Land Tenure Center Newsletter
Number 83, Spring 2002, p. 1-5, 8
In November 2001, a National Land Tenure Conference was held in South Africa as a culmination of an intensive process within the Department of Land Affairs (DLA) aimed at developing a comprehensive and effective national policy on land tenure.(1) The country’s tenure reform program primarily is meant to redress the legacy of dispossession by providing tenure security for vulnerable groups, including farm labor tenants, farmworkers and other farm dwellers, as well as people who presently live under insecure tenure conditions in the communal areas. It also seeks to introduce a more effective and efficient system of land administration in the communal areas, which, as a direct consequence of the apartheid system, is chaotic and unsustainable.
As a participant in the conference, I would like to draw attention to four thematic areas that cut across much of the current debate at the conference and within South Africa regarding land reform:
There has been a certain degree of looseness around use of the term “tenure security.” To some, it has meant security of employment, to others, security of income, to yet others, greater fairness in the distribution of land or wealth. I start with the notion that land tenure security can be broken into three dimensions: breadth of rights (including use, transfer, and exclusion rights), duration (length of time these rights are held), and assurance (certainty of rights). Secure landownership may thus be defined as comprising a full set of use and transfer rights, being able to enforce those rights against the claims of others, having ownership over a sufficiently long period of time to recoup the benefits of labor and capital invested in the land, and having assurance that these benefits can be obtained with minimal risk of loss. Land value will increase when these conditions are present, and decline when they are not.
From where do these rights draw their legitimacy? It is trust between individuals and groups that gives land rights their weight and meaning. It is trust that enables a landholder in customary areas to rent out land to another because he or she has faith that the tenant will return the land at the end of the lease period. It is trust that persuades a landholder to make an investment in fruit trees because he or she has faith that the rewards of those investments will be reaped by him or her alone, and not by others who have not put in the time or money to make that investment. In cases where trust has broken down—and there are many instances in both customary areas and on commercial farms where this is occurring—there is need for a strong central authority to enforce and protect rights in land and wealth.
Does South Africa’s new land policy ensure trust and thereby provide the necessary legitimacy for land tenure security? According to the White Paper on South African Land Policy, land is to be given to the people. According to the draft Community Land Rights Bill, land is to be given to communities as juristic persons. One DLA presentation made clear that the intent of the new draft bill is to recognize the role of communal authorities since they are involved, de facto, in land allocation in customary areas. Traditional authorities have asserted that they represent the community, and certain chiefs argue that their names, not the communities’, should be placed on any title certificate. Furthermore, traditional authorities represent an important part of the governance structure in land, perhaps the only governance, given the lack of capacity and absence of a decentralized government. Yet, there are many accounts of traditional authorities being corrupt, operating in their own self-interest, not being held accountable, or operating outside the limits of law. Women, in particular, appear to be disenfranchised under customary tenure arrangements.
At the conference, the DLA reasserted its position that land is being given to the people, not traditional leaders. Yet the chair of the Congress of Traditional Leaders of South Africa (CONTRALESA) claims that this holds true only as long as traditional authorities do not experience a reduction in status. So to whom is the land being given—the people or traditional authorities?(2) And who is responsible for land administration in customary areas—Government, traditional authorities, or both?
While tenure security on many fronts has broken down, the many different interpretations add to the confusion of what the new draft bill will deliver on the ground. It is questionable whether land will end up in the hands of the people or land rights will be enforced by one authority administering land with one unitary decision-making structure. In instances of multiple authorities vying for or competing over control of land, trust and legitimacy of land rights is at risk.
Is there a solution? In my opinion, there can be only one external agent responsible for land administration. That agent needs to speak with one voice, and that voice needs to convey to individuals assurance that their individual rights in land will be protected. Given the lack of consensus, it is advisable that Government move forward cautiously and gradually with land tenure reforms in communal areas, and that more emphasis be given to consultation to ensure that these principles are attained.(3)
The South African Government is on the right track in developing its land policy framework. Over the past seven years, Government has developed a sophisticated body of legislation, and it is endowed with a first-class system of land registration. It is now recognizing the importance of decentralizing its land administration system to provincial and local levels.
Nevertheless, there have been a number of problems cited with the legal instruments or land policy framework designed to confer rights to individuals:
Customary Tenure Systems. Many problems were cited: overlapping claims, inability to transfer land freely, abuses by traditional authorities, and inadequate incentives to invest one’s personal resources in customary areas. A number of traditional authorities attribute these problems to the twin forces of colonialism and apartheid that distorted customary tenure systems. However true, competition in today’s global markets along with population growth create new demands for tenure security that the systems of old are unlikely to deliver.
