RESTITUTION

Restitution is informed by sub-section 25(7) of the Constitution[17] which reads “A person or community dispossessed of property rights after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of parliament, either to restitution of that property or to equitable redress.” The required Act of parliament was the Restitution of Land Rights Act. Act 22 of 1994, the first piece of legislation passed by the first democratically elected government of South Africa. This clause in the constitution already sets certain limits to restitution, such as the 1913 cut off date and the fact that the dispossession had to be in terms of specifically racial laws or practices. The Restitution Act creates further limitations such as defining racial practices as only those carried out by the state. The Act makes provisions for the establishment of a Commission for the Restitution of Land Rights (CRLR) and a Land Claims Court. This turned out to be a rather slow system over burdened with legal procedures and requirements of proof. The 1998 decision and amendments to the Act to allow the CRLR and the Minister for Agriculture and Land Affairs to settle claims administratively has led to a considerable speeding up of the land claims process.

Whatever the strengths and limitations of the restitution process by its very nature it has a limited contribution to make to a fundamental change of property relations. It is there to deal specifically with racial dispossessions that can be proved to fit within the provisions of the Act. It has no pretensions of bringing fundamental change and no intention to transform the nature of the agricultural economy. It sets out to deal with specific unjust acts of the former regime. Of course it can contribute to changing property relations, but only to the extent that people were dispossessed after 1913 and can fit within the narrow provisions of the Act. The 1913 cut off date while probably a sensible provision, to avoid dealing with complex historical conflicts, means that restitution can only look at dispossessions that took place after the country had already been colonised and the largest land dispossessions had already taken place through that colonial process. The 1913 land Act to a large extent confirmed the boundaries of existing reserves that black people had already been forced to reside in.

Part of the consequence of restitution focusing on dealing with redress for specific injustices suffered by individuals or communities is that those who can prove that they were unjustly dispossessed of land can receive a range of possible compensation including land, but also including money. There is no right to actually get land as redress and no clause of the Act that encourages land to be the preferred form of redress. An obvious consequence of this has been a large number of claimants taking financial compensation and thus making no contribution to changing property relations.
By the end of 2001 28,970 land claims had been settled with R248million Rand spent on land and R324million Rand spent on financial compensation to claimants.[18] These represent only 10,286 of 63,455 claim forms lodged before the cut off date at the end of 1998.[19]