1 Lewin, J. The Native in South Africa, Witwatersrand University Press, Johannesburg. Quoted in Letsoalo, “Land ‘Reforms’ – State initiatives” in de Klerk, Michael, ed: A Harvest of Discontent: The Land Question in South Africa, 1944. 99-111 at 100.Google Scholar

2 Thom, H.B. ed., Journal of Jan van Riebeeck, entry of 10 Feb 1655 quoted in Davenport, T.R.H. and Hunt, K.S., The Right to the Land Document No. 17. David Philip, Cape Town, 1974.Google Scholar

3 Davenport, and Hunt, ibid. Documents 20 and 21. Documents 34, 35 36 and 37 show how the Kings of the Zulu, Shaka and Dingane supposedly gave grants or ceded much of the east coast – estimated at 20, 000 square miles (Port Natal and its hinterland including mineral rights) to four different people- F.G. Farewell, John Saunders King, Captain Allen Gardiner and Piet Retief at different times between 1824 and 1838 for nothing more than “as a reward for his kind attention to me in my illness” or “for his attention to my mother in her last illness.”Google Scholar

4 Native Land Act 36 of 19 June 1913.Google Scholar

5 Native Development and Trust Land Act 1936.Google Scholar

6 As Bundy puts it: “What the 1913 Act attempted to do was to legislate out of existence the more independent forms of tenure and to perpetuate instead the most dependent. Its intention was to outlaw cash paying tenants, and in the Orange Free State to forbid sharecropping agreements. The Act was intended to reduce cash-paying tenants and sharecroppers to the status of labor-tenants or wage-laborers.” Bundy, C. “Land, Law and Power: Forced Removals in Historical Context,” in Murray, C., and O'Regan, C., No Place to Rest: Forced Removals and the Law in South Africa. Cape Town, Oxford University Press, 1990, 1-12 at 6.Google Scholar

7 Group Areas Act No. 41 of 1950; replaced by the Group Areas Act No. 36 of 1966.Google Scholar

8 For a detailed account of the use of the Act see O'Regan, Catherine “The Prevention of Illegal Squatting Act” in Murray, and O'Regan, supra fn. 6, 162–179.Google Scholar

9 Platzky, and Walker, C. 1985. The Surplus People: Forced removals in South Africa. Johannesburg, Raven Press at 10. At 141-142, the authors list 18 major laws dealing with black land rights and powers of relocation.Google Scholar

10 Attributed to Petros Nkosi at an Eastern Transvaal meeting. Quoted in Claasens, Aninka “For Whites only – Ownership in South Africa” in Klerk, Michael de: A Harvest of Discontent: The Land Question in South Africa. Idasa 1991 43-61 at 50.Google Scholar

11 The full text of the “Freedom Charter” can be found as appendix 1 in Steytler, N. ed., The Freedom Charter and Beyond: Founding Principles for a Democratic South African Legal Order. Wyvern Publications, Cape Town, 1991.Google Scholar

12 African National Congress, Reconstruction and Development Programme, 1994 2.4.Google Scholar

13 Budlender, G. “The Constitutional Protection of Property Rights” in Budlender, , et al, eds., Juta's New Land Law Juta, Cape Town, 2000 at 1-3. See also on this issue: Walt, Andre van der, “Property Rights, Land rights and Environmental Rights in Wyk, D.H. Van, et al., 1994, Rights and Constitutionalism in the New South Africa 455+ at 479 and Chaskalson, M., “The Property Clause: Section 28 of the Constitution” 1998 SAJHR 131-39.Google Scholar

14 Constitution of the Republic of South Africa Act 200 of 1993, sections 8 (3) (b) and 121.Google Scholar

15 Ibid. Section 25(4).Google Scholar

16 Ibid. Section 25(7). Equitable redress is defined in the Restitution of Land Rights Act 1994 as a right in alternative state land or the payment of compensation.Google Scholar

17 Restitution of Land Rights Act 22 of 1994.Google Scholar

18 Ibid. Section 2.Google Scholar

19 Department of land Affairs, 1997, White Paper on South African Land Policy par 4.14.2.Google Scholar

20 Ibid.Google Scholar

21 This has been made clear during discussions with students at the University of the Western Cape in my Land Law class.Google Scholar

