PRESENTATION BY NKUZI DEVELOPMENT ASSOCIATION

TO THE PORTFOLIO COMMITTEE ON AGRICULTURE AND LAND AFFAIRS

THE PACE OF LAND REFORM

MEETING THE CHALLENGE: DELIVERING LAND AT SCALE AND REALISING THE DEVELOPMENT BENEFITS

1. INTRODUCTION

Thank you for the opportunity to make this submission. The question of the pace of land reform has been a contentious one since 1994. Those dispossessed of land, those in poverty with no land to produce on, and those with no secure home have believed since the advent of democracy that their plight would be addressed. However many have been frustrated by the slow pace of change in land ownership and access¹. While current owners have often been vocal, with a lot of support from the media, in calling for their rights to be protected, those who have already lost everything have been remarkably patient in waiting for justice to be done. The government should not take this patience to mean there is no interest in land or assume that this patience will last for ever.

Nkuzi is an NGO working on all aspects of the land reform programme primarily in Limpopo Province and also in Gauteng. This submission is informed by the extensive field experience that Nkuzi has in supporting the rural poor to benefit from land reform and assisting people to understand and defend their land rights.

This submission will make a number of specific recommendations as we believe simply re-stating the many problems may not take the debate further forward. In making these recommendations, the challenges the recommendations seek to address will also become clear.

The recommendations are aimed at increasing the pace of land reform delivery and the quality of what is delivered. Quality for us means to maximise the development benefits that land reforms can bring. This government’s land reform programme has always aimed to improve the lives of the poor and contribute to economic development; the beneficiaries of land reform are just as keen to experience these benefits. Ensuring effective use of land and broader economic and community development are not nice to have add on extras, they are a fundamental part of land reform and have to be part of our thinking when we tackle the question of the pace of land reform.

2. RECOMENDATIONS

2.1 Develop a Vision for the Outcome of Land Reform

It is important to have a vision, if possible a common vision amongst all key stakeholders, of how we envisage rural areas post land reform. There is currently no clarity on what kind of rural areas, rural economies and rural settlements we want to create. The percentage of land planned for transfer does not tell us the kind of society we are building in rural areas. The strategic plan for agriculture was developed with only certain organised land owners being consulted and it defines no vision beyond aiming for a profitable agricultural sector. This cannot be called a vision, will never have support outside the tiny number of farm owners, and fails to address the issues of millions of rural dwellers who live in poverty.

It has become clear that delivery of land at pace and scale will best be implemented with the contribution of as wide a range of stakeholders as possible. Such a vision will give all stakeholders something to collaborate in creating and give purpose to land reforms. It will become clearer what different government departments need to contribute and inform the design of implementation systems.

If we expect to get the cooperation of current landowners and continue to benefit from the skills and experience that some of them have there will have to be a place for the “white commercial farmers” in this vision.

2.2 Integrated Land Reform Delivery at Local Municipality Level.

Working at a local area level, we believe the local municipality would be the most appropriate level, will enable the building of a common vision for an area and enable the coordination of a range of complimentary support measures. A vision purely built at a national level runs the risk of ignoring the realities on the ground and becoming part of an inappropriate ‘master plan’ pushed form the top. Dealing individually with claims and projects makes it impossible to look at a broader vision for how an area should be developed and, given that there are thousand of project, makes the coordination of different departments and other agencies virtually impossible. At a local level stakeholders can look at the real needs and potentials and seek workable solutions. By considering all claims and other projects and land needs within the area at once it becomes possible to plan support measures for land reform in the area, rather than trying to plan for each individual project. Part of such a local area approach would also involve integrating land reform plans with the Integrated Development Plans and build on the municipality’s role of coordinating and ensuring development delivery.

