“Isizathu sethu songavoti lilungelo lethu esingalifumaniyo”

Rather than casting their ballots in the hope of electing a new government, a small but determined community in Keiskammahoek held a silent protest, calling attention to their long-standing grievances. The community’s decision stemmed from deep-seated frustration over unresolved land claims dating back to the original 1998 cut-off date.

As millions of South Africans across the nation exercised their democratic right to vote, a small but determined community in Keiskammahoek, located in the Amathole district of the Eastern Cape, chose a different path. Rather than casting their ballots in the hope of electing a new government, they held a silent protest, calling attention to their long-standing grievances. The community’s decision stemmed from deep-seated frustration over unresolved land claims dating back to the original 1998 cut-off date. 

For 28 years, they have navigated bureaucratic hurdles and legal processes in pursuit of compensation for the land that was taken from them. Despite their efforts and numerous national and provincial elections in which they participated, hope for justice and restitution has waned among them. The sentiment echoed throughout the community, reflecting a fear they may never see a resolution in their lifetime, mirroring the plight of their ancestors.

Keiskammahoek land restitution protest 

The Keiskammahoek community protest serves as a poignant statement on the broader issue of land restitution in South Africa. The community’s plight reflects a national challenge, where countless individuals and communities await fair compensation for historical injustices. The Commission on Restitution of Land Rights, which is tasked with addressing such grievances, has faced criticism for delays and inefficiencies in processing claims. The community’s decision not to vote underscores a growing disillusionment with democratic processes when fundamental rights remain unaddressed. 

The story of Keiskammahoek is not isolated; it resonates with many South Africans who continue to grapple with unresolved land claims, casting a shadow over the nation’s democratic aspirations.

The Commission projects an additional 30 years to settle outstanding land claims, a stark reality for communities like Keiskammahoek. Having already waited for nearly 30 years, the prospect of further delay has intensified frustrations among residents seeking justice for land dispossession. In a briefing to the then Portfolio Committee on Agriculture, Land Reform and Rural Development in 2023, the Commission highlighted the critical issue of backlogs and unresolved claims within the Land Claims Court. According to their assessment, the absence of a permanent court structure and insufficient judicial capacity have been significant obstacles in the processing of land restitution cases. The sentiment aligns with the recommendations from the Presidential Advisory Panel on Land Reform and Agriculture in 2019 to strengthen the Land Claims Court by “appointing a permanent judge president and four permanent judges to the Land Court”. 

Establishment of a permanent land court

The lack of a stable institutional framework has complicated efforts to address historical injustices. In response, in 2021, the then Minister of Justice and Correctional Services, Ronald Lamola, introduced the Land Court Act No. 06 of 2023, establishing a permanent Land Court to replace the Land Claims Court. The Act, passed by Parliament and signed into law in 2023, seeks to streamline processes and ensure dedicated judicial oversight in land cases. The Act places a strong emphasis on accelerating land reform and facilitating the settling of claims and matters in the Land Court expeditiously. 

The Act institutes a permanent panel of judges appointed on the basis of their specialised training and expertise in land rights. In a bid to enhance access to justice, the Act stipulates that, while the court’s principal seat is in Johannesburg, it may, in the interest of justice, convene proceedings at alternative locations.

Furthermore, the jurisdiction of the court is extended to include all issues arising from the Interim Protection of Informal Land Rights Act of 1996. This Act safeguards the land rights of rural citizens governed by customary law, including those with Permission To Occupy (PTO) certificates and beneficiaries under the Ingonyama Trust. Additionally, the court is empowered to adjudicate matters concerning labour tenants and disputes arising from the Restitution of Land Rights Act of 1994.

Access and budget constraints 

The establishment of the Land Court in Johannesburg, mandated to oversee critical land matters affecting rural communities such as Keiskammahoek, raises significant questions about its effectiveness in delivering timely justice. Although the court can hold proceedings outside Johannesburg, potentially easing the financial burden of travel on rural citizens, uncertainties remain around the criteria and timing for deciding when such alternative locations are deemed necessary. The phrase ‘whenever it appears to the Judge President‘ adds ambiguity. This wording implies that rural citizens, often already financially strained, may initially be required to pursue their cases in Johannesburg until a judge determines otherwise—a process that could exacerbate hardships faced by impoverished communities seeking restitution. 