22 Ruth Hall of the Programme for Land and Agrarian Studies (PLAAS) at the University of the Western Cape, argues in a recent research report that “many potential claimants have been excluded because they missed the deadline in 1998, most because they were unaware that they had the right to claim.” Hall, R. 2003, “Rural Restitution.” No. 2 of Evaluating Land and Agrarian Reform in South Africa: An occasional paper series at 4.Google Scholar

23 Gwanya, T. (Chief Land Rights Commissioner). “Land Restitution in South Africa: our achievements and challenges.” 2003. Dated 20/5/03. Available at http://land.pwv.gov.za/restitution, accessed on 4/4/04.Google Scholar

24 DLA 1997 supra fn. 19 par 4.13.Google Scholar

25 Gwanya, 2003 supra fn. 23.Google Scholar

26 Commission on Restitution of Land Rights (CRLR). “Settled Restitution Claims: Cumulative Statistics as of 29 February 2004,” 2004 available at http://land.pwv.gov.za/restitution/statistics/March/.Google Scholar

27 In this respect see Hall 2003 supra fn. 22.Google Scholar

28 According to the Chief Restitution Commissioner, the average price has been between R1000 to R4000 per hectare, which is already expensive. However, in the case of the Tenbosch farms in Mpumalamga, the owner demanded R23000 per hectare and R45000 per hectare for the other. Thus one farm of 150,000 hectares would cost R1.2 billion, much more than the restitution budget for the year. See Gwanya, , supra fn. 23.Google Scholar

29 Restitution of Land Rights Amendment Act No 48 of 2003. Government Gazette Vol. 464 No. 25972 of 4 February 2004.Google Scholar

30 According to the CRLR, although the allocation for restitution was substantially increased in 2003-2004 from R391 million to R800 million, the Commission required R1.2 billion to finalize the claims prioritized for that year and a similar amount was required for the following year. Gwanya, 2003 supra fn. 23.Google Scholar

31 CRLR 2003: Annual Report April 2002-March 2003. The number of claims reported has increased from the 68,878 previously reported as it was discovered during the validation exercise that some claim forms included more that one plot of land or different land rights.Google Scholar

32 CRLR 2004, “Cumulative Statistics as at 29 February 2004” available at http://land.pwv.gov.za/restitution. Accessed 12/04/04. The statistics show that as of 29 February, 48,463 claims had been settled. Recent research, however, has disputed the accuracy of CRLR statistics. See Hall, 2003 supra fn. 22 at 27-29.Google Scholar

33 According to the Department of Land Affairs Annual Report 2001-2002 commercial farms consisted of 82 million hectares in 2000.Google Scholar

34 CRLR 2004 “Cumulative Statistics on Settled Claims 1995-29 February 2004.” A CRLR Table shows that at 29 February, a total of 42,490 urban claims were settled. 14,677 with land restoration, 25,336 with monetary compensation and 2,477 with alternative remedy. http://land.pwv.gov.za/restitution. Accessed 12/04/04.Google Scholar

35 CRLR 2003: Annual Report April 2002-March 2003 p. 5. The Annual Report states that although rural claims constitute only 20% of all claims, they affect the largest numbers of the rural poor and they involve the largest tracts of land. It gives the example of one claim in Kwazulu-Natal involving 43,000 hectares and more than 1000 households.Google Scholar

36 CRLR 2004 supra fn. 34. It is stated here that of the 5973 rural claims settled, 2743 have involved restoration, 3225 monetary compensation and 5 alternative remedy.Google Scholar

37 Hall, 2003 supra fn. 22 at 11.Google Scholar

38 The Commission claims that it encourages claimants to opt for land but adds: “Most urban claimants have demanded that it is their right to choose financial compensation, which enables them to resolve many survival problems, which they are facing.” Gwanya, 2003 supra fn. 23 at 6.Google Scholar

39 Ibid. 8.Google Scholar

40 The Government of the Republic of South Africa and others v Grootboom and others 2000(11) BCLR 1169 (CC) paragraph 19. In footnote 15, Yacoob, J. reproduces section 25(5) as providing for the social economic right of access to land.Google Scholar

