Land Restitution and Democratic Citizenship in South Africa

Abstract

Democratisation in South Africa empowered racial, religious, and linguistic groupings and indigenous peoples with the right to land restitution. The main purpose of this article is to evaluate the implications of communal property ownership for the restoration of land rights and the exercise of democratic citizenship. Has restored land in communal form enabled returnee members of dispossessed communities to receive justice for past abuses and to enjoy the benefits of property ownership? The new government's approach to communal restitution produced satisfactory legal results, but perpetuated perceptions of unified communities. Fieldwork illustrates how contemporary communal arrangements affected Elandskloof of the Cedarberg in the Western Cape, the Tsitsikamma Mfengu and the village of Clarkson in the Eastern Cape, and the Richtersveld in the Northern Cape. These cases magnify similarities and differences in the reconstitution of community and the outcomes of restoration of land beyond the legal transfer of ownership in post-apartheid South Africa. South Africa's institutional framework for land restitution provides a comparative lens through which to view how other new democracies grappled with the extension of citizenship and the definition of property rights in the 1990s into the 21st century.

Notes

^*The authors would like to thank André du Toit and Toni Sylvester for their assistance in the conception and the preparation of this article, and the anonymous reviewers of the Journal of Southern African Studies for their helpful comments towards the improvement of the central argument.

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 8 United Nations, Universal Declaration of Human Rights, Resolution 217A of the General Assembly, 10 December 1948.

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 13 R. Hall and E. Lahiff, ‘Budgeting for Land Reform’, Policy Brief, 13 (PLAAS, August 2004).

 14 R. Levin and D. Weiner, ‘The Politics of Land Reform in South Africa after Apartheid’, Journal of Peasant Studies, 23, 2/3 (1996), pp. 93–119; C. Murray, Black Mountain: Land, Class and Power in the Eastern Orange Free State 1880s–1980s (Johannesburg, Witwatersrand University Press, 1992).

 15 H. Klug, Constituting Democracy: Law, Globalism and South Africa's Political Reconstruction (New York, Cambridge University Press, 2000), p. 91.

 16 Constitution of the Republic of South Africa (Cape Town, Constitutional Assembly and the Government of the Republic of South Africa, 1996), Chapter 2, Section 25: Property.

 18 Klug, Constituting Democracy, p. 133.

 17 Constitution of the Republic of South Africa (Cape Town, Constitutional Assembly and the Government of the Republic of South Africa, 1996), Chapter 2, Section 25: Property, pp. 124–27.

 19 Department of Land Affairs, ‘Land Tenure Core Group, Land Tenure Reform Document’, 13 May 1996, pp. 10–11; M. Brown, J. Erasmus, R. Kingwill, C. Murray, M. Roodt, Land Restitution in South Africa: A Long Way Home (Cape Town, IDASA, 1998).

 20 A.J. van der Walt, ‘Land Reform in South Africa Since 1990’, South African Public Law, 10, 1 & 2 (1995), pp. 11–20.

 21 Interview with Derek Hanekom, Cape Town, 5 August 2003.

 22 D. James, ‘“After Years in the Wilderness”: Development and the Discourse of Land Claims in the New South Africa’, Journal of Peasant Studies, 27, 2 (2000), p. 144; D. James, ‘Hill of Thorns: Custom, Knowledge and the Reclaiming of a Lost Land in the New South Africa’, Development and Change, 31, 3 (2000), pp. 629–49; A. du Toit, ‘The End of Restitution: Getting Real about Land Claims’, in Cousins (ed.), At the Crossroads, pp. 82–9.

 23 Transvaal Rural Action Committee (TRAC), Communal Property Associations in the Field (July 1997), pp. 6–7.

 24 The Communal Property Associations Act, Act 28 of 1996, Press release, Government of the Republic of South Africa, Pretoria, 23 May 1996 (retrieved from http://land.pwv.gov.za/legislation_policies/bills.htm on 5 September 2003).

