tag:theconversation.com,2011:/africa/topics/communal-land-41665/articlesCommunal land – The Conversation2023-09-21T13:27:43Ztag:theconversation.com,2011:article/2113652023-09-21T13:27:43Z2023-09-21T13:27:43ZZulu land dispute: Ingonyama Trust furore highlights the problem of insecure land tenure for millions of South Africans in rural areas<p>The recent <a href="https://www.dailymaverick.co.za/article/2023-06-04-the-battle-between-the-zulu-king-and-his-prime-minister-over-the-ingonyama-trust-is-likely-to-divide-kzn-voters-in-2024/">fallout</a> between the Zulu king, Misuzulu, and his now late traditional prime minister, Mangosuthu Buthelezi, over the running of the Ingonyama Trust highlights a pervasive problem in South Africa: insecure land tenure in rural areas. </p>
<p>The Ingonyama Trust administers about a third of the land in KwaZulu-Natal province. Buthelezi insinuated that the king – or those around him – wanted to corruptly sell the land for profit. He also questioned the competence of the board chairperson appointed by the king. The king denied the charge, saying the board would <a href="https://www.dailymaverick.co.za/article/2023-06-04-the-battle-between-the-zulu-king-and-his-prime-minister-over-the-ingonyama-trust-is-likely-to-divide-kzn-voters-in-2024/">“never allow the sale of the land”</a>.</p>
<p>But the legally questionable practices of the Ingonyama Trust, such as charging people rent on land they own communally, and its unilateral decision-making about communally owned land, reflect the <a href="https://theconversation.com/why-south-african-communitys-win-against-mining-company-matters-107746">insecurity of land tenure</a> for millions of rural South Africans. </p>
<p>Land disputes arise when the principles at the core of <a href="https://ci.uct.ac.za/sites/default/files/content_migration/health_uct_ac_za/533/files/living%2520customary%2520law%2520and%2520families%2520in%2520South%2520Africa.pdf">customary law</a> are breached. The breach can be by the state or by the representatives appointed by the communities to manage or administer the land on their behalf and for their collective benefit.</p>
<p>Constitutional <a href="https://scholar.ufs.ac.za/xmlui/handle/11660/12130">land reform measures</a> are intended to provide security of land tenure to all land holders equally. All laws, including customary law, are subject to the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>. Any law, rule or conduct found to be inconsistent with constitutional principles of human dignity, equality and freedom is invalid. </p>
<p>In areas run by traditional leaders, land is owned collectively, in line with <a href="https://ci.uct.ac.za/sites/default/files/content_migration/health_uct_ac_za/533/files/living%2520customary%2520law%2520and%2520families%2520in%2520South%2520Africa.pdf">customary law</a>. South African law <a href="http://www.saflii.org/za/cases/ZACC/2010/10.html">recognises</a> the application of living customary law, in accordance with the constitution.</p>
<p>Customary communal land tenure comes with inherent rights for land holders. They include collective ownership rights, equal benefit from the land and natural resources, and decision-making authority. </p>
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<p>My <a href="https://scholar.ufs.ac.za/xmlui/handle/11660/12130">research</a> areas include issues of rural land tenure, custodianship and property law. </p>
<p>In my view, the Ingonyama Trust has misconstrued <a href="http://www.saflii.org/za/journals/CCR/2011/4.pdf">customary communal land tenure</a>. Its dual application of both trust law and traditional customary law causes confusion. It’s not clear what the property rights of communal land holders are. Applying both sets of laws also blurs the limitations on the powers of the trust and traditional representatives. </p>
<p>Such misconstructions of customary law are often intertwined with corrupt practices and power mongering. These misconstructions preserve certain individuals’ powers and interests at the expense of the greater community. This occurs when understandings of individual private property ownership are applied to customary communal land tenure in a way that diminishes the need for communal consent and consultation.</p>
<p><a href="https://www.jstor.org/stable/24566755">Living customary law</a> – which is developed over time by the community, is specific to that community, and occurs through collective practice and decision-making in accordance with shared values and rules – is then supplanted by misapplications. These misconstructions can originate from various sources, such as statutory regulations, distorted common law beliefs, and patriarchal traditional leadership practices that masquerade as customary law. </p>
<p>The result is insecure tenure for rural land occupants. The Ingonyama Trust epitomises these problems.</p>
<h2>How customary communal land tenure works</h2>
<p>Customary <a href="https://www.academia.edu/37320502/Land_reform_political_instability_and_commercial%20_agriculture_in_South_Africa_An_assessment">communal land tenure</a> is found in communities that have a genealogical or ancestral connection to that land. Some are beneficiaries of the government’s <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000200004">land restitution programme</a>. They collectively hold all property rights to their land. </p>
<p>Living customary law gives them, collectively, the power to hold individual community members and leaders or representatives accountable for breaches of their fiduciary duties to the community.</p>
<p>Often a statutory entity is created, such as a trust or association, that regulates the way the land is managed. For example, some communities in the <a href="https://www.gov.za/issues/land-reform#:%7E:text=The%20Act%20makes%20provision%20for%20the%20restitution%20of%20rights%20in,and%20a%20Land%20Claims%20Court.">land restitution programme</a> are members of an association in terms of the <a href="https://www.gov.za/documents/communal-property-associations-act">Communal Property Associations Act</a>. </p>
<p>Such communities elect representatives who manage the administration of the association and have fiduciary responsibilities in terms of the act. Associations are governed by their constitution and the Communal Property Associations Act. Similarly, the Ingonyama Trust is governed by traditional customary law and the statutory trust framework. </p>
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<p>Both forms of communal land holding are distinguishable from private property ownership, which confers registered ownership rights on individuals. Private ownership is primarily governed by the common law. It gives the land owner autonomous decision-making powers with few limitations. The owner has extensive unilateral decision-making authority in respect of their privately owned land. They can, for example, transfer ownership, dispose of, or encumber their property (without consultation).</p>
<h2>The Ingonyama Trust and its tenure challenges</h2>
<p>The Ingonyama Trust was <a href="http://www.ingonyamatrust.org.za/">established in 1994</a> by the then KwaZulu Government to administer all land it held. It is a corporate entity and administers 2.8 million hectares of the land in KwaZulu-Natal. The territory was once administered by the erstwhile KwaZulu homeland. This followed <a href="https://www.tandfonline.com/doi/full/10.1080/02582473.2021.1909116">a deal hammered out earlier</a> to entice Buthelezi and his Inkatha Freedom Party to take part in the elections that ended apartheid. The province is a stronghold of the party.</p>
<p>The Zulu monarch is the sole trustee, even though the land is <a href="http://www.ingonyamatrust.org.za/wp-content/uploads/2015/10/Ingonyama-Trust-Act-as-amended.pdf">owned by the Zulu people</a>. The king represents the people and the land must be managed for their benefit and welfare. </p>
<p>The trust is plagued with disputes for not involving the community in its business transactions. There has been little evidence of collective benefit for the community. </p>
<p>The disputes expose unequal profit from trust assets, privileging a select few, instead of all the communal land holders equally. To sum up crisply: the trust has treated communal land like privately owned land.</p>
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<p>In 2022, the Supreme Court of Appeal <a href="https://lrc.org.za/24-august-2022-supreme-court-of-appeal-dismisses-ingonyama-trust-board-application-for-leave-to-appeal/">directed</a> the Ingonyama Trust to cease letting trust land to the land beneficiaries to whom the land belonged. It was ordered to repay the rent.</p>
<p>In 2017, <a href="https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf">a panel appointed by parliament to review post-apartheid legislation</a> recommended that the trust be amended or repealed. </p>
<p>However, such criticism is perceived by some as a slight against the king and is met with social and political resistance. The <a href="https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv02898.htm">Congress of Traditional Leaders of South Africa</a> contends that the Ingonyama Trust cannot be repealed, amended or dissolved without the king’s approval – in accordance with customary law. </p>
<h2>Traditional rule versus democracy</h2>
<p>The misapplication of tenure under the Ingonyama Trust exemplifies structural conflict between trust tenure and customary traditional rule. </p>
<p>The trust applies a form of traditional despotic rule that can be at odds with democratic principles enshrined in the constitution. Under traditional despotic rule or authoritarian rule, customary law is interpreted in a way that naturally limits the need for community consultation, consent and participation in all decision-making related to the land from the “subjects”. </p>
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<p>This despotic rule is also at odds with trust tenure and the communal landholding rights of rural communities. The extent to which the community is able to equally use and enjoy their land, and the economic benefits accruing from it for collective social and economic progress, should be the yardstick against which communal land tenure is measured, and land rights clarified and protected.</p><img src="https://counter.theconversation.com/content/211365/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthea-lee September-Van Huffel does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Land disputes arise when the fundamental principles of customary law are breached. The breach can be at the hands of the state or its representatives.Anthea-lee September-Van Huffel, Lecturer, University of the Free StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1629692021-06-22T13:13:11Z2021-06-22T13:13:11ZWhat landmark Kwazulu-Natal court ruling means for land reform in South Africa<figure><img src="https://images.theconversation.com/files/407432/original/file-20210621-30-10pn4h2.jpg?ixlib=rb-1.1.0&rect=0%2C47%2C528%2C342&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A rural homestead in KwaZulu-Natal, South Africa.</span> <span class="attribution"><span class="source">Collart Hervé/Sygma via Getty Images</span></span></figcaption></figure><p>In a landmark <a href="https://www.groundup.org.za/media/uploads/documents/itb_judgment_11_june_2021.pdf">judgment</a> a South African high court has declared that people living on customary land in the province of KwaZulu-Natal, notionally held in trust by the Ingonyama (king) of the Zulu people, are the “true and beneficial owners” of that land. </p>
