“New” land tenure model brings back unconstitutional CLaRA

The government is proposing a communal land tenure model that is a crude version of the model contained in the Communal Land Rights Act (CLaRA) of 2004, struck down by the Constitutional Court in 2010.

This emerged at a workshop on “Redressing the legacy of the 1913 Land Act”, hosted by parliamentary portfolio committees at Parliament, Cape Town, on June 7-8. As part of a presentation titled “Communal land tenure reform – proposed policies”, Director General of Rural Development and Land Reform Mduduzi Shabane presented a diagram on a “communal land tenure model”.

According to the model, single title land ownership would apply to each communal area, which is to be held by a traditional council as the titleholder. These titles would therefore be based on the boundaries created by the 1951 Bantu Authorities Act. The traditional councils’ roles as single titleholders would include land allocation and “adjudication of disputes on land allocation and use”.

During Shabane’s explanation of the communal land tenure model, he used Patekile Holomisa’s chieftainship over the amaHegebe people as example: The land “is currently registered in the name of the state… but we are saying the households of amaHegebe are the owners of this land and their rights must be secured and protected… The inkosi and the royal household are part of the head of this community. The authority of land allocation and use lies with the people but the power to exercise this authority is vested in the form of the traditional institution, the amaHegebe traditional authority.”

The “constraint” of unelected traditional leaders

Shabane acknowledged one of the “constraints” of the model as being “inherited leadership rather than elected and risk of paternalism towards subjects” and “weakened custom and cultural role of the traditional authority”.

The framing of Shabane’s presentation contradicted its allocation of primary land responsibilities to unelected traditional leadership. He framed his presentation with reference to the 2011 Green Paper on Land Reform’s guiding principles for land reform policies that include:

  • Deracialisation of the rural economy;
  • Democratic and equitable land allocation and use across race, gender and class.

Shabane listed some “expected outcomes” of the proposed land tenure policy that also contradicted the proposed model’s elevation of unelected chiefs:

  • Strengthened land rights for all communal area households, especially “those most vulnerable to tenure insecurity”, e.g. women.
  • “Democratic land governance” in which households and the state “hold authority over land rights” and traditional councils “take responsibility for fair and equitable management, land use and resources”. Shabane pointed out that this “outcome” is to give effect to a decision made at the ruling ANC’s national conference held in Polokwane in 2007.
  • “Households, as opposed to individuals”, as the “basis” for communities’ “ultimate authority over land”.

Shabane’s emphasis on “households as opposed to individuals” as basis of the new model was echoed by Holomisa, who made a presentation to the workshop that emphasised membership of a family as being a pre-condition for access to land. The chairperson of the workshop, human settlements portfolio committee chairperson N Dambuza (ANC), afforded Holomisa an earlier slot on the programme “because this is the key issue”. Holomisa, who is an ANC MP and chairperson of Parliament’s Joint Constitutional Review Committee, addressed the workshop on behalf of the Congress of Traditional Leaders of South Africa (Contralesa).

Women’s access to land dependent on family

Holomisa stressed that women’s access to land depends on whether they are part of a family. He suggested that a woman could only exercise the right if her family is without a man who could head it: “The colonisers have again distorted our law. Land belongs to a family, not to an individual and therefore when a man has to apply for a piece of land he must meet certain criteria. First of all he has the responsibility… there are people he has to look after… if you are given land as a man, it is not for you as an individual but for you as a family. Therefore there is no way that a woman cannot have access to land. Everybody has access to land automatically. It is just a question of the mechanism. If you are a woman and you’re not married but you have dependants you are entitled automatically… you can get that land in order to provide for your dependants.”

Also addressing the workshop, ANC Chief Whip Mathole Motshekga acknowledged that women have “always” enjoyed the right to land. He did not qualify that this right hinged on their attachment to a “family”.

“Born to lead”

Holomisa thanked the organisers for inviting traditional leaders to share their views of the effects of the Land Act “on the lives of the people we were born to lead”. He dismissed the “fallacy of blasé labelling of traditional leaders as stooges and collaborators in the loss of their people’s land” as this is “not borne [out] by historical fact. Every institution that held the responsibility to uphold the law was subjected to the unforgiving onslaught of the apartheid state. No one could escape without sanction of one form or another – lawyers, teachers, doctors, civil servants, magistrates, the police were perforce implementers of apartheid policies”.

Communal land ownership only allowed if tribal

Shabane, Holomisa and Motshekga are of one mind about the denial of communal land ownership to non-tribal entities, such as communal property associations (CPAs). Motshekga alleged that government policy allowing CPAs created an “artificial conflict” as “younger people” elect leaders to constitute CPAs, against which “royals” have to “defend their land”.

Holomisa called government’s creation of CPAs “folly” and accused CPAs of laying land to “waste” due to squabbles among CPA leaders, compounded by a lack of post-settlement support. He argued that an “elementary fact is the truth that when Africans were dispossessed of their land, they were ruled by their traditional leaders, who served as the custodians of their natural resources, including land… It stands to reason that when such land is restored, it should be placed at the disposal of its custodians, the institutions of traditional leaders… traditional councils of our times, suitably transformed and democratised, are well placed to take repossession of restored land in line with African culture”.

Holomisa explained his interpretation of “African culture” as: “In the culture of the African, land is in the custodianship of the traditional leader. This makes it possible for the leader to avail land to the families and individuals who need it – of course, at a nominal fee, which should go to the coffers of the traditional council.” He added that companies with mineral rights licences should “cede some of their shares to… communities, purely by reason of the fact that they own the land”.

While Shabane’s diagram on the proposed communal land tenure model mentioned CPAs alongside traditional councils, municipal councils and trusts, he did not address CPAs directly in his presentation. ANC MP Phumzile Ngwenya-Mabila pointed out that CPAs were created as vehicles to take control of restored land. DA MP Mpowele Swathe questioned how traditional leaders could lay claim to land that victims of forced removals had won through restitution. Shabane did not address such questions directly. He called CPAs a “problem” as government does not want to create “another institution on communal land”.

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