 25 D. Mayson, M. Barry, and R. Cronwright, Elandskloof Land Restitution: Difficulties in Establishing Membership of a Communal Property Association (Cape Town, Surplus People's Project, 1998), p. 12.

 26 Submission to the Advisory Commission on Land Allocation on behalf of the Community of Elandskloof (prepared by Henk Smith of the Legal Resources Centre [LRC], Cape Town, South Africa, July 1992), p. 36.

 27 Interview with Derek Hanekom, Cape Town, 5 August 2003.

 28 ‘The Elandskloof Community Returns at Last’, in D. Gillan (ed.), Church, Land and Poverty: Community Struggles, Land Reform and the Policy Framework on Church Land (Johannesburg, Progress Press, 1998), pp. 25–7.

 29 Submission to the Advisory Commission, p. 36.

 30 Mayson et al., Elandskloof Land Restitution, p. 13.

 31 K. Pienaar, ‘Communal Property Arrangements: A Second Bite’, in Cousins (ed.), At the Crossroads, p. 323.

 32 Interview, 26 November 2003.

 33 Interview with David Mayson, Surplus People's Project, Cape Town, 21 August 2003.

 34 See LRC submission (1992), Addendum 1, for the extension of family trees over four generations.

 35 SPP press release, ‘Farmer's Son Beats Two Farm Workers at Weekend’, 5 October 2001.

 36 Interview with Andries Titus, member of the CPA committee, 5 September 2003.

 37 ‘Private Ground: Elandskloof Embittered Six Years After Restitution’, Die Burger, 25 September 2003 (translation from the Afrikaans).

 38 Interview with Lindsey Lotter, Provincial Officer for Land Reform, Western Cape, Department of Land Affairs, Cape Town, 11 November 2003.

 39 Pienaar, ‘Communal Property Arrangements, p. 326.

 40 Cape Archives, CA LG 592, Hudson to Civil Commissioner of Uitenhage, Grahamstown, 31 August 1837; 18 September 1837; and 27 September 1837.

 41 Deeds Office Cape Town (hereafter DO), Uitenhage Freeholds Vol. 11/1, 30 October 1858; Vol. 11/2, 30 October 1858; Vol. 11/3, 30 October 1858; Vol. 11/4, 30 October 1858; D.O, Deed of Grant, Uitenhage Freehold, Vol. 10/16A, Letter from John Bell to Rev. D. Hallbeck, 14 November 1838.

 42 D.O, Deed of Grant, Uitenhage Freehold, Vol. 10/16A, Letter from John Bell to Rev. D. Hallbeck, 14 November 1838.

 43 D.O, Deed of Grant, Uitenhage Freehold, Vol. 9/7, 15 December 1841.

 44 D.O, Deed of Grant, Uitenhage Freehold, Vol. 10/6, 15 November 1851.

 45 D.O, Deed of Grant, Uitenhage Freeholds Vol. 10/16, 15 November 1851; and D.O, Deed of Grant, Uitenhage Freehold Vol. 9/7, 15 December 1841.

 46 D.O, Deed of Grant, Uitenhage Freehold Vol. 11/1, 30 October 1858; Vol. 11/2, 30 October 1858; Vol. 11/3, 30 October 1858; Vol. 11/4, 30 October 1858.

 47 D.O, Deed of Grant, Uitenhage Freehold Vol. 11/2, 30 October 1858.

 48 D.O, Deed of Grant, Uitenhage Freehold, Vol. 10/16A, 15 November 1851.

 49 B. Krüger, The Pear Tree Blossoms: the History of the Moravian Church in South Africa 1737–1869 (Genadendal, The Moravian Book Depot, 1966), p. 189.

 50 Brethren's Society for the Furtherance of the Gospel, Periodical Accounts Relating to the Missions of the Church of the Brethren Established among the Heathen, ‘The Congregations in the Tsitsikamma, Clarkson’, v, 53 (March 1903), pp. 225–6; Clarkson Moravian Church Office, The Clarkson Moravian Mission Station Marriage Register, 1869–1975.

