Critical analysis of transformative interventions redressing apartheid land discrimination and injustices in South Africa: From land segregation to inclusivity

Introduction

The apartheid era in South Africa had an adverse impact on the issue of access to land. The government system at the time promulgated laws that legalised land dispossession from the indigenous owners (Maylam, 2017). As a result, Black South Africans were dispossessed of their land and forced to relocate to non-arable land. Black people could no longer farm nor grow crops in the areas to which they were relocated, and consequently lost their source of living. For a number of years, Black people suffered hunger and starvation while living on overcrowded non-arable land (Mthembu, 2013). Due to the level of poverty, Black people had to go and look for jobs at the white people’s farms, mines and residences in order to fend for their families (Wilson, 2011). Although a substantial number of Black people were employed on the white farms and in firms, they were not making enough money to properly fend for their families nor to take their children to school (Thompson, 2008). The reality was that Black people were living from hand to mouth, a poverty-stricken lifestyle (Aliber, 2003).

The dispossession of land did not only mean the physical removal from possession of the land belonging to the Black people, but it also meant a change in social and economic status (Madlingozi, 2017). Black people began to experience poverty after they were dispossessed of their land, and accordingly, their means to make a living were further diminished with the dispossession of land (Atuahene, 2014). Hence when South Africa became a democratic country in 1994, land restitution and land redistribution became the main focus of the South African government in order for Black people to achieve equal social and economic status as their white counterparts (Hall, 2004). Redressing the previous injustices became a focus point of the ruling party, the new democratic government, and this necessitated the adoption of land reform programmes such as restitution, land tenure and redistribution of land (Yingi, 2021). But prior to the adoption of the land reform programmes, a number of laws were passed to abolish the pre-existing apartheid era laws. Hence, the Abolition of Racial Based Land Measures Act 108 of 1991 was promulgated to do away with the provisions of NLA, NTLA and its successors GAA.

More importantly, the Constitution of the Republic of South Africa 1996 (Constitution) contained provisions addressing the issue of land (Section 25). A number of progressive legislation on issues of land redistribution were also promulgated in line with the Constitution (Worden, 2011). This paper examines how these progressive interventions are being used to promote the productive use of redistributed land by the land beneficiaries and society at large.

The Constitution of the Republic of South Africa 1996

The South African government has shown its obligation and taken action to eliminate the inequalities and injustices that find their origins in the historical periods by initiating wide-ranging land reform programmes with a strong constitutional back up (Kloppers and Pienaar, 2014). These programmes consists of three pillars. namely: restitution, land redistribution and tenure security (Kloppers and Pienaar, 2014). This was backed by the provisions of section 25 of the Constitution which provides that, the state is under the constitutional duty to take ‘reasonable and other legislative measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis’; hence land redistribution (Kloppers and Pienaar, 2014).

While Section 25(1) of the Constitution provides that ‘no one may be deprived of property except in terms of the law of general application (this refers to policies and Acts promulgated for purposes of protecting land held by the state for the benefit of the public), and no law may permit arbitrary deprivation of property’ (this refers to unjust denial of access to land; therefore, the law of general application cannot unjustly deprive people access to land). These subsections (1) and (2) read together clearly highlight the state’s intentions to redistribute land equally to the previously dispossessed owners. In instances where the land in question or claimed land is held for a better purpose or public interest, restitution in a form of monetary compensation will be given to the claimant, because the land in question is used for public interest and or the developments on such land serve a better purpose. However, that does not mean the rights of people to have their land returned or restored is superseded by the developments made on the land. However, it means that such developments are positively contributing to sustainable development needed to better the lives of Black people.

It further entails that property may be expropriated only in terms of the law of general application and that such expropriation must be for the purposes of public interest (Slade, 2014). The aim for expropriation is to ensure that land is retrieved from the white minority and made available to the previously dispossessed owners and the public as a whole (Karlsson, 2020). The said public interest includes among others the nation’s commitment to land reform, which will bring into existence impartial access to all South African’s natural resources. Although the provisions of these sections are under parliament’s debate for purposes of amendment in a way that expropriation would not be subject to compensation, such amendment would not have any effect on the initial purpose of expropriation. This means expropriation will still be for the purposes of public interest, that is, making land available to everyone and that includes land reform (redistribution, restitution and land tenure) ensuring that everyone has access to land.

Moreover, it will inevitably ensure that the provisions of Section 25(7) as provided for in the Constitution, are actively achieved. This will however be achieved as a result of the state making land available for redistribution to the people through expropriation without compensation and without incurring any expenses. Therefore, the provision of Section 25(5) that provides that ‘the state must take reasonable and other legislative measures within its available resources, to foster conditions which will enable citizens to gain access to land on an equitable basis’, would be effectively implemented by the proposed amendment of section 25 of the Constitution. It does so by ensuring that land is made available to historically disadvantaged people without incurring unnecessary costs of compensating landholders for land that was illegally taken away from black people. This will consequently ensure that funds and resources that are set aside for compensation be saved for only compensating developments not the value of land to be expropriated. As a result, the state can be in a better position to increase funds aimed at the redistribution process and to provide adequate post-settlement support services to land reform beneficiaries. Therefore, in this fashion the state resources will be optimally used for the purposes of ensuring productive use of redistributed land and consequently alleviate poverty among beneficiaries. This will not change the status of land reform in the Constitution but will ensure that land for redistribution is made available in order to achieve the objectives of land reform. This will further ensure that there are enough resources to fund support services for land reform beneficiaries to embark on projects that will generate income and consequently contribute to the economy.

There is a view that expropriation without compensation which includes land for housing, retail and industrial use will not only impact food and agricultural production but, will destroy the asset value of a large portion of South African land (Mutlokwa, 2020). With regard to food and agricultural production expropriation without compensation can have both positive and negative effects (Jili and Masuku, 2021). The positives are that the state can save resources from acquiring land and divert such resources to assist land reform beneficiaries to farm productively. While the negatives could be that the expropriation without compensation can threaten investors’ confidence and further negatively impact the production of food crops by replacing farmers from the experienced white minority to inexperienced land reform beneficiaries. In South Africa, about 70% of residential property transactions in South Africa involved freehold property (property that is inheritable, transferable and there are no restrictions on the rights of property) (Rudman, 2010). This generally means that the majority of housing transactions include direct acquisition of private land. Therefore, the proposal of the state for acquiring ownership rights of all land without compensation would mean that owners will lose the land component of the acquisition while retaining ownership of the building structures. However, this is impractical considering the current property law which provides that the land portion cannot be separated from the immovable asset such as a building or a house; hence even the immovable property’s value is dependent on the appreciation value of the land. In essence, the implementation of expropriation without compensation will not only disrupt the asset value but will also create fragmentation in current existing property laws, particularly the provision of attaching immovable property to the land that the structure or building is situated on. Moreover, immovable property represents the largest investment for an average household in South Africa from which wealth is derived. In as much as the state wants to speedily acquire and redistribute land to land reform beneficiaries, expropriation without compensation could remedy certain challenges such as limited resources for the acquisition of land for redistribution but can also create more challenges such as the disruption of asset value, if not properly legislated (Vink and Kirsten, 2019). Hence there is the need to invest in the legislative drafting of policies that can merge the gap between the posed threats of food security, agricultural production and disruption of asset value in South Africa’s land reform.

