Minister of Rural Development and Land Reform Gugile Nkwinti’s comments at the Land Divided Conference in March 2013 triggered warning bells about the continued legal void regarding communal land tenure.
This lacuna creates an environment where “people in rural communities are not able to have security of tenure, to have CPAs [Communal Property Associations] and to make sure that all these things… function because traditional leaders block them,” political analyst and gender activist Nomboniso Gasa pointed out after Nkwinti’s speech.
Minister Nkwinti was asked whether the government had a replacement for the Communal Land Rights Act (CLaRA), a controversial Act which was struck down by the Constitutional Court in 2010. The minister replied that one of CLaRA’s replacements would be the Spatial Planning and Land Use Management Bill (SPLUMB). The minister’s response is baffling since SPLUMB, which is currently before the National Council of Provinces, does not address communal land tenure. The minister also indicated that another bill would be in the pipeline “very soon”, saying that his department was “going to consult very broadly on this one”. He said its focus would be on institutionalised use rights within communal tenure.
Section 25 (6) and (9) of the Constitution makes it incumbent upon the government to adopt legislation that will realise the right to security of land tenure or comparable redress. This pertains to people whose land tenure is insecure as a result of past discriminatory practices.
Since 1994, the government has hesitated and stumbled many a time in trying to devise legislation that would realise the promises enshrined in Section 25 (6). This provision on secure land tenure affects an estimated 16.5 million people living in the former Bantustans. The Interim Protection of Informal Land Rights Act (IPILRA), introduced in 1996, was intended as “holding” legislation that would provide a safety net to people living in rural areas until a more lasting solution was developed.
A draft bill entitled the Land Rights Bill was developed between 1998-1999. It provided that the rights to use, occupy and access land in the former homelands would be vested in individuals and groups (as co-owners of a property). It also provided that government institutions like land rights boards would offer support to rights holders. However, the bill was scrapped when Thoko Didiza replaced Derek Hanekom as Minister of Agriculture and Land Affairs.
Didiza described the bill as too complex and requiring too much state support. Instead, she introduced a new bill that was enacted as the Communal Land Rights Act (CLaRA) of 2004. Many rural people however argued that, far from enhancing tenure security, CLaRA would in fact undermine their security of tenure because it made chiefs the sole decision-makers about land. This was one of two severe problems identified in the Constitutional Court case against CLaRA. The other was that Parliament followed an 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. The Court struck down CLaRA on this latter ground.
Prior to the hearing of the CLaRA case, Minister Nkwinti argued that his department had no intention of implementing CLaRA and on this basis there was no need for the case to proceed. The Court decided to continue with the matter but said that it was unnecessary for the arguments pertaining to tenure security to be aired, given the minister’s change of heart.
During the hearing the minister made an undertaking, via his advocate, that replacement legislation for CLaRA would be prioritised and there were already alternatives waiting in the wings. Despite this undertaking, given in 2010, there have been no further legislative steps to protect tenure security in communal areas. Meanwhile, the 2011 Green Paper on Land Reform was released but says nothing at all about communal land tenure – except to indicate, contentiously, that individual land rights are irrelevant to people living in the former Bantustans.
Parliament has not only failed to give effect to Section 25(6) of the Constitution but has also flouted Section 25(9) which enjoins the legislature to enact a law that gives effect to this right. In addition, government has recently made some alarming comments about Communal Property Associations (CPAs) – including Nkwinti’s comments at the Land Divided Conference. CPAs are subject to the Communal Property Association Act of 1996 and allow recipients of the land reform process to own land as a group. However, there is currently a moratorium on the transfer of land to CPAs, at least in the Eastern Cape.
Many CPAs have been in the dark about why they are still waiting for their land. A court case about the Cata CPA in June 2012 brought to light how the government has been put under pressure from chiefs to block CPAs. According to an affidavit, the government is reluctant to transfer land to CPAs because of traditional leaders’ objections that CPAs challenge their authority.
In the midst of the limbo around communal land tenure and CPAs, rural people have suffered most. Several communities in the Eastern Cape are testament to this. In Masakhane, two CPAs are waiting for their title deeds, despite the then minister having signed the transfer forms in 2000. In the meantime, they are vulnerable to invasions on their land by stock farmers. Their land claim is also key to their attempt to secure their natural resources – in particular, the plant Pelargonium – in light of the attempts of multinational companies and the local Imingcangathelo chieftaincy to gain control over harvesting the plant.
The Constitution’s section on property was highly controversial when it was devised because it entrenched existing property rights. But, to offset this, it also obligated the government to devise provisions that would remedy the country’s legacy of inequitable distribution of land. Thus balancing rights to restitution, access to land, and tenure security were included. By failing to give effect to these balancing obligations, the government risks betraying people living in rural areas as well as the principles of the Constitution and the protections it sought to introduce. Minister Nkwinti’s recent comments on CPAs and the envisaged replacement for CLaRA are not a good omen.