Submissions on the implementation of RADP – Legal Resources Centre

1. Submissions on the implementation of RADP – Legal Resources Centre Parliament, cape town 4 February 2015

2. Summary • Legal Resources Centre represents rural communities in navigating land reform in all provinces of South Africa. Encounter challenges of implementation in different contexts. Based on this experience, addressing two legs today: • - RADP and Redistribution • - RADP and Restitution

3. RADP and Redistribution • - Discussions at parliamentary workshop August 2013: • How new policy will impact upon existing grant applications? • How policy will be implemented to fit different contexts, ie, not all applicants have similar needs, capacities, trajectories etc. • How to avoid ‘fronting’? • How to avoid tick box approach? • Severe criticism of restriction on ownership

4. RADP and Redistribution • Problems of implementation experienced since August 2013 • The case of commonage land: the Stellenbosch Small Farm Holdings Trust • Challenges identified: potential beneficiaries lost in confusing bureaucracy for nearly 10 years. • -Struggling to fit the envisioned profile of RADP beneficiaries • ‘forced’ into strategic partner model: difficulties experienced • Limitations of a business plan template • Lack of understanding of the commonage programme as an aspect of land reform inside the DRDLR

5. Key issues: RECAP neglects small farmers • 1. Despite the objective of improved food security and smallholder development and support for agrarian transformation – funding going to large scale commercial farming projects • 2. RECAP neglects smallholder development: language geared towards big commercial business. Business plans, investment from strategic partners etc in practice excludes small farmers. Reflected in allocations. • 3. Small farmers have nowhere else to go – RECAP has replaced all previous funding sources.

6. Key issue: commonage infrastructure • -Key example: RECAP replaced the Commonage Policy • - What is commonage? Municipal-owned land used for socio-economic needs of community. Old and new. In 2008 about 1 million hectares available for redistribution. • - identified as early as 1997 as key land reform avenue: no need to acquire land; land remains with municipality into perpetuity – available for generations of small scale farmers as stepping stone or food security hub. • - in 2002 commonage accounted for most redistributed land as a result • - today hard to find officials in DRDLR who know about and understand commonage • - key problem on commonage: infrastructure. Funds created for that purpose – replaced by RECAP. • - now MUNICIPALITIES must apply to RECAP to upgrade infrastructure for generations of beneficiaries. Difficult fit with RECAP template. • Acknowledged at workshop in August 2013 and promises to address. But problems persist and increase. • - loans for small farmers? Will do nothing for infrastructure on land.

7. Key issue: lack of institutional memory failing long time applicants • Every time the policy framework changes, applicants fall through the cracks. • The story of STELLENBOSCH SMALL FARM HOLDINGS TRUST: the ‘no brainer’ • - 13 5ha allotments • - first application process started in 2006 – under commonage infrastructure grant • - application finalized in 2009 by Municipality and US at R300 000 – in 2011, policy had changed and application returned for ‘more detailed business plan’ • - second business plan development funded by DRDLR at R500 000 – finalized in 2013. • - Municipality told that the project needs a strategic partner. Start over a third time. Serious problems with strategic partner. • - No institutional memory. No ability to treat this project within its own context and history. • - proposed new criteria and changes to RECAP…….fourth business plan???

8. RADP and restitution • Successful restitution requires post-settlement support (see SCA in Baphiring v Tshwanarani and Others 2013) • Conflation with RADP makes post-settlement support discretionary – • Places restitution itself in jeopardy. Possible to receive land but not qualify for post-settlement support. • Case study: Ebenhaeser, biggest land claim in the Western Cape settled in December 2014.

9. The ad hoc committee on the legacy of the 1913 Land Act • The committee made a number of observations and recommendations on the RADP. It’s evaluation illustrates that the RADP lacks articulation with broader reform initiatives and discriminates against the rural poor: • land reform is not only about agriculture but agriculture is a crucial component of land reform. Land reform should address the various land needs of the beneficiaries… post settlement should not only be been seen in terms of the Farmer Support Programme or the existing Recapitalisation and Development Programme which targets farming with strategic partnerships. The Committee asserted that the post settlement phase of land reform should be viewed in terms of broader land use and development support. However, the lack of visibility of programmes of the Department of Agriculture Forestry and Fisheries in many of the land reform projects was identified as a key weakness. • The Department of Rural Development Land Reform has opted to provide on farm technical support to land reform beneficiaries through the use of investors, acting as strategic partners, and consultants serving as mentors. The Committee observed that the Recapitalisation and Development Programme has a pre-condition which coerces beneficiaries to enter into strategic partnerships and mentorships. However, the Department of Rural Development and Land Reform lacks a systematic process for monitoring and evaluation of those partnerships.