Pienaar (2015) asserts that the inclusion of the land reform programme in the Constitution has imposed an assortment of obligations upon the state regarding the essential and justifiable procedures it should observe to effectively activate/set in motion land reform. Pienaar (2015) further pointed out that the state cannot abandon land reform as it is constitutionally obliged to meticulously attend to it. He further made a notable reference that the Constitution does not only provide responsibilities but also makes provision for the broad parameters of the various programmes necessary for the attainment of a wholistic land reform. Consequently, this implies that the adjustment and changes to land reform cannot take place outside the broad parameters of the Constitution. Hence, the proposed changes of expropriation without compensation have to start with the amendment of the Constitution (Section 25 of the constitution) before the said notion can be applied as a change within the land reform programme.

Expropriation of land requires that the state must compensate the landowner for expropriating the land. This requires that the state must advance monetary compensation in exchange for land to be made available for the public. The compensation element limits the extent to which the state can make land available for redistribution, due to limited resources (Ntsebeza and Hall, 2007). Consequently, this leads to a slow pace in redistributing land and a failure to implement support services to the few land beneficiaries who have received land. In order to accelerate delivery of land and ensure that there are enough resources to assist land reform beneficiaries with support services to aid them to use land productively, the state must cut down on some of the costs. The state can start by reducing the costs of compensating land holders when expropriating land. This can be achieved by ensuring that the costs of compensating land holders when land is expropriated are clearly outlined in detail as to what exactly the state is compensating for. If the compensation is aimed at the improvements made on the land in question, such developments should be evaluated and the land holder compensated for the developments made but not for the land that was forcefully taken from the indigenous owners. This is in line with the objectives of the proposed expropriation without compensation, which in principle it seeks to amend through Section 25 of the Constitution, particularly the provision for granting just and equitable compensation for expropriated property. However, the Expropriation Bill that was last brought before the parliament in 2020 seems to seek to regulate the circumstances in which a landowner or holder is eligible for compensation. Ideally, the Bill intends to deny landowners or landholders compensation for the value of the land but compensate for the developments made on the land in question. Although this proposition could be very challenging to landowners who have loaned money and used the land as security. The state is not clear or rather not explicit on the issues of absorbing land debt, however, it has made it clear that there is no obligation on the expropriating authority to pay compensation to the landowner or holder. Furthermore, the Bill outlines the circumstances in which it deems it to be fit for the state to pay nil compensation to landowner or holder. Such circumstances are outlined as instances where land is not used and the owner’s intention is not to develop or use the land to generate income, but rather benefit from the appreciation of the land market value. Also, in instances where an organ of state holds land that is not used for its intended or core purpose nor intends to use it for such purpose in future. This include the event where a landowner has abandoned the land or has failed to exercise control over it. This could mean an end to underutilised, abandoned redistributed land. The state’s focus is to ensure that land is used productively to remedy the historical injustices of the past and to contribute to the economy of the country. The Bill further states that compensation will not be payable where the market value of the land is equal to or less than the present value of the direct investment or subsidy in the acquisition and beneficial capital improvement of land. Lastly where the condition of the property poses a danger to persons or other property where the land is situated. However, expropriation without compensation is not limited to the above-mentioned circumstances. The state may allocate nil payment where circumstances deem fit. According to Boshoff and Sihlobo (2020), the state will not ordinarily assign nil compensation under the above-mentioned circumstances. However, Section 12(3) of the Bill should be read to interpret that such circumstances will be considered for a nil compensation should the court find it just and equitable to do so. Therefore, the nil compensation is not automatic to the above-mentioned circumstances, but it is subject to the court’s findings.

The Bill sets out the procedure under which the expropriation will be carried out. Firstly, the designated officials will investigate the land and appoint a valuator to evaluate the land and the developments thereon. The expropriation authority will then give a notice of intention to expropriate to the landowner, who has to respond to it within 30 days from the date of receipt. The landowner’s response must include the amount claimed for developments and any restrictions that may be available regarding the land in question. The expropriating authority will be equally required to respond to the landowner within 20 days of receipt of landowner’s response. The expropriating authority’s response must indicate whether the claim is accepted or rejected, and if rejected an offer must be made. If both the owner and the expropriating authority cannot agree within a period of 40 days from the date of the owner’s response, the parties may either employ the provisions of Section 21 of the Bill and approach the competent court of law for relief or the expropriating authority may elect to proceed with the expropriation, continue to negotiate or not. In the event where the expropriation authority proceeds with the expropriation, a notice in terms of the expropriation Bill must be furnished. Furthermore, where the expropriation authority elects not to continue with the expropriation, the same must be made known to the owner and also advertised in the government gazette. Further, an expropriation authority may either elect to continue negotiating with the landowner, until a suitable decision or compromise is reached.

This approach of compensating for developments but not the market value of the land could lead to unending civil claims against the state as it is in contravention of the Property Valuation Act 2014n (PVA). The PVA provides that the value of the property ‘must reflect an equitable balance between the public interest and the interests of those affected by the acquisition, having regard for all the relevant circumstances including’, the factors set out in section 25(3) of the Constitution. However, Pocock (2017) is of the view that the legislators of the Bill appear to have promoted ‘public interest’ as the overarching factor underpinning an amount of ‘just and equitable compensation’. Pocock’s (2017) notion is supported by the view that if public interest is a method of evaluation, then how do you value or calculate public interest in the commercial world. Therefore, to determine the balance of interest will require a specialised tribunal to clearly interpret the legislation to give effect to the objective of equitable balance of interest between the public and the landholders. Hence the need to increase capacity of the land claims’ court or perhaps set up a separate land court as per Minister Lamola’s media statement of the 1st of March 2021. According to the Minister of Justice and Correctional services, a land court bill may soon be submitted to parliament. The Bill proposes an independent law tribunal that will deal only with land-related matters, particularly matters emanating from expropriation without compensation and that of land claims. Essentially, the land court will deal with the systematic challenges faced by the land claims court by making sure that permanent judges are appointed in order to ensure speedy settlement of land claims. Perhaps an additional specialised court could be the answer to unwinding the challenges of land claims that are left unattended by the state, due to lack of legal capacity to address the issues. The acquisition of land is equally challenging as its redistribution; the state needs to prepare legislation and deal judicially and decisively with land matters.

This can be achieved by ensuring that provision of compensation in Section 25 of the Constitution is amended: first to give effect to new policies that will be drafted in line with the amendment to ensure that land is expropriated at no cost.

