Submission to the Department of Land Affairs

Introduction

1. The South African Council of Churches (SACC) is the facilitating body for a fellowship of 24 Christian churches, together with one observer-member and associated para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing the majority of Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of national debate.



2. The SACC welcomes the publication of the current draft of the Communal Land Rights Bill (CRLB) for public comment. Close to one third of South Africa's population live in former homeland areas under the communal tenure system. Many of these households were stripped of their land and forcibly removed from it in terms of apartheid legislation. Their tenure remains insecure as there is widespread uncertainty around the validity of "Permission to Occupy" certificates and the ultimate ownership of the land they live on and use. This uncertainty acts as a brake on development, resulting in disputes over control of land, delays in planning and implementation, and obstacles to investment in communal areas. Local residents are often excluded from decisions about the use of the land they occupy. Traditional systems of communal land administration frequently discriminate against women, making them dependent on men for secure access to land . Consequently, we support the CLRB's stated objectives of providing those living on communal land with greater security of tenure and access to democratic administrative structures and enhancing gender equality.



3. The Constitution (sec. 25) requires Parliament to enact legislation to ensure that those dispossessed of property after 19 June 1913 in terms of racially-discriminatory laws or practices are able either to recover their property or to secure equitable redress. It further requires the state to "take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis." The CRLB must also be assessed on its effectiveness in realising these two constitutional obligations.



4. More generally, any legislation regulating communal land rights must be measured against three main criteria:
   • The extent to which the legislation enhances the security of tenure of those whose access to land has previously been insecure due to racially biased legislation and land allocation procedures;
   • The extent to which the new system contributes to the development of sustainable communities - economically, socially and administratively; and
   • The extent to which the new model reduces social and economic inequality, especially with respect to class and gender.



5. The SACC is concerned that the CRLB, in its current form, suffers from serious flaws that will impede significantly its potential to satisfy these criteria. Our reservations revolve around the following main issues:
   • The legislation's capacity to promote sustainable communities;
   • The appropriateness of the titling model as a mechanism to enhance tenure security;
   • The workability of the administrative systems set out in the Bill;
   • The impact on gender equality; and
   • The scope of the legislation's application.
   As we feel that additional consultation and redrafting will be necessary to address these concerns adequately, we seek in this submission to raise issues of broad principle, rather than to engage the technical aspects of the draft bill.

Building sustainable communities

6. One of the central objectives of land reform should be to build viable, sustainable communities. In attempting to deal responsibly with communities living on church-owned land, a number of the SACC's member churches have discovered that it is not sufficient simply to give residents title to the land they occupy. Communities typically need access to other resources and supporting services -- agricultural inputs and extension services, schools, health care facilities, etc. -- in order to thrive.



7. The current draft of the CRLB appears to subordinate the goal of sustainability to the objective of divesting state lands. The bill does not establish a mechanism for assessing the potential viability of a community applying for transfer of title to communal land. In theory, this is a question that could be considered as part of the land rights inquiry required by the bill. However, it is not currently the primary focus of the inquiry process, nor is it even identified explicitly as an objective of such an inquiry.



8. Furthermore, once title is transferred, the CRLB would impose no continuing legal obligation on government to provide further services or infrastructure for that community. Without ongoing and reliable service provision, a community's viability is likely to suffer.

Titling and tenure security

9. The CLRB would establish a process to allow communities, households or individuals currently resident on communally owned land to apply to the Minister of Land Affairs for a Deed of Transfer. If approved, such a deed would give the applicant title to the land in question. Where title to land is transferred to a community (acting as a juristic person), provision is also made for households or individuals resident in the area to secure their tenure by obtaining a Deed of Transfer or a Deed of Land Tenure Right.



10. This represents, in effect, a privatisation of land that is currently communally held. It is the only option - apart from the status quo - that would be available to communities living on communal land. Communities would be unable to access any of the administrative structures set out in the legislation unless they accept transfer of title. Furthermore, the CRLB [s. 17(2)] would empower the Minister to initiate the transfer process on behalf of a community. The fact that the Minister would not be required to demonstrate that her or his action is genuinely undertaken on a community's behalf is significant; it suggests an underlying assumption that those occupying land automatically benefit from obtaining freehold title to that land.



11. However, title transfers alone have limited potential to achieve the fundamental objectives of security, sustainability and equality. Indeed, households with limited access to income, agricultural inputs and other resources necessary to sustain an adequate standard of living may be under great pressure to sell assets, including land, in order to make ends meet. Thus, there is a great risk that a large number of poor households will become permanently alienated from the land. This will tend to exacerbate inequalities, enabling affluent individuals and businesses to acquire (often at a discount) the land assets the poor are forced to shed. Given the racially-skewed distribution of wealth in South Africa, this is likely to mean that substantial amounts of state/communal land currently occupied by Black households will become white-owned. As female-headed households tend to be poorer than male-headed households, gender inequality will also increase.



