Communal Land Tenure

A pesar de los múltiples mecanismos de despojo territorial, las tierras comunales han desempeñado un papel geoestratégico de interés cada vez mayor. Dadas sus formas organizativas en su mayoría colectivas implícitas en esta forma de tenencia, las mismas han representado una vieja bandera de lucha bajo nuevas facetas legales. No sólo han contribuido a que las tierras, bosques y aguas de uso y manejo colectivo hayan sido conservados a lo largo del tiempo, sino que ahora, representan remanentes ecológicos en la era de la desaparición de los distintos ecosistemas a nivel global.

Twenty years have passed since the homelands were reintegrated into a unitary South Africa, yet the legacy of the colonial and apartheid past continues to haunt these areas. Almost 17 million people or a third of the population of South Africa reside in the former homelands, which the post-apartheid government calls ‘communal areas’, according to forms of communal tenure. However, for most of the people living in these areas the full recognition of their land rights remains unrealised as the South African government has been unable to develop laws and policies that sufficiently capture the nuanced ways in which people experience and regulate relations of communal tenure in their everyday lives. While the government has enacted laws to enhance the security of tenure of farm dwellers and labour tenants, there is currently no substantive legislation to secure and promote the land rights of the people living in the former homelands (other than the Interim Protection of Informal Land Rights Act (IPILRA)). This legal vacuum has contributed to the insecure nature of people’s land rights in communal areas. As this report will illustrate, this insecurity has been worsened by colonial and apartheid distortions of customary law and the unequal power relations that were supported by these distortions, many of which have been reproduced or entrenched in the democratic dispensation. This report was commissioned report for the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, an initiative of the South African Parliament.

This paper is about how different perceptions of tenure security in South Africa influence different approaches to governance of land. The governance of communal land tenure arrangements is especially hotly debated. Communal tenure insecurity affects millions of South Africans. The State is constitutionally mandated to effect legislation that will address this situation. The Communal Land Rights Act 11 of 2004 was signed into law to create a land administration system to regulate communal land tenure. The Act aimed to provide security of tenure by providing self-regulation to communities through corporatisation and the formalisation of land rights by means of registration. Community governance structures would also be incorporated in to local government structures. The Act, however, did not provide for adequate consultation measures with communities, current community practises of governance and state support. Governance of land rights imposed by the State clashed with the horizontal governance of communities. Four communities challenged the constitutionality of these measures in the Constitutional Court. They argued that the effects of the legislation would leave them in a worse position than was the case under the repressive apartheid regime. The Court subsequently declared the Act unconstitutional on substantive and procedural grounds. Thus, after a more than a decade of democracy in South Africa almost one third of the population still suffers from legal tenure insecurity without support from the state. State intervention in local land governance structures failed to accommodate local realities on the ground. Instead, communities are calling for alternatives that recognise their own attempts, at grass-roots level, to achieve tenure security. Adequate interaction between the state and private actors in the governance of land tenure is sorely needed. Current attempts to rectify this situation are limited to political promises with no clear policy framework.

On 20 August 2015, the Constitutional Court delivered its landmark judgment in the case of Bakgatla ba Kgafela Tribal CPA v Bakgatla ba Kgafela Tribal Authority and Others. The judgment represents an important victory for land claimant groups and Communal Property Associations (CPAs) around the country as it addresses a number of serious recurrent problems faced by CPAs who attempt to have their CPA’s registered by the Department and their restitution land transferred. As pointed out in judgments by the Land Claims Court and the Supreme Court of Appeal the issue of mismanagement and lack of support from the Department of Rural Development and Land Reform (the Department) to CPAs and restitution beneficiaries has reached extraordinary preportions. The judgment affirms and protects the right of land claimant groups to choose which legal entity they want to acquire, hold and manage land held on a communal basis. This factsheet explains what the legal implications of the judgment are.

This thesis analyses the politics from below as a response to ‘green grabbing’ in the context of Tanzania. While Tanzania has been progressive in terms of laws of community land rights, negative consequences of land acquisitions and expansions have persisted. In many cases land grabs have persisted: driven by personal and ‘public’ interests and by poor governance. Through the case analysis of Kimotorok and Loliondo, this research has found that the gravity of the situations have led the communities to mobilize in order for them to tip the scale. As such, many institutional forms of resistance –e.g. demonstrations, complaints, media exposure, research and collection of evidence- and several non-institutional –e.g. riots and threats of physical violence- have been deployed.

Based on literature on social mobilization theory, this research shows
that the level of success to a large extent depends on non-material and
material resources and political opportunities. Through a cross-case analysis of a less successful case and a reasonably successful case, it has been shown that in line with the literature internal unity and external solidarity determine the likelihood of success. However, this thesis adds to the literature by suggesting that the community strategies –i.e. local activism- alongside knowledge are essential for positive outcomes of resistance. In line with these points the research identifies, while acknowledging that a combination of forms is vital, specific forms of resistance that have proven more successful than others. These include political pressure of electoral threats and raising awareness through the media.

Finally, this thesis notes that as the rural poor increasingly gain access
to resources like Social Media, even the most remote area –Loliondo as the
point in case- becomes closer than ever. With this development Scott’s notion of ‘friction of distance’ has in many cases become an obsolete concept, which will likely increase over time. As such, the concept is becoming much more a matter of digital rather than physical distance.