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Gender and shifting urban property relations: the impacts of tenure upgrading on women’s access to land and housing in Mdantsane, South Africa

  • Authors: Stofile, Zimkhitha Sphokazi https://orcid.org/0000-0002-1566-1376
  • Date: 2023-07
  • Subjects: Women's shelters , Land tenure -- South Africa , Right to housing
  • Language: English
  • Type: Doctoral theses , text
  • Identifier: http://hdl.handle.net/10353/28717 , vital:74556
  • Description: A detailed empirical focus on the social impacts of progressive land policy shifts on women in Africa remains limited, particularly when it comes to urban property rights. This study examined contemporary dynamics of gender and access to urban property in the context of South Africa’s post-apartheid radical policy changes that attempt to address primarily the historical exclusion of blacks from urban property rights and housing. The thesis adopted a gendered approach to the concept of ‘access’ as an overriding concept to analyse the impacts of land tenure upgrading on women’s access to urban land and housing in Mdantsane, South Africa’s second-largest township. This study also adopts a liberal feminist perspective, particularly egalitarian liberal feminism (emanating from the works of John Stuart Mill) to explore how the post-apartheid progressive institutional and legal reforms have influenced the autonomy and power of women to access urban property rights. Through this perspective, the study also draws on several key theoretical concepts to put together a conceptual schema – a framework – that provides enhanced understanding of gendered dimensions of access to urban landed property (in this case housing). In many developing countries, there has been a shift from indigenous land tenure systems to private land ownership. These shifts were caused by several factors, including population pressure, rising land income, urbanisation, and land grabbing. International organisations such as the World Bank, the United States Agency for International Development and Department for International Development have expanded their land tenure reform programmes in developing countries from the 1970s until the late 1990s. These have suggested individualised land rights (land titling) as a precondition for investment, economic progress, poverty alleviation, and a framework for secure, transparent, and enforceable property rights. Gender equity became a growing concern among donor institutions that promote and fund titling and registration programmes. Land titling was viewed as a solution to bring an end to gender inequalities in land ownership. In South Africa, the Upgrading of Land Tenure Rights Act 112 of 1991 (ULTRA) was enacted for upgrading and converting ownership of certain rights granted in respect of land. The study used a case study of women in sections of Mdantsane. Qualitative methods, mainly in-depth interviews and life histories enabled the researcher to obtain detailed personal accounts of the historical and contemporary struggles of black women in accessing land and property in South Africa’s urban peripheries. The findings demonstrate that tenure upgrading produced differential outcomes among women in Mdantsane, and some diverse meanings that women attach to their land and houses in the context of tenure upgrading in post-apartheid South Africa. While tenure upgrading has guaranteed non-eviction for most house occupants (including women), it resulted in eviction for others. Male occupants, who secretly and fraudulently acquired the title deeds for family houses, displaced some of their women relatives. The study also established that these displacements were mostly done by those men who were regarded as heirs to property in many of the urban households. As such, they took most decisions about the formal registration of family homes, thus weakening the rights and power of women over urban property. Among the dominant meanings attached to land after tenure upgrading, women in Mdantsane generally viewed the ownership of urban property – no matter how small – as a form of empowerment, socially and economically. This study also found that after tenure upgrading, other women lost access to the accommodation they rented for more than a decade, even though they qualified to become the owners. In some instances, the politicians fraudulently sold the houses, and the occupants were thus displaced. Poor housing administration by the municipal officials was one of the reasons most occupants lost access to housing. In general, the results indicate that post-apartheid, urban land laws and policies afforded women better access to land and housing. Furthermore, in several instances, titling afforded women equal ownership rights as men compared to other tenure systems. Nonetheless, the history of exclusion still negatively affects women’s access to land and housing. Even in cases where they are not excluded, women still face social, political, and cultural constraints in acquiring urban land. Such a finding indicates that, gender-sensitive land laws and policies do not automatically lead to positive outcomes for women in South Africa’s urban peripheries. Therefore, the struggle for equal property rights does not begin and end with gender-progressive laws. Urban land policy should also grapple with past and contemporary obstacles in the implementation of legislation. , Thesis (PhD) -- Faculty of Social Sciences and Humanities, 2023
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  • Date Issued: 2023-07