Pienaar (2015) adds to this by asserting that having land reform embedded in the Constitution underscores or connects the links between Section 25 (property clause) and other related rights. He points out in detail that in this manner Section 9 (equality clause), Section 10 (right to dignity), Section 26 (right to adequate housing) and Section 30 and 31 (the right to culture and the right to belong in a cultural community) reverberate with the actual operations of the land reform programme. Thus, the realisation of these rights solely depend on the successful implementation and enforcement of the land reform programme (Pienaar, 2015). Therefore, it is of paramount importance that in the application of the land reform programme the provisions of the Constitution be upheld as they are embedded in the core objectives of the initial purpose of the land reform programme; that is to redress the historical injustices done to Black South Africans and the inequalities that still exist among Black people by restoring their dispossessed land.

The Abolition of Racial Based Land Measures Act 1991 (ARBLA)

The ARBLA was promulgated to bring an end to discriminatory land Acts (NTLA and NLA together with its successors). The ARBLA aimed at repealing or amending discriminatory sections, such as Section 1 of the NLA, Section 2 of the NTLA and many more discriminatory provisions contained in the NLA, NTLA and GAA of 1966. The stripping Black people of land was formalised by the introduction of the Native Land Act 27 of 1913 (NLA), which barred black people from buying, let alone owning land. The Act was given effect by section 1 of the NLA which provided that the natives were not supposed to enter into any agreement to purchase, hire or acquire land from any person even from a fellow native. The Native Trust and Land Act (NTLA), which was aimed at abolishing individual land ownership and created a procedure whereby a person (representative) held property as its nominal owner for the benefit of others. These laws have regressive effects in formalising racial discrimination and preventing access to land in South Africa. Moreover, these laws effectively ensured that Blacks occupied only about 13% of land in the rural areas. The NTLA was introduced to abolish communal land rights by bringing about restricted freehold of land by an individual; this is in terms of Section 2 of the NTLA which provides that certain areas of land be transferred to native trust and be administered by the trust. The NTLA further ensured that Blacks were given access to the most remote areas which were set aside for them, by forcing them to occupy small areas which were secluded from towns. Furthermore, Blacks could only acquire temporary residence in towns and urban places and they were not allowed to own land in white towns (de Visser and Poswa, 2019). As a result, Blacks would illegally occupy some parts of the cities as they struggled to fit in the small spaces, taking into account the growing population of black people. The current informal settlements consisting of shacks exist today because of the deprivation of land ownership by black people. The NTA and NTLA also had the impact of depriving Black people of their rights to own land prior to 1991(Kloppers and Pienaar, 2014).

Therefore, the ARBLA was enacted to abolish certain restrictions or discrimination based on race in the access to land and ownership thereof. Consequently, this entails doing away with bestowing rights to people depending on their race; this was done by classification of people by colour and confining them to a specific population group and consequently denying certain population group rights to acquire and utilise land. Pursuant to this, Section 1 of the ARBLA repealed the NLA, while Section 11 repealed NTLA. In addition, Section 48 repealed the GAA of 1996, enabling South Africans regardless of race to occupy and own the land in any part of the country without fear of prosecution.

Despite the legislative changes, Dhlamin and Ogunnubi (2018) observe that the skewed patterns of landholding in South Africa is evidence of the previous distributive regimes, the discriminatory allocation of land. Even after 26 years of democratic government and despite the legislative frameworks put in place to redress the previous injustices of land distribution in South Africa, the patterns of the previous injustices are yet to be completely rectified. This could be attributed to the slow implementation of land reform policies, the poor enforcement of policies, the exorbitant amounts the state has to pay to acquire land to make available for redistribution and the great number of claimants and counterclaims against the same land. This makes the South African land reform programme an ambitious if not over ambitious initiative (Cousins and Scoones, 2010). The point is that South African land reform is aimed at achieving a great deal in a very short time and as a result it fails to be realistic regarding the available resources aimed at assisting people to gain access to their land and ensuring the productive use of that land. Therefore, there is a need for land reform to develop and focus on one objective at a time to ensure positive and satisfactory results from redressing historical injustices. Furthermore, the pace at which the land reform programme is moving, is not promising. South African historical injustices will not be resolved soon, unless a radical approach is adopted in the implementation and enforcement of the land reform programme. One may suggest that expropriation without compensation could be a solution to speedily acquiring land for redistribution purposes; but in the process of acquiring land without compensating the landholder for the land, for the issue of developments made on the land, would still raise the question of property rights. That raises the question how the immovable property is going to be evaluated, since its value depends on the appreciation value of the land. The white minority who are in possession of the land that was forcefully taken from indigenous owners, have developed the land to some extent. Some of the developments are residential structures that have been built on the farms. In terms of property rights, he who owns the land owns the developments made on the land in question. Moreover, structures such as houses and other immovable properties appreciate in value and they are attached to the land. Therefore, expropriation of land in terms of the proposed expropriation Bill will essentially disturb the value of the property, since the developments will be evaluated apart from the land despite its value being dependent on the land in question. One could suggest that this would amount to the infringement of section 25(1) of the Constitution which provides that ‘no one may be deprived of property except in terms of the law of general application’. Separating the value of the immovable developments from the land on which such developments are situated will result in the destruction of asset value. That will consequently affect the investment of the landholder and that can be equated with deprivation of property, since the original value of the property would be distorted by separation of land and any developments thereof. Yet the same could be justified under section 36 of the Constitution which places a limitation of rights that are afforded by the Constitution. According to Section 36 of the Constitution, rights can be limited in terms of the law of general application to the extent that the limitation is reasonable and justifiable in an open democratic society. However, such limitation is based on human dignity, equality and freedom but does not exclude other factors such as (a) the nature of the right (this relates to the importance of the realisation of the right concerned). (b) the importance of the purpose of limitation (this refers to the need to redress historical injustices among previously disadvantaged people). (c) the nature and extent of the limitation (the right to own property or to be compensated for such property equivalent to its appreciation value evaluated against the land in which it is situated). (d) the relation between the limitation and its purpose (this will be to ensure that the white minority are not overly compensated even for the land that was illegally acquired. The limitation would hence ensure a just redressal of historical injustices by not compensating where compensation is not due); thus, (e) a less restrictive means to achieve the purpose (this relates to ensuring historical redressal while protecting the property rights of the white minority over the developments made on the land). Therefore, expropriation without compensation does not necessarily mean that the landholders will not be compensated for developments made on the land, however, such compensation will be calculated on the evaluation of developments separate from the land in question. However, on the same note, expropriation without compensation poses many more challenges than it can resolve. For instance, the implementation of expropriation without compensation would mean destroying the agricultural debts held against commercial banks, including the Land and Agricultural Development Bank of South Africa, commonly known as the Land Bank. In that the Land bank accounts for a majority of agricultural debt, to be specific an estimation of a third of the agricultural debts, while the rest is accounted for by the commercial banks, agricultural co-operatives and private persons and institutions (Sihlobo and Kirsten, 2018). These financial institutions would lose a large amount of money that is loaned to farmers if land is to be expropriated without compensation, unless the state is going to carry over the debts bonded against the land that is expropriated without compensation. This scenario would not save costs for the state but would create overburdening financial challenges to the system that already has very limited resources to assist land reform beneficiaries to both gain access to land and utilise it productively. According to Bosman (2016), the Banking Association of South Africa (BASA) made comments on the draft Bill of Property Evaluation before it was adopted. The comments of BASA highlighted the fact that the regulations of the Banks Act, which are reliant on a global regulatory framework, require the security value of loans to be derived from the market value of the property. However, if the value of the property is determined separately from the land, such value will be less than the market value since the property value is dependent on the appreciation value of the land. This will however lead to banks adopting more stringent requirements for lending money, and this will consequently affect the chances of land reform beneficiaries qualifying for loans. Therefore, a lack of funding will add to the existing challenges of underutilised land due to lack of finances. Hence there is a need to implement a radical approach to the land reform programme. The state has to start with what is available to achieve positive results. The state can commence by empowering land reform beneficiaries who are in possession of land to farm productively to generate incomes. That can also contribute a certain percentage to the land reform programme as an initiative to raise funds to acquire more land for redistribution. Therefore, a systematic programme to assist land reform beneficiaries would consequently ensure that the state assists land reform beneficiaries to farm productively and improve their lives. It would also create a mechanism that derives a certain percentage of financial boosts from the gainful activities conducted on redistributed land.