 51 The Native Administration Act No. 38 of 1927, Chapter II, S5(1)(a).

 52 The Native Administration Act No. 38 of 1927, Chapter II, S5(1)(b).

 53 The Natives’ Trust Land Act No. 18 of 1936; Murray, Black Mountain, pp. 128–9.

 55 L. Platzky and C. Walker, The Surplus People: Forced Removals in South Africa (Cape Town and Johannesburg, SPP and Ravan Press, 1985), p. 197; TEA, Return to Our Land, p. 1.

 54 Tsitsikamma Exile Association (TEA), Return to Our Land: An Update on Our Struggle (September 1991), p. 1.

 56 Interview with Miriam Gamede, Clarkson, 7 May 2003; Interview with Chrissie Sedeku, Clarkson, 6 May 2003. The LRC's Kobus Pienaar, who represented the Tsitsikamma Mfengu communities in their land claims lodged against the South African government and the Moravian Church, wrote that ‘at Clarkson there are two groups of inhabitants which do not have a shared history. The difference in history coincides with racial difference’ (Pienaar, in Cousins (ed.), At the Crossroads, p. 328).

 57 TEA and TDT, Agreement of Settlement, Case no. 1306/91, Supreme Court of South Africa (Cape Town 1994). Representatives of the government-elect agreed to compensate the farmers in the amount of R35.72 million and grant of R1.96 million to the TDT on 29 April 1994, Agreement of Settlement, pp. 8–9.

 58 D.O, TDT, Amended Deed of Trust, Protocol No. 146, 1998, pp. 4, 6, 10, 12–13. The TEA disintegrated after March 1994 when the TDT became the registered legal representative of the interests of the Mfengu community. Not all TEA leaders became appointed TDT trustees.

 59 Interview with Isaac Tembani, a prominent leader of the previous TEA, 9 May 2003.

 60 The National Land Committee (NLC), ‘Mfengus Return Home After 17-Year Struggle’, NLC pamphlet, Cape Town, May/June 1994, p. 16.

 61 ‘Growing Bitterness Over Land Restitution’, Business Day, 13 March 1996.

 62 TDT, ‘The Resettlement of the Mfengu Community to the Tsitsikamma Region’, November 1995.

 63 Umanyano Lwama Tsitsikamma, ‘Letter to Minister Thoko Didiza of the Department of Agriculture Requesting Intervention in Dispute between the Community and the TDT’, 10 October 2002.

 64 Francie Lund describes the relationship between the Xhosa and coloured Afrikaans-speaking members of the Riemvasmaak community after the return to the land and with the formation of the Communal Property Trust. Lund, Lessons from Riemvasmaak for Land Reform Policies and Programmes in South Africa, Vol. 2 (Belville, PLAAS, University of the Western Cape and Farm Africa, 1998). Similar racial conflict emerged at Clarkson following claims of entitlement to the mission land were made by the exiled and contemporary Tsitsikamma Mfengu community and the TDT.

 65 TEA, Return to our Land.

 66 The Restitution of Land Rights Act 22 of 1994; Department of Land Affairs, ‘A Guide to the Department of Land Affairs’ Land Reform Program', October 1996, pp. 12–15.

 67 The South African Council of Churches (SACC), ‘Rustenburg Declaration’, November 1990. The SACC and the National Land Committee (NLC) organised a summit on church land in November 1997. The primary theme was the church's role as coloniser and harbinger of land alienation. See A. Mngxitama and Z. Nkosi, ‘The Church and Land Questions: An Introduction’, in Gillan (ed.), Church, Land, and Poverty, pp. 1–4.

 68 Motivating Memorandum, ‘Application for the Designation of Land for Less Formal Settlement’, December 1992; TEA, Return to Our Land, p. 6.

