Customary Land and Security of Tenure: Unitary or Multilayered systems of titling?

Rebecca BrowningUniversity of Cape Town

An analysis of Law and Policy regarding the use and allocation of communal land in South Africa

The concern of this paper

• The Black Land Act of 1913 divided land on racial lines, where 13% of the land was held in a Customary law related land tenure whilst 87% was held in classic Roman-Dutch style tenure

• These areas comprised of the Former Homelands and SA Development Trust Land and was ‘owned’ by the state or held in trust.

The Issue:

What is the most effective way the 800 or so communities living on this communal land be given secure tenure rights and, simultaneously, to preserve the possibility of indigenous land allocation management structures.?

Colonialism has fundamentally changed the socio-economic sphere of

South Africa: how does one move forward but at the same time recognize the

customs of the past?

ContextTraditional African Customary Law and the fundamental right to land? The true nature of Customary law: layered rights ? What is the role of the chiefs? Notions of trekpas and familial allocation of land and the notion of clientship

The Paternalistic ‘interpretation ‘given to ACL under the colonial regime – notion of Separate Development resulting in formation of Homelands, areas reserved for Natives and the use of chiefs to control rural populations

The new Constitutional Era: rights to security of tenure and the Land Reform ProgrammeGovernment Policy from 1994 -2010 resulting in the enactment of the CLRA and future policy

Customary Land Law• Property law: nature of rights: personal rights? Real rights?

Registerable? Is a unitary system or a multilayered approach better?

• Constitutional Law: the recognition of Customary law and need for land reform

• Administrative law: powers and functions of chiefs/ land admin committees

• African Customary Law: what existed before?

Attempted solution:

S25(6) of the Constitution A person or community whose tenure of land 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 tenure which is legally secure or to comparable redress.

S25(9) Parliament must enact the legislation referred to in subsection (6)

Attempted solution

• The Government thus attempted to increase security of tenure, and the Department of Land Affairs White Paper in 1997 envisaged a simple system of land rights for the entire country

• in later policy they aimed to Transform the system of land rights though the enactment of the Communal Land Rights Act and the Traditional Leadership and Governance Framework Act

• However, there is nothing simple about the task of securing indigenous land rights

The CLRA• All state land under communal occupation,

privately held communal land (e.g. registered in the name of a Communal Property Association), as well as land designated by the Minister, falls to be dealt with in terms of this Act.

• The Act is meant to secure tenure by transferring communal land to communities or into freehold title, if the community so decides

The Communal Land Right Act

Community rules

Land administration Committee

Ownership will vest in a large group represented by a structure that will exercise ownership on behalf of the

group

Mechanism of CLARALand rights enquiry• It considers existing rights, interests and tenure of land; the provision of access

to land on an equitable basis; and measures to ensure gender equality. With the participation of various stakeholders, a land rights enquirer makes a recommendation to the Minister. If a community decides to keep the land as communal land, a land administration committee is established.

Community rules must be written• The rules must outline the administration and use of communal land. The

community may decide to subdivide the communal land and pursue individual rights.

• Once the rules are written and registered, a new legal entity, a ‘community’ is created. There will be a Deed Of Communal Land Right that will be registered in a separate Registry.

• Finally, a land rights board oversees the land administration committee at the provincial level and informs the Minister of any violations.

Tongoane and Others v Minister of Land Affairs and Others

• In the High Court: CLARA was challenged:• Incorrect tagging• Insufficient Public Participation• That the nature of the Form of governance over

Communal Land is unconstitutional • That in fact it does not increase tenure security

but in fact decreases it, to the detriment of community members

Governance:Previous drafts of the Bill allowed no or 25% maximum of traditional leadership in the Land Admin Committee; S21 of the Act would automatically impose the current Traditional Council

‘The basis of indigenous land rights is membership of a group and democratic decision-making and self-regulation. However, the legislative conceptualisation imposes a structure, apparently based on decentralised control but which is dependent on state appointment of traditional councils.’ Pope

• However, Bennett (2004)at 392: • The decision to allocate land is now subject to

the PAJA • Although the community has no right to land,

and thus the decision cannot adversely affect them, a generous reading of the concept of a right/legitimate expectation or interest could maybe afford a right to procedural fairness

Form of titling• The CLRA will mean that all land is vested in

the community: the Act effectively corporatizes land control

• But under ACL, titling was decided at small group or localized level: the upcoming policy framework should make room for multi-layered decision making bodies and different types of real rights

• Formally registered land rights may not be what we need; we need to look beyond the current property law framework to find a solution that ensures:

• Ensure women play a larger role in the decisions about land allocation

• That land is capable of being capitalized to allow access to credit

• Ensure local usage of land is taken into account• Allow decentralised decision making

• The CLRA is now repealed and it seems that no new CLRA will be put forward:

“Addressing media at a press conference in Cape Town, Nkwinti said that it had become necessary to review the Land Tenure Systems Reform policy as government did not have the required capital to complete the original programme, which stipulated that 30% of land to be under black ownership by 2014.”

Land reform green paper to be release in May by Jade Davenport (2nd March 2010)

• Maybe it is best to look to other jurisdictions – Ben Cousins:

• In Mozambique and Tanzania, the new land tenure reform laws protect current occupation and use of communal land without requiring their conversion to westernized exclusive notions of ownership – it allows the person vested with a right to occupy to decide at a local level what to do with their rights.

“Several countries in sub-Saharan Africa have revised their land laws to grant legal recognition to customary forms of land tenure. Most of these reforms have taken place only within the past 15 years and have been part of a growing recognition that the imposition of Westernized systems of titling and registration has not succeeded in driving customary tenure systems underground and that indeed these systems continue to play an important role in administering and enforcing the land rights of most people residing in rural communities. Moreover, it is increasingly thought that reforms that grant statutory recognition of customary land rights will enable these rights to be more secure and less vulnerable to effacement by others seeking to establish legal rights on the same land.” USAID

Tanzania• Administration of village lands is highly

decentralized, though the Commissioner of Lands retains overriding powers. Responsibility for the adjudication, survey, and registration of customary rights to village lands within the more than 9,000 villages of Tanzania is given to elected Village Councils and Village Adjudication Committees, which also maintain the village land registries.

Bibliography• Communal Land Rights Act 11 of 2004 • Traditional Leadership and Governance Framework Act 41 of 2003 • Tongoane And Others v National Minister For Agriculture And Land Affairs

And Others (11678/2006) [2009] ZAGPPHC 127 (North Gauteng High Court, Pretoria)

• Tongoane and Others v National Minister for Agriculture and Land Affairs and Others CCT100/09

• Aninka Claasens and Ben Cousins Land, Power and Custom: Controversies generated by South Africa’s Customary Land Rights Act (2008) UCT Press Cape Town

• Anne Pope “Get rights right in the interests of security of tenure” Unpublished Review Article 2009.

• Cousins “’Embeddedness’ versus titling: African land tenure systems and the potential impacts of the Communal Land Rights Act 11 of 2002” 2005 Stellenbosch Law Review 488

• C Cross “An Alternate Legality: The property rights question in relation to South African Land Reform” 1992 SAJHR 305