Forgetting a major player
Discussion on land reform would be incomplete without the input of traditional leaders
OF ALL THE legislation passed post1994, none would have greater impact than either the Expropriation Bill or the Amendment of Section 25 of the Constitution. Both are meant to fasttrack land reform, possibly reconfiguring the economic, cultural and social relations between black and white South Africans.
Africans would cease to be landless and defined as trespassers in the country of their birth. Most Africans find themselves either crowded and congested in conditions of squalor or in humanly challenging and undignified areas, with almost non-existent economic opportunities.
The status of the African majority as land owners would be restored.
Addressing the ANC’s Land Summit last year, President Cyril Ramaphosa said “without redistribution of land, we will not be able to build a united South Africa… To our people, indeed to all people, land is about dignity, it’s about identity, it is about security”.
On the economic front, he said “without giving the poor the means to productively work and farm the land, we will not be able to defeat poverty. There is a strong moral imperative that drives this effort.”
Even more important is his observation that “for as long as ownership, control and management are concentrated in the hands of few – and serve the interests of a few – South Africa will not be able to realise the potential of its economic assets”.
Our constitutional democracy demands that all legislative enactments or amendments must be subjected to public scrutiny. To this end, public hearings on the parliamentary motion to amend Section 25 of the Constitution to enable expropriation without compensation were held.
Conspicuously missing in the debates and input has been the voice of the traditional leadership.
To close this gap, the Presidential Advisory Panel on Land Reform and Agriculture recently hosted a roundtable discussion on rural land tenure with traditional leaders.
Traditional leaders expressed dissatisfaction that often their participation was requested as an afterthought. They rejected attempts to portray them as “tin-pot despots”, delinked from their communities. They see themselves as custodians of land on behalf of their communities. None regarded land as their sole possession.
Traditional leaders said discussions on tenure on rural land must factor in cultural aspects of communal living.
Given the dominance of inherited Roman Dutch Law, private property rights and rights of individuals have almost displaced communalism and its practices that are embedded in the African thought system.
As a consequence, there has been inadequate exploration of the relevance, appropriateness and applicability of communalism in the rural environment. Traditional leaders said land tenure reform should build on African traditional systems and not rely solely on perspectives that bear little reality to the lived experience of rural communities.
While advocating communalism and recognition of communal rights versus individual tenure rights, they were cognisant of Section 25 (6) of the Constitution. Section 25 states that persons or communities “whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices” are entitled to tenure which is legally secure. The main question is how to effect the Constitutional injunction while remaining respectful of the traditional system.
Traditional leaders argued that in the African thought system the notion of tenure insecurity did not arise as security was inherent in the communal land system under traditional leaders. This perspective nullifies the argument that security of tenure can be effected only through titling.
Traditional leaders expressed concern that almost all administrations under the government ignored their submissions when it came to land policy, administration and management. They rejected Spatial Planning and Land Use Management Act 16 of 2013, arguing that it was not sent to the National House of Traditional Leaders, as required by law. The law is thus deemed to be unconstitutional.
In the final analysis, a sustainable land reform and security of tenure might have to go back to the drawing board. This will enable traditional leaders to make a meaningful contribution.
In the African thought system, tenure insecurity does not arise as security of tenure is inherent in the communal land system