Law needed for land restitution without compensation - Gugile Nkwinti

Minister says this should follow a pre-colonial audit of land ownership, use and occupation patterns

Minister Gugile Nkwinti: Debate of the State of the Nation Address

14 Feb 2017

'Giving hope to our people'
Returning the land to the people and progress thereof

The road is long and full of difficulties. At times we wander from the path and must turn back; at other times we go too fast and separate ourselves from the masses; on occasions we go too slow and feel the hot breath of those treading on our heels.

In our zeal as revolutionists we try to move ahead as fast as possible, clearing the way, but knowing we must draw our sustenance from the mass and that it can advance more rapidly only if we inspire it by our example.

Che Guevara

The 53rd National Conference of the governing party decided on radical economic transformation as a characteristic feature of the second phase of the National Democratic Revolution (NDR). Economic transformation is not for itself, but to transform the social conditions of our people.

In this context, radical socio-economic transformation denotes a fundamental change in the structure, systems and patterns of ownership and control of the economy.

The key elements to be transformed are:




control; and,


There are two underlying concepts which characterize the kind of change we seek to achieve, namely:

fundamental change – uprooting the current order; and,

patterns – historical nature of ownership and control of the economy, which is characteristic of Colonial and Apartheid era South Africa.

Within this context, the following will be done to ensure the attainment of our overall goal of Radical socio-economic transformation in relation to land reform:

Undertake a pre-colonial audit of land ownership, use and occupation patterns.

Once the audit has been completed, a single law should be developed to address the issue of land restitution without compensation. The necessary constitutional amendments should be undertaken to effect this process.

Re-design and establish the National Land Claims Commission as a Chapter 9 Institution.

For the period 1994 to date, 4 850 100 hectares have been acquired through the land redistribution programme. 1 743 farms have beneffited from the Recapitalisation and Development Programme from 2009 to date. In respect of the restitution programme,

3 389 727 hectares were restored, 1994 to end January 2017. Financial compensation amounting to R11.6 bn was paid out to land claimants who opted for this alternative for the same period. Had these claimants opted for land to be restored, a further 2 772 457 hectares would have been restored.

One of the most serious challenges facing the implementation of the land reform programme relates to incoherent institutional transformation. It is often assumed that land reform falls exclusively within the mandate of the DRDLR. This statement is an over-simplification of a complex matter. The following challenges serve to elaborate on the complexities faced:

Accurate recordkeeping in relation to progress made in respect of land redistribution and restitution:

Land parcels registered in the name of Trusts. Actual ownership cannot be determined without access to the records of the Office of the Master of the Supreme Court (Department of Justice and Correctional Services). These records are in paper format, incomplete in certain instances and therefore difficult to access and place reliance on;

Land parcels registered in the name of companies and other legal entities registered with the CIPC. Actual ownership (shareholders’ details) can only be determined through access to CIPC records (Department of Trade and Industry);

Land parcels registered in individual names. Racial classification of owners can currently not be determined in all instances due to the racial declassification of Department of Home Affairs records.

Finally, Post-1994, Deeds Offices ceased to keep record of the race of owners.

The role of the National Department of Human Settlements in predominantly urban land reform:

Almost 5 million low income housing units have been constructed through various subsidy instruments of the Department since 1994. Not all title deed transfers have been effected in respect of these beneficiaries, either due to slow conveyancing processes or due to the conditions attached to the various subsidy instruments eg. Social housing. These land transfers should not be ommitted from our transformation progress measurements.

The Department of Water and Sanitation controls the Water Act. Water rights are attached to farm owners, not the farm. Land reform farmers have to apply for water rights after receiving land.

The Department of Agriculture, Forestry and Fisheries controls the Prohibition of Subdivision of Agricultural Land Act, Act Number 70 of 70. Land use changes take place all over the country, affecting land reform.

These are but a few examples of the complexity of land reform.

The above points speak to the need for a coherent institutional transformation, rather than one that is perceived of as a single-departmental program. Land reform is not just about taking land from one racial group and give to another.

It is, even more importantly, a qualitative function. One of the main focus areas of the DRDLR’s land reform programme has been appropriate institutional reform to address the legacy of colonialism and apartheid, still manifested in our land administration systems.

To name but a few, these reforms include the establishment of the Office of the Valuer General, the promulgation of the Spatial Planning and Land Use Management Act with associated implementation structures; the operationalisation of the District Land Reform Committees, as per the NDP; the conceptualisation of the Land Commission as per the Regulation of Agricultural Landholdings Bill; the Land Rights Management Board and District Committees as per the ESTA Amendment Bill, etc.

To further promote radical socio-economic transformation, the Department is vigorously driving the Strengthening of Relative Rights of People Working the Land (50/50) Programme and the One Household one Hectare Programme.

Some of the successes of the 50/50 Programme include Solms Delta (Western Cape), Birbury (Eastern Cape) and Westcliffe (KZN), bringing together previously disadvantaged farmworkers and former farm owners in a sustainable business venture undepinned by a land redistribution and business ownership model.

Issued by the Department of Rural Development and Land Reform, 14 February 2017