Freehold. The high cost of subdivision, survey, and registration are binding constraints to decentralization. People with influence or money often use formal registration processes to speculate in or grab land, while others become entrapped in debt and lose land to banks and unscrupulous moneylenders. On a number of occasions, proposals to extend title in customary areas are met with strong opposition.(4)
Common Property Associations (CPAs) and Trusts. While these are impressive legal instruments, their limitations deserve attention. They give far too little economic incentive to individuals within the community or fail to adequately protect individual rights (the free-rider problem).(5) Also, little attention has been given to entry/exit conditions. These two issues were raised in various contexts. A number of delegates pointed out that CPAs serve the interests of the community but not the individual, and some delegates pointed out the risk of these contracts being hijacked by traditional authorities. One traditional authority asserted that only members of the tribe (not outsiders) should be allowed access to tribal land. Another delegate saw this as a serious concern, wondering how non-members would secure rights. And land loses value in the eyes of creditors when low-cost entry and exit is not possible. Finally, a number of observers pointed out that there are too few incentives to invest in housing or fixed-place investments if one cannot easily liquidate one’s holdings.
The conflicts implied by these differing statements suggest the need to revisit freehold, CPAs, and Trusts in order to discern the correct causes of these problems and to make modifications as necessary. However, these changes need only be modifications to what is already a good body of legislation and machinery of land administration (aside from the issue of decentralization covered below).
Expectations of what law can accomplish have at times been unrealistic. Many of the concerns people have about incomes, livelihoods, and hunger stem from inadequate access to land, not inadequate land rights. To many, solutions to poverty and hunger in South Africa lie less with upgrading communal land rights and more with redistributing land and redressing the 87:13 percent ratio(6) now prevailing. This does not negate the importance of upgrading communal land rights. Rather, it shows that Government needs to find the right balance between land tenure reform and redistribution. According to the delegates at the conference, there is urgent need now for Government to accelerate the latter.
The limits of law are also evident around the issue of securing the rights of farm dwellers. Clearly, many landless and farmworkers want legislation that more vigorously and effectively enforces their access to land and protects their rights. There are many in-depth accounts of abuses by farmowners, appalling living conditions, and insecure employment that farmworkers face.
However bad these abuses, one must question the effectiveness of current policies intended to strengthen the 1997 Extension of Security of Tenure Act or increase farmworkers’ rights to land. The success of the global experience of labor legislation to protect farmworker rights and living conditions has been at best modest. However abusive the current arrangements are between farmowners and farmworkers, one must move beyond rhetoric and reaction to find a policy path that works on behalf of workers, not against them.
Commercial farms in South Africa are highly commercial and indebted operations. Any legal action to increase workers’ rights to land, upgrade housing, or provide minimum wages will typically be interpreted as increasing labor costs and decreasing farm returns. In anticipation of farmworker legislation being enacted, farmowners typically respond by evicting workers to control labor costs and preserve wealth. Government responds with further legislation to close loopholes and tighten legal enforcement, to which the commercial farm community responds with another round of worker layoffs or evictions.
One might eventually reach the point of a minimum core staff whose working conditions might have been much improved by this legislation. However, one often observes other unintended consequences that offset these benefits. Increases in worker costs or perceived actions to increase farmworker rights to land can instead drive commercial farms to pursue strategies that displace workers altogether. We have heard of commercial farms destroying the housing of farmworkers on their premises to avoid legislation that would require housing to be upgraded or that would link residency with secure land claims of farmworkers (i.e., for retirement or graveyards). Some commercial farms cease farming or revert to practices that exhibit low land use intensity. Others pursue game ranching and ecotourism activities that decrease the demand for farmworkers. Still others increase investment in capital machinery (combines for harvest, automated milking parlors, hay balers) that decrease demand for human labor. All at the same time that rural unemployment is a serious problem and is worsening.
Who then is winning and losing in this strategy? It is difficult to see how the plight of farmworkers is improved by these legal actions. And it is arguable whether commercial farms are being effectively pressured into an arrangement where workers are hired and better working conditions provided.
