South Africa - Context and Land Governance | Land Portal
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Despite the achievement of Constitutional democracy in 1994, 'the land question' is at the heart of South Africa's struggles to overcome the cumulative legacies of nearly 350 years of white minority rule. The emotive quality of land policies evokes painful legacies fuelled by disappointments with the official land reform programme ushered in by the new Constitution of 1996. There is broad agreement that land reform programmes have not fulfilled their aims to significantly redistribute land and productive agrarian capacity, strengthen land tenure for the majority, and settle the restitution claims of victims of land dispossession. Anchored as land issues are in rampant economic inequality, poverty and growing unemployment, historic identity politics associated with land is being reinvigorated.

The added reality is that agrarian reform is limited by poor arable potential, estimated at around 11% of the country's 1.22 million km2 land surface. There are significant ecological variations ranging from dry conditions (desert and semi-desert) in the west, to bands of higher rainfall regions in the east, with 28% of the land surface receiving 600mm or more of rain per annum. Most land is suitable only for extensive livestock production [1]. Pre-colonial and early colonial society was mainly pastoral, while the key resources that led to the industrial and agricultural revolutions in the late nineteenth century were minerals, in which the country is rich. This resulted in a relatively large European settler population owning most of the land, with black labour reserves servicing the mining industry. The socio-spatial configurations thus followed racial, linguistic, cultural and class lines that have proven resistant to change.

The apotheosis of white minority rule was the Apartheid state from the mid-twentieth century, which enforced race-based discriminatory legislation accompanied by forced removals aimed at complete spatial segregation of races. Africans were expected to reside in ethnic homeland or 'bantustan' enclaves according to 10 cultural-linguistic categories under supposed self-rule, while rural reserves were also created for mixed race people and indigenous Khoisan people (formerly hunter-gatherers) who in South Africa were referred to as 'coloureds'. Urban areas were strictly racially segregated. Although this goal was never fully achieved, most of the land was, and still is, formally owned, but not predominantly occupied by, whites. Large numbers of blacks and coloureds live on white-owned commercial farmland as workers, labour tenants or insecure occupiers.

In spite of an extensive land reform programme to change these patterns, land access, use, ownership and governance continue to mirror historic patterns of racial spatial inequality and legal pluralism [2]. The future trajectory is highly contested, with calls for more radical policies to redistribute land.

 
Land Legislation and Regulations

The Constitution of 1996 advocates a radical break from the past racial distributional and ownership patterns of land. Section 25, known as the 'property clause', undergirds all the land reform legislation and programmes that followed. It begins with protective property clauses and goes on to bind the state to initiate a comprehensive land reform programme, distinguishing between redistribution, restitution and tenure reform:

  • Property.—
    • (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
    • (2) Property may be expropriated only in terms of law of general application--
      • (a) for a public purpose or in the public interest; and
      • (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
    • (3) The amount of the compensation and the time and manner of the payment must be just and equitable, reflecting an equitable balance between e the public interest and the interests of those affected, having regard to all relevant circumstances, including-
      • (a) the current use of the property;
      • (b) the history of the acquisition and use of the property;
      • (c) the market value of the property;
      • (d) the extent of direct state investment and subsidy in the acquisition and beneficia1capital improvement of the property; and
      • (e) the purpose of the expropriation.
    • (4) For the purposes of this section-
      • (a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and
      • (b) property is not limited to land.
    • (5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
    • (6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
    • (7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
    • (8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36 (1).
    • (9) Parliament must enact the legislation referred to in subsection (6).

The first clause has proved controversial. Some political groupings on the left criticise this clause for protecting white, registered rights as part of the negotiated political settlement to end apartheid, and hence call for section 25 of the Constitution to be amended to allow for expropriation without compensation [3]. An alternative interpretation by some of the country's top constitutional property law scholars would suggest that this clause should not be abandoned as it also protects new interests in property among black rights holders arising from the land reform programme [4]; while more recently some land rights activists point out that this clause could be a powerful vehicle to strengthen unregistered property rights, since the Constitution does not state that only registered property is 'property'.  Although the state has consistently failed to see the potential of unregistered land rights qualifying as 'property', this line of thinking is informing alternative approaches to land tenure reform [5].

As is evident in sub-clauses 2-5, property may be expropriated for 'a public purpose' or in the public interest, which includes land reform, but is subject to various conditions including compensation. Section 26 provides for rights to adequate housing and prohibits arbitrary evictions.

Parliament enacted a draft of laws to provide for:

 

(1) Redistribution and restitution, viz.

  • Restitution of Land Rights Act 22 of 1994
  • Restitution of Land Rights Amendment Act cc of 2014
  • Provision of Land and Assistance Act 126 of 1993, which is the operating law for redistribution.

 (2) Provision of base-line protection against eviction or arbitrary dispossession applicable to particular categories of people:

  • Farm workers, farm dwellers and labour tenants on privately owned land;
  • Residents in coloured rural areas, mostly former mission stations;
  • People living under customary tenures ('communal tenure') in the former Bantustans;
  • Occupants of (rapidly expanding) informal settlements in urban areas.

The relevant tenure laws are:

  • Land Reform (Labour Tenants) Act (LTA) 3 of 1996
  • Interim Protection of Informal Land Rights Act (IPILRA) 31 of 1996
  • Extension of Security of Tenure Act (ESTA) 62 of 1997
  • Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) 19 of 1998

Successful land restitution claimants and beneficiaries of land redistribution could own land collectively in terms of the:

  • Communal Property Associations (CPA) Act 28 of 1996

Older laws passed toward the end of apartheid allow for upgrading to, or maintenance of, titles:

  • Upgrading of Land Rights Act 112 of 1991 (ULTRA)
  • Land Titles Adjustment Act 111 of 1993 (LTAA).
Land tenure classifications

Historic rights

The democratic state inherited the following broad categories of rights:

  • Strong registered rights of ownership (rural and urban) known as 'freehold' under a rigorous system of deeds registration and surveyed cadastral boundaries, regulated mainly by the Deeds Registries Act 47 of 1937 and the Land Survey Act 8 of 1997.
  • Evolving forms of title for urban blacks recognised as permanent residents, and a few rural blacks with historic title.
  • Occupancy rights for blacks on communally held land in the former black reserves, held under a plethora of land proclamations (not Acts of Parliament).
  • Insecure 'informal' tenure in township settlements.

Post-apartheid rights

This basic structure of immovable property law remains largely unaltered, even though new legislation (referred to above) has made significant inroads into the absolutist characteristics of registered rights.