Land redistribution and state decentralisation in South Africa

  • Authors: Jaricha, Desmond Tichaona
  • Date: 2014
  • Subjects: Land reform -- South Africa , Land tenure -- South Africa , Agriculture -- Economic aspects -- South Africa , Decentralization in government -- South Africa , Local government -- South Africa , South Africa -- Politics and government
  • Language: English
  • Type: Thesis , Masters , MSocSc
  • Identifier: vital:3374 , http://hdl.handle.net/10962/d1013120
  • Description: South Africa is a new democracy that has had to deal with many historical remnants of apartheid. One of the main remnants has been land dispossession and massive inequalities along racial lines of access to land for agricultural purposes. In countering this, the post-apartheid state has pursued land redistribution programmes since the end of apartheid in 1994, as part of a broader land reform project. Simultaneously, post-apartheid South Africa has been marked by significant state restructuring notably a process of state de-centralisation including the positioning of municipalities as development agents. Amongst other goals, this is designed to democratise the state given the authoritarian and exclusive character of the apartheid state, and thereby to democratise development initiatives and programmes. Land redistribution and state decentralisation in South Africa are different political processes with their own specific dynamics. They have though become interlinked and intertwined but not necessarily in a coherent and integrated manner. Within broader global developments pertaining to state decentralisation and land redistribution, the thesis examines the complex relations between these two processes in South Africa. In particular, I analyse critically the decentralised character of the land redistribution programme in South Africa. In order to concretise and illustrate key themes and points, I discuss a particular land redistribution project called Masizakhe located in Makana Municipality in the Eastern Cape Province.
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  • Date Issued: 2014

The income tax implications resulting from the introduction of section 12N of the Income Tax Act

  • Authors: Grebe, Alta-Mari
  • Date: 2014
  • Subjects: Income tax -- Law and legislation -- South Africa , Land tenure -- South Africa , Capital gains tax -- South Africa
  • Language: English
  • Type: Thesis , Masters , MCom
  • Identifier: vital:8966 , http://hdl.handle.net/10948/d1020787
  • Description: Section 12N, introduction into the Income Tax Act by way of Taxation Laws Amendment Act and which became effective on 2 November 2010, provides for allowances on the leasehold improvements on government-owned land and land leased from certain tax exempt entities as stipulated in section 10 (1) (cA) and (t). As section 12N deems the lessee to be the owner of the leasehold improvement, the lessee now qualifies for capital allowances which were previously disallowed.
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  • Date Issued: 2014

Indicators of household-level vunerability to climate change in three topographically diverse rural villages

  • Authors: Sotsha, Kayalethu
  • Date: 2013
  • Subjects: Poverty -- South Africa , Land tenure -- South Africa , Climatic changes -- South Africa , Farms, Small -- South Africa , Rural poor -- South Africa
  • Language: English
  • Type: Thesis , Masters , MSc Agric (Agricultural Economics)
  • Identifier: vital:11212 , http://hdl.handle.net/10353/d1016204 , Poverty -- South Africa , Land tenure -- South Africa , Climatic changes -- South Africa , Farms, Small -- South Africa , Rural poor -- South Africa
  • Description: Climate change has become a major concern globally and it clearly exerts a profound influence on the lives of poor rural populations who depend on agriculture for livelihoods.Generally, agriculture is more at risk from weather, pests and diseases than is industry or trade. Furthermore, many farming units are at low levels of development with little technological input in their production systems. This makes them vulnerable to any exposure to climate and environmental variation, given that there is little capacity for the system to adjust to change. Most at risk are the rural poor with low levels of development and limited ability to adapt to and overcome the effects of climate change. Using data from a sample survey of 120 households this study attempts to assess and compare indicators of vulnerability to climate change. The comparison was made at household level between three typical villages, an inland, a river catchment and a coastal village. This idea of comparison arises from the general understanding that different variables affect different regions differently so that the impact of and vulnerability to climate change differs across regions, areas and populations. The data was obtained using a questionnaire that was administered through face-to-face interviews. Given that sensitivity and adaptive capacity of farming systems to climate change is shaped by both socioeconomic and institutional factors, a multiple regression model was used to test the relationship between indicators of vulnerability and household socioeconomic and institutional characteristics. Indicators were selected based on significant statistical relationships. This means that the statistical procedure for selecting indicators involved relating a large number of variables to vulnerability in order to identify statistically significant factors. The results showed reliability of income and reliability of water resources to be good indicators of vulnerability. Many statistically significant variables as well as respective R2 of 0.988 and 0.825 confirm the foregoing. Another indicator was the Simpson index that measures diversification of agricultural production. The results show that vulnerability to climate change was highest for the households near the river and lowest for the inland village. Moreover, the results confirmed that most blacks that are practicing agriculture receive little if any support largely because available resources are highly skewed towards certain farmers rather than others.
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  • Date Issued: 2013

