The report provides a conceptual framework for understanding the application of 'adjudication' to land rights verification as part of a general land administration function that includes offregister rights; and outlines the motivation for developing such as system in South Africa, with some provisional ideas about systematising and institutionalising land rights adjudication to include off-register rights.
The immediate context in which these ideas are being developed is AFRA's Pathways Project which aims to settle the rights of farm dwellers and labour tenants whose rights are defined by the Extension of Security of Tenure Act, No 62 of 1997 (ESTA) and the Land Reform (Labour Tenants) Act, No 3 of 1996 (LTA) with the view to secure tenure and access to services in order to facilitate pathways out of poverty. The project aims to identify and explore a range of legal and official mechanisms to achieve these goals. Tenure security is regarded as key to realising AFRA's longer term developmental goals, given the persistence of endemic uncertainty of tenure rights. This report identifies 'land rights adjudication' as a key potential means by which the land rights of the poor, including those with extremely vulnerable tenure on farms, can be shifted towards greater acknowledgement and certainty.
The approach followed in this report fundamentally challenges the idea that property rights are only to be associated with title deeds registered in the Deeds Office, which apply very strict and exclusionary criteria to render rights registerable. These criteria leave out the majority of rights of poorer South Africans, for whom the land market provides no guarantee of land rights or shelter. Those with rights that are contingent on the rights of others, such as farm dwellers, labour tenants, group rights holders and communal rights holders, should also be recognised as property rights, and should thus be afforded the same levels of administration to acknowledge, record, safeguard and maintain land information and individual records of tenure as the formal Deeds system. There is great potential for the Deeds office to play a role in assisting local, provincial and central government institutions responsible for land rights to develop a differentiated, yet integrated system of rights recordal and records maintenance. The proposal is thus not for a separate land administration system, but a system that allows for a diversity of legally recognised rights that are afforded full state protection in the form of records repositories that are held, maintained and updated, such as title deeds are. The design should allow for sub-systems to articulate with one another in an integrated land administration system for the country.
This report addresses the first stages of development of a land administration system by examining how adjudication of farm dweller and labour tenant rights can contribute to the recognition, recordal, state protection and maintenance of their rights.
Authors and Publishers
AFRA is a land rights advocacy non-governmental organisation (NGO) working since 1979 to support marginalised black rural people, with a focus on farm dwellers. We are working towards an inclusive, gender equitable society where rights are valued, realised and protected, essential services are delivered, and land tenure is secure. We work intensively with communities in and around the uMgungundlovu District Municipality in KwaZulu-Natal, South Africa, and extensively in offering support and advice.