 

Registered rights:

  • Freehold: Rigorously regulated ownership by juristic entities that may be individuals, corporations or trusts in rural or urban areas, allowing for rental.
  • State leasehold: Previously 99-year state leasehold for urban blacks, currently an option put forward by the state as an alternative to freehold, e.g. for emerging farmers and land reform beneficiaries. The State Land Lease & Disposal Policy of 2013 mandates a 30-year lease on state-owned land, renewable for a further 20 years.
  • Leasehold title: Little used in South Africa but growing in popularity in middle class property developments, and proposed as a possible way of curtailing foreign ownership. It involves a notarial deed against the title of ownership by the lessor (the person letting the property) in favour of the lessee (the person to whom the property is let). The lessee gains rights over the property for a certain amount of time without that person becoming the owner, but can exchange the right for compensation at market value [6].
  • Sectional Title: Mainly urban apartment blocks or housing estates for middle class owners. Surveyed individual units under full ownership, with common property and corporate management. Regulated by the Sectional Titles Act 95 of 1986.
  • Communal Property Associations: Designed specifically for group ownership by black land reform beneficiaries, regulated by the CPA Act (Trusts are sometimes preferred).
  • Quitrent title: a historic form of title phased out for conversion to freehold for whites a long time ago, and recently, but ineffectively, for blacks (mainly in the Eastern Cape) in terms of the Upgrading of Land Tenure Rights Act (ULTRA).

Off-register rights:

The following table, which is based on 2011 census figures, provides an estimate of the population with unregistered rights:

 

Table 1: Land holding outside the formal property system in 2011 [7]

 

Location

Number of people

Percentage of population (total of 51,8 million in 2011) [8]

Communal areas

17 million

32,8

Farm workers and dwellers

2 million

3,9

Informal settlements

3,3 million

6,3

Backyard shacks

1,9 million

3,8

Inner city buildings

200 000

0,38

RDP houses¾no titles

5 million

9,6

RDP houses¾titles inaccurate/outdated

1,5 million

3,0

Total

30,72 million

59,7

 

Source: Hornby, Kingwill, Royston & Cousins 2017 [9]

 

These numbers appear to be rising incrementally rather than shrinking, on account of population growth and no significant advances in tenure reforms. The current population is estimated to be 56.5 million [10]. These rights are protected by laws mentioned above, but are not fully legally recognised, e.g.:

 

  • Customary tenure in 'communal' rural areas protected by IPILRA.
  • 'Informal' tenure in informal settlements in urban areas protected by PIE.
  • Farm dwellers and labour tenants protected by LTA & ESTA.
 

 

Barriers to legal recognition

There remain significant barriers to legal recognition of off-register rights. Protected unregistered rights are relatively secure at local level, but not so against third parties or the world at large, e.g. private or state investors. Upgrading these rights by registration to title is not feasible unless major adaptations were to be made to the property system. Titling is the policy ardently pursued by market economists and the state. Apart from the expense and complicated procedures of registration, what titling advocates ignore are the significant mismatches between 'living law' practices (modern 'customary' norms in rural and urban contexts) and the system of title deeds. De facto rights are held in extended families and often involve multiple and overlapping use rights, for which there is no recognised holding mechanism in law [11].

In terms of the Deeds Registries Act, a land may only be registered in ownership when certain stringent conditions have been met, including the survey of the land parcel in terms of the Land Survey Act. The implications are that for rights to be registerable, a one-to-one relationship between a surveyed property object and a legally identifiable juristic property holder, single or corporate must be established. These 'linear' property relationships do not work in situations where customary property relationships described above, where property has less clear-cut spatial and social boundaries, with layered access and use rights held across inter-generational families. These relationships tend to persist even after the title deeds have been issued, which means that the titles soon bear little resemblance to the arrangements on the ground [12].

What is more, in cases where rights are completely subservient to the dominant registered title of the owners, such as in the case of farmdwellers, there are virtually no means of strengthening those without converting them into registerable rights of ownership. This is simply not feasible for the most part. Millions of farm dwellers are thus extremely vulnerable to the overriding rights of the registered owners, and anecdotal evidence suggests that the legislation ESTA, that protects rights of farmdwellers, may have exacerbated both illegal and legal evictions.

Communal tenure reform has been deeply contentious and prolonged. The Communal Land Rights Act 11 of 2004 (CLRA) was declared unconstitutional. Opponents of the law considered this judgement a victory, since it the law was seen as a re-enactment of apartheid systems of tribal authority rule over restricted areas of the country. They argued that the CLRA gave traditional councils (known as 'tribal authorities' under apartheid) wide-ranging powers, including control over the occupation, use and administration of communal land [13]. The law was not, however, struck down on substantial grounds, but rather because the Court found that the correct procedures for its enactment had not been followed [14]. 

Indeed, after several attempts, a new Communal Land Tenure Bill has recently been released for comment. It proposes a hybrid form of registered communal titling for communities that acquire a juristic personality, and who may then be issued with a 'Deed of Communal Land'. Individual breakaway titling is legally possible but practically unfeasible. The Bill proposes a plethora of new management structures, which though theoretically allowing for some choice in governance structures, will almost certainly empower existing traditional authorities, since the Bill:

  • fits into a broader framework of traditional governance in the form of the Traditional Leadership Governance Framework Act of 41 or 2003 as amended in 2009 (TLGFA) and the Traditional Courts Bill of 2017 (TLB) [15].
  • recognises traditional authorities (renamed Traditional Councils in terms of the TLGFA) which democratically-minded citizens regard as apartheid-created political structures that have been given broad-ranging powers over people living in the former homelands, including land administration functions, without sufficient means to opt out of the system;
  • potentially endows Traditional Councils with powers of collective ownership over land at the expense of the rights of individual family units.

Critics are concerned that Bill will result in concretising apartheid boundaries and structures that were based on territorial and ethnic geo-spatial entities, with highly unequal spatial and political power [16]. The Bill potentially plays into identity politics and gives people insufficient means to opt out of the imposed system. Critics point out that, taken together, the three pieces of legislation do not provide sufficient means to hold traditional structures to account or counterbalance their power over local governance and justice by providing recourse to other state institutions nor ensure adherence to constitutional principles [17].

Some land rights advocates recommend an entirely different approach from laws of specific application that apply only to geo-spatially designated areas that hark back to colonial and apartheid institutions and boundaries. A key proposal is for:

  • Strengthening land rights by tightening up existing tenure laws.
  • Adopting a 'Land Records' system to provide legal-administrative support to ensure that these rights are legally recognised without the immediate requirement of registration through processes of country-wide enumeration, ultimately to be adjudicated according to new forms of evidence. The system should be capable of recording family holdings appropriately designed for all currently off-register rights across the board, i.e. not confined to  'communal' areas. The aim would be eventual integration of land administration systems in the country [18].
Land use and distribution trends

One of the catchwords of the land reform programme was the Government's stated intention to transfer 30% of the productive land to blacks by 2014 [19]. This has not materialised, arousing a chorus of criticism. Land reform and redistribution have been notoriously ineffective, even with the allowance of expropriation (with compensation), which, as critics point out, has been little used. A new Expropriation Bill was passed by Parliament in 2017. Unlike the Expropriation Act of 1975, it allows for compulsory expropriation ‘in the public interest’ and with ‘just and equitable’ compensation, as provided for in Section 25 (3) of the Constitution, but continues to provide for compensation [20]. The Bill addresses criticisms of the 'willing buyer, willing seller' approach to land acquisition for land reform purposes by allowing the state to expropriate by paying an amount determined by the Valuer-General, even without the owner consenting to the amount offered or the expropriation itself.

