History on trial: a study of the Salem commonage land claim
- Authors: Bezuidenhout, GJW
- Date: 2020
- Subjects: South Africa. Restitution of Land Rights Act, 1994 , Salem (South Africa) -- History , Land tenure -- Law and legilstion -- South Africa , Land reform -- Law and legislation -- South Africa
- Language: English
- Type: text , Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10962/146647 , vital:38545
- Description: This thesis critically examines the Salem commonage claim, a dispute that has shaken the hamlet of Salem to its core. On ground level it has caused racialized fault lines to reopen, while suspicion and distrust has also grown between the black Africans of the area as well. On a national level, the Constitutional Court judgement has potentially set a precedent with regards to its jurisprudential approach in determining the validity of land claims in South Africa. Its interpretation of the law was determined by the restorative justice jurisprudence enshrined in the Restitution of Land Rights Act 22 of 1994 (the Act). It based its own understanding of the history of the commonage on this jurisprudence. In a bold step towards realising the aims and purposes of the Act, the Constitutional Court found that both the black African claimants as well as the white landowners have equal rights to the land. One of the reasons why the decision of the Constitutional Court is ground-breaking is that the dispute involves a former commonage – land used for common purpose. The Constitutional Court emphasised that the Act was an “extraordinary piece of legislation” and had to be interpreted in such a way so as to address the injustices of the past. This included provisions of the Act which dealt with how oral testimonies from claimants would be dealt with. Another interesting feature was the heavy reliance by all parties on expert witnesses in the persons of eminent historians, Professors Martin Legassick and Herman Giliomee. This case gave much-needed clarification as to what the appropriate role of an expert historian witness may be in a land claim. The success or failure of land claims often depend on the weight of the evidence supplied by the expert historian witness. But the historian must also take cognisance of the fact that the evidence s/he gives is appropriate according to the scope of law. This case also dismisses the assumption that colonial instruments of land assignation are beyond reproach. These instruments which grant rights to land may also be scrutinised in a court of law, just like when oral testimony is tested for its credibility. This is important to note, especially when balancing land rights of the claimants against those of the landowners. This thesis agrees with the decision taken by the Constitutional Court in this instance. However, it also cautions that such softly-softly approaches may appear as a suitable compromise on paper, but the feeling on the ground may not be as receptive to reconciliation as what the courts would have hoped for. To the jurist, this judgement accurately encapsulates the purpose and aims of the Act. However, such a judgement may not seem satisfactory to the people of Salem. The decisions of the Salem commonage case are sure to inform the discourse of land claims in South Africa.
- Full Text:
- Date Issued: 2020
- Authors: Bezuidenhout, GJW
- Date: 2020
- Subjects: South Africa. Restitution of Land Rights Act, 1994 , Salem (South Africa) -- History , Land tenure -- Law and legilstion -- South Africa , Land reform -- Law and legislation -- South Africa
- Language: English
- Type: text , Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10962/146647 , vital:38545
- Description: This thesis critically examines the Salem commonage claim, a dispute that has shaken the hamlet of Salem to its core. On ground level it has caused racialized fault lines to reopen, while suspicion and distrust has also grown between the black Africans of the area as well. On a national level, the Constitutional Court judgement has potentially set a precedent with regards to its jurisprudential approach in determining the validity of land claims in South Africa. Its interpretation of the law was determined by the restorative justice jurisprudence enshrined in the Restitution of Land Rights Act 22 of 1994 (the Act). It based its own understanding of the history of the commonage on this jurisprudence. In a bold step towards realising the aims and purposes of the Act, the Constitutional Court found that both the black African claimants as well as the white landowners have equal rights to the land. One of the reasons why the decision of the Constitutional Court is ground-breaking is that the dispute involves a former commonage – land used for common purpose. The Constitutional Court emphasised that the Act was an “extraordinary piece of legislation” and had to be interpreted in such a way so as to address the injustices of the past. This included provisions of the Act which dealt with how oral testimonies from claimants would be dealt with. Another interesting feature was the heavy reliance by all parties on expert witnesses in the persons of eminent historians, Professors Martin Legassick and Herman Giliomee. This case gave much-needed clarification as to what the appropriate role of an expert historian witness may be in a land claim. The success or failure of land claims often depend on the weight of the evidence supplied by the expert historian witness. But the historian must also take cognisance of the fact that the evidence s/he gives is appropriate according to the scope of law. This case also dismisses the assumption that colonial instruments of land assignation are beyond reproach. These instruments which grant rights to land may also be scrutinised in a court of law, just like when oral testimony is tested for its credibility. This is important to note, especially when balancing land rights of the claimants against those of the landowners. This thesis agrees with the decision taken by the Constitutional Court in this instance. However, it also cautions that such softly-softly approaches may appear as a suitable compromise on paper, but the feeling on the ground may not be as receptive to reconciliation as what the courts would have hoped for. To the jurist, this judgement accurately encapsulates the purpose and aims of the Act. However, such a judgement may not seem satisfactory to the people of Salem. The decisions of the Salem commonage case are sure to inform the discourse of land claims in South Africa.
