LAND RESTITUTION THROUGH THE LENS OF ENVIRONMENTAL LAW: SOME COMMENTS ON THE SOUTH AFRICAN VISTA

Land reform in South Africa and the realisation of the section 25 property clause of the Constitution of South Africa , 1996 (hereafter the Constitution) is seen as an integral step in the democratisation process as well as in the social and economic empowerment of previously marginalised groups. For many, the true test for political transformation will be whether land needs (including protection of and care for the environment) are addressed effectively and in a sustainable manner. In recent years, however, government’s addressing of land needs has become a highly controversial issue, especially where land that vests in private owners is claimed back because of its status as ancestral land.   Land reform may strongly impact on the environment and sustainable development as protected in section 24 of the Constitution since it involves vast hectares of land, other environmental media and people. Restitution of land processes in terms of section 25(7), as one of the components of land reform, often does not take key provisions contained in environmental and planning law into account. In many instances, for example, government’s restitution projects do not make sufficient provision for harmonisation with environmental principles contained in environmental law and no or limited systems exist whereby to inform and assist land restitution beneficiaries on compliance with environmental and planning law obligations in post settlement development endeavours. These limitations could, inter alia , be linked with the fragmentation of the environmental governance regime and a lack of role clarification. It may furthermore result in significant conflict between sections 24 and 25(7) of the Constitution as overarching framework legislation, and between developmental objectives contained in sectoral-specific subordinate legislation. The restitution of land is, amongst other policies, regulated by section 25(7) of the Constitution and the Restitution of Land Rights Act 22 of 1994 whilst section 24 of the Constitution and the National Environmental Management Act 107 of 1998 aim at protection of the environment, the prevention of pollution, the promotion of conservation, and secured ecologically sustainable development. The conditions following land restitution settlement, including the current state of the environment on land that has been restituted, provide an interesting and factual source of reference for critical analysis of environmental policy implementation in land restitution processes and post-settlement endeavours. It further allows for a critical view on the effective or futile realisation of sustainable development in national and provincial governments’ efforts to finalise claim-driven restitution of land. In order to limit the scope of this article, land restitution policy, progress with the national land restitution programme and some post-settlement accounts will be critically analysed and assessed in the light of obligations and initiatives for environmental governance derived from the legal framework concerned. A land restitution case is briefly discussed with subsequent comments and suggestions for the way forward.

Introduction: The marriage of the land restitution process with environmental law An efficient legal system is required to amend and adapt to changing needs and priorities. 1 South Africa's political history of apartheid impacted on society (particularly peoples' rights in land), the economy and also, the environment. 2 To many, the true test of the current national priorities of political transformation and development depends on whether land needs (including protection of and care for the environment) will be addressed effectively and in a sustainable way. 3 In this, the South African legal system plays a substantial role. 4 Hence sections 24 and 25(5), 25 (7), 25 (8)  Until 1991, the prominent characteristic of the South African land control system was that it was racially based. Although the process of racial segregation of land control had already begun under the colonial authorities, it gained particular momentum with the commencement of the so-called "Land Acts" of 1913. It is estimated that about 17 000 statutory measures had been issued until 1991 in order to regulate land control in relation to racial diversity. See for explanatory discussions and historical overviews, De Villiers 2000 (4) SA Public Law 426 proposes that "no doubt exists that the democratic transition in South Africa will in the final analysis be measured against its ability to cater for social and economic demands -and in particular access to land -of its citizens". The White Paper on South Africa's Land Policy of 1997 furthermore describes the current, post-1994 land policy as "a cornerstone in the development of our country". 4 It is, for example, suggested by Van der Walt 1997 SA Public Law 275-330 that a socially responsible and thus fundamentally limited notion of land ownership is more appropriate in the current constitutional context. He explains that a just and equitable balance has to be struck between the protection of existing individual property rights such as ownership and the public interest in land reform and the transformation of the existing property regime. (hereafter the Constitution) and related legislation may be of key importance for sustainable development 5 and democratic change. 6 Section 24 states that: Everyone has the right-(a) to an environment that is not harmful to their health or well-being; and Sections 25(5), 25(7) and 25(8) of the Constitutional property clause address some of the components of land reform and determine that: (5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions that enable citizens to gain access to land on an equitable basis.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress. 5 S 24(b)(iii) explicitly refers to "sustainable development". For the purpose of this paper, sustainable development will be afforded the meaning derived from the UN General Assembly Our Common Future. The Report defines sustainable development as "… development that meets the need of the present generation without compromising the ability of future generations to meet their own needs". See for application and analyses of this concept Bray 1998 SAJELP 2; Scholtz 2005 Journal of South African Law 69. 6 Mostert 2002 The South African Law Journal 404 indicates that "law by itself cannot bring about development or effect social justice and security, but laws can facilitate societal change. Hence, the law is a valuable instrument in managing development, but political, economical, socio-cultural and environmental factors will shape the development process". After ten years of democratic rule, South Africa has reached a critical moment in respect of land restitution. 10 Some of the reasons for this include that the 7 Land restitution aims at compensating people who were removed from their land as part of the consolidation of homelands or the so-called "black spot" removal programme of the past. Land restitution is a claim-driven process that requires basic evidence that people were deprived of their ancestral land in a manner that would be unconstitutional after 1996 Co-operative governance in terms of ch 3 of the Constitution requires of all spheres of government and all organs of state within each sphere to conduct their tasks in a manner that is conducive to national unity and the attainment of national goals. Environmental governance is defined in par 2 below. 10 For a recent critical perspective on land reform in South Africa, see the Centre for Development  indicates that "the poverty pervading many of the communities involved in restitution claims -even after successful completion of the claims -is still shocking" and that "successful claimants' dispossession of the skills needed for using the restored land effectively, is almost never considered in settlements". Mbao 2002 Journal for Juridical Science 111-112 lists some of the challenges with regard to law and administration in the land restitution delivery process. These include, amongst others: lack of synergy between the restitution process and socio-economic development needs of successful claimants, including problems resulting from poor co-ordination between the various governmental agencies involved with issues of reconstruction and development at national and provincial levels; organisational constraints within the Commission for the Restitution of Land Rights; organisational constraints within associated government departments and weak organisation of rural communities. principles and the determination of impacts on the environment, may be of key importance.