Restitution of Land Rights Act 22 1994 (RLA)

Government adopted the RLA with the intention to provide restitution of rights to communities and persons who have been dispossessed of their land. To achieve this, the government established a commission consisting of three commissioners (Chief Land Claims Commissioner, Deputy Land Claims Commissioner and Regional Land Claims Commissioner) and a land claims court to assist in resolving land conflicts. The commissioners are responsible for assisting the claimants to prepare and submit their claims, to investigate the merits of each claim, advise the claimants of the progress of their claims and to mediate to settle the disputes arising from such claims.

In terms of Section 10 of the RLA, any person who is eligible to claim restitution of right to land may lodge their application. This application includes a description of the land in question, the nature of the rights in land which he was dispossessed of and the nature of the right that is being claimed. If the commissioner is satisfied that the claim was lodged in the prescribed manner, he will publish a notice in the government gazette calling upon any person who in their opinion have an interest in the claim to show the cause of their objection.

In instances where there are two or more competing claims in respect of the same land, the commissioner will direct such people involved to try settling their differences over land through the process of mediation and negotiation. The mediation and negotiation processes unfold as follows: the first step is planning, whereby the mediator assists the parties to decide where they should meet and who should be present. After the introduction phase where the mediator introduces all parties, he explains the process and lays down ground rules. After the introduction, the parties are given the opportunity to present their view of the dispute without interruption.

A joint discussion takes place after the parties have presented their views; the opponent and mediator may ask questions for clarity with the intention of arriving at a better understanding of each party’s concerns. If parties’ emotions run high during the joint discussion, the mediator might separate the parties and have private meetings with them. This phase is called caucusing. Negotiation will then follow whereby the mediator accepts proposals and suggestions of how the matter should be resolved; if the parties agree to the proposal made, the parties will then have a settlement agreement based on the suitable proposal. After the mediation process, if the commissioner is of the opinion that it is not feasible for the claim to be resolved by mediation or with the consent of the parties, the commissioner certifies accordingly and refers the matter to the Land Claims Court for adjudication.

However, the land claims court does not necessarily have inherent jurisdiction to hear all land disputes. The land claims court jurisdiction is not extended to land matters in which disputes arise from the administration of monetary compensation by claimants, administration and functioning of Communal Property Association Act 1996 (CPA). The court jurisdiction is limited to the disputes arising from land claims and counterclaims.

In the case of Saziso Mndiyataand and Others vs Umgungundlovu Communal Property Association and Others (LCC10/2018), the community of Mgungundlovu (the claimant community) which is situated in the Bizana Administrative District in the Eastern Cape Province, was forcefully removed from their ancestral land in the 1980s after the former Transkei homeland government signed a lease agreement over their land with Transkei Sun International Limited (Transun) for the development of a resort, casino and a golf course.

The claimant community instituted a claim with the regional commissioner on the 25th of September 1995, in terms of the Restitution of land Act, 22 of 1994. The land being claimed was saved for the Wild Coast Sun, and was largely undeveloped. The claim was referred to the Land claims court in terms of Section 38B of the Restitution of Land Act in 2011. After the exchange of pleadings, the parties eventually entered into a settlement agreement. The settlement agreement was made an order of the court on the 10th November 2014. The claimant was paid a sum of R50 million by the Minister as part of their settlement.

In 2015 the claimant community (Umgungundlovu community) registered the CPA on the 26th September 2015 in accordance with the CPA Act, Subsequent to that the claimant community had an election for the appointment of the CPA’s management committee. Twelve people were elected. Prior to the election, there were two other committees that represented the claimant community in the land claim matter. An urgent application seeking to interdict the respondent from utilising funds held in the CPA was brought before the Land claims court. The application alluded to issues relating to the misuse of the CPA’s funds and other governance related issues. It was held that the Land claims court has no jurisdiction to hear matters related to CPA’s governance conduct. The matter was dismissed with no order to costs.

The scope and jurisdiction of the Land claims court is in relation to the following: the person entitled to the title of the land, the endorsement of reimbursement allocated regarding land owned by or in possession of the private person upon expropriation and whether compensation received by a person at the time of dispossession of right in the land was just and equitable. When determining whether the compensation was just and equitable at the time of dispossession, the court will check the market value of the land at the time and the actual compensation made in respect of that land in order to arrive at the conclusion whether the compensation was just and equitable or not. In determining what is just and equitable in expropriation, a balance must be found between the interest of the private owner and that of the public interest, that is, to weigh up the interest of the private owner and that of the public and then decide which interest is more significant. Hence, compensation that is below the market value can be compliant with the constitution if it qualifies as just and equitable.

However, the question of just and equitable compensation as contemplated in Section 25(3) may no longer be interpreted to mean compensation that is equivalent to property that is expropriated, taking into account the state’s intention to expropriate land without compensation. and the proposed amendment of Section 25 of the Constitution. The effect of the proposed expropriation will do away with the question of determining a just and equitable compensation in terms of the appreciation value of the property to be expropriated, that is inclusive of the land in question. This will consequently ensure a balance between just compensation for developments made and expropriation without compensation of the land that was forcefully taken away from black people. This will thus lead to the state not wasting money in expropriating land. However, the state could expropriate land without spending money for compensating the private owner, although the state will not unduly enrich itself with developments made on the land in question. Instead, the state will compensate for developments made on the land and such development evaluation would not be calculated according to the value of the land in question. This will ensure a speedy acquisition of land by the state. Ultimately it will ensure a speedy process of redistributing land to the people. However, it may have a negative impact on food security, that is, if expropriation of land that is used productively. It will stop or slow the pace of production and this will have a great impact on the gross domestic products (GDP), unless measures tof secure food security are taken beforehand.

