LRC land reform work draws from experience gained in resisting forced removals since 1978 and, since 1994, from prosecuting land claims and assisting client communities to secure land-based livelihoods in terms of post-apartheid land reform policies.

As one of only a few public interest litigation firms in South Africa, the LRC supports particular communities on a case-by-case basis. Where possible, it works together with others such as the litigation office of the South African Human Rights Commission, the Women’s Law Centre, Lawyers for Human Rights, the Law Centres of the state-funded Legal Aid Board, and the community law centres associated with the law schools of some universities. 

As a rule, LRC lawyers do not represent communities in development initiatives without working in multi-disciplinary teams. The LRC collaborates in its case- and advocacy work with institutions such as the University of the Western Cape’s Programme for Land and Agrarian Studies, organisation the Commission for Gender Equality, South African Council of Churches, the Congress of South African Trade Unions and a range of non-profit organisations including the Surplus People's Project, FARM-Africa, The Rural Action Committee - Mpumalanga, Southern Cape Land Committee and the Black Sash.

LRC prepares submissions on necessary statutory reform, comments on policy papers and draft legislation, and uses all avenues for participation in the legislative processes of national, provincial and local government.

Our collaboration with non-government and government organisations includes sharing progress reports and information; undertaking joint planning where work areas overlap to avoid duplication of effort and increase efficiency; advocating for the release of land and the appropriate securing of tenure for individual land reform beneficiaries more effectively; and settling a uniform approach to capturing baseline data for ongoing monitoring and evaluation of commonage and other land reform projects and to undertake such monitoring. In the future the project plans to increase its focus on the provision the legal technical assistance in support of the NGOs who provide the community facilitation and consolidation assistance.

The strategy in reducing the vulnerability of the rural poor is to:

• Litigate on behalf of poor and dispossessed individuals and communities to protect and promote their constitutional rights
• Provide legal assistance in the formation of community land-holding and management arrangements
• Provide legal assistance to secure rights to and/or an equitable share in natural resources and access to related infrastructure and support 
• Advocate for related law and policy reform
• Train public interest and human rights lawyers with particular understanding of land reform related issues
• Collaborate with and support civil society to build democracy

Project Focus Areas
The project has a strong focus on law and policy reform and active collaboration with other stakeholders. However the main thrust is within the project’s litigation casework which falls within the following (often overlapping) key impact categories:

• Community land restoration litigation and negotiation (including a few urban restitution cases)
• Restitution (post) settlement, legal assistance on institutional arrangements, tenure and access to resources
• Municipal commonage work and redistribution

LRC Land Reform case work ranges from large land claims - involving the return of land to communities for agricultural use and other economic activities (including mining), securing just and equitable compensation in instances where land cannot be returned, and the development of post-restitution plans - to the protection of farm workers and tenants against unlawful evictions.

• Communal Land Rights Act;
• Traditional Leadership and Governance Framework Act;
• Mineral and Petroleum Development Resources Act;
• Protected Areas Act;
• Municipal Property Rates Bill;
• Municipal Systems Act Amendment Bill;
• Standardised Pubic Private Partnership Provisions;
• Draft Ward Committee Guidelines;
• CPA/I review and CPA regulation amendments;
• Municipal Commonages;
• KwaZulu Natal Cemeteries and Crematoria Act 12 of 1996;
• Communal Property Institutional Review National Task Team

Challenges
The South African challenge is to secure in practice the rights, freedoms and obligations that were successfully struggled for and are now enshrined within the Constitution. It is vital that the land rights of all citizens are safeguarded equally and to give legal content to the poorly defined rights of indigenous people.

Poor people are vulnerable people.  In areas where communal property arrangements prevail and beneficiaries in land reform projects reside, there is a great need for legal institutional support for their land title and related management arrangements so that both the community as entity and the individual members who use the land may have legally secure tenure to their land.

The extent of the land transferred, however, does not necessarily indicate the effectiveness of the programme in terms of outcomes to beneficiaries. For example the 312 777ha of private owned land that was transferred in the Namaqualand district has a very low carrying capacity – this grazing land costs R110.00 per ha and has a carrying capacity of 1 small stock unit to 10 ha of land.  By contrast one hectare of developed irrigable land in the Western Cape (Stellenbosch commonage case) may fetch up to R180,000. There is currently a tremendous backlog of rural community claims. Despite public statements suggesting otherwise, Programme for Land and Agrarian Studies of the University of the Western Cape (PLAAS) research in October 2003 found that only 68 rural claims had been settled where land had been restored.

Securing tenure is not an end in itself, but is necessary for the purposes of creating a foundation on which rights based approach to livelihoods and creation of wealth may be built. While secure rights do not put bread on the table, secure rights may prevent your position from deteriorating.