Such a local approach should also speed up the delivery of land; it must not be allowed to become another delaying process that has to be completed before land can be transferred. For example by clustering land claims one service provider can investigate all of them at once and they are often found to have common histories. We have had successes with such clustering in a number of areas. Boundary disputes can be more easily resolved as the claimants are working together and there is a common interest in reaching agreement in order to move forward. Issues of farm dwellers rights can be resolved as part of the same process and solutions for the area are often more feasible than trying to secure peoples tenure on individual farms. Decentralisation of capacity and decision making to a local level will also speed up the settlement of claims and implementation of redistribution project. The Department of Land Affairs (DLA) has started trying to decentralise, but there is still inadequate delegation of authority and not enough personnel at a local or district level.

Not all the required complimentary support measures have to be in place before land can be delivered. Some, such as improvements in infrastructure in the area and the upgrading of agricultural extension services, can be implemented alongside the delivery of land. The more support that is in place when people get land the better, but these should not be obstacles to people getting land, especially in the case of the restoration of land to claimants.

There is a great need to take a more economic development approach to land reform. In some municipalities in Limpopo more than 90% of land is under claim. The return of this land will have a profound affect on the entire economy of these areas. This cannot be looked at purely as an administrative or legal process of dealing with individual projects, the implications for the economy have to be assessed and dealt with. This should not be used as an obstacle to returning land, but a mechanism to ensure that the return of land can if make a greater contribution to the economy. The approach needs to move from thinking in terms of providing support such as training to individual projects (not that this should not happen as well) to creating an enabling environment for new farmers to succeed. More attention has to be given to interventions such as developing institutions to assist in ensuring access to markets, supplies and capital within the area. Multipliers in the local economy and linkages to the non-farm sector need to be identified and interventions made to enhance these. Such interventions can only start to happen if we look at land reform at a local rather than project level.

There is a need to assess the current land reform delivery mechanisms to see if they are able to support this kind of more flexible and development orientated approach. More flexible systems to support local solutions may be necessary. Piloting an area approach with some municipalities would create learning opportunities to see how this can work in practice. Nkuzi, in cooperation with landless people, the Municipality and the relevant departments, is working on developing such a pilot in the Makhado Municipality and we are pleased that the Minister for Agriculture and Land Affairs has indicated support for the initiative.

2.3 More Effective Land Acquisition

The state remains a poor buyer of land, slow in finalising deals and often paying too much for inappropriate land. Part of the problem is the willing buyer willing seller approach that allows land owners to dictate, which land becomes available for redistribution. In land claim settlements expropriation has still not been used making even the restoration of land to the rightful owners’ dependent, in practice, on a willing seller.

It is often said that there is much land on the market, the state must just buy. What this does not address is whether the land being sold is the most appropriate. This approach will also tend to leave the best land in the hands of the current owners as the best will be the last to be sold. The 30% to be redistributed must not be only the land that white owners feel is superfluous to their needs. An integrated local area approach, as suggested above, would require the acquisition of land that is suitable for development within an area, it also offers a route to a more proactive identification and purchase of land required for reforms.

We suggest the proactive identification of land needs (This would include mapping existing land claims and also assessing other needs such as for farm dwellers and other marginalised groups that have often not been able to articulate a clear demand) and the proactive purchase of land to meet these needs. Where owners are not willing to sell expropriation needs to be used. Delivering land at scale and pace requires that the financial burden on the state should not be too great, therefore owners who are expropriated should not be paid at market value, but provided with the minimum amount that conforms to the Constitutional definition of “just and equitable” compensation. This will have the added advantage of speeding up land acquisition through encouraging owners to agree to sell.

2.4 Secure Farm Dwellers Rights With Legislation and Proactive Programmes.

The millions of farm dwellers in the country² remain amongst the poorest and most vulnerable in the South African society. They are still subject to evictions and other human rights abuses as confirmed through numerous reports, including those produced annually by the South African Human Rights Commission (SAHRC) and the SAHRC “Inquiry into Human Rights Violations in farming Communities released in August 2003. The work of Nkuzi puts us in touch with this reality on a daily basis. For farm dwellers the pace of land reform has been extremely slow. There are few labour tenant claims settled, only a handful of ESTA section 4 settlements, and few farm dwellers benefit from redistribution or restitution. In some cases redistribution and restitution projects have even undermined the rights of farm dwellers.