The inequities in historic settlement patterns have remained deeply entrenched. The myopic vision of agrarian reform policies have rendered past patterns somewhat impervious to change. These patterns tend to correspond with land use. At the time of democratic transition, it was commonplace to refer to the ratio of white to black land ownership as 87:13, but this figure is misleading. It derives from an apartheid blueprint related to the goals of the first and second major segregatory Land Acts (the Native Land Act 27 of 1913 and the Native Trust and Land Act 18 of 1936), but which were never completely implemented. When the Nationalist government came into power in 1948, these principles of segregation evolved under apartheid policies into a vision of a rigid territorial division of the country comprising a 'white' core and a periphery of ten ethnically defined ‘African’ ‘homelands’, plus a number of small ‘coloured’ reserves [21]. This racial formula is in fact deceptive, since millions of blacks and most coloureds continued to live in this 'white core' including urban areas [22].

Nearly 80% of total land use is agricultural, of varying quality [23]. Only 10-13% of the total surface area is classified as arable. 83% of the agricultural land is suitable for grazing and 17% cultivated for cash crops, with 1.3 million hectares irrigated [24].

67% of agricultural land is still considered 'white' in spite of a slowly changing racial ownership profile [25]. Millions of blacks inhabit densely settled former homelands and coloured reserves, and other state and trust lands, estimated at 15% of the country's land surface, 84% of which is considered agricultural [26].

 

Table 2: Corresponding Land Use and Ownership Categories

Land use/ownership category

% Land

Approximate break down

 

 

% Land

'White' commercial farmland

67

60 000 white-owned farms in early 1990s = 70% total area

 

40,000 mainly white owned farming units in 2013

67

'Black' communal areas, most state owned

15

Ex ‘homelands’ excluding other than in KwaZulu-Natal

10

Ingonyama Trust, former KwaZulu 'homeland'

2

Other customary lands held in trust by state

2

Former ‘coloured’ reserves

1

Other state land

10

Other provincial, incl schools, hospitals, agricultural

1

Other national, incl Home Affairs, Justice, Agriculture

1.6

Military, police, prisons

0.4

Conservation Areas

7

Remainder, including urban areas

8

Metro

2

Other, including non-metro urban areas

6

 

100

 

100

Source: Compiled from figures in Walker with Dubb 2013 [27]

 

There has been a marked switch by many white landowners from agriculture to game farming and tourism, partly to escape land tenure and labour laws. This has created some skilled jobs for a small number of black workers, but has not had a positive impact on land reform.

Distribution is not the only yardstick. Critics maintain that after 22 years, "... land reform has barely altered the agrarian structure of South Africa, and has had only minor impacts on rural livelihoods" [28]. A major concern has been the failure to shift land reform support and land use from large commercial farms to smallholder agriculture. Formerly, subdivision of agricultural land was prohibited in order to preserve large faming units considered commercially viable. The Subdivision of Agricultural Land Act Repeal Act of 1998, passed by Parliament in order to allow for subdivision for small holders, was never signed into law by the President and remains an impediment to transforming this sector. Transformation of the commercial farming sector would shift the racial profile, increase smallholders' access to agricultural markets and improve livelihood prospects of black beneficiaries [29].

Experts estimate about 8 million hectares of farmland have been transferred to black owners since the end of apartheid, 8 to 10% of the land formerly in white hands in 1994 (and only 5.46% of commercial agricultural land), which is only a third of the ANC’s 30% target. State land outside the communal areas is not really available for redistribution. Most is demarcated for public purposes needed for the common good, and around 7% is protected areas [30].

Thousands of restitution claims have not been settled, and many settled restitution claims have not been fully implemented. The great majority of 69,000 urban restitution claims have been settled through cash compensation. In addition, over 130,000 new claims have been submitted in terms of an amendment to the Restitution Act passed in 2014 [31]. The Constitutional Court in June 2016, however, found the amendment Act to be invalid and ruled that old claims must be processed first. The court interdicted the Land Claims Commission from considering, processing and settling new claims for 24 months, pending Parliament’s re-enactment of the amendment act or finalisation of those claims filed by 31 December 1998, whichever occurred first [32].

Currently approximately two thirds of the total population reside in urban areas [33], while most of the white population (over 95%) is urbanised. 37% of the total population lives in the eight primary metropolitan areas. Between 1995 and 2008, the population of the former homelands grew by only 9%, while the metros expanded by nearly 40%, and the secondary cities expanded by 24%, reflecting outward migration as a result of limited economic and social development in rural areas [34].

Strong rural-urban social networks are maintained between families whose members straddle the rural and urban economies [35]. People who migrate to the cities seldom sever linkages to their rural homes. These areas are still characterised by poverty (70% considered 'poor'), joblessness, weak institutions and gross inequality, though research indicates some upsurge in economic activity in the small towns [36]. Most of the land in the former homelands is formally registered in state ownership in trust for the customary rights holders. The Trust was originally set up in terms of the Native Trust and Land Act 18 of 1936, which established the South African Native Trust (SANT), later renamed the South African Development Trust (SADT). The law was repealed by the Abolition of Racially Based Land Measures Act 108 of 1991 but the land remains in state ownership.

 
Market-based and state welfare land investments

1. Redistribution

A recent review of current redistribution policies and practices has charted the drastic swings in land reform policies that have accompanied each change in presidency since the transition to democratic governance in 1994 [37]. The early post-apartheid model of land redistribution adopted by the ANC government drew from the influence of the World Bank, which advanced state-assisted land purchase and transfer of title to beneficiaries. This took the form of small grants to poor households to buy modest areas of land for settlement and small-scale farming. From 2000 the policy shifted towards promoting black capitalist farmers, and providing larger land purchase subsidies to those with their own means to engage in commercial production. From 2011 the state has adopted the willing buyer, willing seller approach. Now the state has itself become the purchaser of land, acquiring land for redistribution to beneficiaries without transfer of title, thus moving away from the original private ownership model to state leasehold, with very little substantive adherence to the original goals of land reform [38].

