reserve’ land
A new land law is set to overturn decades of paternalistic land relations between the state and more than 70 000 people living on former “coloured reserves” in the Western Cape and surrounding provinces. But similar legislation for former black homeland residents is still bogged down in “consultations”.
Department of Land Affairs Director General Geoff Budlender said the Transformation of Certain Rural Areas Act, gazetted in September, would put an end to the “paternalistic relationship” inherited by Minister of Land Affairs Derek Hanekom in terms of trust laws dating back, in some cases, to earlier than the Union government.
This Act – one of four new Land Affairs laws adopted in recent months – will transfer title deeds for 1,7-million hectares of land to 23 communities across the Western Cape, Northern Cape, Eastern Cape and Free State. The Act paves the way for the repeal of the Rural Areas Act of 1987 (a modern rewrite of the colonial Mission Stations and Communal Reserves Act of 1909) within 18 months as each community decides who should benefit from the new land rights.
Affected township land will be transferred to local authorities, which will then transfer the title deeds to individual residents. Surrounding commonage land will be divided up between local municipalities and communal property associations who forward successful land use proposals to the community.
The acquisition of title deeds opens access to credit facilities not normally available to trust land beneficiaries, allowing for development investment. In this way, title deeds are seen as a key element of tenure reform.
Lack of title deeds has long plagued the development aspirations of millions of former black homeland residents as well, but Budlender said draft legislation to change this status – tentatively known as the Land Rights Bill – was still under negotiation and was unlikely to become law until after the July 1999 general elections. “It’s much more complex and requires a lot more consultation,” he said.
The Provision of Certain Land for Settlement Amendment Act, adopted in July, streamlines the 1993 Act which forms the legal framework of the government’s land redistribution policy to allow Hanekom to expropriate land directly, instead of the longer previous route through the minister of public works.
Although Hanekom has not exercised this power once in the past four years, Budlender said the threat of expropriation had helped to settle some difficult redistribution purchases at a reasonable price. The amendment Act also expands the 1993 Act to include a wider range of uses for redistributed land. While the original Act referred primarily to settlement land, the amendment – reflecting the lessons of four years of land reform – makes it easier for redistribution beneficiaries to use their land for farming, commonage and share equity schemes.
The amendment Act further changes the name of the 1993 Provision of Certain Land for Settlement Act to the Provision of Land and Assistance Act, and cuts the time-lag for approval of the government’s R15 000 settlement grants by removing the onerous requirement that the minister give 21 days’ notice in newspapers before he could designate any land for redistribution. Now the requirement only applies to cases where redistribution will substantially change the use of the land in question.
National Land Committee land rights and advocacy director Abie Ditlhake said his organisation had made a “direct contribution” to the Amendment Act, but argued that further redistribution law reforms were needed to deal with the “arbitrary subsidy amount, ambiguities around the definition of beneficiaries, and the amount of the subsidy currently spent on consultancies”.
Two other laws, the Land Affairs General Amendment Act and the KwaZulu Land Affairs Amendment Act, herald a series of technical changes to correct legislative loopholes, including those created by the conflict between the 1993 Constitution and earlier laws enacted before its adoption.
The 1991 Upgrading of Land Tenure Rights Act, for example, allowed deeds of grant or leasehold rights to be converted into more secure ownership rights in all areas except the former homelands. The Land Affairs General Amendment Act extends this provision to the whole country. This puts an end to the untenable situation where some people could change their land tenure rights to qualify for state housing subsidies others could not.
The Land Affairs Amendment Act also closes a number of loopholes in legislation governing restitution, redistribution and tenure reform.
The KwaZulu Land Affairs Amendment Act merely legalises a de facto situation in which the KwaZulu-Natal Department of Local Government and Housing has continued to identify and allocate township sites for development, said Budlender. The KwaZulu Land Affairs Act of 1992, which makes provision for township development, became a national competency under the 1993 Constitution. The amendment Act officially returns these powers to the provincial government.