12. In certain cases, the transfer of title to a household currently occupying communally-held land may enhance that household's long-term tenure security. It should not be ruled out as an option. But it should also not be the only mechanism -- or even the preferred mechanism -- to achieve greater security and equity. This seems to contradict one of the fundamental principles of tenure reform set out in the 1997 White Paper on Land Policy, namely: "Tenure reform must allow people to choose the tenure system which is appropriate to their circumstances." (4.16)



13. This system of titling raises other important and unresolved questions. For example, in whom will the individual land tenure rights vest? The household? The household head? If the household is headed jointly, will both partners have equal rights of ownership? How will child-headed households be accommodated in this system? There is a danger that child-headed households and women in jointly-headed households will not have equal access to land, thereby increasing their vulnerability and creating an even more unequal distribution of assets.

Land administration systems

14. One of the problems with the existing situation is the dual system of land administration, which perpetuates inequality in the status of land rights. The 1997 White Paper on Land Policy made a commitment to the establishment of a unitary land registration, support and administration system capable of accommodating diverse systems of land rights on an equal basis. The CRLB falls short of this objective. Far from rationalising existing land administration systems, it adds yet another system - one that seems quite similar to the problematic Communal Property Associations (CPAs) (that will continue to function outside the jurisdiction of this legislation).



15. The new system of administration outlined in the CRLB is complex. It is likely to be slow and to require extensive support from Local Government and Department of Land Affairs (DLA) staff. Without a significant expansion in the capacity of DLA offices and a clear plan for the capacitation of local authorities and community land administration structures, there is a risk that the new system will reproduce, rather than resolve, the problems associated with CPAs and community trusts. Staffing limitations already compel DLA personnel to withdraw from land reform projects as soon as possible after a transfer is complete. However, this reduces the DLA's ability to foster the sustainability of the project or to ensure that women and other marginalised groups are able to participate fully in decisions related to the transfer process.



16. The CRLB contains no mechanism to ensure that women are proportionally represented in all decisions concerning the allocation and administration of land under the new system. Although s. 32 of the Bill requires the community rules defining the land administration process to provide for equality of membership and equal access to meetings, there is no explicit requirement for equal representation of women on community land administration structures. Furthermore, when a community makes the decision to establish itself as a juristic person in order to take transfer of title, the Bill would require only that "a majority of the members of the community [be] present or represented". Where women have traditionally been excluded from active participation in community decision making, this provision is inadequate to secure their rights.



17. The Bill's preamble acknowledges that "traditional leadership institutions ... should continue to play a meaningful and key role in the administration of communal land," while the Bill itself seeks to provide for "further democratization ... of the institution of traditional leadership". Although we support in principle both of those objectives, it remains unclear exactly how the CRLB intends to achieve them. Section 33 says that where traditional leadership is recognised as legitimate by a community, it may participate in the structure designated to administer communal land, provided that it does not comprise more than one quarter of the membership of that structure and does not have the power to veto decisions of the structure. However, there are substantial variations in communities' perceptions of the legitimacy of traditional leaders. A wider range of options should be available to enable communities to design administrative structures that take into account both the authority which traditional leaders exercise at present and local views about the appropriate role of traditional leadership.

Comparable redress

18. We applaud the Bill's provisions for comparable redress where land tenure is insecure. However, the bill is silent on a number of important points. It is not clear whether the comparable redress process is separate from the land transfer process articulated in the Bill, or whether it is an integral part of the transfer process. Is it a once off event, or can a portion of a community have recourse to the redress process if, for example, there is an unreconcilable rift in the community?

Scope of application

19. It is not clear from the current draft whether the legislation would apply to land other than state-owned land. While most commentators understand the Bill to apply only to state land, the statements of some DLA officials suggest that they consider it to have broader application, The definition of communal land (s. 1(v)) includes "land which has been acquired for or by a community but was not registered in its name because of racially-discriminatory laws and practices". This would seem to permit application of the Bill to certain church lands that have historically been held in trust for communities. Greater clarity is needed on this point.

A Call for Further Consultation

20. There is an urgent need to press ahead with comprehensive and systematic land reform, including tenure reform. We appreciate the Department's desire to address the need for new legislation to enhance security of tenure, democratic administration and development in areas currently under communal tenure. However, we are also conscious of the magnitude, complexity and sensitivity of the issues involved. We believe that the hasty application of a flawed administrative system that does not enjoy the confidence of most stakeholders would do more harm than good. We therefore urge the government to defer tabling the CLRB in Parliament until the Department is able to undertake additional research and consultation to address the problems cited above.