The policy is guided by a Proactive Land Acquisition Strategy (PLAS), which empowers state officials to buy farms on the open market and allocate them to selected beneficiaries. In 2013 the emphasis shifted to 30-year leases renewable for a further 20 years before the state will consider transferring ownership to them under the State Land Lease and Disposal Policy (SLLDP). To qualify for on-farm infrastructure and production support, under a Recapitalisation and Development Programme ('RECAP', see below), ‘beneficiaries’ are required to enter into a partnership with a ‘strategic partner’ – i.e., a farming or agribusiness company – in a mentorship or joint venture arrangement.

Hall and Kepe conclude that "[w]hile discursively framed as part of a radicalisation of the reform process, the redistribution process appears to be narrowing and is showing signs of elite capture"[39]. They reveal that the policy is applied highly unevenly and unfairly, and in most cases the so-called beneficiaries have no leases at all, but occupy the land as caretakers under highly insecure tenure with no records. In most cases the only meaningful contractual arrangements are between the state and the 'strategic partners' or 'mentors'.

Land rights advocates maintain that a key constraint on effective land reform is the absence of a law on land redistribution to give full effect to section 25(5) of the Constitution, recommending a framework law to address the gaps in relation to: guiding principles; definitions of key terms such as ‘equitable access’; clear institutional arrangements (particularly at district level); requirements for transparency, reporting and accountability; and other measures that promote good governance of the land reform process as a whole, as well as land redistribution in particular, and to bring all the existing anchor laws into line with the framework law, thus ensuring overall consistency and coherence within the land reform programme [40].

2. Rural state subsidies

It is widely acknowledged that land reform has not unlocked the potential for dynamic economic growth and employment creation, especially in the agricultural sector. The Recapitalisation and Development Policy Programme (RADP or ‘RECAP’) of 2009/2010 replaced all previous land reform funding programmes. Funding is for a maximum of five years and beneficiaries must have business partners, who assist with 'business plans', recruited from the private sector, as mentors, or within share-equity schemes, or through contract farming. Evaluations of RECAP, particularly one conducted by the government Department of Planning, Monitoring and Evaluation (DPME) [41] have found the programme to be wanting in many respects and suggested it be scrapped. Critics at PLAAS maintain that RECAP is an attempt at ‘commercialisation’ of land reform projects, where large sums are spent on relatively few beneficiaries, few jobs have been created, and access to markets remains limited [42]

The programme has since been moved away from the Department of Rural Development and Land Reform to the Department of Agriculture, Forestry and Fisheries, though the latter complained it was an 'unfunded mandate' as the transfer came without funds [43].

State subsidised rural programmes focus on agriculture, but research suggests the need to shift state investment to the non-farm sector given the poor returns. The Comprehensive Agricultural Support Programme (CASP) — that applies only the communal areas — has been running since 2004, providing grants to applicants, so far having allocated R750 million to the programme.

Many evaluations of state programmes, including one published by Presidency [44], conclude that despite CASP and RECAP, there has been a lack of transformation in the commercial agricultural sector, and "a large number of land reform beneficiaries have not been able to use the land productively, partly due to inadequate infrastructure, inputs and technical support after finalising settlements”[45]. Prof Ben Cousins of the Institute of Poverty Land and Agrarian Studies (PLAAS) at the University of the Western Cape is among those who strongly advocate a shift away from support for large-scale commercial farming to smallholders. According to Cousins,[46] 'mentors' were 'milking' the projects. Government is considering land ceilings (in terms of the Regulation of Land Holdings Bill) in spite of evidence of their ineffectiveness in countries where they have been introduced [47]. Questions therefore continue to abound regarding the effectiveness of financial support to small farmers, and how to provide effective post-settlement support.

Meanwhile livelihoods-related research has revealed that improved access to basic services (water, electricity and sanitation) in poor areas has had a significant impact on quality of life, while the greatest impact on poverty so far has been the introduction of social grants, of which over 16 million South Africans are recipients [48]. Other protection services such as provision of food, increasing subsistence production and strategies to moderate food prices have also reportedly made a significant impact [49].

3. Rural market-based investments

Market-based investments in the communal areas are constrained by weak or non-existent land administration institutions [50]. Direct appropriation by private investors is not possible, given that formal ownership is in the name of the state. There are nevertheless disturbing patterns of indirect appropriation by mining companies in the mineral-rich communal areas. Traditional authority structures provide a vehicle for private mining corporations to strike deals that do not benefit the rights holders, whilst creating wealth for corporatised structures directly connected with the chiefly networks [51]. There has been increasing resistance from local communities to this form of land rights dispossession, resulting in several court cases. In some communities there has been violence and even assassinations [52].

The government has drawn up a controversial Mining Charter, which appears to be more concerned about changing the racial structure of the ownership of the mines (which are still largely white-owned) through mandatory shareholding by blacks, rather with upholding the rights of community landholders to share in the benefits [53].

Some novel land restitution settlements have occurred on land with eco-tourism/game lodge enterprises, whereby successful restitution claimants who have become the owners of the land have agreed to remain off the land in return for shareholding in the businesses. These projects are, however, haunted by contestations between traditional authority and community structures over control of the land and income, as well as the power dynamics between owners and entrepreneurs [54].

4. Urban Tenure

Urban land tenure and the release of land for low-income families is entangled with housing policies. The state has invested a great deal in subsidised housing in urban areas for low-income families. Section 26 of the Constitution states in 26(1) that “[e]veryone has the right to have access to adequate housing” and 26 (2) "[t]he state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right". South Africans born both before, as well as after, the end of apartheid have interpreted this to mean “they have a right to a free house.” Indeed the policy approach has been to attempt to fill the gap by having all expectant beneficiaries listed on housing waiting lists. The result has been the inevitable preoccupation with clearing the housing 'backlogs' and eliminating housing shack settlements by providing mostly free-standing and usually low quality housing.

In spite of an estimated R125 billion spent [55], housing lists and informal settlements are growing apace —the latter estimated to have grown by 800% since 1994 [56]. The state housing schemes simply cannot keep up with the rate of urbanisation along with new and smaller family formations, population growth and inwards migration. The approach has created a seemingly bottomless pit of housing 'backlogs.'

Since 1994, more than 3 million housing units (including both subsidised and rental housing) have been delivered to poor and low-income households. South Africa nevertheless sits today with a housing backlog of 2.1 million units. How can this be? More precisely, how can South Africa have spent R125 billion, in 2010 prices, over 20 years, delivered more than 3 million units, and yet have a larger housing backlog than when it began?[57]

The Minister of Human Settlements has recently proposed a more realistic approach in recommending releasing land for low-income urban residential development with provision of basic planning, infrastructure and services, while allowing residents to build their own houses with state assistance for the indigent [58].

