11 August 2017

South Africa: Land Tenure and Restitution in South Africa - a Summary Report

analysis

When the democratically elected government took power in 1994, led by the ANC, three central elements of land policy were announced: land restitution, land redistribution, and tenure reform. We focus on two of these issues - land tenure and the programme of land restitution.

Tenure

At present the land rights of millions of South Africans who hold their land in the former homelands, in informal settlements and on transferred land are uncertain. The 1996 constitution, especially Section 25 (6) of the Bill of Rights, seemed to promise them enhancement and upgrading of their tenure. This has not been effectively done. Tenure is important because these largely African rural communities are amongst the poorest and it is important that their rights are not shouldered aside. For such families, their land rights are a major asset and they should be clearly recognized.

Our approach is to move away from communalist and traditionalist policies and to focus on cementing individual and family land rights. We argue that all South Africans should hold their land in systems that are akin to ownership and as secure as ownership. Such a strategy may facilitate investment and production as well as rural development more generally. We also argue for an urgent new focus on peri-urban land and housing - the state and private sector should try to get ahead of the curve. We suggest that there is a fundamental right to housing but not to agricultural land.

Our proposals take account of key social and economic processes in South Africa. Urbanization continues at a rapid pace. A racially fueled fantasy that urbanization could be restricted lay at the heart of the apartheid system. Land tenure strategies should aim both at facilitating urbanization and creating potential benefits for rural families. A market in residential sites is evident in many parts of the country; land policy should work with these developments.

Communal or customary tenure has and does give some protection in access to land. However, most of the cases that we have come across in which landholders' rights have been threatened, arise when chiefs or other intermediaries have negotiated with outside agencies to allow appropriation of land or have differentially benefited from the proceeds. Private tenure also creates risks in that poor owners can be tempted to sell their assets for relatively low prices because of the urgency of their need for cash. Yet it has advantages. Poor people who wish to move to town cannot adequately realise the value of the property under a communal system and often arrive with little or nothing. Policy need to balance these forces and develop imaginative solutions.

At the heart of our proposal is a recognition of very strong family rights to rural residential and arable plots. Such rights grow from customary practices. There is a great deal of evidence that families held their land securely and that their descendants inherited their land. This is, however, not securely established in law. Our argument - unlike that proposed in the communalist agenda - is that these rights should be recognized and formalized in court decisions and in land legislation.

We are suggesting a three pronged approach to upgrade tenure security.

Soon after the constitution was finalized in 1996, the ANC government, through the Department of Land Affairs, passed three Acts of particular importance in protecting the land rights of those who did not have formal titles. The Interim Protection of Informal Land Rights Act (IPILRA, Act 31 of 1996) attempted to give legislative force to the constitutional provisions in Section 25 and was aimed especially at the former homelands where the strength of customary rights and Permissions to Occupy (PTOs) was legally uncertain. With respect to labour tenancy, which survived notably in KwaZulu-Natal and Mpumalanga, protective legislation took the shape of the Extension of Security of Tenure Act (ESTA, 62 of 1997). The Prevention of Illegal Eviction (PIE Act 19 of 1998) was designed to ensure that those who occupied land informally in urban areas had some protection from removal. The ANC government has largely been sympathetic and cautious in trying to deal with these huge urban settlements, even when they are a result of land invasions and located in unsuitable areas. The priority has been to upgrade rather than remove them.

This legislation has provided some protection and acted as a disincentive to undermining informal land rights. But these Acts, and IPILRA in particular, should be strengthened and backed up by administrative support. Local officials do not take responsibility for enforcing the Act; poorer and more vulnerable families lack the resources to go to court. Whatever the strengths of IPILRA, it seems that there are few mechanisms of enforcement. IPILRA also gives communities the right to deprive individuals or families of their holdings by a majority vote 'in accordance with the custom and usage of that community' with only limited rights to compensation. This seems to us an unnecessary provision.

A second strategy involves working through the courts and legal texts in order to get clear legal statements about the strength of family ownership of land. The Constitutional Court has begun to move in this direction. In Alexkor v Richtersveld Community (2003), a case contested to resolve issues that arose under the implementation of the Restitution of Land Rights Act of 1994, the court accepted the restitution claim by the community over an area that had been appropriated for mining during the 1920s. But they went further in describing the nature of the community's rights to that land. The constitutional court was guided by the need to reinterpret the significance of 'indigenous' or customary law because this is recognized by the Constitution. They were obliged to apply it when appropriate and when it is not at odds with the provisions and values of the Constitution. The judgement talked of rights and occupation as being 'akin to that held under common-law ownership'. The court concluded: 'We have found that the Richtersveld Community held ownership of the subject land under indigenous law'. Richtersveld, as the case was called, opened up the possibility that all communal or customary land in South Africa was held under a form of ownership.

