Upgrading of Land Tenure Rights Act – a legal-historical context, and points of contention

By Sobantu Mzwakali

There are grave concerns about the legislature and the executive rewriting an apartheid-era inherited piece of legislation into a constitutionally permissible format while ignoring the more fundamental issue of overhauling SA’s tenure recordal and registration system.

While the Upgrading of Land Tenure Rights Act (Amendment Bill), currently before the National Council of Provinces (NCOP), is necessary to reduce the impact on the erasure of certain tenure rights, particularly those held by women, this draft law does not provide a long-term solution to securing tenure in South Africa.

In terms of succession and inheritance, the now-abolished colonial law, the Native Black Administration Act of 1927, implied conversion rights to property into the name of a male “head of the family”. Such laws have historically been used to discriminate against women.

The colonial regimes turned some of the customary rights in South Africa into quick train deeds of grant, permissions to occupy and so on, assuming that by simply changing them into these kinds of tenure systems, it could automatically get rid of all the customary norms that sat behind them.

During apartheid’s dying days, as part of the early steps toward a political settlement the Upgrading of Land Tenure Rights Act (Ultra) was passed in 1991 to allow for the upgrade and transition of some land rights from semi-formal and informal to ownership through registration in the Deeds Registry.

Amongst other things, Ultra was to allow for the redistribution of communal lands to communities with full ownership and focus primarily on two types of land rights: those that extended into criminal areas and those that applied to so-called “black townships” – requiring the creation of township registers.

Ultra bore the hallmarks of apartheid-era legislation: a top-down bureaucratic system that takes as a starting point the state’s right to decide, from the top, who the rightful rights-holder is and to give that person the exclusive status as private property owner.

The dawn of democracy constitutionally placed an obligation on Parliament to pass legislation that ensures that a person or community whose tenure is legally insecure because of past racially discriminatory laws or practices is entitled to either tenure that is legally secure or comparable redress.

The proposed amendments to Ultra were necessitated by the orders of the Constitutional Court in the matters of Rahube v Rahube and Herbert NO and Others v Senqu Municipality and Others, respectively.

In both cases, the Constitutional Court ruled that Ultra was unconstitutional because it discriminated against women’s rights to independently own property; and that Section 3 of Ultra was inapplicable in the former homelands of Transkei, Bophuthatswana, Venda, and Ciskei (formerly known as the TBVC states).

In the Rahube case, Mary Mantshabelle, a 68-year-old woman, resided with her brother, Hendsrine Rahube, who sought to evict her from the house she had lived in and maintained for over 32 years. He relied on the right that was converted in terms of Ultra, which entitled him to full ownership of the property.

In 2018, in a unanimous judgment, the Constitutional Court ruled in Mantshabelle’s favour; the court noted that it was prejudicial for her – as a female – to be removed from the property. By providing automatic registration of these rights and not allowing for competing claims, the conversion process set out in Ultra in most instances prejudiced all women.

The Constitutional Court ordered Parliament to remedy the flaws in the law (Ultra) within 18 months in the Rahube v Rahube case and ordered Parliament to reopen this process for any conversions implemented on or after 27th of April 1994. The committee sought an extension that expires on April 29, 2021.

In the Senqu case, related to the permission to occupy – which was a right applicable to mainly communal areas – the court held that Section 25A of Ultra was unconstitutional to the extent that it excluded the application of certain provisions of Ultra in the areas previously known as apartheid homelands, effectively writing the amendment into law.

These two court rulings forced Parliament to review Ultra, and the Department of Agriculture, Land Reform and Rural Development approached Cabinet for permission to gazette the bill for public comment in February 2020, which was then approved by the National Assembly and submitted to the NCOP for approval, as well as a public consultation, currently under way.

Instead of automatic conversion, the proposed amendments would allow people who want to object to grant deeds to apply to the minister for conversions, and once received, the minister would publish notice of the application “in the Gazette, one local newspaper, relevant social media and the local municipality office” to notify anyone who might want to object to the conversion within an unspecified period, “which must not be less than one calendar month”.

According to the research entitled “Problems around Accessing Information in Rural Communities”, “most people in rural areas are illiterate, they do not have computer skills, access to computer and Internet, are unemployed, and they travel long distances to access information. In addition, there are no public centres where information can be accessed in the community.”

This year alone, the Government Printing Works’ eGazette system went down for almost two months, causing delays in the publication of scheduled national and provincial gazettes.

While the change now includes a Gazette notification process to notify affected parties, it does not apply to how ordinary South Africans access information – particularly most rural women who may be affected by this Act and do not have access to libraries to read the Gazette.

In 2019, I wrote about the findings of the High-Level Advisory Panel on Land Reform, which revealed that women in South Africa continue to bear the burden of oppression and are marginalised by the land reform programme, with women constituting less than a quarter of land beneficiaries nationally.

Despite the government’s claims that women will be prioritised in land allocation, the new bill has been criticised for being gender-neutral. Section 2 says, for example, “provide for equality in the conversion of tenure rights into ownership”. Because this provision does not prioritise women, they will continue to be underserved by the system.

Clause 3 inserts the possibility of an appeal to a court: “Any person aggrieved by a conversion of a land tenure right which took effect from 27 April 1994 may approach the court for an order.”

Rural residents, on the other hand, face a slew of issues when it comes to filing a court case, including territorial, economic, and organisational issues. Territorial issues arise from the geographic separation of judicial authorities from rural areas. Economic issues stem from high court costs and rural residents’ low financial well-being. The lack of the necessary infrastructure in rural areas to facilitate access to courts causes organisational issues.

Legislators did not consider higher courts of law, which are largely inaccessible to the majority of South Africans due to the costs involved, and thus it is not an effective mechanism to protect their tenure rights.

Clause 4 of the amendments reinserts the application throughout South Africa. Making law applicable throughout the country now risks undoing all previous efforts to protect communal tenure rights.

Legislators view ownership as a standard of tenure to an individual with a title deed, failing to recognise the complexity of tenure rights and ownership, especially when it comes to family dynamics and indigenous systems of the country.

This is precisely why Mantshabelle was excluded from the title deed that went to her brother as an individual.

The complicated nature of communal tenure agreements is not well documented by the government, and an alternative mechanism for recording and registering those rights not established.

The tenure of people living on communal land still held in trust by the state remains a prime example of insecure tenure, exacerbated by the government’s inability to adopt legislation that would fulfil their constitutional mandate to secure such tenure and the assumed powers of traditional leaders to treat the land as their own.

To make matters worse, the permission of land rights-holders on communal land is not sought when their land is earmarked for development, for mining etc. They cannot refuse entry and they receive no compensation.

Sections 19 and 20 of the bill provide for the transfer of communal land rights and the holding of the land in trust by the minister and the municipality.

On the surface, this appears to be the problematic model of communal land being transferred in titled private property to “a tribe” or a community – which must necessarily be held by a communal structure such as a traditional council or Community Property Association, with no provision for the protection of household, individual, or overlapping rights.

There are, therefore, grave concerns about the legislature and the executive rewriting an apartheid-era inherited piece of legislation into a constitutionally permissible format while ignoring the more fundamental issue of overhauling South Africa’s tenure recordal and registration system.

The government’s plan to address the plight of women’s landlessness will yield little fruit, and the draft law is incompatible with customary law tenure systems and those that have developed outside of the formal Deeds Registry system.

Sobantu Mzwakali is the senior programme officer at Natural Justice: Lawyers for Communities and the Environment.

This article first appeared in Daily Maverick on 7 April 2021.

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