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The questions posed in this article are whether co-operative and environmental governance are provided for in the existing land restitution program, whether the application of land restitution and environmental policies is integrated as required by the Constitution, whether the phases of land restitution provide for environmental matters, and in a culminating sense, whether or not the increasingly rapid implementation of section 25(7) could impede some of the objectives of section 24. In order to limit the scope of the article, a critical overview is provided of the legal framework on environmental governance in South Africa, the national legal framework for land restitution and some environmental initiatives that might relate to land restitution. For a more practical understanding of some of the issues raised in this article, brief reference is made of a land restitution case. The article concludes with some comments and suggestions for the way forward.

2
The legal framework on environmental governance in South Africa The term "environmental governance" has a multi-thematic nature, and is defined for the purpose of this paper as: The collection of legislative, executive and administrative functions, processes and instruments used by any organ of state to ensure sustainable behaviour by all as far as governance of environmental activities, products services, processes and tools are concerned. 21 Environmental governance is an explicit mandate of government in terms of section 24 and the NEMA. Since government in essence drives land restitution, and since it is an activity that may potentially impact on the environment, environmental governance may not be disregarded in the process of realising 21 Nel and Du Plessis 2004 SA Public Law 181-190. 6/46  (7) in a supportive manner and without sacrificing any of the core elements contained in these two distinct rights. Environmental and cooperative governance may provide the keys to "sustainable restitution of land"restitution of land that does not contravene or hinder the spirit of, and rights of, present and future generations protected in section 24.
National legislation that enables and regulates land restitution should arguably provide for environmental and co-operative governance in each step of the initial process as well as in post-settlement support endeavours. In order to determine the status quo of provision for environmental matters in land restitution law in paragraph 3, the subsequent sections briefly reflect on the legal framework for environmental governance currently in existence in South Africa. 23

The Constitution of South Africa, 1996 -Section 24
The Constitution is regarded as an imperative component of the legal system of the country and the legal-institutional framework within which development has to take place. 24 The rights contained in the Bill of Rights unmistakably relevant 22 For the purpose of this paper, the NEMA s 1 definition of "environment" should be kept in mind. "Environment" is defined in s 1 of the NEMA to mean: "The surroundings within which humans exit and that are made up of -land, water and atmosphere of the earth; micro-organisms, plant and animal life; any part or combination of (i) and (ii) and the interrelationships among and between them; and the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and wellbeing." 23 The aim is to distil some of the environmental law provisions that may require compliance by government in land restitution practices. 24 Scheepers Practical Guide 36. Administration and management of development and projects and programmes aimed to achieve development, must for example conform to the 7/46 for development include, amongst others, the right related to the environment (section 24), the right to property (section 25) and the right to just administrative action (section 33). 25 These rights may be limited only by way of a law of general application and in the manner provided for in the section 36 limitation clause.
Section 24 of the Constitution imitates the pattern of the Bill of Rights that in its entirety includes both traditional fundamental rights (particularly the equality clause, the right to dignity and the right to life) and socio-economic rights such as the right to housing and social security. 26 S 195(2) states that the listed principles apply to administration in every sphere of government, organs of state and public enterprises. 26 Note that several rights protected in the Constitution may pertain to the environment and environmental protection. These include, eg the right to administrative justice (S 33) and the right to access to information (S 32). These will, however, for the purpose of this article, not be discussed. The section 24(b) "legislative and other measures" may also be expected to ensure environmental governance practices that are aimed at the achievement of sustainable results. Section 24(b) therefore arguably also applies to legislation on non-environmental, but environmental impacting activities and other measures instituted for the realisation of different constitutional rights.
These may include the different property rights protected in section 25. All government action and legislation (including the land restitution process and land restitution law) as well as individual conduct (for example the behaviour or actions of land restitution beneficiaries) that impacts on the environment, must be in compliance with section 24 unless a limitation is allowed in terms of section 36.
The qualification that ecologically sustainable development is to be pursued "while promoting justifiable economic and social development", in section 24(b)(iii), must be seen in the context of the inclusion of socio-economic rights in the Bill of Rights as a whole. This raises the concern that in government's strive to fulfil its obligations in terms of social developmental rights, such as the However, it may in practice bring about an irreversible contravention of the environmental rights of current and future generations as protected by the Constitution.