However, the court dealt only with collective indigenous ownership. It did not give a judgement that covered the specific rights of families and individuals in this context. In the Hlolweni restitution case (judgement 2010), Judge Bam, Chief Justice of the Land Court, went further and ruled that the chiefs and former tribal authorities did not have the legal power to alienate land without the consent of those who had customary rights. Claimant families had a form of ownership over the land - this did not rest on being part of a traditional community. However, again there was no clear statement in the judgement that cemented ownership of specific holdings by families or individuals.

Such decisions are important for contemporary South Africa because chiefs are reasserting local authority and in some cases claiming rights over land and development initiatives on behalf of communities. This includes attempts to alienate land held in customary tenure especially in areas where mining has been initiated, such as the platinum belt in North West Province. This same question is now being tested with respect to the removal of people at Xolobeni in Bizana, Eastern Cape.

We argue that most customary systems gave very strong rights to families and that their residential and arable land, once granted, could not be removed except in highly restricted circumstances. Whatever the historical case, the law should be developed, in line with the constitution, so that such rights can be regarded by the courts as ownership. Cases should be sought out that help to cement and clarify such rights. Legal texts on customary law, such as A. J. Kerr, on the Customary Law of Immovable Property (1990) should be updated to emphasise this interpretation.

Thirdly, parliament has already passed an Upgrading of Land Tenure Rights Act (1991, restated with amendments in 1996 and 1998). This allows for flexible extension of land titles but it has not been extensively implemented. We argue that it should be amended and extended. The institutions that underpin and oversee private land titles, such as the Deeds Office and Surveyor General's Office, should be supported and expanded. Forms of ownership are already varied, including co-ownership, and these can be developed to allow for family as well as individual ownership of titles. Updating and expanding titling in peri-urban areas is a priority.

The government has recently tabled a new Communal Land Tenure Bill, 2017 that addresses some of these issues and aims to resolve security of tenure. It does allow for registration and titling of family and individual holdings in the communal areas. The precise conditions under which this can take place, however, are unclear, and the Bill also provides for registration of land by communities and administration by them.

We will comment in more detail on the Bill but argue that there should be greater emphasis on family and individual rights at the core of new legislation. The Bill also allows for the expansion of communal tenure and this requires intensive debate in the light of evidence showing the limits of production and investment on such land. Insofar as the Bill offers a valuable step towards protection, efficient administration and ownership in the former homelands it should, however, be welcomed.

Such individual and family rights should also be cemented in the Communal Property Associations (CPAs) and Trusts that have become the major vehicle for extending land ownership after restitution and redistribution. They now constitute a significant new form of landholding in the country covering about 9 per cent of agricultural land.

Restitution

Land Restitution was quickly put into operation by the Restitution of Land Rights Act 22 of 1994. Restitution was initially envisioned as a limited process to redress land dispossession that occurred through racially discriminatory legislation and practices during the era of segregation and apartheid from the passing of the Natives Land Act in 1913 to its abolition in 1991. Claims had to be submitted to the Land Claims Commission by the end of 1998. This policy was only a small element in the ANC's attempts to redress racial inequalities in landholding. It was aimed at those who had suffered from particular pieces of apartheid policy such as the Group Areas Act in the urban areas and forced removal of rural African landowners in the rural areas.

However, the aims of restitution became confused with broader aims of redistribution, which put pressure on the Commission to resolve many complex claims quickly. The commission was not set up to cope with this task. Moreover in 2014, a supplementary Restitution of Land Rights Amendment Act was passed that reopened the possibility for claims. In 2016, the Act was invalidated by the Constitutional Court but not before over 200,000 additional claims were lodged, some of which were even more broad-ranging. The process has become linked to the reassertion of chieftaincy.

After two decades, some of the initial restitution claims have still not been settled and we recommend strategies for researching and resolving outstanding claims. We argue against the reopening of restitution as a vehicle for land reform. However, if the government meets the criteria required to validate the Amendment Act, it is important that the state agencies, NGOs and lawyers involved are prepared to deal with the many contested claims that are likely to result.

