SAR, VOL 15 NO 4, October 2000
REALIZING THE PROMISE:
LAND RESTITUTION IN EAST LONDON
BY LANDISWA MAQASHO
Landiswa Maqasho is at the Institute of Social and Economic Research, Rhodes University, East London.
The question of land is still a very sensitive one in South Africa. The government's land reform programme promised a relaxation of existing tensions by deliberate intervention in land issues. Land restitution is one such interventionist strategy through which the state seeks to redress the imbalances of the past. In the face of higher expectations raised by the land reform programme, the slow pace of delivery seems to be driving land hungry communities into despair and a potentially volatile situation may result. Sharp criticism has been levelled at the government as the settlement of restitution claims almost came to a standstill particularly in the first three years (19951998) of the process. In the past few months, the situation in Zimbabwe has served to reinforce these feelings, while simultaneously putting pressure on the government to deliver lest impatience lead to land seizure in the country.
The Commission and the West Bank
In 1994, the Interim Constitution provided a legislative framework for the restitution of land rights. Accordingly, Parliament enacted the Restitution of Land Rights Act, of 1994 and also created the Commission on Restitution of Land Rights (hereafter the Commission) and the Land Claims Court. Through this apparatus, persons and/or communities who were victims of acts of dispossession that took place after 19 June 1913 are entitled to redress through either restoration of the land that was lost, or alternative "remedies" including monetary compensation. Initially restitution was conceived of as a purely rights based process in which the government's role was to give people their land back or compensate them if they so wished. Claimants were given three years in which to lodge their claims with the relevant Regional Land Claims Commissions starting from 1 May 1995 to 1 May 1998. This period was subsequently extended to 31 December 1998.
By 1998, only 0.4% of the 63,455 claims submitted to the Commission had been settled. This obvious delay and lack of progress in the broader land reform process in general and in land restitution in particular, has since been a cause for concern. Claimants are tired of waiting indefinitely for the settlement of their claims. Consequently the whole process of restitution was subjected to a review in mid1998. The resulting Restitution Review Process made a number of important recommendations which, in turn, led to the implementation of the Restitution Transformation Program. Much of the progress that has been made since that time has been attributed to the shift away from a court-driven process to a more administrative process using the provisions of Section 42D of the Act. This empowers the Minister to make decisions on restitution claims. Experience from the Riemvasmaak claim has also forced the Commission to rethink its approach to restitution by linking the process to development. This means that the Minister actively and openly encourages communities to choose the land option rather than monetary compensation. To show the government's commitment to this option, the Commission has now established a settlement support and development planning division whose responsibility is to assist claimants in various ways to ensure sustainability of the project. These include settlement grants and negotiations with the Department of Housing and Local Government to secure housing subsidies for those who qualify.
In the early 1960s, more than 88,000 people were forcibly removed from the city of East London and resettled in various places outside of the city according to their `group areas'. Coloureds were relocated to Buffalo Flats while Africans were destined for Mdantsane, a township that was later incorporated into the Ciskei homeland. A significant percentage of these displaced communities came from the old East and West Bank locations. In the case of West Bank, the land that the ex-residents of this location lost is currently the centre of one of the city's industrial complexes accommodating the production site of the motor manufacturer, Daimler Chrysler South Africa (DCSA, formerly Mercedes Benz South Africa). Today this industry is the pillar of economic growth in the city, employing a large number of people with relatively good incomes. Recently, DCSA's injection of several millions of rands into the city's economy was welcomed by many as an important signpost along the road to further economic development in the city.
In cases like the West Bank, the Act provides for a choice of alternative land within the development plans of the municipality in question. Negotiations to this effect around the West Bank claim did take place. On April 16, 2000, in a special ceremony attended by government officials and the wider claimant community, the Minister of Land Affairs Thoko Didiza handed over a piece of land to the West Bank claimants when she signed a historic sale of land agreement. This agreement marked the end of the phase of negotiation and the beginning of the last and final phase in the process of land restitution, which includes settlement, planning and implementation. Without doubt when the ex-residents of West Bank get keys to their houses in the near future, meaningful justice will have been done.
