LL. M.(With specialisation in Private Law))

Thesis presented in fulfilment of the requirements for the degree of Master of Social Anthropology at the University of Stellenbosch / Thesis (MA (Sociology and Social Anthropology))--University of Stellenbosch, 2010. / ENGLISH ABSTRACT: This thesis is an exploration of how a new development culture has been cultivated at the end of the 20th century in reaction to the ‘crisis of development’ and the need to bring relief to impoverished communities in an environmentally sustainable manner. I uncover the key constraints on and opportunities for sustainable development and Community-Based Natural Resource Management that have emerged in land restitution claims in conservation areas in South Africa. I look at how inherited socio-political pasts poise actors and influence the relationships and interactions between them, how the current nature-tourism industry works to the detriment of some and the benefit of other actors in terms of gaining economic success and ultimately how these two factors influence conservation-based CBNRM projects. I examine three cases, namely: the Aboriginal community in Kakadu National Park, the Khomani San in the Kalahari Gemsbok National Park and the Makuleke in Kruger National Park. Through this examination I draw specific conclusions: the repercussions of racial segregation policies puts community actors at a disadvantage when engaging with their partners; specific dynamics of the tourism industry threatens the success of CBNRM projects because the expected substantial benefits are not always guaranteed; and the lack of sound local governance impedes sustainable development at community-level. / AFRIKAANSE OPSOMMING: Hierdie tesis is ‘n verkenning van hoe ‘n nuwe ontwikkelingskultuur gekweek is aan die einde van die 20ste eeu deur die ‘krisis van ontwikkeling’ en die noodsaaklikheid om verligting te bring aan verarmde gemeenskappe op ‘n omgewings-volhoubare wyse. Ek lig die beperkings en kerngeleenthede tot volhoubare ontwikkeling en Gemeenskaps-Gebaseerde Natuurlike Hulpbronbestuur uit wat in grondhervormingseise in bewaringsgebiede in Suid-Afrika na vore gekom het. Ek kyk na hoe die historiese sosio-politiese erflating rolspelers posisioneer en verhoudings en interaksies tussen hulle beïnvloed, hoe die huidige natuur-toerisme industrie tot die nadeel van sommige en voordeel van sekere ander rolspelers werk in terme van die verkryging van ekonomiese sukses en uiteindelik hoe hierdie twee faktore bewarings-gebaseerde GBNHB beïnvloed. Ek bestudeer drie gevallestudies, naamlik die Inboorling-gemeenskap in die Kakadu Nasionale Park, die Khomani San in die Kalahari Gemsbok Nasionale Park en die Makuleke in die Nasionale Kruger -Wildtuin. Analise lei my tot spesifieke gevolgtrekkings: die nagevolge van rasse-segregasie-beleid plaas gemeenskapsakteurs in ‘n benadeelde posisie wanneer hulle in interaksie is met hulle vennote; die spesifieke dinamika van die toerisme-industrie bedreig die sukses van GBNHB projekte omdat die verwagte noemenswaardige voordele nie altyd gewaarborg kan word nie; en die gebrek aan effektiewe plaaslike bestuur belemmer volhoubare ontwikkeling op gemeenskapsvlak.