 69 Moravian Church in South Africa, Koukamma Local Municipality and Trustees of the Clarkson Communal Property Trust, ‘Land Availability Agreement’, Clarkson, 6 April 2002, p. 1; Clarkson Communal Property Association, Notarial Deed of Trust, 16 August 1996; LRC, ‘Chronology of Events: Clarkson Development Project’, (Cape Town, LRC, n.d.), p. 16.

 70 Interviews with T. Lawak, Clarkson, 8 May 2003; Edna Mtambo, member of the Tsitsikamma Development Trust and the Clarkson Communal Property Association, and Public Relations Councillor of the Kokamma Residential Municipality for Clarkson, 28 October 2003.

 71 Interviews with Florence Mtambo, CCPT chairperson, Tsitsikamma, 9 May 2003; Rev. Moos, Clarkson, 8 May 2003, William Uithaler, Clarkson, 6 May 2003; Rev. Mcubusi, Clarkson, 5 May 2003.

 72 Moravian Church in South Africa, Koukamma Local Municipality and Trustees of the Clarkson Communal Property Trust, ‘Land Availability Agreement’, 6 April 2002, p. 5.

 73 Interview with a former CCPT member, Clarkson, 26 October 2003.

 74 ‘Richtersveld Community Loses Restitution Claim’, South African Press Agency, 22 March 2001.

 75 L.A. Hoq, ‘Land Restitution and the Doctrine of Aboriginal Title: Richtersveld Community versus Alexcor and Another’, South African Journal of Human Rights, 8, 3 (2002), pp. 421–43.

 76 LRC, ‘Dossier on the Richtersveld Case’ (Cape Town, LRC, November 2003).

 77 P. Carstens, In the Company of Diamonds: De Beers, Kleinzee, and the Control of a Town (Athens, OH, Ohio University Press, 2001).

 78 Republic of South Africa, Government Gazette, 460, 25596 (17 October 2003), p. 4; ‘Will There Be Justice for a Wronged Community?’ and ‘Glimmer of Hope for Richtersvelders Dispossessed of Their Land in the 1920s’, The Sunday Independent (Cape Town), 7 September 2003, p. 6.

 79 P. Carstens, The Social Structure of a Cape Coloured Reserve (Cape Town, Oxford University Press, 1966).

 80 S. LaFraniere, ‘Diamond Mine May Not Be Forever, But It's a Start’, New York Times, 2 November 2003, p. 4.

 81 Interviews with Floors Strauss, Willem Cloete, and Jacobus De Wet of the Richtersveld Community Property Association, 11 November 2003, at LRC, Cape Town. Toni Sylvester provided translation from the Afrikaans.

 82 S. LaFraniere, ‘Diamond Mine May Not Be Forever, But it's a Start’, New York Times, 2 November 2003, p. 4.

 83 M. Kempers, ‘Politics and Law in Community: The Maine Indian Land Claim’, Community Matters (Chicago, Burnham Publishers, 2001), p. 39.

 84 D. James, ‘The Tragedy of The Private: Owners, Communities and the State in South Africa's Land Reform Program’ (paper for presentation at ‘Changing Properties of Property’ conference, Max Planck Institute for Social Anthropology, Halle, Germany, 2–4 July 2003), pp. 7–12.

 85 D. James, ‘The Tragedy of The Private: Owners, Communities and the State in South Africa's Land Reform Program’ (paper for presentation at ‘Changing Properties of Property’ conference, Max Planck Institute for Social Anthropology, Halle, Germany, 2–4 July 2003), p. 30; C. Hann, Property Relations: Renewing the Anthropological Tradition (Cambridge, Cambridge University Press, 1998).

 86 Pienaar, ‘Communal Property Arrangements’, p. 337; Mogope, ‘Community and Diversity’ (2000).

 87 Author interview with Lindsey Lotter, Western Cape Provincial Land Reform Office, Department of Land Affairs, Cape Town, 11 November 2003.

 88 R. Hall, Rural Restitution (Evaluating Land and Agrarian Reform in South Africa Series, no. 2), PLAAS, University of the Western Cape, September 2003.