Microsoft word - policy guidelines determining a restitution package

DETERMINING A RESTITUTION PACKAGE: PRINCIPLES TO CONSIDER Principles that must be considered in determining the restitution package in the process of negotiating To indicate guidelines with regard to the principles that should be considered when determining the restitution package in the negotiating and settling of claims. The principles to consider: 2.1 Establishing the nature and extent of the rights lost. 2.2 Determining the value of the claim. 2.3 Taking into consideration compensation received at the time of dispossession as well as the 2.4 Considering and including issues of development and sustainability. 2.5 Final implementation would be subject to completion of the verifications process. 3.1.1 The Restitution of Land Rights Act of 1994 as amended (the Act) defines the restitution of a right in land as either “the restoration of a right in land or equitable redress”. 3.1.2 Clear guidelines are needed to ensure that all restitution cases are treated in an equal and just 3.1.3 The process of determining the restitution package does not necessarily imply the application of complicated formula to work out exactly what was lost by claimants, but to ensure an indication to the Minister of the application of the issues to be considered in terms of the Restitution Act. 3.1.4 Urban and rural dispossessions were dealt with under separate legislation involving different processes and requirements. This should be considered when applying methods and factors in the negotiations process. 3.2 ESTABLISHING THE NATURE AND EXTENT OF THE RIGHTS LOST 3.2.1 The nature of the rights lost must be established and an appropriate recommendation made with regard to the nature of the rights restored. These rights will differ in terms of urban and rural claims. 3.2.2 In some cases it would be possible to propose and upgrade the rights. 3.2.3 The fact of this as well as the process to be followed could only be determined when the nature of the rights lost had been established during the research process. 3.2.4 The extent of the rights lost would impact on the extent of the rights to be restored and should be clearly established in co-operation with the claimants 3.3.1 The need for determining the value of the claim is based on the fact that the Commission must ensure that similar principles are applied in determining the package for all claimants. 3.3.2 Restitution can take many forms and in order to adhere to the principle of justice and equity, all options for a case should be of equal value 3.3.3 Establishing the value of the claim should not be seen as an exercise to determine exactly what was lost by claimants, nor a cold mathematical calculation, but a fair and just compensation that might be equivalent to what was lost. 3.3.4 Establishing the value of the claim is an attempt to present a framework in which to apply the circumstances of the specific case in order to come to agreement with regard to settlement of the claim 3.3.5 Decisions on the value of the rights lost should be taken in different scenarios according to 3.3.6 Possible methods to apply would include: 3.3.6.1 determining the current value of an equivalent use right to what was lost at the time due to change in land use and considering the value of improvements at time, e.g. determine the value of a serviced site in the area (or similar area) (mostly urban/peri-urban) Establish on average what each claimant in a group lost, e.g. looking at property values in an area before there was a skewed market. Identify the average values and proportionate property sizes and escalate to current market value (i.e. effectively ignoring improvements at the time) (mostly urban/peri-urban) determining the current value of the land that was lost where the land in question is essentially unchanged, excluding the value of subsequent improvements and considering the value of improvements at the time of dispossession Values determined could be made to claimant groups as standard settlement offers, the basis thereof should be clearly motivated 3.3.7 The details of each case and the circumstances surrounding the dispossession will assist to determine the method. Any method applied should be clearly motivated in terms of proper investigation, research and informed negotiations with claimants and relevant parties and choice of options. 3.4 CONSIDERING COMPENSATION RECEIVED AS CIRCUMSTANCES PREVAILING AT THE TIME OF 3.4.1 To ensure that the settlement complies with Section 33(eA) of the Act, compensation received by claimants at the time of dispossession should be considered together with the circumstances prevailing at the time 3.4.2 Considering compensation received at the time should not be interpreted to necessarily mean that claimants must “pay back” or that it should be “deducted” from the package, but merely that cognizance should be taken of the fact that compensation was received at the time but that certain circumstances prevailed that would influence the consideration of the compensation received 3.4.3 The following factors and circumstances prevailing at the time could influence the extent to which compensation received at the time would be considered: the granting of insufficient compensation (in rural cases e.g. taking into consideration the size and value and usage of compensatory land that was received. e.g. (unsuitable land for farming ) the compensation resulted in downsizing of land tenure, development support, living conditions and thus resulted in disproportionate hardship the compensation received formed part of a broader social programme and not part of the dispossession process the extent and value of immovable improvements made by claimants on for e.g. the compensatory land the extent to which such decision for deducting compensation will contradict or even undermine the aims and intentions of the land reform programme. the extent to which social disruption and landlessness could be created uprooting people from places where they have resided since birth other (the object of a further document would now be to attempt to draft detail guidelines in this regard 3.5 CONSIDERING AND INCLUDING ISSUES OF DEVELOPMENT AND SUSTAINABILITY 3.5.1 In accordance to a ministerial directive, an integrated and developmental approach should be 3.5.2 Ideally a number of activities should be undertaken to ensure this approach, inter alia linking the settlement to a developmental initiative and involving all spheres of government 3.5.3 Business plans should be drawn up and submitted or at least referred to and indicated in 3.5.4 Any submission to the Minister should indicate that these issues have been considered 3.5.5 Claimants should be part of this process and all options and the consequences thereof carefully 3.5.6 Possible packages could include: 3.5.6.1 An opportunity in a housing development, or any other development Access to town commonage land for grazing purposes and/ or upgrading tenure security and existing accommodation Some form of temporary subsidisation of rates Provision of alternative urban land for productive rather than residential purposes Restitution of other rights lost as a consequence of dispossession, eg fishing quotas Restoration of land in title but not for residential purposes Co-ownership and /or co-management of certain developments in an area Training with regard to sustainable development on restored land 3.6.1 The Commission has a responsibility towards the public, the claimants and is also accountable to Treasury to ensure that settlements are allocated to rightful claimants 3.6.2 Numerous problems can arise should a claimant be restituted in any form and later proved not to be the legitimate claimant/ sole beneficiary 4.1 Neither the Constitution nor the Restitution of Land Rights Act, 1994 and the Rules Regarding the Procedure of the Commission prescribe the precise methodology to be used in determining a restitution package. 4.2 Not implementing this policy could lead to the possibility of being challenged in a court of law, the In the process of determining the package, the following principles are considered for each claim/ group 5.1 the principle of establishing the nature and extent of the rights lost, 5.2 the principle of establishing a value of the claim/ right that was lost, 5.3 the principle of taking compensation received as well as the circumstances prevailing at the time of 5.4 the principle of considering and including issues of development and sustainability and 5.5 that final implementation of the settlement would be subject to the completion of the claimant verification process as applicable in each individual case.

Source: http://www.ruraldevelopment.gov.za/phocadownload/land-commision/policy%20guidelines%20determining%20a%20restitution%20package.pdf