Thesis (MA (Sociology and Social Anthropology))--University of Stellenbosch, 2011. / ENGLISH ABSTRACT: Limited academic work has paid attention to the memories generated by claimants engaged in the restitution process. My thesis thus sought to investigate the role of memory in urban land restitution, with specific focus on the Stellenbosch context. In my discussion, I highlight how claimant memories are not only generated by the restitution process but how the master narrative of restitution shapes the memories produced. I argue that claimant memories function and gain wider meaning within the collective memory, through which the master narrative of restitution shapes how they remember – and in so doing, how claimants reconstruct the place from which they were removed. My thesis elucidates how, through the individual narratives of removal and dispossession (and thus, the making of place), claimants position themselves as part of a particular and new form of “imagined community” of land claimants. The context of my research is focussed on the area previously known as Die Vlakte which was located in urban Stellenbosch. Dispossessed and displaced to the outskirts of Stellenbosch town in the early 1960s, the advent of democracy provided the former residents of Die Vlakte the opportunity to claim the land lost. The qualitative methodology of five selected case studies, sought to explore the following objectives of my study: Firstly, to examine how claimants remember and reconstruct the places from which they were removed (that is, the making of place); and secondly, to investigate whether these memories or individual narratives of place are shaped by the master narrative of restitution. By means of engaging prominent theorists and scholars on memory and the master narrative of restitution, my study analyses the various aspects of memory construction and reconstruction within the collective framework. The research points to the interdependent relationship between individual memory and that of collective memory. It is argued that individual memory can only function as part and in reference to the collective memory. Within the restitution process, research shows that the master narrative of restitution not only shapes but controls and organises memory on a collective and hence, individual level. My thesis argues that the individual memories of dispossession and removals of the claimants are similar to national narratives and hence, my thesis illustrates, that the five claimant memories of the place from which they were removed in Die Vlakte is shaped by the master narrative of restitution. Through relaying these narratives of removals and dispossession they thus draw on the master narrative of restitution (from which they derive legitimacy), in order to legitimise their own claim to land and in so doing, placing themselves within the “new” form of imagined communities of land claimants. / AFRIKAANSE OPSOMMING: Beperkte akademiese werk het aandag geskenk aan die herinnering wat deur eisers, wie betrokke was in die restitusieproses, gegenereer is. My tesis poog dus om die rol van herinnering in stedelike grondrestitusie, met spesifieke fokus op die Stellenbosch konteks. In my bespreking beklemtoon ek hoe eiserherinnering nie net gegeneer word deur die restitusieproses nie, maar hoe die meesternarratief van restitusie die herinnering wat geproduseer is, vorm. Ek voer aan dat eiserherinnering funksioneer en wyer betekenis verkry binne die kollektiewe herinnering, waardeur die meesternarratief van restitusie vorm hoe hulle onthou – en deur dit te doen, hoe eisers die plek waaruit hulle verplaas is waarvandaan hulle verwyder is, heropbou. My tesis verduidelik hoe, deur die individuele narratiewe van verwydering en onteiening (en dus, die skep van plek), eisers hul posisie inneem as deel van 'n besondere en nuwe vorm van "denkbeeldige gemeenskap‟ van grondeisers. Die konteks van my navorsing is gefokus op die area wat voorheen bekend was as Die Vlakte wat voorheen geleë was in die dorp Stellenbosch. Onteien en verdring tot die buitewyke van Stellenboschdorp in die vroeë 1960s, die koms van demokrasie voorsien aan die voormalige inwoners van Die Vlakte die geleentheid om die verlore grond te eis. Die kwalitatiewe metodologie van vyf gekose gevallestudies poog om die volgende doelwitte van my studie noukeurig te bestudeer: Eerstens, om te ondersoek hoe eisers die plekke waarvan hulle verwyder is onthou en heropbou; en tweedens om te ondersoek of hierdie herinneringe of individuele narratiewe van plek deur die meersternarratief van restitusie gevorm word. Deur gesprekvoering met prominente teoretici en kundiges op die gebied van herinnering en die meesternarratief van restitusie, analiseer my studie die verskeie aspekte van herinnering-opbou en heropbouing binne die kollektiewe raamwerk. Die navorsing wys na die interafhanklike verhouding tussen individuele herinnering en die van kollektiewe herinnering. Daar is aangevoer dat individuele herinnering slegs kan funksioneer as deel van en in verhouding tot die kollektiewe herinnering. Binne die restitusieproses wys navorsing dat die meesternarratief van restitusie nie net herinnering vorm nie, maar dit ook beheer en organiseer op 'n kollektiewe en dus individuele vlak. My tesis voer aan dat die individuele herinnering van onteiening en vverwydering van die eisers soorgelyk is aan nasionale narratiewe en dus illustreer my tesis dat die herinnering van die vyf eisers oor die plek waarvan hulle verwyder is in Die Vlakte, gevorm is deur die meesternarratief van restitusie. Deur hierdie narratiewe van verwydering en onteiening te vertel, ontleen die eisers aan die meesternarratief van restitusie (waaruit hul wettiging voortkom), om sodoende hul eie eis om grond wettig te verklaar, en deur dit te doen, hulself te plaas in die “nuwe” vorm van verbeelde gemeenskappe van grondeisers.

