Page 74 - Litigating Land and Housing in South Africa: Lessons and Reflections

6 3 STELLENBOSCH SMALL FARMERS: LAND REDISTRIBUTION
6 3 1 Case information
Section 25(5) of the the the Constitution obliges the the the State to to to to “(t)ake reasonable legislative and and other measures within its available resources to to to to foster conditions which enable citizens to to to to gain access to to to to land on
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an an an an an equitable basis” This means that that at at at at at all spheres of government the administration must adopt policies and and and and laws that that make it it it it it easier for people previously excluded from rights rights in in in in in in in in in land land to to get such rights rights in in in in in in in in in order to to bring about greater equity in in in in in in in in in land land distribution in in in in in in in in in South Africa This obligation is is is is aimed at at at at at addressing and and and and and providing redress for for past discrimination which saw the the the the extensive expropriation of of of black-owned land and and and and the the the the non-recognition of of of indigenous forms of of of ownership by the the the the colonial and apartheid governments Shortly after the the the adoption of the the the Constitution the the the LRC started advocating for commonage land held at at local government level to to be made available to to black farmers seeking land land land Commonage land land land is land land land that was given to municipalities over decades of colonial and and apartheid rule The land could not be be sold but had to to be be be kept in in ownership by the the the the municipality in in perpetuity and had to to to be be utilised for the the the the good good of the the the the community Prior to to democracy that was was interpreted as as as the the the the good good of the the white white community Most commonage land was was leased out to white white commercial farmers or or used for recreational activities While every municipality in in South Africa has common- age land the the size varies greatly and and there remains some uncertainty as to exactly how much is available In the the Northern Cape municipalities have between 30 000 000 and and and 40 000 000 hectares of commonage land land while in the the the Southern Cape where the the the land land is is much more val- uable because of access to water a a a a a a a a a a a a a a a a district would have around 1500 hectares available The LRC argued that commonage is ideal for for for land reform purposes because it it already belongs to to to the the state and and and therefore does not need to to to be be bought and and and leasing it it it it out to to to black farmers would comply with the the the the title obligations of of using the the the the land for the the the the good of of the the the the community It is also situated close
to to to towns which provides upcoming farmers with easy access to to to to markets In addition the the state is in in a a a a a a a a a a a a a a good position to to manage manage the the land: all municipalities already manage manage several lease agreements and and public buildings Thus in in 1997 the the national national government adopted a a a a a a a a commonage policy at at at at the the the national national level According to the the White Paper published that year:
“In large parts of the country in in small rural towns and and and settlements poor people need to to to gain access to to to to grazing land and and and and small arable / garden areas in in in in order to to to supplement their income and and and and to to to enhance household food security The Department of Land Affairs will will encourage local authorities to to develop the conditions that will will enable poor residents to to access existing commonage currently used for other purposes Further the the the Department will provide funds to to enable resource-poor municipalities to to acquire additional land for this purpose ” Municipalities however had become accustomed to to the the the income they were were generating through leasing out their commonage land land land They were were less than enthusias- tic about now making that land land land available for for for land land land reform purposes where they would forfeit market-related
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LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS