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Viability of land rights

5 February 2009

Introduction and historical background
The objectives of the Communal Land Rights Act, 11 of 2004 ("the Act") are to provide for legal security of tenure on communal land ("the land"); to award comparable redress if redistribution of land is not possible; to provide for democratic administration of the land by communities; to provide for co-operative performance of municipal services and to regulate certain administrative matters. The Act aims to simplify bureaucracy created by the 1999 draft bill and to synchronise its operations with traditional leadership. It grants communities the status of legal persons who can own the land and provides for procedures to deal with conflicts thereto. It provides, lastly, for a democratic, administrative committee and six Land Rights Boards to ensure sustainable ownership and use of the land.

Previously, traditional ownership of land was uncertain and complicated by colonial rulers and the apartheid government. The latter dispossessed indigenous communities of land and vested racial division of land tenure. Populations grew and the land became over-crowded and impoverished. Past discriminatory practices and gender inequalities lead to a point where redress became critically urgent.

Millions of rural citizens are very poor and have no legal land tenure. Past practices denied blacks the right to own land, which was allocated to tribes and managed by traditional leaders. Most of these people are subsistence farmers on the land, caught in :conflicts resulting from over-crowding, over-utilisation, poverty and disputes with regard to occupational rights. Women became. as a result of communal land practices, second class
citizens with the weakest participation in the dubious benefits offered by the old laws and practices. Many children have to look after Aids orphans and are, similar to women, marginalised in their rights to the land.

The Development Trust and Land Act, 1936 created the South African Native Trust ("SANT") and merged other "native land trusts" into it. The main purpose of the SANT was to own the land in trust and for the benefit of black people.

The focus of this article is to evaluate the Communal Land Rights Act 11 of 2004 in tribal areas and to conclude on its .ability, taking into account its application, effect, economic sustainability and unconstitutionality.

The Act is, more than three years after adoption, not yet in operation. It gave rise to various conflicts, and several factors, challenging the enforceability and its constitutionality, came to the fore.

Objectives and implementation of the Act
The Act empowers women with regard to decision-making forums, land rights and redress, where applicable. It also empowers children heading households and removes discrimination in respect of age. It empowers traditional leaders and enables them to hold land in their own right, without being burdened with administrative duties.

The Act seeks, in general, to reverse the legacies of colonial rule and apartheid by strengthening land rights for the people .living on the land. The overall objectives are, in summary, to address and undo injustices of the past, to effect more equitable distribution of land, to enhance land ownership in order to reduce poverty, to provide security of tenure for all, to develop a sustainable land management system, to foster national reconciliation and to stimulate economic growth.

The Act also applies to 2.9 million hectares of land in KwaZulu-Natal. which land was donated, on the eve of a new political dispensation in South Africa, by the pre-democracy government to the Ingonyama Trust. The donation took place in terms of an Act passed early in 1994 and an Amendment Act in 1997. The latter adopted to provide for certain administrative matters originally not thought of. In terms of the new Act in question, the Ingonyama Land Rights Board will be reconstituted and will be the owner in law of all Ingonyama land in question.

The Act provides, as far as tribal land is concerned, that any tribe can own and control land. A "tribe", for the purpose of the Act is a statutory entity that can own, sell, exchange, donate, let or encumber the land. Alienation may, if it takes place during the first ten years of ownership, only be to a member of the tribe, unless ordered differently by a competent court. After the first ten years, alienation may take place to a non-member of the tribe.

The cornerstone of justification for the Act is that the Constitution obliges parliament to adopt legislation to provide for rural people and communities to obtain secure tenure on the land or, alternatively, to receive comparable redress.

Involved land, parties affected and certain procedural issues
The Act applies to land which is "beneficially occupied" by communities, land directly or indirectly owned by government institutions and land that previously vested in the former, self- governing territories or the independent TBVC-countries. One of the mechanisms used to redistribute land is to apply the provisions of the Communal Properties Associations Act 28 of 1996.

A point of departure of the Act is to move away from certain, defined "old order" rights to land and to replace them with "new order" rights. Some "old order" rights, expressly excluded by the Act, are rights relevant to occupancy, labour tenancy, share cropping, employment contracts and precarious rights of interim occupiers. Although the Act does not define the entire scope of "old" or "new" order rights, the "new order" rights involve tenure rights on the land which have been confirmed, converted, conferred or validated under section 18 of the Act.