<p>It confirms that the <a href="https://nationalgovernment.co.za/units/view/110/ingonyama-trust-board">Ingonyama Trust Board</a> is not the real owner of this land. It, therefore, cannot convert the customary land rights of occupiers to rent-paying leases as it has been doing.</p>
<p>The Trust is in fact only a notional owner of this land. It is mandated to administer the land “for the benefit, material welfare and social well-being” of members of the affected rural communities. It administers around 2.8 million hectares, amounting to about one third of the whole of the province. </p>
<p>The court also found that the minister in charge of land reform has breached her duty to respect, protect and promote these informal land rights, as required by law. She is responsible for overseeing the operations of the Trust, and ensuring that the land rights of communities are not infringed upon.</p>
<p>The judgement has massive implications for the government’s <a href="https://www.gov.za/issues/land-reform">land reform programme</a>. Tenure reform policy has yet to deliver legislation to secure the land rights of people in communal areas. The fact that the legislation required by the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">Constitution</a> is still absent, after 27 years of freedom, is a major blemish on the record of the governing African National Congress. </p>
<p>The reasons for the lacuna are primarily political, centred on the <a href="https://theconversation.com/unease-reigns-as-culture-and-the-constitution-collide-in-south-africa-41795">contested roles and powers of traditional leaders</a> in a democratic South Africa. In turn, this issue connects to the wider politics of <a href="https://pari.org.za/betrayal-promise-report/">“state capture”</a> - the refashioning of state institutions during the presidency of Jacob Zuma, (<a href="http://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">May 2009-February 2018</a>), to serve the interests of politically-connected elites.</p>
<p>The judgment lends support to efforts by President Cyril Ramaphosa to turn the tide on both <a href="https://www.sastatecapture.org.za/">state capture</a> in the narrow sense, and on <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-2018-state-nation-address-16-feb-2018-0000">corruption</a> more generally.</p>
<p>The judgment also sheds light on the marginal role of parliament in overseeing land affairs, the lack of transparency and accountability of bodies such as land trusts, and the absence of state capacity to deal with questions of land administration. It also highlights the lack of interest by successive ministers in curtailing the self interested actions of rural elites.</p>
<p>All these problems have been in evidence over many years. This is clear from even a cursory review of <a href="https://www.businesslive.co.za/bd/opinion/2018-04-05-why-giving-sas-chiefs-more-power-adds-to-land-dispossession/">government support for corrupt traditional leaders</a> in areas with large deposits of platinum, coal or titanium.</p>
<h2>Ingonyama Trust Board</h2>
<p>The <a href="https://www.ingonyamatrust.org.za/">Ingonyama Trust Board</a> was founded by the apartheid government <a href="http://www.cls.uct.ac.za/usr/lrg/downloads/FactsheetIngonyama_Final_Feb2015.pdf">in 1994</a>, just before the first democratic election. This is widely believed to have been a sop for the <a href="https://www.ifp.org.za/">Inkatha Freedom Party</a> to participate in that election, which it was <a href="https://www.sahistory.org.za/dated-event/ifp-agrees-participate-1994-elections">threatening to boycott</a>.</p>
<p>The democratic government amended the Trust’s founding act <a href="http://www.saflii.org/za/legis/num_act/kitaa1997435.pdf">in 1997</a>, establishing a board for the Trust. It also made it subject to the <a href="https://www.gov.za/sites/default/files/gcis_document/201505/act-57-1988_0.pdf">Trust Act of 1988</a>. As with other customary land held in trust by national government, “ownership” by the Trust is nominal. Administration of the land must be for the benefit of those occupiers.</p>
<p>In communal areas, most daily land administration tasks, such as approving applications for allocations of land, are carried out by traditional leaders (amakhosi) and village-based headmen (izinduna). Customary land rights derive from locally accepted membership of rural communities, mostly through descent but also of newcomers. They are protected by the Interim <a href="https://www.gov.za/sites/default/files/gcis_document/201409/act31of1996.pdf">Protection of Informal Land Rights Act</a>, 1996.</p>
<p>Some 12 years ago the Trust began to convert rights of customary ownership to rent-paying leases. It planned to escalate rental by 10% a year, to increase its own income. Residents who did not pay could in theory be evicted - although none have been to date. The court found that the land rights holders did not give consent to these “conversions”. It also <a href="https://www.groundup.org.za/media/uploads/documents/itb_judgment_11_june_2021.pdf">provides details</a> of how they were intimidated and deceived into signing leases. Both Trust officials and local traditional leaders were involved in the dispossession.</p>
<p>The <a href="https://www.cogta.gov.za/">portfolio committee of parliament for traditional affairs</a> and its panel on post-apartheid legislation, chaired by former president <a href="http://www.thepresidency.gov.za/profiles/former-president-kgalema-motlanthe">Kgalema Motlanthe</a>, have <a href="https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf">called attention to these problems</a>, but to no avail. Now, litigation against this abuse has succeeded, with the court ordering the Trust to repay the funds it extorted.</p>
<h2>Tenure reform and customary land rights</h2>
<p>What does this judgement mean for land rights in communal areas, home to the largest proportion of rural South Africans, who form <a href="https://documents1.worldbank.org/curated/en/530481521735906534/pdf/124521-REV-OUO-South-Africa-Poverty-and-Inequality-Assessment-Report-2018-FINAL-WEB.pdf">one third of the population</a>?</p>
<p>These areas provide essential resources, services and livelihoods to the poorest sections of South African society. They are a crucial cushion against <a href="http://www.statssa.gov.za/?page_id=1856&PPN=P0211&SCH=72943">rampant unemployment</a> and the insecurities inherent in capitalist economies today.</p>
<p>The court characterises these land rights in the <a href="https://www.groundup.org.za/media/uploads/documents/itb_judgment_11_june_2021.pdf">following terms</a>: land is allotted to a family head as residential and arable plots and access to communal pasture; no financial payments are involved, and land rights are inheritable. Land becomes the property of the family, and nothing may be done with such land without the involvement and consent of the owner.</p>
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<p>Land rights are closely tied to social and cultural relationships, and tenure security is derived in large part from locally legitimate landholding.</p>
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<p>The challenge for tenure reform policy is to express these principles in law in a way that provides certainty, and ensures the protection of land rights holders. This will lay a firm foundation for administrative systems focused on both support for rights holders (for example, in resolving disputes over land), and to facilitate development planning and service provision.</p>
<p>A further challenge is to clearly define and delimit the powers and functions of traditional leaders in relation to land. Policy has to promote full transparency and accountability in all aspects of land administration. This requirement can be met by the vesting of rights to land in families and not in institutions. Traditional leaders, trusts or other bodies with administrative roles would then have to be accountable to land rights holders.</p>
<p>The parameters suggested by the <a href="https://www.groundup.org.za/media/uploads/documents/itb_judgment_11_june_2021.pdf">judgment</a> should frame tenure reform. Worryingly, current drafts of the <a href="https://www.gov.za/sites/default/files/gcis_document/201707/40965gen510.pdf">Communal Land Tenure Bill</a> are based on the same paradigm as the 2004 law that <a href="https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/Commissioned_Report_land/Commisioned_Report_on_Tenure_Reform_LARC.pdf">was struck down in 2010</a> by the Constitutional Court, in which traditional leaders were empowered to act as if they are owners of the land. Any law informed by this paradigm is sure to be challenged again.</p>
<h2>Need for pressure from below</h2>
<p>If land reform is to return to a strong focus on the rights, opportunities and needs of ordinary black South Africans, as was the case <a href="https://www.gov.za/sites/default/files/gcis_document/201411/whitepaperlandreform.pdf">in the 1990s</a>, building the capacity of institutions responsible for both implementation and oversight of policies is vital. But, national policies also need clear political direction. </p>
<p>Here the main obstacle is the lack of mobilisation of rural dwellers, as well as those living in informal settlements, to push for pro-poor, structural change within a democratic political framework.</p>
<p>Although litigation using human rights lawyers is essential for preventing abuse, it is expensive and time consuming. This constrains wider impact. Often only the bravest of rural people are willing to stand up and make their voices heard as applicants and witnesses, as in this case. </p>
<p>But their courage shows what is possible. In greater numbers, and applying more sustained pressure from below, ordinary South Africans can ensure that the state begins to deliver the promises enshrined in the Constitution.</p><img src="https://counter.theconversation.com/content/162969/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ben Cousins has in the past received funding from the National Research Foundation. </span></em></p>The judgment highlights the lack of interest by successive government ministers in curtailing the self-interested actions of rural elites.Ben Cousins, Emeritus Professor, Poverty, Land and Agrarian Studies, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1483792020-11-01T07:57:35Z2020-11-01T07:57:35ZSouth Africa has another go at an expropriation law. What it’s all about<figure><img src="https://images.theconversation.com/files/366387/original/file-20201029-17-xy1661.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Young Sandi Sile on an abandoned structure in Makhanda, South Africa, in 2013. Questions remain about how the new law will treat abandoned land. </span> <span class="attribution"><span class="source">Getty Images</span></span></figcaption></figure><p>When South Africa officially became a constitutional democracy in South Africa on <a href="https://www.gov.za/documents/constitution/constitution-republic-south-africa-1996-1">4 February 1997</a> it heralded profound change in the way the country is governed. Once a racially oppressive pariah state, it became one based on freedom, human rights and the rule of law. </p>