An investigation of the South African land reform process from a conflict resolution perspective

  • Authors: Wächter, Felix
  • Date: 2010
  • Subjects: Land reform -- South Africa , Land tenure -- South Africa , Dispute resolution (Law) -- South Africa
  • Language: English
  • Type: Thesis , Masters , MPhil
  • Identifier: vital:8166 , http://hdl.handle.net/10948/1272 , Land reform -- South Africa , Land tenure -- South Africa , Dispute resolution (Law) -- South Africa
  • Description: This research study aims to investigate the South African Land Reform process from a conflict resolution perspective. According to Burton’s basic human needs theory deep-rooted social conflict will occur wherever social institutions neglect universal basic human needs. Excess to land and land tenure are considered basic human needs because they provide landowners with food, shelter and security. In absence of an extensive welfare state, land ownership fulfils the role of a social safety network, particularly in African countries. Consequently, an equal distribution of land is needed in order to enable the majority of South Africans to fulfil their basic human needs. The instrument chosen for correcting the inequalities in land distribution are the three components of the South African land reform programme namely tenure reform, restitution and redistribution. The South African Land Reform Programme was largely influenced by the World Bank’s ‘Willing-Seller Willing- Buyer’ or ‘Negotiated Land Reform Approach’. Nevertheless, the South African model differs from the original concept by the World Bank in some aspects. The outcome of the Land Reform Process is analysed and evaluated by the on-going evaluation approach. All sources used in this research are open to the public and published either on official websites or in hard cover version in reports and articles. The results of this investigation indicate that the target of redistributing 30% of white-owned agricultural land by the year 2014 is not going to be accomplished. Nevertheless, the settlement of claims can be considered a success story although most of the claims were settled by means of cash compensation instead of actual land transfer. Furthermore, a change in the land acquisition policy from a demand-led approach based on the negotiated land reform principle towards a more static, state-led, top-down approach has been identified as well as shortcomings in the post-settlement support of new landowners. To put it briefly, the land reform process in toto is about to fail and a chance of reducing the enormous conflict potential given away. Furthermore, the conflict potential will increase due to the failures in providing the poor and rural masses with access to land.
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  • Date Issued: 2010

The contribution of municipal commonage to local people's livelihoods in small South African towns

