April 20, 2019

Research casts doubts over validity of community land claims

Some of the 21 farms comprising the Sabi Sands area adjacent to the Kruger National Park and home to some of South Africa’s most luxurious and highly lucrative private game reserves have been facing unresolved land claims for about two decades, yet it has now emerged in the ongoing contestation that parts of the communal land claims were not grounded in historical reality and were made by individuals who did not actually constitute a community.

The only agreement that has been reached in all this time is the controversial R1.1bn Malamala land claims settlement of 2014, which was agreed out of court between the office of then-president Jacob Zuma, the relevant government department, the land owners and a cobbled together Community Property Association, after six years of negotiations.

The Malamala claim was celebrated amid much back-slapping and hand-shaking at an official hand-over presided over by then president Zuma in January 2014. But it turns out this may have been somewhat premature. While some stakeholders certainly had much to celebrate from the outcome, it appears that the very existence of the land-claiming “communities”, the Mafuraga and Mhlanganisweni, who received 13,148ha of prime real estate and its accompanying tourism business from Malamala, is not conclusively supported by historical evidence.

Wits University history professor emeritus Peter Delius, an independent researcher who for many years has worked on particularly complex land claims has done in depth research on the claims to land in the Sabi Sands Reserve.

'More effective land claim procedure would have been individual claims by households for compensation.'

His research suggests despite two decades of unresolved land restitution claims targeting the highly lucrative heartland of private game farms in Mpumulanga, some of the claims actually be premised on an inaccurate account of the history and nature of settlement in the area.

The claims that have had the most traction have been lodged by communities. But Delius points out that the historical evidence shows there were no large overarching communities, yet many of the land claims were made as community claims. His research, which draws on archival material, oral narratives and aerial photographic surveys of the area from 1944, suggests that the family/homestead was the fundamental unit of political, social and economic organisation amongst the groups that occupied the Sabi Sands area.

“There is a good deal of evidence of families having lived scattered across these farms, who initially may or may not have been there before 1913, [but it is] very hard to establish exactly who was or wasn’t,” says Delius. His evidence shows that what settlements there were also comprised groups and even homesteads that straddled the boundaries between different farms. He confirms that they “did not in the main form community groups” and were primarily “scattered family groups living on the farms, on a family-by-family basis”.

Delius suggests that a more effective land claim procedure would therefore have been individual claims by households for compensation for the loss of labour tenancy rights. This would probably have been in the form of cash payments, instead of large-scale return of the land, but it was far more likely to be successful and to reflect historical realities

Delius explains that community land claims are only one form of land claim. There are also claims for longstanding underlying rights to land, or for tenancy rights. In Sabi Sands “there is a good deal of evidence [of] primarily scattered family groups living on the farms, on a family-by-family basis. Over time, with increasing white settlement in the area, they became labour tenants who were driven away, not through large-scale forced removals, but because they were no longer needed”. Delius describes this as “a messy, long, drawn-out process” that continued from the 1940s up until as late as the ’70s.

Some people left voluntarily, says Delius, because they decided “that there simply wasn’t a future for them and their families on this land.

“Others were told by landowners that they needed to leave the land because they wanted to use the land for other purposes, mainly game farming. Individuals stayed on as wage labourers, but certainly increasingly people who lived in the area no longer had access to land in their own right.”

But notwithstanding this history, large community claims were lodged by merging different individual and groups claims into much bigger units that bore no relationship to any actual historical community or current patterns of association. They certainly did not conform to the definition of community in the Restitution Act or as defined by the Constitutional Court and other judgements which refer to “any group of persons whose rights in land are derived from shared rules determining access to land held in common by such groups. The names of families were gathered together … community groups were created that have no historical basis.”

An earlier study by Delius and Michelle Hay confirm that “The Restitution Act expressly includes recognition of labour tenancy rights as a basis for restitution and ... there is overwhelming evidence and legal precedent to support the former tenants in the Sabi Sands area (and their descendants) in their claims to restitution for lost labour tenant rights.”

