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More than socially embedded: The distinctive character of 'Communal Tenure' regimes in South Africa and its implications for land policy

Ben Cousins

Programme for Land and Agrarian Studies, University of the Western Cape

July 2007

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Introduction

Controversies over land tenure reform in post-apartheid South Africa resonate strongly with those raging elsewhere in Africa. This article focuses on a recent South African law, the Communal Land Rights Act of 2004, and relates debates around the Act to long standing arguments on the nature of land rights and authority over land in Africa, and on state policies to reform ‘customary’ land tenure. Given that compulsory and systematic individual titling is no longer seen as an appropriate policy in African contexts by most policy analysts, the central issue in tenure reform in many parts of Africa (and elsewhere) is how to recognize and secure land rights that are clearly distinct from ‘Western-legal’1 forms of private property but cannot be characterized as ‘traditional’ or ‘pre-colonial’, given the impacts of both colonial policies and of past and current processes of rapid social change.

The policy challenge is to decide what kinds of rights, held by which categories of claimants, should be secured through tenure reform, and in what manner, in ways that will not merely ‘add to possibilities of manipulation and confusion’ (Shipton and Goheen 1992, 318). The difficulties are underlined by consideration of the record to date, in which reform efforts have not taken sufficiently into account the reality of how tenure regimes operate in practice, leading to a variety of unintended consequences (Shipton 1988; Berry 1993). Securing the land rights of women and other vulnerable categories and interest groups has proved particularly difficult. The analytical challenge is to characterize complex and dynamic realities using appropriate concepts and theories, which might inform the design of policies and laws.

Another key issue is authority over land matters and the design of appropriate institutional frameworks for land administration. Power relations are key to understanding how tenure regimes work in practice, since ‘struggles over property are as much about the scope and constitution of authority as about access to resources’ (Lund 2002, 11). In particular, the powers and functions of ‘customary authorities’ in relation to land are highly controversial and widely debated. A particularly contentious issue, which the South African case clearly illustrates, is the demarcation of the jurisdictional boundaries of ‘customary authorities’, which has important implications for how land rights are defined and administered as well as for broader questions of local governance (see Lentz 2006 for an instructive Ghanaian case).

I argue in this article that the character of land tenure regimes in the ‘communal areas’ of South Africa are dynamic and evolving regimes within which a number of important commonalities and continuities over time are observable in many, but not all, circumstances. Some key underlying principles of pre-colonial land relations are identified, which informed adaptations of tenure regimes in the colonial era and in the subsequent period when policies of segregation and apartheid were pursued, and continue to do so in many areas today. Exploring the policy implications of this analysis, I suggest that the most appropriate approach to tenure reform in South Africa is to make socially legitimate occupation and use rights, as they are currently held and practised, the point of departure for both their recognition in law and for the design of institutional frameworks for mediating competing claims and administering land.


Footnote:
  1. Daley and Hobley (2005, 8) suggest this useful term for dominant notions of private property.


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