Housing policies have undergone numerous twists and turns over the past twenty years, from favouring only formalisation to later recognising the need for in situ upgrading of informal settlements [59]. For the latter to be effective and to gain traction, however, the state would need to be committed to more complex and qualitative engagement with local realities.

The Minister of Human Settlements has recently acknowledged the conundrum facing housing delivery. The Minister stated "South Africa is an undisputed world first in its delivery of housing for the poor. However, we as a people have to rediscover the distinction between hope and expectation" [60].

With regard to the tenure of houses, the government continues to rely on polices that encourage formality and title deeds, rather than looking for alternatives. There is evidence that at least 50% of the titles to the new houses are not registered in the Deeds Office which points to systemic problems with the titling policies [61]. There is a vibrant market in 'informal' buying and selling of both shacks in the so-called informal housing sector, and also subsidised houses in formalised contexts. The prevailing practices for transferring shacks and houses involve locally drawn up systems of recordal, e.g. widespread use of affidavits combined with local forms of witnessing (e.g. by the police and/or local civic organisation) rather than registration in the Deeds office [62].

Urban Land rights advocates propose approaches that are being tested in various pilot cases [63]. These idea such as settlement-wide zoning using existing planning laws and in situ incremental upgrading using local land records systems to record rights.

 
Women's Land Rights

The Constitution commits the state to gender equity. Section 9, the 'equality clause', states that:

  • The state may not unfairly discriminate directly or indirectly against anyone on oneor more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social   origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Section 181 creates various institutions to strengthen constitutional democracy, including the Commission for Gender Equality, which in terms of section provides for the Commission to "promote respect for gender equality and the protection, development and attainment of gender equality."

There is a gendered focus in most policies regarding tenure rights and access to land. While these frameworks have created an enabling environment for women to access, own and use land, and access credit facilities, there is gender discrimination in practice. There is a great deal of contention around women's rights which no concise reference can do justice to, particularly in view of evidence of patriarchal practices in matters concerning authority, land and property. Some of these practices prompt an ongoing debate about the tension between constitutional rights and 'cultural' norms. Patriarchal relationships are exacerbated where men attempt to control family and lineage property [64] and where the state empowers male dominated traditional authorities and traditional courts in local community-level governance, despite requirements for quotas to ensure female representivity [65]. Women are increasingly accessing plots as single women in rural and urban settlements in attempts escape these gendered power relationships in families and communities.[66].

Women's rights were boosted in a landmark Constitutional Case Bhe judgement [67] where succession to property through the male line was firmly rejected in favour of direct succession to wives or children. This judgement called for the re-examination of the customary law of succession, failing which the state should apply the existing 'western' common law rules governing succession in the form of the Intestate Succession Act 81 of 1987. The state has, however, failed to reformulate a modern rendition of customary succession law. Thus the Intestate Succession Act, which provides for 'western' style succession, prevails. This framework, however, fails to take into account the de facto practices in families that give access to the family as a whole, rather than naming individual heirs with rights of alienation. Customary law scholars have questioned the effectiveness of the Bhe judgement on the grounds that it fails to fully acknowledge customary practices [68].

 
The impact and effectiveness of tenure reforms

While land rights legislation has ameliorated eviction and dispossession, it has not resulted in strong legal recognition of off-register rights. Most of the black population, representing about two thirds of the country's population of 56 million, still have off-register land right that, though protected by the laws mentioned in section 2 above, are not fully legally recognised by any system of national recordal, and lack detailed legal content. There is no land administration system to manage and administer them, other than the proposed and controversial Communal Land Tenure Bill and the equally controversial Ingonyama Trust that owns and administers customary land in Kwazulu-Natal [69].  These do not in any case include the millions of people in informal settlements and on farms.

Though there are strong locally legitimate customary practices in rural areas, sometimes referred to as 'living law', from the point of view of state governance, these rights lack full legal status in terms of property law. They tend to be minimised or glossed (and thus masked) by terms such as 'informal' and 'communal' tenure. Powerful commercial and traditional leadership interests easily trump them. The latter continue to exert a powerful hold over patronage networks in rural areas, and in some cases act as unofficial agents to mining corporations.

There has been a woefully inadequate response to recognising rights through recordal systems in expanding informal settlements in urban areas, and these rights remain insecure and subject to distant housing or settlement formalisation proposals. On farms, the rights of black occupier and worker families continue to be highly insecure and contingent. Farmdwellers are increasingly understanding and pressing their legal rights as contained in ESTA, and there have been various favourable court judgements in eviction cases, but these victories do not necessarily have a systematic impact on farmdwellers' rights. There is a lot of anecdotal evidence that ESTA has had an unfortunate backlash in motivating farm owners to evict or displace farmdwellers, but this cannot be verified through research findings at this stage.

State and private sector policy pundits continue to push for titling. Critics propose an alternative understanding of, and approach to, legal recognition of tenure in South Africa. A new publication on tenure security outlines the flawed approach to tenure reform via full conversion to title, presenting evidence from a wide range of case studies on tenure practices on the ground. The authors conclude that assumptions underlying current tenure policy, such as for example, the proposals in the form of CLTB and urban titling, are both unrealistic and unjust, and propose an alternative conceptualisation of off-register tenures as 'social tenures' that can be recognised in their own right without full conversion [70].

In order to strengthen existing land rights, advocates propose the strengthening of the current protective land rights legislation and the development of land administration systems to back them. For example, the Interim Protection of Informal Land Rights Act (IPILRA) should be made permanent, while others amended in various ways to provide for stronger rights. However, these rights are to be supported by a strong land administration system [71].

Some land administration policy experts propose that there should be a countrywide system of land administration with infrastructure to support a 'land records' system that is suitable for both urban and rural contexts where the recorded evidence is needed for legal recognition that differs from the Deeds registry system [72]. This will shift the focus to rebuilding land administration institutions to enumerate, adjudicate, record and maintain recorded rights, as well as resolve disputes. Although the records will be held locally, all aspects of the system should be regulated by national norms and standards, as well as Constitutional principles of equity, including gender equity, with the ultimate goal of integration. This approach will shift the emphasis from a singular deeds registration system, towards a system that can accommodate pluralism and thus also work for the majority of land rights holders who live on farms, in informal settlements and in communal areas. The Deed Registry would be retained as the repository for title deeds, but expanded to function as the overall custodian of the land administration system of the country as a whole. This will require incremental adjustments with the long-term goal of institutional integration and accommodation of diversity [73].

These proposals form part and parcel of much wider initiative under the Collaboration on Alternatives for Land Policy and Law that has produced a large volume of material to the High Level Panel of the South African Parliament [74], which is about to released to the public. The papers and memoranda provide evidence of the problems besetting land reform, and make recommendations for wide-ranging changes to all aspects of land reform, including restitution, redistribution, mining and tenure laws applicable to all categories of rights holders. The general approach is to call for a new White Paper on Land Reform to replace the old one of 1996, and for a complete reappraisal of all the laws from a perspective that reasserts the values and norms of the Constitution, and provide new framework legislation to ensure overall coherence.