The argument of course could be made that the current law would or could be made more effective in protecting workers’ rights if only it were better enforced or implemented. However true this may be, the legacy of colonialism and apartheid is a government where the capacity to enforce law is extremely limited in rural areas, and where the word of farmowners is often the law in the face of weak local capacity. Strengthening local government is a long-term solution, but in the short term many workers will be evicted and rural employment will decline before the long-term outcome is achieved.
If law, or the ability to enforce law, has reached its limits, what would be an alternative policy framework? One should consider a policy framework that combines farmworker legislation with a more aggressive land redistribution program:
De-link labor and land tenure rights. Formalize land and labor contracts to both increase their transparency and increase their enforcement in a court of law. Minimum wage legislation might fall into this category, but care is warranted to guard against wage levels that increase evictions because labor costs are made too high.
Make greater use of a progressive land tax. Even if such tax is not effective in moving more land onto the market (this point is debatable), such tax will increase revenues that could be used on behalf of farmworkers.
Create tax deferments for commercial farms that subdivide and give land to farmworkers. Or create a program of government transfers that increases employment of farmworkers for conservation or new investment opportunities. Accelerating and widening the land subsidy program would fall into this category, but a number of other “stick and carrot” mechanisms could be devised. The concept of agri-villages seems consistent with this approach, but too few details are known to make this determination.
Facilitate joint venture or equity share arrangements between farmowners and farmworkers. One delegate reviewed the disappointing experience of one such scheme, where workers were inadequately informed of their rights and eventually lost ownership without compensation when the former farmowner sold the farm to a foreign interest. Nevertheless, there are other experiments in South Africa and worldwide that are proving successful when free-rider problems are controlled, clear shareholder rights are protected, incentives to individual ownership are established, and sound business plans are followed.
While clearly the commercial farm community does not favor legislation that increases farmworkers’ rights to land or labor costs, the above policy options are intended to help find a middle ground to accelerate land redistribution, increase rural labor employment, and rebuild trust between farmowners and farmworkers. In addition, Government must endeavor to put teeth in the rule of law that holds commercial farmers fully accountable for illegal actions, and aggressively implements land redistribution to redress the 87:13 constraint.
In many instances at the conference, finding solutions meant calls for more government involvement. Accelerating implementation has both supply- and demand-side implications.
On the supply side, there are requests for Government to intervene to deliver individual land rights, transfer property, subdivide land, facilitate choice of tenure forms, help negotiate contracts/constitutions, demarcate boundaries, register rights, provide proper resettlement planning, mediate or resolve conflicts, and create Land Boards to regulate landownership and transfers. Government is asked to strengthen legal rights of farmworkers, enforce a moratorium on evictions, strengthen courts and legal recourse, and bring greater monitoring and enforcement to bear on commercial farmowners. And Government is also asked to be more consultative and inclusive on its land policy.
On the demand side, Government is being asked to help new landowners gain knowledge about their rights and how to use them. Choices are easy when options are limited, but for new beneficiaries, who for the first time face the prospect of new landownership, the choices are complex and many. What are one’s rights? What is the appropriate role of traditional leaders? What is the appropriate tenure model to protect one’s rights? What is one’s legal recourse? How does one negotiate his or her rights within the community as a juristic person? Until an effective system of land administration is implemented in all areas of the country, the answers to these questions may indeed fall well short of effective enforcement on the ground.
Many delegates saw a great need for Government to decentralize land administration until the detailed questions of responsibility were raised. Provincial offices felt it was impossible given their existing capacity. Municipalities could do the work only if given additional resources. Decentralizing land administration is an excellent idea but who takes the responsibility? Calls for a unitary system of land registration in customary areas or increasing legal recourse for farmworkers ring somewhat hollow against the severe capacity constraints that now exist in local-level administration.
Many delegates felt that Government has been very slow in implementing its land policy of restitution, redistribution, and tenure reform. Professionals at the DLA and other government departments are hard working, thoughtful, and purposeful in their business, yet there is a certain degree of fatigue in trying to address so many problems on so many fronts with far too few resources and personnel. Indeed, the slow pace of the land reform program reflects Government’s capacity limits, and the demands upon it to be engaged on so many fronts and to be the solution in so many cases.
I believe that land reform is a process requiring 30-40 years of intense implementation. South Africa, having completed seven years of its land reform program, has put in place a Mercedes Benz of a legal framework, but a vehicle without the wheels of implementation. The second decade of the land reform program will need to focus on implementation and decentralization with a strong emphasis on strengthening capacity. Yet Government’s reach will never be far or responsive enough to act in so many dimensions at once. The following questions deserve careful consideration: What is the minimum level of government needed (to help improve responsiveness and effectiveness)? What non-government or private sector solutions can aid in facilitating or enabling the land policy framework or government interventions?
