….. article dated 30 September 2020….
Issue of communal land still unresolved…..
Making the whole question of land settlement more difficult in South Africa, there exists a conundrum inherited from apartheid days that much of rural land in fact belongs to nobody in terms of law. Although communal land, which makes up 13% of habitable land, is either registered in the name of the state or is deemed as unregistered state land, it is not actually state land at all. Or, at least, not technically so.
In a difficult meeting resulting in many unanswered questions on the re-distribution of land, the Department of Agriculture, Rural Development and Land Reform (DARDLR) recently briefed parliamentarians on the current status of policy and legislation on land reform. In late 2019, Cabinet called upon Parliament for such matters to be finally cleared up and sorted out with a report-back.
It appears from the briefing that Parliament indeed formed the required Presidential Advisory Panel on Land Reform in late 2019 and now DARDLR has been pressing buttons in all directions to speed matters up as demanded by Cabinet. Meanwhile, Minister Didiza has just announced the first of many hoped-for land allocations in the more under-developed provinces but this in no way assists the debate on communal land, which primarily needs clarification on ownership status before moves can be taken on whom owns what.
The principle has now been established that a communal land ownership and a land tenure framework has to be designed to fall in line with the eventual recommendations from the Presidential Advisory Panel called for by ConCourt and that Parliament has to accordingly to consult, debate and draft a Bill to facilitate such a process based on the outcome.
Like so many matters on land reform all issues came to a halt awaiting a decision on the Section 25 Constitutional issue regrding ‘nil’ compensation. DARDLR is now making input for such a Bill legislating on communal land to speed this particular matter up.
Ciskei, Transkei, etc.
To sort out land reform matters, many have turned their backs on the communal problem since it is terrain full of issues involving tribal land, apartheid constructions such as bantustans and old tribal ownership claims. However, nothing can stop the fact that land redistribution continues to thread its way into every aspect of economic life in South Africa and will do so for many years. The issue is a groundwork issue to sort out first.
The parliamentary debate is now composed of three main issues, all of which have been slowed down by a lack of political will to engage with affected parties, a fact which has always been the main hurdle. This, the Committee heard, has been exacerbated by the inability to hold public debate with community entities on the ground during the Covid pandemic.
The first contentious issue to be dealt with is the high-profile issue of amending Section 25 of the Constitution, a special parliamentary ad-hoc committee having been formed to deal with this issue as is well known. AfriForum’s application on this will soon be heard.
The second issue involves a revised draft of the Expropriation Bill from Public Works, the Act currently in force providing extensive land distribution powers to ministers under specific circumstances. Such legislation is not part of any planned land redistribution programme, but the Expropriation Act always stands as a separate tool of state acquisition, section 25 decisions affecting its progress through Parliament.
The Bill will need re-introducing to the Sixth Parliament and the Minister of Public Works, Patricia de Lille, having just gazetted the next version for public comment. This sets out “just and equitable conditions”, or scenarios, where no compensation need be paid by the State.
As clear as mud
Thirdly, is the whole question of the muddle regarding ownership of what is termed loosely as ‘communal land’; its relationship to both agricultural development and land redistribution and the issues surrounding apartheid manipulation; together with an accounting of tribal boundaries and fiefdoms of chiefs and kings.
Here, political antipathies run deep with a history of warring and loss of life, any legislation being subject to the difficult process of agreement by the body of 23 traditional heads of the National House of Traditional Leaders.
Game of thrones
Mdu Shabane, DG of DARDLR, told MPs that in some cases communal land is either registered in the name of the state or is deemed as unregistered state land, but the land it is not actually state land, or anything in fact. Obviously, he said, this is an untenable situation at law.
He noted that communities and individuals that reside on communal land are in actual fact de facto owners. In reality also, communal land is already technically “redistributed” and for practical reasons therefore plays no real part in land redistribution, whether in terms of agricultural, urban, general land redistribution or not.
According to Shabane, the whole subject however must now be subject to a programme of tenure reform first. Tenure will then obviously plays its part in land reform and re-distribution by having status.
Part of the problem
Shabane made the important point that communal land had never been part of the land redistribution programme as such up until this moment. This is why, new legislation in the form of the Communal Property Associations Amendment Bill, as a first step in administration, is now with the President for signature into law. It will probably be returned on the basis that insufficient consulation on the Bill has taken place with traditional councils, as have a number of other Bills sent forward.
Shabane further said the overall land redistribution programme, a plan also called for by ConCourt, had as its target the redistribution of 30% white-owned agricultural land. Communal land until now had been seen a black ownership issue and treated separately but now this would change.
He also said that communities living on communal land must have a right to own land either through shared certificate or full title. This had to be a non-negotiable or the situation would never move on.
So where now?
Such a pre-requirement means dealing with the question of the structure and methods of 800 or so traditional councils and community property associations (CPAs) throughout rural areas that are currently administering such holdings. Full title in terms of the Deeds Registry Act was impractical, he said, and to survey and register every homestead quite unaffordable.
Collective systems and programmes as used in parts of Asia would have to be used, Shabane said, it being important at the same time that any rights had full legal substance and were tradable, transferable and could be bonded by banks.
The Kwa-Zulu Natal issue
Traditional leaders were far from agreeing at the moment on the whole idea of being cut out of ownership arrangements and some, but a few, agreeing to them having a new role in the communities but still wanting the ability to contract land back or at the very least to be the decider on who owns what. Negotiations have to start but at first only in an overall sense and DRDLD having to tread lightly.
Delays will obviously take place in the case of communal land in Kwa-Zulu Natal, a major part of the governing party’s voter base. There the Ingonyama Trust was established in 1994 to manage some 2.8 million hectares of land owned by the government of KwaZulu immediately prior to the Act’s commencement.
The Trust was established by the KwaZulu-Natal Ingonyama Trust Act, which was enacted by the KwaZulu Legislative Assembly. The trust land vests in the king, or Ingonyama, whomsoever that might be and at the moment being King Zwelethini, acting as trustee on behalf of members of communities.
With the rights of almost 10% of the SA population at stake and a landmass close to a third of the size of KwaZulu-Natal, the governing party has trod very carefully in an area with such an enormous voter base. King Zwelethini has made his views known in no uncertain terms.
Mdu Shabane told parliamentarians that DARDLR was now to consult nationwide before any policy on communal land was approved. He said that the department had to be careful not to set community and traditional leaders against each other and the framework had to look at how to intervene in conflicts always experienced when dealing with CPAs.
DARDLR hopes that by June 2021, after consultation in the provinces, both the policy and the Bill will be tabled in Parliament.