This op-ed by Katlego Ramantsina, a researcher at the Institute for Poverty, Land and Agrarian Studies first appeared in the Daily Maverick

Developing land tenure legislation is a difficult job to get right — especially given the legacy of intractable problems inherited from apartheid. The Gauteng consultation did not seem genuine: it lasted only three hours.

Government recently wrapped up its public consultations on land administration and land tenure reform in communal areas. Given how central the issue of land is to South Africans, and that decisions stemming from the process will affect the lives and livelihoods of millions across the country, it’s hard to overstate the importance of these discussions.

Sadly, the manner in which the government conducted its work leaves much to be desired. And, according to the departments involved — Agriculture, Land Reform and Rural Development (DALRRD) and Cooperative Governance and Traditional Affairs (Cogta) — there will be no more consultations. The 19 April 2022 event in Benoni, Gauteng, where departmental representatives met with legal experts, academics and civil society organisations, was the end of the provincial consultation process. The National Land Summit is set to be held on 27 and 28 May 2022 in Boksburg.

I argue that the consultations were merely a box-ticking exercise rather than being embraced by the government as a chance to really understand the issues, learn from those who presented or engage with lessons that may be learned from elsewhere on the continent and in the world.

How did the government get here?

During the event in Benoni, Deputy Minister of Cogta Obed Bapela deliberated on the history of dispossession in South Africa, the process leading up to and the reasons for this round of consultations.

According to Bapela, the foundation for the talks was laid in 2017 at the Indigenous Indaba in Johannesburg. The event consisted of traditional leaders, Chapter 9 institutions, government and some members of civil society who all wanted to grapple with the thorny question of communal land.

Communal land in South Africa is mostly rural territory owned by the government and administered through a tribal authority. Much of this tenure system is to be seen in the former Bantustans.

Those at the indaba demanded that communal land must be transferred back to its rightful owners within six months. But it’s not so simple: there’s still the tricky issue of security of tenure on communal land to consider. As it stands, security of tenure depends on whether one has a title deed and Permission To Occupy (PTO) rights in communal areas. Even that isn’t necessarily enough — many people are still dispossessed, even if they have security of tenure.

The Deputy Minister of DALRRD, Mcebisi Skwatsha, picked up where Bapela had left off to explain what his department has done since the Indaba. National and local government officials, members of civil society and NGOs were sent on a study tour to Uganda and Botswana to learn about their legal frameworks as well as their institutional arrangements and how these are used in land administration. They also planned to visit Ghana, Mozambique, Rwanda and Mexico — these study tours were scuppered by Covid-19.

However, a desktop analysis was conducted and a report was drafted and presented to the government, which decided to host provincial consultations to deliberate on what was found from their research.

Key lessons

Makaziwe Ntuli from the Registrar of Deeds presented the resulting analysis and provided a concise description of the issues to be addressed regarding communal tenure in South Africa.

This analysis emphasised that communal tenure was hamstrung by dual land administration systems: 

• A secure tenure system is supported by a cadastre, and the insecure tenure system is largely administered by traditional leaders where land is either registered in the name of the state or remains unregistered and the state is considered to be the legal owner; and
• The insecure tenure system is characterised by unregistered land tenure rights that are protected by the Interim Protection of Informal Land Rights Act, the right holders are either issued with PTO, leases, or receipts, and some of the rights are not documented.

These are the lessons learned from the tour and desktop analysis:

• Legislation that recognises customary tenure rights as the right that is perpetual and exclusive to the right holder subject to the agreed norms;
• Communal and individual land rights can co-exist;
• Decentralised structures simplify land administration; and
• Ministries whose functions were on land administration were merged into one ministry.

The research report also offered 18 recommendations for the transfer of communal land. Five are highlighted here:

• In areas with traditional councils, the outer boundary (communally owned areas) to be transferred to traditional councils as established in terms of Section 16 of Act 3 of 2019. Legislation is to be created and conditions of title be created that both the outer boundary and internal boundary be transferred simultaneously. Land Administration should be carried out by Traditional Councils and/or Land Administration Committee/existing structures.
• In areas without Traditional Councils, the outer boundary (communally owned areas) is to be transferred to the community in its own name. Land administration in these areas should be carried out by the Land Administration Committee or a similar structure. The internal boundary (individual persons, families, household rights), meanwhile, is to be subdivided and transferred to individual persons, families, and households in their individual capacity and title deeds/certificates of customary land tenure right to be issued;
• Establish a recordal and registration office;
• Develop a model for a beneficiary system that benefits the communities; and
• A trust account should be created on behalf of the community members for community development projects.