The National Environmental Management Act 107 of 1998
The NEMA is regarded as framework legislation that embraces resource conservation and exploitation, pollution control and waste management as well as land-use planning and development (chapter 1 of the NEMA). The NEMA is underpinned by the notion of "sustainable development" being defined in the Act as the "integration of social, economic and environmental factors into planning, implementation, and decision-making so as to ensure that development serves present and future generations". The concept of sustainable development has been concretised in a set of detailed and complex environmental principles at the base of the NEMA. 32 The 18 environmental principles cover a wide spectrum of aspects set out in chapter 1 of the NEMA and …apply throughout the Republic to the actions of all organs of state that may significantly affect the environment. 33 Some of the principles are peculiar to developing South Africa, for example section 2(4)(d) that determines that establish a transit camp for people rendered homeless as a result of severe floods and the question arose around the balancing of the right to housing in terms of s 26 of the Constitution and environmental concerns. Taking into account the compelling need of the homeless people on the evidence placed before the court, the court found that in effect, the government's duty to fulfil its obligations in terms of the right to housing could be regarded as more important than other legal claims, including the environmental concerns of the respondents in the case. See also a discussion of environmental conservation and the concept of ownership as an absolute and unrestricted right based on the former ruling, Freedman 2001 SAJELP 128-134.

Cheadle, Davis and Haysom South African Constitutional Law 424 and Glazewski
Environmental Law 138. 33 Glazewski Environmental Law 141 suggests that the principles are applicable not only to organs of state but also to private juristic persons in the same way that the environmental right has horizontal application.
10/46 …equitable access to environmental resources, benefits and services to meet basic human needs and ensure human well-being must be pursued and special measures may be taken to ensure access thereto by categories of persons disadvantaged by unfair discrimination. 34 Chapter 3 of the NEMA is entitled "Procedures for Co-operative Governance" and provides for stipulated national government departments and the nine provinces of the country to prepare environmental management plans and/or environmental implementation plans. 35 The essence of environmental implementation and environmental management plans includes the giving of effect to the principle of co-operative governance and preference afforded to national rather than provincial interests where the latter are unreasonable or prejudicial to the interests of the country as a whole. 36 Note that since the DLA is included in both Schedules 1 and 2 of the NEMA, it may be legally expected of this department to prepare, and act according to both of the said plans.

The Environment Conservation Act 73 of 1989
Central to the ECA is Part 5 that regulates the control of activities that may have a detrimental effect on the environment. The Act adopts "a two-pronged approach" by empowering the Minister of the Department of Environmental Affairs and Tourism (hereafter DEAT), to declare either "activities" or "limited development areas" with certain environmental assessment consequences (sections 21 and 23 of the ECA). Where activities have been declared, no such activity may be undertaken unless written authorisation has been obtained from 34 Some of these principles are discussed below. Note that the environmental principles apply alongside other relevant considerations such as the State's responsibility to respect, promote and fulfil socio-economic rights such as the Section 25 property rights in the Constitution. Glazewski Environmental Law 138 indicates that in applying the principles, decision-makers are not only to consider ecological factors but also social considerations. It is however suggested that when it comes to the restitution of land as essentially a social issue, environmental factors and principles should also be considered. The set of comprehensive environmental management principles is preceded by the general provision that development must be socially, environmentally and economically sustainable (s 2(3) of the NEMA). As indicated by the restitution case briefly referred to below, in accelerating land restitution endeavours and in addressing more pressing challenges, the environmental impacts and the assessment thereof seems not to be a priority of government. Taking these findings into account as well as the escalating numbers of land claims that are "finalised", 38 the conducting of EIA's and the obtaining of environmental authorisation in most land restitution cases are questioned. This is an alarming state of affairs since an EIA may in terms of law not be required retrospectively, but alternative remedies to the EIA provisions have to be sought in seeking redress. 39  40 Glazewski Environmental Law 247-248 further indicates that the new regime "pivots around the notion" of an environmental authorisation which is provided for in s 24 as it states that "the potential impact on the environment of listed activities must be considered, investigated, assessed and reported to the competent authority".

South Africa
Land reform in South Africa takes place within the broad framework of a human rights-based Constitution and in terms of a set of national land reform laws. 41 The goal of the restitution programme (as one of the components of land reform) is to restore land and to provide for related remedies for those previously dispossessed by legislation and practice, in a way that supports the vital processes of reconciliation, reconstruction and development. 42 This paper proposes that land restitution law and related government action have to make provision for environmental governance in order to contribute to the vital processes of reconciliation, reconstruction and development. The incorporation of key environmental principles in land restitution law and the pre-settlement determination of the feasibility of a land claim and development activities to follow a successful land claim, may be central to restoring a balance between the need for development and the need to protect the environment.
In order to explore the land restitution legal framework and to assess whether the former provide for environmental governance, the inclusion of environmental principles and environmental impact assessments in land restitution law as well as the integrated application of land restitution and environmental laws, a brief exposition of the Constitutional property right and existing land restitution law is provided in subsequent paragraphs.