 

 

References

[1] Ben Cousins. 2016. 'Why South Africa needs fresh ideas to make land reform a reality' available at:  https://theconversation.com/why-south-africa-needs-fresh-ideas-to-make-l....

[2] For a range of policy responses and articles on land reform in South Africa see: http://www.larc.uct.ac.za/home-235; http://www.plaas.org.za/plaas-publications.

[3] See for example: https://www.iol.co.za/news/opinion/why-section-25-needs-to-be-reviewed-u... http://aidc.org.za/change-property-clause/.

[4] A.J. van der Walt. 1999. ‘The Constitutional Property Clause: Striking a Balance between Guarantee and Limitation’. In Property and the Constitution, edited by Janet MacLean, 109–46. Oxford and Portland, Oregon: Hart Publishing; van der Walt, A.J. 2011. Constitutional Property Law 3 ed, Cape Town: Juta; see also van der Walt, A.J. 1999 Constitutional Property Clauses: A Comparative Analysis Van der Walt, Cape Town: Juta.

[5] Rosalie Kingwill. 2017d. 'Land and property rights: 'title deeds as usual' won’t work'.  Available at: http://www.econ3x3.org/article/land-and-property-rights-title-deeds-usua...

[6] https://www.property24.com/articles/leasehold-could-replace-ownership/3588; http://waterfall-estate.co.za/how-to-lease/

[7] Donna Hornby, Rosalie, Lauren Royston & Ben Cousins (eds). 2017. Untitled: Securing Land Tenure in Urban and Rural South Africa. University of KwaZulu-Natal Press, Durban.

[8] The current population of South Africa is estimated by Statistics South Africa to be 56.5 million. http://ewn.co.za/2017/07/31/sa-population-rises-to-56-5-million-stats-sa.

[9] Donna Hornby, Rosalie Kingwill, Lauren Royston & Ben Cousins (eds). 2017. Untitled: Securing Land Tenure in Urban and Rural South Africa. University of KwaZulu-Natal Press, Durban; Rosalie Kingwill.

[10] Ibid.

[11] Hornby, Kingwill, Royston & Cousins (eds). 2017; Rosalie Kingwill. 2017b. 'An Inconvenient Truth: Land Title in Social Context — A South African Perspective' in Land, Law and Governance: African Perspectives on Land Tenure and Title, edited by Hanri Mostert, Leon CA Verstappen & Jaap Zevenbergen. Cape Town: Juta; Rosalie Kingwill. 2017d. 'Land and property rights: 'title deeds as usual' won’t work'.  Available at: http://www.econ3x3.org/article/land-and-property-rights-title-deeds-usua...

[12] Kingwill 2017b; 2016b.

[13] http://www.customcontested.co.za/laws-and-policies/communal-land-rights-...

[14] Ibid.

[15] see http://www.larc.uct.ac.za/submissions.

[16] http://www.customcontested.co.za/laws-and-policies/; the publication of submissions made to a government-appointed High Level Panel on the Assessment of Key Legislation is imminent. The High Level Panel (HLP) aimed to review legislation with a bearing on transformational goals of the post-apartheid state, and to assess implementation, identify gaps and impediments and propose action steps including strengthening, reviewing and/or amending identified laws by Parliament. One of the four committees was 'Land reform, restitution, redistribution and security of tenure' which generated a large body of material. See: https://pmg.org.za/call-for-comment/441/. See also n.74 below. This material was produced for government and has not yet been published or made available.

[17] Ibid. For more detailed commentary on the interlinkages between various pieces of legislation see: http://www.customcontested.co.za/laws-and-policies/ ;  for how the laws link, see: http://www.customcontested.co.za/laws-and-policies/how-the-laws-link/.

[18] Rosalie Kingwill. 2017a. 'Land Rights Adjudication: Developing Principles and Processes for ESTA and Labour Tenant Rights' Holders'. Association for Rural Advancement (AFRA), Pietermaritzburg; Siyabulela Manona & Rosalie Kingwill. Forthcoming. 'Motivation for the enactment of a Land Records Act'. Memorandum prepared for the Collaboration on Alternatives for Land Policy and Law, presented to the High Level Panel of Parliament (HLP) (not publicly available yet, see n. 16 above).

[19] The 30% figure was the ANC government's policy position in response to the Constitutional obligations for redistribution, and was systematically used as a target since the Land Redistribution for Agricultural Development (LRAD) programme was launched in 2000/2001. See: http://www.nda.agric.za/docs/Policy/redistribution.htm ; Peter Jacobs, Edward Lahiff & Ruth Hall. 2003. 'Evaluating Land and Agrarian Reform in South Africa'. PLAAS Occasional Paper . Available at: http://www.plaas.org.za/sites/default/files/publications-pdf/ELARSA 01.pdf; see several essays critiquing various aspects of land reform in South Africa, particularly redistribution and restitution programmes, see Cousins, Ben and Walker, Cherryl. 2015. (eds), 2015. Land Divided, Land Restored. Land Reform in South Africa for the 21st Century, 250-270. Auckland Park: Jacana

[20] https://mg.co.za/article/2016-05-26-parliament-approves-land-expropriati....

[21] Cherryl Walker with Alex Dubb. Fact Check No 1. 'The Distribution of Land in South Africa', Institute for Poverty, Land and Agrarian Studies (PLAAS), 2013. Available at http://www.plaas.org.za/plaas-publication/FC01.

[22] Ibid.

[23] https://data.worldbank.org/indicator/AG.LND.AGRI.ZS?locations=ZA.

[24] http://www.nda.agric.za/docs/StratPlan07/07sectoral.pdf.

[25] Walker and Dubb, Fact Check No 1, PLAAS, 2013 op cit.

[26] Ibid.

[27] Ibid.

[28] Ben Cousins. 2017. 'Land reform in South Africa is sinking. Can it be saved? Nelson Mandela Foundation Available at: https://www.nelsonmandela.org/uploads/files/Land__law_and_leaiddership_-... 8; Cousins, Ben. 2015. 'Through a glass, darkly’: Towards agrarian reform in South Africa', in Ben Cousins and Cherryl Walker, (eds), 2015. Land Divided, Land Restored. Land Reform in South Africa for the 21st Century, 250-270. Auckland Park: Jacana.

[29] Ibid

[30] Walker and Dubb, Fact Check No 1, PLAAS, 2013 op cit.

[31] Ben Cousins. 2016. op cit.; http://www.customcontested.co.za/laws-and-policies/restitution-land-righ...

[32] https://www.groundup.org.za/article/parliament-must-pass-new-land-claims....