  • Authors: Davenport, Nicholas Ashbury
  • Date: 2009
  • Subjects: Land tenure -- South Africa , Land reform -- South Africa , Property -- South Africa , Property rights -- South Africa , Commons -- South Africa -- Eastern Cape , Natural resources, Communal -- Management -- South Africa -- Eastern Cape , Rural development -- South Africa -- Eastern Cape , Households -- Economic aspects -- South Africa -- Eastern Cape
  • Language: English
  • Type: Thesis , Masters , MSc
  • Identifier: vital:4749 , http://hdl.handle.net/10962/d1006976 , Land tenure -- South Africa , Land reform -- South Africa , Property -- South Africa , Property rights -- South Africa , Commons -- South Africa -- Eastern Cape , Natural resources, Communal -- Management -- South Africa -- Eastern Cape , Rural development -- South Africa -- Eastern Cape , Households -- Economic aspects -- South Africa -- Eastern Cape
  • Description: To redress past discrepancies in land tenure, the ANC government acknowledged that land needs to be made accessible to the previously disadvantaged, announcing that commonage would be a pillar of their land reform programme. Municipal commonage is land granted by the state to municipalities for urban households to use. Presently many urbanites in South Africa seek a livelihood from commonage. However, there has been no livelihood valuation of the contribution commonage makes to previously disadvantaged households. Thus there is a need to calculate the benefits of the commonage programme. Through a two phase approach, this thesis investigated firstly, the proportion of township households which use commonage; and the main characteristics of those households. Secondly, the thesis looks at the extent to which commonage contributes to users' livelihoods and the dominant livelihood strategies pursued by user households. Data was collected for three towns in the Eastern Cape province of South Africa; Bathurst, Fort Beaufort, and Grahamstown. Firstly it was found that between 27-70% of households used commonage, with the largest town having the lowest proportion of users, and vice versa for the smallest town. In terms of household characteristics, each study town was unique. Both Bathurst and Grahamstown user households were poorer than non-using households, however all Fort Beaufort households were considered poor. To assess the benefits of the commonage programme, the marketed and non-marketed consumptive direct-use values of land-based livelihoods on commonage were calculated via the 'own reported values' method. Commonage contributions to total livelihoods ranged between 14-20%. If the contributors from commonage were excluded, over 10% of households in each study town would drop to living below the poverty line. Additionally, commonage was being used productively, with the productivity at each study town being worth over R1 000 per hectare and over R4.7 million per commonage. Finally, a typology of subsistence/survivalist commonage users is presented, with four types being identified. Overall, results suggest that commonage use has increased over the last decade. Moreover, due to food inflation and urbanisation the use of commonage is expected to increase further, highlighting the need for holistic commonage management plans to be created, which should include strategies such as sustainable grazing regimes and natural resource management.
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  • Date Issued: 2009

Traditional leadership and the use of cultural laws in land administration: implications for rural women's land rights in a transforming South Africa

  • Authors: Ntwasa, Bayanda
  • Date: 2009
  • Subjects: Land tenure -- South Africa , Rural women -- South Africa , Tribal government -- South Africa , Land use, Rural -- South Africa , Right of property -- South Africa , Women's rights -- South Africa , Chiefdoms -- South Africa , Political leadership -- South Africa
  • Language: English
  • Type: Thesis , Masters , M Soc Sc (Rural Development)
  • Identifier: vital:11938 , http://hdl.handle.net/10353/134 , Land tenure -- South Africa , Rural women -- South Africa , Tribal government -- South Africa , Land use, Rural -- South Africa , Right of property -- South Africa , Women's rights -- South Africa , Chiefdoms -- South Africa , Political leadership -- South Africa
  • Description: This dissertation critically examines how traditional leaders use cultural laws to allocate land to women and to allow women to participate in land administration in communal areas. Given the government's commitment to gender equity in all spheres of life as stipulated in Section 9 (3) of the South African Constitution (Act 108 of 1996), the dissertation examines whether related legislation and policy (such as CLARA and TLGFA) alone can guarantee equitable access to land for women and their participation in land administration structures in communal areas where patriarchy dominates. In essence, the study interrogates whether state intervention through formalizing laws that govern land matters do achieve gender equity while cultural laws still exist in communal areas. Based on the view that land in communal areas is held by the state and administered by traditional leaders who have historically discriminated against women, the dissertation employs a case study method to examine whether cultural laws are exercised when women apply for a piece of land at the three levels of traditional authority viz: village, sub-village and traditional council levels in the Matolweni village of the Nqadu Tribal Authority. Although women are often the de facto rights holders in rural areas as a result of male migration to urban areas, findings seem to indicate that it is difficult and/or sometimes impossible to translate paper laws into practice while cultural laws are still operating. For effective transformation to occur, the study recommends that unless a strong women's rural movement emerges, coupled with a socialist feminist position that advocates for a radical transformation of rural society to defeat the patriarchal norms and standards, traditional leaders will continue to discriminate against women in land issues.
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  • Date Issued: 2009