The Constitution of South Africa, 1996 -Section 25
According to the White Paper, section 25 was highly disputed in the Constitutional negotiations, and was one of the last issues to be resolved. The Constitution now seeks to achieve a balance between the protection of existing property rights on the one hand, and the constitutional guarantees of land reform on the other. The property clause provides clear constitutional authority for land reform -section 25 protects private property from confiscation by the state, and requires any expropriation of property to be compensated.
Concurrently, the property clause requires of the State to actively pursue the goals of land redistribution and the reform of land tenure rights and to grant people an entitlement to the restitution of property of which they were dispossessed in pursuance of apartheid policies. 43 Section 25 (7) (7). The question therefore is whether the current legal framework on land restitution ultimately enables the protection of the environment as provided for by section 24. Characteristic of the former may, inter alia, be co-operation between the DLA and the DEAT, the clarification of their respective roles and contributions and the inclusion of environmental principles and environmental impact assessments from the beginning to the end in the restitution process.

The White Paper on Land Reform of 1997
In terms of the White Paper, the purpose of land reform is to redress the injustices of apartheid, to foster national reconciliation and stability, to underpin economic growth, improve household welfare and to alleviate property. 47  It is however silent on clear provisions or strategies for the implementation and integration of environmental matters in, for example, the restitution of land process.

The Development Facilitation Act 67 of 1995
The Development Facilitation Act 67 of 1995 (hereafter the DFA) has been described by Glazewski as: Regardless of the fact that it was enacted prior to the 1996 Constitution and the adoption of section 24, the DFA is not empty with regard to the environment and provision for some of the requirements in terms of environmental law.
However, since the DFA applies to, but is not the central law in land restitution, it may fail to secure the incorporation of environmental governance. It is however proposed that the DFA, when integrated with the application of the RLRA, may to some extent contribute to a coalescence of the objectives of section 25 (7)

The Restitution of Land Rights Act 22 of 1994
While the 1993 and 1996 Constitutions established the right to restitution of land, the details of the claim procedure are set out in the RLRA. The RLRA aims at: the restitution of rights in land to persons or communities dispossessed of such rights after 19 June 1913 in terms of past racially discriminatory laws or practices; the establishment of the CRLR; and providing for all connected matters. 55 The RLRA essentially provides for the administrative process to get land registered in the names of people that qualify in terms of the Act and section 24 (7)  In terms of the RLRA, the LCC is charged with the duty to decide on the validity of claims and to award appropriate remedies. It has the power to determine the right to restitution of any right in land, to determine or approve the compensation payable when the land of a private person is expropriated, and to determine the person entitled to the right in land. The LCC is allowed to make several kinds of orders. Since the LCC deals with the procedure and finalisation of the claim itself, this instrument may not necessarily provide the forum for environmental governance and environmental principles to be considered in land restitution or post-settlement issues. 57 In terms of s 4 of the RLRA, the CRLR is established to administer the process of restitution. For practical purposes, various regional Commissioners are appointed to receive and investigate claims. The CRLR attempted to review all claims lodged for purposes of validation before the end of 2002 -this date has however recently been extended to the end of 2007 and it is foreseen by some that "at the present rate and given the complexity of the claims that remain, at least a decade or two would probably be required to settle all the claims". De Villiers Land Reform: Issues and Challenges 56. The CRLR is not only responsible for the administration of claims, but also for assisting claimants in preparing their case and, where necessary, for assisting with research in doing so. The Commissioners may furthermore prioritise claims and settle claims by allowing parties in several ways to negotiate it. This includes a process of mediation. Since the CRLR is a state body established with the purpose of assisting in pre-claim and claim settlement procedures that deals with the validity and history of claims, it may also not be 19/46 It may be argued that the RLRA simply enables an administrative process and that it is therefore not necessary for the Act to make reference to environmental matters or to incorporate any environmental law aspects. This viewpoint is contested in this article. Although the RLRA was enacted ahead of the finalisation of the 1996 Constitution, the RLRA remains the key law to regulate land restitution from the beginning to the end of the process. Pre-settlement arrangements and post-settlement support (by lack of evidence to the contrary) are mandates of the DLA either in terms of or as a result of the provisions of the RLRA. It is agreed that it is not the aim or task of exclusively the RLRA to see to land and land-use activities (or the sustainability thereof), that take place in pursuance of a settlement. It is however argued that, in order for land restitution to be sustainable and conducive to environmental protection, the RLRA must at least provide for a feasibility study or the meeting of minimum environmental requirements before a land claim process commences. This is reinforced by one of the core environmental principles contained in the NEMA, namely the precautionary principle.
Section 33 of the RLRA provides for "factors to be taken into account" by the LCC. This section states that "in considering its decision in any particular matter, the Court shall have regard to a list of aspects that, inter alia, include: the requirements of equity and justice and, if restoration of a right in land is claimed, the feasibility of such restoration and the desirability of avoiding major the suitable forum to establish and maintain environmental governance efforts and the inclusion of environmental principles in restitution of land. 58 The RLRA makes provision also for the settlement of claims through administrative procedures instead of a legal process with the LCC and the CRLR involved. Decentralisation of powers to the Minister, Director General and regional land claims Commissioners is therefore allowed in the case of settlement of uncontroversial land claims. De Villiers indicates that this process "was given further momentum" by the appointment of Minister Thoko Didiza in 1999, who expanded administrative decisionmaking in cases where an agreement is possible. De Villiers Land Reform: Issues and Challenges 59. This has led to an increase in consent settlements since the administrative process is aimed at speeding up settlements and encouraging parties to reach agreement rather than referring disputes to the litigation process. S 42C(3), 42D(1) and 42D(3) therefore allow for the Minister of Land Affairs in his/her own capacity or by delegation to the Director General of the department of a regional land claims Commissioner, to award land to a claimant, authorise payment of compensation, acquire or expropriate land, or a combination of options in the settlement of a claim.