The DLA must amend legislation to strengthen the rights of occupiers, specifically to create a class of non-evictable occupiers. There are farm dwellers who are of such an age and have spent so long on farms that there can be no moral justification for taking their homes and means of production. At the very least there should be absolutely no eviction without an equivalent alternative land being provided. It appears³ that the need for such amendments was identified within the DLA as long ago as 1999 and proposals have gone to the Minister in 2002, these proposals must be made available for debate and more importantly brought to you at parliament so that amendments can be made. We humbly request that you as the responsible Portfolio Committee follow up on this matter.

We further recommend that the DLA needs to be proactive in going out to create viable settlements for farm dwellers in commercial farming areas. It is not good enough to wait for an eviction to happen or expect that farm dwellers will be able to initiate such projects themselves. Any settlements must give farm dwellers independent secure homes and opportunities for their own production, thus breaking the relationship of dependency that characterises farmer worker relations at present.

Dealing with tenure security for farm dwellers will require a dedicated budget. We are concerned that there is no such budget at present and the land reform budget, from which such funds come, is being absorbed by LRAD projects that rarely if ever benefit farm dwellers. This again we humbly suggest is an area that you as the Portfolio Committee could address.

We would be interested to know how many farm dweller have gained their own land through land reform and how much of the current budget for land reform is used to secure the tenure rights of farm dwellers. We hope that if you are unable to tell us you would be able to find out from the DLA. Such information needs to be available and monitored or farm dwellers are likely to always be marginalised in land reforms.

2.5 Business Skills Required in the CRLR and DLA

We recommend that the DLA and even more importantly at this time the Commission for the Restitution of Land Rights (CRLR) have available high level business and economic skills. In the settlement of land claims the CRLR, through its Regional Land Claims Commissions (RLCCs) is setting up business ventures and business deals, in some cases for assets and operations running into the hundreds of millions. This is all being done with virtually no skills to assess the potential of these businesses and to set up appropriate and viable entities and partnerships. There are also no skills being utilised to address questions around the impact of land reforms on the broader economy.

2.6 Restitution is an Opportunity for Dramatic Rural Change, This Opportunity Cannot Be Squandered.

It has emerged that in some rural areas almost all land is under claim. This means that restitution presents an opportunity for the speedy delivery of large amounts of land and the dramatic transformation of some rural areas. To do this effectively is going to require far more resources, not just for the settlement of claims, but in the creation of an enabling environment for claimants to succeed and contribute to development.

What is at stake is not just the return of the land, but the pace of rural change and people’s future livelihoods and opportunities. The settlement of these claims must be done properly to utilise the opportunities, rushing to meet a deadline must not compromise the future of the land and the claimants. Pushing people to take cash, rushing settlements in a way that sets people up to fail, or putting in place partnership agreements that leave the structure of agriculture unchanged is not in the interests of claimants or increasing the pace of land reform. Such scenarios could set land reform back for years if not decades.

One particular concern that needs to be brought to your attention is the way some strategic partnership agreements, involving land to be restored, are being set up. There are no transparent procedures being used and no objective criteria in the selection of strategic partners. It appears that in some cases strategic partners are being pushed on claimants by RLCC staff. Given that the resources at stake are enormous this is a very worrying trend and one open to enormous abuse and corruption. While appreciating the pressure that RLCC staff are under these processes have to be dealt with properly, in the long run this will save time and reduce the risks.

There is enough experience now available to identify what is needed to do land restoration properly; as quickly as possible and also in a way that brings the transformation and development benefits. This needs to be more clearly articulated and the necessary resources and time needs to be made available for implementation. It is already clear that doing restitution properly is going to require rethinking the deadline for finalising all claims by the end of 2005. The deadline is admirable; sadly the resources and systems have not been put in place to make it achievable. Now there is insufficient time left and the latest requests from the CRLR and the DLA for substantially more resources have been rejected.