The main question of this thesis is to what extent the rights-based and market-driven nature of the restitution program has given rise to a legalistic and bureaucratic process that negates both the demand-driven and the developmental aspects of restitution as land reform. I answer this question by showing that the choice of a Constitutional model with a Bill of Rights provides the background for a rights-based land reform program. This is especially true for the restitution sub-program, one of the three branches along with redistribution and tenure of the overall land reform program. I then consider the debate around the property clause, and how its inclusion provided the context for a market and rights-based approach to land reform as opposed to a supply-led administrative approach. Because the property clause as a First Generation right prevents expropriation of land without market-related compensation, a complex and legalistic land reform program falling within the ambit of Second Generation rights was formulated to address the gross imbalance in land ownership in South Africa. I argue that the contemporary origin of Second Generation human rights lies within the context of class and anti-globalisation struggles for democracy, and that they are something to be fought for and defended. I discuss the distinction between First, Second and Third Generation rights and identify four spheres within which the struggle for Second and Third Generation rights takes place within modern democratic states. These are the state, the representative public sphere, civil society and the private sphere. I then deal with the problem of trying to turn "paper rights" into realisable rights for the more disadvantaged sectors of society. I also look at what impedes their realisation. I argue that a number of strategies are necessary to ensure the delivery of Second and Third Generation rights. These are an adequate legislative framework, a good communication strategy, the development of institutional capacity to deliver, and if all else fails, access to conflict resolution mechanisms. I consider the major impediments to the realisation of Second and Third Generation rights to be the way in which they are defined in relation to First Generation rights, especially the property clause, the way in which access to rights-backed resources through formal institutions are mediated by the operation of informal institutions, and the dearth of administrative competence in South Africa. My point is that in order for Second and Third Generation rights to have practical benefit for the dispossessed and poor, extraordinary measures are needed. The Restitution arm of the land reform program provides in theory just such extraordinary measures, albeit for only a section of the population. I analyse the effectiveness of the Land Claims Court in assisting restitution claimants and the rural poor to realize their rights. I trace the slow and haphazard shift from a positivistic statutory interpretation (narrow, literal, legalistic) to a purposive interpretation (informed by the Constitutional spirit and social purpose of the legislation) by the Court. This is followed by an analysis of the restitution business process, which means tracing the path of the claim from lodgement to settlement. I set out the costly, complex and legalistic implementation and policy process in some detail. My argument is that in order for a rights-based approach to overcome the impediments outlined in Chapter 3, as well as the property clause in the Constitution, its architects designed a complex process that in the end proved counter-productive in terms of its original aims. The failure of the process to deliver led in 1998 the then Minister of Land Affairs, Derek Hannekom, to appoint a Ministerial Review to investigate the problems. Problems included: slowness of delivery, the crisis of unplannability, low levels of trust between implementers, and high levels of frustration. Two issues are analysed more fully, the rights-driven approach as opposed to the rights-based approach and the lack of claimant participation in taking control of the restitution process. I examine the relationship of the Restitution Commission to the Department of Land Affairs and to municipal land use planning processes. The emphasis on rights within the restitution program had the effect of distancing restitution, especially in the first few years of the programs' existence, from the rest of the land reform program, as well as from the local government process of formulating land development objectives (LDOs), and the Integrated Development Planning (lOP) process. I look at the Port Elizabeth Land and Community Restoration Association (Pelcra) as a case study as it embodies an approach that tries to move beyond a mere reclaiming of rights in land and attempts to implement a developmental approach. I conclude that the rights-based restitution program in spite of its many shortcomings has had some success. It has moved slowly from an overly legalistic judicial program to a more administrative but still bureaucratic process, that has delivered only 27 percent of its product as land reform, the rest going to monetary compensation mainly in urban areas. Thus it can be argued that restitution has been more successful as a program to promote reconciliation along the lines of the Truth and Reconciliation Commission, than as a land reform program, especially if one regards land reform as the restoration of rural land to the indigenous population. There have also been some successful attempts by the Commission, such as in the case of PELCRA, to integrate the processing of its claims with local government planning processes, but progress in this direction remains patchy.

LL. M.(With specialisation in Private Law))

The initiative of land restitution in South Africa was an advantage to some people who were forcibly removed from Korsten area, which was a mixed residential area and the only area in Port Elizabeth where Black people had freehold tenure rights. The intention of the South African land reform programme which is to restore land and transform socio-economic relations has been achieved by means of land restitution. Successful Korsten land claimants have been granted land in Fairview through the land restitution programme. The successful resolution of land claims has shown the democracy and development in the country of South Africa.

