Over the past 21 months, the High Level Panel (HLP) on the assessment of legislation and the acceleration of fundamental change, which has been chaired by former President Kgalema Motlanthe, has criss-crossed the country to hear first-hand about people’s experience of the laws passed by South Africa’s democratic state. Numerous submissions from individuals, non-governmental organisations, academics, industry associations and many other organisations were received.

Research was commissioned to assist in addressing key issues. The three key themes that the HLP were tasked with – poverty, unemployment and the inequitable distribution of wealth; land reform: restitution, redistribution and security of tenure; and social cohesion and nation-building – go to the heart of the post-apartheid project of building an inclusive society. The HLP’s report offers three kinds of recommendations as summarised in the executive summary: priority proposals to alter, fundamentally, the trajectory of society’s development, a set of recommendations to deepen the progressive realisation of socio-economic rights enshrined in the Constitution; and finally, some urgent measures to limit the unintended consequences of legislation. Click here to peruse the HLP report.

Challenges in the implementation of land reform legislation

The issue of land reform was central to the study and the results largely reflect the challenges identified by stakeholders during the Operation Phakisa workshop last year in October. The primary gaps regarding legislation are related to communal land tenure, an area which has received little attention since 1994 when compared to redistribution and restitution. Communal occupier’s rights are still largely regulated by pre-apartheid era legislation which gave despotic authority to traditional authorities. The commission also found that the democratic government’s initiatives largely strengthened and reinforced the power inequalities created by the apartheid government in this space. Legislative gaps also exist in the restitution programme as the legislation is skewed towards the creation of artificial communities with the only common factor binding the community a historical link with the land in question. These communities are then essentially forced to work together in an ill-fated agricultural enterprise. The Phakisa team also identified this problem and proposed a reengineering of the restitution programme to allow community members not interested in farming to opt out and receive compensation. Sadly, this initiative seems to have been subsequently abandoned by the Commission.

Aside from these isolated legislative gaps, the core problem reported across the board is a lack of implementation, corruption and indifference from the implementers, which largely echoes the comments passed at the 5-week Operation Phakisa workshop held last year. – Theo Boshoff and John Purchase, Agbiz