The process of securing rights in terms of the Act starts with transformation of a community into a juristic person. Once rules have been adopted and registered for a community, the land can be registered in name of the community and rights can be converted into new order rights. Each process of transformation will start with an enquiry stage, facilitated by a land enquirer appointed in terms of the Act. Each enquirer will have to deal with existing rights, potential and real conflicts, tribal affiliations, interests of the state, restitution claims on the land, gender and age equalities, spatial planning, land use management and comparable redress, to mention merely the most important aspects.

The enquiry phase will be followed by a determination phase, based on the enquirers' reports. Each determination, made in terms of section 18 of the Act, will deal with important aspects like the location and extent of land to be transferred, boundary issues, surveying, sub-divisions and the legal or natural persons to whom the land will be transferred.

Certain sections of the Act, that deal with conversion of old order rights into ownership or other new order rights, are somewhat unclear and it seems as if the Act anticipates diversification of secure rights to land. It is, furthermore, unclear exactly how old order rights can be cancelled and how "impossible" transformation will be determined in order to revert to comparable redress as an alternative.

All new order rights will embody secure tenure, which is a main objective of the Act. Although section 18 of the Act is lengthy and detailed in respect of determination issues, it is strangely ambiguous, vague and leaves many practical questions unanswered.

Transfer, registration, security of tenure and comparable redress
Following Ministerial determination under section 18 of the Act, transfer of the land and registration, in name of the community, takes place. All old order rights are cancelled and the community becomes the lawful owner of rights and obligations in respect of the land, indicated as such in the Deeds Registry.

Whilst it is the Minister's task to ensure that transfer takes place, the land administration committee is responsible for allocation of new order rights to community members and to ensure that such rights are registered. Transfer of the land is preceded by registration in the Deeds Registry of a communal surveyors plan and a communal land register, (i.e. a township register). Such a communal land register enables transfer of new order rights to the community or to particular individuals, evidenced by a specifically instituted Deed of Communal Land Right. All rights have to be registered in the communal land rights register in the Deeds Registry, and in the register and records of the land administration committees.

Some critics of the Act argue that the registration process is inappropriate and is likely to undermine secure land rights of residents. They argue that the Act does not provide for adequate protection of existing rights of occupation, is likely to undermine the rights of females, reinforces distortions of traditional authority, will generate new boundary disputes and does not address existing problems in relation to the land.

Security of tenure, as provided for by the Act, will not enable the owners to use the new order rights as collateral for private funding, which is only possible where the land rights are individualised and properly registered in the Deeds Registry. Factors inhibiting such individualisation are overlapping rights to use the same land parcels, plus the fact that traditional leaders can revoke rights under certain circumstances.

Whilst the Act has been promulgated in terms of section 25(6) of the Constitution, and does in fact respond very strongly to the challenges relating to the land, it is very unlikely that it will enable rural communities and their members to escape poverty and to improve their economic position.

When communal land, already registered in name of a person, Communal Property Association, trust or other legal entity, is being transferred from such owner to a community as provided for in the Act, the receiving community becomes the legal successor in title of such transferring owner.

Comparable redress, which is provided for in the Act as the "only way out" where tenure cannot be secured legally, will in itself be a cumbersome procedure. It may take on the form of a payment of money, transfer of alternative or additional land, any other appropriate assistance for development or a combination of the aforementioned.

In summary, the Act embodies a very strong attempt to ensure secure land tenure or alternative, comparable redress for all those people whose old order rights to the land are insecure, namely as a result of history, traditional leaders' practices, and racial and other discriminatory laws.

Economic sustainability
Questions to be addressed, from an economic sustainability point of view, are questions like: should government invest in infrastructure in the rural areas; will businesses invest in these areas; will the security of tenure be sufficient for farmers; will the farmers develop the land; is there economic justification to introduce the Act? Widespread experience and research, mainly in Africa, Asia and Latin America, proved that individualisation of tenure rights did not give rise to a distinctive class of communal farmers, nor did it have the expected positive impact on production. The research concluded, to the contrary, that much of the demand for titling arose from a wish to prevent the state to give title to someone else.

Following onto research and experience in the last three to four decades, the World Bank changed its land reform policy, originally adopted in 1975, and now recognises that communal tenure systems can be a more cost-effective way to increase tenure security and to provide a limited base for land development transactions.

Whether the land vests in the community or in an individual, there is widespread evidence that investors are not necessarily influenced by registered title. More important is the factor of confidence that society will support their entitlement to harvest the benefits of their investment and labour, that their rights will be upheld by courts, that the underlying agreement(s) are legally binding and that the system will provide long term stability.