<p>All laws that were not in keeping with the new constitution had to be changed to give effect to the rights enshrined in the new supreme law. One such law is the Expropriation Act, which governs how the government can acquire land owned by private citizens for public purposes such as building roads and railways. </p>
<p>The constitution changed the compensation standard from requiring the government to pay “market value” for such land to <a href="https://www.researchgate.net/publication/321670076_What_is_just_and_equitable_compensation_for_land_reform">“just and equitable”</a> compensation. The requirement that expropriation be in the public interest (which includes a commitment to land reform and other reforms) was included. The requirement that a fair procedure be followed when expropriating was included in section 33 of the <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-02.pdf">bill of rights</a>. </p>
<p>The constitution laid down a framework in which expropriation must happen, but did not provide the details of how. This is the role of legislation. Such legislation is necessary to bring the process in line with the constitution.</p>
<h2>Long, arduous process</h2>
<p>The first attempt at an Expropriation Bill was 12 years ago, in <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjk_fL937jsAhWQx4UKHaT3As0QFjAAegQIAhAC&url=https%3A%2F%2Fpmg.org.za%2Ffiles%2Fbills%2F080416b16-08.pdf&usg=AOvVaw2E61_FpIKOugF8btpYSAGm">2008</a>, but it was shelved because of the concern that it obscured the role of the courts in expropriation and would therefore be declared unconstitutional. </p>
<p>Another attempt was made in <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjiw5Tn37jsAhWBqqQKHXj-A4wQFjAAegQIAhAC&url=https%3A%2F%2Fwww.gov.za%2Fsites%2Fdefault%2Ffiles%2Fgcis_document%2F201409%2F36269gen234.pdf&usg=AOvVaw08hwxR5n2yTB8RbEdyd3gM">2013</a>. The 2013 bill was refined and became the 2015 bill, which made it onto the table of the president the same year, to be signed into law. But it was officially <a href="https://pmg.org.za/committee-meeting/26932/">withdrawn</a> in 2018 because the process of amending section 25 of the constitution was still not completed. Communities living on land in terms of customary law also had <a href="https://www.businesslive.co.za/bd/national/2018-12-24-draft-expropriation-bill-a-disappointment-for-land-rights-organisation/">reservations</a> about its constitutionality, including the public participation process. </p>
<p>The country is having another attempt at passing an expropriation law that is in keeping with the constitution. The 2015 version, with slight amendments and the addition of clauses 12(3) dealing with “nil compensation”, was published again in December 2018.</p>
<p>This new bill, the <a href="https://www.dalrrd.gov.za/docs/media/2020%2010%2011%20JOINT%20STATEMENT%20BY%20IMC%20ON%20LAND%20REFORM%20EXPROPRIATION%20BILL.pdf">2020 Expropriation Bill</a>, was recently published in the government gazette. Importantly, this bill is not a result of the process to amend section 25 of the constitution to enable expropriation at nil compensation.</p>
<h2>Section 25 amendment</h2>
<p>Section 25 sets down the requirements that the state has to comply with if it wants to expropriate property: it must be done in terms of a law of general application; it must be for a public purpose or in the public interest; and lastly, “just and equitable” compensation must be paid. </p>
<p>The <a href="https://pmg.org.za/committee-meeting/29530/">proposed section 25 amendment</a> makes it explicit that it might be “just and equitable” in some instances to pay nil compensation. But the state must still justify why not paying compensation is “just and equitable”. All other requirements must still be complied with. </p>
<p>Section 25 of the constitution provides the framework in which the 2020 Expropriation Bill will operate, once it becomes law. </p>
<h2>Why expropriation?</h2>
<p>Expropriation is a mechanism for the state to acquire property for public projects, such as the building of the railways, mass housing and roads. It is not only used in land reform instances, and is not only restricted to land.</p>
<p>Because expropriation is an administrative action by the government, the procedure must be just and give affected people an avenue for recourse in the case of abuse.</p>
<p>The 2020 Expropriation Bill sets out the procedure that the authorities must follow when expropriating property, how compensation must be calculated and paid, and where and when decisions can be challenged. </p>
<p>It includes a comprehensive mediation process, and guarantees access to the courts as the final form of oversight.</p>
<h2>Some contentious issues</h2>
<p>The bill has gone through consultative processes at the <a href="https://nedlac.org.za/">National Economic Development and Labour Council</a>, which facilitates consensus and cooperation between government, labour, business and the community in dealing with South Africa’s socio-economic challenges.</p>
<p>Still, there are a few unclear provisions that will most probably be focused on during the parliamentary public participation process. These are the definitions of “expropriation”, the provision for nil compensation and expropriating land from communities.</p>
<p><strong>Definition</strong></p>
<p>The definition of “expropriation” provides that an act will only be an expropriation if the state <em>acquires</em> the property. The concern is whether, if the property is expropriated for land reform purposes and transferred to a private beneficiary, it will be deemed an “acquisition by the state”. The bill obscures this a bit in clause 9(1)(a) where it seems to suggest that a private beneficiary can also “acquire” the property.</p>
<p>The legally correct route would be for the state to first acquire the property and then transfer it to the beneficiary. These actions can happen simultaneously in the Deeds Office and should not delay the transfer. The bill must reflect this.</p>
<p><strong>Nil compensation</strong></p>
<p>Clause 12(3) and (4) provides that</p>
<blockquote>
<p>it may be just and equitable for nil compensation to be paid where land is expropriated in the public interest, having regard to all relevant circumstances, including but not limited to …</p>
</blockquote>
<p>It then lists the instances where the state possibly foresees nil compensation to be applicable. The bill clarifies that this is, for example, land that is </p>
<blockquote>
<p>not being used and the owner’s main purpose is … to benefit from appreciation of market value. </p>
</blockquote>
<p>This might still be vague, but it does give a more precise indication that it is not property earmarked for development.</p>
<p>Similarly, it’s not clear how “abandoned land” will be handled. Will this bear the technical legal meaning that the owner abandoned the land with the intention of no longer being owner? Or will it also include land that the owner left because it was no longer safe to stay on? </p>
<p><strong>Communities</strong></p>
<p>Owners of land earmarked for expropriation have specific time-frames in which they must respond. It seems as if the time-frames in the bill were written with a single owner of land in mind, and not for situations where whole communities living on land in terms of customary law are concerned. </p>
<h2>The next steps</h2>
<p>What is desperately needed in the land reform context for expropriation to be a useful tool is redistribution legislation that authorises the expropriation, and sets out what must happen after the state has acquired the land. </p>
<p>In the meantime, the bill will now go to the committee of the National Assembly that will hopefully start the public participation process. The bill will also have to go to the National Council of Provinces, the house of parliament that ensures that provincial interests are taken into account on the national level. </p>
<p>Considering all that, the bill will probably only be finalised some time next year, if all goes well.</p><img src="https://counter.theconversation.com/content/148379/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elmien du Plessis does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The proposed new law has a long history. The country has been trying for almost 12 years now to come up with expropriation legislation that is in line with the constitution.Elmien du Plessis, Associate Professor of Law, North-West UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1217712019-08-20T13:04:43Z2019-08-20T13:04:43ZHow a chief defied apartheid and upheld democracy for the good of his people<figure><img src="https://images.theconversation.com/files/288184/original/file-20190815-136222-34o1j9.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Inkosi Mhlabunzima Maphumulo, right, with Dali Mpofu and Winnie Mandela in 1989. </span> <span class="attribution"><span class="source">Thobekile Maphumulo Family Papers, Author provided (No reuse)</span></span></figcaption></figure><p>The recently released report of President Cyril Ramaphosa’s <a href="http://www.thepresidency.gov.za/press-statements/president-ramaphosa-appoints-advisory-panel-land-reform">advisory panel</a> on land reform, and the latest efforts to force through <a href="https://theconversation.com/south-africa-still-has-a-long-way-to-go-to-settle-traditional-leadership-challenges-119009">two controversial traditional authority bills</a>, point to the continued legacies of changes to the relationship between traditional leaders, their followers, and land in South Africa’s history. </p>
<p>The panel calls for a resolution to the “<a href="https://www.gov.za/documents/final-report-presidential-advisory-panel-land-reform-and-agriculture-28-jul-2019-0000">contending philosophies around land tenure</a>” — those of individual rights and those of communalism. But as traditional leaders <a href="https://www.enca.com/news/contralesa-back-zulu-king-ingonyama-issue">fight to continue their control</a> over communally held land, there also needs to be a recognition that there are contending philosophies of traditional leadership. At times, these overlap.</p>
<p>This was evident at the meeting between a delegation from the Congress of Traditional Leaders of South Africa (Contralesa) and the then exiled African National Congress (ANC) in Lusaka, Zambia 30 years ago – on 18 August 1989.</p>
<p>The meeting released a joint memorandum. In it the parties called upon traditional leaders in South Africa to refuse to implement apartheid. The <a href="https://web.archive.org/web/20110427125959/http://www.anc.org.za/show.php?id=3843">document</a> recognised the profound effects of apartheid on South Africa’s traditional leaders: </p>
<blockquote>
<p>From leaders responsible and responsive to the people, you are being forced by the regime to become its paid agents. From being a force for unity and prosperity you are turned into perpetrators of division, poverty and want among the oppressed. The so-called <a href="https://www.sahistory.org.za/article/homelands">homeland system</a>, land deprivation, forced removals and the denial of basic political rights – all these and more are the anti-people policies that the white ruling clique forces the chiefs to implement on its behalf.</p>
</blockquote>
