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Land Use & Restitution   

Introduction

South Africa has a proud history of conserving its natural heritage and is internationally respected for the work it has done in this regard. However the credible reputation in recognition for work done in conservation has come at a cost.

The creation of most of our national and provincial parks has led to the removal of communities whose property rights were disregarded on a racial basis. The removal of these communities consolidated the creation of ethnic homelands basic to the policy of separate development.

Once created these parks favoured access by whites, with persons of other race groups allowed restricted entry, if at all, on condition which favoured white rights and did not clash with the policies of racial segregation. Conservation in South Africa became and is in danger of remaining a white preserve. Restitution to rights in and falling within nature reserves could contribute greatly to the integration of conservation and to make it a truly South Africa concern.


Protected areas, State resource areas and Restitution areas falling under Community Tourism and Conservation initiatives in the Biosphere region

Restitution of Land Rights Act 22 of 1994

The right to restitution is contained in section 25(7) of the Constitution of the Republic of South Africa Act 108 of 1996 - the Constitution. The Constitution entitles persons to claim restitution of rights in land lost as a result of racial discrimination practised as a matter of policy by previous government to the extent provided for by the Restitution of Land rights Act 22 of 1994 as amended - the Act. The Constitution also contains clauses in the Bill of Rights which protects the promotion of conservation including securing ecologically sustainable development and the use of natural resources while promoting justifiable economic and social development, section 24.

The right to restitution and environmental rights need to be balanced off against each other in a way which will do justice to both correct racially skewed property relationships brought about by the implementation of spatial apartheid and to redress the sense of social loss and degradation so basic to racial discrimination. In order to understand the impact of restitution on property relationship in South Africa it is necessary to understand the concept of rights in land as defined in the Act.


Gazetted Land Claims falling predominantly under Protected Area status within the Biosphere Region

Right in Land is defined in the Act as: "any right in land whether registered or unregistered, and may include…. Beneficial occupation for a continuous period of not less than ten years prior to the dispossession in question." The definition is wide and includes far more that what is generally understood under the term ownership both at common law and customary law. It puts traditionally insecure rights of tenure on a par with the very strong formally recognised common law rights of ownership. In most nature reserves communities are therefore able to prove rights in land post 1913.

Because the rights such as they had, were not formally recognised, inadequate composition was paid. The granting of compensatory land was done in terms of racial acts in the interest of separate development. Land granted in compensation was land scheduled for black occupation in term of the Native Trust and Land Act of 18 of 1936 and moreover, had to be land which encouraged the consolidation of population groups along ethnic lines as per Identical Minute NO. 14 of 1965 District Office File No. N2/10/3 Department of Bantu Administration and Development dated 14 April 1965.

As a result, compensation was not only inadequate but also neither equitable nor just. Dispossession in most cases involving conservation areas was gradual and effected through a steady erosion and down grading of rights in land until communities were declared squatters on white land and could be evicted in terms of ostensibly race neutral legislation which govern the legitimate and internationally acceptable activities of nature conservation.

The outcome of a legitimate land claim could be:

  • the restoration of actual title to the claimants,
  • the provision of alternative state owned land to the claimants,
  • financial compensation,
  • the granting of special access to government programmes aimed at the redistribution of land,
  • or any other alternative forms of relief.

The cut-off date for the submission of land claims was 31 December 1998. Such claims are to be processed by a Commission for the Restitution of Land Rights located within DLA (Department of Land Affairs) and an independent Land Claims Court. The Commission seeks to settle claims by allowing parties to negotiate agreements.

The Interim Protection of Informal Land Right Act (1994) makes it difficult for landowners including the State to remove resident populations prior to land claims having been settled. Whereas the Interim Protection of Informal Land Rights Act may provide communities living on or making use of state land with some protection against removal, the Restitution of Land Rights Act may provide such communities of people with actual ownership of that land. Use rights can, however, be restricted by means of conditions written into the title deed or additional agreements made with the respondent.


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