Far from being a problem, from an economic sustainability point of view, an equitable, customary system of land tenure can actually be a major asset for a country, that is if it is properly introduced and correctly managed thereafter. It can be argued that certain intangible benefits, like the value of social acceptance, like the Act protects women and children, that it creates new work opportunities, that lifelines will be extended to retrenched industrial workers returning to their roots, are factors that cannot be measured in monetary terms.

Despite the fact that the Act has not yet been implemented, and despite the inequalities of the past, the aggregate value of 'communal based agriculture amounts to R13,0 billion per
annum, almost 2 percent of the gross domestic product. Critics in favour of the Act argue that implementation of the Act will a strong economic multiplier and sustainable eradication of poverty.

If communal ownership is not the problem, what is the problem? The real problem is the widespread insecurity, social insecurity and strong, underlying conflicts that emerge when development planning begins or investment projects are proposed. Critics in favour of the Act argue that all the interim approaches, introduced since 1997, did not have the desire to dismantle the legacies of colonialism and apartheid, that society cannot afford not to take actions to resolve these problems and that swift implementation of the Act must now be a high priority.

Judging from the experience in Africa, Latin American and Asia. acceptable land tenure security is a non-negotiable prerequisite for sustainable production of goods and services, distribution and consumption thereof. Another important economic factor to be considered is the enormous cost of implementing the Act over a period of time. Economists estimate that it will cost the state R8,4 billion to implement the Act over five years.

Thee main cost drivers will be surveying costs, enquiry costs, costs associated with the Deeds Registry, Land Rights Boards, additional staff required, training, extensive and widespread communication, dispute resolution, computer systems, payments in case of comparable redress, to mention but a few of the most important cost drivers.

Implementation of the Act will, therefore, call for a large budget a allocation by the state. Critics in favour argue, on the other hand. that the state cannot delay and will have to take exceptionally hard decisions in order to address the overwhelming poverty in communal land areas.

Constitutional issues
'The Act is being challenged on various constitutional issues, for example that the Act is invalid because the wrong parliamentary procedure (section 75 instead of section 76)was followed, that the Act will be in breach of section 25(6) of the constitution, namely because it will undermine security of tenure, powers to take decisions and to control the land at all levels; that the Act will deprive groups of people of their existing rights within the existing systems; that the Act is in conflict with the provisions of the constitution in respect of racial and gender equalities and lastly; that the Act de facto introduces a fourth tier in government (land administration committees), which is in conflict with the constitution that provides for three tiers (national, provincial and local) only.

A number of communities, for example the communities of Kalkfontein and Dixie in Mpumalanga, Makuleke in Limpopo and Makgobistad in North West, are challenging the constitutionality of the Act. They argue, amongst other things, that the Act discriminates against women, that it makes the communities less secure and not more secure in respect of rights to the land, that it will undermine their ability to control the land at different levels of social organisation, for example at the level of families or other user groups.

Some communities argue that they were put under the wrong tribal authorities during the apartheid era and that the Act will, in fact, confirm and strengthen the legal authority of slightly modified, old structures. Another key complaint, from a constitutional point of view, is that the Act will reinforce patriarchal powers, enabling men to rule and discriminate against women and children. Needless to say that the latter is a very valid, constitutional argument against the Act.

Conclusion
The good intentions, and obvious advantages that implementation of the Act will bring about, are quite clear. It represents a good effort to blend best values and practices in order to bring about long overdue change, to secure land tenure rights, to enhance gender equality, to democratise land administration and to reconcile African tradition with democratic values and principles.

The disadvantages are, on the other hand, equally obvious. Whilst intended to benefit the masses, it will actually reinforce key distortions brought about by colonialism and the apartheid era. It will, furthermore, exaggerate the powers of traditional leaders and impose a top-down, colonial model of Chieftain power. Such empowerment of traditional leaders will make them, the traditional leaders, accountable upwards to the state and not downwards to the people whom they are supposed to represent.

It is, in the final analysis, quite clear that the Act is unlikely to meet the constitutional requirement that land rights on communal land must be secured. It does not, as was clearly intended, provide for protection of group rights and fragmented use rights. It regulates, to the contrary, the individualisation of communal land tenure and supports a distorted version of outdated, traditional authority. The Act should, in view of the serious constitutional challenges that it faces, be reviewed and redrafted as a matter of top priority. What South Africa really needs, is a constitutionally acceptable Act, which will be successful in reshaping land tenure for individuals and rural communities, fair and beneficial toll.

The above article is an abbreviated version of a dissertation done by Ms. Moss as part of her final year studies at Tuks - Editor

Republished with permission from SA Deeds Journal




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