I think it’s absolutely necessary to make sure that you take your people along with you. It’s tough out there and you can’t go out on your own. Take your team with you and never forget your biggest asset will always be your people,” she concludes.

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