When the National Party government solidified its separate development policy of apartheid, it unwittingly dispersed parts of the black population into “black spots”, believing those areas to be of insignificant economic value.
These so-called self-governing homelands and bantustans were not a novel invention. They were preceded by three centuries of land dispossession, with the aim of removing the black majority from urban areas, reserving urban areas for commerce, development and residential areas for the white minority.
A central feature of the separatist development policy was to strip black people of their citizenship and land rights.
These efforts by the National Party were linked with its superficial demarcation and division of ethnic groups, which also sought to impose traditional leaders on ethnic groups who would tow the apartheid line and act as ambassadors of the separatist development regime.
Between 1934 and 1976, the government implemented legislation that culminated into present-day “traditional” communal areas.
The Presidential Advisory Panel on Land Reform and Agriculture, on which I served, asserted that 32% of the black population lived in the former homelands by 1997, where 63% of the inhabitants possessed “permissions to occupy” (PTO) certificates, 26.8% of those did not hold PTOs and 9.6% were uncertain of whether they held these documents.
It is worth pointing out that PTOs do not refer to land that has been cadastral surveyed (showing boundaries and property lines), nor do they include land that is registered in terms of the Deeds Registries Act No 37 of 1947.
The PTOs do not afford inhabitants of the former homelands with secure land tenure, legal certainty or protection from land dispossessions.
Prior to the promulgation of the Constitution, several pieces of legislation were introduced to apply in communal areas. One of these, the Upgrading of Land Tenure Rights Act No 112 of 1991, was promulgated with the aim of converting PTOs to rights that could be upgraded to freehold title.
The challenge with the Act is that it applies to land that has been surveyed. It is trite that most of the land in the former homelands and the TBVC states has not been surveyed nor does it form part of the Deeds Registry. As a result, the Act provides little to no protection for the inhabitants of communal areas.
In 1996, the Interim Protection of Informal Rights Act No 31 of 1996 was passed, in terms of which informal land rights are recognised. The Act was intended to be an interim measure, pending the promulgation of a more comprehensive law, applicable to household plots, homesteads, cropping fields and grazing land. It is aimed at protecting people in communal areas from their rights being deprived. No comprehensive law has been passed to strengthen the provisions of the Act.
In 2004 the constitutional court declared the Communal Land Rights Act No 11 of 2004 unconstitutional. In this case, the court sounded alarm bells to the executive and the legislature to steer clear of duplicating apartheid-style land tenure systems that subject the inhabitants of communal areas to lesser rights than people who enjoy freehold title. In this case, the court discouraged title from being given to traditional councils on behalf of communities.
In May this year, the department of land reform, rural development and agriculture hosted a national summit on land administration and communal tenure. Civil society organisations representing women’s interest groups and people residing in communal areas were vociferous and critical against what they perceived to be the government’s seemingly heavy slant towards hearing and hosting traditional leaders and stifling the voices of civil society.
It is not clear what resolutions have been carried forward from the summit on a renewed policy that will regulate and govern the land rights of people residing in communal areas.
The dualistic state of land tenure that deprives black inhabitants in communal areas from having secure land tenure rights remains pervasive notwithstanding the constitutional provision stated in section 25(6), wherein “a person or community whose form of 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”.
Although legislation such as the Extension of Security of Tenure Act No 62 of 1997 (Esta) was promulgated pursuant to section 25(6) of the Constitution, its focus and implementation in practice has more to do with enabling landowners to evict those with insecure tenure lawfully than it does with the promotion, improvement and protection of land tenure in favour of people residing in communal areas.
The presidential panel noted in its report that more evictions of farm dwellers have taken place after the promulgation of Esta and certainly after the advent of democracy.
The former homelands and bantustans have, in the past few decades, proved to be pieces of land with untold and unexpected economic value and potential. As fate would have it, it is mainly in communal areas where vast mineral deposits such as coal, diamonds, gold and platinum group metals and potential have since been discovered.
Beyond the mining deposits found in these areas is the remarkable and yet largely untapped potential to unlock value through the Renewable Independent Power Producer Programme, aimed at adding megawatts to the country’s electricity generating system through wind, solar, biomass and hydro projects.
Much like mining, the former bantustans hold the promise of a new economy towards a just energy transition.
The lack of legal certainty as it pertains to securing land rights in communal areas discourages meaningful economic investment that may trigger long-term economic value to curb poverty, unemployment and inequality that is largely felt in communal areas. The failure to cadastral survey land further evades the possibility of providing secure land tenure to communities.
The failure of the government to democratise land tenure rights in communal areas misses an important opportunity to upgrade and to protect the rights of people in communal areas, enabling them to elevate their voices and being treated as meaningful stakeholders capable of using their agency and self-determination on how they wish their land to be used and developed.
The absence of legal certainty and protection plays into the hands of unscrupulous developers who run roughshod and trample on the rights of communities, opting simply to strike clandestine deals with traditional leaders at the expense of communities.
Recent communal land-related jurisprudence is demonstrative of a judiciary that is intent on using its discretionary and interpretative powers to develop the law in favour of informal rights holders.
Cases such as the Xolobeni case involving mining on communal land and the recent Shell judgment on gas exploration off the coast give credence to the need for clear policy direction and leadership from the executive to give true meaning and substance to the rights of persons residing in communal areas to exercise their rights to citizenship and dignity by at least affording each household land tenure rights equivalent to freehold title.
Once there is clear law and policy aimed at eradicating the legacy of the apartheid dualistic tenure system, people in communal areas will be able to assert and elevate their voices meaningfully and those with interests of developing businesses on communal land will be impeded from short-circuiting the land tenure rights of communities.
Beyond the need to democratise land tenure rights of people residing on
communal land is the need to promote transparency and certainty in the manner in which the redistribution of land is carried out by the department of land reform to implement land redistribution.
Redistribution, unlike restitution, enables those who need land to be assisted by the state to gain access to it in an equitable manner. Section 25(5) of the Constitution directs the state to take legislative and other measures to ensure that land needs are addressed. People who need land will inevitably vary, and so will land demand.
As regards redistribution, parliament has not promulgated an Act that focuses on land needs. Instead, it is the department of land reform that makes land allocations for redistribution, which has relied on its internal policies in making land allocations. On the basis of recommendations made by the presidential panel, the department published a draft Beneficiary Selection and Land Allocation Policy that provides for the issuing of 30-year leases to those communities, entities and interested people who wish to gain access to land.
Although having a redistribution policy in place is a step in the right direction, much more stands to be gained in making land accessible in a transparent manner and most importantly, through an Act of parliament that is preceded by public participation and the checks and balances required of statutes.
Ultimately, it is the democratisation of land tenure rights coupled with an Act of parliament that governs land needs that have the potential to unlock the rural economy. It is the traditional “black spots” that have the ability to carry the light into a better South Africa.
Bulelwa Mabasa is a director and head of the land reform restitution and tenure practice at Werksmans Attorneys. She is on the presidential advisory panel on land reform and writes in her personal capacity.
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