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Key provisions of the Communal Land Rights Act are declared unconstitutional. Where to now?

10 November 2009

In March 2006 four rural communities challenged the constitutionality of the Communal Land Rights Act of 2004, arguing that it would undermine their right to tenure security as set out in the South African constitution.  On the 30th October 2009 Judge AP Ledwaba of the North Gauteng High Court in Pretoria handed down judgment (see box in right pane) in the CLRA legal challenge.  The judge declared that 15 key provisions of the Act, and in particular those providing for the transfer and registration of communal land, the determination of rights by the Minister and the establishment and composition of land administration committees, are invalid and unconstitutional. This renders the Act impossible to implement in its present form, and effectively means that if the Constitutional Court confirms the judgement, government will have to fundamentally rethink its approach to the reform of communal tenure.

The judge did not find that that the parliamentary process followed in passing the law was flawed, or that the Act in effect creates a fourth tier of government, as argued by the applicants. He did not strike down the Act as a whole. The judgement is focused on key arguments around security of tenure, and in particular on the problems that the Act could create for smaller or independent communities, such as the Makuleke community (one of the four applicants,) which are located within the jurisdictional boundaries of large Traditional Councils. The judge accepted arguments that land rights and land administration in tenure systems derived from customary norms and principles are nested or ‘layered ‘ in character, and that it is therefore problematic to vest centralised control over land in overarching Traditional Councils.

After fifteen years of debate, law making and legal action, post-apartheid South Africa is no nearer to addressing the key issue of the uncertain legal status of the land rights of millions of people living under communal tenure , mostly in the former reserves.  At the same time, the other components of government’s tenure reform programme, such as those aimed at securing the tenure security of farm workers, dwellers and labour tenants, as well as of the beneficiaries of land restitution and redistribution, are also in trouble. Land owners who wish to evict farm dwellers or labour tenants have found ways to use tenure reform laws to their own advantage. Government support to these vulnerable groups has proved ineffective to date. Farm evictions continue apace. On farms transferred to beneficiaries of land reform, most of the legal entities set up to take ownership of land (such as Communal Property Associations or trusts) are dysfunctional and fail to adequately secure the rights of their members. Again, effective government support for the establishment and operation of these institutions is sorely lacking.

In my view it is time for a fundamental re-think of tenure reform in all of its component parts. Founding assumptions on the nature of land rights in these different situations and contexts need to be critically reviewed. As Edward Lahiff (2009: 114) argues, this will probably require ‘the abandonment of private ownership as the prime model of landholding in land reform, and a much greater role for the state in land ownership and land rights administration’. However, the key constraint of limited government capacity and resources will also have to be factored into realistic policy formulation. Tenure reform thus continues to present us with enormous challenges and dilemmas. The sooner we acknowledge the scale of the problems, and the need to go back to the drawing board, the better.

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One Comment leave one →
  1. 22 November 2009 2:56 am

    A key to fair land tenure is to collect the unearned income – the land rent – accruing to land and use these funds for public benefits, infrastructure, etc. This approach – land value capture/taxation – removes the speculation and profiteering motives and results in incremental land reform both rural and urban.

    For more information and details on this policy implementation go here:
    Land Rights and Land Value Capture http://www.course.earthrights.net

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