Rights-based restitution in South Africa : developmental land reform or relocation in reverse?

The main question of this thesis is to what extent the rights-based and market-driven nature of the restitution program has given rise to a legalistic and bureaucratic process that negates both the demand-driven and the developmental aspects of restitution as land reform. I answer this question by showing that the choice of a Constitutional model with a Bill of Rights provides the background for a rights-based land reform program. This is especially true for the restitution sub-program, one of the three branches along with redistribution and tenure of the overall land reform program. I then consider the debate around the property clause, and how its inclusion provided the context for a market and rights-based approach to land reform as opposed to a supply-led administrative approach. Because the property clause as a First Generation right prevents expropriation of land without market-related compensation, a complex and legalistic land reform program falling within the ambit of Second Generation rights was formulated to address the gross imbalance in land ownership in South Africa. I argue that the contemporary origin of Second Generation human rights lies within the context of class and anti-globalisation struggles for democracy, and that they are something to be fought for and defended. I discuss the distinction between First, Second and Third Generation rights and identify four spheres within which the struggle for Second and Third Generation rights takes place within modern democratic states. These are the state, the representative public sphere, civil society and the private sphere. I then deal with the problem of trying to turn "paper rights" into realisable rights for the more disadvantaged sectors of society. I also look at what impedes their realisation. I argue that a number of strategies are necessary to ensure the delivery of Second and Third Generation rights. These are an adequate legislative framework, a good communication strategy, the development of institutional capacity to deliver, and if all else fails, access to conflict resolution mechanisms. I consider the major impediments to the realisation of Second and Third Generation rights to be the way in which they are defined in relation to First Generation rights, especially the property clause, the way in which access to rights-backed resources through formal institutions are mediated by the operation of informal institutions, and the dearth of administrative competence in South Africa. My point is that in order for Second and Third Generation rights to have practical benefit for the dispossessed and poor, extraordinary measures are needed. The Restitution arm of the land reform program provides in theory just such extraordinary measures, albeit for only a section of the population. I analyse the effectiveness of the Land Claims Court in assisting restitution claimants and the rural poor to realize their rights. I trace the slow and haphazard shift from a positivistic statutory interpretation (narrow, literal, legalistic) to a purposive interpretation (informed by the Constitutional spirit and social purpose of the legislation) by the Court. This is followed by an analysis of the restitution business process, which means tracing the path of the claim from lodgement to settlement. I set out the costly, complex and legalistic implementation and policy process in some detail. My argument is that in order for a rights-based approach to overcome the impediments outlined in Chapter 3, as well as the property clause in the Constitution, its architects designed a complex process that in the end proved counter-productive in terms of its original aims. The failure of the process to deliver led in 1998 the then Minister of Land Affairs, Derek Hannekom, to appoint a Ministerial Review to investigate the problems. Problems included: slowness of delivery, the crisis of unplannability, low levels of trust between implementers, and high levels of frustration. Two issues are analysed more fully, the rights-driven approach as opposed to the rights-based approach and the lack of claimant participation in taking control of the restitution process. I examine the relationship of the Restitution Commission to the Department of Land Affairs and to municipal land use planning processes. The emphasis on rights within the restitution program had the effect of distancing restitution, especially in the first few years of the programs' existence, from the rest of the land reform program, as well as from the local government process of formulating land development objectives (LDOs), and the Integrated Development Planning (lOP) process. I look at the Port Elizabeth Land and Community Restoration Association (Pelcra) as a case study as it embodies an approach that tries to move beyond a mere reclaiming of rights in land and attempts to implement a developmental approach. I conclude that the rights-based restitution program in spite of its many shortcomings has had some success. It has moved slowly from an overly legalistic judicial program to a more administrative but still bureaucratic process, that has delivered only 27 percent of its product as land reform, the rest going to monetary compensation mainly in urban areas. Thus it can be argued that restitution has been more successful as a program to promote reconciliation along the lines of the Truth and Reconciliation Commission, than as a land reform program, especially if one regards land reform as the restoration of rural land to the indigenous population. There have also been some successful attempts by the Commission, such as in the case of PELCRA, to integrate the processing of its claims with local government planning processes, but progress in this direction remains patchy