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A DU PLESSIS PER 2006(1) social disruption. Section 33 does not make explicit reference to the taking into account of environmental disruption, environmental governance or environmental principles as a "factor to be taken into account". It is suggested that the extension of this section may be used to incorporate environmental matters in the RLRA. Section 40 of the RLRA states that the Minister may make regulations regarding (a) any matter required or permitted to be prescribed in terms of the RLRA and (b) generally, all matters which in his or her opinion are necessary or expedient to be prescribed in order to achieve the objects of the RLRA. It is recommended that section 40 of the RLRA which in general provides for the Minister to make regulations, could also be used for inclusion of matters related to section 24 of the Constitution, environmental governance and/or environmental principles. Although environmental protection is not a key objective of the RLRA, the White Paper states that environmental sustainability is of the utmost importance for the success of land reform whilst the constitutional property clause makes provision for "equitable access to all South Africa's natural resources" (section 25(4)(a)). Since the RLRA is key to land reform policy in South Africa and for the process of land restitution, it may be reasonable to expect of the Act to provide for the administration of matters that could contribute to environmental sustainability and equitable access of future generations to natural resources. Such matters may be developed, inter alia, from section 24, the definitions for environmental governance and environmental principles as discussed below.

The role of the Department of Land Affairs
The role of the DLA is briefly discussed as part of the institutional framework for land restitution in South Africa, and in order to contribute to a discussion on co-

Suggested environmental initiatives for the restitution of land
Where the settlement of land restitution beneficiaries takes place irrespective of environmental governance and environmental principles, the environmental human right of current as well as future generations may be at stake. The reason for this is that not only land, but also biodiversity, soil, minerals, water, vegetation and other natural resources are involved when land is assigned to beneficiaries. As soon as a land claim is finalised, newly settled individuals and communities usually want to develop the acquired land, whether it be for agricultural, small business or tourism-related purposes. It is argued that for the results of restitution to be sustainable, some environmental aspects may be key to the process. Environmental governance and the inclusion of environmental principles, plans and programmes (incorporation of environmental policy) may not be excluded. Not only from the actual restitution of land, but also presettlement studies and post-settlement assistance. It is argued that it is of the utmost importance that government employs environmental principles in the spirit of environmental governance especially in determining the feasibility of a land claim. When restitution takes place in an environmental blind way, there is not much that government can do afterwards to rectify problematic situations. 63 In terms of the White Paper, any programme that allows people more control over their lives and their environment should serve to reduce the risk of land degradation. 64 One of the challenges of land reform is to relieve land pressure 63 Land restitution involves vast hectares of land. Of concern is, eg the fact that large areas of land (especially in Kwazulu-Natal and the Easter Cape provinces) are prone to overgrazing and consequent vegetation degradation which leads to significant reduction of ground cover, bush desertification, a change in species composition and a reduction of grazing capacity. Although there is a lack of data on the extent and rate of land degradation, there is sufficient evidence to indicate that South African soils are deteriorating rapidly due to poor management practice and inadequate monitoring and enforcement. There is a severe risk of increased environmental degradation if preventive and improved resource management measures do not accompany the land reform programme and land development in general. Without providing an exclusive list, subsequent paragraphs put forward some public law and environmental law aspects proposed as some basic initiatives for land restitution in the aim to allow for sections 24 and 25(7) of the Constitution, to merge in practice.