- Full Text:
- Date Issued: 2020
The impact of land restitution and resettlement in the Eastern Cape, South Africa: restoring dignity without strengthening livelihoods?
- Authors: Xaba, Mzingaye Brilliant
- Date: 2019
- Subjects: Reparations for historic injustices -- South Africa , Land reform -- Law and legislation -- South Africa , Land reform -- South Africa -- Social aspects , Agricultural development projects -- South Africa -- Social aspects , Land tenure -- Law and legislation -- South Africa
- Language: English
- Type: text , Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10962/96336 , vital:31264
- Description: Land reform in South Africa, which is comprised of land redistribution, land tenure reform, and land restitution, continues to be an emotive subject and has largely racially polarised South Africa. The slow pace of land reform, expropriation, the amount of land to be returned to black people, debates around the role of the Constitution in land reform, the market-based approach and the perceived negative attitude of white farmers have dominated the debates on land reform. There is, therefore, a huge chorus on the struggles for land acquisition and less on what happens when people are given land. A few studies on post-settlement livelihoods experience have managed to close this gap slightly in the literature by showing that land reform has contributed little or no material and livelihood benefits to beneficiaries and that many farms are lying idle after land reform, especially land restitution, projects. These studies on post-settlement livelihoods experiences of land reform beneficiaries have not managed to capture fully the “voices” of beneficiaries on land and livelihoods. This dissertation seeks to provide a sociological documentation of the post-settlement livelihood experiences of land restitution beneficiaries. It does this by primarily tracing the ability and/or the inability of land restitution beneficiaries of Macleantown, about 40 kilometres northwest of East London, in the Eastern Cape to reconstruct livelihoods after resettlement, bearing in mind that these land restitution beneficiaries have been resettled twice, during forced removals in the 1970s and after land restitution, post-1994. Therefore, the study engages with questions of whether or in what ways land compensated restitution beneficiaries have managed to reconstruct livelihoods after land transfer. To capture the livelihood experiences of land restitution beneficiaries fully, I also studied the Salem restitution case, which is 20km away from Grahamstown in the Eastern Cape. Because land restitution involves resettlement, I decided to use two resettlement theories, namely Thayer Scudder’s four stages model and Michael Cernea’s Impoverishment Risks and Reconstruction (IRR), to understand risks associated with resettlement. Additionally, since this dissertation seeks to understand and document livelihood reconstruction and poverty reduction within the context of restitution resettlement, I also utilised the Sustainable Livelihoods approach and Amartya Sen’s capabilities approach. This thesis is based on multiple research methods that include documentary study, focus group discussions, conversations, archival research, in-depth interviews, transect walks, participant observation and life histories. My findings show that land transfer under the land restitution programme has largely not enabled land beneficiaries in Macleantown and Salem to reconstruct land-based livelihoods after settlement. I also established that land restitution beneficiaries face risks that are identified by resettlement theorists such as lack of proper planning, resettling trauma, struggles in community reconstruction and poverty. Beneficiaries have not managed to reap any meaningful benefits from the land, meaning that restitution has not led to self-sufficiency for these beneficiaries because all land beneficiaries are heavily dependent on social grants. However, one needs to emphasize that land restitution has restored the dignity of beneficiaries because beneficiaries have accessed their forefathers’ land that they fought for. This is because beneficiaries believed that it was their duty to fight for their land on behalf of their ancestors. I reach the conclusion that the whole idea that restitution claimants who are scattered all over can be grouped into a Community Property Association (CPA) and farm collectively as a ‘community’ to improve livelihoods is a misleading romanticisation of the envisaged outcomes of the land restitution project. Time has passed after land dispossession and land claimants are different human beings to what they were before land dispossession, i.e. far from the agrarian society they were before land dispossession. Group dynamics, lack of adequate post-settlement support (PSS), land reform designs, lack of commercial agricultural skills, as well as entitlement syndrome, old age of beneficiaries, infighting and marginality of agricultural business has made it nearly impossible for restitution beneficiaries to reconstruct land-based livelihoods. Additionally, the government appears to be more interested in ‘correcting apartheid’ rather than creating viable farms. It is important to state that this thesis does not advocate for the erasure of the restitution programme or to belittle land beneficiaries but argues for the rethinking of the restitution model in the context of massive failures, as well as coming up with a new and flexible model of land restitution that will meet the modern needs of beneficiaries. This thesis contributes to an understanding of the risks and the challenges of livelihoods reconstruction faced by resettling communities through an investigation into the post-settlement livelihoods experiences of land restitution beneficiaries through ‘thick descriptions’.