A critical analysis of land redistribution and economic development of farm workers in the Stellenbosch Agricultural Area : a research treatise

  • Authors: Stemela, Mbuyiselo
  • Date: 2008
  • Subjects: Land reform -- South Africa , Land tenure -- South Africa , Land Redistribution for Agricultural Development (South Africa) , Agriculture -- Economic aspects -- South Africa , Compensation (Law) -- South Africa , Economic development -- South Africa -- Stellenbosch
  • Language: English
  • Type: Thesis , Masters , MPhil
  • Identifier: vital:8232 , http://hdl.handle.net/10948/852 , Land reform -- South Africa , Land tenure -- South Africa , Land Redistribution for Agricultural Development (South Africa) , Agriculture -- Economic aspects -- South Africa , Compensation (Law) -- South Africa , Economic development -- South Africa -- Stellenbosch
  • Description: This study critically analyzed land redistribution and economic empowerment of farm workers in the Stellenbosch agricultural area. Past socio-economic and political policies have resulted in a racially skewed and inequitable distribution of land as well as overcrowding, overstocking and poverty in the countryside. It has become imperative that fundamental change is brought about in order to improve economical opportunities of all South Africans to access land for beneficial and productive use. Land reform, as the central thrust of land policy, is not only part of the effort towards the creation of equitable land distribution, but also of national reconciliation and stability. This study analyzed the notion of economic empowerment of farm workers. It looked at historical overview of the evolution of politics in South Africa and contemporary legislative framework pertaining to land redistribution and farm workers in the Western Cape. A case study of Bouwland farm in the Stellenbosch agricultural area was used as an example of how land redistribution can contribute to economically empower farm workers.
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  • Date Issued: 2008

An investigation on the impact of the land redistribution and development (LRAD) programme with special reference to the Tsomo Valley Agricultural Co-operative farms

  • Authors: Tuta, Wonga Precious
  • Date: 2008
  • Subjects: Rural development -- South Africa , Land Redistribution for Agricultural Development (South Africa) , Land tenure -- South Africa
  • Language: English
  • Type: Thesis , Masters , MA
  • Identifier: vital:9080 , http://hdl.handle.net/10948/1126 , Rural development -- South Africa , Land Redistribution for Agricultural Development (South Africa) , Land tenure -- South Africa
  • Description: The purpose of the research was to assess the policy impact of the Land Redistribution and Development (LRAD) Programme, which substituted the Settlement and Land Acquisition Grant (SLAG) programme. Both these policies were meant to make land accessible to previously disadvantaged groups including Africans, Coloureds and Indians, as part of land reform policies of the post 1994 democratic government. Due to some failures of SLAG after its first five years of implementation, which were from 1995 to 1999, the land redistribution policy was revised and the LRAD programme came as an improved policy of SLAG. There has not been much research on the impact of this programme, which has been implemented since August 2001.
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  • Date Issued: 2008

Access to land as a human right the payment of just and equitable compensation for dispossessed land in South Africa

