Land Reform in South Africa: An Overview - Centre for Civil Society
Land Reform in South Africa: An Overview - Centre for Civil Society Land Reform in South Africa: An Overview - Centre for Civil Society
housing, it *296 stated: "The rights need to be considered in the context ofthe cluster of socioeconomic rights enshrined in the Constitution. Theyentrench the right of access to land, to adequate housing and healthcare,food, water and social security." [FN40] [Emphasis added].Thus, although the Constitution does not expressly state access to land as aright, the Constitutional Court has interpreted it as such. The Court furtherstates: "The state must also foster conditions that enable citizens to gainaccess to land on an equitable basis. Those in need have a corresponding rightto demand that this be done." [FN41] The court emphasized that theConstitution obliges the state to give effect to socio-economic rights andthat in appropriate circumstances the courts must enforce these rights. [FN42]The state's obligation to foster access to land is, however, not absolute.First, the state is only required to take "reasonable legislative and othermeasures" and secondly, it is only obliged to act "within its availableresources" to foster conditions that enable citizens to gain access to land.[FN43] The Constitutional Court has indicated that the executive andlegislature have discretion to determine from among a range of possiblemeasures what option(s) should be adopted. However, to be reasonable, aprogram must be capable of facilitating the realization of the right. [FN44]The policies and programs must be reasonable in their conception as well astheir implementation. [FN45] Most importantly, the measures must take intoaccount the social, economic and historical context. [FN46] They must notleave out those most in need. "If the measures, though statisticallysignificant fail to respond to the needs of those most desperate, they may notpass the test." [FN47]*297 As far as "available resources" are concerned, it is recognized thatthe state does not have unlimited resources to satisfy all the legitimateneeds of its citizens. Therefore, the fulfillment of the obligations under theConstitution is subject to availability of resources in the context of theother obligations of the state. [FN48] The determination of how much moneyshould be allocated to land reform is regarded as a matter for the executiveand the legislature. The Constitution Court has made it clear that courtsshould be slow to interfere in such decisions unless there is a clear need todo so to protect constitutional rights. [FN49]Enabling LegislationThere is no comprehensive law providing for mechanisms for redistribution ofland in order to eliminate land hunger and achieve an equitable distributionof land in accordance with section 25(5) of the Constitution. There is apre-1994 law [FN50] which was not meant to bring about large scaleredistribution but was rather intended by the last apartheid government toalleviate the more glaring needs for land, especially for housing inovercrowded African townships and hopefully thereby to avoid radical changesto the distribution of land by a future black government. This law was amendedpage 8 of 28
in 1998 [FN51] to broaden its scope, but remains limited. The Act empowers theMinister to designate state or private land for acquisition, development andtransfer of land for settlement or for small-scale agricultural purposes tobenefit the poor. The Minister has power to expropriate land forredistribution subject to compensating the owner. [FN52]*298 There are other laws which primarily deal with other aspects of landreform but only deal with acquisition of land by specific types of persons ingiven circumstances. Thus, the Land Reform (Labour Tenants) Act provides for alabour tenant who qualifies as such under the Act to apply for acquisition ofthe land on which he/she resides or on which he/she was residing before he/shewas evicted. [FN53] The state would provide the means to purchase such landfor the tenant from the current owner. However, this particular mechanism forredistribution was only intended to be operative for five years from 1996. Thedeadline expired in March 2001, after a year's extension. According to theDepartment of Land Affairs (DLA), 21,000 applications had been received by thedeadline. 19,000 were considered valid, 2000 were rejected as invalid andabout 5000 had received land by mid-2003. [FN54]Another law that may be used for redistribution for a dedicated class ofpersons is the Extension of Security of Tenure Act (ESTA), [FN55] discussedlater under tenure reform, which is primarily aimed at providing security oftenure to occupiers living on other people's land in rural areas. This Act isaimed at protecting mainly current and former farm workers and their familiesliving on commercial farms from unfair evictions. In addition, section 4 ofthe Act provides that such occupiers may apply to the Department of LandAffairs for the acquisition of the land on which they are residing or otherland off the farm which is provided by the owner of the land on which theyreside or by another person. [FN56] There is no reliable information as to howeffectively this form of redistribution mechanism has been used. According toDLA information, 9,227 hectares have been transferred to 1,699 households offarm workers or former farm workers. [FN57] The Development Facilitation