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18 Jun 2003 00:00
Nine months ago the controversial Communal Land Rights Bill was published for public comment. After a long gestation period, it now appears that the Bill may be stillborn — or that (non-identical) twins may be delivered.
Insecure land rights in communal areas are a major obstacle to improved rural livelihoods, and tenure reform is urgently required.
Inadequate provision for such institutional relationships appears to be the major stumbling block to the passage of the Bill. It has recently been rejected by both the Department of Provincial and Local Government and the South African Local Government Association. In response, the Department of Agriculture and Land Affairs is preparing two alternative versions to put before Minister of Agriculture and Land Affairs Thoko Didiza. It is unclear which one she will favour.
The two Bills will be informed by different underlying paradigms of tenure reform. One will be a modified version of the first Bill, which transfers title from the state to occupants of communal land. The other will draw back from the “transfer of ownership” paradigm, and propose that nominal ownership of communal land remain in the hands of the state. Secure rights of use and occupation could then be created by means of existing legal constructs such as “usufruct” or leasehold, or through strong individual and communal rights as defined and protected by law.
As argued by NGOs and policy analysts, the transfer-of-ownership model could effectively sterilise poor communal areas against development, by impeding service delivery. This is why local government officials, who only recently became aware of the implications of the Bill, are up in arms.
Local government has a constitutional and statutory duty to provide minimum levels of municipal services to community members. In practice, municipal services are only delivered up to the boundary of a private land holding. The effect of the current version of the Bill will be to compromise the ability of municipalities to comply with their duty. Legal opinion is that the Bill may be unconstitutional.
The problem of local government refusing to deliver services on land owned by land-reform beneficiaries through Communal Property Associations (CPAs) is not new, but has received little attention. It is a major obstacle to pro-poor land reform and needs to be urgently addressed.
The problem was recently illustrated in Namaqualand, where sister legislation to the Bill (Transformation of Certain Rural Areas Act of 1998) is being implemented. The day after residents in Pella voted for the option of a CPA as the entity to own communal land, officials informed people that it would no longer repair a borehole supplying water for livestock.
The latest hitch in delivering land reform’s laatlammetjie (tenure reform) creates an opportunity to reconsider options for how to create secure rights in the poorest rural areas — and highlights the wider issue of effective support by the government for development, wealth creation and empowerment.
Land reform must focus on reducing poverty. Redistribution of productive assets, including land, should be a core strategy to address this. However, secure rights to land and resources for the poor are also vitally important if they are to perform their “safety net” role to good effect and to facilitate investment and increases in production. This is a key issue in land redistribution and restitution projects as well as in the former reserves. Tenure reform is integral to pro-poor land reform.
Land administration is a crucial component. Rights created in laws mean little if they cannot be used in practice to produce sustainable livelihoods. Local institutions need to allocate land and provide support to rights holders, and to resolve disputes over land. They must be constituted through democratic processes, and be accountable to rights holders.
To undertake these tasks local land administration bodies need both a budget and ongoing support from the state. They also need to be monitored by the government. To date such measures have been absent for the 500 CPAs created since 1994, and as a result many are dysfunctional. In a CPA near Kuruman, members of the committee have taken over five grazing camps for themselves and allocated only one to the rest of the community. They are also allocating land to outsiders in return for money. The government has provided no assistance to community members to make the committee accountable.
The relationship between local bodies and local government is of particular importance, since local economic development is now the responsibility of municipalities. None of the versions of the Communal Land Rights Bill released thus far has done so.
The “transfer of title” paradigm has many other disadvantages, as pointed out in civil society submissions on the Bill, and by community members who have been made aware of the Bill. It is widely seen as a form of privatisation, since it divests the state not only of ownership of people’s land, but also of its responsibility for development.
By transferring title as the first step in securing rights, it requires boundaries to be surveyed between communities, which will generate disputes on a massive scale. There is a danger that tribal identities will be re-emphasised.
An alternative version of the Bill, which retains nominal ownership of communal land by the state, could avoid these problems. It must give legal recognition to the property rights of those who currently occupy the land, and provide procedures to “upgrade” these rights to full ownership on an incremental basis, as and when needed. It should provide for individual land uses and management of common property resources, and promote gender equality by defining the land rights of women.
As these events make clear, the Bill must specify the relationship between municipalities and local land administration bodies, and provide for real support by the government to these community-based institutions.
An opportunity has now been opened up for reconsideration of the way forward for tenure reform, as a vital component of the country’s strategy to reduce poverty and inequality. Will Didiza deliver a viable policy?
Professor Ben Cousins directs the Programme for Land and Agrarian Studies at the School of Government, University of the Western Cape
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