[33] World Bank, available at:  https://data.worldbank.org/indicator/SP.URB.TOTL.IN.ZS?locations=ZA

[34] For detailed examination of urbanisation trends see Ivan Turok. 2012. 'Urbanisation and Development in South Africa: Economic Imperatives, Spatial Distortions and Strategic Responses'. International Institute for Environment and Development  (IIED): http://www.delog.org/cms/upload/pdf-africa/Urbanisation_and_Development_....

[35] For an analysis of the complexity of rural-urban inter-linkages see: Neves, David and du Toit, Andries. 2013. Rural Livelihoods in South Africa: Complexity, Vulnerability and Differentiation. Journal of Agrarian Change, 13: 93–115. doi:10.1111/joac.12009

[36] Michael Aliber. 2017. 'The former Transkei and Ciskei homelands are still poor, but is there an emerging dynamism?' Availailable at: http://www.econ3x3.org/article/former-transkei-and-ciskei-homelands-are-...

[37] Ruth Hall & Thembela Kepe. 2017. 'Elite capture and state neglect: new evidence on South Africa’s land reform.' Review of African Political Economy. Available at: http://dx.doi.org/10.1080/03056244.2017.1288615 ; see also:

Ruth Hall. 2017. 'Land redistribution: some national statistics and case studies in the Eastern Cape'. Presentation to the Colloquium 'Land Ownership, Governance and Sustainability', University of Fort Hare, Hogsback Hunterstoun Centre, 25-27 October . Peter Jacobs, Edward Lahiff & Ruth Hall. 2003. 'Evaluating Land and Agrarian Reform in South Africa'. PLAAS Occasional Paper .http://www.plaas.org.za/sites/default/files/publications-pdf/ELARSA%2001...

[38] Hall & Kepe 2017 op cit

[39] Ibid.

[40] Ben Cousins. 2017. 'Diagnosing South Africa's Land and Agrarian Reform'. Presentation to the Colloquium 'Land Ownership, Governance and Sustainability', University of Fort Hare, Hogsback Hunterstoun Centre, 25-27 October

[41] Available at: http://evaluations.dpme.gov.za/evaluations/407; http://evaluations.dpme.gov.za/evaluations/407/documents/5bc0b2e1-dff5-4...

[42] Ben Cousins. 2017. 'Land reform in South Africa is sinking. Can it be saved? Nelson Mandela Foundation Available at: https://www.nelsonmandela.org/uploads/files/Land__law_and_leaiddership_-... 7; https://theconversation.com/why-south-africa-needs-fresh-ideas-to-make-l...

[43] https://pmg.org.za/committee-meeting/19977/

[44] Twenty Year Review 1994-2004, Rural Transformation Background Paper, Commissioned by the Presidency. Available at: http://www.dpme.gov.za/publications/20%20Years%20Review/20%20Year%20Revi...

[45] Ibid

[46] Ben Cousins. 2017 op cit. 7

[47] Ibid.

[48] David Neves. 2017. Reconsidering rural development: Using livelihood analysis to examine rural development in the former homelands of South Africa. PLAAS Research Report 54; http://www.plaas.org.za/sites/default/files/publications-pdf/PLAAS_Polic...

[49] Ibid

[50] Mike Kenyon & Mike. 2017. 'The Transkei Wild Coast: still waiting for something to happen'. Available at: http://www.econ3x3.org/article/transkei-wild-coast-still-waiting-somethi...

[51] In Good Company? Conversations around transparency and accountability in South Africa’s extractive sector. 2017. 2 ed. Open Society Foundation for South Africa. Available at: http://www.customcontested.co.za/bapo-ba-mogale-money-looted; Joanna Pickering & Thabiso Nyapisi. 2017. 'A community left in the dark: the case of Mapela - Struggles for transparency and accountability in South Africa’s Platinum Belt' in In Good Company? Conversations around transparency and accountability in South Africa’s extractive sector. 2 ed. Open Society Foundation for South Africa; Gavin Capps. 2016. Tribal‐Landed Property: The Value of the Chieftaincy in Contemporary Africa. Journal of Agrarian Change, 16(3), 452-477. Gavin Capps, Dunbar Moodie and R. Bush (eds).  2015. Review of African Political Economy Special Issue: White gold: new class and community struggles on the South African platinum belt, 42:146; see SWOP working papers on https://www.swop.org.za/working-papers, including Gavin Capps and S. Malindi. 2017. Dealing with the Tribe: The Politics of the Bapo/Lonmin Royalty-to-Equity Conversion. Working Paper: 8. Johannesburg: Society, Work and Development Institute (SWOP), University of the Witwatersrand; S. Mnwana, F. Mtero and M. May. 2016. Dispossessing the dispossessed? Mining and rural struggles in Mokopane, Limpopo.  Working Paper: 7. Johannesburg: Society, Work and Development Institute, University of the Witwatersrand.

[52] See http://www.ee.co.za/article/murder-south-africa-wild-coast-escalates-con...

[53] See https://www.dailymaverick.co.za/article/2017-06-16-zwanes-radical-mining... http://www.customcontested.co.za/next-mining-charter-will-revolutionary-...

[54] Conrad Steenkamp & Jana Uhr. 2000. 'The Makuleke Land Claim: Power Relations And Community-Based Natural Resource Management' Evaluating Eden Series Discussion Paper No.18. London: IIED. Available at: http://www.conservation-development.net/Projekte/Nachhaltigkeit/CD1/Sued...

 

[55] Mary Tomlinson. 2015/6. 'South Africa’s Housing Conundrum'. Institute of Race Relations @Liberty No 4, 2015/6 October 2015/Issue 20. Available at:

http://irr.org.za/reports-and-publications/atLiberty/files/liberty-2013-.... Urban housing statistics are difficult to aggregate. The official figure may be an overestimate given that 'new houses' may be a conversion of old housing stock from the state to occupants i.e. leasehold being converted to freehold.

[56] Ibid.

[57] Ibid.

[58] BNG Journal, op cit.

[59] Lauren Royston. 2002. 'Security of Tenure in South Africa: Overview of Policy and Practice' in Holding Their Ground: Secure Tenure for the Urban Poor in Developing Countries, edited by Alain Durand-Lasserve and Lauren Royston 165-81. London: Earthscan Publications; Royston, Lauren. 2014. 'Incrementally Securing Tenure. Promising Practices in Informal Settlement Upgrading in Southern Africa, World Bank Conference on Land and Poverty Washington DC; Kate Tissington. 2011. 'A Resource Guide to Housing in South Africa 1994-2010. Legislation, Policy, Programmes and Practice'. Johannesburg: Socio-Economic Research Institute of South Africa (SERI).

[60] BNG Journal, Department of Human Settlements, April-June 2017.