The land-user rights of individuals living in communal areas and beneficiaries in land reform projects are often not secured and protected for two reasons. Firstly because our law only caters for the recording and protection of ownership (and related real rights) and secondly steps were not taken to ensure that rights of individual users are allocated, recorded and administered in land reform projects. The user-rights and rights to share and benefit in the land have not been defined and are allocated to individuals. Individual user rights of poor people in land reform cases need to be appropriately defined according to the type of land use (for instance, grazing rights or rights to arable allotments). The allocation process of such rights prior to the transfer of land to communities should be undertaken according to objective criteria established prior to the transfer and/or occupation of such land to ensure that procedures for rights definition, allocation and ongoing administration are put in place. The shortcomings of the formal law of ownership are most pronounced when formal law clashes with indigenous legal systems of community ownership.

The commonage programme within which the LRC is centrally engaged is an example of how municipalities can be drawn in to manage and support land reform projects, in particular with regard to the process to define, allocate and administer land-user rights. However, municipalities are under-resourced and in some instances struggle to fulfil their core duties.

There is a general consensus that the problems faced by community land-holding legal entities are directly linked to the extent and quality of the available natural resources (water, carrying capacity of the land, land user potential) and related infrastructure and support (such as transport and communications network, credit and appropriate financial systems, market linkages, training and agricultural extension). However, problems can be avoided if the appropriate legal mechanisms regarding allocation of land user rights and/or proceeds/benefits from the land, to individual members are in place - preferably, prior to occupation.

Casework
At present we provide legal assistance to over 70 communities from remote and largely impoverished rural areas on whose instructions we institute actions in the Land Claims Court.  Land claims often involve complicated and protracted litigation as is evident from a range of LRC cases such as Richtersveld, Kranspoort, Baphiring, Mpela, Gamawela.

Judgments in LRC represented cases have had a major impact on the development of jurisprudence with regard to the key qualifying factors / jurisdictional facts that need to be proved in terms of Section 25(7) of the constitution for a claim to be vindicated.

LRC contributions have widened restrictive interpretations of certain concepts thereby  enabling  the successful conclusion of claims that would otherwise have been contested, namely:

“community” – the leading authority on this issue is the 1999 Kranspoort judgement and the Richtersveld Land Claims Court judgement of 2001 (even though we lost the case in the court of first instance). The principles were established the communities are not frozen in time and that people who associate themselves with the community and who are accepted as such, are for the purposes of restitution members.

“racial discriminatory laws and practices”  - the Land Claims court held in series of judgments, starting with Slamdien, that the dispossession must have been cause for the purposes of racial (spatial) segregatory practices. This interpretation considerably narrowed down claims where people were simply discriminated against on the basis of race. The leading authority in this instance and also with regard to “dispossession” and the causal requirement of “as a result of” is the Richtersveld Supreme Court of Appeal and Constitutional court judgments delivered in 2003.

“receipt of just and equitable compensation”. - The major advances on this issue were  brought about by the Lappeman and Baphiring cases (both communities represented by the LRC).  Building on the Lappeman judgment (3 November 2003), Judge Gildenhuys made the following groundbreaking findings in the Baphiring case (5 December 2003):

It is generally accepted by resettlement practitioners that failure to comply with acceptable resettlement practices, will lead to adverse social impacts, long term hardships, and often sends a relocated community in a downward spiral of poverty.

Resettlement must be planned and implemented according to negotiated and accepted resettlement principles. Administrative practices followed in 1971 were neither planned, nor programmatic. The relocation of the Baphiring was socially and economically a failure. The absence of a proper relocation process caused this failure

Meeting the requirements of a successful relocation could bring the compensation up to an amount well in excess of the market value of the property taken.

Compensation should have been given to the tribe which would have been enough to make a successful relocation possible. To the extent that it was not, it fell short of being just and equitable.

It is not an answer to the question of whether the compensation received at the time of dispossession was just and equitable to state that the compensatory land had a market value far in excess of the land taken. Other factors also come into the equation. [As authority the Judge referred to the Lappeman Judgment] 

The compensatory land ……  is entirely unsuitable for their purpose. It cannot constitute fair compensation, even taking into account the additional cash payments and other relocation assistance which the tribe and its members received from the government.

The impact of this judgment is bound to have a ripple effect far beyond the rights of the litigants and far beyond settling the important question of determining just and equitable compensation, it opens the door to use the law to ensure proper support and aftercare as a right. In other words, the state cannot simply say that its obligation to restore land begins and ends with the transfer of the dispossessed portion of land, restoration includes more than just land. To date, adequate settlement support has not been provided to resettled communities in certain instances, resettled communities have become modern day ‘black spots’ due to a total lack of the provision of post settlement support, which “leads to adverse social impacts, long term hardships, and often sends a relocated community in a downward spiral of poverty”.

The combination of the Richtersveld judgment and these cases has significantly extended the law and has, by example, led to the signing of a framework agreement in the Ebenhaeser case. These judgements have also played a major role in the winning of the Mphela judgment (9 March 2005).