A move towards co-operative governance
South Africa's land restitution process is characterised by a high degree of segmentation as a result of which all of the relevant departments are not always involved from the early stages to the implementation of land claims outcomes. 65 In many instances local governments and/or provincial departments are involved only very late in the resettlement phase, or even worse, only at the implementation stage.
65 Based on research conducted in the North-West Province, Mbao 2002 Journal for Juridical Science 112 indicates that there is a lack of synergy between the restitution process and socio-economic development needs of successful claimants, including problems resulting from poor co-ordination between the various governmental agencies involved with issues of reconstruction and development at national and provincial levels. He furthermore indicates that there are organisational constraints within associated government departments, including lack of co-ordination across sectors and at different levels, and the fragmented ownership and control of public land.

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This is too late as it affects their ability to take co-ownership of the process and also ignores the contribution they could make in developing post-settlement support schemes. 66 This situation may arise from the fact that the legislation lacks clear mandates for specific spheres or functionaries of government, resulting in uncertainty as to who is meant to do what and how.
This article suggests that co-operative governance by departments and co-ordinating their actions and legislation with each other (section 41(1)(h)(iv)).
Each department and sphere of government hence exists as a distinctive body with its own unique character, but functions on the basis of interdependence and interrelation with others.
The provisions of chapter 3 of the Constitution are not meant to diminish the power of one organ of state at the expense of another. Rather they presuppose and emphasise the willingness of all spheres and functionaries of government to work together. As far as the realisation of sections 24 and 25(7) of the Constitution is concerned, this may mean that for example the DEAT, the DLA and the DPLG with the supportive assistance of national, provincial and local government, should govern land restitution in an interdependent and interrelated way. This may require mutual support, so that conflict between land restitution law and environmental law is avoided, and so that administration and implementation of these laws are clearly regulated by way of co-ordination. 69 To ignore government's inter-supportive obligation is to render the provisions on co-operative governance null, void and futile -therefore, "mutual support and co-operation are imperative to create consulted, public participatory, open, administratively just, democratic and accountable governance; which principles should form the backbone of constitutional values underlying society as a whole". 70 Accordingly, the DLA may be applauded for stating in its Strategic Plan that "addressing the challenge of integrated planning has become a priority for government". 71 The Strategic Plan states that the DLA and the CRLR will in future be collaborating with a number of sister departments on different projects and programmes. 72 It is hoped that these "sister departments" will not only include the DEAT, but also the spheres of government responsible for and capacitated to see to environmental affairs.

The clarification of roles and elucidation of functions
According to the White Paper, the existing public land management system lacks a coherent information system and is characterised by a lack of clarity with regard to the roles, responsibilities and policies of the different institutions involved. This arguably holds true not only for the land management system itself, but also for the separate land reform programmes, such as land Africa but that also in Australia " there is no clarity on the type of support to be offered to aboriginal people once native title has been determined in their favour".
28/46 restitution, the DLA initially directed the process in a very centralised manner to the virtual exclusion of other national and provincial government departments.
The DLA had an exclusive claim settlement style and paid little, if any, attention to the development of a land management policy that would follow restitution. 77 In recent years the DLA has however shown greater awareness in involving other national and provincial departments and local authorities in the preacquisition process. However, there is still no integrated and coherent strategy whereby the role and functions of the respective departments are spelled out at national level. 78 Hence, it remains unclear who takes responsibility to make the land policy "work" and who takes ownership of the process before settlement takes place and once land has been acquired. 79 Similarly, it is not clear who may be held accountable to ensure or co-ordinate environmental governance of a land claim. 80 Of further concern is the fact that the DLA is not positioned to oversee implementation but at the same time no other department has been instructed to oversee or to coordinate the process. The skills required to assist in the settlement of new landowners are in many instances not found in a single government department as the needs of resettled people may span various 77 In this regard reference can be made to the disappointment that arose in areas such as Riemvasmaak, Elandskloof and Doornkop where the return to land was celebrated with great fanfare but was soon forgotten in the rush as the DLA headed off to settle the next claim. De Villiers Land Reform: Issues and Challenges 69. 78 De Villiers Land Reform: Issues and Challenges 69. 79 In terms of the Constitution, deeds registration, land survey and land reform, including land restitution, are the responsibility of national government. Provincial governments, however, also have responsibility in a number of functional areas that are closely related to land reform. These are mainly areas where national and provincial governments have concurrent responsibility in terms of Schedule 4 of the Constitution and include amongst others, environment, soil conservation and urban and rural development. Traditional authorities also carry out land-related functions in terms of customary law. All three spheres of government and traditional authorities accordingly have functions that require land administration. However, at present most of the legislation dealing with land administration has been assigned to the Minister of the DLA. 80 Note that the service delivery improvement programme of the DLA, which indicates some of the specific services of the DLA, currently does not contain a single service related to, or alluding to, environmental governance or environmental principles. Similarly no provision is made for the bringing on board of a line functionary or specific sphere of government to assist in environmental related services or matters. In aiming to make section 24 and 25 (7)