The effectiveness of the Land Court is further complicated by budgetary constraints highlighted in the Commission on Restitution of Land Rights’ 2023 report. The Commission argues that current funding levels are inadequate to significantly reduce the backlog of unresolved claims—a situation that the new court is expected to inherit.

Financial limitations not only hinder the resolution of claims but also impact access to legal representation. Under the draft regulations, Legal Aid South Africa is tasked with providing legal assistance, subject to specific criteria. However, the Legal Aid South Africa Act stipulates that funding for land issues is contingent upon allocations from the Commission or if the Commission is a party to the disputes.

The Land Court Act under the GNU

The appointment of the DA’s John Steenhuisen as Minister of Agriculture and PAC’s Mzwanele Nyhontsho as Minister of Land Reform and Rural Development represents contrasting ideologies and raises concerns about policy coherence and budget allocation to facilitate the efficiency of the Land Court.

The newly appointed cabinet under the Government of National Unity (GNU) has drawn criticism for its increased size, expanding from 28 ministers in the previous cabinet to 32 ministers. This move has sparked discussion about the rationale behind increasing the number of cabinet members, especially considering the decision in 2019 to reduce the cabinet from 36 to 28 ministers. President Ramaphosa, in his statement on the appointment of the cabinet, held that the decision to combine portfolios would enhance coherence and coordination and revitalise the economy and overall governmental efficiency.  

In 2019, the agriculture portfolio was merged with land reform and rural development under the leadership of ANC member and former Minister Thoko Didiza. However, in the newly formed 2024 cabinet, this merger was reversed, resulting in two separate portfolios. The appointment of the DA’s John Steenhuisen as Minister of Agriculture and PAC’s Mzwanele Nyhontsho as Minister of Land Reform and Rural Development highlights a shift towards independent governance of these sectors. Potentially, this represents contrasting ideologies on how to tackle the land question. The contrast in ideologies raises concerns about policy coherence and budget allocation to facilitate the efficiency of the Land Court.

The two sectors are intricately linked, and decisions in one can impact outcomes in the other. With the PAC’s clear stance on returning land to “its original owners – the Indigenous people of Africa” and the DA’s emphasis on private ownership protection, divergent ideologies could hinder unified policymaking.

The same goes for the division of the Justice and Correctional Services portfolio, previously unified under Minister Lamola’s leadership. Its split also raises concerns over budget allocation and efficiency, echoing similar challenges faced by the Agriculture and Land Reform portfolios. Under Lamola’s tenure, notable strides were made, including the establishment of the Land Court. 

Opposition and differences in ideologies can theoretically protect the interests of the public by creating room for diverse viewpoints. However, the risk of conflicting objectives between these portfolios raises concerns about efficient governance, budget allocation and management. How will the budget, previously allocated to a single merged portfolio, now be divided between Agriculture and Land Reform? Dividing the budget could potentially limit resources for resolving land claims or providing legal aid in land court proceedings, disadvantaging vulnerable groups.

Furthermore, stretching the budget to accommodate both departments begs the question of whether economic constraints, highlighted by President Ramaphosa in 2019, have eased. This move challenges the prioritisation of revitalising the economy and prudent fiscal management, suggesting a potential strain on public finances. In essence, while division may reflect diverse perspectives, the practical implications on governance effectiveness, budget allocation, and economic strategy remain critical considerations for the newly appointed cabinet.

With this newly elected government, attention turns to how the Ministers of Land Reform and Rural Development, Agriculture and Justice and Constitutional Development will bolster their portfolios. The success of the Land Court hinges on strategic capacitation efforts, including enhancing expertise within the Commission, to effectively manage and expedite land restitution cases.

As South Africa works towards equitable land reform, the effectiveness of the Land Court in addressing historical injustices is crucial for redress. Positive outcomes would entail justice and fair compensation for communities like Keiskammahoek. However, if the new Ministers fail to advocate for the Court and Commission’s capacitation, Keiskammahoek’s residents might endure another three decades of waiting for justice. The upcoming months will demonstrate how governmental commitments translate into real outcomes for communities seeking restitution and justice, such as Keskammahoek. Additionally, it will be intriguing to observe how these ministries collaborate to advance real development while ensuring land justice.

Thandolwethu Nkopane is a research assistant with the Land and Accountability Research Centre at the University of Cape Town.