Voices

It could take 200 years and R600bn to finalise new land claims

2018-04-25 22:48

The issue of expropriating land without compensation has been hogging the headlines lately, but this debate has pushed other critical dimensions of land reform into the background.

One of the most important dimensions is the looming deadline for decisions on land restitution.

If poor choices are made, the long wait for the settlement of claims endured by claimants and landowners for the past 20 years will drag on for decades and even centuries to come.

The resulting insecurity will limit economic productivity, job creation and poverty relief far into the future.

In 2014, the Zuma administration reopened the land claims process in an attempt to shore up support in rural areas and consolidate its alliance with traditional leaders.

It made this step with limited consultation and despite the fact that many thousands of claims for restitution lodged in or before 1998 remained unresolved.

About 14 000 new claims were lodged – nearly double the number registered in the first round.

Communities that were concerned that the resolution of their claims would be further delayed by the demands of the new policy challenged it in court.

In 2015, the Constitutional Court declared the Restitution of Land Rights Act invalid and stipulated that land claims lodged by 1998 had to be finalised before the act was re-enacted.

The court recognised the validity of the new claims, but it prohibited any further processing of them until all the old claims had been finalised.

Parliament was given 24 months to introduce new legislation, failing which the chief land claims commissioner had to apply to the court for an order on the processing of the new claims.

The deadline given by the Constitutional Court is rapidly approaching and there is no sign that new legislation will be enacted or that the first set of claims will be finalised.

There are still more than 7 000 unsettled claims, and more than 19 000 unfinalised “old order” claims (claims lodged before the initial cut-off date in 1998).

The land claims high-level panel’s report suggests that, at the current rate of progress, it will take 43 years for the backlog to be cleared, and Treasury estimates that the cost will be R30 billion.

Treasury’s modelling further suggests that the new claims will take 200 years to finalise at a cost of about R600 billion.

If lodging new claims is reopened, the high-level panel estimates that 397 000 claims will be lodged that will take 709 years to finalise.

Even if these mind-boggling figures are somewhat exaggerated, it will certainly take many decades and vast amounts of money for the land restitution process to be completed.

As it is, the process has damaging consequences.

The existence of large numbers of unresolved, overlapping and directly competing claims has contributed to mounting ethnic and “tribal” tensions, as well as xenophobic attitudes.

As a result, large areas of the country resemble tinder boxes at risk of igniting with the next spark in regions – such as the Lowveld in Mpumalanga – that have great potential for expanding production for a booming international market.

More broadly, the uncertainty created by unfinalised restitution creates a check on new and especially long-term investment in rural areas.

These side-effects might be tolerable if the recipients of restituted land received significant material benefits.

But the existing evidence suggests that little, if any, economic benefit has accrued to the overwhelming majority of recipients. Workers and tenants living on restituted land often suffer heavy losses.

The problems are compounded by the fact that farms subjected to the claims are not available for land redistribution.

The existence of thousands of finalised claims dating back to 1998 and an overlay of a multitude of complex new claims will be a significant impediment to land redistribution.

The failure to make meaningful progress on that front threatens the country’s stability and prosperity.

Those who imagine that expropriation without compensation will solve these problems are mistaken.

It will not solve the lack of administrative capacity or the many conflicting and overlapping claims that will still have to be adjudicated.

If the state decided to compensate all claimants irrespective of the merits of their cases, its finances would be hopelessly skewed.

Are we prepared to allow the process to continue at its current glacial pace and possibly expand exponentially?

If not, an urgent discussion is needed on how to treat new claims and what levels of funding, capacity building and forms of partnership are required to produce a more speedy resolution.

Delius is associate professor of history at the University of the Witwatersrand and author of The Land Belongs to Us

To explore these issues further, read W Beinart, P Delius, M Hay, Rights to the Land: A Guide to Tenure Upgrading and Land Restitution in SA and the sections on land reform in the High-level Panel on the Assessment of Key

Legislation and Acceleration of Fundamental Change document at parliament.gov.za/high-level-panel

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September 23 2018