Over the past two years there has been much clamour about the failure of the land reform programme and, in particular the land restitution process, with those in authority claiming that Section 25 of the Constitution should be amended to allow for expropriation without compensation. To this extent, Parliament established an ad hoc committee to initiate and to introduce legislation to amend the section. However, the Constitution is not the problem and an amendment is certainly not the panacea.

Rather, the problem is the combination of weak and dysfunctional institutional structures that have failed to implement the true intent of Section 25 and the Restitution of Land Rights Act. The imposition of the Standard Settlement Offer by the Commission on Restitution of Land Rights is an egregious example of this failure in which thousands of urban claims were mass-processed to nominal financial settlements. As a result, urban claimants were denied their constitutional entitlement to claim their land, or at the very least to have the merits of their claim properly considered.

Many urban claimants could have had their land restored had the commission been judicious in the investigation and validation of these claims and to properly approach the courts to establish the feasibility for the restoration of the land, as is required by the restitution act. Instead, the commission circumvented the process through its policy of the Standard Settlement Offer which was set initially at R40,000 for a residential property.

This amount is an affront to the dignity of urban claimants, especially when it is considered that many properties that were dispossessed have a market value that extends into the millions of rand. That this was allowed to occur is a consequence of a historical and political narrative that has always been dismissive of urban claims.

The restitution act was enacted to give effect to the entitlement of either restoration or to some form of equitable redress to those who were dispossessed of property under apartheid’s draconian land laws. This right is guaranteed in Section 25(7) of the Constitution. Construing the restitution act and how it intersects with the fundamental rights and values of the Constitution goes to the very heart of the purpose and application of land restitution.

This was eloquently stated in Department of Land Affairs & Others v Goedgelegen Tropical Fruits in which the Constitutional Court held that the Constitution and the restitution act “must be understood purposively because it is remedial legislation umbilically linked to the Constitution in which the spirit, purport and object of the Bill of Rights must be promoted”. It further held that the restitution act is an enactment “intended to express the values of the Constitution and to remedy the failure to respect such values in the past, in particular, the values of dignity and equal worth”. In so doing the Constitutional Court held that to achieve the remedial purpose, the history and context in which land rights were dispossessed and were terminated must be considered.

In Alexkor Limited and Another v Richtersveld Community & Others, the Constitutional Court held that “although it is clear that a primary purpose of the Act was to undo some of the damage wreaked by decades of spatial apartheid, its broader scope is to provide redress to those individuals and communities who were dispossessed of their land rights because of the apartheid government’s racially discriminatory policies”.

In Florence v Government of the Republic of South Africa, the Constitutional Court stated that “our courts observe the principle of primacy of restoration of dispossessed land” and that a claimant would be entitled to the dispossessed land provided the restoration is feasible. The Constitutional Court further stated that the purpose of compensation under the principle is to compensate as if the expropriation never occurred.

Unfortunately, the policy of the Standard Settlement Offer does the opposite of what the legislation and the courts demand of the treatment and settlement of land claims. It was a recommendation from a 1998 Ministerial Review that was initiated by the then-minister of the department of land affairs, Derek Hanekom. The review was tasked to determine the reason/s for the slow pace of settling claims and to make recommendations. It found that the slow pace was partially a result of the fact that “the designers of the restitution process never imagined the large number of claims that were received as it was originally envisaged that the restitution process would involve a number of fairly well understood removals of rural communities and black ‘spots’ ”.

As a result, a recommendation was made, and accepted by the then-minister, that the emphasis should shift towards the mass processing of claims. This resulted in the policy of the Standard Settlement Offer to standardise cash compensation in the urban context. According to the policy, the guidelines aim to assist the restitution process in the face of “various challenges presented by the method of calculating financial compensation including the lack of historical material to ‘reconstruct’ the past; the cost and the time spent on conducting historical evaluations on an individual scale and the complicated formulae used to establish the value of what was lost by the claimant”. As a consequence, the pace of the settlement of claims increased dramatically. As approximately 80% of the claims that were lodged in 1998 were urban claims, it allowed the commission to expedite a vast majority of them without going through due process.

The policy of the Standard Settlement Offer is explicit in its differentiation between urban claimants and rural claimants. It sets a different standard which is only applicable to urban claims irrespective of the nature and extent of the rights lost, the value of the claim or the presence of all the relevant historical information pertinent to the claim.

It is irrational in its design and its outcome is contrary to the stated purpose of the restitution act and the values of the Constitution and it therefore may fall foul of the right to equality. Such irrationality is demonstrated in its assertions that the challenges relating to the lack of historical material, the expense of historical evaluations and the inordinate amount of time spent on a claim are only applicable to urban claims. Not all urban claims will have a dearth of information, yet the policy presumes all urban claims to have the same challenges and, through the exclusion of rural claims from the policy, it infers that rural claims are not afflicted in the same way.

In fact, there is a higher probability that many urban land claims would have a recordal history as well as other documentary evidence compared to many rural claims which often have to rely on oral history and the testimony of historians to validate a claim. Therefore, by implication a rural claim could be more onerous, time consuming and more expensive to validate, settle and finalise.

It is perhaps an uncomfortable truth that the differentiation between urban and rural dispossession was rooted in a historical and political narrative that goes as far back as the negotiation process during which urban dispossession was viewed as less important. Therefore, it was accorded a secondary status from the outset.

In fact, urban land claims were initially excluded in the discussions of the ANC’s Land Claims Commission as a result of the input it had received from the Land Claims Working Group, which actively lobbied for the rights of rural communities, especially the so-called black spot communities. As a result, the narrative of restitution in rural communities took centre stage. Urban claims were only included in the restitution agenda at the eleventh hour and only because some in the negotiating team were persuaded that it would be morally and politically indefensible for them to be excluded.

It is therefore not by accident that the policy of the Standard Settlement Offer has created a differentiation in which urban claims are seen to be, and are treated as, inferior to rural claims. The effect of such differentiation is demeaning as urban claimants have become a sub-category of claimants in which their rural counterparts are afforded a higher status, importance and significance, notwithstanding that both are victims of apartheid’s racially discriminatory land laws.

For many urban claimants, the imposition of the Standard Settlement Offer is pernicious and has opened old emotional wounds and bitter memories of how they were treated by the apartheid regime when they were dispossessed of their land and stripped of their dignity. The unfair discrimination and loss of dignity that they endured under apartheid, they have been forced to feel again during democracy when they were told to accept the nominal Standard Settlement Offer and to be thankful for it.

It therefore appears that there was, and is, a deliberate attempt in discourse, policy and action to subvert the restitution process in favour of the restoration of land for rural claims, while dismissing the entitlement of those persons who have lodged urban claims to have the merits of their claims properly considered. There can be little doubt that the Standard Settlement Offer is discriminatory and it is neither fair nor justifiable. It is therefore very likely that the policy of the Standard Settlement Offer does not pass constitutional muster. DM

Cameron Lee Jacobs is a land rights researcher and a director at the Public Service Commission. This article is written in his personal capacity.