<h2>Contending views of chieftancy</h2>
<p>The ANC and the Contralesa delegation called on a historical understanding of traditional authority in which a leader’s authority came from their followers. This understanding is embodied by the isiZulu proverb <em>inkosi yinkosi ngabantu</em> (a chief is a chief by the people who <em>khonza</em> him, or pay allegiance to him). <em>Ukukhonza</em> is a practice of political affiliation. It is one that binds chiefs and their subjects and allows for accountability.</p>
<p>Colonialism and apartheid sought to make traditional leaders accountable to white officials by tying them to land. Historian Percy Ngonyama called this <em>inkosi yinkosi ngendawo</em> (a chief is a chief by territory). Doing so effected territorial segregation. It also allowed white officials to govern through a mimicry of pre-existing political structures.</p>
<p>Colonial officials came to interpret <em>ukukhonza</em> as a practice of subservience. But in fact, historically, this was a reciprocal practice. Paying allegiance to a chief came with expectations of physical and social security.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=797&fit=crop&dpr=1 600w, https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=797&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=797&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1002&fit=crop&dpr=1 754w, https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1002&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1002&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>My recent <a href="http://www.ukznpress.co.za/?class=bb_ukzn_books&method=view_books&global%5Bfields%5D%5B_id%5D=552">book</a>, To Swim with Crocodiles: Land, Violence and Belonging in South Africa, 1800 - 1996, is a history of <em>ukukhonza</em>. It shows how even as colonialism and apartheid sought to break down personal bonds of <em>ukukhonza</em>, people used knowledge about the practice to make claims on land and on their leaders. </p>
<p>In the case of Inkosi Maphumulo, the claims were for physical security in times of violence.</p>
<h2>Inkosi Mhlabunzima Maphumulo</h2>
<p><a href="https://www.sahistory.org.za/people/mhlabunzima-joseph-maphumulo">Inkosi (Chief) Mhlabunzima Maphumulo</a> (1949-1991) led the Contralesa delegation to Lusaka. He governed in the Table Mountain region, an area just outside of Pietermaritzburg, in KwaZulu-Natal. His life, tragically cut short by an apartheid hit squad, provides insight on these overlapping concepts of chiefly authority – <em>inkosi yinkosi ngabantu</em> and <em>inkosi yinkosi ngendawo</em>. </p>
<p>Inkosi Maphumulo was the fourth chief of a colonially created chiefdom that from its genesis in 1905 was tied to land south of the <a href="http://www.dwaf.gov.za/iwqs/rhp/state_of_rivers/state_of_umngeni_02/history.html">Umngeni River</a> at <a href="https://www.google.com/search?rlz=1C1NHXL_enZA711ZA711&q=table+mountain+pietermaritzburg&tbm=isch&source=univ&sa=X&ved=2ahUKEwiNz9T18f_jAhVKJVAKHbBzCQUQsAR6BAgGEAE&biw=1261&bih=636">Table Mountain</a>. The existence of two types of chiefdoms served to “divide and rule”. It pitted leaders who saw themselves as having historical authority against those with new authority from the colonial regime. </p>
<p>From his installation in 1973, he carried out the duties of the chieftaincy within the structures of the nascent KwaZulu bantustan. The so-called <a href="https://www.sahistory.org.za/article/homelands">“bantustans” or “homelands”</a> were the ultimate level of the three tiered system of governance designed to ensure segregation in South Africa – not only on racial, but also ethnic lines. The bantustans built on so-called <a href="https://repository.up.ac.za/bitstream/handle/2263/24222/02chapter2.pdf?sequence=3&isAllowed=y">tribal authorities</a> such as that of the region Maphumulo governed. </p>
<p>One of Inkosi Maphumulo’s priorities was to provide land to his subjects during a time when territorial segregation constrained black South Africans’ access to land. He tirelessly pursued a contested strip of land that bisected his territory but, according to apartheid-defined boundaries, fell neither under his control nor that of a neighbouring chief.</p>
<p>The government gazette that outlined the boundaries of the Inkosi Maphumulo Tribal Authority in 1957 made its leaders chiefs by land. Colonial officials had been putting down boundaries in Natal for over 100 years. But apartheid’s <a href="https://www.sahistory.org.za/archive/bantu-authorities-act%2C-act-no-68-of-1951">Bantu Authorities</a> finalised this process and fully bounded chiefdoms. </p>
<p>But Inkosi Maphumulo was a leader who did not forget the responsibilities of chief by the people, even as he pursued land to allocate to his followers. By the time he flew to Lusaka, he had become known as the “peace chief”. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Maphumulo the peace maker.</span>
<span class="attribution"><span class="source">New African, April 17, 1989</span></span>
</figcaption>
</figure>
<p>As violence spread across the Natal Midlands from 1985 in a state-sponsored civil war, Inkosi Maphumulo organised peace initiatives. And, through Contralesa, he set up a commission of inquiry into the causes of the conflict. </p>
<p>He spoke out against police partiality and cooperation with Inkatha, which was engaged in a deadly conflict with the ANC and the broader liberation movement. He also welcomed refugees of all political affiliations from war torn townships onto land at Table Mountain. He described the process by which this happened to the press:</p>
<blockquote>
<p>People are not made to pay money to live in the area, but in our tradition they are expected to pay ‘khonza’—a tribute to the chief… A goat is sufficient for ‘khonza’ but if a person does not have one, then a small amount of money, depending on the person’s circumstances, is expected.</p>
</blockquote>
<h2>Land and belonging</h2>
<p>Inkosi Maphumulo spoke of rights to land as tied to belonging in a chiefdom, a process facilitated by <em>ukukhonza</em>. There was a slight hitch. The neighbouring Nyavu chiefdom, who claimed precedence in the region – to the time of King Shaka, if not before – believed the land onto which Maphumulo located refugees belonged to them. </p>
<p>While Inkosi Maphumulo sought to provide expected security to his followers, both old and those who newly paid allegiance to him, his neighbours and some among his followers who contested his chieftaincy saw the newcomers as interlopers. Peace would <a href="http://disa.ukzn.ac.za/sites/default/files/pdf_files/aff00000000.043.027.pdf">not remain</a> at Table Mountain.</p>
<p>As the violence spread to the area, people used the cultural inheritance of <em>ukukhonza</em> to define who had access to the contested land, and who could expect security from their chief. Inkosi Maphumulo believed himself responsible for the new residents because they had paid allegiance to him. As the conflict raged, he reflected:</p>
<blockquote>
<p>I had done all I could to ensure peaceful coexistence in my area. What had I done wrong?</p>
</blockquote>
<p>He sought to expand his territory, but respected the demands of <em>ukukhonza</em> with his attempts to promote political tolerance, provide a safe haven, and end the violence.</p>
<h2>Chiefaincy and land reform</h2>
<p>Inkosi Maphumulo did not live to see the dawning of democracy in South Africa. But these overlapping concepts of chief by the people and chief by land embodied in his leadership need to be brought to the forefront in current discussions about traditional authority and land reform. </p>
<p>Even after the territorial rule of colonialism and apartheid took hold among chiefs, Inkosi Maphumulo’s belief in the concept of <em>inkosi yinkosi ngabantu</em> spurred him to pursue peace and promote political tolerance.</p>
<p>Enshrining the control of land by traditional leaders in <a href="https://mg.co.za/article/2019-08-07-secret-details-of-the-land-deal-that-brought-the-ifp-into-the-94-poll?fbclid=IwAR1crtWUQX3RseTPGSua0-0FRZhRv7niLms6KJQBe0tv5bIg8tcNF4TWCkc">recent</a> and newly proposed laws gives precedence to the <em>inkosi yinkosi ngendawo</em> of colonial and apartheid rule at the expense of the people of <em>inkosi yinkosi ngabantu</em>.</p><img src="https://counter.theconversation.com/content/121771/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jill E. Kelly's research has been supported by the American Council of Learned Societies (2015) and Fulbright (2010-2011, 2018-2019). </span></em></p>Colonialism and apartheid sought to make traditional leaders accountable to white officials by tying them to land.Jill E. Kelly, Associate Professor of History, Southern Methodist UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1077462018-12-13T12:26:55Z2018-12-13T12:26:55ZWhy South African community’s win against mining company matters<figure><img src="https://images.theconversation.com/files/249267/original/file-20181206-128196-132mrc4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Xolobeni villager protesting against mine development.</span> <span class="attribution"><span class="source">Flickr/Patricia Alejandro</span></span></figcaption></figure><p>A South African High Court has passed an important <a href="http://www.saflii.org/za/cases/ZAGPPHC/2018/829.html">judgment</a> putting a stop to <a href="https://www.wits.ac.za/media/migration/news-migration/files/SWOP%20%20WP%20%20Bakgatla%20%20Mnwana%20and%20Capps.pdf">the pervasive practice</a> by companies to mine ancestral lands in rural areas without the villagers’ consent.</p>
<p>The case was brought by the community of rural UMgungundlovu, a small cluster of villages that fall under the Amadiba traditional authority on the largely undeveloped coast of the Eastern Cape Province. The place is also known as <a href="https://za.geotargit.com/index.php?qcountry_code=ZA&qregion_code=05&qcity=Xolobeni">Xolobeni</a>. </p>
<p>The villagers have been resisting plans by the Australian mining company, Transworld Energy and Mineral Resources, to mine their land for titanium and other heavy minerals for <a href="https://www.dailymaverick.co.za/article/2016-03-24-goodbye-bazooka-wild-coast-anti-mining-activist-killed/">at least a decade</a>.</p>
<p>The government granted the firm’s holding company, Mineral Resources Commodities, a mining licence in 2008, with the support of the chief who ostensibly represented the villagers, much to their disgruntlement. The state later <a href="https://mg.co.za/article/2011-06-07-wild-coast-mining-rights-revoked">revoked</a> the licence due to lack of consultation with the community. The conflict deteriorated into violence – <a href="https://www.dailymaverick.co.za/article/2016-03-24-goodbye-bazooka-wild-coast-anti-mining-activist-killed/">including murder</a>. </p>
<p>In this court battle, Xolobeni villagers fought not only to be consulted, as required by law, but – as the owners of the land – for the power to give consent to mining.</p>
<p>The court ruling is, therefore, a major victory for them. But subtle points remain to be worked out in a country that legally recognises tradition and <a href="https://theconversation.com/south-africas-courts-and-lawmakers-have-failed-the-ideal-of-cultural-diversity-91508">customary law</a>, on condition that these must ultimately conform with the values of the <a href="https://www.gov.za/documents/constitution-republic-south-africa-1996">Constitution</a>.</p>
