Drew Forrest
Minister of Agriculture and Land Affairs Thoko Didiza may be in for a hot reception at the upcoming national land tenure summit after the release of a draft land tenure Bill branded ”deeply flawed and alarming”.
”At best, the draft Communal Land Rights Bill is a poorly thought-through measure,” the University of the Western Cape’s Programme for Land and Agrarian Studies (Plaas) said this week. ”At worst, the Bill opens the way to the transfer of state land to ‘communities’ controlled by powerful and unaccountable traditional leaders.”
Plaas said the Bill indicated that the government might follow the path charted by the National Party in the dying days of apartheid, by negotiating land transfers directly with chiefs and excluding ”ordinary people on the land”.
It warned that such transfers ”could lead to a massive wave of post-apartheid [land] dispossessions”.
The Bill, which was two years in the making, seeks to address the delicate issue of tenure security on state land in the former homelands. It highlights one of the government’s most pressing dilemmas: how to give the one-third of all South Africans living on communal land the tenure security demanded by the Constitution, without stirring up the hornet’s nest of traditional leadership.
A Bill drafted under Didiza’s predecessor, Derek Hanekom, proposed to create statutory rights for existing land users, who would decide what administrative role chiefs would play. It was held back before the 1999 election because of its perceived sensitivity, and shelved when Didiza took office.
Didiza later drew heavy flak from left-leaning land organisations and scholars by suggesting communal land would be transferred to ”tribes” or ”African traditional communities”. This was seen as an echo of apartheid policy, and an ominous sign that she intended consolidating chiefs’ power over land.
The status of the latest document is unclear. Land affairs Director General Gilingwe Mayende declined to comment on it, beyond saying it would be scrutinised at the national land conference in Durban next week.
The objects of the Bill include ”the democratic right of persons to choose the appropriate land tenure system, communal rules and community-based administrative structures governing their land”. It stipulates that all tenure rules and systems must square with the Constitution.
Describing this as ”empty rhetoric”, Plaas’s director, Professor Ben Cousins, said the Bill raised the possibility of transferring land to traditional communities and, therefore, to chiefs and tribal authorities ”through the back door”.
”The law defines traditional communities as juristic persons capable of acquiring property, and includes traditional leaders in rights-holder structures. It allows any person or juristic person representing a community to apply for a land transfer,” Cousins said.
A Plaas memorandum complains that the Bill defined land rights-holders by their membership of a community, and communities in terms of shared rules rooted in customary law. In so doing, it overrode a basic principle the recognition of current occupiers’ de facto rights.
”Under apartheid hundreds of thousands of people were forcibly removed from
farms and ‘black spots’ and dumped in areas under the jurisdiction of chiefs recognised by the government,” Plaas says
”The de facto rights of these people do not derive from ‘shared rules’, but from the fact of their established occupation and land use ”
The memorandum points out that the rights of those who do not consider themselves part of a community could be affected by a community’s decisions. The Bill contained no mechanisms for such decisions to be challenged.
In addition, it created structures to represent communal rights-holders that included traditional leaders but were not subject to democratic control. ”This suggests the intention may be to enable traditional leaders to exercise extensive powers through these ill-defined bodies”.
At the heart of Plaas’s objections are the procedures for state land transfer to community representatives. There was no requirement that people on the land should be consulted; no provision challenging transfers if existing rights are threatened; and no recognition of possible counter-claims.
It adds that the larger issue is the role of hereditary traditional leadership ”fundamentally incompatible with the democratic freedoms on which the Constitution is based” in tenure reform. ”The issue is whether rural residents should continue to be subjects, while their counterparts in urban areas enjoy the full rights of citizens.”
A return to the apartheid era? Page 25