Tensions rise over land rights Bill

With final drafting imminent, the controversy-haunted Communal Land Rights Bill remains mired in strong objections from both left and right and overshadowed by threats of violent resistance.

The Bill, five years in the making and in its eighth draft, seeks to extend tenure security to occupiers of land under traditional leaders and, by so doing, unlock the economic potential of rural land. Security of tenure is a constitutional right.

The period of public comment on the draft Bill, released last August, expires at the end of the month.
Minister of Agriculture and Land Affairs Thoko Didiza is under heavy pressure to table a Bill in Parliament.

The draft transfers state land in the former homelands to communities, which must develop and register “community rules” for the process.

A major flashpoint is the requirement that communities appoint administrative boards to represent them. As legal entities, these can issue title deeds to individuals in communal areas, who can then lease, mortgage or sell their land.

The draft allows traditional authorities no more than 25% representation on these structures.

The main beef of traditionalists, mostly Inkatha Freedom Party supporters, is that the Bill undermines the amakhosi’s power by weakening their land administration role.

The IFP’s Women’s Brigade and Youth Brigade have threatened retribution if the Bill goes ahead, whille Zulu King Goodwill Zwelethini warned he will not allow the amakhosi’s powers to be eroded.

“Government underestimates the chiefs,” said an Ulundi resident. “If the Bill is passed, it will be understood that any tribe member who applies to own land can be killed or have their house burnt down. Many will be happy to strike the match.”

The resident said rural people could be coerced into handing the land over to chiefs, and communities strong-armed into electing chiefs, their families and friends on to administration boards.

Owen Green, chairman of the Ingonyama Trust, which controls tribal land in KwaZulu-Natal, insisted the Bill would exacerbate social dislocation, poverty and inequality. Individual title would tempt tenants to sell land, resulting in landlessness and “the danger that powerful individuals with money will gain vast tracts at minimal expense”.

He proposes that tribal land should be leased to individuals by the trust, as well as bonded and offered as security to raise capital. “This is a way of introducing, over time, the concept of land ownership to rural people,” he said. “If they default on loans, the land reverts to the trust. It is not lost to the community.”

On the left, the concern is that the state is washing its hands of rural people’s development needs, and that the Bill imposes an alien system of exclusive and absolute private property.

“Reform is needed,” said Ben Cousins of the Programme for Land and Agrarian Studies at the University of the Western Cape. “Currently, communal tenure is not adequately recognised; the system is abused by powerful elites; the permit system is breaking down and there are gender inequalities. But the Bill does not solve these problems. It could be disastrous.”

Cousins said the exclusive land ownership, with surveyed and marked boundaries, centrally held title deeds and the settlement of disputes through courts, was an effective model for societies organised on market principles.

However, the African model was based on the principle that everyone had rights to land, which were “shared and relative”. 

Cousins said a Western system would take hundreds of years to implement, as title transfer was slow and likely to bog down in border disputes and power struggles.

The Congress of South African Trade Unions (Cosatu) supports the Bill, but believes it will deepen poverty and inequality in its present form and wants substantial redrafting.

Cosatu argues that the transfer of “complete” ownership will restrict the state’s ability “to intervene on behalf of communities or take the land back in the event of abuse or corruption”. It calls for the retention of nominal state ownership, while strengthening occupants’ land rights.

“If the private ownership route is to be pursued, which we strongly oppose, any alienation or transfer of rights should be strictly regulated to prevent … concentration of ownership,” it adds.

Departmental spokesperson Abbey Makoe said the government had “invited people with extreme objections to come to us with their concerns. Instead they threaten violence. They are running away from dialogue.”

“We live in a constitutional democracy,” said Makoe. “People must have individual rights, and the amakhosi should not feel threatened. If they are good leaders their people will still elect them.”

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