South Africa depends on domestic products for food; farming for agricultural purposes is the main source of food for South Africans (Baiphethi and Jacobs, 2009). Tempering, or rather slowing the pace of agricultural activities would have an adverse effect on the supply of food within the country. When land that is used for agricultural purposes is expropriated there must be a way of continuing business on that land or the expropriation will serve no purpose in alleviating poverty among black people. Hence, the need to have policy drafts in place prior to expropriating land without compensation to address the threatened food security, agricultural activities and investors’ confidence. Effective policies should ensure that the expropriation without compensation does not affect food security, agricultural activities and other developmental activities negatively nor prevent such activities from continuing their normal business.

Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA)

The IPILRA is aimed at protecting those individuals with insecure landholding from losing their rights to land while land reform is being introduced. Section 2 of the IPILRA provides that access to land that is held in commonage will be denied to anyone who is subject to the provisions of subsection (4) unless such persons have familiarised themselves with the customs and usage of the community concerned.

This implies that people could not easily get access to the land in communal areas; they had to first comply with the customs and usage of that community. People who were not well acquainted with the customs of the community would be deprived of access to land, merely because they did not comply with the customs or usage of that community. This section prohibits non-residents or people who are not aquainted with the customs of the community from acquiring land or developing the land simply because they are not accustomed to the ways of the community. Although Section 2 of the IPILRA makes provision for deprivation of land rights, Section 3 of IPILRA provides that if the deprivation is as a result of the disposal of land by the community, the state shall pay compensation to any person deprived of such an informal right to occupy land.

The Communal Land Rights Act of 2004 (CLRA) sets out in the IPILRA. The main objectives of this CLRA are to make provision for secured tenure when transferring communal land. It further makes provision for the co-operative performance of municipal functions on communal lands. Section 37 of the CLRA makes provision for municipal services and development of infrastructure on communal land. It provides that no law may prohibit municipal officers from performing their duty to develop communal land irrespective of how the land rights are registered.

This clearly states that a municipality has undisturbed rights to develop communal land despite the overlapping functions it has with other institutions with regard to land administration in rural areas. Therefore, a company or developers who are not accustomed to the traditions of the community can be given access to develop the land by the local government despite the required compliance of being acquainted with the customs of the community, provided such development will be for the benefit of the community. In Baleni and Others v Minister of Mineral Resources and Others Case No 73768/2016 the court handed down the Baleni judgment on 22 November 2018, following a long-standing dispute between the community in the Eastern Cape and an Australian mining company, Transworld Energy and Mineral Resources (SA) (Pty) Ltd (TEM).

The dispute centred around the competition between the informal land rights held by the community in terms of the Interim Protection of Informal Land Rights Act, No 31 of 1996 (IPILRA) and the legal requirements to grant a mining right under the MPRDA. The court took into cognisance the relationship between the IPILRA and the MPRDA in respect of the level of engagement that is to be achieved before the granting of a mining right. The argument is that ‘the IPILRA requires the informed consent of a community which has informal rights in land before the community may be deprived of such rights, whereas the MPRDA requires only that a community be fully consulted prior to the granting of a mining right’.

The court found that because these two pieces of legislation have a similar purpose, namely, to redress historic, economic and territorial dispossession, they should be read together. The court considered the elevated status that customary law enjoys under the constitutional dispensation and the special protection afforded to traditional communities under the IPILRA. The court also noted that the MPRDA does not specifically outline that the MPRDA prevails in the event of an inconsistency with customary law, and that, in addition to requiring consultation with interested and affected parties, the MPRDA makes specific reference to promoting the rights and interests of communities. Given these factors, the court was satisfied that the Minister had additional obligations under the IPILRA to obtain the community’s consent prior to granting TEM’s mining right.

The court’s interpretation of the provisions of IPILRA is in line with Section 211(3) of the Constitution which states that the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. Hence, the court upheld the provisions of IPILRA over the provisions of MPRDA of merely conducting a consultation with the community. In the case of Maledu and Others v Itereleng Bakgatla Mineral Resources Pty Ltd and Another [2018] ZACC 41 the court echoed the sentiments that the IPILRA seeks to ‘protect traditional communities by ensuring that communities have a right to decide what should happen to the land in which they have an interest; that it offers communities legal protection to assume control over and deal with their land according to customary law and usages practised by them; and most significantly, that the IPILRA provides that no person may be deprived of any informal right to land without their consent’.

Furthermore, it was held that the Baleni judgment implies that when a community has informal land rights, the Minister will lack the lawful authority to grant a mining right in terms of the MPRDA unless the provisions of the IPILRA have been complied with. Furthermore, if the IPILRA is not complied with, a court may be willing to grant a declaratory order to uphold the informal land rights of a community.

Communal Property Associations Act 28 of 1996 (CPAA)

The CPAA affords provision for communities or groups of people to obtain and administer property under a written constitution. Section 7 of the CPAA sets out the procedure for the adoption of a constitution by a community. Section 8 of the CPAA deals with the registration of communal property associations. Section 8(1) provides that the Director-General shall consider an application for registration of a communal property association together with, inter alia, the constitution adopted by the association. To qualify for registration as a CPA in terms of the Act, the community has to conform to the requirements of Section 8(2) of the Act.

One of the requirements prescribed in Section 8(2)(d) of the Act is that ‘the constitution adopted by it deals with the matters referred to in the Schedule’. The Schedule to the CPAA lists 22 matters which have to be addressed in a CPA’s constitution. The first is its name. The second one is the address of the association. The principal address of the association is the address under which the association is registered, even if the address isvacant land, all legal notices and services must be served at that address.

In Etindziweni Communal Property Association v Carfarm Close Corporation (A459/2014) [2015] ZAGPPHC 489 (23 June 2015) the applicant in this matter is Etindziweni Communal Property Association, a CPA registered in terms of the CPA Act. The applicant made an application for rescission of judgment granted against the CPA. The CPA chairman alleged that he only became aware of the judgment taken against the CPA upon receipt of the writ of execution, whereas the respondent alleged that the sheriff served the summons personally on the Chairman of the CPA. The applicant contended that such service was not in accordance with Rule 4(1)(a)(v) which requires that service of documents must be effected at the principal place of business of the juristic person, as the Etindziweni Communal Property Association is a juristic person and that is in terms of Section 8(6)(a) of the CPAA.