- Full Text:
- Date Issued: 2019
- Authors: Xaba, Mzingaye Brilliant
- Date: 2019
- Subjects: Reparations for historic injustices -- South Africa , Land reform -- Law and legislation -- South Africa , Land reform -- South Africa -- Social aspects , Agricultural development projects -- South Africa -- Social aspects , Land tenure -- Law and legislation -- South Africa
- Language: English
- Type: text , Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10962/96336 , vital:31264
- Description: Land reform in South Africa, which is comprised of land redistribution, land tenure reform, and land restitution, continues to be an emotive subject and has largely racially polarised South Africa. The slow pace of land reform, expropriation, the amount of land to be returned to black people, debates around the role of the Constitution in land reform, the market-based approach and the perceived negative attitude of white farmers have dominated the debates on land reform. There is, therefore, a huge chorus on the struggles for land acquisition and less on what happens when people are given land. A few studies on post-settlement livelihoods experience have managed to close this gap slightly in the literature by showing that land reform has contributed little or no material and livelihood benefits to beneficiaries and that many farms are lying idle after land reform, especially land restitution, projects. These studies on post-settlement livelihoods experiences of land reform beneficiaries have not managed to capture fully the “voices” of beneficiaries on land and livelihoods. This dissertation seeks to provide a sociological documentation of the post-settlement livelihood experiences of land restitution beneficiaries. It does this by primarily tracing the ability and/or the inability of land restitution beneficiaries of Macleantown, about 40 kilometres northwest of East London, in the Eastern Cape to reconstruct livelihoods after resettlement, bearing in mind that these land restitution beneficiaries have been resettled twice, during forced removals in the 1970s and after land restitution, post-1994. Therefore, the study engages with questions of whether or in what ways land compensated restitution beneficiaries have managed to reconstruct livelihoods after land transfer. To capture the livelihood experiences of land restitution beneficiaries fully, I also studied the Salem restitution case, which is 20km away from Grahamstown in the Eastern Cape. Because land restitution involves resettlement, I decided to use two resettlement theories, namely Thayer Scudder’s four stages model and Michael Cernea’s Impoverishment Risks and Reconstruction (IRR), to understand risks associated with resettlement. Additionally, since this dissertation seeks to understand and document livelihood reconstruction and poverty reduction within the context of restitution resettlement, I also utilised the Sustainable Livelihoods approach and Amartya Sen’s capabilities approach. This thesis is based on multiple research methods that include documentary study, focus group discussions, conversations, archival research, in-depth interviews, transect walks, participant observation and life histories. My findings show that land transfer under the land restitution programme has largely not enabled land beneficiaries in Macleantown and Salem to reconstruct land-based livelihoods after settlement. I also established that land restitution beneficiaries face risks that are identified by resettlement theorists such as lack of proper planning, resettling trauma, struggles in community reconstruction and poverty. Beneficiaries have not managed to reap any meaningful benefits from the land, meaning that restitution has not led to self-sufficiency for these beneficiaries because all land beneficiaries are heavily dependent on social grants. However, one needs to emphasize that land restitution has restored the dignity of beneficiaries because beneficiaries have accessed their forefathers’ land that they fought for. This is because beneficiaries believed that it was their duty to fight for their land on behalf of their ancestors. I reach the conclusion that the whole idea that restitution claimants who are scattered all over can be grouped into a Community Property Association (CPA) and farm collectively as a ‘community’ to improve livelihoods is a misleading romanticisation of the envisaged outcomes of the land restitution project. Time has passed after land dispossession and land claimants are different human beings to what they were before land dispossession, i.e. far from the agrarian society they were before land dispossession. Group dynamics, lack of adequate post-settlement support (PSS), land reform designs, lack of commercial agricultural skills, as well as entitlement syndrome, old age of beneficiaries, infighting and marginality of agricultural business has made it nearly impossible for restitution beneficiaries to reconstruct land-based livelihoods. Additionally, the government appears to be more interested in ‘correcting apartheid’ rather than creating viable farms. It is important to state that this thesis does not advocate for the erasure of the restitution programme or to belittle land beneficiaries but argues for the rethinking of the restitution model in the context of massive failures, as well as coming up with a new and flexible model of land restitution that will meet the modern needs of beneficiaries. This thesis contributes to an understanding of the risks and the challenges of livelihoods reconstruction faced by resettling communities through an investigation into the post-settlement livelihoods experiences of land restitution beneficiaries through ‘thick descriptions’.
- Full Text:
- Date Issued: 2019
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