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Secure access to resources is now recognised in human rights discourse as a universal condition of human well-being. This paper aims to contribute to the theoretical and empirical understanding of land tenure as a human rights issue, by analysing recent land tenure policy in South Africa. Specifically, the paper analyses the implementation of the Transformation of Certain Rural Areas Act (Trancraa) in Namaqualand, Northern Cape Province during 2001 and 2002.
Trancraa is the first comprehensive post-apartheid land tenure reform in state-claimed, communal lands. It provides for land tenure reform in state-claimed rural areas, formerly ‘coloured reserves’, by returning ownership rights to residents or local institutions through a consultative process. The paper documents the implementation of Trancra in two Rural Areas, Pella and Komaggas. Key findings include:
in Pella, the Transformation Committee defended interests in land and development within a pragmatic engagement with civil society and government
in Komaggas, the Trancraa process was resisted by a community group that saw the Act as assuming state ownership of land and promoting specific interests
claims that "it is our land" could reflect both discourses of community tenure and conflicting claims by different groups
the state’s offer that "it is your land" was shaped by discourses of market-based development and sometimes appeared as ‘an opportunity for the state to bail out’.
Based on this case study, the paper draws some general conclusions about land tenure as a human rights issue. These include:
a social order in which human rights are respected will remove some sources of tenure insecurity, such as racial and gender discrimination
rights to information, political participation and non-discrimination are important to enable a fair and effective land reform
secure land tenure contributes to the realisation of human rights such as rights to livelihood, work and substantial equality
the empirical role of human rights depends on many actors, processes and contextual factors
human rights can make collective guarantees about supporting struggles for human capabilities and social transformation, as shown in the Trancraa process.
