A critical evaluation of the South African land tenure policy : a comparison with selected aspects of the Kenyan and Tanzanian law

Abstract

This research deals with communal land insofar as it relates to communal land tenure security, women’s access to communal land and resolution of disputes. In this regard, lessons are drawn from the Tanzania and Kenyan communal land tenure legislation and policy frameworks. First and foremost, secure tenure in land is a necessity for all individuals of South Africa, Tanzania and Kenya. Yet, for some rural communities, this is only an ideal that seems far-fetched. For one to say their tenure in land in is secure, they must not only be able to enjoy such property without interference from third parties but must also be able to enjoy the fruits of the labour and capital invested in the land. Moreover, land access and control statistics reveal that women have access to far less land than men in South Africa, Tanzania and Kenya. The reason for this position has been attributed to the indigenous culture which promotes communal as opposed to individual control of land. The communal land tenure system highlights men’s access to land at the expense of their female counterparts. Lately, evidence reveals that the struggle for women’s land rights goes further than the household and village discrimination. In most cases the women in the communities suffer at the hands of land grabbers who are usually big companies, bankers and/or foreign governments through the assistance of local elites. Furthemore, many conflicts in numerous parts of the developing world can be traced to disputes over land ownership, land use and land deprivation. The unique nature of land and its many uses has made it a highly essential commodity in every society and as such it has been a commodity of very high dispute. Conflicts and related disputes are even more common and regular on communal land. Nonetheless, an effective dispute resolution system guarantees that the rural community members live harmoniously. The central enquiry in this study was whether land tenure is secure in the areas that practice communal landholding in South Africa, Tanzania and Kenya. Previous literature has established that the communal land tenure was insecure under the Communal Land Rights Act. Therefore, under its replacement, the Communal Land Tenure Bill (hereinafter the CLTB) will address several issues that were belligerent. If promulgated, the CLTB will transfer ownership in communal land to rural communities of South Africa. Over and above this, individual communal landholding will be permissible. Although peculiar, individual landholding will be beneficial for community members hence, must be treated with caution. To this end, the CLTB will also register individual land interests and rights in communal land and this will give the landholders some sort of assurance in the land they hold and use. Nonetheless, communal property will continue to be used in commonage. Although access to communal land and resources is still lagging behind, the CLTB has advanced in women’s control thereof. In terms of the CLTB, women will occupy at least half of the communal land administration institutions. This is clearly a commendable effort. Over and above this, the CLTB espouses two broad categories of dispute resolution namely; the traditional and alternative dispute resolution. The traditional dispute resolution is to be carried out by the institution of the traditional leadership while some alternative dispute resolution will be carried out by the Department of Rural Development and Land Reform. Thus, based on the examination of the Tanzanian and Kenyan community land legislation, this study establishes that under the CLTB a degree of land tenure security will be achieved.