Yet more delays await land claimants

29 July 2009, Business Day
URL: http://www.businessday.co.za/articles/Content.aspx?id=77068

Johannesburg: Chief land claims commissioner Blessing Mphela’s announcement last week that the government had run out of money to pay for land restitution claims came as a bitter blow to Alpheus Matlou.   Many community leaders, commercial farmers and lodge operators throughout SA are expecting to conclude joint venture partnerships for redistributing land to blacks denied ownership under apartheid without destroying its productive capacity.

Their hopes, like Matlou’s could be dashed. More than a decade ago he lodged a land claim of 50 000ha of prime conservation land and a few cattle ranches in the Waterberg, north of Johannesburg, on behalf of the Motse community, expecting it would be wrapped up in a year or two.  The most significant part of the claim was lodged on part of a conservation icon, the giant Lapalala Wilderness owned by Rapula Farming.

Rapula had planned to invest the proceeds of selling the 13000ha claimed in a deal that would guarantee real community ownership and financial benefits, and would maintain Lapalala as a unified nature conservancy in perpetuity.  There were numerous delays caused by disputes with other landowners whose properties formed part of the claim, a high staff turnover at the commission’s Limpopo office, and a lengthy round of bureaucratic bungles that resulted in faulty farm valuations, misplaced documents and last minute cancellation of crucial meetings. But Rapula, the Motse and the commission finally appeared poised to clinch a deal.

Now Mphela’s admission suggests the Motse face renewed lengthy delays. The commission needs another R3bn from the Treasury to buy land earmarked for settlement in the last eight months of this financial year, and R16bn over the next three years at current market prices although it has only been allocated R5.2bn.

Motse’s partnership with Rapula could also be in jeopardy, because the company is bleeding R3m a year to keep the wilderness going and likely to shelve the project rather than continue to incur losses.   “We have been waiting more than 10 years, so this is a huge disappointment for the whole community,” says Matlou. “We still have a very, very good deal with Lapalala. All we are waiting for is for the commission to pay out.”

The commission remains optimistic that money for outstanding claims will be found.  “We have been to see the Treasury and hope they will come up with the necessary funds,” says Mphela. “We have to settle claims, and to do that we must buy land, so there is no way they can’t rescue us.”

But not everyone is so sure. Kobus Pienaar of public interest law firm the Legal Resources Centre, which has handled several high-profile land restitution cases, believes Treasury allocations for restitution are declining because the commission has failed to present a convincing case.  The budget allocation for restitution went from R3bn in 2008-09 to R1,9bn this year, down to R1,4bn for 2010-11 — a decrease of more than 50% over three years.   “This is a clear indication that the Treasury is fully aware that things have gone seriously awry in the Land Claims Commission,” says Pienaar.

He believes the fault lies with the quality of data. “If the commission can put credible information on the table, listing the names of communities that have lodged valid claims to specific portions of land, it would have a much better chance of not running out of money to meet the state’s legal obligation to restore land to the dispossessed.”

Treasury officials have expressed similar sentiments to Business Day.

Mphela’s remarks that the state was exploring different “policy options” to acquire land more cheaply for land reform, including getting parastatals and municipalities to release properties they own at below market value, has also drawn criticism.  Democratic Alliance shadow rural development and land reform minister Mpowele Swathe warns “relying on uninformed short cuts” will harm the entire economy.   "To force councils to relinquish their property creates a very dangerous precedent that government can arbitrarily expropriate property if their own budget does not add up,” he says.  “Such a trend would affect all property owners.”

Theo de Jager, who heads the land reform desk at farmers union AgriSA, warns that remarks by officials about finding ways to bring down the cost of land reforms the government cannot afford — including imposing land price ceilings for expropriated farms — will harm investor prospects and simply deflect attention from the department’s own failings.   “They don’t say anything about how the department wastes billions on maladministration and on endless legal battles testing the same principles,” he says. “They must buy smarter and eliminate corruption that leads to inflated prices being paid.”

But there are signs that the government is aware of its shortcomings, and is trying to fix them.  Mphela told Parliament last month an audit of outstanding claims had revealed mistakes had been made in calculating the number of claims settled and still outstanding, suggesting more credible data is being compiled for the Treasury.

The commission also admitted for the first time this year its officials had falsely inflated some claims and gazetted claims on the wrong properties before properly investigating their validity.

It expects to delist wrongly gazetted claims later this year, and has dismissed 108 claims in the year to March.  But until these administrative reforms bear fruit, the Motse community and many like them remain in limbo while prospective investors seek greener pastures.