41 Ibid. par 93.Google Scholar

42 Ibid. par 94.Google Scholar

43 The interpretation of these phrases is discussed in more detail in Lahiff, and Rugege, , “A critical assessment of land redistribution policy in the light of the Grootboom judgment,” 2002. Law, Democracy and Development vol 6 (1) 2002 279 at 286-291.Google Scholar

44 Grootboom supra fn. 40 par 41.Google Scholar

45 Ibid. par 42.Google Scholar

46 Ibid. par 43.Google Scholar

47 Ibid. par 44.Google Scholar

48 Grootboom supra par 41. This limitation is consistent with Article 2 of the International Covenant on Economic, Social and Cultural Rights which states: “Each State Party to the present Covenant undertakes to take steps, individually and through international cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means …”Google Scholar

49 See for instance: Soobramoney v Minister of Health (Kwa Zulu-Natal) 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC) par 29 and Minister of Health and others v Treatment Action Campaign and others 2002 (5) SA 751 (CC); 2002 (10) BCLR 1033 (CC) par 37-38.Google Scholar

50 Provision of Land and Assistance Act 126 1993.Google Scholar

51 Amended by the Provision of Certain Land for Settlement (Amendment Act) 26 of 1998.Google Scholar

52 Ibid., section 12.Google Scholar

53 Land Reform (Labour Tenants Act) 3 of 1996. Section 16.Google Scholar

54 Hall, R. Evaluating land and agrarian reform in South Africa An occasional paper series No 3 Tenure Reform, 2003. 25 p.Google Scholar

55 Extension of Security of Tenure Act. 62 of 1997.Google Scholar

56 Ibid., section 4.Google Scholar

57 Hall, R. 2003 supra fn. 54. Hall, however, observes that these figures do not distinguish between land transferred under section 4 of ESTA and land transferred under other redistribution mechanisms.Google Scholar

58 Development Facilitation Act 67 of 1995.Google Scholar

59 See Lahiff, and Rugege, 2002 supra fn. 43 302-303.Google Scholar

60 African National Congress. Reconstruction and Development Programme (RDP): A Policy Framework, Johannesburg, 1994.Google Scholar

61 Department of Land Affairs. White Paper on south African Land Policy, 1997.Google Scholar

62 Ibid. par 4.3.Google Scholar

63 Ibid.Google Scholar

64 Ibid. par 4.4.Google Scholar

65 See For instance, Minister of Agriculture and Land Affairs’ speech to Parliament in February 2000 entitled “Strategic Directions for Land Issues and Policy.”Google Scholar

66 Department of Land Affairs, “Minister Didiza to launch LRAD sub-programme in Nkomazi, Mpumalanga,” Media Release 13 August. Pretoria.Google Scholar

67 According to Department of Land Affairs figures in 2000. Annual Report Department of Land Affairs 2000-2001.Google Scholar

68 Business Day 9 October 2000 quoting Minister of Lands and Agriculture.Google Scholar

69 Department of Land Affairs, “Taking Land Delivery to Greater Heights: Department of Land Affairs Medium Term Strategic and Operational Plan 2003-2007,” 17.Google Scholar

70 In the period 1995/96 to 1998/99 the Department underspent its budget by a total of R1.4 billion, spending less than half its allocated budget for the period: Streek: “Land Minister under spends by R1.4 billion Mail & Guardian 26 May. However, it must be pointed out that more recently, the Department has been spending its allocation. According to the Director-General, by December 2002 that financial year's budget was 94% spent. Department of Land Affairs Media Briefing 2002, 03/12/2002. http://land.pwv.gov.za. Accessed 05/08/2003. In 2003 the DLA spent 99% of its budget. “Report by the Director General to the Agriculture and Land Affairs Portfolio Committee 4 Feb 2004. Summary by the Parliamentary Monitoring Group: http://www.pmg.org.za.Google Scholar

71 Land Affairs Budget vote 2003/2004: speech by Minister Thoko Didiza on 01/04/2003. Available at http://landpwv.gov.za, accessed on 05/08/2003.Google Scholar

