The Communal Land Rights Act was framed by the government as legislation that would offer redress to people “whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices”, as proclaimed in Section 25 (6) of the Constitution. The law was enacted in 2004.
However, as many rural people argued, CLaRA in fact would have undermined their security of land tenure because it undercut all the layers of decision-making around land, except that of chiefly power. The CLRA gave traditional councils (tribal authorities under apartheid) wide-ranging powers, including control over the occupation, use and administration of communal land.
After concerted opposition from rural people, the Constitutional Court struck down CLaRA in its entirety in 2010.
The main problems with CLaRA were:
- Parliament followed the incorrect process in passing the Act because it did not involve the provincial legislatures, as it should have done in deliberations that affect customary law; and
- the Act denied security of tenure to at least 16 million South Africans living in the former Bantustans.
Since the Constitutional Court found that the first problem – that of incorrect process and insufficient public consultation – rendered CLaRA unconstitutional, it did not comment on the second problem.
At present, there is no legislation that offers redress to those rural people who are still without security of tenure of land due to apartheid and colonialism. Rural people remain in limbo waiting for CLaRA’s replacement.
To give effect to the constitutional imperatives of tenure security and participation, the legislative process must involve consultation with the broader rural public, in particular women, and not privilege the voices of traditional leaders above all others.
Download the The Communal Land Rights Act in PDF.