  • Authors: Yanou, Michael A
  • Date: 2005
  • Subjects: Human rights -- South Africa , Compensation (Law) -- South Africa , Right of property -- South Africa , Land reform -- South Africa , Land tenure -- South Africa , Constitutional history -- South Africa , Restitution -- South Africa , Land tenure -- Law and legislation -- South Africa , Land reform -- Law and legislation -- South Africa
  • Language: English
  • Type: Thesis , Doctoral , PhD
  • Identifier: vital:3699 , http://hdl.handle.net/10962/d1003214 , Human rights -- South Africa , Compensation (Law) -- South Africa , Right of property -- South Africa , Land reform -- South Africa , Land tenure -- South Africa , Constitutional history -- South Africa , Restitution -- South Africa , Land tenure -- Law and legislation -- South Africa , Land reform -- Law and legislation -- South Africa
  • Description: This thesis deals with the conceptualization of access to land by the dispossessed as a human right and commences with an account of the struggle for land between the peoples of African and European extractions in South Africa. It is observed that the latter assumed sovereignty over the ancestral lands of the former. The thesis discusses the theoretical foundation of the study and situates the topic within its conceptual parameters. The writer examines the notions of justice and equity in the context of the post apartheid constitutional mandate to redress the skewed policy of the past. It is argued that the dispossession of Africans from lands that they had possessed for thousands of years on the assumption that the land was terra nullius was profoundly iniquitous and unjust. Although the study is technically limited to dispossessions occurring on or after the 13th June 1913, it covers a fairly extensive account of dispossession predating this date. This historical analysis is imperative for two reasons. Besides supporting the writer’s contention that the limitation of restitution to land dispossessed on or after 1913 was arbitrary, it also highlights both the material and non-material cost of the devastating wars of dispossessions. The candidate comments extensively on the post apartheid constitutional property structure which was conceived as a redress to the imbalance created by dispossession. This underlying objective explains why the state’s present land policy is geared towards facilitating access to land for the landless. The thesis investigates the extent to which the present property structure which defines access to land as a human right has succeeded in achieving the stated objective. It reviews the strengths and weaknesses of the land restitution process as well as the question of the payment of just and equitable compensation for land expropriated for restitution. The latter was carefully examined because it plays a crucial role in the success or otherwise of the restitution scheme. The writer argues that the courts have, on occasions, construed just and equitable compensation generously. This approach has failed to reflect the moral component inherent in the Aristotelian corrective justice. This, in the context of South Africa, requires compensation to reflect the fact that what is being paid for is land dispossessed from the forebears of indigenous inhabitants. It seems obvious that the scales of justice are tilted heavily in favour of the propertied class whose ancestors were responsible for this dispossession. This has a ripple effect on the pace of the restitution process. It also seems to have the effect of favouring the property class at the expense of the entire restitution process. The candidate also comments on the court’s differing approaches to the interpretation of the constitutional property clause. The candidate contends that the construction of the property clause and related pieces of legislation in a manner that stresses the maintenance of a balance between private property interest and land reform is flawed. This contention is supported by the fact that these values do not have proportional worth in the present property context of South Africa. The narrow definition of “past racially discriminatory law and practices” and labour tenant as used in the relevant post apartheid land reform laws is criticized for the same reason of its uncontextual approach. A comparative appraisal of similar developments relating to property law in other societies like India and Zimbabwe has been done. The writer has treated the post reform land evictions as a form of dispossession. The candidate notes that the country should guard against allowing the disastrous developments in Zimbabwe to influence events in the country and calls for an amendment of the property clause of the constitution in response to the practical difficulties which a decade of the operation of the current constitution has revealed.
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  • Date Issued: 2005

Rights-based restitution in South Africa : developmental land reform or relocation in reverse?

