Rec­tify in­se­cure ten­ure

The Witness - - OPINION - Eus­tace Davie and Mar­tin van Staden • Eus­tace Davie is a direc­tor and Mar­tin van Staden a le­gal re­searcher at the Free Mar­ket Foun­da­tion.

IN 1991, the apartheid gov­ern­ment com­mit­ted its gravest vi­o­la­tion of hu­man rights: deny­ing black South Africans own­er­ship of land.

How did it do this?

It passed the Up­grad­ing of Land Ten­ure Rights Act (Ul­tra). Ul­tra’s ob­jec­tive was to up­grade lesser forms of ten­ure in town­ships to full own­er­ship and to in­cor­po­rate the reg­is­tra­tion of these up­graded rights in the for­mal deeds registry sys­tem. It es­tab­lished a mech­a­nism whereby the new own­ers of about five mil­lion prop­er­ties could submit doc­u­ments prov­ing their own­er­ship and have that fact recorded in the deeds registry.

At the same time, the gov­ern­ment re­pealed the Na­tives Land Act of 1913. In one fell swoop, it abol­ished the act that had pro­hib­ited black South Africans for 78 years from own­ing prop­erty in over 80% of SA, and per­formed a mass trans­fer of own­er­ship of all prop­er­ties in for­malised town­ships. Ul­tra also pro­vided that upon com­ple­tion of fur­ther sur­veys and es­tab­lish­ment of for­mal town­ships, the same rules would ap­ply.

Yet, de­spite Ul­tra and the re­peal of the Na­tives Land Act, many black South Africans re­main ten­ants on their own prop­erty. The rea­son for this is sim­ple: the own­ers of these ur­ban town­ship plots were not told about their up­graded ten­ure. Ul­tra was passed and filed away. Some municipali­ties took no­tice, but the mass of town­ships re­main un­up­graded. Deeds of­fices were ei­ther un­in­formed or ne­glected to doc­u­ment the huge shift in own­er­ship from the state to the peo­ple.

Those who live on the prop­er­ties con­cerned are, by law, true and full own­ers, but this fact has not been recorded in a registry nor do they pos­sess ti­tle deeds. This makes their own­er­ship al­most use­less. They can­not sell or let their prop­er­ties with­out pro­duc­ing proof of own­er­ship and so are com­pelled to stay where they are. The choices of par­ents want­ing to move closer to their chil­dren, and fam­i­lies wish­ing to take up jobs else­where are lim­ited by not be­ing in pos­ses­sion of a ti­tle deed to their prop­erty. They also can­not bor­row against their prop­erty. Most wor­ry­ing is that a fu­ture gov­ern­ment may re­peal Ul­tra, af­ter which it be­comes an open ques­tion as to whether town­ship in­hab­i­tants re­tain the own­er­ship granted to them but not recorded on a plot-by-plot ba­sis. These prob­lems would be avoided if their own­er­ship was recorded and their ti­tle deeds trans­ferred to them on an ex­pe­dited ba­sis.

The Free Mar­ket Foun­da­tion’s Khaya Lam (My Home) Land Re­form Project, with the sup­port of donors and co-op­er­a­tion from some municipali­ties, is chip­ping away at this task. It sees not only to hav­ing own­er­ship rights recorded but also the reg­is­tra­tion of trans­fers and the pre­sen­ta­tion to own­ers of the ti­tle deeds to their prop­er­ties. Ti­tles pre­sented and trans­fers in progress now to­tal 5 100. The es­ti­mated to­tal num­ber of prop­er­ties is five mil­lion.

The essence of the prop­erty rights story as far as black South Africans are con­cerned can thus be re­duced to:

• they were de­nied the right to own prop­erty in land for 78 years (be­tween 1913 and 1991);

• an es­ti­mated five mil­lion house­holds were given own­er­ship of the houses they oc­cu­pied but were not in­formed of this;

• those who have ti­tle deeds to prop­er­ties have had full prop­erty rights for 27 years (be­tween 1991 and 2018); and

• the re­moval of se­cure prop­erty rights by the pro­posed ex­pro­pri­a­tion with­out com­pen­sa­tion will once again re­turn black South Africans to the in­se­cu­rity they had dur­ing the apartheid years.

The ur­ban town­ship ex­ists today in much the same form as dur­ing apartheid. Municipali­ties own the land upon which town­ships and the in­hab­i­tants are un­able legally to sell, let or mort­gage the prop­erty they oc­cupy. They can­not re­gard “their” prop­er­ties in the same way as peo­ple do in sub­urbs. This lack of own­er­ship leads to a lack of in­vest­ment in the prop­er­ties by in­hab­i­tants and the ab­sence of a prop­erty mar­ket.

If we wish to see town­ships be­come mid­dle-class sub­urbs, own­er­ship must be ex­tended to the res­i­dents, not threat­ened by ex­pro­pri­a­tion. If the gov­ern­ment is se­ri­ous about re­form, it must shelve its plans to amend the Con­sti­tu­tion and start do­ing what the Con­sti­tu­tion ob­li­gates it to do: se­cure the ten­ure of those who have in­se­cure ten­ure be­cause of past racial dis­crim­i­na­tion. Land re­form is mean­ing­less if there is an ab­sence of pri­vate prop­erty rights. — FMF.

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.