Rights-based restitution in South Africa : developmental land reform or relocation in reverse?

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

Impediments to the delivery of socioeconomic rights in South Africa

[from the Introduction] The purpose of including Second and Third Generation (STG) rights in a constitution is to provide guidelines to lawmakers to formulate policy and to enable the courts to intervene where these policies are not being implemented satisfactorily. In theory these rights allow citizens to demand from the state access to basic needs, such as adequate land, housing, education, health care, nutrition, and social security. However, this inclusion of rights in the constitution often does not translate into action. The first reason for this is that Second and Third Generation rights may clash with First Generation rights. For example the right to private property may, and in South Africa does, contradict the need for land for the majority. The major problem is whether the policies flowing out of Second and Third Generation rights are pursued with enough vigour by governments, the private sector, primary groups and individuals to overcome this contradiction. In many countries in the world it is the poorest sections of the population, and as Mamdani (1996) pointed out, migrant non-citizens, that bear the brunt of administrative and bureaucratic bungling and neglect

Book RevieZimbabwe’s Land Reform: Myths and RealitiesBy Ian Scoones, Nelson Marongwe, Blasio Mavedzenge, Jacob Mahenehene, Felix Murimbarimba and Chrispen Sukume (2010)

James Currey, Whitwell House, St Audry’s Park Road, Melton, Woodbridge, Suffolk IP12 1SY, UK. Zimbabwe: WeaverPress, 38 Broadlands Road, Emerald Hill, Harare, Zimbabwe. Southern Africa: Jacana Press, 10 Orange Street, Sunnyside,Auckland Park 2092, South Africa304 pp, softcoverISBN 978-1-84701-024-7 (James Currey), 978-1-77922-110-0 (Weaver), 978-1-77009-985-2 (Jacana). Price £16.99/R210African Journal of Range & Forage Science 2012, 29(2): 97–9

Participation, local governance and attitudes of youth: a Grahamstown case study

The United Nations Convention on the Rights of the Child includes children’s right to participation in processes that affect them. In this article we caution that in order to give real content to participation, it is necessary to understand what participation is and to acknowledge the problematic nature of the concept. We then demonstrate, by considering a number of international and African studies, the kinds of issues that have undermined the implementation of participatory initiatives for both adults and children. Subsequently we explore the way in which participation has become a central tenet of cooperative developmental government through what has, especially at the local level, become known as governance. We argue that for these opportunities to become a reality and for citizens to benefit from the governance model, a strong and organised civil society that moves beyond the limitations of confrontational protest politics and engages with the state without becoming co-opted, is the way forward. Increased inefficiency on the part of local governance structures has led to increasing disillusionment by citizens, especially younger people. The final section of the paper deals with this disaffection through a focus group interview with a small number of Grade 12 learners from Grahamstown/Rhini. The interviews reveal a level of cynicism and lack of interest in participation in governance structures, such as ward meetings, among the learners interviewed.Young people should be at the forefront of global change and innovation. Empowered, they can be key agents for development and peace. If, however, they are left on society’s margins, all of us will be impoverished. Let us ensure that all young people have every opportunity to participate fully in the lives of their societies (Kofi Annan, former United Nations Secretary General)

Participation, local governance and attitudes of youth: a Grahamstown case study

The United Nations Convention on the Rights of the Child includes children’s right to participation in processes that affect them. In this article we caution that in order to give real content to participation, it is necessary to understand what participation is and to acknowledge the problematic nature of the concept. We then demonstrate, by considering a number of international and African studies, the kinds of issues that have undermined the implementation of participatory initiatives for both adults and children. Subsequently we explore the way in which participation has become a central tenet of cooperative developmental government through what has, especially at the local level, become known as governance. We argue that for these opportunities to become a reality and for citizens to benefit from the governance model, a strong and organised civil society that moves beyond the limitations of confrontational protest politics and engages with the state without becoming co-opted, is the way forward. Increased inefficiency on the part of local governance structures has led to increasing disillusionment by citizens, especially younger people. The final section of the paper deals with this disaffection through a focus group interview with a small number of Grade 12 learners from Grahamstown/Rhini. The interviews reveal a level of cynicism and lack of interest in participation in governance structures, such as ward meetings, among the learners interviewed. Young people should be at the forefront of global change and innovation. Empowered, they can be key agents for development and peace. If, however, they are left on society’s margins, all of us will be impoverished. Let us ensure that all young people have every opportunity to participate fully in the lives of their societies (Kofi Annan, former United Nations Secretary General)

The populist rhetoric around land acquisition in South Africa obscures a number of significant factors on land reform

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Global economic burden of unmet surgical need for appendicitis

Background There is a substantial gap in provision of adequate surgical care in many low- and middle-income countries. This study aimed to identify the economic burden of unmet surgical need for the common condition of appendicitis. Methods Data on the incidence of appendicitis from 170 countries and two different approaches were used to estimate numbers of patients who do not receive surgery: as a fixed proportion of the total unmet surgical need per country (approach 1); and based on country income status (approach 2). Indirect costs with current levels of access and local quality, and those if quality were at the standards of high-income countries, were estimated. A human capital approach was applied, focusing on the economic burden resulting from premature death and absenteeism. Results Excess mortality was 4185 per 100 000 cases of appendicitis using approach 1 and 3448 per 100 000 using approach 2. The economic burden of continuing current levels of access and local quality was US $92 492 million using approach 1 and$73 141 million using approach 2. The economic burden of not providing surgical care to the standards of high-income countries was $95 004 million using approach 1 and$75 666 million using approach 2. The largest share of these costs resulted from premature death (97.7 per cent) and lack of access (97.0 per cent) in contrast to lack of quality. Conclusion For a comparatively non-complex emergency condition such as appendicitis, increasing access to care should be prioritized. Although improving quality of care should not be neglected, increasing provision of care at current standards could reduce societal costs substantially

Global economic burden of unmet surgical need for appendicitis

Background There is a substantial gap in provision of adequate surgical care in many low- and middle-income countries. This study aimed to identify the economic burden of unmet surgical need for the common condition of appendicitis. Methods Data on the incidence of appendicitis from 170 countries and two different approaches were used to estimate numbers of patients who do not receive surgery: as a fixed proportion of the total unmet surgical need per country (approach 1); and based on country income status (approach 2). Indirect costs with current levels of access and local quality, and those if quality were at the standards of high-income countries, were estimated. A human capital approach was applied, focusing on the economic burden resulting from premature death and absenteeism. Results Excess mortality was 4185 per 100 000 cases of appendicitis using approach 1 and 3448 per 100 000 using approach 2. The economic burden of continuing current levels of access and local quality was US $92 492 million using approach 1 and$73 141 million using approach 2. The economic burden of not providing surgical care to the standards of high-income countries was $95 004 million using approach 1 and$75 666 million using approach 2. The largest share of these costs resulted from premature death (97.7 per cent) and lack of access (97.0 per cent) in contrast to lack of quality. Conclusion For a comparatively non-complex emergency condition such as appendicitis, increasing access to care should be prioritized. Although improving quality of care should not be neglected, increasing provision of care at current standards could reduce societal costs substantially