<h2>Free and informed consent</h2>
<p>The court ruled that the Minister of Mineral Resources had no legal authority to grant a mining licence, unless the Minister and the Director General of Rural Development and Land Reform had implemented the provisions of an act <a href="https://www.gov.za/documents/interim-protection-informal-land-rights-act">that covers protection to informal land rights</a>. A key provision on which the Xolobeni community based their demands is a section of the act that states:</p>
<blockquote>
<p>… (No) person may be deprived of any informal right to land without his or her consent.</p>
</blockquote>
<p>The court also confirmed that the UMgungundlovu community – and other customary rights holders – are entitled, not just to be consulted - under the <a href="http://www.dmr.gov.za/Portals/0/mineraland_petroleum_resources_development_actmprda.pdf">Mineral Petroleum Resources Development Act</a> - but to free, prior and informed consent before a mining right can be granted on their land. This is in line with international human rights law. </p>
<p>This is a significant victory for the people of Xolobeni and other rural communities who face dispossession of their ancestral land due to mining in South Africa. </p>
<p>But, for this court victory to translate into real power for rural communities, a few issues need to be made explicit. These include clarity about what is meant by “custom” and who has power over the different categories of rural land. There is also the need to appreciate the true meaning of land to rural African communities.</p>
<h2>Customary communities</h2>
<p>Some people may think that “customary communities” are homogeneous groups living in areas that were set aside for them under apartheid <a href="http://www.sahistory.org.za/article/homelands">according to an ethnic identity</a>. They may also think that these groups’ interests and views can be represented and protected by local chiefs.</p>
<p>The judgment, although groundbreaking in terms of enforcing the protection customary rights when it comes to land, makes it even more important to understand the nature and content of custom. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/249216/original/file-20181206-128199-z99jrt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/249216/original/file-20181206-128199-z99jrt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/249216/original/file-20181206-128199-z99jrt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/249216/original/file-20181206-128199-z99jrt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/249216/original/file-20181206-128199-z99jrt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/249216/original/file-20181206-128199-z99jrt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/249216/original/file-20181206-128199-z99jrt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Court judgment prevents Australian firm mining without South African rural villagers’ consent.</span>
<span class="attribution"><span class="source">Flickr/Patricia Alejandro</span></span>
</figcaption>
</figure>
<p>The content of precolonial African custom was reshaped and distorted by colonialism and <a href="https://www.sahistory.org.za/article/history-apartheid-south-africa">apartheid</a> in South Africa. The whole scale colonial process of “formalisation” of custom enhanced the power of colonial chiefs over land and people. According to <a href="https://press.princeton.edu/titles/11315.html">Ugandan academic and author Mahmood Mamdani</a>, the colonial version of custom</p>
<blockquote>
<p>was not about guaranteeing rights, it was about enforcing custom. It was not about limiting the power of local chiefs and the colonial state, but about enabling it.</p>
</blockquote>
<p>The Xolobeni judgment secures customary rights through the 1996 interim law protecting customary rights over land. But questions remain about which social units have the power to decide on which categories of rural land.</p>
<p>In practice, access to African property rights depend on membership to a particular group and the way society allocates power over property. If decisions on land are to be left to the domain of custom, it should be made clear by those who subscribe to local customary law: </p>
<ul>
<li><p>which social categories – including gender, age, marital status, level of authority – are likely to hold more power than others to decide on the control and distribution of certain categories of land and why;</p></li>
<li><p>which local authority - allocates rights to and power over various categories of land, and why; </p></li>
<li><p>how does power (of access, use, distribution) over land gets distributed at the family level, and who gets to decide about land at this micro level?;</p></li>
<li><p>if power is not shared equally, what will that mean when communities are asked to consent to mining? How will compensation for loss of land be allocated?</p></li>
</ul>
<h2>Democratic discussion</h2>
<p>Land carries multiple meanings among Africans. It’s, among other things; a home and a place to grow food. It is a space for cultural, political, social and spiritual fulfilment and dignity. It’s also a place for political belonging and identity, and property - that is owned and shared by members of families or other units. </p>
<p>There is a common misconception that customary land rights in Africa are always “communal”. This is not always the case. A large communal group may take decisions about land for livestock grazing and the use of natural resources such as herbs, trees and thatch grass. But, it is families and individuals who decide on land where homesteads, ploughing fields, and in some instances graves are located. African living custom does not allow any outside authority, even that of a local chief, to take away such land.</p>
<p>Xolobeni villagers fought for recognition as holders of legitimate property rights on land – not only as “community” members, but as families and individuals who have inalienable rights to certain categories of land and resources. </p>
<p>Now that customary land rights are <a href="https://theconversation.com/south-african-court-resets-power-balance-between-villagers-mines-and-chiefs-106633">gaining legal recognition</a>, it’s time to open a democratic discussion about customary rights.</p><img src="https://counter.theconversation.com/content/107746/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sonwabile Mnwana receives funding from the Open Society Foundation South Africa. </span></em></p>Villagers from a community in South Africa’s Eastern Cape fought to be consulted and for the power to consent to mining their land.Sonwabile Mnwana, Associate Professor, Sociology, University of Fort HareLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/981062018-11-13T14:38:09Z2018-11-13T14:38:09ZWhy giving South Africans title deeds isn’t the panacea for land reform<figure><img src="https://images.theconversation.com/files/223368/original/file-20180615-85845-1yzicf7.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">DSC</span></span></figcaption></figure><p>The land reform debate in South Africa has become increasingly polarised since Parliament resolved to consider <a href="https://www.sanews.gov.za/south-africa/national-enquiry-fast-track-land-reform">amending</a> the country’s Constitution to allow for the expropriation of land without compensation.</p>
<p>But the <a href="https://www.news24.com/SouthAfrica/News/parliament-concerned-about-slow-pace-of-land-reform-20170519">slow pace</a> of <a href="http://ccs.ukzn.ac.za/files/LandreforminSouthAfrica.pdf">land reform</a> – a process that aims to address the dispossession of the previously oppressed black majority – will not be solved by amending the Constitution. That’s because the main problems with the country’s land reform programme have nothing to do with it.</p>
<p>The main problem lies with the government’s thinking behind land reform. It’s rooted in a Western, <a href="http://www.plaas.org.za/plaas-publication/ruralstatusrep-bk3-weinberg">colonial</a> mindset that’s totally out of step with how many would-be beneficiaries understand land.</p>
<p>The problem stems from the fact that indigenous systems of land ownership are not the same as the absolute ownership approach preferred by the West. Nor are they what early colonialists assumed when they adopted a <a href="http://www.ee.co.za/article/addressing-shortcomings-land-tenure-reform-customary-land-rights.html">communal paradigm</a>, assuming that land was collectively owned by indigenous communities. This was not the case. Some land was for communal use (particularly grazing and some agricultural land), but families and individuals held exclusive use rights over other areas such as homesteads.</p>
<p>The legacy of this is devastating. Adherence to a communal paradigm strips people of the ability to hold land rights individually. This is unconstitutional. Yet the paradigm persists: we can see it in, for example, the <a href="http://www.customcontested.co.za/laws-and-policies/communal-land-rights-act-clara/">communal land rights Act</a>, and the <a href="http://www.customcontested.co.za/wp-content/uploads/2013/11/06-AUG-2013-Communal-Land-Tenure-Policy-v2.pdf">communal land tenure policy</a>.</p>
<p>South Africa needs to move away from the communal paradigm that entrenches colonial and apartheid-era thinking, and move towards an approach that’s better aligned to living norms and traditions.</p>
<p>Rejecting the communal paradigm, I prefer to refer to <a href="http://www.land-links.org/issue-brief/the-future-of-customary-tenure/">customary land tenure</a> to describe how indigenous communities manage their land. Customary tenure systems are regulated by traditional norms and practices, within which land rights are socially embedded. They are dynamic, multi-layered and responsive to the needs of the community. As a result, and contrary to common perception, they <em>can</em> offer secure tenure.</p>
<p><a href="https://hsf.org.za/publications/focus/focus-70-on-focus/focus-70-oct-g-pienaar.pdf">What is required</a> is legislation to recognise and protect them, and for such legislation to be properly implemented. This, unfortunately, is not the government’s approach.</p>
<h2>Flawed thinking</h2>
<p>The government sees customary tenure as insecure and an impediment to economic development. In terms of the <a href="http://www.plaas.org.za/sites/default/files/publications-pdf/Landreform.pdf">Green Paper on Land Reform</a>, land in South Africa may only be owned by a <a href="http://www.plaas.org.za/plaas-publication/ruralstatusrep-bk3-weinberg">“small elite”</a>. The <a href="http://www.ruraldevelopment.gov.za/phocadownload/Policies/state_land_lease_and_disposal_policy_25july2013.pdf">State Land Lease and Disposal Policy</a> (which does not provide for ownership, but allows beneficiaries of land redistribution to lease land from the State), has been criticised as showing the government’s lack of faith in <a href="http://www.plaas.org.za/blog/whats-wrong-governments-state-land-lease-disposal-policy-and-how-can-it-be-remedied">poor black farmers</a>. And the <a href="http://www.customcontested.co.za/wp-content/uploads/2013/11/06-AUG-2013-Communal-Land-Tenure-Policy-v2.pdf">Communal Land Tenure Policy</a> seeks to transfer ownership of customary land to tribal authorities.
