11 August 2017

Africa: Comments On the Communal Land Tenure Bill, 2017

analysis

This is a very wide-ranging Bill that aims to cater for most of the land in the former homelands as well as land transferred to African communities since 1994. It is a potentially flexible piece of legislation that attempts to open up a number of different scenarios for tenure on 'communal' land. In addition it offers different outcomes in regard to the administration of that land.

This Bill directly addresses key clauses specified in the Constitution of 1996 and also a neglected element of land reform and landholding in South Africa. Tenure reform was a central aim of the original land reform proposals after the transition to democracy in 1994. Section 25(6) of the Bill of Rights in the 1996 constitution required that the government upgrade to 'legally secure tenure' the landholdings of those who held land in insecure systems. I will call such tenure 'off-register' in that it is not at present formally registered in the Deeds Office. While some legislation protecting such landholders against deprivation of their holdings was passed in the 1990s, legislation defining and securing off-register rights has thus far failed.

The Bill of Rights also specifies in Section 25 (5) that the state must take reasonable measures to 'to foster conditions which enable citizens to gain access to land on an equitable basis'. The Bill attempts to incorporate this formulation but it is a problematic clause, difficult to interpret and enact, because it does not specify whether the land involved is residential or agricultural or both.

At the heart of this Bill is a fundamental dilemma with respect to the future of land tenure in South Africa. Should communal or customary forms of landholding be protected and expanded? Or should private property gradually be expanded to cover the country as a whole. The majority of South Africa's land surface is privately owned, but it may be that the majority of landholders have customary, communal or informal rights. This is because the holdings in the former homelands, in transferred areas and in informal settlements are generally small. This Bill affects very largely black landholders, including many poor rural people. It is important that their rights are not shouldered aside.

Although this is not entirely clear, the Bill seems to allow for both directions through choice by local communities. It attempts, in certain respects, to be all things to all people. My reading, however, is that even though the Bill allows for registration and private ownership by title of individual landholdings in the present communal areas, it favours a communalist direction. This is because the key grouping in making decisions about land is an unspecified 'community'.

This memo discusses the detailed content of the Bill, which should also give some familiarity with its proposals and apparent uncertainties. Questions and comments on the Bill are numbered and in bold print. At the outset, I will make a few general critical comments on the implications of the Bill and whether it will secure its main aim: legal security for 'persons and communities' who already hold some form of right to land.

General: The Bill seems simultaneously to create major new demands on the Department of Rural Development and Land Reform, and on the Deeds Registry, while also offering a highly devolved system of decision making about tenure and land administration.

The planned legislation seems:

to be top-heavy in its requirements from the Department. In its present form the Department it is unlikely to cope with implementing this Act on a national scale

to lead to over-localisation of decision making and choice by communities

to introduce too many layers of local administration over land

The Bill may not be effective in providing legal security for existing individual/family landholdings because its primary focus seems to be on creating community ownership. Many of the threats to family landholdings come from elements in 'communities' working with outside agents. Is it necessary to make communities the owners of land? Surely this should be reserved for the landholders and the broader groupings should be involved in the administration of land. The bill should concentrate on protecting the land rights of individuals/families.

Surely pilot schemes in each province should be attempted before the Bill is enacted. It has taken over 20 years to develop this legislation and yet it has not been tried out. In the interim, the main aim of the Bill, legally secure landholding, may be effectively realised through other routes including the enforcement of existing legislation such as the Interim Protection of Informal Land Rights Act, the clarification of customary law, and the extension of Upgrading Act.

Procedures for Change

It is important to understand at the outset that the Bill attempts to deal with two levels of landholding simultaneously: community-held and individually-held land. It attempts to recognise the social realities of many communal/customary areas in which individual holdings and rights intersect with those of wider groupings. For example, individuals hold residential and arable plots, while a broader grouping, called a community in the Bill, may regulate grazing and other common land to which individuals have access.

The Bill also applies to settlements on land owned by the state and guarantees rights of use by individual landholders on that state land. It also seems to apply to land held by Trusts and Communal Property Associations.