This study is an attempt to contribute to the discussion on theology and land restitution. The researcher approaches it from a theological background and acknowledges the many contributions on this subject in other fields. Since this is a theological contribution, this research has the Bible as its point of departure. Black people are deeply rooted in the land. Land dispossession destroyed the God-ordained and created bond between black people and their black selves. Land dispossession also had a terrible economic impact upon black people. As result of land dispossession Bantustans were established. These black areas were economically disadvantaged and black people were forced to live in impoverished conditions. Land, which was a primary source of life for black people, was brutally taken away from them. Consequently, black people were forced to leave the Bantustans in search for employment in “white” South Africa. Because of this, they were made slaves and labourers in the country of their birth. The Bantustans were not considered to be part of South Africa; hence black people were aliens in their ancestral motherland. The black communal economic system was destroyed as a result of land dispossession. (The black communal economic system refers to an economic system where everyone works the land and thus benefits economically from the land.) The results of this are still seen in present-day South Africa. The majority of black people are still living at the margins of society because in the past, they were made subservient and dependent on white people to survive economically. Since apartheid was a system that was sustained on cheap black labour, this dependency on the white economy was systemic and generational. It is for this very reason that we see the very disproportionate face of the economy today. In an attempt to arrest the imbalance, the restoration of land to black people is inevitable. It is only then that black people will be liberated from being overly dependent on white people for their 3 survival. Land dispossession also had a terrible impact upon the identity and “blackness” of black people; black people internalised oppression as a result of the apartheid system, which was affirmed by the Dutch Reformed Church as a God-ordained system. This system officially paved the way and was used as the vehicle for land dispossession in South Africa; it destroyed black people and it is therefore not by chance that black people have become the greatest consumers. The identity of black people is deeply rooted in their ancestral motherland and land dispossession had a brutal impact upon the blackness of black people. Black people, as a result of land dispossession, started to doubt their humanness. Land dispossession also had a dreadful impact upon the relationships of black people with themselves and the relationships between white people and black people. These relationships were immorally and officially damaged by the apartheid system, which was deeply structural. Thus, when dealing with the land question in South Africa, the fact that it is deeply structural should be kept in mind. The church is entrusted with the task of reconciling the damaged relationships in a transformational manner. This can only be done when black people and white people engage and embrace each other on an equal basis. But black people and white people in South Africa cannot be on an equal basis as long as structural divisions which still advantage some and disadvantage others are not dealt with in a transformational manner. Therefore the need for land restitution in South Africa is necessary today because it does not only relate to the issues of faith and identity, but it is also economic. The consequences of the dispossession of land in the past are still evident in present-day South Africa. Land dispossession has had a terrible impact upon the faith of black people, whose faith is strongly linked to land (place). Faith and belonging are interrelated. The restoration of land to black people is necessary to reconcile black people with their faith and consequently with themselves. / Philosophy, Practical and Systematic Theology / D.Th. (Theological Ethics)

This research was undertaken to determine the extent to which share equity schemes have been successful. The research also investigated the possible causes of failure of the established share equity projects and sought to determine the feasibility requirements that may be put in place to ensure success and sustainability of the ventures in support of land reform. The methodology used involved comparing the data gathered from business plans, valuation reports and other project documents from the Department of Land Affairs (DLA) with the information gathered through interviews and observations. The results revealed causes of failure to include the fact that beneficiaries of the investigated equity schemes did not participate in business plan development or implementation and therefore had no sense of ownership in the intended joint ventures. It was also found that none of the business plans included any form of training for capacity building and therefore no mechanism for empowering beneficiaries existed to participate effectively at all levels of the farming enterprise. Furthermore, original farm owners as the majority shareholders tended to re-invest profits into farm assets rather than paying dividends. It was concluded that the inclusion of a training programme in every business plan is crucial to the success of farm share equity ventures as this may enable beneficiaries to be sufficiently empowered to participate effectively at all levels of the business. / Thesis (M.Env.Dev.) - University of KwaZulu-Natal, Pietermaritzburg, 2006.

