The Land Restitution Bill approved by the National Council of Provinces (NCOP) on 24 March 2014 may raise a cheer from traditional leaders, but it is not the game-changer that President Jacob Zuma promised in his State of the Nation address last year.

Zuma and his Minister of Rural Development and Land Reform, Gugile Nkwinti, punted the bill as a second chance for the Khoi, San and Africans who were dispossessed before the notorious 1913 Natives Land Act redesigned the South African landscape. “Also to be explored are exceptions to the June 1913 cut-off date to accommodate claims by the descendants of the Khoi and San as well as heritage sites and historical landmarks,” Zuma said when he promised this review of the legislation enabling land restitution.

But the bill adopted in the last minutes of the life of the current NCOP is silent on the period before 1913. Instead, it merely extends the claim period by five years to 2019 to allow those who had missed the original 1998 cut-off period another opportunity to claim back land that was stolen from them in the past 100 years.

After making rash promises, Zuma and Nkwinti claimed the government could not go further back into history without amending the Constitution. How do a head of state, his cabinet and their officials allow themselves to commit to such a fundamental change without checking that they could deliver on the promise? Why start with the bill instead of the constitutional change, if that is what is required to make it possible to give effect to their promise?

The answer lies in the complex layers of legislation, policy and attitude of government to rural citizens, land and dispossessed people. The timing of the Restitution of Land Rights Amendment Bill offers insight into the issues at play.

The bill was first tabled in 2013 under rules that give provinces a voice, but not a veto. It was subsequently designated a Section 76 bill, requiring the approval of a majority of the nine provincial delegations and a rigorous process of public consultation, for which there was no time.

It is reasonable to conclude that this is a disingenuous move directly linked to the looming election, but the second and perhaps fundamental reason for the rushed tabling goes beyond the 7 May 2014 vote. Following the enactment of the Traditional Leadership and Governance Framework Act of 2003, the government and traditional leaders have been exploring ways to give effect to the powers, authority and boundaries given to traditional leaders.

A recent example of this was the failed attempt to pass the Traditional Courts Bill (TCB) in the face of resistance from organised rural citizens.

The TCB, despite its stated objective of ‘affirming traditional leadership’ is aimed at bolstering chiefs’ power at the expense of communities.

It is based on the boundaries defined in the 2003 local government law, which match the old Bantustan borders under the new name of ‘traditional communities’.
The strong rural-based citizens push-back resulted in what the government called the ‘lapse’ of the TCB. In fact the TCB did not lapse. It was defeated by opposition from the African National Congress (ANC) constituencies that is unprecedented in the history of Parliament since 1994. This angered traditional leaders who, despite fierce opposition from communities, were convinced that the ANC would pull things together and deliver a law which would have given them unprecedented powers.
It is not as if the ruling party and the Department of Justice did not see this coming. Though Justice Minister, Jeff Radebe, claimed at the end of the process that Parliament had been dealing with the wrong text all year, his department had been a part of the process at every stage. Realising the possible political fallout with traditional leaders on the eve of elections, Radebe tried to reassure what is reportedly a very angry constituency. “The TCB has not died. It lapsed… but it will be revived. A strange thing happened in the NCOP where an old and unamended bill was introduced and discussed,” he told reporters on 13 March 2014. Did he forget that throughout 2012 and 2013, he had commented consistently on the TCB?

His senior officials were part of almost every meeting of the NCOP committee until a negative opinion from the state law adviser forced the government to abandon the bill and let it lapse.

The TCB and the Land Restitution Amendment Bill are part of a larger package of laws that undermine citizenship of rural-based South Africans. The government has started a number of processes and introduced a variety of proposed laws, including the land restitution amendment. But the land bill, though now ready for Zuma’s signature, does not acknowledge the problems of the current restitution programme, let alone attempt to rectify them. This includes the failure to honour approved claims in favour of elected Community Property Associations (CPAs) by withholding title deeds, which is in direct breach of the CPA Act.

The bias appears to favour traditional leaders at the expense of communities. The land bill was also introduced by the Department of Rural Development and Land Reform without any budget to back its ambitious goals. Nkwinti’s department has estimated it could cost up to R179 billion to address the expected 379 000 claims under the amended law, but the government has so far allocated only R8.7 billion for the next three years.

In the light of unfinished previous claims and a serious lack of money, it is evident that this has less to do with restitution and more to do with cementing the power of traditional leaders to whom the government was unable to deliver unfettered powers through the TCB.

Given the outstanding claims and the shortage of money, there is little doubt that resources will be diverted from deserving people to traditional leaders and the politically connected.

Addressing the National House of Traditional Leaders in February, Zuma called on traditional leaders “to put their resources together and file restitution claims.” Following the failure of the TCB, it seems the restitution amendment is the ‘gift’ that the president wants to give to traditional leaders. King Goodwill Zwelithini has already told the KwaZulu-Natal legislature that he and other traditional leaders will “submit one claim on behalf of the Zulu nation”. The Ndebele king is reported to have made a similar statement.

The lapsing of the TCB and the passing of the Restitution Bill pull together the threads that form a worrying picture – a picture that does not benefit rural people but which benefits the elite at the expense of rural people.

There is no doubt that South Africa is in dire need of more restitution for more people, but that requires a genuine commitment from the government. And a genuine commitment will never be possible as long as the state’s laws and policies continue to make empty promises to rural citizens.

– Nomboniso Gasa is a research associate with the Centre for Law and Society at the University of Cape Town (UCT), and Luwaya is a researcher with the Rural Women’s Action Research Programme at the Centre for Law and Society at UCT. This article was first published in The Sunday Independent.