72 White Paper on South African Land Policy, supra. Box 4.3.Google Scholar

73 Ibid. Box 4.4.Google Scholar

74 Information from a law student whose family was involved in such a scheme in the Western Cape.Google Scholar

75 White Paper on South African Land Policy, supra. 28.Google Scholar

76 Anderson, and Pienaar, , “Municipal Commonage” Policy Brief No. 6 PLAAS University of the Western Cape, 2004.Google Scholar

77 Ibid. quoting figures from DLA.Google Scholar

78 Ibid.Google Scholar

79 Ministry of Agriculture and Land Affairs, Land Redistribution for Agricultural Development: a sub-program of the Land Redistribution program, Pretoria, June 2001.Google Scholar

80 Department of Land Affairs: Policy statement by the Minister of Agriculture and Land Affairs on “Strategic Directions on Land Issues.” Pretoria, February 2000, 13.Google Scholar

81 Ministry of Agriculture and Land Affairs, “Land Affairs Budget Vote 2003-2004, Budget Speech by Minister Thoko Didiza 01/04/2003, National Council of Provinces. Available at http://land.pwv.gov.za. Accessed 8/8/2003.Google Scholar

82 Jacobs, P. Lahiff, E. and Hall, R. Evaluating land and agrarian reform in South Africa: An occasional paper series. No.1 Land Redistribution, Table 2. PLAAS, University of the Western Cape, 2003.Google Scholar

83 There have been several drafts of the bill. The current version is the Communal Land Rights Bill 2003’ which has been before Parliament since late 2003.Google Scholar

84 In Ngcobo v Salimba, Ngcobo v Van Rensburg [1999] 2 All SA 491 (A) it was held that all the three requirements must be met before a person can be classified as a labor tenant.Google Scholar

85 A material breach would be, for instance, assault, threats to the owner or other members of the farm community, unreasonably denying the owner access to the land occupied etc. See Van Zuydam v Zulu [1999] 2 All SA 100 (LCC).Google Scholar

86 See Klopper v Mkhize and others 1998 (1) SA 406 (N); Tselentis Mining (Pty) Ltd v Ndlalose and others 1998 (1) SA 411 (N) and Ngcobo v Salimba; Ngcobo v Van Rensburg supra fn. 84.Google Scholar

87 The Land Affairs General Amendment Act 51 of 2001 amended ESTA by deleting the exclusion of labor tenants from the definition of occupier.Google Scholar

88 ESTA ss6-10.Google Scholar

89 Land Affairs General Amendment Act 51 of 2001 amends ESTA by inserting ss6 (2) (dA).Google Scholar

90 Ibid. inserting new S.6 (5).Google Scholar

91 For instance applicant in Nhlabathi v Fick [2003] 2 All SA 323 (LCC) argued that the right to bury in S6(2) dA was unconstitutional. However, the court found that the deprivation was justifiable in a democratic society based on S 36 of the Constitution.Google Scholar

92 Even some judges have expressed their dislike for land reform legislation. In Joubert v Van Rensburg [2002] All SA 473 (W) the judge stated that ESTA was unconstitutional in that it violated the right to property although the issue had not been raised in the pleadings or argued before the court. Both the Supreme Court of Appeal [Mkangeli v Joubert [2002] 2 All SA473 (A) and the Constitutional Court Mkangeli v Joubert [2001] (4) BCLR 316 (CC) subsequently disapproved of the statement and the political stance of the judge in Joubert v Van Rensburg.Google Scholar

93 Republic of South Africa: Communal Land Rights Bill [B 67B-2003]. Available at http://www.pmg.org.za. Accessed 20/02/04.Google Scholar

94 Africa, Republic of South “Memorandum on objects of the Communal Land Rights Bill, 2004” attached to the Bill as cited in fn. 93 supra.Google Scholar

95 For a summary of these criticisms see IRIN “New land law ‘flawed'.” Availabl http://www.news24/South_Africa/Politics/0,2-7-12_1443736,00.html.Google Scholar

96 Traditional Leadership and Governance Act 41 of 2003.Google Scholar

97 See IRIN 2003 supra fn. 93Google Scholar