10. The ad hoc committee on the legacy of the 1913 Land Act • Lack of involvement of strategic departments such as the Department of Agriculture, Forestry and Fisheries in the pre-settlement phases of both land redistribution and restitution is among the root causes of the failures of land reform. Another contributing factor is poor planning related to acquisition of where a long period of time lapses between purchase of land and actual occupation. Related to these challenges, is the actual release of funds under the Recapitalisation and Development Programme. Such delays have led to vandalisation and/or collapse of many farms purchased for land reform purposes. • 8.1.5. Restructure the land redistribution programme to enable citizens, especially the rural poor and farm dweller households to acquire land that they could call their own, rather than being lessees on state-owned land. Such access to land should address their differential land needs for housing, small-scale subsistence production and heritage/religious purposes. This approach would require - • (a) Careful district-based or area-based planning for land redistribution that addresses the needs and aspirations of the would-be beneficiaries. • (b) Develop a smallholder production model and relevant development support mechanisms that are not only pro-commercial production as in the case with the Recapitalisation and Development model of the Department of Rural Development and Land Reform.

11. The ad hoc committee on the legacy of the 1913 Land Act – bias against rural poor • Interpretation of land redistribution as synonymous with commercial agriculture creates limitations to in policies to reach out for the land needs of those categories of rural poor people, for example, small-scale subsistence producers, farm workers and farm dwellers, whose land needs and aspirations are not commercial agriculture. The new Agricultural Landholding Framework Policy which determines minimum and maximum land holding sizes does not offer opportunities for land access to category 1 of farmers (small-scale subsistence producers). It thus excludes them to enjoy the Constitutional imperative for “fostering conditions which enable citizens to gain access to land on an equitable basis”. • 8.1.10. Consider amending the Interim Protection of Informal Land Rights Act, 1996 to protect rights of individuals in communal areas, whilst developing a comprehensive piece of legislation to give effect to Section 25(6) of the Constitution. Further work to clarify tenure security in communal areas should address the following: • (a) The role of institutions of traditional leaders within the context of the Constitutional recognition of customary law and living customary law as well as individual rights and liberties. • (b) Recognition of the CPAs established to own land transferred to beneficiaries of land reform • (c) Redress the apartheid boundaries that locked black people within overcrowded areas to decongest rural areas.

12. Unfair burden on restitution ad hoc committee report: • “Many of the beneficiaries of land restitution are from lower-income communities. • “The redistribution programme has benefited fewer households and no longer targets lower-income households. The transition from the pro-poor SLAG to LRAD removed the emphasis on households earning less than R 1 500 per month and began to target contributions from beneficiaries of land redistribution. “Large sums of money were increasingly benefitting the few.” The burden of addressing the unequal distribution of land pre-1994 is increasingly falling on the land restitution programme. If this trend continues with the re-opening of land claims, this may lead to an over-subscription of land claims that goes beyond the scope and capacity of the restitution programme.

13. Recap and restitution – old restitution grants repealed • Para I of the policy: • The primary Recapitalisation and Development Fund is based on 25% of the baseline land redistribution and restitution of land rights budget, over every MTSF period. The fund replaces the following land reform grants: • (i) The 25% PLAS Operational Budget; • (ii) The 25% Household Development Grant; • (iii) The 25% Restitution Development Grant; • (iv) the Restitution Settlement Grant; and • (v) The Commonage Infrastructure grant.

14. Recap for redistribution and restitution • BUSINESS ENTERPRISES PRETORIA • Table 5 on page 11

15. Total budget Spend of Recap Fund Annually as at March 2014RECAPITALISATION AND DEVELOPMENT PROGRAMME PRESENTATION TO THE PORTFOLIO COMMITTEE ON RURAL DEVELOPMENT AND LAND REFORM 5 NOVEMBER 2014

16. questions • ito the RECAP policy objectives • 1 no graduation: para 3.8 The current RECAP objective of “graduating small farmers into commercial farmers” ignores the fact that nearly all the farms being assisted or intended to be assisted through RECAP are independent commercial farming units that used to be farmed as family farms to their fullest commercial and production potential. These farms are all of substantial sizes and are much larger than any smallholding in the former homeland areas. • 2 value for money: para 4.8 70% of the RECAP projects were generating income from agricultural production; on average, R463 284 is spent per beneficiary or R588 284 is spent to create one job • ito land reform objectives: • 2 category 1 farmers and restitution neglected • 3 redistribution benefits the few whilst restitution is burdened by the expectations of land reform; both restitution and redistribution restitution supports the RECAP budget; restitution neglected by Recap implementation. • Is the restitution budget being used, through the Recap budget, to benefit the few under redistribution?