Agreement making in South Africa

Agreement making in South Africa in relation to land occurs under the South African Land Programme, which was established to counteract the long-term effects of apartheid—the racial segregation policy of successive governments between 1948 and 1994.

Apartheid resulted in entrenched legal, social, economic and political disadvantage of black, coloured and Indian South Africans. Since 1994, the South African government has implemented numerous initiatives to counteract the economic effects of apartheid, including the racially-skewed pattern of land ownership.

Note: Many of the reforms of post-apartheid governments define the groups they wish to target using the racial terminology employed by apartheid-era governments: 'black', 'coloured', 'white' and 'Indian'. ATNS also uses these terms, though we acknowledge that they are problematic.

South African Land Reform Programme +

The South African Land Reform Programme comprises three elements, all of which are constitutionally protected:

  • land restitution
  • land redistribution
  • land tenure reform.

Land restitution

Under section 25(7) of the Constitution, land restitution aims to compensate people who were dispossessed of property as a result of past racially discriminatory laws or practices. Although land dispossession of black South Africans was a practice and policy of successive colonial powers for several hundred years, under the Constitution restitution is only available for dispossession that happened after 19 June 1913. This was the date of the enactment of Natives Land Act, 1913, which curtailed the ownership and acquisition of land by non-white South Africans.

Under the Restitution of Land Rights Act, 1994 (Section 6), the Commission on Restitution of Land Rights mediates all claims for restitution. If agreement cannot be reached, the claim is heard in the Land Claims Court.

Claims are made against the state. Where land earmarked for restitution belongs to an individual willing to sell that land, the state must pay compensation to them as the current legal owner. Restitution can also be in the form of cash payments, alternative state land or priority access to state housing and land.

The cut-off date for claims to have been lodged with the Commission on Restitution of Land Rights was 31 December 1998. As at 31 March 2007, 74,417 claims had been settled, of which 19,627 involved land restoration. A large percentage of claims are yet to be settled.

Land redistribution

Land redistribution, enshrined in section 25 (5) of the Constitution, aims to target those who were made landless before the restitution cut-off date of 19 June 1913. Land distribution focuses on 'the urban and rural very poor, labour tenants, farm workers as well as new entrants to agriculture'. This is done through land acquisition grants which are 'expected' to be pooled by communities to jointly buy land according to the government's 1997 White Paper on Land Policy.

Land reform

Under section 25 (6) of the Constitution, land reform also encompasses a number of land tenure reforms that recognise various degrees of 'informal' settlement around housing and agricultural labour. For example, the Land Reform (Labour Tenants) Act, 1996 (South Africa) strengthens the property rights of those who historically resided or had a right to use farm land in return for their labour.

Richtersveld decision and customary land ownership +

The Richtersveld decision, citing Mabo v Queensland (No. 2), acknowledged customary land ownership in South Africa. The court found that these rights survived annexation by the British Crown. The content of customary land rights, according to this decision, could only be determined with reference to customary law, rather than English common law.

The court stated that the traditional nomadic lifestyle of the Richtersveld community 'is not inconsistent with the exclusive and effective right of occupation of land by indigenous people': Richtersveld Community and others v Alexkor Ltd and another [2003] ZASCA 14, at 23.

Agreements with the corporate sector +

There are also land-related agreements negotiated between local South African communities and the corporate sector.

These include equity arrangements with resource companies, under which the local landholding community receives company shares in lieu of royalty payments. These arrangements can also incorporate aspects of the government's policy of Black Economic Empowerment. For instance, communities might acquire the shares at a discount rate.

As one of a range of measures being used to counteract economic inequality, Black Economic Empowerment focuses on preferential procurement of 'historically disadvantaged South Africans' (HDSAs) as well as on increasing the percentage of HDSAs who manage, own and control enterprises and productive assets.

Read more +

The ATNS team acknowledges the Traditional Owners of Country throughout Australia and their continuing connection to land, culture and Ancestors.

We pay our respects to Elders past and present.