Land tenure reform in South Africa: A decolonial review by Inolofatseng Lekaba
1. The research problem
The historical dispossession of ‘native’ land dates back to the colonial era and was reinforced and exacerbated by the apartheid Natives Land Act of 1913. The enactment of this Act saw the unequitable redistribution of land with black people only being afforded 7% of arable land. More significantly, the Act facilitated the creation of enclaves for the Black majority with the restriction on land ownership and socio-economic mobility (South African History Online, 2013). Hence, the democratic government from the year 1994 was faced with the monumental task of redressing this imbalance in land ownership and ensuring that the previously disadvantaged do not continue to be discriminated against with regards of land tenure in the country. However, land tenure reform for communal land has been marred with disputes pertaining to African tenure systems versus those influenced by colonial structures. In this regard, this paper seeks to highlight the need to decolonise communal land tenure reform for the improved implementation of rural development plans.
2. Rationale for the study
The black majority in South Africa were confined to ‘homelands’ and Bantustans for a significant portion of history. In these spaces, they were not afforded land tenure rights as these were vested in the state. The dawn of democracy in 1994 saw the dismantling of apartheid land policies and the enactment of land reform policies as well as Acts of Parliament. However, evidence seems to suggest that land reform is not occurring at rates that can effectively reduce socio-economic inequalities caused by limited access to land. Subsequently, those living in the former ‘homelands’ are living on land still registered in the name of the state with no tenure security (Cousins, 2002).
The Communal Land Rights Act (CLaRA) of 2004 is one significant piece of legislation that was proposed to secure land rights for the previously marginalised in the former ‘homelands’. Subsequently, some scholars believe that land reform instruments like CLaRA are inappropriate for the African context. Cousins (2010) argues that the underlying causes for stagnant reform is the undermining of customary-law based systems of land tenure, the second-class of communal land rights in legislation and the reinforcement of colonial land administrative systems. African land tenure systems predating colonialism and apartheid were based on communal land rights; any individual in the community had rights over the land on which they inhabit, provided the land was used for the betterment of the society. The customary-law based tenure system clearly indicates that the chief or traditional authority has never been the primary custodian for communal land in the African communities. In this regard, it is logically expected that land reform policies and legislation be informed by communal land rights as implemented in traditional African settings (du Plessis, 2011).
Nonetheless, some may argue that tenure reform legislation is informed by Western ideologies of titling. Cousins (2002) notes that a Western land tenure system where communal land is registered in the names of individuals exposes communal land to disputes and exploitation by the elite. These disputes arise from the inherit need to establish of a free land market without the consent of other land owners, inequalities in agricultural income and the monopolisation of arable land by the elites and those with traditional authority. Undoubtedly, these contests indicate that the single-minded endeavours by post-colonial states to supersede the indigenous tenure system with Western property rights has failed.
Furthermore, in South Africa, other challenges evolved where the Eurocentric tenure system was instituted with land reform programmes. From the year 1996 group titles were issued to communal property associations and community trusts, many of which are now dysfunctional. The constitutions of these trusts and association were poorly drafted as rights of individuals were inadequately defined which resulted in misinterpretations by members, and infighting. Furthermore, in some cases traditional leaders have challenged the authority of elected trustees, and in others the privileged have seized the benefits of ownership. These challenges are not caused by a form of shared land holding, they are instead triggered by a primary incompatibility between the titling model and the realities of African land tenure. In addition, they are exacerbated by a lack of support to these groups by the state in the initial and subsequent stages of implementation (Cousins, 2002).
Moreover, rural tenure insecurity and the stronghold traditional authorities have on communal land have resulted in stagnant rural development. According to the National Development Plan: Chapter 8, rural areas play a significant role in urbanisation as the lack of employment opportunities, security and services results in rural-urban migration. Rural development will ensure that rural areas are the base for economic activities that cannot survive in urban spaces as they are often quite expensive (National Planning Commission, 2012).
