Gov­ern­ment is dis­pos­sess­ing ru­ral peo­ple

Folk in ru­ral ar­eas are again be­ing dis­pos­sessed, writes MICHAEL CLARK


AT A brief­ing on land-re­lated leg­is­la­tion by Ru­ral De­vel­op­ment and Land Re­form Min­is­ter Gugile Nk­winti ear­lier this month, tra­di­tional lead­ers claimed that a new plan­ning law, the Spa­tial Plan­ning and Land Use Man­age­ment Act, un­der­mines their au­thor­ity to man­age com­mu­nal land.

They said that by grant­ing lo­cal gov­ern­ment this power, the act strips tra­di­tional lead­er­ship in­sti­tu­tions of their pow­ers in re­la­tion to com­mu­nal land.

The act, which came into op­er­a­tion on July 1, aims to de­velop a new frame­work to reg­u­late plan­ning per­mis­sions and ap­provals, sets pa­ram­e­ters for new de­vel­op­ments and pro­vides for dif­fer­ent law­ful land uses. It also pro­vides clar­ity on how plan­ning law in­ter­acts with other poli­cies.

The re­peal of many apartheid-era laws left SA’s plan­ning laws frag­mented and in­con­sis­tent.

How­ever, the com­ing into force of the new law was over­shad­owed by re­sis­tance from tra­di­tional lead­ers, who called for the gov­ern­ment to sus­pend its im­ple­men­ta­tion im­me­di­ately and vowed not to en­force it.

In re­sponse, Nk­winti said that the Spa­tial Plan­ning and Land Use Man­age­ment Act would not di­min­ish the role of tra­di­tional lead­ers in de­ci­sions re­lat­ing to com­mu­nal land be­cause their in­sti­tu­tions would still be con­sulted.

Con­tro­ver­sially, he as­sured tra­di­tional lead­ers that they are the “de facto own­ers of the land”. He ex­plained that the gov­ern­ment had as­sumed that ev­ery­one knew that tra­di­tional lead­ers were the le­git­i­mate own­ers of the land, even though this is not ex­pressly stated in the leg­is­la­tion. This, he of­fered, could be rec­ti­fied in the new act if tra­di­tional lead­ers so wished.

HIS com­ments clearly in­di­cate what has be­come in­creas­ingly ob­vi­ous to ru­ral com­mu­ni­ties: the gov­ern­ment in­tends to trans­fer com­mu­nal land to tra­di­tional lead­er­ship in­sti­tu­tions and, in the process, will not recog­nise the land rights of or­di­nary peo­ple who have in­vested in and oc­cu­pied com­mu­nal land for gen­er­a­tions.

The gov­ern­ment’s belief that tra­di­tional lead­ers are the own­ers of com­mu­nal land is in­ac­cu­rate and un­likely to hold up to con­sti­tu­tional scru­tiny.

For many ru­ral com­mu­ni­ties, the claims that tra­di­tional lead­ers are the own­ers of, and de­ci­sion-mak­ers in re­la­tion to, com­mu­nal land is a de­lib­er­ate dis­tor­tion of their cus­tom­ary law.

Le­gal aca­demics, in­clud­ing pro­fes­sors Alis­tair Kerr, Tom Ben­net and Hast­ings Okoth-Ogendo, ar­gue that the chiefs’ de­scrip­tion of their power is in­cor­rect. Prof Ben­net says por­tray­ing chiefs as the own­ers of com­mu­nal land is “a cal­cu­lated mis­rep­re­sen­ta­tion” of cus­tom­ary law.

The per­cep­tion that chiefs own the land orig­i­nated dur­ing the colo­nial era when ad­min­is­tra­tors sought to de­scribe chiefly pow­ers us­ing South African com­mon law or English law. It was done to fur­ther the po­lit­i­cal ob­jec­tives of the colo­nial and apartheid states.

By en­hanc­ing the pow­ers of tra­di­tional lead­ers at the ex­pense of or­di­nary peo­ple and the al­ter­na­tive ac­count­abil­ity mech­a­nisms pro­vided for in cus­tom­ary law, gov­ern­ment of­fi­cials were able to con­struct and strengthen their pro­ject of in­di­rect rule.

In re­al­ity, dif­fer­ent ver­sions of cus­tom­ary law pro­vide for de­ci­sions to be made about land al­lo­ca­tion and use at dif­fer­ent lev­els — in­clud­ing fam­ily, house­hold, clan, sub­vil­lage and vil­lage level. Cus­tom­ary law is of­ten char­ac­terised as a lay­ered sys­tem rather than a sys­tem that cen­tralises power in tra­di­tional lead­er­ship in­sti­tu­tions.

