Land Use & Restitution

South Africa has a proud history of conserving its natural heritage and is internationally respected for the work it has done in this regard. However the credible reputation in recognition for work done in conservation has come at a cost.

The creation of most of our national and provincial parks has led to the removal of communities whose property rights were disregarded on a racial basis. The removal of these communities consolidated the creation of ethnic homelands basic to the policy of separate development.

Once created these parks favoured access by whites, with persons of other race groups allowed restricted entry, if at all, on condition which favoured white rights and did not clash with the policies of racial segregation. Conservation in South Africa became a white preserve. Restitution to rights in and falling within nature reserves could contribute greatly to the integration of conservation and to make it a truly South Africa concern.

Restitution of Land Rights Act 22 of 1994

The right to restitution is contained in section 25(7) of the Constitution of the Republic of South Africa Act 108 of 1996 - the Constitution. The Constitution entitles persons to claim restitution of rights in land lost as a result of racial discrimination practised as a matter of policy by previous government to the extent provided for by the Restitution of Land rights Act 22 of 1994 as amended - the Act. The Constitution also contains clauses in the Bill of Rights which protects the promotion of conservation including securing ecologically sustainable development and the use of natural resources while promoting justifiable economic and social development, section 24.

The right to restitution and environmental rights need to be balanced off against each other in a way which will do justice to both correct racially skewed property relationships brought about by the implementation of spatial apartheid and to redress the sense of social loss and degradation so basic to racial discrimination. In order to understand the impact of restitution on property relationship in South Africa it is necessary to understand the concept of rights in land as defined in the Act.