South Africa’s Communal Land Rights Bill is unconstitutional and misconceived, according to human rights groups, legal practitioners and gender campaigners.
The Bill, they say, will be impossible to implement. They say it will entrench and aggravate the existing inequality of women with regards to land rights.
As in other African countries, such as Zimbabwe and Kenya, the South African government is under increasing pressure to intervene and secure land rights. The approach it has adopted in the new Bill, which is expected to be enacted by April, is to transfer title from the state to communities.
The government will also transfer the responsibility for land administration from itself on to tribal authorities or traditional councils.
Academic Aninka Claassens told a recent Women’s Legal Centre conference in Cape Town that the Bill is not about land rights and development for poor people. Rather, she says, it is about a pre-election pact with the rural elites.
The Bill, she says, is also about an attempt to absolve the state of the responsibility and expense for sorting out the mess of land rights in communal areas that it inherited from colonialism and apartheid.
”If this Bill is enacted rural people will no longer be able to enforce their land rights against the state. They must enforce their rights against ‘communities’. Furthermore, communal land will become privately owned, and it is notoriously difficult for poor people living on private land to secure services or development from the state.
”Like it or not, government departments do not invest on privately owned land as all assets attached to the land become the property of the private landowner,” she says.
Claassens says as long as the state is the owner of the land, it remains responsible not just for services and development in the rural areas, but also for land rights in communal areas and for ensuring that these rights are administered effectively.
According to the Bill, the title deeds to the land would be vested in the ”community”, which is expected to establish a land administration committee to decide who gets land. This function can also be carried out by an existing recognised traditional council. The minister of land affairs would initiate a ”land rights enquiry” and designate a person as a ”land rights enquirer”. On the basis of the report submitted by the enquirer, the minister would determine which land should be transferred to the community and how.
”The Bill bears a close resemblance to the apartheid land legislation of the past in that communities have no voice. The minister has unfettered discretionary power to make decisions that impact on people’s land rights and chiefs are brought to the centre stage,” says Claassens.
In the Bill, there is nothing to guide or limit the minister’s discretion to decide whether pre-existing rights can or cannot be secured. And there is nothing to guide or limit his or her discretion on who would qualify under what circumstances and for what comparable redress, she says.
”It is very unlikely that this clause would pass constitutional muster. The Constitution does not require an individual to decide the extent of rights and comparable redress. It requires an Act of Parliament to do so,” says Claassens.
Lawyer Gilbert Marcus, in a submission to the South African Human Rights Commission, concludes that the Bill as a whole is constitutionally deficient.
The Bill, he says, does not give people whose tenure is insecure as a result of past racially discriminatory laws or practices the right to secure tenure of comparable redress.
Geoff Budlender of the Legal Resources Centre — in a submission on behalf of the Commission of Gender Equality to the portfolio committee on agriculture and land Affairs — says the Bill strengthens and reinforces the results of a discriminatory system that has conferred primary rights on men and only secondary and derivative rights on women.
It does not, he says, protect women against discrimination and does not explicitly prohibit practices which discriminate against women.
”For example, the Bill places key administrative powers in the hands of bodies on which women are in a permanent minority and which, in the past, have been primary agents of discrimination in relation to land administration and allocation.
”In my opinion, the Bill has a further and related fundamental flaw, which arises from the double discrimination which African women suffer. The fact that the insecure tenure held by African women is not only because they are women, it is also because they are African,” states Budlender.
At the moment, the state holds title to most communal land and various people have rights to use and occupy particular areas. In many instances current tenure rights derive from a trustee/beneficiary relationship between the state and land users.
”Much of the land in the communal areas is held in trust by the minister on behalf of black people who have rights against the minister as trustee. Tribal authorities played a key role in that they recommended who should be allocated land at village level. However, only the commissioner, as a government official, had the power to actually allocate land,” says Claassens.
She says the system was undermined when the Department of Justice and Constitutional Development withdrew administrative functions from the magistrates in the late 1980s. It fell into chaos after independence in 1994 with the incorporation of the Bantustans’ administrations into various government departments.
Claassens says in most instances aspects of the old land administration were split into different departments. Nobody wanted to pick up the responsibility for making a discriminatory and anachronistic system run smoothly.
”In most provinces now, nobody has the legal power to allocate land rights. Double and disputed land allocations are the order of the day. Illegal and informal land sales are increasingly common.
”There is a serious and deepening crisis concerning land rights and land allocations in communal areas, which is impacting negatively on rural poverty. One of the results is that investors avoid these areas, as it is almost impossible to establish who has what rights and how to deal with in negotiations concerning development,” she says.
Claassens has called on the government not to enact the Bill but to go back to the drawing board and come up with a new approach that is easier to implement. The approach, she says, will also address the burning problems of securing and supporting communal land rights.
”Rather than focusing on transferring title and registering rights, both of which are extremely expensive and likely to backfire, the government should start by securing underlying rights and putting into place processes to unpack and confirm higher content rights on an incremental basis, as and when necessary,” she says.
This approach, says Claassens, would require extensive support from the government at local level over many years. It would entail ongoing government subsidisation and support for fair and responsive systems of land rights administration.
Critics say the government has been slow in transferring land to black people. After the end of apartheid in 1994, the government promised to transfer 30% of white-owned land to landless black people in five years.
Ten years later, only 2% has been transferred.
But the government has ruled out Zimbabwe-style land grabbing. President Robert Mugabe’s government has seized land from 4 500 white farmers to resettle landless black Zimbabweans.
Similar demand for land reform is ragging in neighbouring Namibia. — IPS