He concedes that claims as labour tenants usually result in smaller settlement, most likely in the form of cash compensation, but these were never intended as a means of driving the land reform process.

“It is almost impossible to reconstruct the processes by which many, many, many people lost land in South Africa. Pretty much every black family in South Africa’s history at some point or other will have lost land. But there is confusion between the purposes of restitution and redistribution. Some people who drove the restitution process thought that large community claims would be a good way of getting large amounts of land transferred.

“Businessmen, chiefs, and others regard the process as an opportunity to get their hands on very significant resources, including places like Malamala. So there’s a very strong push from that constituency, often to some extent in alliance with officials, to create these massive claims.

“Many ordinary claimants were persuaded that they shouldn’t bother with puny family claims, but they should really go for the big money by joining big claims, which were very often led by entrepreneurs of various kinds. Of course that was a poisoned chalice, because what has happened is that the ordinary claimants across a huge range of these claims in fact have seen almost nothing. The resources have gone to the powerful people who mobilised them in the first place.”

Delius argues that many families have indicated that they would rather settle for cash. “The point is, it should have been their choice. But what they were encouraged to do was join land claims which were not in fact legally grounded or historically grounded. And many have lost out.”

In the Malamala settlement, Delius asserts that individual claimants appear to have been encouraged by local leaders, activists, officials, lawyers and others, including some with questionable links to the land in question, to submit community claims for the return of the land, instead of individual claims for compensation for the loss of labour tenancy rights.

Individual claims were amalgamated into collective claimant groups who launched “very ambitious community based legal action at a time when little or nothing has been done to advance individual claims or those of other claimant groups”. Delius adds that at that point very little evidence exists to back these large-scale claims. “That’s one of the crises that we’re dealing with. Claims are presented on the basis of almost non-existent research.”

The Malamala claimant groups and ultimate beneficiaries “involved other claimant groups and individuals who had different claims to different parts of the reserve. … They were merged into this one big group, and regarded as beneficiaries of the Malamala claim. That’s part of what is producing all the friction in the Malamala community group,” says Delius.

In the claim against Malamala the land was handed over to the N’wandlamharhi Community Property Association (NCPA) who claimed to represent the Mafuraga and Mhlanganisweni communities in a joint land claim. One Derick Mthabine, who had spearheaded proceedings on behalf of both communities during the negotiations, made it clear soon after the land claim had been settled that he actually only represented the Mhlanganisweni community.

How this was possible has never been made clear; the Land Claims Commission has sworn that on its list of claimants both communities had been incorporated as one group.

Whatever the case, the outcome was predictable. Very few people in the area have thus far gained anything at all from the R1.1bn settlement, an amount which all but depleted the country’s land restitution budget for that financial year, and which critics argued at the time had previously provided for 36 489 urban and 252 rural claims.

The complex 25-year Malamala agreement brings in about R8.4 million a year in rental income and about R2 million in the form of a tourism levy, but it appears very little reaches the 960 families that then minister of Rural Development and Land Reform Minister, Gugile Nkwinti, had promised it would.

The Malamala land claim had first been rejected as too expensive by the Minister and then by the Land Claims Court, a decision that was taken to the Constitutional Court. At the last moment, it was unexpectedly taken off the roll and the out-of-court deal agreed on a price even higher than the initial evaluation. This raised questions about who were indeed the real recipients. The instruction to withdraw the case and settle for an inflated price came from the Presidency, then in the hands of Jacob Zuma.

Meanwhile, dozens of families who had been party to this claim and who say they have received nothing at all last year took their grievances to the Pretoria High Court demanding a forensic investigation into N’wandlamharhi Community Property Association and Mthabine.

In affidavits to the court they have warned that this dispute “could lead to bloodshed,” which would be between communities that historically possibly never existed.

Moira Levy

Last modified on Monday, 04 February 2019 18:17

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