Act[FN58] is equally limited in its scope and effect on redistribution. This Actis largely aimed at accelerating development of land for settlement bybypassing cumbersome sub-division, planning and building regulations that areordinarily required in the development of a township. Again it empowers theMinister to designate land for development and provides mechanisms forapproval of development plans by special tribunals etcetera. However, althoughthe developed areas are ultimately *299 allocated to individual owners, thislaw cannot be said to have a serious impact on making land available to thosewho need it.It has been argued that there is a need for a comprehensive and effectiveland redistribution law enacted after wide consultation, providing for rightsof potential beneficiaries and specifying responsibilities of the statethrough its local, provincial and national organs in order to effectivelyaccomplish the purpose of section 25(5) of the Constitution. [FN59]page 9 of 28
- Page 1 and 2: Land Reform in South Africa: An Ove
- Page 3 and 4: alleviate poverty, especially in th
- Page 5 and 6: in the Western Cape (Cape Town), ru
- Page 7: settled with monetary compensation
- Page 12 and 13: Although commonage accounts for 31%
- Page 14 and 15: former homelands, pending the intro
- Page 16 and 17: either the private landowner or the
- Page 18 and 19: This provision was included in the
- Page 20 and 21: [FN8]. For a detailed account of th
- Page 22 and 23: [FN29]. Restitution of Land Rights
- Page 24 and 25: [FN49]. See for instance: Soobramon
- Page 26 and 27: [FN73]. Ibid. Box 4.4.[FN74]. Infor
- Page 28: [FN95]. For a summary of these crit
hous<strong>in</strong>g, it *296 stated: "The rights need to be considered <strong>in</strong> the context ofthe cluster of socioeconomic rights enshr<strong>in</strong>ed <strong>in</strong> the Constitution. Theyentrench the right of access to land, to adequate hous<strong>in</strong>g and healthcare,food, water and social security." [FN40] [Emphasis added].Thus, although the Constitution does not expressly state access to land as aright, the Constitutional Court has <strong>in</strong>terpreted it as such. The Court furtherstates: "The state must also foster conditions that enable citizens to ga<strong>in</strong>access to land on an equitable basis. Those <strong>in</strong> need have a correspond<strong>in</strong>g rightto demand that this be done." [FN41] The court emphasized that theConstitution obliges the state to give effect to socio-economic rights andthat <strong>in</strong> appropriate circumstances the courts must en<strong>for</strong>ce these rights. [FN42]The state's obligation to foster access to land is, however, not absolute.First, the state is only required to take "reasonable legislative and othermeasures" and secondly, it is only obliged to act "with<strong>in</strong> its availableresources" to foster conditions that enable citizens to ga<strong>in</strong> access to land.[FN43] The Constitutional Court has <strong>in</strong>dicated that the executive andlegislature have discretion to determ<strong>in</strong>e from among a range of possiblemeasures what option(s) should be adopted. However, to be reasonable, aprogram must be capable of facilitat<strong>in</strong>g the realization of the right. [FN44]The policies and programs must be reasonable <strong>in</strong> their conception as well astheir implementation. [FN45] Most importantly, the measures must take <strong>in</strong>toaccount the social, economic and historical context. [FN46] They must notleave out those most <strong>in</strong> need. "If the measures, though statisticallysignificant fail to respond to the needs of those most desperate, they may notpass the test." [FN47]*297 As far as "available resources" are concerned, it is recognized thatthe state does not have unlimited resources to satisfy all the legitimateneeds of its citizens. There<strong>for</strong>e, the fulfillment of the obligations under theConstitution is subject to availability of resources <strong>in</strong> the context of theother obligations of the state. [FN48] The determ<strong>in</strong>ation of how much moneyshould be allocated to land re<strong>for</strong>m is regarded as a matter <strong>for</strong> the executiveand the legislature. The Constitution Court has made it clear that courtsshould be slow to <strong>in</strong>terfere <strong>in</strong> such decisions unless there is a clear need todo so to protect constitutional rights. [FN49]Enabl<strong>in</strong>g LegislationThere is no comprehensive law provid<strong>in</strong>g <strong>for</strong> mechanisms <strong>for</strong> redistribution ofland <strong>in</strong> order to elim<strong>in</strong>ate land hunger and achieve an equitable distributionof land <strong>in</strong> accordance with section 25(5) of the Constitution. There is apre-1994 law [FN50] which was not meant to br<strong>in</strong>g about large scaleredistribution but was rather <strong>in</strong>tended by the last apartheid government toalleviate the more glar<strong>in</strong>g needs <strong>for</strong> land, especially <strong>for</strong> hous<strong>in</strong>g <strong>in</strong>overcrowded <strong>Africa</strong>n townships and hopefully thereby to avoid radical changesto the distribution of land by a future black government. This law was amendedpage 8 of 28
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