Democratize land rights in communal areas to unlock the rural economy

When the National Party government consolidated its policy of separate development from apartheid, it unwittingly dispersed parts of the black population into “black spots”, believing these areas to be of insignificant economic value.

These so-called autonomous homelands and bantustans were not a new invention. They were preceded by three centuries of land dispossession, with the aim of driving the black majority away from urban areas, reserving urban areas for commerce, development and residential areas for the white minority.

One of the central elements of the separatist development policy was to deprive black people of their citizenship and to land rights.

These National Party efforts were linked to its superficial demarcation and division of ethnic groups, which also sought to impose traditional rulers on ethnic groups who would toe the apartheid line and act as ambassadors of the separatist development regime.

Between 1934 and 1976, the government put in place legislation that resulted in the current “traditional” communal spaces.

The Presidential Advisory Committee on Land Reform and Agriculture, on which I served, stated that in 1997, 32% of the black population lived in the former homelands, where 63% of the inhabitants had certificates of “permission to occupy” (PTO), 26.8% of these did not hold a PTO and 9.6% were not sure whether they had these documents.

It should be emphasized that PTOs do not refer to land which has been cadastral (showing property boundaries and boundaries) nor to land registered under the Deeds Records Act No 37 of 1947.

PTOs do not provide residents of former homelands with tenure security, legal certainty, or protection from land dispossession.

Prior to the enactment of the Constitution, several pieces of legislation were introduced to apply to communal areas. One of these, the Land Rights Upgrade Act No. 112 of 1991, was enacted with the aim of converting PTOs into rights that could be transformed into freehold title.

The challenge of the Act is that it applies to lands that have been surveyed. It is commonplace that most land in the former homelands and TBVC states has not been surveyed nor is it part of the deed registry. As a result, the law offers little or no protection to residents of communal areas.

In 1996, Law No. 31 of 1996 on Provisional Protection of Informal Rights was passed, under which informal land rights are recognized. The law was meant to be an interim measure, pending the promulgation of a more comprehensive law, applicable to family plots, farms, crop fields and pastures. It aims to protect people in communal areas from deprivation of their rights. No comprehensive legislation has been passed to reinforce the provisions of the law.

In 2004, the Constitutional Court declared Law No. 11 of 2004 on communal land rights unconstitutional. In this case, the court sounded the alarm to the executive and the legislature to avoid the duplication of apartheid-style land regimes that subject residents of communal areas to lesser rights than those with full title. property. In this case, the court discouraged the title from being given to traditional councils on behalf of communities.

In May this year, the Department of Agrarian Reform, Rural Development and Agriculture organized a national summit on land administration and communal tenure. Civil society organizations representing women’s interest groups and people residing in communal areas were vocal and critical of what they perceived to be the government’s seemingly heavy-handed tendency to listen to and accommodate traditional leaders and drown out the voices of civil society.

It is unclear what resolutions have been carried over from the summit on a renewed policy that will regulate and govern the land rights of people residing in communal areas.

The dualistic land tenure state that deprives black inhabitants of communal areas of secure land rights remains pervasive despite the constitutional provision in section 25(6) that “a person or community whose form of tenure is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to lawfully secure employment or to comparable redress”.

Although legislation such as the Extension of Security of Tenure (Esta) Act No. 62 of 1997 has been enacted under Article 25(6) of the Constitution, its purpose and implementation in practice are more aimed at allowing landowners to evict those whose property is insecure. legally than it does with the promotion, improvement and protection of land tenure for people residing in communal areas.

The presidential panel noted in its report that more evictions of farm dwellers took place after the enactment of Esta and certainly after the advent of democracy.

The ancient homelands and bantustans have, in recent decades, proved to be lands of incalculable and unexpected economic value and potential. As fate would have it, it is mainly in the communal areas that vast mineral deposits such as coal, diamonds, gold and platinum group metals and their potential have since been discovered.

Beyond the mineral deposits found in these areas, there is the remarkable yet largely untapped potential to unlock value through the Independent Renewable Power Producers program, aimed at adding megawatts to the country’s power generation system. countries through wind, solar, biomass and hydroelectric projects.

Like the mines, the former Bantustans hold the promise of a new economy towards a just energy transition.

The lack of legal certainty with regard to securing land rights in communal areas discourages meaningful economic investments that can generate long-term economic value to address poverty, unemployment and widely felt inequality in communal areas. The lack of cadastral surveying of land further negates the possibility of providing secure land tenure to communities.

The government’s failure to democratize land rights in communal areas is missing an important opportunity to improve and protect the rights of people in communal areas, allowing them to have their voices heard and be treated as meaningful stakeholders able to use their agency and self-development. determine how they want their land to be used and developed.

The lack of legal certainty and protection plays into the hands of unscrupulous promoters who trample and flout the rights of communities, simply choosing to enter into clandestine agreements with traditional chiefs at the expense of the communities.

Recent jurisprudence relating to communal lands is demonstrative of a judiciary determined to use its discretionary and interpretative powers to develop the law in favor of informal rights holders.

Cases such as the Xolobeni case concerning mining on communal lands and the recent Shell judgment on offshore gas exploration give credence to the need for clear political direction and leadership from of the executive to give real meaning and substance to the rights of people residing in communal areas. to exercise their rights to citizenship and dignity by granting each household at least land rights equivalent to full ownership.

Once there is clear law and policy aimed at eradicating the legacy of apartheid’s dualistic occupation system, people in communal areas will be able to affirm and raise their voices in meaningful ways and those with vested interests to develop businesses on communal lands will be prevented from circumventing the land rights of communities.

Beyond the need to democratize the land rights of people residing on

communal land is the need to promote transparency and certainty in how land redistribution is carried out by the land reform department to implement land redistribution.

Redistribution, unlike restitution, allows those in need of land to be assisted by the state to access it equitably. Article 25(5) of the Constitution directs the State to take legislative and other measures to ensure that land needs are met. The people who need land will inevitably vary, as will the demand for land.

In terms of redistribution, parliament has not enacted a law on land needs. Instead, it was the land reform department that allocates land for redistribution, which relied on its internal policies to make land allocations. Based on the recommendations made by the Presidential Committee, the Department has issued a draft Beneficiary Selection and Land Allocation Policy which provides for the issuance of 30-year leases to interested communities, entities and individuals who wish to access land. earth.

Although the establishment of a redistribution policy is a step in the right direction, there is still much to be gained by making land accessible in a transparent way and, above all, through an Act of Parliament preceded by the public participation and checks and balances required. statutes.

Ultimately, it is the democratization of land rights coupled with an Act of Parliament governing land needs that has the potential to unlock the rural economy. These are the traditional “black spots” that have the ability to bring light to a better South Africa.

Bulelwa Mabasa is Director and Head of Land Reform Tenure and Restitution Practice at Werksmans Attorneys. She serves on the Presidential Advisory Committee on Land Reform and writes in a personal capacity.

The views expressed are those of the author and do not reflect the official policy or position of the Mail & Guardian.

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