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 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.