What is needed? Certainly expectations need to be lowered. In addition, more priority needs to be given to solutions that reduce Government’s time and efforts in areas that require intensive arbitration, ongoing negotiation, conflict mediation, monitoring, and follow up. (As noted by one delegate, negotiations between claimants and landholders on securing farmworkers’ rights require transactions costs that are perhaps so high as to be unsustainable.) Little attention was given at the conference to economic policy interventions as an aid to, or substitute for, legal solutions. Certainly more attention should be given to public-private partnerships or to private sector solutions, perhaps facilitated by Government. The DLA’s plan to develop an implementation system with targets that are clear and achievable is an important step in reconciling demands on its time with resources it has available; such a plan will not only encourage transparency but will also facilitate consensus building on development of a realistic land administration system.
Overall, South Africa’s land reform is on the right track. In its first seven years, a sophisticated body of legislation has been produced. The emerging focus on decentralization to facilitate implementation seems appropriate. Nevertheless, the four crosscutting themes laid out above deserve consideration in order to reshape a land policy that is more effective in implementation. Finding solutions that overcome these constraints will help to both accelerate the land reform program and begin to find a middle ground around which a land policy consensus can emerge.
(1)For conference “Resolutions,” see http://www.gov.za/reports/2001/sibanda.pdf
(2) The general thrust of the draft bill is that people should have the choice to decide between traditional and alternative models of governance. However, a number of people question whether the intended beneficiaries can effectively make these decisions in rural areas where traditional authorities hold so much control and power over land, resources, and employment. Alternatively, CONTRALESA maintains that the policy instead should make traditional authorities responsible for holding land, but, in addition, create and enforce rules that make traditional authorities accountable through establishment of democratic elections and principles of democratic governance.
(3) One traditional authority asked what is to be done when traditional authorities and Government cannot agree on who is in charge. I see only two alternatives. Either Government and the traditional authorities must divide the responsibilities for land administration (traditional authorities in communal areas and Government elsewhere) or they must return to the negotiating table to hammer out a solution. I prefer the option of Land Boards. In Botswana, these provide tenure security through documentation and leasehold without imposing radical changes on the customary tenure system. Such a Board could include members from traditional authorities, communities, and Government. It was noted that while the role of senior chiefs is diminished under Botswana’s land policy, the role of ward chiefs remains significant. The Board’s decision would also represent one voice as long as decision processes are democratic and enforced.
(4) One delegate wondered why black Africans in communal areas were so opposed to freehold. He pointed out that the white government under apartheid was accused of restricting the benefits of freehold to black South Africans, but now Government is accused of using freehold against the interests of black people. One possibility for why freehold should be such a contentious issue is that processes of sporadic (not systematic) registration are being used, and there is failure to adequately adjudicate rights in the registration process. Other delegates felt that freehold reimposes colonialism on customary lands or creates a back-door policy whereby the power and control of traditional authorities is undermined. As noted by the Attorney General of the Republic of Namibia, it was freehold that robbed Africans of land, so suspicions are not unwarranted.
(5) A delegate inquired whether and how tenure security could be increased with CPAs/Trusts. The approach of combining condominium (or sectional) title to register private rights of individuals within a CPA/Trust holds intuitive appeal. Yet it raises rather large questions about the ability to adjudicate individual rights and to administer such a system given prevailing capacity constraints within Government.
(6) 87% land held by the predominantly white commercial farm sector, and 13% of land held in the former bantustans or reserves. Though some contested these figures, the ratio of 87:13 was the anchor used by many delegates to voice the unequal land distribution needing to be redressed.
Dr. Roth is a Senior Researcher at the Land Tenure Center. From 1996-2001, he served as director of the BASIS CRSP, a global research and training program that promotes economic growth and agricultural development. He is a regular contributor to World Bank and USAID consultative strategy meetings. Currently in residence in Pietermaritzburg, South Africa, he is working on models of equity sharing in Central Asia and South Africa, land reform and resettlement in Zimbabwe, and problems of food insecurity in Ethiopia. He is an associate with the Agricultural and Applied Economics Department, University of Wisconsin-Madison. Dr. Roth will return to LTC in October 2002.
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