  • Authors: Roodt, Monty
  • Date: 2004
  • Subjects: Restitution -- South Africa , Land reform -- South Africa , Right of property -- South Africa , Land settlement -- South Africa , Land tenure -- South Africa , South Africa -- Commission on Restitution of Land Rights
  • Language: English
  • Type: Thesis , Doctoral , PhD
  • Identifier: vital:3351 , http://hdl.handle.net/10962/d1007211 , Restitution -- South Africa , Land reform -- South Africa , Right of property -- South Africa , Land settlement -- South Africa , Land tenure -- South Africa , South Africa -- Commission on Restitution of Land Rights
  • Description: The main question of this thesis is to what extent the rights-based and market-driven nature of the restitution program has given rise to a legalistic and bureaucratic process that negates both the demand-driven and the developmental aspects of restitution as land reform. I answer this question by showing that the choice of a Constitutional model with a Bill of Rights provides the background for a rights-based land reform program. This is especially true for the restitution sub-program, one of the three branches along with redistribution and tenure of the overall land reform program. I then consider the debate around the property clause, and how its inclusion provided the context for a market and rights-based approach to land reform as opposed to a supply-led administrative approach. Because the property clause as a First Generation right prevents expropriation of land without market-related compensation, a complex and legalistic land reform program falling within the ambit of Second Generation rights was formulated to address the gross imbalance in land ownership in South Africa. I argue that the contemporary origin of Second Generation human rights lies within the context of class and anti-globalisation struggles for democracy, and that they are something to be fought for and defended. I discuss the distinction between First, Second and Third Generation rights and identify four spheres within which the struggle for Second and Third Generation rights takes place within modern democratic states. These are the state, the representative public sphere, civil society and the private sphere. I then deal with the problem of trying to turn "paper rights" into realisable rights for the more disadvantaged sectors of society. I also look at what impedes their realisation. I argue that a number of strategies are necessary to ensure the delivery of Second and Third Generation rights. These are an adequate legislative framework, a good communication strategy, the development of institutional capacity to deliver, and if all else fails, access to conflict resolution mechanisms. I consider the major impediments to the realisation of Second and Third Generation rights to be the way in which they are defined in relation to First Generation rights, especially the property clause, the way in which access to rights-backed resources through formal institutions are mediated by the operation of informal institutions, and the dearth of administrative competence in South Africa. My point is that in order for Second and Third Generation rights to have practical benefit for the dispossessed and poor, extraordinary measures are needed. The Restitution arm of the land reform program provides in theory just such extraordinary measures, albeit for only a section of the population. I analyse the effectiveness of the Land Claims Court in assisting restitution claimants and the rural poor to realize their rights. I trace the slow and haphazard shift from a positivistic statutory interpretation (narrow, literal, legalistic) to a purposive interpretation (informed by the Constitutional spirit and social purpose of the legislation) by the Court. This is followed by an analysis of the restitution business process, which means tracing the path of the claim from lodgement to settlement. I set out the costly, complex and legalistic implementation and policy process in some detail. My argument is that in order for a rights-based approach to overcome the impediments outlined in Chapter 3, as well as the property clause in the Constitution, its architects designed a complex process that in the end proved counter-productive in terms of its original aims. The failure of the process to deliver led in 1998 the then Minister of Land Affairs, Derek Hannekom, to appoint a Ministerial Review to investigate the problems. Problems included: slowness of delivery, the crisis of unplannability, low levels of trust between implementers, and high levels of frustration. Two issues are analysed more fully, the rights-driven approach as opposed to the rights-based approach and the lack of claimant participation in taking control of the restitution process. I examine the relationship of the Restitution Commission to the Department of Land Affairs and to municipal land use planning processes. The emphasis on rights within the restitution program had the effect of distancing restitution, especially in the first few years of the programs' existence, from the rest of the land reform program, as well as from the local government process of formulating land development objectives (LDOs), and the Integrated Development Planning (lOP) process. I look at the Port Elizabeth Land and Community Restoration Association (Pelcra) as a case study as it embodies an approach that tries to move beyond a mere reclaiming of rights in land and attempts to implement a developmental approach. I conclude that the rights-based restitution program in spite of its many shortcomings has had some success. It has moved slowly from an overly legalistic judicial program to a more administrative but still bureaucratic process, that has delivered only 27 percent of its product as land reform, the rest going to monetary compensation mainly in urban areas. Thus it can be argued that restitution has been more successful as a program to promote reconciliation along the lines of the Truth and Reconciliation Commission, than as a land reform program, especially if one regards land reform as the restoration of rural land to the indigenous population. There have also been some successful attempts by the Commission, such as in the case of PELCRA, to integrate the processing of its claims with local government planning processes, but progress in this direction remains patchy.
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  • Date Issued: 2004

Land, labour and African affairs, 1924-1934

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