Integrated compliance with environmental-and land restitution law
Property rights and environmental rights as protected by the Constitution "appear to compete" -the right to property is a private law right while the environmental clause protects private and public interests. 82 The right to property furthermore aims to address imbalances inherited from the past, whilst the environmental clause aims to protect the environment of the present generation, and generations yet to be born. It is suggested that in order for sections 24 and 25(7) not to counteract each other in an antagonistic way, legislation that has been developed in terms of, or in order to realise these rights should be complied with in an integrated fashion. This may require a difficult balancing act where objectives in environmental law and land restitution seem to be in conflict. It is suggested that in such circumstances, the aims of national development in general, the people and area involved, alternatives in 81 Although efforts are made to involve local governments more effectively in land restitution, many local governments suffer serious capacity and financial problems -especially in rural areas. A lack of capacity and money may be the defence not only of local governments, but also of government departments currently not actively involved in land restitution and the pre-and post-settlement phases thereof. It is however proposed that especially in the light of s 24(b) (that provides for the protection of the environment for present and future generations), and with land restitution to be completed in the next two years, government should consider the revisiting of capacity-building endeavours and budgets. A determination of the way in which environmental policy may be utilised to support and strengthen the ultimate aims of land restitution policy, however, remains vital for the future performance of the DLA. 83 S 36 of the Constitution. 84 DLA http://land.pwv.gov.za/ 13 Apr. 85 It will be interesting to see whether the DEAT is recognised by the DLA and whether it sees itself, as "relevant stakeholder" to partake in these consultations.

The employment of environmental impact assessment and the environmental principles
When land is returned in terms of the land restitution programme, this has implications not only for the people involved, but also for the environment. This impact does not have to be contra-section 24 of the Constitution. In terms of existing environmental law as discussed above, it is possible to utilise, inter alia, environmental impact assessments and environmental principles to minimise negative impacts.
It is accordingly suggested that the "administrative or regulatory process by Furthermore it is determined that: development must be socially, environmentally and economically sustainable; that the disturbance of ecosystems and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied; that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied; that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions; that negative impacts on the environment and on people's environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied; that decisions must take into account the interests, needs and values of all interested and affected parties; that the social, economic and environmental impacts of activities, including disadvantages and benefits, must be considered, assessed and evaluated, and decisions must be appropriate in the light of such consideration and assessment; and that there must be intergovernmental co-ordination and harmonisation of policies, legislation and actions relating to the environment. This article suggests that if the current steps and processes that are part of land restitution are revisited and aligned to accommodate the former key environmental principles as framework guidelines for restitution, it may be unlikely for section 25 (7) to debilitate the rights of present and future generations as contained in section 24 of the Constitution.

The timely assimilation of environmental governance and -support
An inherent risk with regard to land reform law as it exists lies in the fact that the law does not explicitly provide for measures that will ensure benefits in land 33/46 for the next generation. 88 In some instances the return of people to land without the necessary environmental governance and support system in place may create more long-term problems than it solves. 89 The risk is that issues and grievances related, for example, to section 24 may be building up and that the next generation may want to revisit questions that the current generation thought had been adequately dealt with. The restitution of lost land rights itself offers no assurance with regard to livelihoods. Hence environmental governance, as defined earlier in this article 90 and support are of great importance. 91 It is argued that environmental governance and support should be applied already in pre-settlement investigations.
It should be noted that, according to the White Paper, prior to disbursing the Settlement/Land Acquisition Grant, the Department requires that grant applicants, with the assistance of planners, prepare a feasibility study which among other aspects includes an assessment of the environmental consequences of the proposed undertaking. This requires the applicants to consider the suitability of the natural resources for the proposed production system, and the environmental impact of the proposed residential development.
The Settlement/Land Acquisition Grant with its prerequisites is however only available once a land claim has already been settled. Since the grant process follows after a claim, it may only provide limited protection in the form of environmental assessment and can therefore not be offered by government as sufficient proof of the inclusion of environmental governance in land restitution endeavors.
In its Strategic Plan the DLA states that, in order to achieve sustainable development and livelihoods through the land reform process, environmental guidelines for effective land reform have been put in place: This year a substantial amount of the required resources are in place and full roll-out is anticipated. 92 What these environmental guidelines are remains uncertain and how "effective land reform" is or will be determined is unclear. As far as could be established, no environmental guidelines for land restitution have been established in terms of restitution policy or law. 93 This is an alarming state of affairs that may, however, be reversed by means of co-operative governance, the clarification of roles and the integrated application of environmental and land restitution law as discussed above.

Related issues distilled from the Khomani San case
In 1999  These include: that government has failed to provide water, sanitation, waste management or development in general on the restituted Khomani San land, despite funding being available for this purpose; that a local development plan which arguably should have been in place before the restitution process took place, was submitted to the CRLR only on 17 September 2004 -five years after the claim had been approved. It was furthermore observed that a need existed for clarification of the roles of different levels and departments of government, and for all spheres of government to fulfil their responsibilities in a co-ordinated manner in the land restitution process; and that a Cabinet Memorandum strategising co-operative governance for the Khomani San had been submitted to Parliament by the DPLG only in October 2004.
Several sections of the Bill of Rights were particularly pertinent with regard to the predicament of the Khomani San community. In a normative sense, these included the right to dignity, life, freedom and security of the person, the right to access to health care and services, the right to just administrative action and the right to have the environment protected. As far as development of the Khomani San people and the reclaimed land was concerned, the SAHRC decided not to rely on failed policy implementation. It was, however, evident that the RLRA and the implementation of its provisions do not make provision for the inclusion of socio-economic needs, environmental principles or environmental governance. Furthermore, the provisions of the ECA, NEMA or merely the spirit of section 24 of the Constitution have not received priority in the restitution processes of the past five years. It was also not clear which department could in actual fact be held accountable for the failure of environmental governance on 40 000 hectares of land for example. This may serve to prove that even for the "watch dog" government institutions (institutions 95 For a comprehensive outline of the research methods used in this qualitative study, see the SAHRC http://www.sahrc.org.za/ 13 Apr.

