In 2010, the controversial Communal Land Rights Act 11 of 2004 was struck down by the Constitutional Court in Tongoane v National Minister of Agriculture and Land Affairs. In an attempt to create legislation that regulates communal land whilst providing security of tenure for those with historically insecure tenure, the government published the Communal Land Tenure Bill of 2017 (CLTB) for comment in 2017. There are a number of concerns relating to the Bill, including the following:
Clause 28 of the Bill provides that a community can, by adopting a resolution supported by at least 60% of the households in the community, choose to have its communal land managed and controlled by a traditional council or a community property association (CPA).
The Bill stipulates that only legally compliant traditional councils and CPAs may be chosen to act as the land administration entity. However, traditional councils need to comply with the composition and election requirements set out in the Traditional Leadership and Governance Framework Act. Also, CPAs must be registered with the Department, in compliance with the Communal Property Association Act. Research has shown that very few councils have actually complied with these requirements and many CPAs struggle to be registered. The Bill formally presents no clearly conceived alternative in instances where neither a CPA nor a traditional council are an option.
In addition, the Department’s past statements that the establishment of new CPAs should be discouraged in areas where traditional councils exist, means that this is an artificial choice. Given that traditional councils exist wall-to-wall in the former homelands, the Department’s policy position in relation to CPAs is likely to effectively curtail the ability of communities to make meaningful decisions about which entity will acquire, hold and manage their communal land.
This Bill will therefore lead to the de facto transfer of communal land to traditional councils. If the Department continues to act in accordance with these policy prescripts and does not amend its position, rural communities will therefore not genuinely have the right to choose a CPA as the institution they prefer.
Section 13(a) of the Bill provides that communal land cannot be sold, donated, leased encumbered or otherwise disposed of unless this is supported by a written resolution supported by 60% of households in the community. These decision-making mechanisms in the Bill jeopardise the land rights of rural citizens in that they fail to differentiate between different types of right holders. For example, some people will have the right to access the land while others will have the right to occupy the land (the right to live on the land). An undifferentiated threshold of 60% also does not necessarily ensure that the voices of vulnerable groups, like women, will be appropriately consulted and accurately reflected in the resolution.
Definition of ‘community’
The Bill defines a ‘community’ as ‘a group of persons whose rights to land are derived from shared rules determining access to land held in common by such group regardless of its ethnic, tribal, religious or racial identity and includes a traditional community’. This definition raises a serious concern about the rights of individuals, families or minority voices and may have the effect of imposing a traditional council-wide construct of ‘community’ on smaller pre-existing groups who often have strong countervailing identities and land rights, whether these derive from common law, living customary law or statute law.
Customary Tenure Systems
The regulatory scheme that is created in terms of the Bill fails to recognise and protect existing customary tenure systems which were and are markedly different from the misconceived notions of communal land rights espoused by the colonial and apartheid governments. The most common distortion of customary tenure systems is that these systems are not wholly collective systems of land ownership void of notions of individual interest. Individuals and households living in communal areas often already have strong legal rights to occupy, use and access land in terms of living customary law and these legal relationships are given official recognition in the Interim Protection of Informal Land Rights Act.
However, the CLTB does not recognise or protect the customary land rights of individuals or families. In fact, the Bill seeks to transfer the nominal rights that vest in the state to traditional councils. The effect of this would be to dispossess ordinary community members of their customary and informal land rights (which are often strongly held rights similar to ownership) and could render many communities less secure that they are at present.
The Department of Agriculture Land Reform and Rural Development confirmed in early 2022 that they are working on finalising the CLTB soon.
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