Statutory framework for land tenure reform in communal areas

Abstract

Tenure reform in South Africa is regarded as necessary to sustain social and economic growth and stability, particularly in rural areas where there are high levels of poverty and inequality. In fostering political agendas, black people were systematically distanced from the land under apartheid. Therefore the democratic government’s efforts in redressing the imbalances and providing redress through the land restitution and redistribution programmes are very much dependent upon the success of the Land Tenure Reform Programme.1 This study will mainly concentrate on land tenure reform in communal areas. Customary land tenure has to be understood in the context of an extended family set–up, where it underpins the idea of social solidarity which gives rise to the “community land ethic”.2 Customary land tenure also reflects the subsistence economy, where land is either not exploited for commercial purposes at all or only to a limited extent.3 Normally, this land cannot be sold but it devolves in the family. A family is normally allotted residential and arable land and once allotted; the person acquires access to natural resources on the commonage. Although the person allotted land occupies it exclusive of the rights of others, he or she cannot be described as an owner in the western sense of the word, as he or she does not have the power to sell it. He or she, however, has the most extensive right in the law and may be regarded as “communal owner”.4 1 Mahomed Understanding Land Tenure Law 1–2. 2 Dlamini “Land ownership” 41. 3 Dlamini “Land ownership” 41. 4 Ratsialingwa and Another v Sibasa 1949 3 781 (A) 791–792. The Constitution plays a pivotal role in ensuring that people’s rights to access to land are protected. The Bill of Rights in the Constitution guarantees the right of everyone to have access to land and housing as well as security of tenure. Various laws were enacted to give effect to the guarantees of secure tenure in communal areas after 1991. As a person’s right to land in customary law may be terminated by the traditional leader in consultation with his council, the Interim Protection of Informal Land Rights Act5 (IPILRA) provides that people may not be deprive of an “informal right to land” without their consent except by expropriation. The Communal Land Rights Act6 (CLARA) was intended to give effect to section 25(6) and (9) of the Constitution. The aim of CLARA was to provide for legal security of tenure through a process of transferring the communal land to communities or persons, usually on land held for communities by designated community leaders. Secondary aims were to award comparable redress where such transfer was not practicable; the conduct of land inquiries to determine the transition from old order rights to new order rights; the democratic administration of communal land; the establishment of land rights boards; and co–operation of municipalities in respect in respect of communal land.7 The Green Paper8 proposes an improved trajectory for land reform which is supported by the following programmes and institutions: a recapitalisation and development programme; a single land tenure system with four tiers; a Land Management Commission; a Land Valuer–General and a Land Rights Management Board. The change agenda pursued in the Green Paper is that in order to create a new trajectory for land reform, a set of proposals are put forward which attempts to break from the past without significantly disrupting agricultural production and food security, and avoid redistributions that do not generate livelihoods, employment and incomes.