Submitted by McIntosh Xaba & Associates (Pty) Ltd (www.mxa.co.za)
Land issues scoping study: communal land tenure areas
Scoping of the important issues among, and affecting, people in the communal tenure, commercial farming, and urban/peri urban locations in South Africa
Prepared for: Department for International development (DFID) Southern Africa
This report is one of three scoping studies commissioned by the Department of International Development (DFID)
to find out about land issues in South Africa. Respectively, the three scoping studies cover the communal areas,
current freehold and farming communities, and peri-urban and urban areas.
Introduction
The limits of tenure definition: communal tenure as a conceptual construct
Applying the concept of "communal tenure land" generically to the former bantustans and Act 9 areas is highly misleading, as these areas display diverse settlement patterns, population distribution, land tenure rules and relationships, structures of governance, land uses and ecological conditions. In some provinces, such as KwaZulu-Natal, Limpopo and parts of the Eastern Cape, communal tenure areas are still wholly or partially subject to institutional arrangements of traditional authorities, while in others, combinations of old and new institutional arrangements linked to civics and government departments have evolved. The majority of land reform projects undertaken to date have made use of Communal Property Associations or Land Trusts, which have created private communal ownership regimes both within and outside the former bantustans. This study refers to all these constructs, however the main focus is on the former homeland or bantustan and the former Act 9 areas1 created under the Apartheid regime.
Communal areas include urbanizing settlements undergoing various degrees of formalisation. These display many features in common with informal settlements in urban and peri-urban areas. The reverse could also said to be true. It is becoming increasingly apparent that a continuum of settlement type under a range of tenures across former political boundaries may be a more useful paradigm within which to examine land issues. However, the legacies of colonial and apartheid systems created distinctive regulatory frameworks (including policies, laws and practices), which support distinct tenure categories and remain on the statute books pending new laws.
Bantustans as colonial and apartheid constructs
Communal tenure areas are a legacy of South Africa's racially discriminative past. Colonial and bantustan policies defined racial space zones resulting in the most unequal and spatially skewed distribution of land between indigenous peoples and colonial settlers in Africa. Loss of access to land and land rights in the country as a whole, and the associated loss of citizenship, represent one of the most enduring legacies of the colonial and apartheid period.
Residual communal tenure areas under settler and apartheid rule came to embody huge significance in terms of social identities and networks, and access to other resources, including jobs, both inside and outside these areas. As such the land rights in these areas, inadequate as they were and are, fulfill multiple functions, not only of land-related provisioning and shelter, but also of social protection for poor households straddling both the rural and urban terrain. The rural land rights provide the key influence around identity and "anchor" for the poor - and even many better off - family members in the towns and cities, where tenure continues to hold many insecurities.
Rural land rights are thus critically linked to broader sets of rights and relationships outside the communal tenure areas. Land rights were in the past associated with loss of citizenship, and provide a key to extending citizenship in the future. The challenge is to extend the full set of rights and duties embraced by the notion of citizenship, as enshrined in the Constitution, without eroding the present livelihoods of the poor and vulnerable in communal areas. This sets up a conundrum of huge proportions. The tension in present land policies reflects an ambivalence between preservation of 'African rural communities' defined in terms of customary tenure and traditional institutions and values on the one hand, and the constitutional injunctions of democratic governance and individual and equal human rights on the other.
Land issues in the "communal tenure areas" thus activate a host of policy and developmental questions. How is policy bifurcation to be overcome? How can these areas shed their association with the past, and integrate into the mainstream of South African development without jettisoning social protection for the poor; and what will be the impact of new institutions of land tenure on progress in extending secure livelihoods and citizenship - thereby building social inclusion - for all citizens of the country?
The ongoing fluidity around new and evolving land tenure laws and the uncertainty around existing laws have complicated the task of scoping land issues in the communal tenure areas. There are political sensitivities in government and civil society pending the passage of new laws around land tenure, land use management and traditional leadership, and ongoing uncertainty around resolution of:
The extent to which, or manner in which, new laws will address questions of land access for the present holders of informal land rights, both in the former bantustans and outside them; and whether a range of rights systems will be made available to those in formalizing or informal settlements;
The precise nature and content of the forms of land rights envisaged under the Communal Land Rights Bill (CLRB), still being drafted , and the status of existing off-register rights pending registration or transfer of land rights contemplated in the CLRB;
The institutional arrangements around the administration and protection of existing and new rights, and the extent to which the State will provide resources to support them;
The regulatory framework for spatial planning and land use management in relation to land held by "communities" to overcome the present anomalies between the "formal" and "informal" systems of land use allocation, regulation and management.
Footnotes
These areas are affected by the Transformation of Certain Rural Areas Act 94, 1998, originally defined by the Rural Areas Act 9 (House of Representatives) of 1987, which replaced the 1963 Coloured Rural Areas Act. After 1994, ownership vested with the Department of Land Affairs. These areas are still referred to as "Act 9 areas", and this term is used throughout this report.
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