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in terms of chapter 9 of the Constitution), it is unclear who should be held responsible for what aspects of governance in general, but also specifically environmental governance. One of the key recouping recommendations of the SAHRC was that two external managers (a farm manager and a general executive manager) with the DLA as overseer, be appointed to assist the Khomani San community to manage and cultivate land, and to understand the rights, assets and obligations afforded to the community by the land claim.
This case study serves to prove that the environmental initiatives for land restitution discussed in this article, have been critical since the settlement of the very first land claim in South Africa. At the time of this settlement, the DLA was not yet driven by time since the cumbersome pace of the land claims process had not been foreseen. Bearing in mind that the international eyes have been on the government's resettlement of the "first people of Africa", the Khomani San, government had even more reason to see to the flawless settlement of this community. The current pressure on government to speed up the finalisation of the remaining land claims and the possible seclusion of environmental concerns is therefore a cause of concern to be taken up very seriously.

Conclusion
The land restitution process in South Africa is unique in scale and complexity. 96 Land restitution is nevertheless crucial for sustainable development and In paragraph 4 of this article it was aimed to highlight some public law and environmental aspects and basic initiatives for land restitution that may be used by government in remaining land restitution endeavours. Following the overview of the legal frameworks concerned it was suggested that in the process of restituting land in terms of section 25(7) and other land restitution law, environmental harm or damage may be prevented or remedied with a deliberate move by government towards co-operative governance, with an effort to clarify the roles and functions of government departments andspheres involved in land restitution matters, with an effort to comply with environmental-and land restitution law in an integrated fashion, with the employment of environmental impact assessments and environmental 99 Note that currently a number of problems of a socio-economic nature, accompany government's settling of land claims. This article, however, primarily focused on the protection of the environmental human right in land restitution practices and different problems or challenges that are related. This strongly links with the increased emphasis in research on government's role and obligations with regard to social and environmental justice.

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A DU PLESSIS principles and with the timely assimilation of environmental governance and support in land restitution practices.
The particular public law and environmental aspects and basic initiatives were distilled from existing strategies and approaches to be found in related literature. They are regarded as most relevant to address the environmental concerns related to land restitution that were identified as part of the analysis of the legislation concerned, the current modus operandi of the DLA and the facts of the Khomani San case. Some of the concerns raised in this article entail that: • land restitution in general requires a long-term vision that is sustainable as, in its absence, socio-democratic change and development in South Africa (as one of the ultimate aims of the Constitution) may become at stake; • although land restitution is in essence an administrative process in terms of the RLRA, and although government is currently subject to relentless critique in this regard, the impacts of land restitution on the environment have to be assessed and governed in the processes that precede and follow settlement. When restitution takes place in an environmentally blind way, there is not much that government can do afterwards when it is revealed that for example the soil or vegetation in a specific area, is not susceptible to development; • it remains unclear who takes responsibility to make the land policy "work" as well as who takes ownership of the process before settlement takes place or once land has been acquired. Similarly, it is not clear who may be held accountable to ensure or co-ordinate environmental governance of a land claim. Of concern is the fact that the DLA is not positioned to oversee implementation but at the same time no other department has been instructed in terms of law to oversee or to coordinate the process. The skills required to assist in the settlement of new landowners are in many instances not found in a single government department as the needs of people may span various departments. Whilst the DLA, the DEAT and the DPLG have 39/46 been referred to in this article, national government has to investigate the roles of each state body and sphere of government with regard to the socio-economic issues involved in land restitution. This article calls for particular emphasis on secured ecologically sustainable development, pollution control and conservation; • land restitution and environmental law as it exists should be complied with simultaneously and where a conflict arises, development could be used as a yardstick for preferential application; and • environmental awareness-raising, the conducting of environmental impact assessments and the application and monitoring of environmental principles in the processes that precede and follow land settlement, are key aspects that should accompany land restitution despite the need to speed up this process. Some of the detrimental effects where environmental law and environmental principles have previously not been employed in land restitution were hinted to in the Khomani San case discussed in paragraph 5.
Two and a half years remain for government in which to reconsider and revisit its approach to land restitution and the environmental impact thereof. The fasttracking of the land restitution process in practice requires increased consideration of the matters that may be left behind. It may be fatal for the sake of sustainable development to focus on the assumed political benefits and mere property redress without considering the impact on the environment of the thousands of people involved.