Restitution was an important response to the injustices of the apartheid era. But it was intended as a limited and short-term process - initially to be completed in five years. It has dragged on for more than two decades and if the new Act comes into force, it may continue for many decades. Restitution creates uncertainty amongst commercial farmers and undermines investment and production. Communities who have moved onto restituted land have received limited support from state or other agencies to develop agricultural or income-generating activities. It was not designed as a policy to expand agricultural production or other forms of rural development but as a political strategy to redress injustices of the past. We argue that land reform should now prioritise employment creation, production and economic growth in the local and national economy. It should also recognize the reality of rapid urbanization. Cash compensation can be prioritized. The first phase of restitution should be completed and the policy then curtailed.

Under President Zuma rural policy seems to be moving towards a form of traditionalism, even tribalism. He called on chiefs to take the lead in the new phase of restitution. He and Gugile Nkwinti, the Minister for Rural Development and Land Reform, have called for a pre-colonial land audit. We argue that policy should move on from romantic restorationism or political tribalism. Traditional authorities have been an important pole of power in the countryside for more than 60 years, since the Bantu Authorities programme was introduced. They have presided over an economic decline in the former Bantustans. Their involvement as the major claimants in a new phase of restitution may not only ignite ethnicity and conflicting claims but facilitate elite capture of land and rural resources. Once such intermediaries control land, the likelihood is that tenure will be marked by rent-seeking rather than pro-poor policies.

The best way to deal with injustices of the past is to move forward and not backward.

The latest statistics announced by Minister Nkwinti in parliament indicate that the scale and pace of land reform has increased significantly. Over 8 million ha has been redistributed under government programmes of redistribution and restitution; compensation has been paid on an addition 2.7 million ha. Government holds a significant area and, while there are no available figures, substantial areas of land have been privately purchased by black from white owners. If the existing area occupied by Africans in the former homelands is added, then the total of black landholdings may now be over 25 per cent of farmland - much of it in the wetter parts of South Africa.

The key question is no longer availability of land. Much of the agricultural land in the former homelands and on newly transferred farms is underutilized for farming. While there are many reasons for this, tenure insecurity is one. Security of tenure must now be addressed as a key element in land reform.

Our suggestions rest on evidence about routes that are already evident, and that seem to promise most for the economic future of South Africa and the livelihoods of rural people. We are acutely aware that many rural people wish to move to areas where employment and opportunity is greater. We believe that the opportunities to do so should be maximized in rural and urban policy, at the same time as facilitating more effective and certain forms of tenure and decentralized rural development.

Surely everyone in South Africa can support the ownership rights of rural people - amongst the poorest and most vulnerable - to the specific pieces of land which they occupy. Full titling in a single major national campaign is unlikely to be feasible at present. However, if the existing customary rights over family land can be strongly protected in the ways that we suggest, registration at the Deeds Office can be expanded gradually. Pilot schemes are urgently needed.

Summary of Recommendations

We have suggested a series of practical, attainable policies that will

- continue to provide poor families with access to residential land in the urban and rural areas.

- strengthen rights of existing landholders so that these are 'akin to ownership'

- Amend IPILRA in order to strengthen the protections for family and individual landholdings and provide effective implementation.

- facilitate upgrading of land rights to title, starting in the urban and densely settled peri-urban areas, but spreading to develop one system of landholding throughout the country. Connect these developments with planning for services.

- experiment with pilot projects for the reconfiguration of rural settlements in order facilitate the creation of consolidated landholdings for farming.

- resolve the backlog of over 1 million in registration of titles for RDP houses and update the existing titles.

- restore the original aims of restitution and ensure that claims are fully researched and fairly settled. Where possible unbundle large chiefly led claims.

- appoint an effective research panel for restitution claims and appoint permanent judges to the Land Court until restitution is complete.

- prioritise cash payments for Restitution.

- Ideally the Restitution Amendment Act of 2014 should not go forward. It is an ill-considered act, motivated by short-term political considerations, that will cause uncertainty in the countryside, undermine agricultural production and provide little effective base for rural development for the recipients of land.

- pursue instead a gradual programme of redistribution that prioritises production and rural development both for existing and new landholders.

- land tenure and redistribution policy must take central account of the need for mobility and the realities of rapid urbanisation.

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