Land claimants still waiting in line for restitution were left shocked on Thursday when the Constitutional Court (ConCourt) ruled that the Restitution of Land Rights Amendment Act was invalid and that Parliament did not follow proper consultation. Passed just before the 2014 elections, the amended act re-opened the land claims window, which expired in 1998, for another five years.
In response, land rights and community organizations went to court over the alleged flawed process, citing concerns that old claimants, who continue to await homes, stand to be prejudiced. Given the sensitive nature of land restitution in post-Apartheid South Africa, following the ConCourt ruling, claimants are concerned that their claims may not be processed.
In Cape Town, many interest groups who have been advocating for the rights of people forcibly removed from areas like District Six, Claremont and Constantia believe the judgment is a further setback for restitution.
District Six Beneficiary and Redevelopment chairman Dr Anwah Nagia, in affirming the Trust’s dedication to the process of restitution, said the ConCourt’s ruling impacts land claims throughout the country.
He says that given the vast number of land claims and where approximately 3.4 million properties have been forcibly removed, South Africa cannot give in to gentrification.
“We can only commend the Trust and the president who enacted the law to bring back the issue around late comers saying that they can claim. Because we have waited for many years – almost 300 years!” he added.
Nagia asserts that City of Cape Town authorities are working toward gentrifying the city, where it has been forcing poorer communities out of the city centre.
In describing the ConCourt as an opposition party, he says that the court’s decision indicates a level of “neo-liberal” thinking.
District Six Working Committee chairperson Shahied Ajam explains that while he is not surprised by the judgement, the Amendment Act was rendered invalid but not unconstitutional.
He says that it was rendered invalid on the basis that the National Council of Provinces did not provide the public with adequate time to consult on the amendments, only granting the public four weeks.
“So people must not misconstrue so as to think that they cannot claim,” he stated.
He said people who have submitted claims from July 2014 are safe, except that the judge ruled that all claims lodged between 1995 and 1998 nationally will have to be settled first.
“We must remember that in District Six, 2400 people claimed. Of them, half took monetary compensation and the other half opted for housing development, which we know up until today has not been finalised,” he said.
Given concerns of claimants who have waited almost two decades for their claims to be approved, Ajam asserts that the ConCourt ruling acts in the favour of claimants.
He says that while those who claimed monetary compensation were paid R17 000 or R44 000 soon after submitting their applications, those who opted for housing have largely not been assisted. A factor that he asserts may be due to alleged corruption within the Department of Rural Development and Land Reform.
“We have a list of complaints and allegations, especially about corruption, against the Department. So, when are they going complete this entire project? It may not seem like a lot of land, but you can get a lot of people onto 42 hectares,” Ajam stated.
Ajam said the ConCourt ruling has provided the committee with reason to compel the Department to reveal the exact numbers of claimants who continue to await housing and to indicate when the development is scheduled to be complete.
Supporting Ajam’s claims, Farieda Moosa, a representative of the District Six Reference Group explained that the ruling has few repercussions for phase one and phase two claimants.
She, however, states that the ruling provides a level of uncertainty for new claimants.
Moosa says that given the groups representation of the original claimants, who have awaited homes for the past 20 years, the impact of the process is emotive.
Following the presentation of the possession papers, which are proposed plans that were requested by Rural Development and Land Reform Minister Gugile Nkwinti, the group has made provision for late claimants in the proposed plans.
“We have in recent months met with the minister and put a firm proposal on the table. We stated that we are not happy with the current development of building buildings in phases, since that will cause further delays. Our people are getting old and they cannot wait another 20 years,” Moosa asserts.
In an attempt to expedite the process, Moosa says that the group requested that government simultaneously develop homes across all phases.
In response to the request, she affirms that the minister, at least in principle, accepted the group’s recommendations and subsequently commissioned a service provider to estimate the costing of the proposal.
“On the question of financing [the development], the minister has assured us that he will find the necessary funding for that.”
Moosa says that if the proposed plan goes ahead, then new claimants can be assured their developments are included in the process.
While the ruling is yet to be investigated by parliament, she says that in the case of District Six, most of the pre-1998 claims have been verified and validated.
“If the 1998 claims can be settled before the 24-month period, then it would be good news to our District Six claimants as well.”
Gentrification vs restitution
Given the Trust’s decision to oppose two-bedroom developments, which Nagia describes as “slum” developments, he says that various stakeholders who support such developments are inadvertently supporting the continued gentrification of Cape Town.
“We want three-bedroom homes – dignified homes for dignified people. The collusion between the Dumisani, Asa Salie, Helen Zille, and all of them has been part of that process. [And] Along comes the working committee that is fighting for its own space,”
“We need to set up an independent group where we can force the ConCourt to change its decision or to help government to bring an application quickly. The ConCourt has said that we have two years to amend the Act – [so] we cannot leave the late comers vulnerable.”
Different views on how the restitution process should work highlights the rift between the various claimant groups. While the Trust has been at the forefront of the restitution process for the past two decads, since national government’s involvement in the development, the process has been staggered by complex administrative processes and political interference.
In 2011, the District Six Reference Group was initiated to represent claimants and this group has been managing the third phase of construction.
Commenting on Nagia’s claims that the Trust was “thrown out” of the process, Moosa said that while the Trust was invited to every official Reference Group meeting, members of the Trust did not attend.
She further states that the Reference Group does not support two-bedroom homes.
“The fact that phase one and phase two has taken 15 years build – the Reference Group is only here for three years and a half years and we are already building 108 homes. We are also saying that we want the best for our people – it doesn’t make sense to build slum houses. So the plan that we have put forward will ensure that our people will have comfort.”
In response to Nagia’s assertions, Ajam affirmed that all post-2014 claims are not invalid, stating that the judge confirmed that their claims will be processed as soon as claims of the first round has been settled.
He added that the working committee is not working for “its own space,” but instead continues to work to assist all of District Six claimants.
“However, 42 hectares were given already in the year 2000 for restitution. The fact that the Department, the Trust and Reference Group have dragged its feet speaks of ineptitude. Efforts must be made for all parties concerned to sit together and map a way forward and pressurize the Department,” Ajam stated.
Ajam urged all prospective claimants to submit their claims, in order that the committee is prepared when amending the Act. VOC