Who owns the land in South Africa’s communal areas? 

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The issue of land ownership and governance in communal areas continues to be hotly debated. Two broad views prevail. One is that traditional authorities are the owners of the land. The other view argues that residents are the owners and traditional authorities hold the land in custody, on behalf of the residents.

In his article entitled “Communal land is private property” (Daily Dispatch 6/6/18), Nkosi Phathekile Holomisa accused former President Kgalema Motlanthe of thinking as “colonial and apartheid rulers” by implying that land under traditional authorities should be state land.

According to Nkosi Holomisa, this view is mistaken as it does not take into account the number of wars traditional authorities had waged in defence of the land. He also warned that among the dangers of making land in rural areas state land was that rural residents could lose their properties, like poor people in low cost housing in urban areas who sell their houses to foreign nationals.

As “custodians and administrators in communal areas”, Nkosi Holomisa then calls for the land in these areas to be registered in the name of traditional authorities. Although stressing that the land belonged to “rural communities and traditional leaders”, he proposes that a “single title deed” be issued in respect of the communal land. He adds that “the legal entity in whose name the title deed should be issued is the traditional authority”. This, in simple terms, is telling rural residents that they should hand over ownership of their land to traditional authorities.

Nkosi Holomisa’s views are not representative of the views of traditional authorities within the Congress of Traditional Leaders of South Africa (CONTRALESA) though, certainly not traditional authorities in the Eastern Cape. In an opinion article entitled “African royalty must lead as change agents” (Daily Dispatch, 14/5/16), Prince Zolile Burns-Ncamashe pointed out that “Land is not an exclusive Pty Ltd asset on the basis of a feudal-vassalage structural arrangement but an asset of the nation, communally owned by the nation”. He then concluded, “(T)hus any notion that the land belongs to traditional leaders is historically flawed, politically distorted and academically unsustainable. The land belongs to the communities”.

Prince Ncamashe presented this view, as the Deputy Chairperson of the Eastern House of Traditional Leaders, in a provincial sitting of CONTRALESA’s general council in Mthatha in April 2016. Thus, there is a no agreement among traditional authorities regarding land ownership in communal areas.

Nkosi Holomisa also accuses those arguing that rural land is state land as being paternalistic to the rural residents. He charges that this view believes “Africans cannot deal with their land in a responsible manner and need to be baby-sat…”. However, he is guilty of the same paternalistic attitude by arguing that rural residents will end up losing their land if it is made state land. In other words he wants traditional authorities to be the ones to baby-sit and protect rural residents.

Yet, there are cases of traditional leaders doing exactly the opposite by abusing the land of rural residents. The ongoing struggle in Xolobeni is one such example where a local chief decided to abandon the people he leads and become a Trustee of the mining company that wants to exploit the residents’ land.

In Centane, landholders are up in arms against traditional authorities who have entered into agreements with a company to use the land of rural residents to plant maize and special beans for fuel. Residents have lost control of their land as the company, with the support of traditional authorities, does whatever it wants on the land.

In Manzimahle, a headman appropriated funds from a road construction company by selling crushed stone from the community’s land and failing to account for the funds.

The above cases show that traditional authorities are not as trustworthy as Nkosi Holomisa makes them out to be. Moreover, the accountability of traditional authorities is also very questionable, as the cited examples show.

As paid state functionaries, traditional authorities are not as accountable to the communities as we are made to believe, but are accountable to the state. Thus, I concur with Mr Motlanthe’s argument that rural land be registered in the name of democratic structures of the communities’ choice.

Additionally, the notion that traditional authorities are the only ones who can act as custodians of the land on behalf of rural residents is mistaken. Actually, some traditional authorities have deserted that responsibility. Communities can develop democratic entities that are both responsive and accountable.

This article first appeared in the Daily Dispatch (East London) on 10 July 2018.

 

 

opinion-grey Dr Fani Ncapayi is a Research Associate of the Centre for African Studies, University of Cape Town (UCT), and a Senior Researcher for Inyanda National Land Movement. He writes this article in his personal capacity.
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