This despite the Minister’s assurances. Given South Africa’s history of land dispossessions and wars over land, it is obvious that some individuals and communities lost their land before 1913 and are therefore not included in the land restitution process. The South African Human Rights Commission (SAHRC), has, for example, held public hearings into the alleged marginalisation of the Khoisan community, including their perceived exclusion from the land restitution process.

That is not to say that such individuals and communities are completely excluded from the land reform programme. It is worth a reminder that there are three tenets of land reform, namely; land restitution, land redistribution and the creation of secure tenure. So it would not be entirely true to suggest that there is absolutely no recourse for those dispossessed of land before 1913. In any event, decisions from the Constitutional Court in Alexkor Ltd and Another v Richtersveld Community and Others and Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd recognised that some use rights survived the initial pre- 1913 colonial dispossession of ownership. This surviving right was later the subject of a second dispossession under apartheid. By using this construction, the second dispossession could then be said to meet the 1913 cut-off date. This too means that contrary to what the Minister is suggesting, not all historically-based land claims are necessarily excluded by the 1913 cut-off date.

Importantly, one should bear in the mind that the cut-off date is a feature reflecting the compromise nature of the Constitution. The date attempts to find the balance between the rights of those dispossessed and the rights of the current occupiers. The date was chosen as it coincided with the commencement of the Natives Land Act, which saw the aggressive implementation of discriminatory land access laws to the detriment of largely black South Africans.

Although the Restitution of Land Rights Act recognises the legitimacy of restitution claims for unjust land dispossessions that took place prior to the democratic turnaround of 1994, it is acknowledged that certain historical dispossessions and injustices cannot be restored by means of this process alone. The cut-off date of 1913 is the historical point that signifies the break between historical injustices that have to be restored and those that cannot be restored through the restitution process. Those affected by them could be accommodated in other land reform programmes.

Arguably the cut-off date’s exclusion of further claims for pre-1913 dispossessions is fair, pragmatic and logical. It should be accepted that the cut-off date is the result of a pragmatic decision that allows the major apartheid dispossessions to be rectified, albeit at the cost of other, equally racially determined, pre-apartheid dispossessions under colonialism. These were the pragmatic considerations which shaped the multi-party negotiations from which the Constitution emerged. 

In any event, the Poverty, Land and Agrarian Studies organisation (PLAAS), in a recent briefing before the Rural Development and Land Reform Committee in Parliament, stated that the Department estimated that 379 000 new claims would be lodged between 2014 and 2019. According to the Land Claims Commission’s track record, the process would take 144 years to resolve all the claims. So it is unclear why the Minister would want to add more land claims when the current system is all but collapsing under its own bureaucratic weight. As the Land and Accountability Research Centre based at the University of Cape Town has already noted, the 2014 budget saw the State set aside R8.7 billion for the settlement of restitution claims over the next three years. This amount however, is nowhere near the R180 billion which the Rural Development and Land Reform Department has estimated as the cost of re-opening land claims over the next 15 years. The Land and Accountability Research Centre conclude that the State simply cannot afford to implement the current amendments to the Restitution of Land Rights Act. 

If the Minister intends to go ahead with opening pre-1913 cut-off date land claims, then there will have to be a constitutional amendment – in which case at least two-thirds of the National Assembly and a minimum of six of the nine provinces will be needed to support a vote for such an amendment. Otherwise, any attempt at revisiting the 1913 cut-off may well be unconstitutional. 

By Phephelaphi Dube: Legal Officer; Centre for Constitutional Rights

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