This <a href="http://www.plaas.org.za/blog/communal-land-tenure-policy-state-land-grabbing-and-coercive-use-land-create-voting-blocks">deprives land rights-holders</a> of their land rights, rendering them subjects of the chief instead of citizens of the country. Such an approach is unequivocally unconstitutional.</p>
<p>Globally, individual title to land (ownership) is seen as the ultimate goal because it allows people to access the capital value of their land and promotes investment. This view is supported by both the African National Congress and the main opposition party, the <a href="https://www.da.org.za/2018/03/da-has-proud-record-on-land-reform-and-we-reject-land-expropriation-without-compensation/">Democratic Alliance</a>. </p>
<p>Titling is seen as a sure way to lift people out of poverty. But the link between giving people title deeds to their land and poverty alleviation in sub-Saharan Africa is <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/j.1467-7660.1996.tb00578.x">contested</a>.</p>
<h2>Ownership</h2>
<p>Titling, or the formalisation approach is <a href="http://www.ee.co.za/article/land-rights-people-want.html">supported</a> by some people, while others argue <a href="http://theconversation.com/why-title-deeds-arent-the-solution-to-south-africas-land-tenure-problem-82098?utm_medium=email&utm_campaign=Latest%20from%20The%20Conversation%20for%20August%2014%202017%20-%2080696483&utm_content=Latest%20from%20The%20Conversat">against</a> it. Those who oppose it warn that it could bring about greater insecurity of land tenure, especially for women and other vulnerable groups. </p>
<p>From <a href="http://www.ee.co.za/article/addressing-shortcomings-land-tenure-reform-customary-land-rights.html">interviews I conducted</a> with customary land rights-holders in the Eastern Cape, the biggest fears around formalisation were:</p>
<ul>
<li><p>Having title to land is expensive because you are immediately liable for rates and taxes, and banks may seize your property should you default on loan repayments.</p></li>
<li><p>For the poor and vulnerable, especially, this may lead to a decrease in tenure security and push them further into poverty.</p></li>
<li><p>Titling also leads to a loss of tribal identity because individuals may choose to sell their lands to outsiders who do not identify with the traditions and customs of the area.</p></li>
</ul>
<p>Government views formalisation through registration and title as a <a href="https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/Commissioned_Report_land/Commissioned_Report_on_Spatial_Inequality.pdf">quick fix “silver bullet” solution</a>, but it’s beset with “intractable problems and conflicts”. </p>
<p><a href="http://reference.sabinet.co.za/sa_epublication_article/ju_jur_2011_a9">In some cases</a>, beneficiaries of land titling programmes revert to customary practices. This is partly because they don’t identify with government’s imposed system of ownership.</p>
<h2>Customary tenure systems</h2>
<p>A conservative approach is to recognise customary tenure systems that are socially embedded and that may offer more security than ownership through titling. Such recognition represents a shift away from the <a href="http://www.econ3x3.org/article/land-and-property-rights-title-deeds-usual-won%E2%80%99t-work">supremacy of ownership</a> that views individual title as the be all and end all. </p>
<p>In South Africa, both the <a href="https://www.gov.za/tn/documents/interim-protection-informal-land-rights-act">Interim Protection of Informal Land Rights Act</a> and the former <a href="http://saflii.org/za/legis/num_act/lrarlaa1999423.pdf">Land Rights Bill of 1999</a> adopted a conservative approach. Both documents recognised existing land rights and sought to protect and further strengthen them. But Interim Protection of Informal Land Rights Act is <a href="https://agbiz.co.za/uploads/AgbizNews16/160211_CommunalLandAninkaClaasens.pdf">often overlooked</a>, and the Bill was <a href="https://pmg.org.za/committee-meeting/3436/">scrapped</a>.</p>
<p>Current policies seek to undermine customary land rights-holders, allowing them only to lease land from the state or to have secondary use rights as subjects of traditional authorities. South Africa needs a new approach, one that challenges the supremacy of titling and casts off the shackles of the communal paradigm.</p><img src="https://counter.theconversation.com/content/98106/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon Hull is employed by the University of Cape Town. He is a member of the South African Geomatics Institute, the GeoInformation Society of South Africa, and is a professional land surveyor registered with the South African Geomatics Council.</span></em></p>The main reason land reform in South Africa has been lethargic is not the Constitution, but a flawed approach.Simon Hull, Senior lecturer, Division of Geomatics, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1033792018-09-26T11:43:10Z2018-09-26T11:43:10ZWhy Namibians want fresh impetus behind land reform<figure><img src="https://images.theconversation.com/files/237490/original/file-20180921-88806-z9gpvy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Land reform discussions in Namibia don't address capital or profits.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Twenty-eight years after independence, wealth in Namibia is still skewed along racial lines laid down in the colonial period. The level of inequality is one of the highest in the world, according to the <a href="https://data.worldbank.org/indicator/si.pov.gini">World Bank</a>.</p>
<p>Land distribution plays a big part in keeping this pattern of inequality in place, and the country is holding its <a href="http://www.mlr.gov.na/land-conference1">Second National Land Conference</a> in October to discuss reform. But many Namibians are unhappy with this approach – and new forms of inequality are emerging too. This calls for a more radical approach to distribute not only land, but wealth more evenly. </p>
<p>The October conference will focus on the fact that 48% of the land is privately owned (freehold), 35% is communal land vested in the state and administered by customary authorities, and the rest (17%) is state land link to (Namibia Statistical Agency, 2018), including national parks and restricted areas. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/236653/original/file-20180917-158225-1pzejk5.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/236653/original/file-20180917-158225-1pzejk5.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=289&fit=crop&dpr=1 600w, https://images.theconversation.com/files/236653/original/file-20180917-158225-1pzejk5.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=289&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/236653/original/file-20180917-158225-1pzejk5.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=289&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/236653/original/file-20180917-158225-1pzejk5.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=363&fit=crop&dpr=1 754w, https://images.theconversation.com/files/236653/original/file-20180917-158225-1pzejk5.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=363&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/236653/original/file-20180917-158225-1pzejk5.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=363&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
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</figcaption>
</figure>
<p>Over 70% of the Namibian population make their living from communal land, but fewer than 5000 individuals - out of a population of just over <a href="https://www.google.co.za/search?q=what+is+the+population+of+namibia+in+2018&rlz=1C1NHXL_enZA711ZA711&oq=what+is+the+population+of+Namibia&aqs=chrome.1.0l6.10930j0j7&sourceid=chrome&ie=UTF-8">2.5 million</a>- own freehold farmland. The pattern of land distribution and ownership reflects class inequality and perpetuates racial inequalities. </p>
<p>This inequality is a direct consequence of land dispossession during the colonial and later apartheid eras and its division into the three categories. </p>
<p>Since independence <a href="http://www.sahistory.org.za/dated-event/namibia-gains-independence">in 1990</a>, the land reform programme has focused on two ways of correcting historical wrongs. The <a href="http://www.mlr.gov.na/documents/20541/634749/National_Resettlement_Policy.pdf/5514cc05-c81a-4195-a80f-a41e131474e1">National Resettlement Programme</a> allows the government to buy freehold land to resettle landless Namibians. It has followed the “willing seller, willing buyer” principle. The <a href="http://agribank.com.na/product/affirmative-action-loan-scheme-aals-1">Affirmative Action Loan Scheme</a> allows formerly disadvantaged people to get subsidised loans from the Agricultural Bank of Namibia to buy land. </p>
<p>There is general discontent with the success of the programme and calls are growing for the land reform programme to be reviewed and for a new direction. </p>
<h2>Policy failure</h2>
<p>Since 1990, only <a href="https://cms.my.na/assets/documents/NamibiaLandStatistics2018Draft.pdf">3 million hectares</a> of land have been acquired through the National Resettlement Programme and <a href="https://cms.my.na/assets/documents/NamibiaLandStatistics2018Draft.pdf">6.4 million hectares</a> through the Affirmative Action Loan Scheme and private commercial banks. About <a href="https://cms.my.na/assets/documents/NamibiaLandStatistics2018Draft.pdf">70%</a> of the freehold agricultural land is still owned by white people. The previously disadvantaged (black and coloured people) <a href="https://cms.my.na/assets/documents/NamibiaLandStatistics2018Draft.pdf">own only 16%</a>. </p>
<p>There’s a scramble among the previously disadvantaged for what little freehold land has been acquired by the government for resettlement. A new elite, often with close ties to government and international investors - rather than the most disadvantaged - tend to benefit. </p>
<p>As for communal lands, increasing demand and a variety of new uses of the land are posing a challenge to customary rights and systems. Emerging <a href="https://neweralive.na/posts/illegal-sale-of-customary-land-rampant">informal land markets</a> in populated areas threaten people’s security of tenure and their user rights. What Namibia needs in these areas is a plan for thorough agrarian reform.</p>
