Land Tenure Center Newsletter
Number 78, Fall 1999, p. 1-6
Land tenure in the post-apartheid South Africa is a contentious issue. There are considerable differences of opinion about the rights to be acknowledged, their content, and the way in which they should be protected and secured. That the individualization of land tenure does not necessarily have a positive economic effect is, in Africa, a proven fact. There are indications that some indigenous people do not want security of tenure outside their tribal structure and customs. In such circumstances, security of tenure should be based on an adaptation rather than a replacement of existing tribal structures. But there is a tremendous geographical and cultural diversity among the indigenous people living within the tribal structure in South Africa, and many of these people demand individualized rights. Therefore, it is an important question as to how individualized rights can be obtained within the system of communal property.
The Department of Land Affairs started with an ambitious program of land reform by means of restitution, redistribution, and tenure reforms. Already several new acts (laws) have been promulgated. The most important of these for granting land use rights are:
Ben Cousins aptly remarked: "Land reform must thus make provision for the effective implementation of the new rights-based laws, or the rights defined so precisely in neatly printed Government Gazettes will be little more than paper tigers, and toothless tigers at that" [Proceedings of the International Conference on Land Tenure in the Developing World, (University of Cape Town, 1998), p. 90].
The Department of Land Affairs’ policy on informal land tenure in rural areas is stated in the White Paper on South African Land Policy of 1997:
However, the following problems caused by the lack of legally enforceable rights in property must be addressed:
A model of fragmented use-rights that can exist simultaneously over the same property without an inherent hierarchical structure, but granted and protected by legislation, seems to be the most logical model to choose in a country like South Africa, where there are so many different kinds of land-use to be reckoned with. The most important principle in this regard is that “title” does not necessarily mean “ownership” and that different people can have different forms of title on the same immovable property at the same time. The best way to protect all the different use-rights is to devise a system of publication by registration.
The South African deeds registration system is regarded not only in South Africa but also by foreign jurists as an accurate and reliable system of registration of deeds. However, it is characterized by its exclusivity—a large part of the population, notably people in informal urban settlements and in rural areas where a system of communal property still prevails, is excluded from the deeds registration system. The main reason is either that the land in question is not properly surveyed or that individualization of land-use rights in communal property is not possible at present.
The Development Facilitation Act 67 of 1995 provides for registering or upgrading existing land rights and for registering initial ownership where the process of development and land surveying has not been finalized (section 62). The registered initial ownership may be encumbered with a mortgage or personal servitude and may be alienated as initial ownership. It becomes full ownership as soon as the land surveying and development requirements have been fulfilled. This measure enables the owner to obtain financial assistance at a much earlier stage of the development process by means of a mortgage. This normally results in lower development costs.
Some legislative measures exist to protect the right to occupy and use rural land belonging to farmers or employers. The rights of labor tenants are protected by the Land Reform (Labour Tenants) Act 3 of 1996 and the rights of other laborers in rural areas by the Extension of Security of Tenure Act 62 of 1997. These rights can be registered as personal servitudes, but such registration is expensive, it depends on the cooperation of the landowner, and the procedure does not always protect relatives. A simple registration system should be available in these cases.
One of the most urgent problems regarding land tenure in rural areas is the question of how tribal communal land should be administered and use-rights secured. Overcrowding and conflicting land rights are among the results of the previous policy and administration of these lands. The unclear legal status of the land and the land administration processes inhibit development and investment in the land. To clear this up it is initially necessary to undertake a full land audit of land rights and land use to establish which persons or families are entitled to use the land, then to negotiate settlements and legally binding agreements between the different stakeholders, and finally to register the applicable rights.
In suitable circumstances ownership can be transferred from the state to individuals, families, or groups so entitled by way of ordinary deeds of grant or transfer. However, the Department of Land Affairs acknowledges the fact that the members in a group or tribe are not always interested in ownership and that such transfers will be slow and costly. The reality is that land will vest in the state for a long time. Strong statutory rights should be created to give the occupiers of the land protected use- rights and decision-making powers. Although these forms of land use will be protected by legislation, the holders of these rights will not be able to obtain private loans or financial assistance because the rights are not individualized. To obtain the full financial or economic benefit of these rights it should be possible to register the rights.
The Communal Property Associations Act 28 of 1996 may the land to the benefit of the whole community. Thus there may be no need for the individualization of the property or land-use rights. However, in many cases the individual members of the association or the tribe may have a need to use their land-use or property rights as collateral to obtain financial assistance or development aid, in which case the membership rights will not suffice.
To keep an affordable, accessible register of these statutory, fragmented use-rights, the following principles should be followed:
A system of certificates of use-rights with an additional computerized land information system should provide for the following:
In the case of indigenous communal property, the proposed system of registering an individualized right to land-use can function properly only if these rights are exercised within an existing system of group rights. It has been proven in several legal systems in Africa that the abolishment of indigenous systems disrupts traditional rules, values, and customs that governed the use of land and that provided conflict-resolution mechanisms. Replacement strategies often introduce new institutions of land administration that may not be readily accepted, causing disputes and conflict over access to land. On the other hand, there are cases where traditional leaders have abused their powers, used land under their control for their own benefit, and alienated communal property. Administration of the use-rights should be handled within an adapted system of tribal governance to provide for democratic values like gender equality and democratic decision-making.
The Botswanan decentralized land boards may be a workable solution for the administration of statutory land-use rights and communal property and could be adapted for South Africa in the following ways:
In this way the paper tiger may have sharp teeth, and not a set of ill-fitting dentures.
Copyright © 1999 by Land Tenure Center and Board of Regents, University of Wisconsin. All rights reserved.
Readers may make verbatim copies of this document for noncommercial purposes by any means, provided that this copyright notice appears on all such copies.
Landscape photos courtesy of African Studies slide collection, University of Wisconsin-Madison.
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