Background of IPILRA
When the Constitution came into effect in 1996, it sought to restore what had been lost by recognising and protecting the underlying land rights of vulnerable people. It sought to give secure tenure to land for people that had been deprived for hundreds of years as a result of racist and sexist colonial and apartheid laws, policies and practices.
There are two important sections in the Constitution that deal with land rights and tenure security.
Section 25(6) of the Constitution provides a right to tenure security:
A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
And section 25(9) of the Constitution requires that Parliament pass a national law that gives effect to the right to tenure security:
Parliament must enact the legislation referred to in subsection.
How does it protect rights to land?
It specifically deals with customary rights holders in the former homelands. Land held in terms of Permission-to-Occupy Certificates (PTOs) and other certificates that were issued by the apartheid government and rights held in terms of living customary law systems – must be respected and treated on a similar basis to “formal” rights like title deeds.
IPILRA was intended to be a temporary law that protected people against the deprivation of their land rights until a more comprehensive, permanent law could be passed. No such law yet exists. Which has meant that IPILRA is consistently renewed by Parliament annually.
IPILRA rights remain legally valid however, and people can insist that they have the right to say no to developments which deprive them of informal land rights. If they say no, then government or the developer must go to court to apply for an expropriation order.
Rights protected by IPILRA
IPILRA recognises different kinds of informal and customary land rights. These include:
- The right to occupy, use, or access land that is situated in one of the former homelands or that had previously been in the hands of the South African Development Trust.
- The land rights of people who are beneficiaries in terms of a trust that was created by a law passed by Parliament e.g. the Ingonyama Trust.
- The rights of people who use or occupy land as though they hold rights to the land as set out in the Upgrading of Land Tenure Rights Act even if the person is not formally registered as the holder of the right. This would include PTO’s.
- The rights of anyone who has continuously lived on the same piece of land (anywhere in South Africa) since the beginning of 1993 as if they were the owner of the land. These people are called beneficial occupiers.
IPILRA does not apply to:
- People who hold rights as tenants, labour tenants, sharecropper or employee if that right is purely contractual in nature.
- People who hold rights that are based only on temporary permission given by the owner or a lawful occupier, on the basis that the permission may at any time be withdrawn by the owner or lawful occupier.
How does IPILRA protect rights to land?
Where the land is held communally – meaning held by the community or a portion of the community on behalf of the members of that community or group – IPILRA specifies that persons of that community may only be deprived of their rights in terms of living customary law. But as a minimum, those directly affected are a priority for appropriate compensation.
Deprivation of informal rights to land – minimum requirements
- No person may be derived of an informal right to occupy or use land without their consent;
- No person may be derived of an informal right of access to land without their consent; provided that
- where access to land is shared by a group, a person’s informal rights to access land may not be deprived without the consent of the group in terms of the customs or practices of the group; and
- the customs or practices of the group shall be deemed to include at minimum that a decision that affects access rights may only be taken by a majority of households who will be deprived of access by the decision.
- No consent granted in terms of this section shall have legal effect if it is not recorded as required by the Act.
- The rights established in this section are subject to the provisions of any law which provides for the expropriation of land or rights in land.
Where living customary law requires more than this, living customary law must be complied with.
Who is required to comply with IPILRA?
The provisions of IPILRA bind all persons, including the State. “All persons” includes companies such as development companies, mining companies; also, private individuals; traditional leaders; and government departments.
How are the different rights protected by IPILRA?
A good way to understand what rights IPILRA covers; how the rights must be treated and how to lawfully deprive someone of those rights is to think about who holds the rights: Is it an individual? A household? Or is the right held by the community – or part of a community – on behalf of its members?
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