Our casework has emphasised that the form that the terms and conditions on the basis of which a land claim is fully and finally settled (as negotiated in the agreement) take, makes the most significant contribution to future success of a land claim.  This settlement agreement is the community’s only opportunity to ensure adequate planning and implementation support in enforceable terms.

The LRC has been instrumental in the conclusion of ‘settlement framework agreements’ in four large and complex phased settlement cases namely the PELCRA Framework Agreement, Covie Framework Agreement, Vaalplaas/Paternoster Memorandum of Understanding and the Ebenhaeser Framework Agreement.

For ‘settlement’ to be appropriate and successful, the planning for Post Settlement Support has to take place in the pre-restitution phase.  Planning and implementation involves issues such as individual use and other rights being separated from the rights of the community; patterns of resource utilisation; and understanding the benchmarks and necessary legal arrangements for successful economic enterprises under different circumstances.

Land Reform: The Facts

The total land area of SA comprises 122,320,100 ha.  The former homelands (communal areas) comprise of 17,112,800 ha or 13.9% of the total land area in South Africa. Commercial agricultural land (read ‘white owned land’) comprises 86,186,026 ha or 70.4%.

As on 30 June 2005, the restitution programme achieved the transfer of 916,470 ha at a cost of R 1.893 bn. As on 31 March 2004, 2,873 rural claims had been settled and at least 6,113 were still awaiting settlement. (A Land Claims Commission review established that 9,238 rural claims were still outstanding.) The Commission’s Select Committee briefing of 21 June 2005 noted that a further 10,634 claims were settled during 2004/05. Of these, 10,270 were urban claims while 364 were rural claims.

The Commission’s ‘cumulative statistics’ of 30 June 2005 however noted that 13,643 rural claims had been settled. The Commission appears not to have counted the 13,643 “rural claims” according to communities, but in all likelihood identified claims by communities (acting as single entities) with claims by individual members of the communities. . Of relevance here is that on a close consideration of the Commission’s ‘cumulative statistics’ of 30 June 2004 it is apparent that the 916,470 ha of rural land had been restored in respect of 152 community claims.

In terms of the Settlement/Land Acquisition Grant (SLAG) programme, 1,080 projects were embarked on which gave rise to the redistribution of 1,075,296 ha of land involving an estimated 550,000 people.

The Land Redistribution and Agricultural Development Grant (LRAD) programme, implemented since 2001, has given rise to 1,816 projects, which benefited a total of 53,446 grant recipients.

The SLAG and LRAD figures seem to also include 175 labour tenant projects and 35 ESTA projects. Figures concerning ‘Share Equity Schemes’ have not been referred to, but these would appear to have been included as well.

Since 1997 the Municipal Commonage programme gave rise to the acquisition and transfer of a total of 519,731 ha of privately owned commercial farmland to municipalities at 128 project sites.

Against the original target of redistributing 30% of agricultural land by 2014, 3,701,567 ha/4.3% has been delivered to date (which appears to be inclusive of all of the above programmes).

A different set of statistics notes that 3.1 million ha of land has been redistributed since 1994, of which 2.1 million ha was for agricultural use, and another 1 million for residential and other purposes.

Research undertaken by PLAAS seems to confirm the fact that by 2004 approximately 152 community land claims had resulted in  rural land having been restored. PLAAS research undertaken by Ruth Hall finds that the rural land which had been restored to 68 communities involving 501,195 ha at a cost of R327,096,627.

In each case that land is transferred to a group of people, the land needs to be registered in the name of a legal entity.  This means that there may at present be  2 045 legal entities that have been established through land reform, including  SLAG & LRAD & Restitution cases.  We estimate that there should be no less than 1000 land holding legal entities.

By the end of March 2003, the Restitution of Land Claims Commission reported that 36,488 claims had been settled since 1996. There were 63,455 claims lodged of which 28% (19,140) were rural claims and the remaining 72% were urban claims.  Approximately R440 million had been spent on buying land (571,103 ha) and R1,263 million was spent on financially compensating claimants. 

In view of the considerable emphasis on cash compensation (¾ of the entire spending), it is appropriate to raise the statements made by Judge Moloto in the judgment in the Mphela and Others v Engelbrecht and Others (Case no LCC 66/01) of 9 March 2005. The LRC represented the Mphela family (See Annexure D).

Judge Moloto placed great emphasis on, what he described as the “primacy” of restoration as opposed to cash compensation. He referred to with approval to a judgment of the Permanent Court of International Justice in the Chorzow Factory case that:

“.... Reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which restitution in kind would bear....”

The Judge also referred with approval to a report prepared by the International Crisis Group, which he quoted as follows:

“The settlement of most claims through cash settlements is questionable on a variety of counts, and not simply because of the budgetary squeeze that will inevitably result from forthcoming, more expensive rural claims.  Cash settlements:

• do not address unequal land ownership patterns or access to land obstacles;
• contribute little to economic development or poverty reduction;
• focus on the applicants as victims of apartheid instead of beneficiaries of land reform;
• compete with resources that are needed for health, education and employment generation.”