The court held that the service of the summons on the applicant was irregular and that the judgment which was granted against the CPA was accordingly erroneously sought and granted. Consequently, the court rescinded the judgment and held that the respondent should have served the applicant at the principal business place as the address of the CPA is accordingly afforded to any member of the public upon their request and that is in terms of Section 8(3)(c).

The distinction between the independence of the members of the CPA and the CPA as a legal entity is still a problematic issue when it comes to dealing with the business of the CPA. Often it is assumed that the members of the CPA are liable for the CPA business while in fact CPA is an independent entity administered by the members. This confusion often leads to the impression that CPA is ineffective due to the complex issue of failure to identify its independence apart from its members as administrators.

Jacobs (2011) avers that CPAA established communal property associates are generally ineffective, and several theoretical problems support this opinion. The details are inclusive of uncertainty concerning the status of members, inappropriate assigning of practical rights and maladministration of the land. Failure to enforce compliance of proper administration of the CPA by the members, results in mismanagement of the land and funds. However, this situation can be avoided if the court’s jurisdiction over CPAs was extended to monitor strict compliance of proper management of a CPA. According to Jacobs (2011), CPAs do not necessarily adhere to the democratic laws of the CPA as outlined. Thus, the constitutional reasoning is of a most equal access to land and natural resources without compromising the tenure security. It is for this reason that the state’s credibility to deliver on its promises is questionable.

The above is, however, supported by the allegation made by the respondent in the above-mentioned case, that the registered place of business of the CPA was a vacant land and as such the CPA was not necessarily conducting its business at the registered place of business. Consequently, the sheriff could not deliver effective service. This, however, presents difficulties in executing an action against a CPA creating a complex procedure of dealing with CPAs. Moreover, on the issue of insecure tenure rights, the establishment of CPAs does not necessarily address the issue of creating a secure tenure system for people living in rural areas. Due to its structure of granting of administrative powers to traditional leaders and withholding of transfer of ownership rights over the land, land is made available to beneficiaries. This practice has resulted in hindering land reform beneficiaries from acquiring funding from financial institutions due to the lack of security to bond their loan against. This is caused by the valueless asset of land held in CPA and the lack of ownership rights over the land. Therefore, the beneficiaries are granted land through permission to occupy titles. This limits the chance of land reform beneficiaries to gain access to funds or even attract investors and donors. As a result, land made available through a CPA is rarely used productively due to lack of resources and the obstacle of a land title that hinders any prospect of acquiring funding from financial institutions.

Land Reform (Labour Tenants) Act 3 1996 (LRLT)

The LRLT Act protects the rights of labour tenants and enables them to obtain land to work and live on a permanent basis. Section 3(1) of the LRLT provides that any person who was a labour tenant after June 1995 shall have the right to occupy and use part of the farm with his family. This right does not necessarily imply ownership of the portion of the farm, but it provides protection and enjoyment of occupants’ privileges and such privileges can only be terminated in terms of the LRLT. The rights of occupants to occupy and use a piece of the farm does not impose rights to develop the land in question, hence the occupants do not have ownership rights, however, the occupants can erect temporary buildings necessary for their daily use. Labour tenants in terms of the LRLT often refuse to relocate when the owner wants to use the land for development and this then requires that an alternative place for residing be provided by the owner. Failure to meets such demands, the tenants are most likely not vacate the land in question and will often rely on the provisions of LRLT which provides that the labour tenants’ occupation can only be terminated by LRLT. However, this negatively affects the use of the land productively and hinders the progress of development on such land. Therefore, the provision of Section 3(1) should be subjected to limitations that will entail the exceptional circumstances whereby LRLT tenants could be speedily vacated from the land for purposes of developmental projects. However, this will require interventions by the state to assist LRLT tenants with an alternative place to occupy instead of expecting a landowner to make available alternative accommodation for the LRLT tenants on his costs. This consequently deters landowners and developers to engage in developmental projects on land occupied by LRLT tenants due to fear of being financially liable for the relocation of LRLT tenants. Notwithstanding the fundamental rights for LRLT tenants to be afforded adequate housing there is a need for the state to encourage productive use of the land for purposes of alleviating poverty and creating sustainable development, particularly in rural areas. Furthermore, the state must take consideration of the financial status of landowners and avoid shifting responsibility for availing land and adequate housing to LRLT tenants to landowners as this deters the progress of developmental projects on land occupied by LRLT tenants.

Extension of Security of Tenure Act 62 of 1997 (ESTA)

The ESTA makes provision for people who occupied someone else’s land on or after 4 February 1997 with permission from the landowner, to secure the legal right to continue living on and using that land in terms of Section 6(1). Section 8(1) specifies clearly on which grounds the landlord may evict an occupier and Section 10(1) provides grounds on which an order of eviction may be granted. The Act also specifies what the landlord needs to comply with before evicting the tenant. The consequences of living on land owned by another person are that every improvement made, if allowed, belongs to the owner of the land. Therefore, the occupiers are limited to making improvements on the land because of lack of ownership. In Cosmopolitan projects Johannesburg (pty) Ltd vs Leoa and Others (LCC 174/2016). The applicant bought portion 44 of the farm Waterval 150, registration division IR, in Gauteng. The applicant bought the land in question in 2014 for purposes of development. After the applicant purchased the land, he entered into negotiations with the respondents who are ESTA occupants. In an attempt to secure their agreement to vacate the land in order to make way for the development; however, not all the respondents agreed to the applicant’s propositions.

The respondents were legally represented when the applicant proposed that the respondents relocate to an alternative land which the applicant had purchased and become joint owners of the land through a Communal Property Association (CPA) to be established. The majority of the respondents signed consent forms to relocate and waive their rights under ESTA. Among the respondents, only 34 respondents agreed to relocate while the others refused. The applicant made an application to the court to have the 1st to 34th respondent’s settlement agreement be made an order of the court, and further requested an order of the court to evict the rest of the respondents in terms of ESTA.

When the matter was brought to court, the 1st to 34th respondents changed their minds and contended that the alternative land was not fit for human habitation and that there were no structures. The rest of the respondents held that the applicant did not comply with the requirements of Section 8 of ESTA, and as a result, the applicant was not entitled to an eviction order. However, the applicant argued that the respondents who entered into a settlement agreement were bound by the agreement they had consented to; therefore, the court should order the respondents to vacate the land.

The court held that the applicant had not established that the requirements of Section 8 of ESTA had been met and was accordingly thus not entitled to an eviction order. Moreover, considering the above, it would serve no purpose to make the settlement agreement and an order of the court. In Snyders and Others vs De Jager and Others 2017(3) SA 545 (CC). The Constitutional Court held that if a person has a right of residence on someone else’s land under ESTA, that person may not be evicted from that land before that right has been terminated. In other words, the owner of the land must terminate the rights of the occupant to reside before seeking an order to evict that occupant. Although, it must be observed that the termination of the right of residence is required to be just and equitable in terms of Section 8 of ESTA.

