4 April 2017

South Africa: Land Reform - Don't Blame the Constitution

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'We failed, finish en klaar.' The ANC's Chief Whip Jackson Mthembu was speaking about the way land reform has stalled in South Africa when he wrote this comment. But he could just as well have been scripting a preview to a depressing new judgment by the Land Claims Court issued last week.

It's the case of the Nongoma commonage community against the Regional Land Claims Commissioner and the Minister of Rural Development and Land Reform, and if ever a judgment shows the failure of land reform, this is it.

The court's decision was handed down against the background of some recent, extraordinary remarks by President Jacob Zuma to the effect that he wanted to change the Constitution so as to hasten land reform in South Africa. His remarks sparked strong disagreement in the ruling ANC, just one sign of increasing tension within the party.

Mthembu was among those who disagreed this was the way to go: 'Blaming the Constitution for the embarrassingly slow pace of land reform is both disingenuous and scapegoating,' he said.

The Nongoma judgment shows just how right he is: this is a case involving a community that lodged its restitution claims a full 20 years ago. Yet two decades later the claim has progressed not one inch. Civil servants - inept, obstructionist or worse - have left the community in the lurch, then attempted a cover up with a series of lies.

The case shows how South Africa is indeed failing communities that are due land - but the problem lies with neither the Constitution nor even other laws. Rather, look for the block with officials who stop the work the law seeks to achieve.

The Nongoma community lodged a restitution claim with the commissioner in November 1997. The claim was gazetted in December 2001 and published in a government notice. Early in 2002 the commissioner wrote to the community's leader acknowledging the claim. He advised that he (the commissioner) was 'satisfied that the claim met the criteria' for restitution, and that steps had been taken to publish notice of the claim in the gazette.

That was five years after the claim was lodged. It had taken long enough, but at last it appeared to be getting off the ground. Since then though ... nothing.

Despite a number of queries and complaints, the community are no further forward. They have been given the run-around and treated so badly that even the court was stunned.

In February 2010, after the people lodged a complaint through the presidential hotline, the Minister addressed their representatives at a meeting in Richards Bay. Everything was going well with their claim, the Minister said. The memorandum that he needed in order to acquire land for the community had been sent to him and all was on track.

More than two years later, in 2012, the Deputy Land Claims Commissioner met lawyers acting for the community, with assurances that the claim was valid and that a valuer would be appointed 'before the end of January 2013' to value the properties claimed. But then came the first indication that all was in fact far from well. The officials said the file relating to the community's claim 'was missing at the office', but promised to find it and give 'copies of the land claim form, the research and validation report' to their legal advisers.

Another dark cloud at the meeting was the involvement of the Usuthu Traditional Council. It had also made a claim, but the Nongoma commonage community was assured that it would not affect their claim, by now 15 years old and still with no progress.

The promised documents from the files were urgently needed so that the community could bring court action against the commissioner - but today, five years later, they have still not materialised. At one stage in 2015 the community's lawyers were told the file had been found and they could go in and copy the pages they needed. But of the 193 pages in the file just two related to the claim. The other pages concerned 'a variety of irrelevant matters' from other cases.

Once the community, by now quite desperate at the lack of progress, launched its case against the commissioner and the Minister, they could not believe the commissioner's answering affidavit: he said he would only now, 20 years later, 'start investigating the claim'.

The judge hearing the matter commented on the long-outstanding claim saying the official conduct must be condemned in the strongest terms.

'(It) can only be described as appalling and horrendous'. Officials should be working tirelessly to protect and promote the dignity of the applicants, rather than trampling on their rights.

The explanation for the state of the file, namely that two separate claims had been mistakenly consolidated, 'did not hold water', said the court. It also did not tally with the Minister's remarks in 2010 that the community's claims were valid and that the paperwork had been completed that would allow the minister to acquire the land.

Another official excuse was described as a 'hopeless and unjustified defence'. When the community's lawyer argued that officials were 'hiding the file' relating to their claim it was 'a credible and sound argument', said the judge. As to the official line that the claim was 'still being investigated and researched', that 'cannot be true', said the judge. 'It flies in the face of the assurance given by the Minister' at the 2010 Richards Bay meeting, when he said the memorandum for the acquisition of land for settling the community's claim was 'already on his table for approval'.

The court dismissed a number of other official excuses and explanations and concluded: 'It simply cannot be correct that the (community's) claim is still under investigation.'

'(The community) cannot be expected to wait for the outcome of their restitution claim for 20 years and only be told now that the claim is still being investigated. That will be a clear indication that (the officials) have failed in their constitutional duty to respect and redeem the dignity of (community members) who have a constitutional right to restitution'.

The Land Claims Commissioner was ordered to ensure that a copy of the entire file with all documents and correspondence be given to the community's lawyers by 26 May 2017. By that same date the commissioner must also have appointed a valuer who in turn must be instructed to complete the valuation and then report to the commissioner within 60 days. Copies of the valuation must then be given to the community's lawyers. Once the valuer's report is received officials have a month to ensure a copy is provided to the court. This report must also explain in detail the steps officials will take to finalise the claim and the dates by which these steps will be taken.

Although the Land Claims Court does not normally award costs, the court decided to do so in this case, against the state.

What we see in this case is a civil service that fails hopelessly to deliver and thus prevents legislation from working. It's a common problem as lawyers involved in land reform constantly complain.

Thabiso Mbhense, of the Legal Resources Centre in Durban, involved in a number of similar matters said the department of rural development and land reform 'is in shambles. He said there was 'nothing wrong' with existing laws - the problem lay with the department. 'Our government is blaming the land legislation, saying the laws do not protect or assist land claimants (and) farm occupiers. This is not true. The problem is the implementation. There is (also) a perception that the Constitution is a stumbling block in land reform, particularly with regard to expropriation. I do not agree. There is nothing wrong with the Constitution. It is the state officials who are failing to implement the current legislations and the Constitution.'

A number of judgments over the last five years and more all bear out Mbhense's argument and point in the same direction: officials who should facilitate land reform are not doing their job properly, if at all. This is a systemic problem that only the relevant Minister and top departmental officials can solve. Until this happens, no amount of tinkering with the Constitution will make any difference.

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