Communal Land Rights Act needs to be revised

The Communal Land Rights Act of 2004 (CLaRA) provides for “legal security of tenure by transferring communal land … to communities.” Based on the wishes of the community, the Act also seeks to accommodate traditional leadership.

According to CLaRA, communal land is “land which is, or is to be, occupied or used by members of a community subject to the rules or custom of that community.” Within communal lands families have individual plots and other community members recognise the family’s right to use the land. As a member of the traditional community, the family may also have access to grazing land. Today, most communal land is state land that previously was part of the homeland system as well as land held by the Kwa-Zulu Natal Ingonyama Trust.

Members of four different communities have challenged the Act in the High Court. The applicants claim that CLaRA violates the constitutional right to secure tenure, imposes tribal authorities and undermines the position of women within traditional communities.

Without discussing the constitutionality of the Act, CLaRA is not a workable solution for providing legal security of tenure. The drafters effectively sabotaged the Act with complex new procedures and institutions. In order to implement CLaRA, educational programmes would have to be designed and carried out to educate rural communities on the new procedures and institutions created by the Act; additional resources would be needed by the Department of Land Affairs to attend to the requirements of CLaRA; and elections organised to provide for the transformation of traditional authorities into traditional councils (40 per cent of the members of traditional councils must be democratically elected).

The implementation process for CLaRA begins with a land rights enquiry. The enquiry 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, approved by the community and the Director General and registered. The rules must outline the administration and use of communal land. The community may decide to subdivide the communal land and pursue individual rights. Finally, a land rights board oversees the land administration committee at the provincial level and informs the Minister of any violations.

The Act creates new procedures and institutions- including land rights enquiries, land administration committees and land rights boards– that are meant to “provide for the democratic administration of communal land by communities,” implying that the existing systems are not democratic.

In fact, the consensus-building model of traditional leadership could be considered more democratic than any national democracy. When a community is presented with an issue - for example, to appoint a new headman, or induna - everyone must be satisfied with the appointment before a final decision is made. A government official dealing with traditional communities questions the national system of democracy: “How is it that, say, 202 people vote in favour of something while 200 others oppose it and the will of the 202 is imposed? How is that democracy? If it happens in traditional communities, everyone goes back and discusses the issue. They talk until they reach a compromise and everyone is happy.” The process of coming up with a compromise can take days.

A chief and leader of the Congress of Traditional Leaders (CONTRALESA) acknowledges that there is not a division of power in the traditional court: the chief presides over the court. The court is not adversarial in nature. Instead, the goal is for everyone to get along. Often the punishment is a way of “making it right.” For instance, if you steal someone’s crops you may have to work the field of the person from whom you stole. “The goal is for the community to live in harmony… they strive to shake hands.”

In trying to democratise communal land and traditional leadership, the drafters of CLaRA have created an unworkable Act. The Act allows for land to be registered in the name of a community or a person. Through community meetings, residents can decide how they want the new order rights to be held- should land remain communal or do residents want individual rights to land? Communities have systems for allocating land and determining land use that do not require the creation of a land administration committee.

The Communal Property Association (CPA) Act of 1996 provides for secure title within communal ownership. The CPA Act is less confusing than CLaRA and has been implemented in communities throughout South Africa. Unfortunately, as it is written, it discriminates against traditional leaders by not allowing them voting power within the CPA.

In addition, the Act and existing land tenure legislation does nothing to make tenure conversion for individuals any easier. Today, surveyors are obliged to document the land, town planers have to draft a development plan and conveyancers are required to make the legal transfer. A deeds register must be opened and a fee paid to register the property. In the end, it costs thousands of rand to make the conversion.

To eliminate some of these barriers, the government should use existing demarcations of land documented in “permission to occupy” or PTO certificates distributed by the Department of Land Affairs. These certificates, which indicate an occupier and a plot of land, should carry the option of being converted to freehold title. By handing out GPS devices to community leaders, communities could identify the coordinates of properties, and then record these details in a registry at little or no cost.

If the process of providing secure property title to traditional communities is to take place quickly and cheaply there must be mutual co-operation from all levels of government and a willingness to listen to the wishes of the people. There are methods to bring legally secure tenure to people throughout South Africa, and they can be implemented within the existing traditions and customs.

Author: Laura Grube, a graduate of Beloit College, is a Fulbright U.S. Student Programme member who is studying and participating in Free Market Foundation projects. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the Foundation.

FMF Feature Article / 23 June 2009