The Bill aims to provide legally secure tenure in relation to communal land by converting land held by a community into ownership by that community. It also guarantees the rights of use of those community members who hold land individually on that converted land. In certain circumstances it appears to offer private title for individual landholdings, should the community in which such landholdings are located choose to take this route.

Before any changes are made in landholding, certain procedures are necessary. The wording of the Bill suggests that the Minister of the Department of Rural Development and Land Reform will initiate the process of change in landholding. However, it does not seem that this will be done on a national, provincial or even district basis, but community by community. We should assume that the process can also be initiated by a community approaching the Department but this is not clearly laid down in the Bill.

How will the process work? At the outset three issues seem uncertain.

It is not clear whether the process should be initiated by the Minister (the Department) or whether a 'community' can do so.

It is not clear whether all off-register communal land that is not held as private property will be subject to this process or whether it is voluntary. This applies also to Trusts and CPAs that hold land as private property but whose members do not.

The geographic extent of 'community' is not specified. This is a critical issue. In section 1 on 'definitions','community means a group of persons whose rights to land are derived from shared rules determining access to land held in common by such a group regardless of its ethnic, tribal, religious or racial identity and includes a traditional community'.

This is helpful in the sense that it excludes communities of identity and seems to lay emphasis on geographical communities. However, the inclusion of traditional community may be contradictory or at least paradoxical here. Is someone who regards themselves as a member of a traditional community but lives outside of the area in which 'shared rules' are accepted a member of the community for the purposes of the Bill?

Is the community with shared rules intended to mean a group settled within an existing political boundary, such as a municipality or a ward? If community implies a unit that derives shared rules from customary practices and retains boundaries from the homeland era, such as an old Tribal Authority area, or a traditional council recognised under the Traditional Leadership and Governance Framework Act (2003), then it is more likely to come under the influence or control of traditional authorities. This seems to be implied in some sections of the Bill.

If it is a smaller village grouping, then there may be more diverse strategies for landholding? How small a group can act as a 'community' for the purposes of the Bill. If a cluster of ten families living in the same area wish to have 'shared rules' expressed as private rights to their land, can they apply to the Department separately from a larger group around them?

Quitrent or individual Glen Grey holdings in the Eastern Cape have in theory been upgraded to private title. But some of these exist within districts where there are also areas of former 'Permission to Occupy' or communal tenure. Which 'shared rules' will shape the community in this area.

Is the implication of starting with the imprecise notion of community that there will be a great deal of confusion in the implementation of the Act and that it is better to start with individual/family landholders?

Following the decision to begin the process, the Department has to appoint a 'land rights enquirer'. This can be an official or other person, including assistants. If they are not members of the Department, they will be paid. It is their duty to liaise between the community and the Department, and 'enquire into the nature and extent of land rights' as well as the options for ensuring secure tenure. The Minister must publicise this enquiry in the media, 'inviting interested parties' with a time deadline. The enquirer must take written or verbal evidence and convene meetings. At the end of the process, the findings must be made public.

At this point, the Minister, after consulting the community, and resolving any disputes, makes a determination of the land to be transferred to the community and individuals in that community. Some of the land can be reserved for the state in consultation with the municipality.

There will be thousands, maybe tens of thousands, of enquiries, on a scale similar to the restitution process. Is the state ready for this? A new sub-department with extensive staffing will need to be set up. Are enquirers to be trained and how? The enquiry process may be labour intensive and take a long time. It may be costly if enquirers are paid.

Possession or Ownership of Land and Registration

Section 11 specifies that following the determination, or the detailed assessment and dispute resolution of the land in question, the community receives a deed of communal land. It then has to meet in order to decide what kind of tenure it prefers for the individual landholders - that is: 'the nature of rights to a subdivided portion of communal land designated for residential, industrial or commercial purposes'. They can choose ownership, right to use, a lease or any other right existing in law. They must do this by applying their 'community rules'.