<p>The land reform discussions don’t address the way land is being turned into capital, or who profits from it. Very few of the commercial farms are profitable agriculturally, and the most lucrative farm lands are now the ones with mining, tourism, trophy hunting, conservation or real estate potential. Many landowners have long since withdrawn the capital from their land and put it into these more profitable business. </p>
<h2>Redistributive justice</h2>
<p>To bring about redistributive justice, Namibia needs to analyse where the profits go that are gained through the capitalisation of land that was stolen in colonial times. </p>
<p>Urban land, much of it still owned by the old elite, is where real profits are made today. As in many other African countries, the profits made in Namibia by international conglomerates or the small Namibian elite no longer come directly from land ownership. They come from owning the capital to invest, from having the know-how and networks to link up with global markets, or from owning urban land paid for by selling private farm land illegally acquired during colonial and apartheid times. A national and international elite has withdrawn its capital from the land, while the majority of the people never had a chance to accumulate land or capital.</p>
<p>The shortcomings of the current land reforms suggest that voluntary, market-based transactions of land might not be a suitable measure to redistribute land, not to speak of wealth and power. The “policy” of national reconciliation has delivered one-sided benefits. The politics of national reconciliation are used to justify the status quo - an avoidance strategy to address the structural problems in Namibia. A more radical approach must be considered to redistribute land and capital. Only then will formerly disadvantaged people become equal co-owners of Namibia’s land and wealth.</p><img src="https://counter.theconversation.com/content/103379/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Shortcomings of Namibia’s land reforms suggest that voluntary, market-based transactions might not be suitable.Luregn Lenggenhager, Researcher at the Centre for African Studies, University of BaselRomie Vonkie Nghitevelekwa, Sociology Lecturer, University of NamibiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/893872018-01-14T08:33:08Z2018-01-14T08:33:08ZZimbabwe urgently needs a new land administration system<figure><img src="https://images.theconversation.com/files/200900/original/file-20180105-26160-1vwdvct.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">REUTERS/Siphiwe Sibeko</span></span></figcaption></figure><p>Zimbabwe urgently needs a new system of land administration to harness development in the agricultural sector. The country’s land use and ownership have been significantly reconfigured by the <a href="http://www.tandfonline.com/doi/full/10.1080/03066150.2011.583642">fast-track land reform programme</a> undertaken during Robert Mugabe’s rule. </p>
<p>Today, <a href="http://www.zimbabweland.net/Books.html">following the land reform</a> of the 2000s, Zimbabwe has an agrarian structure that’s made up of small, medium and large farms, all under different forms of land ownership. A landscape that used to be dominated by 4,500 large-scale commercial farmers is now populated by about 145,000 smallholder households, occupying 4.1 million hectares, and around 23,000 medium-scale farmers on 3.5 million hectares. </p>
<p>Knowing exactly who has land and where is difficult. Illegal multiple allocations combine with unclear boundary demarcations and an incomplete recording system. Many new land owners don’t have formal documentation and lack leases or permits confirming ownership. There is a great deal of uncertainty given the often haphazard, sometimes corrupt, approach to land reallocation that took place under the land reform programme.</p>
<p>Given that the landscape is very different to what went before, a new system of land administration is urgently needed.</p>
<h2>Promise of change</h2>
<p>In his <a href="http://allafrica.com/stories/201711250043.html">inaugural speech</a>, Zimbabwe’s new president, Emmerson Mnangagwa, declared that land reform was both necessary and irreversible, and acknowledged some big, outstanding challenges.</p>
<p>A new land administration system for the post-land reform era is long overdue. <a href="https://theconversation.com/settling-the-land-compensation-issue-is-vital-for-zimbabwes-economy-89384">Paying compensation to former owners</a> is a vital first step. This has to be combined with a comprehensive land <a href="https://zimbabweland.wordpress.com/2017/03/13/land-audits-a-tricky-technical-and-political-challenge/">audit</a> to weed out those failing to produce, or those illegally holding more than one plot, alongside allocating leases and permits to those in land reform areas, and attracting investment into agriculture as the mainstay of an ailing economy.</p>
<p>Both compensation and audit processes will inevitably throw up <a href="https://zimbabweland.wordpress.com/2017/06/19/land-dispute-resolution-in-zimbabwe/">disputes</a>. A fair and transparent system for rapid resolution is required, including the establishment of an independent Land Tribunal. Alternative dispute resolution processes at a local level will hopefully avoid the dangers of the courts getting clogged with numerous cases.</p>
<p>An audit also has to be linked to land registration, and an effective, but low-cost, land information management system. Following registration, legal recognition and formal documentation of land ownership is essential, as <a href="https://zimbabweland.wordpress.com/2017/07/03/beyond-the-freehold-title-obsession-generating-land-tenure-security/">land tenure security</a> is vital for future investment.</p>
<h2>Many forms of tenure</h2>
<p>Some believe that the only solution is individual freehold titling, as land is otherwise seen as <a href="https://zimbabweland.wordpress.com/2012/02/10/dead-capital-de-sotos-fallacies-in-zimbabwe-3/">“dead capital”</a>. But this is mistaken, as <a href="https://zimbabweland.wordpress.com/2017/07/03/beyond-the-freehold-title-obsession-generating-land-tenure-security/">other forms of land tenure</a> can offer security, spurring investment, if the institutional, legal and political context is right. </p>
<p>As argued in 1994 by the Rukuni Commission, a major review of tenure policy in Zimbabwe, a <a href="http://www.swradioafrica.com/Documents/Sokwanele%20Why%20Zim%20needs%20to%20maintain%20a%20multi-form%20land%20tenure%20system.pdf">multi-form tenure</a> arrangement makes most sense. In some settings, communal tenure regimes are best, allowing flexibility and broad access. In others, a simple permit system can allow registration. In others, a leasehold arrangement can offer security and collateral, while regulations can offset land concentration and assure access for certain people. </p>
<p>Occasionally freehold title may be appropriate if a completely free market in land is required. However, <a href="https://theconversation.com/why-title-deeds-arent-the-solution-to-south-africas-land-tenure-problem-82098">titling schemes</a> are notoriously expensive to deliver, open up multiple disputes and are difficult to regulate to ensure more equitable ownership structures, including land ownership by women.</p>
<h2>Financing is essential</h2>
<p>To pay land taxes, mortgages or compensation payments, the land must be productive, and this requires finance. <a href="https://zimbabweland.wordpress.com/2017/07/10/getting-agriculture-moving-finance-and-credit/">Finance for agriculture</a> has been missing in recent years.</p>
<p>Great efforts have been made to ensure that the <a href="http://www.cfuzim.org/%7Ecfuzimb/images/99yearleasepam.pdf">99-year lease</a> for medium-scale commercial farm land (known as A2) is bankable, and cannot be withdrawn arbitrarily. It seems that, at last, the <a href="http://source.co.zw/2017/12/banks-say-agreement-in-place-to-accept-99-year-leases-as-collateral/">Zimbabwe Banking Association</a> is in agreement. This will allow the release of private bank finance, as land can be used as collateral.</p>
<p>For those without land leases, other types of collateral can also be used, including assets such as livestock, vehicles or buildings. Alternative sources of farm finance include commercial crop contracting, partnerships and joint ventures or government backed loans.</p>
<p>All these financing models have shown some promise in Zimbabwe in recent years, with <a href="https://zimbabweland.wordpress.com/2017/05/01/tobacco-and-contract-farming-in-zimbabwe/">crop contracting</a> at the core of the smallholder tobacco production success story. Contracting arrangements are also extending to <a href="https://zimbabweland.wordpress.com/2015/02/23/a-hot-commercial-success-growing-chili-in-the-eastern-highlands/">other crops</a>. Joint ventures, including partnerships with <a href="http://news.xinhuanet.com/english/2017-03/16/c_136134217.htm">Chinese investors</a> and <a href="https://frontera.net/news/africa/what-mnangagwa-needs-to-deliver-inauguration-promise-to-resurrect-zimbabwes-economy/">former commercial farmers</a>, have also been emerging in a number of under-capitalised medium-scale farms. </p>
<p>“Command agriculture” - a public-private input supply scheme - has been a flagship project led by the new president and the military. It has helped to revitalise maize and wheat production, especially on larger farms with irrigation infrastructure. Questions are however raised about <a href="https://zimbabweland.wordpress.com/2017/09/25/command-agriculture-and-the-politics-of-subsidies/">longer-term sustainability</a> of such subsidised financing.</p>
<h2>Sustainability is key</h2>
<p>Getting a new land administration system working is a huge task. <a href="https://zimbabweland.wordpress.com/2017/07/17/a-new-land-administration-system-for-zimbabwe/">All the elements have to work together</a> – from audit to valuation to compensation to dispute resolution to issuing land tenure documentation to financing – and back again. </p>
<p>And this is not just a one-off task to resolve the current mess. Land disputes will continue, audits will need to be repeated, and new leases and permits and sources of finance secured. For this reason any new system must be sustainable, both administratively and financially, and not reliant on external donor finance. Taxes, rents and compensation repayments need to be paid back into a land fund, which in turn supports the system for the long-term. </p>