The cen­tralised vi­sion of land use un­der­pin­ning the gov­ern­ment and tra­di­tional lead­ers’ claims does not hold true to many ru­ral peo­ple liv­ing in the for­mer home­lands. In­stead, it rep­re­sents an in­ten­tional dis­tor­tion that has its ori­gins in il­le­git­i­mate regimes which stripped black peo­ple of their en­ti­tle­ment to land.

Un­der apartheid, the 1936 Na­tive Trusts and Land Act trans­ferred most of the land ear­marked for the home­lands to the state, which held it on be­half of the black peo­ple who were re­lo­cated there.

Since the ad­vent of democ­racy, some of this land has been re­stored to those who were dis­pos­sessed. Most land in the for­mer home­lands, how­ever, is still reg­is­tered in the Deeds Of­fice in the name of the gov­ern­ment — in nom­i­nal own­er­ship, which does not mean the state ac­tu­ally owns it.

In­stead, the gov­ern­ment holds this land in trust on be­half of the peo­ple liv­ing on it. The peo­ple are the de facto own­ers of com­mu­nal land.

AS PROF Kerr writes in his book The Cus­tom­ary Law of Im­mov­able Prop­erty and of Suc­ces­sion, there are two types of state trus­tee­ship: a strong ver­sion in terms of which the state owns the land on be­half of the ac­tual ben­e­fi­cia­ries, and a weak ver­sion in terms of which the state’s role is ad­min­is­tra­tive and does not amount to own­er­ship.

He con­cludes that the state’s nom­i­nal own­er­ship of land in the for­mer home­lands is of the weaker ad­min­is­tra­tive type. There are se­ri­ous doubts about the gov­ern­ment’s le­gal au­thor­ity to give it to any­one but the peo­ple who are the un­der­ly­ing own­ers.

Prof Kerr ex­plains that vir­tu­ally all the land in the for­mer home­lands is owned by the fam­i­lies who have oc­cu­pied and in­her­ited it over gen­er­a­tions. He analy­ses ten­ure se­cu­rity un­der cus­tom­ary law sys­tems, and the con­tent of statu­tory pro­vi­sions un­der apartheid.

He finds that both cus­tom­ary and statu­tory law cre­ate real rights in land, that is, rights that are akin to own­er­ship. That own­er­ship vests in or­di­nary peo­ple who have oc­cu­pied, used and in­vested in the land over gen­er­a­tions.

Em­i­nent his­to­rian Peter Delius sup­ports the find­ings, say­ing “once land was al­lo­cated to house­holds it was very un­usual for it to be re­claimed by a chief”.

These con­clu­sions were con­firmed when the Con­sti­tu­tion en­shrined the un­der­ly­ing real rights vested in fam­i­lies and in­di­vid­u­als in sec­tion 25(6) which pro­vides that peo­ple whose ten­ure rights were legally in­se­cure as re­sult of past racial dis­crim­i­na­tion “are en­ti­tled to ten­ure which is legally se­cure or com­pa­ra­ble re­dress”.

To give ef­fect to this pro­vi­sion, the gov­ern­ment passed the In­terim Pro­tec­tion of In­for­mal Land Rights Act of 1996, which recog­nises and pro­tects peo­ple’s land rights.

Now the gov­ern­ment seems in­tent on dis­pos­sess­ing or­di­nary peo­ple of their land in a man­ner sim­i­lar to the colo­nial and apartheid gov­ern­ments. The land in the for­mer home­lands be­longs to the peo­ple who live and work on it. To strip them of this right and trans­fer the land to tra­di­tional lead­er­ship in­sti­tu­tions con­sti­tutes more than a sec­ond dis­pos­ses­sion: it is a be­trayal by a gov­ern­ment that prom­ises to se­cure the land rights of its peo­ple.

The per­cep­tion that chiefs own the land orig­i­nated dur­ing the colo­nial era when ad­min­is­tra­tors sought to de­scribe chiefly pow­ers to fur­ther the po­lit­i­cal ob­jec­tives of the colo­nial and apartheid states


Ru­ral De­vel­op­ment and Land Re­form Min­is­ter Gugile Nk­wint has as­sured chiefs that they are de facto own­ers of the land they ad­min­is­ter.

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