Draft land Bill should be rejected
The long-awaited draft Communal Land Rights Bill sets out the government’s proposals to resolve urgent land tenure problems in former homeland areas, where most rural South Africans live. These problems include the lack of legal recognition of communal tenure, abuse by elites, the breakdown of the old permit system, and gender inequality.
They result in conflicting claims to land and bitter disputes over authority.
Development is hampered by lack of clarity on property rights and the tensions that result. Tenure insecurity also results from forced overcrowding of these areas under apartheid, so that rights often overlap and conflict.
Does the draft Bill provide viable solutions? The answer is “no”. In fact, it will exacerbate them. It adopts an inappropriate approach, based on the issuing of land titles to groups or individuals, after transfer of ownership from the state. The consequences of this policy could be disastrous.
In adopting the titling model the government has ignored the lessons to be drawn from the wider African experience, and from its own experience of communal property associations in restitution and redistribution projects. Viable alternatives to titling, now being implemented in Mozambique and Tanzania and widely debated in South Africa since 1997, have also been ignored.
Africa’s largest land titling programme has occurred in Kenya. Since the 1950s communal land has been split up into individual holdings and registered in the names of individuals. Group titles to extensive ranches have been issued to pastoralists. But the anticipated benefits of titling have not materialised. Land concentration, inequalities in agricultural income, landlessness and rural-urban migration have increased. Replacing the indigenous tenure system with Western-style property rights has failed, and community-based patterns of allocation and inheritance have persisted.
In South Africa group titles have been issued to 500 communal property associations and community trusts, but many are dysfunctional. Constitutions are poorly drafted and misunderstood, rights for individuals are ill-defined and internal conflict is common. Members have often retained strong ties to their original communities. Traditional leaders have contested the authority of elected trustees, and elites have often captured the benefits of ownership.
The cause of these problems is not the fact that communal property associations are a form of shared land holding. The real reasons are that there is a fundamental mismatch between the titling model and the principles of African land tenure, and inadequate support has been provided to these groups by the government.
The titling model is inappropriate and ineffective in Africa because it is based on Western notions of ownership, which assume that property rights are absolute and exclusive. Surveyed boundaries show where land rights begin and end. Title deeds are held in a central registry and provide certainty in the case of disputes. Such systems have proved effective in societies organised around market principles.
African systems are based on the principle that everyone within the community of origin has rights to land, but individual rights are balanced against obligations to the group. Rights are shared and relative, and held at a number of levels of social organisation.
Rights in community-based tenure systems ensure access to land as a safety net for the poor. They are not a barrier to investment and development or to land transactions. They evolve over time, adapting to conditions. The key to their resilience is people’s preference for socially regulated access to resources.
Private ownership of land contradicts these principles. It assumes that clear and exclusive boundaries can be defined, both socially and physically. The nesting of rights at different levels of social organisation is denied. The inevitable result of titling is thus to create massive boundary disputes, between adjacent groups and levels of social organisation. These are evident in many tenure cases investigated by the Department of Agriculture and Land Affairs.
Private ownership of land by a group conveys significant advantages to those who wield power within the group. Land titling creates high stakes, generates power plays and runs the danger of being hijacked by powerful interests.
Titling programmes have proved ineffective because they are costly, time-consuming and demand real capacity from the government. The draft Bill is no exception. A complex process, involving about 30 administrative steps, is required before land can be titled.
It is unlikely that the department will be able to process more than 100 transfers a year. At this rate it will take 200 years to transfer land to the estimated 20 000 rural communities in former homeland areas. In the meantime, land rights for the majority will continue to enjoy only the minimum of recognition and protection.
These estimates of delivery time are, however, over-optimistic. More likely is a scenario in which debilitating boundary disputes and power plays overwhelm a weak and understaffed department battling to meet targets for land redistribution and restitution.
What is the alternative? New land tenure laws in Mozambique and Tanzania recognise and protect existing occupation and use of land, and give residents the status of property rights, without requiring their conversion to private ownership. Rights holders can then further define and record their rights at local level.
Security of tenure in legal terms is not created case by case, as the draft Bill requires, but everywhere at once, on enactment of the law. Support must then be provided to local processes of defining, negotiating and administering rights. This is costly, but not as expensive as titling.
Community-based systems can work, if given legal recognition and institutional support. The draft Communal Land Rights Bill does not provide this, and promotes an approach that has failed throughout Africa. It should be roundly rejected.
Ben Cousins directs the programme for land and agrarian studies at the School of Government, University of the Western Cape