Sections 26 and 27 note that a community 'becomes a juristic person upon receipt of a deed of communal land' and the community rules are based on this new capacity. Community rules must be adopted by a 60 per cent majority of households (not 60 per cent of landholders). These rules would include, for example, the nature of rights to the subdivisions, alienation of such rights and the uses of common areas. Decisions need to be made by inclusive and democratic processes. The rules need to be set down and submitted to the Department and are 'binding on the entire community'.

Section 18 specifies that in cases where communities choose to give ownership of subdivided portions of land to the landholders, then that individual becomes owner of that land. But the community remains owner if it decides only to allow use or rental. Ownership can be constrained by conditions and community rules. This includes constraints on sale of land. A community can also develop rules that enable conversion of rights to subdivided areas into ownership 'after an uninterrupted occupation by the same person'.

Sections 9 and 17 provide that a 'general plan' or a land use plan must be developed that outlines the areas to be designated for subdivision and for other uses including services and conservation. The Minister 'may prescribe the format for the general plan for communal land'. This sounds rather ominous in that is suggests a replication of Betterment planning but it seems that it is optional. (The term 'may' rather than 'must' is used.)

At some stage a survey is also needed. It is not clear whether this will be done as a survey of the perimeter of the land, when the determination is finished and the deed of transfer made to the community, or whether it will be done when the general plan has been done.

If secure legal rights cannot be provided then landholders are entitled to 'comparable redress' or compensation.

There is a lack of clarity as to sequence. It appears that the community deed of transfer arrives after the determination but before the community make its decision about the form of landholding? Surely the latter will influence the deed? The community deed of ownership for the whole area will surely be affected by the status of the individual landholdings? Similarly the meetings that develop the community rules and the land use plan may affect the deed of ownership.

The timing of the survey is also unclear.

The sequence can only really be tested through practice and this uncertainty underlines the need for pilot implementation before the Bill is passed.

There is uncertainty as to the character of the individuals involved. They are generally referred to as 'community members'. In the section on 'Definitions' a community member is a person born into a community, or who assumes membership of a community and who lives permanently in that community regardless of gender, ethnic, religious or racial identity.

This is useful because it defines communities geographically and it is gender neutral. Thus women will have equal rights to occupy and own land in communal areas - it is very important to have legal clarity on this point.

However, the Bill does not specify how long an individual has to live in a community in order to be considered as someone who has 'assumed' membership or who lives there permanently. There should be a clear statement of time because it appears that under the current wording, an individual who is not a member of the community cannot own land in that community. Surely this is not the intention of the Bill? Surely the right to own land should not be related to the assumption of an identity - especially because the 'definitions' in the Bill seem to exclude identity as an element in being a member of a community. Would it not be better to word this in a different way and simply talk of an individual owner or landholder, and not a community member.

The Bill does not seem to make provision for family ownership or co-ownership. Families are generally understood to have some rights in land in communal areas. The exceptions are indirect in that Section 13 gives families some rights of consultation before sale.

Even though ownership is permitted, sale is constrained. Under section 13 (a) communal land cannot be 'sold, donated, leased, encumbered or in any manner disposed of without a written resolution to that effect supported by 60 per cent of households of the relevant community'. This is a different wording to 'community members'; are all households also community members? It seems to require that a household as a whole votes. This should be clarified.

In section 13 (b) a subdivided portion of the communal land cannot be sold or donated to a person 'who is not a member of that community' without the consent of the owner's family, members of the community and the state.

This is particularly important because it allows significant legal restrictions on ownership by the owner's family, without defining the nature of the family. It also restricts sale outside of 'members of the relevant community' and hence - as noted in question 6 above - lays particular significance on precision in legally defining a member of the community.

This is clearly designed to restrict any purchase by corporate entities or outsiders unless there is widespread agreement. The result is ownership with a very restricted market. In many communal areas, there are already transactions in land.

