Rural land rights in jeopardy*

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More than 2 000 people attended a recent government summit on land tenure security. They included large numbers of traditional leaders, but also farmworkers, farm dwellers, land reform beneficiaries and people living in the former homelands whose voices are often most marginalised in the national discourse.

While there were some divergent views, one of the clearest messages emerging from rural participants was this: people want to choose the form of tenure and landholding structure for themselves, rather than have a model of land ownership by traditional leaders imposed upon them.

Those attending filtered into “commissions” which were asked to make recommendations on land policies.

The commissions were not particularly enthusiastic about Minister Gugile Nkwinti’s new proposals and instead called for the government to improve the implementation of existing laws.

As part of its new Communal Land Tenure Policy, the Department of Rural Development and Land Reform proposes that “traditional councils” get title deeds (ownership) of land in “communal areas”, while individuals and families get “institutional use rights” to parts of the land within them. The policy mostly affects “communal areas” – the former homelands –  where about 17 million people live.

Lydia Komape Ngwenya movingly outlined the problems facing women when traditional leaders “own” land. People who stand up for their rights are threatened with eviction and have no legal basis to challenge this.

The last time title to communal land was transferred to traditional structures was just before the transition to democracy in 1994.

The National Party transferred a very large part of the former KwaZulu to the Ingonyama Trust. It also transferred farms to chiefs who had been cabinet members in the Lebowa government.

Yet the policy conceives of all land in former homelands as subject to chiefs and “tribal tenure”.

The reality is very different. Significant numbers of black people managed to club together to buy land by either pre-empting or subverting the restrictions of the Land Acts of 1913 and 1936.

Others have lived on state-owned “communal land” and practised customary land laws, where decision-making authority around land rights exists at family, clan and village levels.

Under post-1994 land reform, hundreds of elected Communal Property Associations (CPAs) claimed, and were awarded restitution and redistribution land. (CPAs are collective landholding institutions established under the CPA Act of 1996).

However inconvenient to the chiefs, these realities cannot be wished away. Nor can the property rights created in these processes be destroyed without due process of law.

The rights of black land purchasers, people living on communal land and members of CPAs are jeopardised by the new policy’s attempt to centralise ownership and power in state-imposed traditional councils.

Despite the hundreds of traditional leaders in attendance, the consensus of participants was that the new communal land-tenure policy “must abolish tribalism”.

In making this clear, focus groups proposed the following for the future communal tenure policy:

  • The Interim Protection of Informal Land Rights Act of 1996 must be strengthened and vigorously implemented to protect the tenure security of ordinary people from threats to their land rights.
  • Offices of land rights ombuds must be created so that rural people have somewhere to turn to when their tenure security is under threat.
  • Title deeds must be issued to households (as opposed to traditional structures) so as to strengthen their security of tenure. The titles will have conditions attached to help make decision-making more democratic so that men and women have an equal say.
  • There must be a range of tenure options –  not just traditional leaders being given land ownership and control over “communal areas” –  among them, protections for women and widows is essential.

Many traditional leaders at the summit argued that they alone were the rightful owners of the land in communal areas and that CPAs should be abandoned.

But in the “commissions” on CPAs, members of those associations explained in a nuanced and constructive way why this should not happen.

They said people should not be prevented from forming CPAs in communal areas or where traditional authorities exist, as this would deny people’s ability to choose the landholding entity that best fits their needs and their land tenure practices (including customary practices).

Some said that chiefs may have ex officio representatives on CPA committees if they were also dispossessed under restitution.

One participant in the CPA commission said his view was that “we don’t need traditional leaders in our CPAs; we were never a part of that system”.

While Nkwinti opened the conference with a speech in which he lambasted the performance of CPAs, one participant noted that “it is not that CPAs have failed agrarian reform, but agrarian reform that has failed CPAs”.

He and others pointed out that CPAs struggled because of a lack of support from the government.

The commission unanimously agreed that for CPAs to work, the department must establish institutions with capacity to support CPAs. The CPA registrar’s office is small and under-resourced. An improved registrar’s office or other set of new institutions should:

  • Ensure that skilled facilitation is available for setting up and assisting CPAs when they are formed and during the running of CPAs. This includes working closely with CPA members to establish how to balance the land rights and uses of various members.
  • Implement mechanisms to allocate and secure individuals’ and groups’ substantive rights to land and accompanying benefits, in relation to other members of the group and the CPA as a whole.
  • Be accountable to CPAs themselves and not just to Parliament. This means the department must produce annual reports to be tabled in Parliament, but must also open communication channels through which CPA members can reach them for regular reportbacks.

Delegates at the Land Tenure Summit drew on the rich and sometimes painful experiences of their lives to propose clear suggestions on communal tenure and CPAs. It is now up to the government to take those proposals on board.

*This article was originally published in the Sunday Independent and the Sunday Argus on 28 September, 2014.

opinion-grey Tara Weinberg is a researcher in the Rural Women’s Action Research Programme, at the Centre for Law and Society, University of Cape Town.
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