The idea that land claims can be ‘settled’ by the end of next year with no clear land use arrangements in place and payments, land transfers and post settlement support all to be dealt with later is extremely dangerous. This creates false hopes and expectations amongst land claimants and means that current landowners will not maintain the farms as they know they will soon be out. On highly productive land there has to be a clear arrangement in place for the management of the land and the management of the transition period between old and new owners. This must be in place before it can be said that a claim is settled. Without this the businesses on the land and the potential of the land will be destroyed. Destroying productive farms cannot be counted as increasing the pace of land reform, it will be a set back for all involved.

2.7 Deal with Obstructive Land Owners

Obstructive land owners are one of the numerous challenges to making land reform work at pace. Obstruction is taking a number of forms such as: simply refusing to cooperate; demanding lengthy negotiations; demanding unreasonably high prices; trying to dictate the nature of settlements such as farmers who demand to continue as farm managers with long terms leases or other such concessions; and refusing CRLR and DLA staff access to farms to investigate claims or deal with farm dwellers.

There should be negotiations with land owners, but these should be within clear time frames and the government officials and land owners need to stick to agreements. Where negotiations break down or there is a refusal to cooperate expropriation needs to be used and the DLA needs to develop streamlined systems and the expertise to expropriate quickly. Officials need to use their powers to enter farms for purposes of investigation and should not be tied into endless negotiations about this. A clear message needs to go out from the most senior level of government that land owners need to cooperate with land reforms as part of the required transformation of the country. The current cosy relationship where organised agriculture meets the Minister and the President on a regular basis, while landless people cannot get a hearing, must change. Farmers get confidence from this relationship with the President and often refer to it in meetings as a means to indicate that they can call on higher authority if they do not get their way. The message it sends to landless people and those working to implement land reform, in government and outside, is that farmers are protected and seen as more important than landless people who want their land back.

2.8 Need to Improve Monitoring of Land Reform Implementation

There is a great need for improved monitoring and evaluation of land reform implementation to inform policy makers, such as yourselves, and the implementers. When discussing the pace of land reform the information informing the debate is inadequate. It is hard to establish accurate information on the real pace of land reform delivery and there is almost nothing available on the impact of land reform on people’s livelihoods and economic on development.

There are a number of examples of the weaknesses of current monitoring. Some people have written about the failures of certain land reform projects and created an incorrect impression that all land reform projects are disasters. Unfortunately there has been little empirical information available to counter this overly negative picture. Land claims are identified as settled because settlement agreements have been signed, but in practice many such claims have not yet reached a point of land and grants being transferred. Many redistribution projects and land claims have been settled on land that was state land, bought under apartheid for incorporation into homelands, and some of this land was already occupied by black farmers. The approval of transfer of such land gets reported as land redistributed whereas it has not made more land available to black farmers and is not addressing the racial inequalities in land access. Monitoring needs to deal with these issues so that a correct picture emerges of the weaknesses and real progress of land reform.

2.9 CLRA Implementation: What are the plans?

Much debate took place in this committee around the Communal Land Rights Act (CLRA). We do not wish to go over that again here, but we should not forget this critical piece of legislation that could have a profound affect on the lives of around 15 million rural people. For now we would like to ask you a few simply questions that we believe are of importance to millions of people. Where are the regulations and the implementation plans for the CLRA? How much money has been made available for implementation? When will CLRA come into affect?

2.10 Land Reform Must Be Prioritised

It is in the interests of landless people, the country and even current land owners that the pace of land reform delivery is increased, provided it is also done properly. Making it work requires a greater level of involvement from a range of different government departments and other stakeholders and greater commitments of resources. At the highest level of government - Parliament, Cabinet and the Presidency - land reform needs to be prioritised. This priority is justified, by the importance of land reform in addressing the legacy of apartheid, the potential positive benefits if it is done well, and the negative consequences to the country of not making sufficient reforms or doing them badly.

Thank you again for the opportunity to make this submission. Should you wish to follow up on any of the issues raised here we would welcome the opportunity to interact with you further or assist in any way that we can.

Nkuzi Development Association

Box 5970, Polokwane North, 0750

Tel: 015-297 6972 Fax: 015-297 6975

E-mail: landnow@nkuzi.org.za

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