This thesis deals with the conceptualization of access to land by the dispossessed as a human right and commences with an account of the struggle for land between the peoples of African and European extractions in South Africa. It is observed that the latter assumed sovereignty over the ancestral lands of the former. The thesis discusses the theoretical foundation of the study and situates the topic within its conceptual parameters. The writer examines the notions of justice and equity in the context of the post apartheid constitutional mandate to redress the skewed policy of the past. It is argued that the dispossession of Africans from lands that they had possessed for thousands of years on the assumption that the land was terra nullius was profoundly iniquitous and unjust. Although the study is technically limited to dispossessions occurring on or after the 13th June 1913, it covers a fairly extensive account of dispossession predating this date. This historical analysis is imperative for two reasons. Besides supporting the writer’s contention that the limitation of restitution to land dispossessed on or after 1913 was arbitrary, it also highlights both the material and non-material cost of the devastating wars of dispossessions. The candidate comments extensively on the post apartheid constitutional property structure which was conceived as a redress to the imbalance created by dispossession. This underlying objective explains why the state’s present land policy is geared towards facilitating access to land for the landless. The thesis investigates the extent to which the present property structure which defines access to land as a human right has succeeded in achieving the stated objective. It reviews the strengths and weaknesses of the land restitution process as well as the question of the payment of just and equitable compensation for land expropriated for restitution. The latter was carefully examined because it plays a crucial role in the success or otherwise of the restitution scheme. The writer argues that the courts have, on occasions, construed just and equitable compensation generously. This approach has failed to reflect the moral component inherent in the Aristotelian corrective justice. This, in the context of South Africa, requires compensation to reflect the fact that what is being paid for is land dispossessed from the forebears of indigenous inhabitants. It seems obvious that the scales of justice are tilted heavily in favour of the propertied class whose ancestors were responsible for this dispossession. This has a ripple effect on the pace of the restitution process. It also seems to have the effect of favouring the property class at the expense of the entire restitution process. The candidate also comments on the court’s differing approaches to the interpretation of the constitutional property clause. The candidate contends that the construction of the property clause and related pieces of legislation in a manner that stresses the maintenance of a balance between private property interest and land reform is flawed. This contention is supported by the fact that these values do not have proportional worth in the present property context of South Africa. The narrow definition of “past racially discriminatory law and practices” and labour tenant as used in the relevant post apartheid land reform laws is criticized for the same reason of its uncontextual approach. A comparative appraisal of similar developments relating to property law in other societies like India and Zimbabwe has been done. The writer has treated the post reform land evictions as a form of dispossession. The candidate notes that the country should guard against allowing the disastrous developments in Zimbabwe to influence events in the country and calls for an amendment of the property clause of the constitution in response to the practical difficulties which a decade of the operation of the current constitution has revealed.

This study is an attempt to contribute to the discussion on theology and land restitution. The researcher approaches it from a theological background and acknowledges the many contributions on this subject in other fields. Since this is a theological contribution, this research has the Bible as its point of departure. Black people are deeply rooted in the land. Land dispossession destroyed the God-ordained and created bond between black people and their black selves. Land dispossession also had a terrible economic impact upon black people. As result of land dispossession Bantustans were established. These black areas were economically disadvantaged and black people were forced to live in impoverished conditions. Land, which was a primary source of life for black people, was brutally taken away from them. Consequently, black people were forced to leave the Bantustans in search for employment in “white” South Africa. Because of this, they were made slaves and labourers in the country of their birth. The Bantustans were not considered to be part of South Africa; hence black people were aliens in their ancestral motherland. The black communal economic system was destroyed as a result of land dispossession. (The black communal economic system refers to an economic system where everyone works the land and thus benefits economically from the land.) The results of this are still seen in present-day South Africa. The majority of black people are still living at the margins of society because in the past, they were made subservient and dependent on white people to survive economically. Since apartheid was a system that was sustained on cheap black labour, this dependency on the white economy was systemic and generational. It is for this very reason that we see the very disproportionate face of the economy today. In an attempt to arrest the imbalance, the restoration of land to black people is inevitable. It is only then that black people will be liberated from being overly dependent on white people for their 3 survival. Land dispossession also had a terrible impact upon the identity and “blackness” of black people; black people internalised oppression as a result of the apartheid system, which was affirmed by the Dutch Reformed Church as a God-ordained system. This system officially paved the way and was used as the vehicle for land dispossession in South Africa; it destroyed black people and it is therefore not by chance that black people have become the greatest consumers. The identity of black people is deeply rooted in their ancestral motherland and land dispossession had a brutal impact upon the blackness of black people. Black people, as a result of land dispossession, started to doubt their humanness. Land dispossession also had a dreadful impact upon the relationships of black people with themselves and the relationships between white people and black people. These relationships were immorally and officially damaged by the apartheid system, which was deeply structural. Thus, when dealing with the land question in South Africa, the fact that it is deeply structural should be kept in mind. The church is entrusted with the task of reconciling the damaged relationships in a transformational manner. This can only be done when black people and white people engage and embrace each other on an equal basis. But black people and white people in South Africa cannot be on an equal basis as long as structural divisions which still advantage some and disadvantage others are not dealt with in a transformational manner. Therefore the need for land restitution in South Africa is necessary today because it does not only relate to the issues of faith and identity, but it is also economic. The consequences of the dispossession of land in the past are still evident in present-day South Africa. Land dispossession has had a terrible impact upon the faith of black people, whose faith is strongly linked to land (place). Faith and belonging are interrelated. The restoration of land to black people is necessary to reconcile black people with their faith and consequently with themselves. / Philosophy, Practical and Systematic Theology / D. Th. (Theological Ethics)