Sense of collective identity
Amid the difficulties and challenges facing the Land Claims Commission, the West Bank claim stands out as one of the Commission's success stories. Even before the Commission's change of focus, this community was united in its decision to opt for restoration of their lost land. This kind of unity, which is rooted in the history of this community, has been one of the key features for the success of their claim. Former West Bank residents remember the location, affectionately known as Nongqongqo to them, as a unique place - a small face-to-face community with a diverse population of Xhosa, Mfengu, Pondo, Zulu, Sotho and Coloured families. This combination of social proximity and ethnic diversity generated a culture of tolerance and respect among residents. Social and cultural life was organised around the very few schools and churches as well as a range of clubs and societies. The location, which was generally regarded as quiet and peaceful, was solidly working class with relatively few middle-class families living there. The tranquillity of everyday life in this small seaside location came to an abrupt end in 1965 when the location was demolished. The removals occurred under the supervision of the municipal police and with the support of the city council.
In 1995, exactly 30 years after the municipal bulldozers razed the location to the ground, a group claim by the Nongqongqo Committee on behalf of all the former residents of West Bank location was lodged with the Eastern Cape Regional Land Claims Commission. In terms of the Act, all group claims were to be received as `special claims' and prioritised because they affect a large number of people. Despite this clause, as with all other claims in the country, very little was done with the claim after its submission. This was due to a number of institutional and basic structural problems which included lack of capacity, ineffective communications and information-sharing systems and also the nature of the relationship between the Commission and the Department of Land Affairs (DLA). This relationship complicated the process in that while the Commission is an independent statutory body charged with the responsibility to oversee the whole process of restitution, restitution is simultaneously one of the elements of the land reform programme of the DLA.
These and other problems retarded progress until 1998 when the process of transformation was implemented. From 1999 onwards there has been a marked increase in the rate of delivery with 3,916 claims settled by the beginning of April 2000 including the West Bank claim. According to W. Mgoqi, Chief Land Claims Commissioner, "there is now clear evidence that the productivity of the machine (Commission) is increasing." The West Bank claim is unique, though, in that it is the only one where members have ignored the question of individual differences and where they will share equally in the proceeds of the claim. (In the old location, people lived either as owners or tenants/lodgers. This situation accorded owners higher status than tenants or lodgers.)
The Nongqongqo Committee has worked tirelessly and enthusiastically to ensure that the process succeeds. Mr. Ntamo, the chairman of the committee, claims that "it has been very tough, especially in the beginning." The first meeting to inform the people was attended by about fifteen people. Subsequent meetings did not show much improvement despite efforts by the committee to spread the word. The only explanation that he could give with respect to the low attendance was disbelief. Many people were very sceptical of the whole idea of restitution and rejected it as "one of the ANC's canvassing campaigns." But persistence paid off in the end as the Committee succeeded in mobilising a group of over 800 families. This included both African and Coloured families. As more people came, the committee saw it necessary to split itself into two sub-committees. The Mdantsane sub-committee focused on African families while the Buffalo Flats sub-committee worked with the Coloured families. However, these two sub-committees do work together and meet with all the members of their group at regular intervals.
Interviews with members of the West Bank committee indicated that they sacrificed a lot of their time and financial resources to make sure that the process succeeded. They even went to the extent of instituting collections from the communities to pay for media (radio and newspaper) announcements and other operating expenses. They also went from door to door asking people to come forward. In the beginning their pleas elicited minimal response because "the idea of land restitution sounded too good to be true" to the majority of the people as one member of the committee guessed. However, the collective sense of identity established in West Bank importantly endured. Re-mobilised around the land claim, this sense of community and of collective involvement was re-activated. This served to "reunite" people and made for a coherent and participatory land claim - a model of restitution.
The success of the West Bank land claim should be regarded as an exception rather than the rule. The degree of unity and level of tolerance that had earlier existed had a lot to do with the success of the claim. Even the brutal force of apartheid could not completely crush the spirit of community and belonging shown by the residents of Nongqongqo. It is amazing how this community endeavoured to stick together and re-unite for several decades after relocation. They remained in touch despite the racial divide of apartheid legislation, with Coloureds and Africans attending each other's ceremonies and rituals over the years. As a result, when the Eastern Cape Regional Land Claims Commission shifted from a rights-based to a development approach, West Bank provided a model.
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