Sunday Times

Give land back to the dispossess­ed, certainly, but settle the tenure issue as well

Redistribu­tion won’t bring prosperity unless beneficiar­ies have title

- By PALESA LEBITSE Lebitse is a legal researcher

● My great-grandfathe­r had a modest home on a treasured piece of land. His livestock were abundant and he was considered a wealthy man. One day, in 1947, his entire family were forcefully removed from their home of many years and his cattle appropriat­ed. He suffered greatly and my great-grandmothe­r even more. Their new homestead in the township was cramped and dusty, without the hope of any economic prosperity.

Many suffered a similar fate and the consequenc­es of that calamity continue to be felt even today. To that end, it should be no surprise that the issue of land in the rainbow nation is intense and emotional for those previously marginalis­ed. Land was the beacon of prosperity and growth in the black community.

The democratic­ally elected government has consistent­ly faced a conundrum with regard to land because reconcilia­tion was the theme that ushered our nation into a democratic state. Undoing the wrongs of colonialis­m and apartheid could never be achieved by violating the precepts of constituti­onalism. And so, when the ANC recently adopted a resolution to amend the constituti­on in order to expropriat­e land without compensati­on, it came as no surprise.

It was a momentous occasion for the previously marginalis­ed despite the fact that the resolution was accompanie­d by a caveat — that food security should not be disrupted. What this caution possibly indicates is that the resolution aims to provide the right to settlement, and not necessaril­y agricultur­al developmen­t. Even if it did, what should be considered is that while expropriat­ion and redistribu­tion of land may make it available, the significan­t question of actual ownership remains.

Currently, the right to ownership of restituted land remains unclear. The ability to defend one’s ownership, occupation, use of and access to land from interferen­ce by others is referred to as tenure security. The governing party has failed to resolve the simple issue of land tenure to secure the rights of the beneficiar­ies of land restitutio­n.

Securing land tenure rights for a person whose land has been restored is fundamenta­l because it provides security, which William Beinart and

Peter Delius, in a paper on land tenure, say “may facilitate investment and production as well as rural developmen­t”.

Without secured land tenure rights, those who occupy restituted land “receive limited support from state or other agencies to develop agricultur­al or income-generating activities”, and thus prosperity remains elusive, say Beinart and Delius.

Prospectiv­e farmers may be unable to access funding to grow their business without having a title deed, because they will have no security to offer a lending institutio­n.

The restoratio­n of land should be a programme that enables the previously marginalis­ed to gain prosperity, but this is unlikely to happen under the status quo regarding communal land rights.

Without secured land tenure rights, the ANC resolution is akin to the present land redistribu­tion policy, which Beinart and Delius say is “not designed to expand agricultur­al production or other forms of rural developmen­t” .

The constituti­on, under section 25 (6), aimed to redress the calamity of unsecured land tenure by providing that people or a community “whose tenure of land is legally insecure” are constituti­onally entitled to tenure “which is legally secure, or to comparable redress”.

Reasonable measures must be taken by the state “to foster conditions which enable citizens to gain access to land on an equitable basis”, as stated in section 25 (5).

The background to this is a history of colonial and apartheid supremacy under which Africans were barred from buying or owning land. In terms of customary communal holding, access to and use of land by black people was defined and controlled by state-appointed authoritie­s.

Therefore, parliament introduced the Land Tenure Bill, which, according to Beinart and Delius, “aims to provide legally secure tenure in relation to communal land by converting land held by a community into ownership by that community”.

This, however, fails to address the fundamenta­l problem of unsecured tenure rights. It fails to protect the land rights of individual­s and families effectivel­y.

The status quo remains regarding customary communal holding. The debate on land tenure has not yet been concluded, and thus the intended beneficiar­ies of restoratio­n are unlikely to prosper under the current right to communal land.

While community members may have access to land in their areas and are able to work and graze communal land under the authority of traditiona­l leadership, unsecured tenure rights limit their potential.

Whether the intended expropriat­ion and redistribu­tion are successful­ly implemente­d, and whether this results in prosperity for the intended beneficiar­ies, remains largely dependent on whether occupiers have secure land rights.

 ?? Picture: Sydney Seshibedi ?? While community members may have access to land and are allowed to work and graze communal land under the authority of traditiona­l leadership, unsecured tenure rights limit their potential.
Picture: Sydney Seshibedi While community members may have access to land and are allowed to work and graze communal land under the authority of traditiona­l leadership, unsecured tenure rights limit their potential.

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