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South Africa Recognizes Land Rights of the Khoi and San Peoples

A policy being created by the South African government with the help of the Khoi and San people has received cautious optimism.

The South African government recently announced it is working on policy that would allow Khoi and San peoples to lodge land claims prior to the 1913 cut off date. However, the policy has received cautious optimism from the aboriginal community and interested stakeholders.

South African Rural Development and Land Reform Minister Gugile Nkwinti announced that a policy on the exceptions to the 1913 Natives Land Act cut off date is being developed together with Khoi and San representatives.

The Restitution of Land Rights Amendment Act re-opens a five-year window period, up to 2019, for South Africans to claim back land from which they were forcibly removed due to the 1913 Natives Land Act and later apartheid laws.

A first period for land restitution applications was previously opened between 1994 and 1998.

According to South African History online, the Natives Land Act was passed to allocate only about 7 percent of arable land to Africans and leave the more fertile land for whites. The law created reserves for Black people and prohibited the sale of territory in white areas to Black people and vice versa.

Aboriginal activists in South Africa have long argued that the history of white colonial land dispossession did not begin with the passing of the Native Land Act in 1913 but went as far back as the expansion of Dutch colonial rule in what is today the Cape area, the southernmost area of South Africa.

The recent announcement by government is a long time coming. It follows President Jacob Zuma’s pronouncement during his 2013 state of the nation address in which he stated: “Also to be explored, are exceptions to the June 1913 cut-off date to accommodate claims by the descendants of the Khoi and San as well as heritage sites and historical landmarks. Another key lesson is to provide adequate post-settlement support to new landowners so that land continues to be productive.”

Following President Zuma’s address, a series of dialogues between the government and the Khoi and San community were held to map a way forward on the President’s pronouncement.

Stakeholders of the proposed land restitution policy have expressed cautious optimism at the new development.

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Indigenous People's Rights Programme Manager at the Open Society Initiative for Southern Africa (OSISA), Delme Cupido had this to say about the proposed policy: “This is a very welcome and long overdue development, but it remains to be seen what the policy will actually entail, who it will benefit and how benefits will be distributed. Previous experiences with successful land claims, such as the Richtersveld case and the experiences of the Khomani San, however, suggest that returning land to communities, while necessary as a partial fulfillment of the obligation to make restitution to these communities, is not in itself sufficient to ensure that those communities will prosper. Communities will need ongoing support from the government in order to make a success of this initiative, and will need to build their governance capacities and strengthen their institutions, in order to ensure that all members of the community benefit appropriately from the redistribution of land.

“Having said that, however, this is a historic move by the South African government, especially in view of the denial by their neighbors in Botswana and Namibia of indigenous status to the descendants of Southern Africa’s First Peoples.”

Cecil le Fleur, trustee of the Indigenous Peoples of Africa Coordinating Committee (IPACC) and the chair of the national Khoi San council explained the legal complexity of developing a land restitution policy prior to 1913.

“The 1913 cut off date is a constitutional arrangement. They want to develop a policy to bypass that and that is currently going on.”

le Fleur confirmed that another meeting with government is in the works to determine the finer details of the proposed land restitution policy.

Institute for the Restoration of the Aborigine of South Africa (IRASA) co founder Tania Kleinhans-Cedras is also a part of the policy drafting process but says that she is challenging the way it is being done.

“I am involved in the process but I have mixed feelings about it. It was a very controlled process. We have to construct an act within an act. The 1913 land act now has to make provisions for the Khoi San. I would have imagined a separate act long as it is (the draft policy process) controlled politically it is not going to have a positive outcome.”

Referring to the issue of economic freedom of aboriginal peoples in South Africa, Kleinhans-Cedras asked: “If they are going to give us land are they going to give us mineral rights?”

At this stage, it’s unclear when the proposed land restitution policy will come into effect.