It seems that on the whole, while a community can decide to allow individual ownership under the Bill, a community can, and in section 13 must, also constrain individual ownership by what is in effect a higher level of community ownership. Thus the Bill may act to protect individual landholdings through permitting ownership, and this is in my eyes a valuable development. But it also restricts a freehold ownership and this is very likely to lead to conflict.

It is not clear which different types or parcels of land are available for subdivision and ownership by individuals. Section 17 mentions a number of different functions of land and seems to suggest that subdivided portions can include residential, agricultural, industrial and commercial sites.

In the bulk of existing settlements, the individual or family sites are residential and arable. Is it up to a community to decide whether both of these can be owned? Can a community agree to subdivide all of its land, including the communal grazing areas, into privately owned subdivisions. This would follow practice in some parts of Kenya (for example much of Machakos district) and is certainly worth a pilot programme. It would produce contiguous privately owned farms that might well facilitate investment and production.

The Bill further provides that some land will continue to be owned by the state, but it gives communities and community members the right to use land owned by the state. The key question that arises here is whether the state intends to increase the amount of land which it owns. For example, it seems that the Department is increasingly reluctant to grant ownership to CPAs of land transferred from white farmers in both the restitution and redistribution programmes. Does this Act imply that it will now do so.

Registration

Following the determination and at the time of the transfer of ownership, the land must be registered. This involves registration in the name of a community and, if a community decides to grant private tenure over the individually held sub-divisions, then each of these must be registered in the name of the owner. If the community decides that it will only give rights to individuals to use or lease land then the subdivided pieces of land must be registered in the name of both the community and the community member.

It appears that Registration must take place in terms of the Deeds Registry Act. This would usually be done through a conveyancer but it can be done by an official of the Department who is qualified to act as a conveyancer. The costs of the registration must be paid by the Department. This responsibility for the initial costs follows the precedent set in the Upgrading of Land Tenure Act of 1991 and 1998.

If I have understood these provisions clearly, there will be a massive new demand on the Department and on the Deeds Office to register both community ownership and millions of individual landholdings. I may be misunderstanding this provision but it seems that even the individual landholdings that are not privately owned will be registered at the Deeds Office.

It is reported that there is already a backlog of over a million titles resulting from RDP housing grants. If this Bill is to be successfully implemented, the state will need to put massive new resources into creating a conveyancing section of the Department and into supporting Deeds Registries in order to catch up with the existing backlog and prepare for the new rush of registration. The state does not appear to be enlisting the private sector effectively and this Bill will require effective training of a large number of skilled personnel to work in government. The Bill could not be implemented without a huge increase in well-trained officers that will require major funding.

In a confusing provision, however, section 29, 1 (c), it appears as if a community that becomes owner of the land must keep a register and record of land rights in communal land and of transactions affecting such rights.

Does the Bill require two different processes of registration? - a process through the Deeds Office and another, separate local process? This section appears to require a local process. It is not clear why two processes are needed and how records will be kept. Will there be a national record and national rules with electronic records that can be made available locally? The wording makes it sound as if there will be a separate local register. This is surely a problem because many local communities may not have the means and skills to keep a land register. These will surely be uneven and make any legal case or dispute resolution difficult because there may be different local registration practices and rules.

Equitable Access

The Bill aims to 'enable access to land on an equitable basis' and Section 5, 7 (c) provides that before a determination is made consideration should be given to 'the need to provide access to land on an equitable basis'. This formulation derives directly from clause 25 (5) in the Bill of Rights in the Constitution. This is a fundamental issue because it is unclear which kind of land is referred to. Although there is a great deal of variation, at present many settlements in the former homelands are divided into:

residential areas with gardens, usually with plots between about 0.1ha to 0.25ha although they can be bigger - up to one hectare - especially on the outskirts of villages. There are no national figures.

Arable plots on average about 1 ha and up to 2 ha. The percentage of families with these varies greatly from dense settlements, where few have fields, to more lightly settled areas where village studies show over 50 per cent of households have fields.

Grazing commonage to which every landholder has access. This is usually the biggest area of any community landholding except in larger dense settlements.