[61] Rosalie Kingwill. 2017a; Rosalie Kingwill. 2017c. 'Square pegs in round holes: the competing Faces of Land Title', in Hornby, Kingwill, Royston & Cousins (eds). 2017.

[62] Howard Consortium. Rutsch 2004. ‘The extra-legal land market: extra-legal land markets in Kwazulu-Natal.’ Durban: KwaZulu-Natal Provincial Planning and Development Commission Isandla Institute and Stephen Berrisford Consulting with Progressus Research and Development. 2007. 'Do Informal Land Markets Work for Poor People? An Assessment of three Metropolitan Cities in South Africa. Synthesis Report'. Johannesburg: Urban LandMark. Available at: http://www.urbanlandmark.org.za/downloads/Operation_of_the_market_Synthe...

http://www.urbanlandmark.org.za/downloads/tm2011_04.pdf

[63] In Cape Town the NGO known as Violence Prevention for Urban Upgrading (VPUU) introduced local planning and land records systems in Monwabisi Park, Khayelitsha, and in Johannesburg, land rights specialists are advocating an approach using zoning laws and land records in Slovo Park. https://www.dailymaverick.co.za/article/2016-04-11-upgrading-informal-se...

[64] Rosalie Kingwill. 2017b.

[65] Sindiso Mnisi Weeks. 2011. 'Securing women's property inheritance in the context of plurality: Negotiations of law and authority in Mbuzini customary courts and beyond', 2011, Acta Juridica, 140-173; Sindiso Mnisi Weeks. 2011. 'The Traditional Courts Bill: Controversy around process, substance and implications', Vol 35, March 2011, South African Crime Quarterly, 3-10; Mnisi Weeks, S. 'Beyond the Traditional Courts Bill: Regulating customary courts in line with living customary law and the Constitution', Vol 35, March 2011, South African Crime Quarterly, 31-40.

[66] Aninka Claassens. ‘Recent Changes in Women's Land Rights and Contested Customary Law in South Africa’. Journal of Agrarian Change, 13, 1, 2013, 71–92;  Aninka Claassens & Sindiso Mnisi. 2009. ‘Rural Women Redefining Land Rights in the Context of Living Customary Law’. South African Journal of Human Rights, 25, 491–516.  Ben Cousins. 2017. 'The 'Living Customary Law of Land' in Msinga, in Hornby, Kingwill, Royston & Cousins (eds). 2017. Untitled: Securing Land Tenure in Urban and Rural South Africa. University of KwaZulu-Natal Press, Durban.

[67] Bhe & Others v Magistrate Khayelitsha & Others 2005 (1) SA 580 (CC), 2005 (1) BCLR 1); Rosalie Kingwill. 2016. “[En]gendering the Norms of Customary Inheritance in Botswana and South Africa. Journal of Legal Pluralism and Unofficial Law, 48(2).

[68] Kingwill 2016; Likhapha Mbatha. 2002. “Reforming the Customary Law of Succession.” South African Journal on Human Rights 18: 259-286. Chuma Himonga. 2005. ‘The Advancement of Women's Rights in the First decaded of democracy in South Africa: the Reform of the Customary Law of Marriage and Succession’. Acta Juridica, 2005, 82-107

[69] http://www.larc.uct.ac.za/sites/default/files/image_tool/images/347/Fact...

[70] Hornby, Kingwill, Royston & Cousins (eds). 2017.

[71] See papers prepared for the Collaboration on Alternatives for Land Policy and Law and submitted to the High Level Panel of Parliament (see n. 16 and n.74 below). Rosalie Kingwill. 2017a.

[72] Siyabulela Manona & Rosalie Kingwill. Forthcoming. 'Motivation for the enactment of a Land Records Act'. Memorandum prepared for the Collaboration on Alternatives for Land Policy and Law, presented to the High Level Panel of Parliament. (Not publicly available yet, see n. 16 and n.74 below).

[73] Ibid.

[74] Parliament established a High Level Panel (HLP) in 2016 (see also n. 14 above) to investigate the impact of legislation in respect of (a) the triple challenges of poverty, unemployment and inequality; (b) the creation of, and equitable distribution of wealth; (c) land reform, restitution, redistribution and security of tenure; (d) nation building and social cohesion. The High Level Panel involved a review of legislation, assessment of implementation, identification of gaps and proposals for action with regard to existing legislation that enables the transformational goals of the developmental state, as well as laws that impede this goal. The outcome of the work are to be considered as a package of recommendations by the South African Legislative Sector. This considerable package of information is about to be made public. See also n. 16 above. This material was produced for government and has not yet been published or made available

 

 

 

Agricultural Area (1'000 Ha) is the land area mainly devoted to agriculture. It includes arable land, permanent crops, and permanent pasture, as defined by FAO.

Measurement unit: 
1'000 ha

Total spending for agricultural reserch measured measured as a share of the value added from agriculture, forestry and fishing activities

Measurement unit: 
Percentage (%)

The Corruption Perceptions Index aggregates data from a number of different sources that provide perceptions of business people and country experts of the level of corruption in the public sector.

Measurement unit: 
Index (0; 100)

GDP per capita based on purchasing power parity (PPP). PPP GDP is gross domestic product converted to international dollars using purchasing power parity rates.

Measurement unit: 
PPP$ 2011

Estimate of the percent of total Indigenous and Community Lands - formally recognised by the State - as a percentage of the country's total land area.

Measurement unit: 
Percentage (%)

Rural population refers to the share (%) of people living in rural areas as defined by national statistical offices. It is calculated as the ratio between Urban Population and Total Population.

Measurement unit: 
Percentage (%)

This indicator measures the proportion of terrestrial protected areas as a share of the total land area in a country.

Measurement unit: 
% of total land area
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Share (%) of Agricultural Value added with respect to the Total Value Added produced in a given country in a given year.

Measurement unit: 
Percentage (%)
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Land used permanently (five years or more) to grow herbaceous forage crops through cultivation or naturally (wild prairie or grazing land).

Measurement unit: 
1'000 ha

Disclaimer: The data displayed on the Land Portal is provided by third parties indicated as the data source or as the data provider. The Land Portal team is constantly working to ensure the highest possible standard of data quality and accuracy, yet the data is by its nature approximate and will contain some inaccuracies. The data may contain errors introduced by the data provider(s) and/or by the Land Portal team. In addition, this page allows you to compare data from different sources, but not all indicators are necessarily statistically comparable. The Land Portal Foundation (A) expressly disclaims the accuracy, adequacy, or completeness of any data and (B) shall not be liable for any errors, omissions or other defects in, delays or interruptions in such data, or for any actions taken in reliance thereon. Neither the Land Portal Foundation nor any of its data providers will be liable for any damages relating to your use of the data provided herein.

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