The provisions of the ESTA have been flaunted by many landowners. They preferred to evict the tenants based on their (the landowners) terms, without fully complying with the procedures set out in the ESTA. However, landowners are experiencing delays in their intended development or land use as a result of the strict requirements for terminating the right of ESTA occupants before initiating an eviction. In essence, that means a landowner has severe constraints in developing land that is occupied by ESTA occupants. To some extent, the requirement to terminate ESTA occupants’ rights is a hindrance to development. The likelihood of ESTA occupants accepting an alternative place to occupy is very low. In many instances, ESTA occupants are reluctant to relocate from their familiar place of residence to a new place. As a result, landowners are unable to utilise their land productively. Therefore, not only is the productive use of land hindered by a lack of adequate post-settlement support services, but it is also limited by provisions such as Section 8 and Section 10 of ESTA. These sections require a landowner to evict ESTA occupants after complying with the outlined procedure in Section 8, in particular, the termination of occupants rights and making available an alternative place. However, the process does not always go according to the procedures due to challenges such as the refusal of occupants to waive their rights in terms of ESTA and relocate. Coupled with a process of applying for eviction and meeting the grounds as per Section 10. This consequently prevents landowners from using their land productively and contributing to sustainable development, particularly in rural areas. This is consequent to a lengthy procedure of vacating ESTA occupants.

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 1998 (PIE)

This Act sets out clearly how land can be occupied in an orderly manner. It further explains when and how illegal tenants can be evicted and how to forbid illegal eviction. PIE repeals the Prevention of Illegal Squatting Act of 1951. Section 4 of the PIE Act provides that ‘a notice must be given to unlawful occupiers, at least fourteen (14) days before the hearing’. PIE requires that before evicting people a landowner must give them notice. This will give the people an opportunity to obtain a legal representative if needs be to defend them before the court. The time period given for the notice affords the people a reasonable time to vacate the land.

Improvements or developments made on land illegally occupied are forfeited when the unlawful occupiers are evicted. It is commonly done by way of demolishing structures built on the land in question. Lack of land is usually the reason why many developmental structures are demolished because the land on which the structures are built is illegally acquired or occupied. On the 4th of November 2019, the Polokwane Local Municipality demolished rental houses built on ERF 815 at Unit E in Mankweng. The demolishing followed a 2016 court case between the Municipality and the Illegal occupants. In 2016 the Municipality did an inspection and made the finding that a certain person was building structures on ERF 815-unit E, a site designated for the Department of Education to build a school. The municipality informed the respondents about the position of the ERF in question.

The respondents indicated that they would not refrain from erecting structures on the site. The municipality sought an order in the High Court and was granted an order interdicting and restraining the respondents or any other person from occupying the land and further ordered the respondents to demolish and remove all buildings and other removable property from the ERF within 14 days of the court order. In the event that the respondents did not comply with the order, the sheriff was authorised to demolish and remove all property or structures on the ERF. The court order was stayed by the municipality for a period of 2 years, during which the municipality communicated numerous times with the respondents but failed to reach an understanding. Consequently, the sheriff was instructed to demolish the structures as per the court order.

It is unfortunate that developments made on land that was illegally acquired are forfeited. This slows down the pace of developing land which is not utilised. Lengthy procedures are allowed to acquire land, while there are numerous plots that are not utilised productively. The formalities and procedures thereof are quite complex and as a result developers are hindered from erecting their developmental structures due to these complex and conflicting procedures of acquiring land that is not used. The people who own land either procrastinate using the land productively or they do not have financial resources. Perhaps the state needs to invest in mechanisms to ensure that developments made on land that is illegally occupied are not necessarily demolished but instead put to good use. That will generate income and ensure that illegal occupants do not lose their investments but are compensated accordingly. Therefore, the money generated from developments made on the land illegally occupied could serve as costs suffered by the state when compensating the illegal occupants. However, this should not encourage illegal occupants to develop land that does not belong to them with the hope of recovering their investments when evicted. This measure should be used as a means for redress. Furthermore, land that is demarcated and set aside for a specific purpose by the state or an individual should be clearly marked and the intended purpose indicated. This will assist illegal occupants to be informed of the owners of the land in question, thus placing the illegal occupant in mora and declaring such occupation of land as trespassing. Moreover, land set aside for a specific purpose should be timeously utilised to avoid land lying fallow for a very long time and creating the opportunity for illegal occupants to take advantage. Evicting illegal occupiers is a lengthy process that needs to be duly complied with, however there are circumstances where the process itself becomes a hindrance as it prevents a landowner of timeously evicting illegal occupants and consequently the landowner cannot utilise the land productively. The case of Khauhelo v Mosupa and Another (A252/2014) [2015] ZAFSHC 69 (19 March 2015) is an example of this. The appellant was evicted on 14 August 2014 after being served with notice of motion. The appellant brought the matter before the court alleging that ‘the notice of motion did not comply with Rule 55(1)(e)(iii) of the Magistrate’s Court rules in that according to the said rule, an applicant should set forth a day in its Notice of Motion, not less than five (5) days after service of the application on the respondent. This requires of the respondent to notify the applicant whether the application would be opposed, and furthermore, a date should be stated not less than ten (10) days after the lapse of the five (5) day period when the application will be heard. The appellant pointed out that no such dates were set out in the Notice of Motion’. The appellant further urged that the respondent should have used Form ‘1A’ of the Magistrate’s Court rule and that there was no request for condonation for the use of the wrong form.

The court held that ‘there was agreement with the Act and that the purpose of the said Act has been achieved'. Nowhere in the said notice, is the date stated whereon the proceedings would be heard as contemplated in Sections 4(2) and 4(5)(b). However, the order declared that the respondents must appear before the court on the 12th November 2013; same was only to stipulate whether they would use their right to conduct their own cases, or alternatively to get an attorney and/or to apply for legal aid. Nowhere is the date of the hearing indicated. Accordingly, the municipality would never have known when this application was to proceed. No effective notice was therefore given to them. This is with the exception of the fact that notice should not be offered less than a period of fourteen (14) days.

The court further held that ‘the Magistrate in the circumstances should not have granted the order. The Magistrate should have found that there was improper agreement with the provisions of the Act and could not in the absence thereof have granted an order of eviction’. The Magistrate should merely have removed the application from the roll. Accordingly, the appeal succeeded with costs. Application of eviction must be properly done following the required procedure to afford the respondent a reasonable time to respond to the application. Failure to follow proper procedure will render the application unsuccessful regardless of your right of ownership of the land.

