Skip to content

Land Restitution and Democratic Citizenship in South Africa

Literature › Works

Mark Everingham; Crystal Jannecke (2006). Land Restitution and Democratic Citizenship in South Africa. Journal of Southern African Studies, 32(3). Taylor & Francis.
Type journal article
Scope Post-1994 South African economy
Method mixed
Period studied 1837–2003
Regions Western Cape (Elandskloof, Cedarberg), Eastern Cape (Tsitsikamma, Clarkson, Ciskei), Northern Cape (Richtersveld)
Themes agriculture land, transition post apartheid, bantustans removals influx, origins segregation, politics ideology elections, comparative theory
Citation key everingham2006

Argument

The article asks whether restoring dispossessed land in communal form (Communal Property Associations, trusts) delivers justice and the benefits of ownership to returnees. It argues that the post-1994 'rights enquiry' approach produced satisfactory legal results but assumed unified communities that did not exist after transfer. Using three phases (historical, constituted-unified, reconstituted-contemporary community), it shows that class, racial, kinship and generational divisions, open membership rules and weak state support undermined communal ownership at Elandskloof, Tsitsikamma/Clarkson. Richtersveld, with a registry of members and a favourable court ruling, looks more cohesive, though its long-term cohesion is uncertain. It concludes that communal tenure may not be the best path to full citizenship, and it places South Africa in comparison with other new democracies.

Evidence and method

Case-study fieldwork and interviews (e.g. Derek Hanekom, Lindsey Lotter, David Mayson, CPA/CCPT members, 2003), Cape Archives and Deeds Office records, Land Claims Court and Constitutional Court rulings, Legal Resources Centre and Surplus People's Project documents, trust deeds and settlement agreements, press reports, and secondary literature (James, Pienaar, Klug, du Toit, Carstens).

Findings

  • Elandskloof's restitution drew back only a minority of claimant families and left no register of residents. (p. 8)

    Approximately 70 of the 308 families that had claimed rights actually returned to Elandskloof between 1997 and 2002, although there is no written registry of the permanent residents.

  • Elandskloof's mission-station community was forcibly removed in 1962 after the Group Areas Act enabled sale of the mission land to white farmers. (p. 7)

    the order for the forced removal of approximately 600 people on 15 September 1962.

  • Mfengu from Tsitsikamma were removed under apartheid homeland consolidation. (p. 11)

    In December 1977, more than 500 families from Mfengu communities were relocated under Ciskei homeland consolidation.

  • The Tsitsikamma settlement left the land with the Trust but kept white commercial farmers on it through leases, restricting returnees' access and use. (p. 12)

    The TDT trustees signed long-term leases with the some of the same white farmers from whom the land had been taken back.

  • The state bought out farmers at the Tsitsikamma settlement for a large sum, signed just before the 1994 election. (p. 11)

    Representatives of the government-elect agreed to compensate the farmers in the amount of R35.72 million and grant of R1.96 million to the TDT on 29 April 1994

  • The Land Claims Court initially rejected the Richtersveld claim, but higher courts later upheld it on the basis of indigenous rights. (p. 14)

    the Land Claims Court decided that the community had failed to prove that the dispossession was racially discriminatory

  • The Supreme Court accepted the Richtersveld claim under indigenous law, and the Constitutional Court later awarded ownership including minerals. (p. 15)

    In February 2003, the Supreme Court found that the Richtersveld people had a valid claim to ancestral land under international indigenous law.

  • Richtersveld's membership registry was compiled in advance and matches the claimant and historical communities, unlike the other cases. (p. 16)

    Membership is transparent and consistent with the constituted unified community that initially lodged the land claim which, in turn, is in harmony with membership of the historical community.

  • The authors argue the policy paradigm assumed a unified community and a false opposition between individual and communal property. (p. 17)

    The rights enquiry paradigm romanticised a unified community derived from a false dichotomy between individual and communal property

  • Restitution is constrained by fiscal limits, with pending claims costing far more than budgeted. (p. 4)

    the costs of pending cases of restitution far exceed current budgetary allocations for the fiscal year 2005-2006 and beyond.

  • Land dispossession predates apartheid, through nineteenth-century loss of African freehold and migrant labour. (p. 4)

    Beginning in the nineteenth century, black African freeholders lost land as they aspired to the nascent middle class and entered the migrant labour force.