These lessons and recommendations did not assuage the feeling for many attendees that the consultation process was flawed.

Concerns raised at the summit

Constance Mogale, the national coordinator for the Alliance for Rural Democracy (ARD) and member of the Land Access Movement of South Africa (Lamosa), was concerned that the engagement took place without the Ministry of Mineral Resources and Energy — this is problematic since mining companies and the government often ignore customary ownership rights.

She said the government and banks did not value customary rights, houses, the natural environment and agricultural improvements as much as they did freehold ownership under common law. She further argued that both problems can be resolved if the government looks into the recommendations made by the presidential advisory panel on land reform and High-Level Panel reports.

The issue around the inner and outer boundaries of communities was of concern to many participants. This is because traditional communal lands and rural villages, often split by municipal boundaries, fail to follow complex social boundaries. As a result, there has been a contest and an escalation of disputes between the government and traditional governance over land. This has negatively affected the lives and activities of most rural people.

Kgosi Setlamorago Thobejane, former president of the Congress of Traditional Leaders of South Africa (Contralesa), said that traditional leaders supported the recommendation of the inner and outer boundaries

“Outer and inner boundaries of traditional communities should be recognised as such. But when you deal with the inner boundaries there should be a distinction between the two,” said Thobejane. “Customary law and land administration is key, it should clarify this distinction so that there are no contradictions, it should also clarify who should do what and how one can dispossess the land.”

The proposed Land Records Bill was welcomed by participants as essential; it will, they said, help all concerned to understand who is on the land and how they are using it.

A consultation or box-ticking?

Developing tenure legislation is a difficult job to get right — especially given the legacy of intractable problems inherited from apartheid. The proceedings at the Gauteng consultation did not seem like a genuine consultation: it lasted only three hours, which was not sufficient as not all representatives could share their comments. Public consultation by its very nature is meant to give people a stronger and clearer voice in the policy process. Other areas of concern were:

• Information on when or where the consultations would take place was not publicly available, which is questionable as a detailed announcement should be made on different mediums ahead of time. So far, consultations have only taken place in five provinces: KwaZulu-Natal, Limpopo, Mpumalanga, the Eastern Cape and Gauteng;
• The National Land Summit was meant to take place on 28 April 2022. Participants were given until 30 April 2022 to submit written inputs, but this raised questions as to what would be discussed at the land summit as the written inputs would only be concluded two days later. Due to this blunder the summit was postponed;
• The feedback on lessons learned from other countries was unconvincing. It was merely about the laws and institutions of each country, providing no critical reflection or understanding of how these have worked in practice. It is disappointing that the departments made no reference to some existing major research-based reports, which could enable us to tackle the communal land tenure question;
• South Africa has a wealth of experience and references for the communal tenure challenge, such as the advisory panel on land reform, the High Level Panel and key legislation, including the Interim Protection of Land Rights Act (IPLRA) of 1996. But the recommendations provided in these reports have not been applied, which is a major concern, and one of the reasons why communal tenure issues have not been resolved;
• The pre-proposed recommendations are not new and land tenure, and governance systems in the former reserves and Bantustans are still the same. People are given no choice as to who will administer their land rights; instead, traditional councils are imposed on them; and
• The discussions at the consultation were about a variety of land issues rather than communal tenure, which proved that the participants were not given adequate information about what to prepare. The discussions provided no background as to the prior processes and approaches to addressing communal land rights.

Meaningful consultation is a two-way dialogue rather than a one-way dissemination of information and it involves people in affected communities and other relevant stakeholders. The panelists at the “consultation” merely presented the report, took people’s comments and called it a day, while the deputy ministers failed to engage with any questions or comments.

Communal tenure legislation is urgently necessary. If it does not acknowledge the sensitivity of land issues, put the wealth of reference knowledge to use and hold well-organised consultations, the government will fail to address this highly contentious and important issue. DM