The Transformation of Certain Rural Areas Act 94 1998 (TCRAA)

This Act aimed at effecting the transfer of 1.7 million hectares of land to the communities consisting of 70 000 people in the former ‘coloured reserves’ in the Western Cape, Northern Cape, Eastern Cape and Free State. The 1.7 million hectares were successfully transferred to the rightful indigenous owners. To date half of the land that was redistributed is not productively utilised due to lack of resources and skills. Poverty in this area is still severe; the social and economic status of the people living in these areas have not changed nor have they been positively impacted by the redistributed land. Apart from people receiving land back, they were not offered anything to assist them to utilise the land productively and generate an income. People remained in the same financial position they were in before land was redistributed to them. There is a need to introduce support programmes for land reform beneficiaries to assist them to utilise the land productively and so eradicate poverty. The transfer of land only played a role in changing the tenure system but failed to improve the livelihood of the people living in these areas. The people living in rural areas are still experiencing the same social challenges that come with poverty even after receiving their land back. The land which was redistributed to them was not coupled with adequate support services to show them how to utilise the land productively and thus improve their life.

Previously, when the Upgrading of Land Tenure Rights Act 112 of 1991 was introduced, South Africa was divided into what used to be known as TBVC states. After the merging of these states in 1994, the Act only applied to certain parts of the country. A few years later it was extended to the other parts of the country. However, land reserved for black people still did not amount to ownership as access to land was governed by proclamations that gave black people land rights. Moreover, the rights still did not amount to ownership but only gave permission to occupy.

Land tenure is the condition under which land is held. In 1996 the Parliament passed or issued two of the most important pieces of legislation related to the tenure. These legislations are the Interim Protection of Informal Land Rights Act 31 of 1996 and the Communal Property Associations Act 28 of 1996. The first is a ‘holding mechanism that prevents the violation of existing interests in land until new long-term legislation is in place'. The latter provides a means through which people wanting to hold land jointly and in groups can organise their tenure. In addition, the Upgrading of Land Tenure Rights Act 112 of 1991, was amended to bring it in line with tenure policy.

The latter’s provision of Section 3 was recently given a practicable emphasis in the case of Herber N.O and Others vs Senqu Municipality and others (CCT 308/18) [2019] ZACC 31 (22 August 2019). In this case the Teba Trust challenged the validity of section 1 of the Land Affairs General Amendment Act 61 of 1998 and Section 25A of the Upgrading of Land Tenure Rights Act 112 of 1991, which excludes Section 3 from extending to the whole of South Africa. The High Court held that Section 25A should be read as not making any reference to Section 3. The matter was then referred to the Constitutional Court, which upheld the decision of the High Court and consequently rendered the provision of Section 25A unconstitutional. It held that ‘those who were denied the benefits of Section 3 should not be made to wait much longer before they may convert their insecure tenure rights'.

A number of legislation enacted after 1994 have made considerable contributions to the access to land, even for the purpose of sustainable development. However, there are several factors limiting access to land, where access is given, yet ownership is limited. Moreover, some of the legislation have less impact due to poor implementation. An example of such is the issue of change of tenure, where most of the land that is reserved for Black people is held under permission to occupy. Black people still lack ownership of the land they are occupying, regardless of the legislation put in place to advocate equal ownership of land for everyone. The Upgrading of Land Tenure Rights Act 112 of 1991, for instance, which is intended to ensure that black people’s tenure is improved, was limited by provisions of Section 25A ULTRA. Consequently, it denied black people ownership of land.

The provision of Section 25 of the Constitution provides that ‘no law may permit arbitrary deprivation of property’ and this includes land; hence the provision of this section entitles people to have a right to access land. However, this is subject to the law of general application. This does not necessarily mean that the law of general application should be contrary to Section 25 of the Constitution. Section 2 of the Constitution requires every law to be consistent with the Constitution. However, Section 36 of the Constitution makes provision that rights can be limited in terms of the law of general application to the extent that it is reasonable and justifiable in an open democratic society. Therefore, deprivation of property as a measure of limitation in terms of Section 36 must be both reasonable and justifiable based on human dignity, equality and freedom, but not excluding other relevant factors. However, if such deprivation of property cannot be justified under the provisions of Section 36 of the Constitution, such deprivation is undue. Hence, the recent constitutional court judgment in the case of Herber N.O and Others vs Senqu Municipality and others (CCT 308/18) [2019] ZACC 31 (22 August 2019 declaring Section 25A of ULTRA unconstitutional excluded Section 3 ULTRA from extending to the whole of South Africa, that is, allowing areas that hold permission to occupy to convert their rights of permission to occupy to ownership rights through a change of landholding in terms of section 3 of ULTRA.

Provisions such as these have contributed to unutilised land by depriving a land reform beneficiary of ownership rights over the land and consequently rendering such land valueless as security for loans. Therefore, the land hold system that deprives land reform beneficiaries transfer of ownership does not encourage productive use of land. Instead, it leaves land reform beneficiaries at the mercy of state support services. These support services provided are not sufficiently adequate to assist land reform beneficiaries to farm or use their land productively to generate an income.

Conclusion

This paper demonstrates the significance of transformative interventions in South Africa to redress apartheid land segregation and injustices, inequalities and the need for making land available to the majority of Black people for socioeconomic and development activities. However, due to the lack of a practical link between the provision of land, that is, redistribution, and the productive use of redistributed land as a measure for poverty alleviation. The land reform programme consequently has not met the intentions of the legislators nor the expectations and needs of land reform beneficiaries. However, availing land to Black people without support services strategies to assist black people to utilise land productively will not address the social and economic status of Black people but foster a poverty-stricken lifestyle.

Farming activities are the best course of action to eradicate poverty, hunger and starvation among land reform beneficiaries. The need to farm productively is closely related to the survival of humankind. The government should support and encourage land reform beneficiaries to utilise their land productively by means of effective farming activities to speedily eradicate poverty, hunger and starvation among black people. The level of poverty in South Africa is very high, and it is tied to the increasing number of unemployed people. However, there are several developmental and industrial activities that black people can engage in to generate incomes and from which to make a living through using their redistributed land productively. The government has to be made aware of the appalling conditions land reform beneficiaries are living under despite owning land. And therefore, government should assist with effective and practicable support services to aid land reform beneficiaries to use their land productively and make a sustainable living.

The state has shown its commitment to ensuring that historical injustices are redressed by introducing the proposed expropriation without compensation initiative. It is aimed at amending the provisions of Section 25 of the Constitution, particularly the compensation clause. However, from the expropriation bill that was submitted to parliament in October 2020, it appears that the state is neither sure nor ready to make deletions to the provisions of Section 25 of the Constitution. It is by confronting the compensation clause in section 25 of the Constitution to make the necessary amendments that will give effect to the proposed expropriation without compensation. However, the Bill is keen to add sections that highlight the circumstances under which the state will compensate the landholder and circumstances under which nil compensation will be applied. This contradictory practice exposes the complexity of redressing historical injustices while confronted with the complicated legacy of the apartheid era. In as much as it is important to have Well-rafted legislation to redress historical injustices, it is equally important to have practicable legislation that promotes equality and inclusivity for all people. That is a system that will be equally beneficial to historically disadvantaged people and considerate of the white minority interests.