3. Theoretical framework: Coloniality, modernity and the decolonial theory
Ndlovu-Gatsheni (2013) defines coloniality as the continued exploitation of the subaltern by dominant groups despite the eradication of colonial administrations. Modes of producing knowledge, perspectives, images and symbols of those who were colonised are still repressed by coloniality and modernism (Quijano, 2007). In this regard, Koobak & Marling (2014) further assert that the decolonial option is a counter for coloniality and modernity as it bypasses some Western theorists and theories to create a deep awareness of the neoliberal world system and trajectory of ‘indigenous’ knowledge production.
Moreover, the term “decolonial” describes the process of challenging the political economy of knowledge production where Western knowledge is afforded certain privileges and legitimacy whereas indigenous knowledges are invalidated (Baker, 2012; Ndlovu-Gatsheni, 2013). Agboka (2014) reiterates that the decolonial options seek to create a space for the production of new knowledge pertaining to the systematic workings of colonialism and how it continues to suppress and exploit culture, knowledge, and other resources of subjugated nations.
The decolonial theory is important for the proposed study into communal land reform because colonial theories such as individualism are applied to social structures that follow a different set of principles. There is a need to decolonise the policies and legislation used to effect tenure reform in order to fit the African context, taking into consideration the precolonisation social structures.
4. Land reform in South Africa
The three main pillars of the South African land reform programme are Land Restitution, Land Redistribution and Tenure Reform. These are all briefly discussed below to allow the reader a broader understanding of land reform in the South African context as well as the Acts and policies that inform the process. Tenure reform will be zeroed in specifically for the purposes of highlighting the disparities in policies displaying coloniality of power in land ownership.
According to Antwi & Nxumalo (2014) land restitution is concerned with the historic right to land; it seeks to return land to those dispossessed of it due to legislation such as the Native Land Act of 1913 and the Native Trust and Land Act of 1936. In this regard, the democratic Constitution of the republic provides for the restoration of property or equitable redress for those who were dispossessed of property after 19 June 1913 due to past racially discriminatory laws or practices. This restoration or redress is to be facilitated by an Act of Parliament, hence the Restitution of Land Rights Act of 1994. The Act permits a person, a community or descendants of those deprived of property rights after 19 June 1913, from racially discriminatory laws or practices, to claim restoration of those rights or equitable redress such as alternative land or compensation from the state (Rugege, 2004).
Section 25(5) of the Constitution provides for the state to ensure that citizens of the country have equitable access to land using its available resources through the application of reasonable legislative and other measures. In this regard, the second pillar of land reform is concerned with redistribution of land. This implies that the state is obligated to acquire land for purposes of distribution to those who have no land or who have inadequate access to land. The right to access to land is a socio-economic right which is anticipated to ensure that citizens are able to participate in the economy of their country and not only be political citizens (Rugege, 2004). For the years between 1994 and 1999 the redistribution of agricultural land was facilitated through the Settlement/Land Acquisition Grant (SLAG). Grants of R16 000 were awarded to households earning less than R15 000 for purposes of purchasing and developing agricultural land. The Proactive Land Acquisition Strategy (PLAS) was introduced in 2006 to support local government develop place-based initiatives and improve land reform institutional coordination (Lahiff, 2008; Antwi & Nxumalo, 2014)
4.3. Communal land tenure reform
Section 25 (6) of the Constitution of the republic provides for legal tenure security or equitable redress to those communities and persons with insecure land tenure due to past racially discriminatory laws or practices (Ministry of Justice and Constitutional Development, 1996). This tenure security was to be instituted by the Communal Land Rights Act of 2004 (CLaRA) which sort to transfer communal land to communities or award comparable redress; to provide for the democratic administration of communal land by communities; to provide for the co-operative performance of municipal functions on communal land (The Presidency, 2004).
However, the Constitutional Court declared the Act unconstitutional in 2010 as it was deemed to further threaten tenure for communities in rural areas by conferring communal land rights to traditional leaders and excluded women’s claim to property rights (Tongoane and Others v National Minister for Agriculture and Land Affairs and Others, 2010).
- Quote paper
- Inolofatseng Lekaba (Author), 2016, Land tenure reform in South Africa. A decolonial review, Munich, GRIN Verlag, https://www.grin.com/document/511829