Does this provision to enable 'access to land on an equitable basis' refer to residential land only or to all three categories of land? Is the implication that all members of a community should have equal access to arable plots? The plot sizes are already too small for successful mechanised arable farming and they are largely unused in most villages at present.

I would advocate that every family has the right to a residential plot and that this should be of sufficient size to enable gardening - perhaps 0.25 ha. Equitable access should be restricted to such plots. Those with arable plots should have ownership rights of these fields and accumulation should also be possible. New allocations of fields should be possible from the grazing land, but the issue at present in the underutilisation of existing arable allotments.

Administration of Communal Land

In addition to the far-reaching involvement of the Department in every land determination and in every community in the off-register areas, the Bill proposes three additional new layers of land administration.

Firstly, sections 28 and 29 provide that once registered as landowners, communities must decide within 24 months by a 60 per cent majority either to hold their land through a CPA, or a traditional council or any other entity approved by Minister. Traditional councils will have to be constituted in terms of the Framework Act and CPAs will have to formally recognised by the Department through the CPA Act. If a choice is not made the minister must provide assistance and if necessary decide which vehicle is suitable.

These bodies must provide general management and administration including registration on a gender neutral basis, maintaining registers, resolving disputes, facilitating the extension of municipal functions and services, and overseeing development. They must meet at least four times a year and submit an annual report to the Department.

Secondly, section 32 provides that the 'community ... must establish a households forum' of between 20 and 30 members including an elected chair, deputy and 3 other office bearers. The forum should be composed of 50 per cent women and include 3 members representing vulnerable elements in the community such as child-headed households, youth, elderly and disabled people. There should be 2 members designated by the Traditional Council or CPA, and one by the municipality (non-voting). This forum will be the vehicle for day to day management of land, receiving and making reports, administering the rules and updating the registers. However, it seems to be separate from the CPA or Traditional Council and not to be a sub-committee of these bodies that own the communal land. It does not seem that Forum members will be paid.

Sections 36-9 provide for another layer of administration in the shape of communal land boards of 9-15 members including one from provincial house of tradional leaders, one from the Department, one from the municipality and at least 5 representing communities plus up to 7 appointed by the minister. Again they will serve for 5 years and 50 per cent should be women. These are advisory boards monitoring and assisting implementation and the resolution of disputes. They also report to the minister and will be remunerated if not employed by the state.

The Department will provide money in its budget for all of these layers of administration.

This administrative structure seems too complex with too many layers and it is unlikely to work effectively. It separates out the function of ownership from the administration. Perhaps the aim of this element in the Bill is to ensure a democratic and popular counterweight in the administration of land, in the shape of the Households Forum, to the communal owners - the Traditional Council or CPA. But separating out local administration from ownership may create conflicts of authority. The CPAs and Traditional Council should themselves be representative and democratic. Creating a collective body for ownership will in itself produce significant problems for decision-making - as is evident in the existing CPAs. Creating an additional collective body for administration will compound the problem.

The question arises, as noted in the introduction, whether these intermediate communal ownership structures will be effective. Could an alternative idea be explored? Ownership should rest with individual/family landholders. One overarching local administrative body with a small executive should administer (but not own) collective interests and any shared resources.

The Communal Land Boards create another layer of authority and interest that is likely to confuse the position further. The fact that their members are paid may well be resented by communities. Conflict resolution is surely better done through those who have become immersed in the details of the original determination, the Land Enquirers, and by the Department. In the last resort the courts rather than a Land Board would surely be best?

Section 46 notes that the Minister may 'acquire more land or a right in land for use as communal land to ensure access to land on an equitable basis'. This is of course already provided for in the redistribution programme.

The Section is confusing because it does not specify whether reference is to residential/garden land or farming land. If it is to farming land, then there is strong argument that the state needs first to resolve the collapse of agricultural production in the existing communal lands before extending this form of ownership. Land held in private ownership by individuals or corporations has, despite the removal of most subsidies, continued to be the base for most productive agriculture in the country.

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