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[91] Chapter Eight Conclusion and recommendations his study has examined the crucial issue of the dispossession of Africans of their ancestral land in South Africa. It has evaluated the country’s post-apartheid property structure from the perspective of determining the extent to which the injustices of dispossession have been addressed. Has access to land for the dispossessed been significantly enhanced or is it a case of changes in legislation, policies and rhetoric with no corresponding impact on the lives of the majority who were excluded under the old order? Bearing in mind Cousins (2000: 2) and Lahiff’s (2001: 5)339 criticism about the country's land delivery rate being slow, the writer agrees with the former’s description of the reforms introduced by the property clause and its incidental legislation as ‘minimalist’ (Cousins 2000: 1). The failure of the reforms to deliver access to the dispossessed reflects this minimalist character and the gap between legislation and implementation. Both have been sources of such anxiety that the Land Access Movement of South Africa (LAMOSA)340 has considered a Zimbabwean-like land invasion a viable option to the South African approach. It is difficult to criticize this organization’s attitude because cumulative statistics of settled restitution claims from 1995 to March 2004 reveal that only 17,631 hectares of land have been restored to 662,302 beneficiaries to date.341 Aboriginal title An important focus of the new property structure is Section 25 of the 1996 Constitution, which permits the expropriation of property subject to compensation for ‘a public purpose or in the public interest’. Public purpose or interest in this particular context refers to the nation’s commitment to land reform to facilitate access to land by those dispossessed under the old order. The new property structure, according to Miller & Pope (2000: 44), has the specific mandate of resolving the balance of priority in favour of the dispossessed. A crucial feature of the emergent land policy is the restitution scheme devised as a mechanism to facilitate access to land by the dispossessed. However because of compromises exacted during the constitutional negotiations, this restitution process was limited to the restoration of land dispossessed on or after June 1913. This was further circumscribed by a second time frame that limited the period for the lodging of restitution claims, although this was subsequently extended to 31 December 1998 T [92] (De Villiers 2003: 51). These limitations342 have led to a property structure that has made the rapid restoration of dispossessed land difficult. Apart from being the date that the notorious Land Act of 1913 became operational, 1913 has nothing else to commend it as the basis for limiting restitution. This limitation is an arbitrary decision that can be construed as serving the interests of those who benefited from the skewed land policy under apartheid. Such a perception creates a credibility problem for the restitution scheme and explains the frustrations expressed by LAMOSA. The issue should no longer be whether the courts can accommodate restitution that pre-dates 19 June 1913 but instead what can be done about this provision that short-shifts the right of some descendants of the dispossessed to repossessing lands wrongfully taken from their forebears. The writer has adopted this view in spite of the decision by the Constitutional Court in the Alexkor Ltd case that:343 In the light of the judgement in Du Plessis and Others v De Klerk and Anor the drafters of the Constitution were aware of the general rule against retroactivity. They obviously applied their minds to this aspect in relation to the restoration of land and land rights, which has always been an issue of supreme importance… Had there been any desire for the provision of the 1996 Constitution to have retroactive effect beyond this date, one would have expected this to have been so enacted. It was not. Although the Constitutional Court expressed these strong views on the apparent finality of the limitation date, the judgment is, nonetheless, significant insofar as charting the future course of restitution is concerned. In dealing with its jurisdictional scope, the court raised ‘the question whether the issue concerning the existence of the community’s rights in land prior to the colonization of the Cape, or the content or incidence of such rights’ constitute ‘constitutional matters’ or not.344 The decision also raised the possibility of enquiring whether ‘the continuous existence of such rights after the British Crown’s annexation of the Cape in 1806, or after the...

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