<p>Testing this all out at a district level before rapidly rolling it out across the country is an urgent task for Zimbabwe’s new <a href="http://www.herald.co.zw/president-appoints-state-land-commission/">Land Commission</a>. Elaborating a new land administration system is long overdue. Such a system will help the country get over the post-land reform impasse, resolving outstanding land issues and getting much-needed investment flowing into the agriculture sector.</p>
<p>Only with this working well – as countries in <a href="https://zimbabweland.wordpress.com/2017/11/27/the-path-to-prosperity-starts-with-land-reform-says-the-economist/">East Asia</a> recognised when they undertook land reforms decades ago - will the full benefits of Zimbabwe’s land reform be realised.</p><img src="https://counter.theconversation.com/content/89387/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ian Scoones receives funding from the UK Economic and Social Research Council through the ESRC STEPS Centre at Sussex.</span></em></p>A new land administration system that responds to changed ownership patterns of Zimbabwe’s agricultural land is needed if the country is to harness its farming potential.Ian Scoones, Professorial Fellow, Institute of Development Studies, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/820982017-08-14T16:24:56Z2017-08-14T16:24:56ZWhy title deeds aren’t the solution to South Africa’s land tenure problem<figure><img src="https://images.theconversation.com/files/181042/original/file-20170804-4092-o2v878.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Nearly 60% of all South Africans, live on land or in dwellings outside of the land titling system.</span> <span class="attribution"><span class="source">Filckr/Icrisat</span></span></figcaption></figure><p>The conventional view is that insecurity of land tenure results from the lack of a registered title deed which records the property rights of occupants of land or housing. Across Africa, many governments and international development agencies are <a href="http://www.worldbank.org/en/events/2016/08/22/land-and-poverty-conference-2017-responsible-land-governance-towards-an-evidence-based-approach">promoting large-scale land titling</a> as the solution.</p>
<p>In the South African context, some commentators <a href="http://hsf.org.za/resource-centre/focus/focus-70-on-focus/Focus%2070%20-%20On%20Land/view">suggest</a> that a key legacy of the apartheid past is the continued tenure insecurity of the third of the population who live in “communal areas”, under unelected chiefs or of traditional councils. The remedy, they suggest, is simple: extend the system of title deeds to all South Africans.</p>
<p>We have just published a book which disputes this view. <a href="http://ukznpress.bookslive.co.za/blog/2017/06/19/book-launch-untitled-securing-land-tenure-in-urban-and-rural-south-africa/">Untitled. Securing land tenure in urban and rural South Africa</a> contains case studies of a wide range of land tenure systems found in different parts of the country. These include informal settlements, inner city buildings in Johannesburg, “deep rural” communal systems, land reform projects, and examples of systems of freehold rights held by black South Africans since the 19th century. </p>
<p>With the exception of systems of freehold rights, most people who occupy land or dwellings in these areas are “untitled”, and occupy land or dwellings under a very different kind of property regime. We term these social or off-register tenures.</p>
<p>But we argue that, fundamentally, South Africans need to question the assumption that the sole solution to the problem of tenure insecurity is a system of title deeds. Alternative approaches are needed, which we set out to explore. </p>
<h2>Social tenures</h2>
<p>The book offers an analysis of social tenures, which are regulated by a different logic and set of norms than those underpinning private property. Such tenures are diverse but share some key features. As is the case across the developing world, including Africa, land tenure is directly embedded in social identities and relations. </p>
<p>Rights are often shared and overlapping in character and generally derive from accepted membership of a community or kinship group. Processes of land allocation and dispute resolution are overseen by local institutional structures. </p>
<p>In these contexts, decisions are often informed by norms and values that stress the importance of reciprocal social relationships rather than buying power as the basis for land allocation. They involve flexible processes of asserting, negotiating and defending land rights, rather than the enforcement of legally defined rules.</p>
<p>It’s estimated that in 2011 some 1.5 million people lived in low-cost dwellings provided to the poor by government’s, so-called <a href="https://www.nelsonmandela.org/omalley/index.php/site/q/03lv02039/04lv02103/05lv02120/06lv02126.htm">“Reconstruction and Development Programme” (RDP)</a> houses, with inaccurate or outdated titles, in most cases due to transfers outside of the formal system. </p>
<p>Another 5 million lived in RDP houses where no titles had yet been issued due to systemic inefficiencies. Along with 1.9 million people in backyard shacks, 2 million on commercial farms, and 17 million in communal areas, this means that in that year around 30 million people, nearly 60% of all South Africans, lived on land or in dwellings held outside of the land titling system.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/181043/original/file-20170804-7516-3zg7la.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/181043/original/file-20170804-7516-3zg7la.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/181043/original/file-20170804-7516-3zg7la.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/181043/original/file-20170804-7516-3zg7la.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/181043/original/file-20170804-7516-3zg7la.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/181043/original/file-20170804-7516-3zg7la.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/181043/original/file-20170804-7516-3zg7la.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">RDP housing.</span>
<span class="attribution"><span class="source">Flickr</span></span>
</figcaption>
</figure>
<h2>The edifice of title deeds</h2>
<p>The book contrasts social tenures with the conventional system of title deeds, which constitutes a key element of an imposing “edifice”. The current system of rates, services and processes of development assumes that land tenure equals a surveyed plot with a singular registered owner, which may be persons or corporate bodies. </p>
<p>The system is serviced by a Deeds Registry, private sector surveyors and conveyancers, as well as municipal officials, all governed by a range of laws and regulations in a complex and interlocking manner. </p>
<p>One key problem facing those in social tenures is the discrimination they suffer at the hands of the state and the private sector. Despite some protection under laws such as the Interim Protection of Informal Land Rights <a href="http://www.ruraldevelopment.gov.za/phocadownload/Acts/interim%20protection%20of%20informal%20land%20rights%20act%2031%20of%201996.pdf">Act of 1996</a>, people living in social tenures are severely disadvantaged. They may have to go to court to have their rights legally enforced, but most cannot afford to do so. </p>
<p>Development and land use planning, public investment and service delivery are constrained under these systems of tenure. Elite capture or abuse by unaccountable leaders can also take place, as in communal areas where minerals are found and chiefs and councils enter into business deals with mining companies that benefit only a few.</p>
<p>Titling enthusiasts argue that another problem with social tenures is the fact that banks do not accept untitled land or dwellings as security for bank loans. This constrains the poor from borrowing capital to invest in businesses of their own. But research indicates that few of the poor are willing to risk their homes in this way, since small enterprises often fail. </p>
<h2>Tenure reform policy options</h2>
<p>How then to proceed with pro-poor tenure reform? Our research indicates that it is not realistic to extend land titling to all; the system may be at breaking point, and is inadequate even for the emerging middle class.</p>
<p>Another option is to adapt elements of the edifice to provide a degree of official and legal recognition of rights within social tenures. Lawyers and planners working with communities and officials have developed a range of innovative practices, concepts and instruments aimed at securing such rights in an incremental manner. This includes special land use zones, recognising occupation rights in informal settlements, and recording rights using locally accepted forms of evidence. </p>
<p>A third option is a more radical overhaul of land tenure, leading to systematic recognition of and large scale support for social tenures. This would involve stronger laws protecting rights holders, an adjudication system that allows new forms of evidence to be considered in determining who holds rights, and new institutions for negotiating, recording and registering rights under social tenures. The system could include the office of a Land Rights Protector. </p>
<p>We believe that these alternatives all pose their own challenges. But we also believe that pursuing alternatives to a system of title deeds is not an impossible task.</p>
<p><em>The <a href="http://ukznpress.bookslive.co.za/blog/2017/06/19/book-launch-untitled-securing-land-tenure-in-urban-and-rural-south-africa/">book</a> was co-authored with Dona Hornby, a post-doctoral student at the Institute for Poverty, Land and Agrarian Studies <a href="http://www.plaas.org.za/">(PLAAS)</a> at the University of the Western Cape; Rosalie Kingwill, at the institute and Lauren Royston, a researcher at the <a href="http://www.seri-sa.org/">Socio-Economic Rights Institute</a></em>.</p><img src="https://counter.theconversation.com/content/82098/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ben Cousins receives funding from the National Research Foundation.</span></em></p>The conventional view is that insecurity of land tenure results from the lack of a registered title deed which records the property rights of occupants of land or housing.Ben Cousins, Professor, Poverty, Land and Agrarian Studies, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.